Exhibit 10.23
SHARE OPTION
AGREEMENT
(Rollover Option)
This SHARE OPTION AGREEMENT (this
“ Agreement ”) is made as of May 8, 2009 by
Intelsat Global, Ltd. (formerly known as Serafina Holdings Limited
and referred to herein as the “ Company ”), and
[
] (the “ Employee ”);
WHEREAS, the Company entered into
that certain Share Purchase Agreement, dated as of June 19,
2007, by and among the Company, Serafina Acquisition Limited,
Intelsat Holdings, Ltd. (“ Intelsat ”) and the
selling shareholders named therein (the “ Share Purchase
Agreement ”); and
WHEREAS, the transaction
contemplated by the Share Purchase Agreement (the “
Acquisition ”) has been consummated as of
February 4, 2008; and
WHEREAS, the Non-Qualified Stock
Option subject to this Agreement (the “ Rollover
Option ”) was granted as of February 4, 2008 (the
“ Grant Date ”); and
WHEREAS, in consideration for the
Rollover Option, the Employee agreed to the termination and
cancellation as of the Grant Date of one or more stock options
described on Exhibit A hereto (collectively, the “
Original Option ”) issued under the Intelsat Holdings,
Ltd. 2005 Share Incentive Plan; and
WHEREAS, the Company wishes to carry
out the Intelsat Global, Ltd. 2008 Share Incentive Plan (as it may
be amended from time to time, the “ Plan ”), the
terms of which are hereby incorporated by reference and made a part
of this Agreement; and
WHEREAS, the Committee appointed to
administer the Plan pursuant to Section 3 of the Plan has
determined that it would be to the advantage and in the best
interest of the Company and its shareholders to enter into this
Agreement with the Employee as an inducement to remain in the
service of the Company (or one of its Subsidiaries) (the “
Employer ”) and as an incentive for increased efforts
during such service, and has advised the Company thereof and
instructed the undersigned officers to execute this Agreement;
and
WHEREAS, the Employee and the
Company acknowledge and agree that, upon and following the date
hereof, the Rollover Option shall be governed solely by the Plan
and this Agreement; and
WHEREAS, the Employee and the
Company acknowledge and agree that the substitution of the Rollover
Option granted for the Original Option in connection with the
Acquisition constituted a substitution of a stock right by reason
of a corporate transaction within the meaning of Treasury
Regulation Section 1.409A-1(b)(5)(v)(D) issued under
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”);
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set forth and for other good and
valuable consideration, the parties hereto do hereby agree as
follows:
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1.
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Capitalized
Terms . Capitalized terms
not defined herein shall have the meaning ascribed to such terms in
the Plan.
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(a)
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Genera l. As of the Grant Date, the Company granted to
the Employee the Rollover Option to purchase any part or all of an
aggregate of [ ] Class A Shares. The Employee acknowledges
that the Option will be subject to the terms and conditions set
forth in this Agreement and the Plan, including, without
limitation, Section 6 of the Plan. The Company and the
Employee acknowledge and agree that the granting of the Rollover
Option in substitution for the Original Option in connection with
the Acquisition constituted a substitution of a stock right by
reason of a corporate transaction within the meaning of Treasury
Regulation Section 1.409A-1(b)(5)(v)(D) issued under
Section 409A of the Code. The Employee acknowledges that the
key terms of the Rollover Option were communicated to the Employee
as of the Grant Date.
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(b)
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Rollover
Option Subject to Plan .
The Rollover Option granted hereunder is subject to the terms and
provisions of the Plan, including, without limitation,
Section 6 thereof.
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(c)
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Exercise
Price . The purchase
price of the Class A Shares covered by the Rollover Option
shall be U.S. $25.00 per Class A Share (the “
Exercise Price ”) (without commission or other
charge).
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(d)
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Term .
Unless earlier terminated pursuant to the terms of this Agreement,
the Rollover Option shall expire on [
, 20 ], and the Employee shall
thereafter cease to have any rights in respect thereof.
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3.
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Fair Market
Value; 83(b) Election .
With respect to the exercise of the Rollover Option for
Class A Shares, the Employee, in his sole discretion, may make
an election with the Internal Revenue Service (the “
IRS ”) under Section 83(b) of the Code and the
regulations promulgated thereunder in the form of Exhibit B
attached hereto (the “ 83(b) Election ”). The
Employee understands that under applicable law such election must
be filed with the IRS no later than thirty (30) days after the
date of purchase of Class A Shares to be effective. If the
Employee files an effective 83(b) Election, the excess of the fair
market value of the Class A Shares (which the IRS may assert
is different from the Fair Market Value determined by the parties)
covered by such election over the amount paid by the Employee for
the shares shall be treated as ordinary income received by the
Employee, and the Company or one of its Subsidiaries shall withhold
from Employee’s compensation any amounts required to be
withheld under applicable law. If the Employee does not file an
83(b) Election, future appreciation on the Class A Shares will
generally be taxable as ordinary income at the time or times when
the Company’s repurchase rights with respect to such
Class A Shares (as set forth in this Agreement) lapse. The
foregoing is merely a brief summary of complex tax laws and
regulations, and therefore the Employee is advised to consult with
his own tax advisors regarding his purchase and holding of
Class A Shares.
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4.
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Equity
Plan . The Rollover
Option and this Agreement shall be subject to the terms of the
Plan, to the extent the terms of such Plan are not inconsistent
with the terms of this Agreement. In the event of any inconsistency
between the terms of the Plan and the terms of this Agreement, the
Plan shall govern.
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5.
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Vesting . The Rollover Option shall vest over
[twenty-four (24)] months in [twenty-four (24)] substantially equal
monthly installments on the last day of each calendar month
beginning on February 29, 2008 so that the Rollover Option
shall be fully vested with respect to all shares covered thereby on
[January 31, 2010], subject to the Employee’s continued
employment on the date of vesting and to Section 8 below.
Notwithstanding the foregoing, the Rollover Option shall become
fully vested and exercisable with respect to all shares covered
thereby immediately prior to the first Change in Control to occur
following the Grant Date (and subject to the consummation of such
Change in Control); provided that no such vesting will be
accelerated under the Plan or this Agreement to an extent or in a
manner that would result in any payments that are not fully
deductible by the Company for federal income tax purposes because
of Section 280G of the Code.
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(a)
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The portion of
the Rollover Option as to which the Employee is vested shall be
exercisable by delivery to the Company of a written notice stating
the number of Class A Shares to be purchased pursuant to this
Agreement and accompanied by payment in full of the exercise price
of the Class A Shares to be purchased. Anything to the
contrary herein notwithstanding, the Company shall not be obligated
to issue any Class A Shares hereunder if the issuance of such
Class A Shares would violate the provision of any law, in
which event the Company shall, as soon as practicable, take
whatever action it reasonably can so that such Class A Shares
may be issued without resulting in such violations of
law.
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(b)
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The exercise
price of the Rollover Option shall be paid: (i) in cash or by
certified check or bank draft payable to the order of the Company;
(ii) if permitted by the Committee, by reducing the number of
Class A Shares otherwise deliverable pursuant to the Rollover
Option by the number of such Class A Shares having a Fair
Market Value on the date of exercise equal to the exercise price of
the Class A Shares to be purchased; (iii) if permitted by
the Committee, by exchange of unrestricted Class A Shares of
the Company already owned by the Employee and having an aggregate
Fair Market Value equal to the aggregate exercise price,
provided that the Employee represents and warrants to the
Company that the Employee has held such Class A Shares free
and clear of liens and encumbrances; (iv) if permitted by the
Committee, by delivering, along with a properly executed exercise
notice to the Company, a copy of irrevocable instructions to a
broker to deliver promptly to the Company the aggregate exercise
price and, if requested by the Employee, the amount of any
applicable federal, state, local or foreign withholding taxes
required to be withheld by the Company, provided ,
however , that such exercise may be implemented solely under
a program or arrangement established and approved by the Company
with a brokerage firm selected by the Company; or (v) by any
other procedure approved by the Committee, or by a combination of
the foregoing (to the extent permitted by the
Committee).
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7.
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Termination
of Employment .
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(a)
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Termination
without Cause .
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(i)
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Treatment . No portion of the Rollover Option that is not
vested as of the date of a Termination of Employment by the Company
without Cause shall become vested following the date of such
Termination of Employment, and subject to Section 8 hereof,
any portion of the Rollover Option that is vested as of the date of
such Termination of Employment may be exercised only prior to the
earlier of (x) one (1) year following such Termination of
Employment and (y) the scheduled expiration date of the
Rollover Option; provided , that if the Termination of
Employment without Cause occurred within the six-month period
immediately following the Grant Date, any unvested portion of the
Rollover Option vested as of the date of termination.
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(A)
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To the extent
vested, outstanding and unexercised as of the date of a Termination
of Employment by the Company without Cause (whether before or after
a Change in Control), the Rollover Option may be cancelled by the
Company at any time following the date of such Termination of
Employment prior to its exercise in exchange for a payment to the
Employee in an amount per Rollover Option equal to (x) the
Fair Market Value of a Class A Share as of the date of such
Termination of Employment minus (y) the exercise price of such
Rollover Option (the “ Option Repurchase Price
”).
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(B)
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Subject to
Sections 7(e) and 8 hereof, any Class A Shares held by the
Employee as a result of the exercise of the Rollover Option may be
repurchased by the Company at any time or from time to time
following (x) the date of such Termination of Employment
without Cause in the event such Class A Shares were held as of
such Termination of Employment and (y) the exercise of the
Rollover Option in the event such exercise occurred after the date
of such Termination of Employment, each at a purchase price per
Class A Share equal to the Fair Market Value of such
Class A Share as of the date of Termination of Employment;
provided , that the repurchase price per share for such
Class A Shares held by Employee as a result of exercise of
Rollover Option after such Termination of Employment shall be equal
to the Fair Market Value of a Class A Share as of the
applicable exercise event.
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(b)
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Resignation
by the Employee .
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(i)
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Treatment . In the event of a Termination of Employment by
the Employee for any reason other than due to death or Disability,
any unvested portion of the Rollover Option shall be immediately
forfeited, and subject to Section 8 hereof and Section 12
of the Plan, any vested and exercisable portion of the Option as of
the date of such Termination of Employment may be exercised only
prior to the earlier of (A) ninety (90) days following
such Termination of Employment and (B) the scheduled
expiration date of the Rollover Option.
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(A)
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To the extent
vested, outstanding and unexercised as of the date of a Termination
of Employment by resignation, the Rollover Option may be cancelled
by the Company at any time following the date of such Termination
of Employment prior to its exercise in exchange for a payment to
the Employee in an amount equal to the excess, if any, of the
(x) lesser of (A) the Fair Market Value of such
Class A Share on the date of such Termination of Employment,
or (B) (i) the Fair Market Value of such Class A
Share on the Closing Date minus (ii) the value of any
dividends, distributions, or dividend equivalents previously paid
to the Employee in respect of such Class A Share (subject to
equitable adjustment in the Committee’s good faith discretion
to reflect dividends, distributions, corporate transactions, or
similar events, to the extent not reflected in (ii)) over
(y) the exercise price of such Rollover Option.
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(B)
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Subject to
Sections 7(e) and 8 hereof, any Class A Shares held by the
Employee as a result of the exercise of the Rollover Option may be
repurchased by the Company at any time and from time to time
following (x) the date of a Termination of Employment in the
event such Class A Shares were held as of such Termination of
Employment and (y) the exercise of the Rollover Option in the
event such exercise occurred after the date of Termination of
Employment, at a purchase price p
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