Exhibit 10.83
[PANAMSAT LETTERHEAD]
January 29, 2002
[Executive]
Dear _____:
You are a key executive of PanAmSat who holds two separate Change in Control
("CIC") Severance Agreements. One of the Agreements is triggered by a CIC of
Xxxxxx Electronics (the "Xxxxxx Agreement") and the other is triggered by a CIC
of PanAmSat (the "PanAmSat Agreement"). Both Agreements state that the Agreement
"supersedes all previous understandings, commitments or representations
concerning the subject matter hereof."
The following describes how the CIC triggers and the two Agreements will be
administered:
If a Xxxxxx CIC occurs before or without a PanAmSat CIC, the Xxxxxx Agreement
will prevail and the PanAmSat Agreement will be considered null and void.
If the Xxxxxx/EchoStar transaction is cancelled and EchoStar acquires PanAmSat,
or if a PanAmSat CIC occurs without a Xxxxxx CIC, the PanAmSat Agreement will be
triggered and the Xxxxxx Agreement will be considered null and void.
If, for some reason, the conditions of both Agreements are satisfied, then the
January 31, 2001 Agreement signed shall govern and the other Agreement will be
null and void.
If neither CIC occurs, then each Agreement will continue in force until it
terminates, consistent with the "Term" as specified in the Agreement.
Your retention award will be paid as provided in the Retention Agreement.
------------------------------------ ------------------------------------
PanAmSat Xxxxxx Electronics
PANAMSAT CORPORATION
EXECUTIVE CHANGE IN CONTROL SEVERANCE AGREEMENT
This Executive Change in Control Severance Agreement (the "Agreement") is
entered into this 15th day of October, 2001 by and between PanAmSat Corporation,
a Delaware corporation (together with its successors and assigns, the
"Company"), and ________________ (the "Executive").
WHEREAS the Company desires to incentivize the Executive to provide leadership
and support in the event of any "Change in Control" (as defined below) of the
Company; and
WHEREAS, the Company and the Executive desire to enter into this Agreement on
the terms and conditions set forth below. For good and valuable consideration
and the mutual covenants set forth herein, the parties hereto agree as follows:
1. Definitions. The following terms shall have the meaning set forth below
for purposes of this Agreement.
a. "Cause" means the Executive's: (i) conviction of, or plea of nolo
contendere to, a felony; (ii) use or sale of illegal drugs; or (iii)
willful and intentional misconduct, willful neglect or gross
negligence, in the performance of the Executive's duties, which the
Company reasonably believes has caused a demonstrable and serious
injury to the Company, monetary or otherwise; provided, however,
that such acts or events shall constitute Cause only if the
Executive is given written notice that the Company intends to
terminate his employment for Cause, which notice shall specify the
particular acts or failures to act on the basis of which the
decision to so terminate employment was made. In the case of a
termination for Cause as described in clause (iii) above, the
Executive shall be given the opportunity within 30 days of the
receipt of such notice to meet with the Company to defend and cure
such acts or failures to act, prior to termination. The Company may
suspend the Executive's title and authority pending such meeting,
and such suspension shall not constitute "Good Reason" (as defined
below).
b. "Change in Control" means (i) a change in ownership of the common
stock of the Company (note: "common stock of the Company" refers to
the common stock of Xxxxxx Electronics Corporation, not General
Motors Corporation, Class H common stock or GMH), whether by sale,
merger, consolidation or reorganization pursuant to which General
Motors Corporation (or any entity that succeeds to the auto business
of General Motors Corporation, e.g., as a result of a spin-off or
otherwise) does not own directly or indirectly more than 50% of the
outstanding common stock, in value, of the Company or any successor
surviving entity; provided, however, that if following any such
change the Company or its successor is subject to the periodic
reporting rules of the Securities Exchange Act of 1934 (the
"Exchange Act"), and no "person" or "group" is the "beneficial
owner", as each such term is defined for purposes of the Exchange
Act, of stock representing more than 5% of the outstanding
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voting power of all classes of stock of the Company, such change in
ownership shall not constitute a Change in Control for purposes
hereof;
(ii) the sale or distribution of all or substantially all of the
assets of the Company to an unrelated entity or entities or to an
entity in which General Motors Corporation does not directly or
indirectly own more than 50% in value of the equity of such entity;
and
(iii) a sale or other disposition, or the last sale or other
disposition to occur in a series of sales and/or other dispositions
within any 5 year period ("Serial Sales") directly or indirectly by
the Company of assets constituting one or more discrete business
units (including any sale through a public offering of shares of
voting stock of a subsidiary) which accounts for (or in the case of
stock sold through a public offering, which represents indirect
ownership on a proportionate basis of such assets accounting for)
more than 40% of the annual consolidated revenues of the Company and
its subsidiaries as of the end of the previous fiscal year (in the
case of Serial Sales, as of the end of the fiscal year immediately
preceding the year in which the last sale or other disposition
occurs) as determined in accordance with generally accepted
accounting principles; provided, however, that, if the Executive is
not employed substantially exclusively in connection with one or
more of the discrete businesses involved in such sale(s) or other
disposition(s), no sale or disposition of assets or stock shall be
taken into account to the extent that the proceeds of such sale or
disposition (whether in cash or in-kind) are reinvested or are, in
the case of proceeds received in-kind, used in the ongoing conduct
by the Company or one or more of its subsidiaries of the business of
the Company and/or such subsidiary or subsidiaries; and provided
further that such a reinvestment shall not be deemed to have
occurred unless made within 18 months of such sale or disposition;
and provided further that the term reinvestment shall exclude, inter
alia, the use of proceeds (x) to repay debt incurred in connection
with the operation of the business in which the assets sold or
disposed of were used or (y) to pay dividends.
(iv) in addition to the events described in subsection (iii), it
shall be a "Change in Control" for purposes hereof for any Executive
who is employed substantially exclusively in the business of a
Designated Business Unit, as hereinafter defined, if an event
described in subsection (iii) shall occur, except that for purposes
of this subsection (iv), references in subsection (iii) to the
"Company" shall be deemed to refer to the Designated Business Unit
in the business of which the Executive is principally employed. A
Change in Control described in this subsection (iv) shall apply only
to an Executive employed substantially exclusively by the affected
Designated Business Unit. For purposes of this subsection (c)(iv),
"Designated Business Unit" shall mean PanAmSat, DIRECTV, Xxxxxx
Network Systems, Galaxy Latin America and any other business unit
identified as a Designated Business Unit by the Company from time to
time.
(v) any provision of the foregoing to the contrary notwithstanding,
the reorganization of the Company involving the disposition of its
satellite
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systems businesses shall not constitute a Change in Control, for
purposes hereof.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Good Reason" means any of the following events occurring within
three (3) years following a Change in Control:
(i) without the Executive's written consent, (A) any reduction in
the amount of the Executive's annual base salary, (B) any
reduction in the Executive's aggregate incentive compensation
opportunities, (C) any reduction in the aggregate value of the
Executive's benefits (other than incentive compensation
opportunities in clause (B) above) as in effect from time to
time (unless such reduction is pursuant to a general change in
benefits applicable to all similarly situated employees of the
Company and its affiliates), (D) any failure of the Company to
pay any compensation to Executive when due, or (E) any
material and willful breach by the Company of a written
employment agreement with the Executive;
(ii) a significant reduction or modification, without the
Executive's written consent, in the Executive's duties,
responsibilities (including, without limitation, reporting
responsibilities), or authority from that immediately prior to
a Change in Control; or
(iii) without the Executive's written consent, a transfer of the
Executive's principal place of employment to a location more
than fifty (50) miles from the Executive's principal place of
employment immediately prior to the Change in Control;
provided that the distance between the new principal place of
employment and the Executive's primary residence is greater
than ten (10) miles more than the distance between the
principal place of employment prior to such transfer and the
Executive's primary residence immediately prior to the Change
in Control; provided further that this clause (iii) shall not
apply in the event that (A) Executive's principal place of
employment immediately prior to the Change in Control was
located in Fairfield County, Connecticut, and (B) Executive's
new principal place of employment is located in the borough of
Manhattan in the City and State of New York.
Notwithstanding the above, the occurrence of any of the events
described in (i), (ii) or (iii) above will not constitute Good
Reason unless the Executive gives the Company written notice,
within 30 calendar days after the Executive knew of the
occurrence of any of the events described in (i), (ii) or
(iii) above, that such event constitutes Good Reason, and the
Company thereafter fails to cure the event within (30) days
after receipt of such notice.
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e. "Involuntary Termination" means (i) termination of the Executive's
employment by the Company without Cause or (ii) termination of the
Executive's employment by the Executive for Good Reason.
f. "Term" means the period commencing on the date of this Agreement and
continuing for 3 years.
2. Accrued Compensation and Severance Benefits.
2.1 Involuntary Termination of Employment. In the event that within three (3)
years following a Change in Control, an Involuntary Termination of
Executive's employment with the Company occurs, the Executive shall be
entitled to (i) payment of accrued compensation pursuant to Section 2.2,
(ii) payment of severance compensation pursuant to Section 2.3, and (iii)
receipt of other benefits pursuant to Section 2.4.
2.2 Accrued Compensation. The accrued compensation to which the Executive is
entitled pursuant to Section 2.1 shall be as follows:
a. an amount equal to the Executive's unpaid annual base salary earned
as of the date of Involuntary Termination;
b. an amount equal to the higher of (x) the Executive's unpaid targeted
annual bonus established for the fiscal period in which the
Involuntary Termination occurs or (y) the actual bonus paid or
payable to the Executive in respect of the most recent full fiscal
year of the Company, in each case multiplied by a fraction, the
numerator of which is the number of days elapsed in the current
fiscal period to the date of Involuntary Termination, and the
denominator of which is 365; and
c. an amount equal to the Executive's accrued balance under the
Company's "Paid Time Off" program (or successor or replacement
program), calculated based on the Executive's annual base salary;
provided, that in the event of an Involuntary Termination for Good
Reason under Section 1(d)(i)(A) above, the annual base salary amount
used for the foregoing calculation shall be that annual base salary
amount in effect immediately prior to any reduction thereof.
2.3 Amount of Severance Compensation.
a. The amount of severance compensation (the "Severance Compensation")
to which the Executive is entitled pursuant to Section 2.1 shall be
equal to two ("2") times the sum of (i) the Executive's annual base
salary for the year in which the Involuntary Termination occurs plus
(ii) the higher of (x) the Executive's targeted annual bonus
established for the fiscal period in which the Involuntary
Termination occurs or (y) the actual bonus paid or payable to the
Executive in respect of the most recent full fiscal year of the
Company; provided, that in the event of an Involuntary Termination
for Good Reason under Section 1(d)(i)(A) and/or (B) above, the
annual base salary and targeted
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bonus amounts used for the foregoing calculation shall be those
annual base salary and targeted bonus amounts in effect immediately
prior to any reduction thereof. Payment of the Severance
Compensation shall be conditioned upon receipt of a written release
by the Executive of any known or unknown claims against the Company
or its subsidiaries, except those arising under this Agreement or
any other written plan or agreement, which shall be specifically
noted in such release. Such release shall be substantially in the
form attached hereto as Annex A. Payment of the Severance
Compensation shall be made within ten (10) days following the
effective date of such written release. Such Severance Compensation
shall be in lieu of any other payments or benefits in the nature of
severance pay or benefits which the Executive has received or will
receive from the Company or any of its affiliates including, without
limitation, payments under another severance plan or any severance
agreement between the Company and the Executive. Any other
arrangement, plan or program providing severance benefits shall be
deemed to be amended to eliminate any obligation for benefits to be
provided thereunder. If the Executive is entitled to any notice or
payment in lieu of any notice of termination of employment required
by Federal, state or local law, including but not limited to the
Worker Adjustment and Retraining Notification Act, the Severance
Compensation to which the Executive would otherwise be entitled
under this Agreement shall be reduced by the amount of any such
payment, in lieu of notice.
b. The Executive shall not be entitled to Severance Compensation
hereunder for more than one position with the Company and its
affiliates, therefore, there shall be no duplication of severance
benefits in this regard.
c. The Executive's Severance Compensation under this Agreement shall
not be reduced by the amount of any salary or bonus paid or payable
by any employer of the Executive for any period after termination of
Executive's employment with the Company. The Executive shall not be
obligated to secure new employment, but shall be obligated to report
promptly to the Company any actual employment obtained during the
period for which employee benefits continue pursuant to Section 2.4.
2.4 Other Benefits.
a. Any unvested stock options, restricted stock units and other awards
("Stock Awards") granted prior to the Change in Control under the
Company's Long-Term Stock Incentive Plan (or successor or
replacement plan) (the "Plan") held by the Executive shall
immediately become vested and exercisable, and any restrictions
thereon shall lapse, upon the Change in Control, and, to the extent
such Stock Awards are assumed, substituted or continued, following
any Involuntary Termination such Stock Awards shall be exercisable
under the terms and conditions of the Plan and any award agreements
thereunder for a period equal to the lesser of (i) five years from
the date of the Executive's Involuntary Termination or (ii) the term
of such Stock Award.
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b. The Executive and the Executive's dependents shall be entitled to
participate on the same basis as active employees and their
dependents, respectively, in the Company's group health, dental and
life insurance plans (including premium payments and credit dollars
paid by the Company), or the Company shall make available comparable
benefits (but not any other welfare benefit plans or any retirement
plans, except as described below) for a period of two ("2") years
following a termination of employment described in Section 2.1 and
provided that the coverage provided under this Agreement is subject
to any limitations under the terms of any applicable contract with
an insurance carrier or third party administrator, except such
coverage shall expire if the Executive becomes eligible for
comparable coverage under a plan of another employer. Nothing herein
shall be deemed to restrict the right of the Company from amending
or terminating any such plan in a manner generally applicable to
similarly situated active executives employed by the Company and its
affiliates, in which event the Executive shall be entitled to
participate on the same basis (including payment of applicable
contributions) as similarly situated active executives employed by
the Company and its affiliates.
c. The Executive shall be entitled to reimbursement for actual payments
made for professional outplacement services, not to exceed $25,000.
d. The Executive shall be entitled to reimbursement for all outstanding
unreimbursed business expenses properly incurred by Executive prior
to the Involuntary Termination pursuant to the Company's policy
therefor in effect at the time such expenses were incurred.
3. Excise Taxes.
a. Anything in this Agreement to the contrary notwithstanding and
except as set forth below, if it is determined that any payment,
benefit or distribution by the Company to or for the benefit of
Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or any other agreement, plan
or program of the Company, but determined without regard to any
additional payments required under this Section 3) (each of such
payments, benefits and distributions, a "Payment") is subject to the
excise tax imposed by Section 4999 of the Code or any similar
federal, state or local law, or any interest or penalties are
incurred by 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 Company
shall pay the Executive an additional cash payment (a "Gross-Up
Payment") in an amount such that after payment by Executive of all
taxes (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, Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of this paragraph
"a", if it is determined that Executive is entitled to a Gross-Up
Payment, but that Executive, after taking into account the Payments
and the Gross-Up Payment, would not receive a net after-tax benefit
of at least
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$50,000 (taking into account both income taxes and any Excise Tax)
as compared to the net after-tax proceeds to Executive resulting
from an elimination of the Gross-Up Payment and a reduction of the
payments, in the aggregate, to an amount (the "Reduced Amount") such
that the receipt of Payments would not give rise to any Excise Tax
then no Gross-Up Payment shall be made to Executive and the
Payments, in the aggregate, shall be reduced to the Reduced Amount.
b. Subject to the provisions of paragraph "a", all determinations
required to be made under this Section 3, 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 a nationally recognized certified
public accounting firm selected by the Company (the "Accounting
Firm") which shall be retained to provide detailed supporting
calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from Executive that there has
been a Payment, or such earlier time as is required by the Company.
All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 3, shall be paid by the Company to Executive within five (5)
business 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 uncertainty in the
application of Section 4999 of the Code 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. If the Company exhausts
its remedies pursuant to paragraph "c" below and 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, together with interest
thereon at the Interest Rate, shall be promptly paid by the Company
to or for the benefit of Executive.
c. 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 twenty (20)
business days after 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 or appealed.
Executive shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which it 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 Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive shall:
(a) give the Company any information reasonably required by the
Company relating to such claim;
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(b) take such action in connection with contesting such claims 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;
(c) cooperate with the Company in good faith in order to
effectively contest such claim; and
(d) 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 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 paragraph "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 Executive to
pay the tax claimed and sue for a refund or to contest the claim in
any permissible manner, and 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 Executive to pay such claim and sue for a refund,
the Company shall advance the amount of such payment to Executive,
on an interest-free basis, and shall indemnify and hold 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 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 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. If, after the receipt by Executive of an amount advanced by the
Company pursuant to paragraph "c" above, Executive becomes entitled
to receive any refund with respect to such claim, Executive shall
(subject to the Company's complying with the requirements of
paragraph "c" above) 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 Executive of any
amount advanced by the Company pursuant to paragraph "c" above, a
determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify
Executive
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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. In the event that
any taxing authority determines that any additional Excise Tax is
owed, then the Company shall pay an additional Gross Up Amount to
the Executive in a manner consistent with this Section 3 with
respect to such additional Excise Tax and any assessed interest,
fines and penalties.
4. Claims & Arbitration.
4.1 Arbitration of Claims. After exhausting administrative remedies provided
in applicable plans, if any, Executive shall settle by arbitration any
dispute or controversy arising in connection with this Agreement, whether
or not such dispute involves a plan subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Such arbitration
(including, without limitation, the selection of arbitrators) shall be
conducted in accordance with the employment rules of the American
Arbitration Association before a panel of three arbitrators sitting in New
York, New York. The Company and Executive agree that the arbitrators shall
be empowered to enter an equitable decree mandating enforcement of the
terms of this Agreement. The award of the arbitrators shall be final and
non-appealable, and judgment may be entered on the award of the
arbitrators in any court having proper jurisdiction. All expenses of such
arbitration shall be borne by the Company in accordance with Section 4.2
hereof.
4.2 Payment of Legal Fees and Costs. The Company agrees to pay as incurred, to
the full extent permitted by law, all legal fees and related expenses
which Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, Executive or others of
the validity or enforceability of, or liability under, any provision of
this Agreement of any guarantee of performance thereof (including as a
result of any contest by Executive about the amount of payment pursuant to
this Agreement), plus in each case interest on any delayed payment at the
applicable federal rate provided for in Section 7872 (f) (2) (A) of the
Code.
4.3 Agent for Service of Legal Process. Service of legal process with respect
to a claim under this Agreement shall be made upon the General Counsel of
the Company.
5. Tax Withholding. All payments to the Executive under this Agreement will
be subject to the withholding of all applicable federal, state and local
employment and income taxes.
6. Employment Rights. This Agreement shall not confer upon the Executive any
right to the continuation of employment with the Company.
7. a. Confidential Information, Non-Solicitation and Non-Compete.
Notwithstanding anything to the contrary in this Agreement, payment
shall be subject to the satisfaction by the Executive of the
conditions precedent that the Executive: (i) refrain from engaging
in any activity which, in the opinion of the Company, is competitive
with any activity of GM, Xxxxxx or any of their
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respective subsidiaries, which shall be defined to include, but is
not limited to, accepting employment with a competitor or otherwise
providing services outside of GM, Xxxxxx or any of their respective
subsidiaries, or establishing a competing business for a period of
two years following termination without the Company's prior written
consent where it is reasonably determined by the Company, after
considering the nature and extent of the employment/services/
business, and the geographical region and the duration of time from
the Executive's separation from employment, that the Executive is
likely to disclose or utilize confidential or proprietary
information (including trade secrets) in the employment, business or
when providing the services, (ii) refrain from otherwise acting,
either prior to or after termination of employment, in any manner
which is in any way contrary to the best interests of GM, Xxxxxx,
or any of their respective subsidiaries, (iii) maintain the
confidentiality of all proprietary, sensitive or confidential
Company information obtained while the Company employed you, and
(iv) not solicit or hire or participate in an employer's hire of the
Company's employees for employment outside of the Company for a
period of two years following termination, and (v) assign to the
Company all rights to any invention Executive has developed or will
develop relating at the time of conception or reduction to practice
to GM, Xxxxxx, or any of their respective subsidiaries' business, or
resulting from work Executive performed, and (vi) furnish to the
Company such information with respect to the satisfaction of the
foregoing conditions precedent.
b. Executive Cooperation. For a period of two years following
termination, the Executive agrees to assist the Company without
further compensation with respect to any business matters that may
arise that involved the Executive during the course of employment
with the Company. The Executive shall be entitled to reimbursement
of reasonable expenses.
c. General Release and Waiver. In exchange for the benefits provided
under this Agreement, the Executive will sign a General Release and
Waiver of Claims upon Separation. No payments under this Agreement
will begin until the effective date of the General Release and
Waiver of Claims.
d. Confidentiality. The Executive agrees to hold his or her
participation in the Agreement confidential. The Executive may
disclose the Agreement to immediate family, and personal legal,
financial and tax counsel. The Company may disclose the Agreement as
required by the needs of the business.
8. PAS Omits "Unsecured General Creditor". Executives and their
beneficiaries, heirs, successors and assigns shall have no legal or
equitable rights, interests or claims in any property or assets of the
Company. For purposes of the payment of benefits under this Agreement, any
and all of the Company's assets shall be, and remain, the general,
unpledged unrestricted assets of the Company. The Company's obligation
under the Agreement shall be merely that of an unfunded and unsecured
promise to pay money in the future.
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9. Company Liability. The Company's liability for the payment of benefits
shall be defined only by the Agreement. The Company shall have no
obligation to an Executive under the Agreement except as expressly
provided in the Agreement.
10. Nonassignability. Neither an Executive nor any other person shall have any
right to commute, sell, assign, transfer, pledge, anticipate, mortgage or
otherwise encumber, transfer, hypothecate, alienate or convey in advance
of actual receipt, the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are expressly declared to be,
unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by an Executive or any other person, be transferable by
operation of law in the event of an Executive's or any other person's
bankruptcy or insolvency or on dissolution of the Executive's marriage.
11. Severability. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect.
12. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Company and any successors and assigns of the Company.
The Company will require any successor to or assignee of all or
substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform if no
succession or assignment had taken place.
13. Notices. Any notice required under this Agreement shall be in writing and
shall be delivered by certified mail return receipt required to each of
the parties as follows:
To the Executive:
To the Company: PanAmSat Corporation
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: General Counsel
or to such other address as either party shall have furnished to the other
in writing in accordance herewith.
14. Governing Law. The provisions of this Agreement shall be construed in
accordance of the laws of the state of New York (without regard to
principles of conflict of laws), to the extent not preempted by ERISA.
15. Miscellaneous. This Agreement may not be amended or modified in any way,
and none of its provisions may be waived, except by a writing signed by an
authorized officer of the party against whom the amendment, modification
or waiver is sought to
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been enforced. This Agreement constitutes the entire agreement between the
parties, and supersedes all previous understandings, commitments or
representations concerning the subject matter hereof. This Agreement may
be executed in several counterparts, each of which shall be deemed an
original, and all such counterparts together shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement
as of the date and year first above written.
"Executive"
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"Company"
PANAMSAT CORPORATION
By:
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Name:
--------------------------------
Title:
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XXXXXX ELECTRONICS CORPORATION
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12
ANNEX A
GENERAL RELEASE OF CLAIMS
In consideration of the payments made by the Company to you,
pursuant to Section 2.3 of the Executive Change in Control Severance Agreement
(the "Agreement") between you and PanAmSat Corporation (the "Company"), dated as
of October 15, 2001, you agree to enter into this release (the "Release")
releasing the Company from any and all claims which you may have against it.
1. General. For purposes of this Release, the "Released Parties"
means, individually and collectively, the Company, its present, former and
future shareholders, partners, limited partners, affiliates, parents,
subsidiaries, successors, directors, officers, employees, agents, attorneys,
successors and assigns.
(a) General Xxxxxx and Release. In exchange for the consideration
set forth herein, the receipt and adequacy of which are herein acknowledged, and
intending to be legally bound hereby, you do hereby release and forever
discharge the Released Parties from any and all claims, actions, causes of
action, suits, costs, controversies, judgments, decrees, verdicts, damages,
liabilities, attorneys' fees, covenants, contracts, and agreements that you may
have against the Released Parties based on (i) any event occurring during the
term of your employment with the Company arising out of your employment
relationship with or service as an employee or officer of the Company or the
termination of such relationship or service or (ii) any event, condition,
circumstance or obligation that occurred, existed or arose on or prior to the
date you sign this Agreement, including, but not limited to, any claims arising
under Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973,
the Americans with Disabilities Act of 1990, the Civil Rights Act of 1866, the
Civil Rights Act of 1991, the Employee Retirement Income Security Act of 1974,
the Family Medical Leave Act of 1993, the California Fair Employment and Housing
Act, the California Workers' Compensation Act, the California Xxxxx and Xxxxx
Civil Rights Laws, the California Alcohol and Drug rehabilitation Law,1 or any
other federal or state or local law or any foreign jurisdiction, whether such
claim arises under statute, common law or in equity, and whether or not you are
presently aware of the existence of such claim, damage, action or cause of
action, suit or demand (collectively, including claims, actions and causes of
action set forth in Section 1(b) below, the "Claims"). You also do forever
release, discharge and waive any right you may have to recover in any proceeding
brought by any federal, state or local agency against the Released Parties to
enforce any laws. You agree that the payment received as set forth in Section
2.3 of the Agreement shall be in full satisfaction of any and all claims,
actions or causes of action for payment or other benefits of any kind that you
may have against the Released Parties.
(b) ADEA Release.2 In further recognition of the above, you hereby
release and forever discharge the Released Parties from any and all claims,
actions and causes of action that you may have as of the date you sign this
Release arising under the federal Age Discrimination in Employment Act of 1967,
as amended, and the applicable rules and regulations promulgated thereunder
("ADEA").
------------
1 Titles of similar applicable laws in jurisdiction of Executive's primary
residence to be inserted.
2 Section 1(b) to be omitted if Executive is under the age of 40 years at
the date of Involuntary Termination.
13
(c) No Impact on Obligations Under The Agreement or Company
Indemnification. The releases contained in this Section 1 do not, are not
intended to and shall not be interpreted to serve as a release or waiver by you
with respect to (i) your to rights under the Agreement, and (ii) any
indemnification obligations that the Company may have in connection with your
employment with the Company.
(d) No Pending Litigation. You hereby represent and agree that you
have not filed, and will not file, any action, complaint, charge, grievance or
arbitration against any Released Party.
(e) No Right to Commence any Legal Action. You will not commence or
join any legal action, which term includes, without limitation, any demand for
arbitration proceedings and any complaint to any federal, state or local agency,
court or other tribunal, to assert any Claim released by you under Section 1
against a Released Party. If you commence or join any such legal action against
a Released Party, you will promptly indemnify such Released Party for its
reasonable costs and attorneys' fees incurred in defending such action as well
as any monetary judgment obtained by you against any Released Party in such
action.
(f) To ensure that this Release is fully enforceable in accordance
with its terms, you hereby agree to waive any and all rights of Section 1542 of
the California Civil Code (to the extent applicable) as it exists from time to
time or a successor provision thereto, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
In addition, to ensure that this Release is fully enforceable in accordance with
its terms, you agree to waive any protection that may exist under any comparable
or similar state and under any principle of common law of the United States or
any and all states.
(g) Acknowledgment.3 By signing this Release, you hereby acknowledge
and confirm that you are providing the release and discharge set forth in this
Section 1 in exchange for consideration in addition to anything of value to
which you are already entitled. By signing this Release, you hereby acknowledge
and confirm that (i) you are hereby advised in writing by the Company in
connection with the terms of this Release to consult with an attorney of your
choice prior to signing the Release and to have such attorney explain to you the
terms of the Release, including, without limitation, the terms relating to your
release of Claims arising under ADEA; (ii) you have read the Release carefully
and completely and understand each of the terms thereof; and (iii) you were
given not less than twenty-one (21) days to consider the terms of the Release
and to consult with an attorney of your choosing with respect thereto, and that
for a period of seven (7) days following your signing of this Release, you have
the option to revoke this Release (Effective Date).
-------------
3 Section 1(g) to be omitted if Executive is under the age of 40 years at
the date of Involuntary Termination.
14
2. Confidentiality Agreement. You agree that you will not disclose
or divulge either directly or indirectly, the fact of or terms of this Release
to any organization, form of media, person, individual, or employee or
ex-employee of the Released Parties, except that you may disclose the terms of
this Release to your lawyer, accountant and members of your immediate family
provided that they agree to be bound by the terms of this Section 2. You may
also disclose this Release pursuant to legal process; provided that you provide
the Company with written notice at least 5 business days prior to such
disclosure. You understand that any breach of this Section 2 by you or any of
the individuals to whom you are permitted to disclose it will be considered
material and you will be required to return the payments set forth in Section
2.3 of the Agreement to the Company upon any such breach.
3. Disclaimer. You expressly warrant that in entering into this
Release, you have received the benefit of advice of counsel of your own choosing
and that no promise or representation of any kind or character has been made by
the Released Parties or by anyone acting on their behalf, except as expressly
stated in this Release.
4. Governing Law. This Release will be governed and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
5. Severability of Clauses. If any term or provision of this Release
will be determined to be invalid or unenforceable to any extent or in any
application, then, at the election of Released Parties in their sole discretion,
the remainder of this Release will not be affected thereby and will be valid and
enforceable
6. Successors and Assigns. The rights and obligations under this
Release shall inure to any and all successors and assigns of the Company.
7. Incorporation by Reference. The terms and conditions of the
Agreement are incorporated herein by reference.
Your signature on the line below constitutes your agreement to the
terms and conditions of this Release.
ACCEPTED AND AGREED:
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[NAME]
Dated:
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