Exhibit 99.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement (the “Agreement”) by and between Motient
Corporation, a corporation organized under the laws of the State of
Delaware (“Company”), and Myrna J. Newman
(“Employee”) is hereby entered into effective as of
November 1, 2006 (the “Effective Date”), and amends and
restates the Employment Agreement initially entered into as of
November 21, 2005, and later amended and restated on March 8,
2006.
RECITALS
WHEREAS, the Company desires to
employ Employee as Vice President, Controller and Chief Accounting
Officer of the Company, and Employee desires to accept employment
with the Company as such all on the terms and conditions set forth
in this Agreement; and
NOW, THEREFORE, in consideration of
the mutual promises, terms, covenants and conditions set forth
herein and the performance of each, it is hereby agreed as
follows:
AGREEMENTS
1.
Employment and Duties
.
(a)
Except as provided below in
paragraph 1(e), the Company hereby employs Employee as Vice
President, Controller and Chief Accounting Officer of the Company
to be headquartered in Lincolnshire, Illinois. As such, Employee
shall have responsibilities, duties and authority reasonably
accorded to, expected of, and consistent with Employee’s
position as the Vice President, Controller and Chief Accounting
Officer. Employee hereby accepts this employment upon the terms and
conditions herein contained and, subject to paragraph 1(c), agrees
to devote substantially all of her time, attention and efforts to
promote and further the business and interests of the Company and
its subsidiary entities (including joint ventures) or any other
entity within the current or future ownership structure.
(b)
The Company and Employee agree that
this Agreement may be assigned to any majority-owned subsidiary of
the Company or any other majority-owned entity (in either case, and
including any successor in interest through merger or otherwise,
the “Successor Employer”) within the current or future
ownership structure. In the event of any such assignment, the
Company and the Successor Employer shall each be directly and
jointly and severally responsible for the timely and full
satisfaction of all obligations of the Company as set forth in this
Agreement. References to the Company shall include and also mean
each Successor Employer.
(c)
Subject to the specific terms of
this Agreement, Employee shall faithfully adhere to, execute and
fulfill all lawful policies established by the Company.
(d)
Employee shall not, during the term
of her employment hereunder, engage in any other business activity
pursued for gain, profit or other pecuniary advantage. The
foregoing limitations shall not be construed as prohibiting
Employee from making personal investments in such form or manner as
will neither require her services in the operation or affairs of
the companies or enterprises in which such investments are
made.
1
(e)
On or prior to March 31, 2007, the Company may
change Employee’s title to Vice President - Accounting. The
duties of such position shall be transitioning accounting duties to
persons designated by the Company and providing accounting services
for the Company’s (or its subsidiaries’) accounting
department(s). Any change in title or duties beyond that set forth
above shall constitute “Good Reason” for Employee to
terminate this Agreement.
2.
Compensation
. For all services rendered by
Employee, the Company shall pay to Employee the following
compensation:
(a)
Base Salary
. The base salary (the “Base
Salary”) payable to Employee during the term shall be
$175,000 per year, payable in accordance with the Company’s
normal payroll procedures, but not less frequently than
monthly.
(b)
Benefits . Employee shall be entitled to retirement and
health and welfare benefits as provided by the Company from time to
time to, and on a basis which is as least as favorable as that
provided to, other similarly situated employees of the
Company.
(c)
Performance Bonus
. Employee shall be entitled to
Performance Bonuses as follows:
(i)
For 2006, Employee shall be paid a
Bonus of $187,500, which amount the Company acknowledges and agrees
that Employee has earned by services rendered by Employee to the
Company through (and including) the Effective Date and that the
payment of such amount is unconditional. Of the aforesaid amount,
$100,000 shall be paid to Employee no later than ten (10) days from
the Effective Date, and $87,500 shall be paid to the Employee no
later than February 1, 2007.
(ii)
For 2007, Employee shall be eligible
to receive a Bonus of an amount equal to 50% of the
Employee’s Base Salary. The aforesaid amount shall be paid to
the Employee no later than February 1, 2008, provided that Employee
was employed by the Company on January 5, 2008. The aforesaid
amount shall not be paid if Employee’s employment with the
Company terminates for any reason prior to January 5,
2008.
(d)
Vacation/Holidays
. Employee is entitled to paid time
off (“PTO”), pursuant to the policies of the Company
then in place; provided that such amount of PTO shall not be less
than twenty (20) days per annum.
(e)
Deferrals . The Company shall not take or fail to take any
action, which action or failure to act, either alone or together
with other facts and conditions, would result in adverse tax
treatment of the Employee under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), and the
Treasury regulations thereunder. This shall include, but shall not
be limited to, the deferral of payments or other events as
necessary to comply with Section 409A(a)(2)(B)of the Code, to the
extent applicable.
2
3.
Term; Termination; Rights on Termination;
Severance Payment; Early Termination Payment
.
(a)
The term of this Agreement shall
begin on the Effective Date and continue through January 5,
2008.
(b)
This Agreement and Employee’s
employment may be terminated prior to the date of termination set
forth in paragraph 3(a) in any of the following ways:
(i)
Death . The death of Employee shall immediately
terminate this Agreement and no Severance Payment or Early
Termination Payment as defined below will be due Employee’s
estate;
(ii)
Disability
. If Employee becomes entitled to
receive benefits under an insured long-term disability plan of the
Company that includes its officers, either the Employee or the
Company may terminate Employee’s employment hereunder with no
Severance Payment or Early Termination Payment due
Employee;
(iii)
By Company with
Cause . The Company may
terminate this Agreement and Employee’s employment upon
written notice to Employee for “Cause,” which shall be:
(1) Employee’s willful failure in the performance or
nonperformance of any of Employee’s duties and
responsibilities hereunder; (2) Employee’s dishonesty or
fraud with respect to the business, reputation or affairs of the
Company; (3) Employee’s conviction of a felony crime
involving moral turpitude; or (4) Employee’s willful failure
to abide by any substantial lawful policy or directive of the
Company. Employee’s absence during a required or permitted
leave of absence shall not constitute Cause. The Company recognizes
that the audit committee of the board of directors of the Company
has investigated certain matters that are substantially similar to
ongoing litigation in Delaware initiated by affiliates of James
Dondero. Based on this investigation, the Company hereby agrees
that no wrongdoing has occurred with respect to the allegations in
such lawsuits, and in no event shall such allegations give rise to
a termination of the Employee for “Cause.” Prior to
termination of Employee for “Cause” pursuant to clauses
(1) or (4) above, Company shall, to the extent reasonably
practicable, grant Employee five (5) business days’ written
notice to cure any defect giving rise to such “Cause”.
In the event of a termination for Cause, Employee shall have no
right to receive any Severance Payment or Early Termination
Payment, each as defined below;
(iv)
By Company Without
Cause. The Company may
terminate this Agreement and Employee’s employment without
Cause upon written notice to Employee. In the event of a
termination by the Company without Cause from the Effective Date
through June 30, 2007, the Employee will be entitled to a Severance
Payment . In the event of a termination by the Company without
Cause from July 1, 2007 through January 5, 2008, the Employee will
be entitled to an Early Termination Payment;
(v)
By Employee
Without Good Reason .
Employee may, without Good Reason (as hereinafter defined), resign
or otherwise terminate this Agreement and Employee’s
employment effective upon written notice is provided to the
Company. If Employee resigns or otherwise terminates her employment
without Good Reason, Employee shall have no right to receive any
Severance Payment or Early Termination Payment, each as defined
below; and
3
(vi)
By Employee for Good Reason . Employee shall have
“Good Reason” to terminate her employment hereunder
upon the occurrence of any of the following events, unless Employee
agrees in a writing executed contemporaneously with or after the
occurrence of the event that it shall not constitute “Good
Reason”: (1) Employee experiences change in title or a
material reduction in authority, responsibilities or duties to a
position of less stature or importance within the Company than the
position described in paragraph 1(a) or (e) hereof, (2) Employee
terminates her employment (for any reason) within ninety (90) days
following a Change of Control (as defined below), (3) If, prior to
April 1, 2007, Employee is required to work from a location not in
the greater Chicago area for an average of more than three days per
week, including travel time to and from such location, over the
course of any calendar month, (4) any breach by Company of the
terms of this Agreement, or (5) Employee terminates her employment
(for any reason) between June 1, 2007 and June 30, 2007. Prior to
termination of employment for “Good Reason” pursuant to
clauses (1), (3) or (4) above, Employee shall be required to grant
Company five (5) business days’ written notice to cure the
event or condition giving rise to such “Good Reason.”
In the event the Employee terminates her employment for Good
Reason, Employee will be entitled to a Severance Payment, but no
Early Termination Payment, each as defined below.
(vii)
Change of Control
. A “Change of Control”
means the occurrence of any of the following events occurring on or
after the Effective Date:
(1)
any person or group of persons (as
defined in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended and in effect from time to time (the
“Exchange Act”)) (other than persons who are
stockholders of the Company immediately prior to the transaction)
together with its affiliates, excluding employee benefit plans of
the Company, is or becomes, directly or indirectly, the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act) of securities of the Company representing 40% or more
of the combined voting power of the Company’s then
outstanding securities;
(2)
the dissolution or liquidation of
the Company or a merger, consolidation, or reorganization of the
Company with one or more other entities in which the Company is not
the surviving entity, or the sale of substantially all of the
assets of the Company to another person or entity;
(3)
any transaction (including without
limitation a merger or reorganization in which the Company is the
surviving entity) which results in any person or entity (other than
persons who are shareholders of the Company or affiliates
immediately prior to the transaction) owning more than 50% of the
combined voting power of all classes of securities/interests of the
Company; or
(4)
individuals who at the beginning of
any two-year period constitute the board of directors, plus new
directors of the Company whose election or nomination for election
by the Company’s shareholders is approved by a vote of at
least two-thirds of the directors of the Company still in office
who were directors of the Company at the beginning of such two-year
period, cease for any reason during such two-year period to
constitute at least two-thirds of the members of the board of
directors.
4
