Exhibit 10.5
CLASS A RESTRICTED SHARE
AGREEMENT
(Rollover Restricted
Shares)
This CLASS A RESTRICTED SHARE
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 Thierry Guillemin (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,
Intelstat 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 Class A Restricted
Shares subject to this Agreement (each a “ Class A
Restricted Share ” and collectively the “ Class
A Restricted Shares ”) were issued as of February 4,
2008 (the “ Issuance Date ”) under that certain
Contribution and Subscription Agreement, dated as of the Issuance
Date, by and among the Company and the investors named therein (the
“ Contribution Agreement ”); and
WHEREAS, the Employee contributed to
the Company as of the Issuance Date one or more restricted shares
issued under the Intelsat Holdings, Ltd. 2005 Share Incentive Plan
(each an “ Original Restricted Share ” and
collectively the “ Original Restricted Shares ”)
in exchange for the Class A Restricted Shares; 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 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 or more of its Subsidiaries (the “
Employer ”); and
WHEREAS, the Employee and the
Company acknowledge and agree that, upon and following the date
hereof, the Class A Restricted Shares shall be governed solely
by the Plan and this Agreement; and
WHEREAS, this Agreement memorializes
certain terms and conditions applicable to the Class A
Restricted Shares;
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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2.
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Issuance . Upon execution of the Contribution Agreement,
the Company or one of its Affiliates issued to the Employee
3,044.47 Class A Restricted Shares, par value U.S. $.001 per
share in exchange for 760.53 Original Restricted Shares. The
Employee acknowledges that the Class A Restricted Shares will
be subject to the terms and conditions set forth in this Agreement
and shall continue to be subject to a substantial risk of
forfeiture and restrictions on transferability.
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3.
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83(b)
Election . The Employee
has previously made a timely election with the Internal Revenue
Service (the “ IRS ”) under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the “
Code ”) and the regulations promulgated thereunder
(the “ 83(b) Election ”).
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4.
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Equity
Plan . The Class A
Restricted Shares 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 . So long as the Employee becomes a party to the
Management Shareholders Agreement with respect to any Class A
Restricted Shares, the Class A Restricted Shares shall vest
over twenty-three months in twenty-three substantially equal
monthly installments on the first day of each calendar month
commencing on March 1, 2008 so that the all of the
Class A Restricted Shares shall be vested on January 1,
2010, subject to the Employee’s continued employment on the
date of vesting and to Section 6 below. Notwithstanding the
foregoing, immediately prior to the first Change in Control to
occur following the Issuance Date (and subject to the consummation
of such Change in Control), any unvested Class A Restricted
Shares shall become fully vested; 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 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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6.
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Termination
of Employment .
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(a)
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Termination
without Cause . In the
event of the Employee’s Termination of Employment by the
Employer without Cause or by the Employee for Good Reason (as
defined in Section 6(a)(iv), below):
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(i)
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Treatment . Any unvested Class A Restricted Shares
(and the related cash dividends and proceeds thereof held by the
Company in accordance with Section 8 hereof (“
Custodial Dividends ”), if any, with respect to such
Class A Restricted Shares which have not vested at the time of
the dividend payment) shall be forfeited as of the date of such
Termination of Employment.
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(ii)
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Repurchase Right
. Subject to Sections 6(e) and 7
hereof, any Class A Shares held by the Employee as a result of
the vesting of Class A
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Restricted Shares may be
repurchased by the Company at any time and from time to time
following the date of Termination of Employment, at a purchase
price per Class A Share equal to the Fair Market Value of such
Class A Share as of the date of such Termination of
Employment.
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(iii)
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Notwithstanding
the foregoing, if the Company consummates an acquisition by or
merger of the Company through a transaction or series of
transactions with any of those certain Person(s) described in the
resolutions of the Compensation Committee of the Board dated
December 29, 2008 but after which the Sponsor Shareholders do
not in the aggregate possess beneficial ownership of more than
fifty percent (50%) of the voting securities (for the election
of directors) of the Company or its successor (a “
Significant Corporate Event ”), then if on or
following such Significant Corporate Event (i) (A) the
affirmative written consent of the Sponsor Shareholders or a
representative thereof is not required for the Company to terminate
the Employee’s employment at the time of such termination and
(B) the Employee’s employment with the Company is
terminated by the Company without Cause or by the Employee for Good
Reason, then the applicable vesting provisions shall apply as if a
Change in Control had occurred immediately prior to such
termination of employment, or (ii) (A) the affirmative
written consent of the Sponsor Shareholders or a representative
thereof is required for the Company to terminate the
Employee’s employment at the time of such termination and at
all times theretofor, and (B) the Employee’s employment
with the Company is terminated by the Company without Cause or by
the Employee for Good Reason on or after the date that is eighteen
(18) months following the date of such Significant Corporate
Event, then the applicable vesting provisions shall apply as if a
Change in Control had occurred immediately prior to such
termination of employment.
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(iv)
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For purposes of
this Agreement, “ Good Reason ” shall mean the
occurrence, without the Employee’s consent, of a material
diminution of the Employee’s responsibilities as of the Grant
Date, other than as a result of a Change in Control, Significant
Corporate Event or Company expansion, where the Employee remains in
a position with the Company or its successor (or any other entity
that owns substantially all of the Company’s business after
such Change in Control or Significant Corporate Event) that is
substantially equivalent in responsibilities to the
Employee’s position as of the Grant Date, solely as such
responsibilities relate to the Company’s business as of the
Grant Date (and not taking into account any such Change in Control,
Significant Corporate Event or Company expansion); provided
that the Employee has given the Company written notice of, and
thirty (30) business days’ opportunity to cure, such
violation(s); and provided , further , that such
termination of employment for Good Reason shall occur within one
hundred and eighty (180) days of the occurrence of the Good
Reason event.
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3
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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,
all unvested Class A Restricted Shares (and the related
Custodial Dividends paid, if any, with respect to such Class A
Shares which have not vested at the time of the dividend payment)
shall be immediately forfeited.
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(ii)
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Repurchase
Right . Any Class A
Shares held by the Employee as a result of the vesting of
Class A Restricted Shares may be repurchased by the Company at
any time and from time to time following the date of any
Termination of Employment, at a purchase price per Class A
Share equal to the lesser of (1) the Fair Market Value of such
Class A Share on the date of such Termination of Employment,
or (2) (A) the Fair Market Value of such Class A
Share on the date o
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