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Exhibit 10.85
EXECUTIVE CHANGE OF
CONTROL
AGREEMENT
THIS AGREEMENT dated as of September 20, 2004 is
made by and between Mobile Satellite Ventures LP, a Delaware
limited partnership (the "Company"), and Randy S. Segal (the
"Executive").
WHEREAS, the Company considers it essential and in
its best interests and in the best interests of its equity owners
to foster the continuous employment of certain key management
personnel, including the Executive; and
WHEREAS, the Company recognizes that the possibility
of a Change of Control (as defined in Section 8.5 hereof) exists
and that such possibility, and the uncertainty and questions which
it may raise among management, may result in the departure or
distraction of management personnel to the detriment of the Company
and its equity owners; and
WHEREAS, the Company has determined that appropriate
steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management,
including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the Company and the
Executive hereby agree as follows:
1. Defined Terms
. For purposes of this Agreement, definitions of
certain capitalized terms used in this Agreement are provided in
Section 8 and elsewhere in this Agreement.
2. Term of
Agreement . This Agreement shall become
effective on the date hereof and shall remain in effect
indefinitely thereafter; provided, however, that (a) except as
provided in clause (b) of this Section 2, either the Company or the
Executive may terminate this Agreement by giving the other party at
least one (1) year advance written notice of such termination, and
(b) if a Change in Control shall have occurred during the term of
this Agreement, this Agreement may not be terminated until all
obligations of either party hereto have been performed in full and
the Coverage Period has expired without the occurrence of a
Triggering Event. Notwithstanding the foregoing, this Agreement
shall terminate upon the Executive's attaining age sixty-five (65),
the Executive's Disability or death, except as to obligations of
the Company hereunder arising from a Change in Control and a
Triggering Event that occurred prior to his having reached such age
or prior to the occurrence of his Disability or death.
3. Agreement of the
Company . In order to induce the
Executive to remain in the employ of the Company, the Company
agrees, under the terms and conditions set forth herein, that, upon
the occurrence of both a Change in Control and a Triggering Event
during the term of this Agreement, the Company shall provide to the
Executive the benefits described in Sections 3.1 through 3.3 below
(the "Severance Benefits"), unless prior to the date of any
Triggering Event,
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Exhibit 10.85
the Executive's employment with the Company has been
terminated by the Executive for other than Good Reason or by the
Company for Cause or due to the Executive's Disability or
death.
3.1 Lump-Sum Severance
Payment . In lieu of any further salary
payments to the Executive for periods subsequent to the Date of
Termination, the Company shall pay to the Executive a lump sum
severance payment, in cash, without discount, equal to the sum of
(i) the Executive's Annual Base Salary and (ii) the
Executive’s Average Bonus.
3.2 Vesting of Options . The vesting of
all options to purchase securities of the Company granted to the
Executive pursuant to the Company's 2001 Unit Incentive Plan, as
adopted by the Company on December 17, 2001, and amended on January
24, 2003, or any other Company plan that are then held by the
Executive shall be accelerated to the Date of Termination and shall
continue to be exercisable for a two-year period after such
acceleration; any provision contained in the agreement(s) under
which such options were granted that is inconsistent with such
acceleration is hereby modified to the extent necessary to provide
for such acceleration; such acceleration shall not apply to any
option that by its terms would vest prior to the date provided for
in this Section 3.2.
3.3 Continued Benefits . For a twelve
(12) month period (or, if less, the number of months from the Date
of Termination until the date the Executive will reach age
sixty-five (65)) after the Date of Termination (the "Benefits
Period"), the Company shall provide the Executive with group term
life insurance, health insurance, accident and long-term disability
insurance benefits (collectively, "Welfare Benefits") substantially
similar in all respects to those that the Executive was receiving
immediately prior to the Date of Termination (without giving effect
to any reduction in such benefits subsequent to a Potential Change
in Control or a Change in Control). During the Benefits Period, the
Executive shall be entitled to elect to change his or her level of
coverage and/or his or her choice of coverage options (such as
Executive only or family medical coverage) with respect to the
Welfare Benefits to be provided by the Company to the Executive to
the same extent that actively employed senior executives of the
Company are permitted to make such changes; provided, however, that
in the event of any such changes the Executive shall pay the amount
of any cost increase that would actually be paid by an actively
employed senior executive of the Company by reason of making the
same changes in his or her level of coverage or coverage
options.
3.4 Terminations in Anticipation of Change in Control
. The Executive shall be entitled to the Severance
Benefits under Section 3 hereof if the Executive's employment is
terminated by the Company without Cause prior to a Change in
Control and such termination of employment (a) was at the request
of a third party which has taken steps reasonably calculated to
effect a Change in Control or (b) otherwise arose in anticipation
of a Change in Control, in each case as determined by the Board or
the Compensation Committee of the Company and/or its general
partner. The Executive shall be entitled to the Severance Benefits
under Section 3 hereof if the Executive terminates his or her
employment prior to a Change in Control if at the time of such
termination a circumstance or event which would constitute Good
Reason after a Change in Control has occurred (a) at the request of
a third party who has taken steps reasonably calculated to effect a
Change in Control or (b) in anticipation of a Change in Control, in
each case as
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Exhibit 10.85
determined by the Board or the Compensation
Committee of the Company and/or its general partner.
4. Certain Limitations on
Payments and Benefits . The Severance
Benefits payable under Section 3.1 hereof shall be reduced by the
amount of any other payment or the value of any benefit received or
to be received by the Executive that, in the opinion of tax counsel
("Tax Counsel") selected by the Executive and acceptable to the
Company's independent auditors, is likely to constitute a
"parachute payment" under section 280G(b)(2) of the Code (whether
pursuant to the terms of this Agreement or any other plan,
agreement or arrangement with the Company or any subsidiary, any
person whose actions result in a Change in Control, or any person
affiliated with the Company or such person) unless (A) the
Executive shall have effectively waived his receipt or enjoyment of
such payment or benefit prior to the date of payment of such
Severance Benefits, (B) or in the opinion of Tax Counsel, the
Severance Benefits (in their full amount or as partially reduced
under this Section 4, as the case may be) plus all other payments
or benefits that constitute "parachute payments" within the meaning
of section 280(b)(2) of the Code are likely to be reasonable
compensation for services actually rendered, within the meaning of
section 280G(b)(4) of the Code or are otherwise not likely to be
subject to disallowance as a deduction by reason of section 280G of
the Code. The value of any noncash benefit or any deferred payment
or benefit shall be determined by the Company's independent
auditors in accordance with the principles of section 280G(d)(3)
and (4) of the Code.
5. Timing of
Payments . The payment provided for in
Section 3.1 hereof shall be made on the Date of Termination,
provided, however, that if the amounts of such payment cannot be
finally determined on or before such day, the Company shall pay to
the Executive on such day an estimate, as determined in good faith
by the Company, of the minimum amount of such payment and shall pay
the remainder of such payment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code from the Date of
Termination to the payment of such remainder) as soon as the amount
thereof can be determined but in no event later than the thirtieth
(30th) day after the Date of Termination. In the event that the
amount of the estimated payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by
the Company to the Executive, payable on the fifth (5th) business
day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code from the Date of
Termination to the repayment of such excess).
6. Termination
Procedures .
6.1 Notice of Termination . After a
Change in Control, any termination of the Executive's employment
(other than by reason of death) must be preceded by a written
Notice of Termination from the terminating party to the other party
hereto in accordance with Section 7.5 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall (i) specify the date of termination (the "Date of
Termination") which shall not be more than sixty (60) days from the
date such Notice of Termination is given, (ii) indicate the
notifying party's opinion regarding the specific provisions of this
Agreement that will apply upon such termination and (iii) set forth
in reasonable detail the facts and circumstances claimed to provide
a basis for the application of the provisions indicated.
Termination of the Executive's
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Exhibit 10.85
employment shall occur on the specified Date of
Termination even if there is a dispute between the parties pursuant
to Section 6.2 hereof relating to the provisions of this Agreement
applicable to such termination.
6.2 Dispute Concerning Applicable Termination Provisions
. If within thirty (30) days of receiving the Notice
of Termination the party receiving such notice notifies the other
party that a dispute exists concerning the provisions of this
Agreement that apply to such termination, the dispute shall be
resolved either by mutual written agreement of the parties or by
expedited commercial arbitration under the rules of the American
Arbitration Association, pursuant to the procedures set forth in
Section 7.14 herein. The parties shall pursue the resolution of
such dispute with reasonable diligence. Within five (5) days of
such a resolution, any party owing any payments pursuant to the
provisions of this Agreement shall make all such payments together
with interest accrued thereon at the rate provided in Section
1274(b)(2)(B) of the Code.
7. Miscellaneous
.
7.1 No Mitigation . The Company agrees
that, if the Executive's employment by the Company is terminated in
a manner that results in the payment of Severance Benefits
hereunder, the Executive shall not be required to seek other
employment or to attempt in any way to reduce any amounts payable
to the Executive by the Company pursuant to this Agreement.
Further, the amount of any paymen
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