Exhibit 11
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED AGREEMENT is made as of April 18, 1997, and
amended as of July 18, 1997, by and between COMSAT Corporation ("COMSAT"), a
District of Columbia corporation, and Xxxxx Flower, a resident of the
Commonwealth of Virginia (the "Executive").
WHEREAS, the Executive serves as Vice President and Chief Financial Officer
of COMSAT;
WHEREAS, the Board of Directors of COMSAT (the "Board") believes it to be
in the best interests of COMSAT to enter into this Agreement to ensure the
Executive's continuing services to COMSAT; and
WHEREAS, COMSAT desires to continue to employ the Executive as Vice
President and Chief Financial Officer of COMSAT, and the Executive desires to
continue such employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, COMSAT and the Executive
agree as follows:
1. Employment; Duties.
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(a) Employment and Employment Period. COMSAT shall employ the
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Executive to serve as Vice President and Chief Financial Officer of COMSAT or
any successor entity for a period (the "Employment Period") commencing on April
18, 1997 (the "Effective Date") and continuing thereafter until April 17, 2000
unless terminated in accordance with the provisions of this Agreement. Each 12-
month period ending on the anniversary date of the Effective Date is referred to
herein as a "year of the Employment Period."
(b) Offices, Duties and Responsibilities. The Executive shall
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report to the Chief Executive Officer of COMSAT. The Executive's offices
initially shall be located at COMSAT's present headquarters in Bethesda,
Maryland. The Executive shall have all duties and authority customarily accorded
a Vice President and Chief Financial Officer.
(c) Devotion to Interests of COMSAT. During the Employment
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Period, the Executive shall devote his best efforts and full business time and
attention to the performance of his duties hereunder. Notwithstanding the
foregoing, the Executive shall be entitled to undertake outside activities (e.g.
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charitable, educational, personal interests, and board of directors memberships)
that do not compete with COMSAT and do not unreasonably or materially interfere
with the performance of his duties hereunder as reasonably determined by the
Chief Executive Officer in consultation with the Executive.
2. Compensation and Fringe Benefits.
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(a) Base Compensation. COMSAT shall pay the Executive a base
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salary ("Base Salary") during the Employment Period, with payments made in
installments in accordance with COMSAT's regular practice for compensating
executive personnel, provided that in no event shall such payments be made less
frequently than twice per month. The initial annual Base Salary shall be
$210,000. Thereafter, the Base Salary for the Executive shall be reviewed for
increases annually during the Employment Period, consistent with COMSAT's normal
review process. Any Base Salary increases shall be approved by the Board in its
sole discretion.
(b) Bonus Compensation. The Executive will be eligible to
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receive bonuses ("Annual Bonus") during the Employment Period under the Annual
Incentive Plan (the "AIP") in accordance with the following parameters: (i) the
target bonus for each year during the Employment Period shall be 50% of Base
Salary for achieving 100% of the target level for the performance measures and
(ii) the performance measures, the relative weight to be accorded each
performance measure and the amount of bonus payable in relation to the target
bonus for achieving more or less than 100% of the target level for the
performance measures shall be determined for each year during the Employment
Period by the Committee on Compensation and Management Development of the Board
(the "Compensation Committee").
(c) Fringe Benefits. The Executive shall be entitled to the
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fringe benefits in effect for COMSAT senior executives from time to time,
including (i) participation in the COMSAT Directors and Executives Deferred
Compensation Plan, the COMSAT Split Dollar Insurance Plan, the COMSAT
Educational Grant Program, the COMSAT Retirement Plan, the COMSAT Savings and
Profit-Sharing Plan, the COMSAT 1995 Key Employee Stock Plan, the COMSAT
Employee Stock Purchase Plan, the COMSAT health and disability insurance
programs and the COMSAT financial planning program and (ii) reimbursement of
reasonable expenses incurred in connection with travel and entertainment related
to COMSAT's business and affairs. The Executive also shall be entitled to such
other or additional fringe benefits as are made available to COMSAT senior
executives during the Employment Period. COMSAT reserves the right to modify or
terminate at any time the fringe benefits provided to the senior management
group.
(d) SERP. The Executive shall continue to participate in the
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COMSAT Insurance and Retirement Plan for Executives (the "SERP"). Any future
amendments or changes to the SERP which provide for a reduction, deferral or
elimination of benefits payable to participants in the SERP shall expressly not
apply to the Executive unless the Executive consents otherwise.
(e) Legal Expenses. The Executive shall be entitled to
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reimbursement of the Executive's reasonable legal fees and costs incurred in
connection with the negotiation and execution of this Agreement, subject to a
maximum reimbursement of $5,000.
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3. Trade Secrets; Return of Documents and Property.
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(a) The Executive acknowledges that during the course of his
employment he will receive secret, confidential and proprietary information
("Trade Secrets") of COMSAT and of other companies with which COMSAT does
business on a confidential basis and that the Executive will create and develop
Trade Secrets for the benefit of COMSAT. Trade Secrets shall include, without
limitation, matters of a technical nature, such as scientific and engineering
secrets, "know-how," formulae, secret processes or machines, inventions and
computer programs (including documentation of such programs), and matters of a
business nature, such as customer data and proprietary information about costs,
profits, markets, sales and customer databases, and other information of a
similar nature to the extent not available to the public, and plans for future
development. All Trade Secrets disclosed to or created by the Executive shall
be deemed to be the exclusive property of COMSAT. The Executive acknowledges
that Trade Secrets have economic value to COMSAT due to the fact that Trade
Secrets are not generally known to the public or the trade and that the
unauthorized use or disclosure of Trade Secrets is likely to be detrimental to
the interests of COMSAT and its subsidiaries. The Executive therefore agrees to
hold in strict confidence and not to disclose to any third party any Trade
Secret acquired or created or developed by the Executive during the term of this
Agreement except (i) when the Executive uses or discloses any Trade Secret in
the proper course of the Executive's rendition of services to COMSAT hereunder,
(ii) when such Trade Secret becomes public knowledge other than through a breach
of this Agreement, or (iii) when the Executive is required to disclose any Trade
Secret pursuant to any valid legal process. The Executive shall notify COMSAT
immediately of any such legal process in order to enable COMSAT to contest such
legal process's validity. After termination of this Agreement, the Executive
shall not use or otherwise disclose Trade Secrets unless such information (x)
becomes public knowledge other than through a breach of this Agreement, (y) is
disclosed to the Executive by a third party who is entitled to receive and
disclose such Trade Secret, or (z) is required to be disclosed pursuant to any
valid legal process, in which case the Executive shall notify COMSAT immediately
of any such legal process in order to enable COMSAT to contest such legal
process's validity.
(b) Upon the effective date of notice of the Executive's or
COMSAT's election to terminate this Agreement, or at any time upon the request
of COMSAT, the Executive (or his heirs or personal representatives) shall
deliver to COMSAT (i) all documents and materials containing or otherwise
relating to Trade Secrets or other information relating to COMSAT's business and
affairs, and (ii) all documents, materials and other property belonging to
COMSAT, which in either case are in the possession or under the control of the
Executive (or his heirs or personal representatives). The Executive shall be
entitled to keep his personal records (including Rolodex) relating to COMSAT's
business and affairs except to the extent those contain documents or materials
described in clause (i) of the preceding sentence.
4. Discoveries and Works. All discoveries and works made or conceived
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by the Executive during his employment by COMSAT pursuant to this Agreement,
jointly or with others, that relate to COMSAT's activities ("Discoveries and
Works") shall be owned by
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COMSAT. Discoveries and Works shall include, without limitation, inventions,
computer programs (including documentation of such programs), technical
improvements, processes, drawings and works of authorship. The Executive shall
(a) promptly notify, make full disclosure to, and execute and deliver any
documents requested by, COMSAT to evidence or better assure title to such
Discoveries and Works in COMSAT, (b) assist COMSAT in obtaining or maintain for
itself at its own expense United States and foreign patents, copyrights, trade
secret protection or other protection of any and all such Discoveries and Works,
and promptly execute, whether during his employment by COMSAT or thereafter, all
applications or other endorsements necessary or appropriate to maintain patents
and other rights for COMSAT and to protect its title thereto. Any Discoveries
and Works which, within six months after the termination of the Executive's
employment by COMSAT, are made, disclosed, reduced to a tangible or written form
or description, or are reduced to practice by the Executive and which pertain to
work performed by the Executive while with COMSAT shall, as between the
Executive and COMSAT, be presumed to have been made during the Executive's
employment by COMSAT.
5. Termination. This Agreement shall remain in effect during the
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Employment Period, and this Agreement and Executive's employment with COMSAT may
be terminated only as follows:
(a) The Executive's employment may be terminated by the
Executive at any time upon 45 days advance written notice to COMSAT for "Good
Reason" (as defined below). In such event, or if the Executive's employment is
terminated by COMSAT without "Cause" (as defined below), the Executive shall be
entitled to receive the following benefits until the later of (x) one year after
the date of the Executive's termination of employment or (y) April 17, 2000:
(i) The Executive's Base Salary in effect at the date of
termination;
(ii) An Annual Bonus equal to 50% of his then current Base
Salary; and
(iii) All benefits provided pursuant to Sections 2(c) and (d) of
this Agreement, which shall be deemed to vest fully and immediately if subject
to vesting; provided, however, that in the event COMSAT is precluded from
providing coverage under any such benefit plan by applicable law or regulation,
COMSAT may provide the Executive with a payment equal to the cost of such
coverage without regard to tax effect. The foregoing benefits shall be
calculated in accordance with the provisions of the applicable plans as if the
Executive had retired on his date of termination, provided that the Board
reserves the discretion to waive the applicable early retirement reduction under
the SERP in such event.
(b) "Good Reason" shall mean the occurrence of any of the
following (other than for "Cause"), without the Executive's express written
consent: (i) the assignment to the Executive of duties inconsistent with the
Executive's status as an executive officer of COMSAT or a substantial reduction
by COMSAT of the Executive's responsibilities as an executive officer of COMSAT;
(ii) any relocation of the Executive's offices outside the Washington, D.C.
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metropolitan area by COMSAT prior to the third anniversary of the Effective
Date; or (iii) any material default of the provisions of Section 2 of this
Agreement which continues for 20 business days following COMSAT's receipt of
written notice from the Executive specifying the manner in which COMSAT is in
default of such provisions. In order for the Executive to terminate employment
for "Good Reason," the Executive must give COMSAT written notice of his
termination of employment for "Good Reason," stating the basis for the
termination, within 90 days after the Executive learns of the occurrence of the
event constituting "Good Reason."
(c) The Executive's employment may be terminated by COMSAT for
Cause at any time upon ten days written notice to the Executive, and after
giving the Executive an opportunity to discuss such decision with the Board. For
purposes of this Agreement, COMSAT shall have "Cause" to terminate the
Executive's employment hereunder upon (i) the continued and deliberate failure
of the Executive to perform his material duties, in a manner substantially
consistent with the manner reasonably prescribed by the Board and in accordance
with the terms of this Agreement (other than any such failure resulting from his
incapacity due to physical or mental illness), which failure continues for 20
business days following the Executive's receipt of written notice from the Board
specifying the manner in which the Executive is in default of his duties, (ii)
the engaging by the Executive in intentional serious misconduct that is
materially and demonstrably injurious to COMSAT or its reputation, which
misconduct, if it is reasonably capable of being cured, is not cured by the
Executive within 20 business days following the Executive's receipt of written
notice from the Board specifying the serious misconduct engaged in by the
Executive, (iii) the conviction of the Executive of commission of a felony,
whether or not such felony was committed in connection with COMSAT's business,
or (iv) any material breach by the Executive of Section 10 hereof, which breach,
if it is reasonably capable of being cured, is not cured by the Executive within
20 business days following the Executive's receipt of written notice from the
Board specifying the breach of Section 10 by the Executive. If COMSAT shall
terminate the Executive's employment for "Cause," COMSAT, in full satisfaction
of all of COMSAT's obligations under this Agreement and in respect of the
termination of the Executive's employment with COMSAT, shall pay the Executive
his Base Salary and any other compensation, benefits and reimbursements due him
under COMSAT plans through the date of termination of his employment.
(d) If, prior to the expiration or termination of the Employment
Period, the Executive shall have been unable to perform substantially his duties
by reason of disability or impairment of health for at least six consecutive
calendar months, COMSAT shall have the right to terminate this Agreement by
giving 60 days written notice to the Executive to that effect, but only if at
the time such notice is given such disability or impairment is still continuing.
Following the expiration of the notice period, the Employment Period shall
terminate with the payment of the Executive's Base Salary for the month in which
notice is given and a prorated Annual Bonus through such month. In the event of
a dispute as to whether the Executive is disabled within the meaning of this
Section 5(d), or the duration of any disability, either party may request a
medical examination of the Executive by a doctor appointed by the Chief of Staff
of a hospital selected by mutual agreement of the parties, or as the parties may
otherwise agree,
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and the written medical opinion of such doctor shall be conclusive and binding
upon the parties as to whether the Executive has become disabled and the date
when such disability arose. The cost of any such medical examinations shall be
borne by COMSAT. In no event shall this Agreement terminate before COMSAT's
long-term disability benefits under applicable plans become payable to the
Executive.
(e) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, COMSAT shall pay to the Executive's estate his
Base Salary and a prorated Annual Bonus through the end of the month in which
the Executive's death occurred, at which time the Employment Period shall
terminate without further notice.
(f) If COMSAT elects not to renew the Executive's employment
with COMSAT at the end of the Employment Period and the Executive terminates
employment at the end of the Employment Period, the Executive shall be entitled
to receive the payments described in Section 5(a)(i), (ii) and (iii) for the
period beginning on the date of the Executive's termination of employment and
ending one year after the Executive's termination of employment.
(g) If either the Executive or COMSAT elects not to renew the
Executive's employment with COMSAT at the end of the Employment Period, the
Executive shall be entitled to receive payments under the SERP beginning on May
1, 2000 (the first day of the month after the end of such period), calculated in
accordance with the provisions of the SERP based on the Executive's retirement
on that date, provided that the Board reserves the discretion to waive the
applicable early retirement reduction under the SERP in such event. If the
Executive's employment with COMSAT under this Agreement is terminated either by
the Executive for Good Reason or by COMSAT without Cause before the Executive
attains age 55, the Executive shall be entitled to receive payments under the
SERP beginning on December 1, 1998 (the first day of the month after the
Executive's 55th birthday), calculated in accordance with the provisions of the
SERP as if the Executive retired on that date, provided that the Board reserves
the discretion to waive the applicable early retirement reduction under the SERP
in such event. If the Executive dies before payments begin under the SERP, the
Executive's surviving spouse, if any, shall receive under the SERP a $200,000
lump sum death benefit, plus annual benefit payments for a ten year period equal
to 50% of the Executive's accrued benefit under the SERP, according to the terms
of the SERP. The provisions of this Section 5(g) shall be administered
consistent with the terms of the SERP.
(h) If the Executive voluntarily terminates employment with
COMSAT, such termination shall not be considered a breach of this Agreement by
the Executive and shall not adversely affect the Executive's right to receive
such benefits as may be payable to the Executive on account of his termination
of employment under applicable COMSAT plans. The Executive shall remain
obligated to comply with the provisions of Sections 3, 4, 10 and 12 of this
Agreement.
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6. Change of Control. If a change of control (as defined for purposes
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of COMSAT's benefit plans) occurs during the Employment Term, the change of
control shall not adversely affect any of the Executive's rights under this
Agreement, and this Agreement shall continue in effect according to its terms.
In the event of a change of control, the Executive shall be entitled to vesting
and payment of benefits according to the terms of this Agreement or COMSAT's
applicable plans, whichever is more favorable.
7. Certain Additional Payments.
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(a) Notwithstanding anything in this Agreement to the contrary,
in the event that it shall be determined that any payment or benefit to the
Executive, whether pursuant to the terms of this Agreement or otherwise (a
"Payment"), would constitute an "excess parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), the
Executive shall be paid an additional amount (a "Gross-Up Payment") such that
the net amount retained by the Executive after deduction of any excise tax
imposed under Section 4999 of the Code, and any federal, state and local income
and employment taxes and excise tax, including any interest and penalties with
respect thereto, imposed upon the Gross-Up Payment shall be equal to the
Payment. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income tax and employment taxes at the
highest marginal rate of federal income and employment taxation in the calendar
year in which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and locality of the
Executive's residence on the date the Payment is made, net of the reduction in
federal income taxes that the Executive may obtain from the deduction of such
state and local income taxes.
(b) All determinations to be made under this Section 7 shall be made
by COMSAT's independent public accountant immediately prior to the date the
Payment is made (the "Accounting Firm"), which firm shall provide its
determinations and any supporting calculations and workpapers both to COMSAT and
the Executive within 10 days of such date. Any such determination by the
Accounting Firm shall be binding upon COMSAT and the Executive. Within five days
after receipt of the Accounting Firm's determination, COMSAT shall pay to the
Executive the Gross-Up Payment determined by the Accounting Firm.
(c) In the event that upon any audit by the Internal Revenue Service,
or by a state or local taxing authority, of a Payment or Gross-Up Payment, a
change is finally determined to be required in the amount of taxes paid by the
Executive, appropriate adjustments shall be made under this Section such that
the net amount which is payable to the Executive after taking into account the
provisions of Section 4999 of the Code and any interest and penalties shall
reflect the intent of the parties as expressed in paragraph (a) above, in the
manner determined by the Accounting Firm. The Executive shall notify COMSAT in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by COMSAT of a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise COMSAT of the
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nature of such claim and the date on which such claim is requested to be paid.
The Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to COMSAT (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If COMSAT notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall: (i) give COMSAT any information reasonably requested by COMSAT relating
to such claim; (ii) take such action in connection with contesting such claim as
COMSAT shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by COMSAT; (iii) cooperate with COMSAT in good
faith in order effectively to contest such claim; and (iv) permit COMSAT to
participate in any proceedings relating to such claim; provided, however, that
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COMSAT shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any excise
tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 7, COMSAT shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may contest the claim in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as COMSAT
shall determine. COMSAT's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in paragraphs (b) and (c) above shall
be borne solely by COMSAT. COMSAT agrees to indemnify and hold harmless the
Accounting Firm from any and all claims, damages and expenses resulting from or
relating to its determinations pursuant to paragraphs (b) and (c) above, except
for claims, damages or expenses resulting from the gross negligence or willful
misconduct of the Accounting Firm.
8. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of the Executive's employment and the
Employment Term to the extent necessary to the intended preservation of such
rights and obligations.
9. Mitigation and No Offsets. The Executive shall not be required to
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mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise and there shall be no offset against
amounts due the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may obtain. COMSAT's
obligations to make payments under this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without
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limitation, any set-off, counterclaim, recoupment, defense or other right which
COMSAT may have against the Executive or others.
10. Non-Competition.
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(a) Non-Competition Agreement. As an inducement for COMSAT to
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enter into this Agreement, the Executive agrees that, during the Non-Competition
Period (as defined below), the Executive shall not, without the prior written
consent of the Board, engage or participate, directly or indirectly, as
principal, agent, employee, employer, consultant, stockholder, partner or in any
other individual capacity whatsoever, in the conduct or management of, or own
any stock or any other equity investment in or debt of, any business which is
competitive with any business conducted by COMSAT. The Non-Competition Period
is the period commencing as of the Effective Date and running through the date
that is one year following the date on which the Executive's employment with
COMSAT terminates for any reason.
(b) Competitive Business. For the purpose of this Agreement, a
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business shall be considered to be competitive with any business of COMSAT only
if such business is engaged in providing services or products (i) comparable to
or competitive with (A) any service or product currently provided by COMSAT
during the Employment Period; (B) any service or product which evolves from or
results from enhancements in the ordinary course during the Non-Competition
Period to the services or products provided by COMSAT as of the date hereof or
during the Employment Period; or (C) any future service or product of COMSAT as
to which the Executive materially and substantially participated in the
development or enhancement, and (ii) to customers, distributors or clients of
the type served by COMSAT during the Non-Competition Period.
(c) Non-Solicitation of Employees. During the Non-Competition
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Period, the Executive will not (for his own benefit or for the benefit of any
person or entity other than COMSAT) solicit, or assist any person or entity
other than COMSAT to solicit, any officer, director, executive or employee
(other than an administrative or clerical employee) of COMSAT to leave his or
her employment.
(d) Reasonableness; Interpretation. The Executive acknowledges
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and agrees, solely for purposes of determining the enforceability of this
Section 10 (and not for purposes of determining the amount of money damages or
for any other reason), that (i) the markets served by COMSAT are national and
international and are not dependent on the geographic location of executive
personnel or the businesses by which they are employed; (ii) the length of the
Non-Competition Period is linked to the term of the Employment Period; and (iii)
the above covenants are manifestly reasonable on their face, and the parties
expressly agree that such restrictions have been designed to be reasonable and
no greater than is required for the protection of COMSAT. In the event that the
covenants in this Section 10 shall be determined by any court of competent
jurisdiction in any action to be unenforceable by reason of their extending for
too
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great a period of time or over too great a geographical area or by reason of
their being too extensive in any other respect, they shall be interpreted to
extend only over the maximum period of time for which they may be enforceable,
and/or over the maximum geographical area as to which they may be enforceable
and/or to the maximum extent in all other respects as to which they may be
enforceable, all as determined by such court in such action.
(e) Investment. Nothing in this Agreement shall be deemed to
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prohibit the Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive with COMSAT,
provided that such investments (i) are passive investments and constitute five
percent or less of the outstanding equity securities of such an entity the
equity securities of which are traded on a national securities exchange or other
public market, or (ii) are approved by the Board.
11. Indemnification; Liability Insurance. The Executive shall be
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entitled to indemnification and coverage under COMSAT's liability insurance
policy for officers to the same extent as other officers of COMSAT. In
addition, the Executive shall be indemnified to the maximum extent permitted by
law of the jurisdiction in which COMSAT is incorporated, as it may be amended
from time to time.
12. Enforcement.
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(a) The Executive acknowledges that a breach of the covenants or
provisions contained in Sections 3, 4 and 10 of this Agreement will cause
irreparable damage to COMSAT, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such breach will be inadequate.
Accordingly, the Executive agrees that if the Executive breaches or threatens to
breach any of the covenants or provisions contained in Sections 3, 4 and 10 of
this Agreement, in addition to any other remedy which may be available at law or
in equity, COMSAT shall be entitled to seek specific performance and injunctive
relief in a court of competent jurisdiction after notice and a hearing.
(b) The parties expressly agree that any litigation directly or
indirectly arising out of or relating to this Agreement, including an action
brought by COMSAT pursuant to this Section 12, shall be brought in a court of
competent jurisdiction in the State of Maryland.
13. Expenses of Enforcing the Agreement. If the Executive brings an
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action to enforce any of the obligations of COMSAT under this Agreement and
prevails on any material issue, COMSAT shall pay the Executive on demand the
amount necessary to reimburse the Executive in full for all reasonable expenses
(including reasonable attorneys' fees and legal expenses) incurred by the
Executive in enforcing the obligations of COMSAT under this Agreement.
14. Severability. Should any provision of this Agreement be determined
------------
to be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the
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balance of such provision or any other provision of this Agreement, and any such
unenforceability or prohibition in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. Assignment. The Executive's rights and obligations under this
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Agreement shall not be assignable by the Executive. COMSAT's rights and
obligations under this Agreement shall not be assignable by COMSAT except as
incident to the transfer, by merger or otherwise, of all or substantially all of
the business of COMSAT. In the event of any such assignment by COMSAT, all
rights of COMSAT hereunder shall inure to the benefit of the assignee, provided
that all references herein to COMSAT shall be deemed to refer with equal force
and effect to any corporate or other successor of COMSAT.
16. Notices. All notices and other communications which are required or
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may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice
shall be sent to:
If to the Executive, addressed to:
Xxxxx X. Flower
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a copy (not constituting notice) to:
Xxxxxx X. Xxxxxxxxx, Esquire
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
If to COMSAT, addressed to:
COMSAT Corporation
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
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With a copy (not constituting notice) to:
COMSAT Corporation
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telecopier No.: (000) 000-0000
17. Miscellaneous. This Agreement constitutes the entire agreement, and
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supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The validity, interpretation,
performance and enforcement of the Agreement shall be governed by the laws of
the State of Maryland without giving effect to conflicts of laws principles
thereof. The headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
The waiver by any party of a breach of any term or condition of this Agreement
by the other party shall not operate as nor be construed as a waiver of any
subsequent breach thereof or a waiver of a breach of any other term or condition
of this Agreement. This Agreement may be signed in two or more counterparts,
each of which shall constitute an original but all of which together shall form
only a single instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
July 18, 1997.
/s/ A. E. Flower
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Xxxxx Flower, Executive
COMSAT Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President and Chief Executive Officer
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