1
EMPLOYMENT PROTECTION AGREEMENT
THIS AGREEMENT between Loral SpaceCom Corporation, a Delaware
corporation (the "Company"), and ______________________ (the "Executive"), dated
as of this __________ day of __________ 2000.
W I T N E S S E T H :
WHEREAS, the Company and the Executive have agreed to enter
into an agreement providing the Company and the Executive with certain rights
upon the occurrence of a Change of Control (as defined below) to assure the
Company of continuity of management;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is hereby agreed by and between the Company and
the Executive as follows:
1. Effective Date; Term. This Agreement shall be effective as
of the date hereof and shall remain in effect so long as the Executive is
employed by the Company.
2. Change of Control. The term "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or
more of either (i) the then outstanding common stock (the "Outstanding Loral
Bermuda Stock") of Loral Space & Communications Ltd., a Bermuda company ("Loral
Bermuda"), or (ii) the combined voting power of the then outstanding voting
securities of Loral Bermuda entitled to vote generally in the election of
directors (the "Outstanding Loral Bermuda Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change of Control: (1) any acquisition by Loral Bermuda,
(2) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Loral Bermuda or (3) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i) and (iii) of subsection (c) of
this Section 2; or
(b) Individuals who, as of the date hereof, constitute the
Board of Directors of Loral Bermuda (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors of Loral Bermuda;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the shareholders of
Loral Bermuda, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors of Loral
Bermuda; or
2
(c) Consummation of a reorganization, consolidation, merger or
sale of substantially all of the assets of Loral Bermuda (a "Corporate Event"),
unless, following such Corporate Event, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Loral Bermuda Stock and Outstanding Loral Bermuda Voting Securities
immediately prior to such Corporate Event beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding common stock
and the combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Event (including, without limitation,
a corporation which as a result of such transaction owns Loral Bermuda or all or
substantially all of the assets of Loral Bermuda either directly or through one
or more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Event, of the Outstanding Loral Bermuda
Stock and Outstanding Loral Bermuda Voting Securities, as the case may be, (ii)
no Person, other than an employee benefit plan (or related trust) of Loral
Bermuda, beneficially owns, directly or indirectly, 35% or more of,
respectively, the then outstanding common stock of the corporation resulting
from such Corporate Event or the combined voting power of the then outstanding
voting securities of such corporation and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Corporate Event were members of the Incumbent Board at the time of the execution
of the initial agreement, or of the action of the Board of Directors of Loral
Bermuda, providing for or approving such Corporate Event; or
(d) Approval by the shareholders of Loral Bermuda of a
complete liquidation or dissolution of Loral Bermuda.
3. Retention Period. If the Executive is employed on the date
of consummation of a Change in Control (the "Effective Date"), the Company
agrees to continue the Executive in its employ for the period (the "Retention
Period") commencing on the Effective Date and ending on the date of any
termination of the Executive's employment in accordance with Section 6 of this
Agreement.
4. Position and Duties.
(a) No Reduction in Position. During the Retention Period, the
Executive's position (including titles), authority and responsibilities shall be
at least commensurate with the highest of those held or exercised by him at any
time during the 90-day period immediately preceding the Effective Date.
(b) Business Time. During the Retention Period, the Executive
shall devote his full business time during normal business hours to the business
and affairs of the Company and use his best efforts to perform faithfully and
efficiently the responsibilities assigned to him hereunder, to the extent
necessary to discharge such responsibilities, except for
(i) reasonable time spent in serving on corporate, civic or
charitable boards or committees of the nature similar to those on which
the Executive served prior to the Change of Control, or otherwise
approved by the Board of Directors of the Company (the "Board"), in
each case only if and to the extent not substantially interfering with
the performance of such responsibilities, and
2
3
(ii) periods of vacation and sick leave to which he is
entitled.
It is expressly understood and agreed that the Executive's continuing to serve
on any boards and committees on which he is serving or with which he is
otherwise associated immediately preceding the Effective Date shall not be
deemed to interfere with the performance of the Executive's services to the
Company.
5. Compensation.
(a) Base Salary. During the Retention Period, the Executive
shall receive a base salary ("Base Salary") at a monthly rate at least equal to
the monthly salary paid to the Executive by the Company and any of its
affiliated companies immediately prior to the Effective Date. The Base Salary
shall be reviewed at least once each year after the Effective Date, and may be
increased (but not decreased) at any time and from time to time by action of the
Board or any committee thereof or any individual having authority to take such
action in accordance with the Company's regular practices. Neither payment of
the Base Salary nor payment of any increased Base Salary after the Effective
Date shall serve to limit or reduce any other obligation of the Company
hereunder. For purposes of the remaining provisions of this Agreement, the term
"Base Salary" shall mean Base Salary as defined in this Section 5(a) or, if
increased after the Effective Date, the Base Salary as so increased.
(b) Annual Bonus. In addition to the Base Salary, the
Executive shall be awarded for each fiscal year of the Company ending during the
Retention Period an annual bonus (either pursuant to a bonus plan or program of
the Company or otherwise) in cash at least equal to the greater of the two most
recent fiscal year bonuses (annualized, if awarded in respect of a partial year)
awarded to the Executive prior to the Effective Date under the bonus program of
the Company applicable to such Executive ("Annual Bonus"). If a fiscal year of
the Company begins, but does not end, during the Retention Period, the Executive
shall receive an amount with respect to such fiscal year at least equal to the
amount of the Annual Bonus multiplied by a fraction, the numerator of which is
the number of days in such fiscal year occurring during the Retention Period and
the denominator of which is 365. Each amount payable in respect of the
Executive's Annual Bonus shall be paid not later than 90 days after the fiscal
year next following the fiscal year for which the Annual Bonus (or pro-rated
portion) is earned or awarded, unless electively deferred by the Executive
pursuant to any deferral programs or arrangements that the Company may make
available to the Executive, in which event such deferred amount shall be payable
in accordance with the terms of such deferral program or arrangement. Neither
the Annual Bonus nor any bonus amount paid in excess thereof after the Effective
Date shall serve to limit or reduce any other obligation of the Company
hereunder.
(c) Incentive and Savings Plans and Retirement Programs. In
addition to the Base Salary and Annual Bonus payable as hereinabove provided,
during the Retention Period, the Executive shall be entitled to participate in
all incentive and savings plans and programs, including stock option plans and
other equity based compensation plans, and in all retirement plans, on a basis
providing him with the opportunity to receive compensation (without duplication
of the amount payable as an Annual Bonus) and benefits equal to those provided
by the Company to the Executive on an annualized basis under such plans and
programs as in effect at any time during the 90-day period immediately preceding
the Effective Date. With respect to
3
4
participation in stock option plans, the Executive shall receive annual grants
during the Retention Period at least equal to the average annual grants made to
the Executive during the two fiscal years immediately preceding the Effective
Date.
(d) Benefit Plans. During the Retention Period, the Executive
and his family shall be entitled to participate in or be covered under all
welfare benefit plans and programs of the Company and its affiliated companies,
including all medical, dental, disability, group life, accidental death and
travel accident insurance plans and programs, as in effect at any time during
the 90-day period immediately preceding the Effective Date.
(e) Expenses. During the Retention Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in accordance with the policies and procedures of the Company
as in effect at any time during the 90-day period immediately preceding the
Effective Date.
(f) Vacation and Fringe Benefits. During the Retention Period,
the Executive shall be entitled to paid vacation and fringe benefits in
accordance with the policies of the Company as in effect at any time during the
90-day period immediately preceding the Effective Date.
(g) Office and Support Staff. During the Retention Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance, at
least equal to the most favorable of the foregoing provided to the Executive at
any time during the 90-day period immediately preceding the Effective Date.
6. Termination.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon his death. The Company may terminate Executive's
employment during the Retention Period, after having established the Executive's
Disability, by giving the Executive written notice of its intention to terminate
his employment, and his employment with the Company shall terminate effective on
the 90th day after receipt of such notice if, within 90 days after such receipt,
the Executive shall fail to return to full-time performance of his duties. For
purposes of this Agreement, "Disability" means disability which, after the
expiration of more than 26 weeks after its commencement, is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or his legal representatives (such agreement to
acceptability not to be withheld unreasonably).
(b) Voluntary Termination. Notwithstanding anything in this
Agreement to the contrary, the Executive may, upon not less than 30 days'
written notice to the Company, voluntarily terminate employment during the
Retention Period for any reason, provided that any termination by the Executive
pursuant to Section 6(d) of this Agreement on account of Good Reason (as defined
therein) shall not be treated as a voluntary termination under this Section
6(b).
(c) Cause. The Company may terminate the Executive's
employment during the Retention Period for Cause. For purposes of this
Agreement, "Cause" means (i) gross misconduct on the Executive's part which is
demonstrably willful and deliberate and which
4
5
results in material damage to the Company's business or reputation or (ii)
repeated material violations by the Executive of his obligations under Section 4
of this Agreement which violations are demonstrably willful and deliberate.
(d) Good Reason. The Executive may terminate his employment
during the Retention Period for Good Reason. For purposes of this Agreement,
"Good Reason" means
(i) a good faith determination by the Executive that, without
his prior written consent, the Company or any of its officers has taken
or failed to take any action (including, without limitation, (A)
exclusion of the Executive from consideration of material matters
within his area of responsibility, other than an insubstantial or
inadvertent exclusion remedied by the Company promptly after receipt of
notice thereof from the Executive, (B) statements or actions which
undermine the Executive's authority with respect to persons under his
supervision or reduce his standing with his peers, other than an
insubstantial or inadvertent statement or action which is remedied by
the Company promptly after receipt of the notice thereof from the
Executive, (C) a pattern of discrimination against or harassment of the
Executive or persons under his supervision and (D) the subjection of
the Executive to procedures not generally applicable to other similarly
situated executives) which changes the Executive's position (including
titles), authority or responsibilities under Section 4 of this
Agreement or reduces the Executive's ability to carry out his duties
and responsibilities under Section 4 of this Agreement;
(ii) any failure by the Company to comply with any of the
provisions of Section 5 of this Agreement, other than an insubstantial
or inadvertent failure remedied by the Company promptly after receipt
of notice thereof from the Executive;
(iii) the Company's requiring the Executive to be employed at
any location more than 35 miles further from his principal residence
than the location at which the Executive was employed immediately
preceding the Effective Date; or
(iv) any failure by the Company to obtain the assumption of
and agreement to perform this Agreement by a successor as contemplated
by Section 14(b) of this Agreement.
(e) Notice of Termination. Any termination by the Company for
Cause or by the Executive for Good Reason during the Retention Period shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 15(c) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice given, in the case of a
termination for Cause, within 10 business days of the Company's having actual
knowledge of all of the events giving rise to such termination, and in the case
of a termination for Good Reason, within 180 days of the Executive's having
actual knowledge of the events giving rise to such termination, and which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (iii) if the termination date is other than the date of receipt
of such notice, specifies the termination date of this Agreement (which date
shall be not more than 15 days after the giving of such notice). The failure by
the Executive to set forth in the Notice of Termination any fact or
5
6
circumstance which contributes to a showing of Good Reason shall not waive any
right of the Executive hereunder or preclude the Executive from asserting such
fact or circumstance in enforcing his rights hereunder.
(f) Date of Termination. For purposes of this Agreement, the
term "Date of Termination" means (i) in the case of a termination for which a
Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein and (ii) in all other
cases, the actual date on which the Executive's employment terminates during the
Retention Period.
7. Obligations of the Company upon Termination.
(a) Death. If the Executive's employment is terminated during
the Retention Period by reason of the Executive's death, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement other than those obligations accrued hereunder at the date
of his death, including, for this purpose (i) the Executive's full Base Salary
through the Date of Termination, (ii) the product of the Annual Bonus and a
fraction, the numerator of which is the number of days in the current fiscal
year of the Company through the Date of Termination, and the denominator of
which is 365 (the "Pro-rated Bonus Obligation"), (iii) any compensation
previously deferred by the Executive (together with any accrued earnings
thereon) and not yet paid by the Company and (iv) any other amounts or benefits
owing to the Executive under the then applicable employee benefit plans or
policies of the Company (such amounts specified in clauses (i), (ii), (iii) and
(iv) are hereinafter referred to as "Accrued Obligations"). Unless otherwise
directed by the Executive (or, in the case of any employee benefit plan
qualified (a "Qualified Plan") under Section 401(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), as may be required by such plan), all such
Accrued Obligations shall be paid to the Executive's legal representatives in a
lump sum in cash within 30 days of the Date of Termination. Anything in this
Agreement to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the most favorable level of
benefits available to surviving families of executives of the Company and its
affiliates under such plans, programs and policies relating to family death
benefits, if any, of the Company and its affiliates in effect at any time during
the 90-day period immediately preceding the Effective Date.
(b) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability, the Executive shall be entitled, after the
Date of Termination until the date when the Retention Period would otherwise
have terminated, to continue to participate in or be covered under the benefit
plans and programs referred to in Section 5(d) of this Agreement or, at the
Company's option, to receive equivalent benefits by alternate means at least
equal to those provided in accordance with Section 5(d) of this Agreement.
Unless otherwise directed by the Executive (or, in the case of any Qualified
Plan, as may be required by such plan), the Executive shall also be paid all
Accrued Obligations in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, the
Executive shall be entitled to receive disability and other benefits at least
equal to the most favorable level of benefits available to disabled employees
and/or their families in accordance with the plans, programs and policies
maintained by the Company or its affiliates relating to disability at any time
during the 90-day period immediately preceding the Effective Date.
6
7
(c) Cause and Voluntary Termination. If, during the Retention
Period, the Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive (other than on account of Good Reason), the Company
shall pay the Executive the Accrued Obligations other than the Pro-rated Bonus
Obligation. Unless otherwise directed by the Executive (or, in the case of any
Qualified Plan, as may be required by such plan), the Executive shall be paid
all such Accrued Obligations in a lump sum in cash within 30 days of the Date of
Termination and the Company shall have no further obligations to the Executive
under this Agreement.
(d) Termination by Company other than for Cause or Disability
and Termination by Executive for Good Reason; Lump Sum Payment. If, on or after
the Effective Date, either (i) the Company terminates the Executive's employment
other than for Cause or Disability, or (ii) the Executive terminates his
employment for Good Reason, the Company shall pay to the Executive in a lump sum
in cash within 15 days after the Date of Termination the aggregate of the
following amounts:
(A) if not theretofore paid, the Executive's Base Salary
through the Date of Termination at the rate specified in Section 5(a)
of this Agreement;
(B) a cash amount equal to three (3) times the sum of
(1) the Executive's annual Base Salary at the rate
specified in Section 5(a) of this Agreement;
(2) the Annual Bonus; and
(3) the present value, calculated using the annual
federal short-term rate as determined under Section 1274(d) of
the Code, of (without duplication) (x) the annual cost to the
Company (based on the premium rates or other costs to it) of
obtaining coverage equivalent to the coverage under the plans
and programs described in Section 5(d) of this Agreement, and
(y) the annualized value of the fringe benefits described
under Section 5(f) of this Agreement;
provided, however, that with respect to the life and medical insurance
coverage referred to in Section 5(d) of this Agreement, at the
Executive's election made prior to the Date of Termination, the Company
shall use its best efforts to secure conversion coverage and shall pay
the cost of such coverage in lieu of paying the lump sum amount
attributable to such life or medical insurance coverage; and
(C) a cash amount equal to any amounts (other than amounts
payable to the Executive under any Qualified Plans) described in
Sections 7(a)(iii) and (iv) of this Agreement.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise prejudice such rights as the Executive
may have under any stock option or other plans or agreements with the Company or
7
8
any of its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of the
Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan or program.
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 9) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code (or any successor provision) or any interest
or penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes with respect to the
Gross-Up Payment (including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and any interest
and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Deloitte & Touche or such other nationally recognized accounting firm then
auditing the accounts of the Company (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, or is unwilling or unable to
perform its obligations pursuant to this Section 9, the Executive shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, determined pursuant to
this Section 9, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the potential uncertainty in the application of Section 4999 of the Code (or
any successor provision) at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 9(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
8
9
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than 20 business days after the Executive is
informed in writing of such claim and shall apprise the Company of the 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 he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company 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 the
Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company 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 limiting the foregoing provisions of this
Section 9(c), the Company 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, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or 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 the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company'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
9
10
by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 9(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
10. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others whether by reason of the
subsequent employment of the Executive or otherwise. In no event shall the
Executive be obligated to seek other employment by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement,
and no amount payable under this Agreement shall be reduced on account of any
compensation received by the Executive from other employment. In the event that
the Executive shall in good faith give a Notice of Termination for Good Reason
and it shall thereafter be determined by mutual consent of the Executive and the
Company or by a tribunal having jurisdiction over the matter that Good Reason
did not exist, the employment of the Executive shall, unless the Company and the
Executive shall otherwise mutually agree, be deemed to have terminated, at the
date of giving such purported Notice of Termination, by mutual consent of the
Company and the Executive and, except as provided in the last preceding
sentence, the Executive shall be entitled to receive only those payments and
benefits which he would have been entitled to receive at such date otherwise
than under this Agreement.
11. Disputes; Legal Fees and Expenses.
(a) Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively and finally by expedited
arbitration, conducted before a single arbitrator in New York, New York, in
accordance with the rules governing employment disputes then in effect of the
American Arbitration Association. The arbitrator shall be approved by both the
Company and the Executive. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
(b) In the event that any claim by the Executive under this
Agreement is disputed, the Company shall pay all reasonable legal fees and
expenses incurred by the Executive in pursuing or defending such claim, provided
that the Executive is successful as to at least part of the disputed claim by
reason of arbitration, settlement or otherwise.
10
11
12. Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, (i) obtained by the Executive during
his employment by the Company or any of its affiliated companies and (ii) not
otherwise public knowledge (other than by reason of an unauthorized act by the
Executive). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
unless compelled pursuant to an order of a court or other body having
jurisdiction over such matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In no event shall an asserted violation of the provisions of this Section 12
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
13. Employment Contract or Severance Benefits. Notwithstanding
anything else in this Agreement to the contrary, any amount payment to the
Executive hereunder on account of his termination of employment shall be reduced
on a dollar for dollar basis by each dollar actually paid to the Executive with
respect to such termination under the terms of any employment contract between
the Executive and the Company or under any severance program or policy
applicable to the Executive. Nothing in this Agreement shall be construed to
require duplication of any compensation, benefits or other entitlements provided
to the Executive by the Company under the terms of any employment contract which
may address similar matters.
14. Successors.
(a) This Agreement is personal to the Executive and, without
the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. The Company shall require any
successor to all or substantially all of the business and/or assets of the
Company, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form and substance
satisfactory to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent as the Company would be
required to perform if no such succession had taken place.
15. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, applied without
reference to principles of conflict of laws.
(b) Amendments. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
11
12
(c) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the address listed below
If to the Company: Loral SpaceCom Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(d) Tax Withholding. The Company may withhold from any amounts
payable under this Agreement such Federal, State or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) Captions. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and the Company has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
LORAL SPACECOM CORPORATION
By: __________________________________
Name:
Title:
EXECUTIVE:
______________________________________
Address:
______________________________________
______________________________________
12
