EXHIBIT 10.46
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between
Motient
Corporation, a corporation organized under the laws of the State of
Delaware
("Company"), and Robert Macklin ("Employee") is hereby entered into
effective as
of November 21, 2005 (the "Effective Date").
RECITALS
WHEREAS, the Company desires to employ Employee as Vice
President,
General Counsel and Secretary of the Company (or, at the discretion
of the
Company, as Vice President, General Counsel and Secretary of
TerreStar Networks
Inc. ("TerreStar") and Motient Communications Inc.
("Communications")), and
Employee desires to accept employment with the Company as such (or,
at the
discretion of the Company, as Vice President, General Counsel and
Secretary of
TerreStar and Communications) 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)
The Company hereby employs Employee as Vice President, General
Counsel and Secretary 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, General Counsel and Secretary. Employee hereby
accepts this
employment upon the terms and conditions herein contained and,
subject to
paragraph 1(c), agrees to devote substantially all of his 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. Employee agrees and
acknowledges that the
Company may designate Employee as Vice President, General Counsel
and Secretary
of TerreStar and Communications rather than as Vice President,
General Counsel
and Secretary of the Company.
(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 his 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 his services in the operation or affairs of
the companies
or enterprises in which such investments are made.
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2. Compensation. For all services rendered by Employee, the
Company
shall pay to Employee the following compensation:
(a) Base Salary. The base salary payable to Employee during the
term
shall be not less than $175,000 per year, payable in accordance
with the
Company's normal payroll procedures, but not less frequently than
monthly. Such
base salary will be increased by four (4%) percent annually during
the term of
this Agreement and may be increased by a larger amount from time to
time, at the
discretion of the Company's Board of Directors in light of the
Employee's
position, responsibilities and performance, and, as increased from
time to time,
may not be reduced.
(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 2005, Employee shall be paid a Performance Bonus of
$89,300,
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. The
aforesaid amount shall be paid to the Employee on the first to
occur of: (1) the
Closing (as defined below); (2) termination of Employee's
employment, without
regard to whether such termination is effected by the Employee or
the Company,
is effected with or without Cause or Good Reason (as discussed
below), or does
or does not entitle Employee to Severance Payment (as discussed
below); or (3)
December 31, 2005.
(ii) Employee will be eligible to receive for each Company fiscal
year
after 2005 a performance bonus of up to a maximum of thirty-five
percent (35%)
of Base Salary upon the achievement of performance goals to be
established in a
Bonus Plan at a later date (or based upon the achievement of other
Company-wide
performance objectives established by the Company, if no such Bonus
Plan
exists).
(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.
3. Term; Termination; Rights on Termination; Severance Payment.
(a) The term of this Agreement shall begin on the Effective Date
and
continue for two (2) years. The term shall be automatically
extended each year
for another twelve months, unless either party gives notice three
(3) months in
advance of its termination date of his or its intent to terminate
the Agreement,
or unless terminated sooner as specifically provided herein.
(b) This Agreement and Employee's employment may be terminated in
any
of the following ways:
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(i) Death. The death of Employee shall immediately terminate
this
Agreement and no Severance 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 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, 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, the Employee
will be
entitled to any Severance Payment as defined below;
(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 his employment without
Good Reason,
Employee shall have no right to receive any Severance Payment as
defined below;
and
(vi) By Employee for Good Reason. Employee shall have "Good Reason"
to
terminate his 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 is demoted by means of 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) hereof,
(2) Employee
terminates his employment (for any reason) within ninety (90) days
following a
Change of Control (as defined below), (3) 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, or (4) any breach by Company of the terms of
this Agreement.
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 his employment for
Good Reason,
Employee will be entitled to Severance Payment as defined
below.
(vii) Change of Control. A "Change of Control" means the occurrence
of
any of the following events; provided that in no event shall the
Closing
(hereinafter defined) constitute a Change of Control:
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(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 n
