Exhibit 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of March 11,
2005 (this "Agreement"), between SIRIUS SATELLITE RADIO INC., a
Delaware corporation (the "Company"), and XXXXX X. XXXXX (the
"Executive").
In consideration of the mutual covenants and conditions set forth
herein, the Company and the Executive agree as follows:
1. Employment. Subject to the terms and conditions of this Agreement,
the Company hereby employs the Executive, and the Executive hereby accepts
employment with the Company.
2. Duties and Reporting Relationship. (a) The Executive shall be
employed in the capacity of President, Operations and Sales, of the Company. In
such capacity, the Executive shall be responsible for management of all aspects
of the Company's retail and automaker operations (including retail sales and OEM
sales and marketing operations), product management and engineering and all
personnel working in such areas shall report to the Executive. During the Term
(as defined below), the Executive shall, on a full-time basis and consistent
with the needs of the Company to achieve the goals of the Company, use his
skills and render services to the best of his ability in supervising the
business and affairs of the Company. In addition, the Executive shall perform
such other activities and duties consistent with his position as the Chief
Executive Officer of the Company or the Board of Directors of the Company or any
committee thereof (the "Board") shall from time to time reasonably specify and
direct. During the Term, the Executive shall not perform any consulting services
for, or engage in any other business enterprises with, any third parties without
the express consent of the Board, other than (i) passive investments, (ii)
consulting services and business enterprises for which the Executive receives no
remuneration and (iii) service as a director of Gemstar International, Inc.,
Mikohn Gaming Corporation and Equant N.V.
(b) The Executive shall generally perform his duties and conduct his
business at the principal offices of the Company in New York, New York.
(c) The Executive shall report to the Chief Executive Officer of the
Company.
3. Term. The term of this Agreement shall commence on March 11, 2005
(the "Start Date") and end on April 16, 2006, unless terminated earlier pursuant
to the provisions of Section 6 or 9 (the "Term").
4. Compensation. (a) During the Term, the Executive shall be paid an
annual base salary of $540,750 (the "Base Salary"). The Base Salary shall be
subject to increase from time to time by recommendation of the Chief Executive
Officer of the Company to, and approval by, the Board. All amounts paid to the
Executive under this Agreement shall be in U.S. dollars. The
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Base Salary shall be paid at least monthly and, at the option of the Company,
may be paid more frequently.
(b) On the date hereof, the Company and the Executive shall amend and
restate the Option Agreement attached to this Agreement as Exhibit A.
(c) On the date hereof, the Company and the Executive shall amend and
restate the Restricted Stock Unit Agreement attached to this Agreement as
Exhibit B.
(d) During the Term, the Executive shall be entitled to participate in
any annual bonus program established by the Company from time to time. Such
program may include a variety of objective milestones, such as number of
subscriber activations, and is subject to approval by the Board. This program
may also include objectives specifically applicable to the Executive and his
specific areas of responsibility. Such bonus plan shall contain milestones that
shall permit the Executive to earn up to the following annual bonus:
Performance Targets Annual Bonus
(To be defined by the Board) (as a % of Base Salary)
---------------------------- -----------------------
Threshold Target 30%
Desired Performance 60%
Outstanding Performance 90%
The Company reserves the right to pay any bonus in the form of cash, restricted
stock, other securities of the Company, or any combination of the foregoing, in
its sole discretion. So long as the Executive has performed his obligations
under this Agreement, if annual bonuses are awarded by the Board to executive
officers of the Company with respect to the year ending December 31, 2006, the
Executive shall be entitled to a bonus (pro rated to reflect the number of days
in 2006 in which the Executive was an employee of the Company) for the year
ending December 31, 2006. Any such bonus shall be paid at the time bonuses are
generally awarded to other executive officers of the Company.
(e) All compensation paid to the Executive hereunder shall be subject
to any payroll and withholding deductions required by applicable law.
5. Additional Compensation; Expenses and Benefits. (a) During the Term,
the Company shall reimburse the Executive for all reasonable and necessary
business expenses incurred and advanced by him in carrying out his duties under
this Agreement. In addition, the Company shall reimburse the Executive for the
reasonable costs of an apartment in the New York metropolitan area and other
incidental living expenses (e.g., phone, cable, electric, gas, one month's
security deposit (which shall be returned to the Company at the end of the Term)
and one leasing broker's commission), up to a maximum of $4,500 per month for
rent. The Company shall also reimburse the Executive for the reasonable costs of
coach class air-fare from the Executive's home in Indianapolis, Indiana, to the
Company's executive offices in New York City. The Executive shall also be paid
such additional amount as may be necessary to hold the Executive harmless as a
result of any federal, state or New York City income taxes that may be due
solely as a result of the Company's reimbursement of rent and living expenses
and reimbursement of air-fare from the Executive's home in Indianapolis,
Indiana. The Executive
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shall present to the Company an itemized account of all expenses in such form
as may be required by the Company from time to time.
(b) During the Term, the Executive shall be entitled to participate in
any other benefit plans, programs, policies and fringe benefits which may be
made available to the executive officers of the Company generally, including,
without limitation, disability, medical, dental and life insurance and benefits
under the Sirius Satellite Radio 401(k) Savings Plan.
6. Termination. The date upon which this Agreement is deemed to be
terminated in accordance with any of the provisions of this Section 6 is
referred to herein as the "Termination Date."
(a) The Company has the right and may elect to terminate this Agreement
for Cause at any time. For purposes of this Agreement, "Cause" means the
occurrence or existence of any of the following:
(i) a material breach by the Executive of (A) the terms of this
Agreement or (B) his duty not to engage in any transaction that
represents, directly or indirectly, self-dealing with the Company or
any of its subsidiaries (which, for purposes hereof, shall mean any
individual, corporation, partnership, association, limited liability
company, trust, estate, or other entity or organization directly or
indirectly controlling, controlled by, or under direct or indirect
common control with the Company) which has not been approved by a
majority of the disinterested directors of the Board, if any such
material breach described in clause (A) or clause (B) remains uncured
after thirty days have elapsed following the date on which the Company
gives the Executive written notice of such breach;
(ii) a material breach by the Executive of any duty referred to
in clause (i) above with respect to which at least one prior notice was
given under clause (i);
(iii) any act of dishonesty, misappropriation, embezzlement,
intentional fraud, or similar intentional misconduct by the Executive
involving the Company or any of its subsidiaries;
(iv) the conviction or the plea of nolo contendere or the
equivalent in respect of a felony;
(v) any damage of a material nature to any property of the
Company or any of its subsidiaries caused by the Executive's willful
misconduct or gross negligence;
(vi) the repeated nonprescription use of any controlled substance
or the repeated use of alcohol or any other non-controlled substance
that, in the reasonable good faith opinion of the Board, renders the
Executive unfit to serve as an officer of the Company;
(vii) the Executive's failure to comply with the reasonable
written instructions of the Chief Executive Officer of the Company
within five days; or
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(viii) conduct by the Executive that in the reasonable good faith
written determination of the Board demonstrates unfitness to serve as
an officer of the Company, including, without limitation, a finding by
the Board or any judicial or regulatory authority that the Executive
committed acts of unlawful harassment or violated any other state,
federal or local law or ordinance prohibiting discrimination in
employment.
Termination of the Executive for Cause pursuant to this Section 6(a) shall be
communicated by a Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean delivery to the Executive of a copy of a
resolution or resolutions duly adopted by the affirmative vote of not less than
two-thirds of the directors (other than the Executive, if the Executive is then
serving on the Board) present (in person or by teleconference) and voting at a
meeting of the Board called and held for that purpose after reasonable notice to
the Executive and reasonable opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board prior to such vote, finding
that in the good faith opinion of the Board, the Executive was guilty of conduct
set forth in any of clauses (i) through (viii) of this Section 6(a) and
specifying the particulars thereof in reasonable detail. For purposes of this
Section 6(a), this Agreement shall terminate on the date specified by the Board
in the Notice of Termination.
(b) (i) This Agreement and the Executive's employment shall terminate
upon the death of the Executive.
(ii) If the Executive is unable to perform the essential duties and
functions of his position because of a disability, even with a reasonable
accommodation, for one hundred eighty days within any three hundred sixty-five
day period, the Board shall have the right and may elect to terminate the
services of the Executive by a Notice of Disability Termination. The Executive
shall not be terminated following a Disability except pursuant to this Section
6(b)(ii). For purposes of this Agreement, a "Notice of Disability Termination"
shall mean a written notice that sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under this Section 6(b)(ii). For purposes of this Agreement, no such
purported termination by the Board shall be effective without such Notice of
Disability Termination. This Agreement shall terminate on the day such Notice of
Disability Termination is received by the Executive.
(c) Should the Executive wish to resign from his position with the
Company during the Term, for other than Good Reason (as defined below), the
Executive shall give fourteen days prior written notice to the Company. This
Agreement shall terminate on the effective date of the resignation defined
above, however, the Company may, at its sole discretion, instruct that the
Executive perform no job responsibilities and cease his active employment
immediately upon receipt of the notice from the Executive.
(d) The Company shall have the absolute right to terminate the
Executive's employment without Cause at any time. This Agreement shall terminate
one day following receipt of such notice by the Executive, however, the Company
may, at its sole discretion, instruct that the Executive cease active employment
and perform no more job duties immediately upon provision of such notice to the
Executive.
(e) The Executive shall have the absolute right to terminate his
employment at any time.
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Should the Executive wish to resign from his position with the Company for Good
Reason during the Term, the Executive shall give seven days prior written notice
to the Company or, if other than for Good Reason, fourteen days prior written
notice to the Company. This Agreement shall terminate on the date specified in
such notice, however, the Company may, at its sole discretion, instruct that the
Executive cease active employment and perform no more job duties immediately
upon receipt of such notice from the Executive.
For purposes of this Agreement, "Good Reason" shall mean the
continuance of any of the following events (without the Executive's prior
written consent) for a period of thirty days after delivery to the Company by
the Executive of a notice of the occurrence of such event:
(i) the assignment to the Executive by the Company of duties not
reasonably consistent with the Executive's positions, duties,
responsibilities, titles or offices at the commencement of the Term,
any material reduction in his duties or responsibilities or any removal
of the Executive from or any failure to re-elect the Executive to any
of such positions or the Executive not being the sole officer of the
Company, other than the Company's Chief Executive Officer, responsible
for all sales, engineering and product development activities and
personnel (except in connection with the termination of the Executive's
employment for Cause, disability or as a result of the Executive's
death or by the Executive other than for Good Reason); or
(ii) the Executive ceasing to report directly to the Chief
Executive Officer of the Company; or
(iii) any requirement that the Executive report for work to a
location more than 25 miles from the Company's current headquarters for
more than 30 days in any calendar year, excluding any requirement that
results from the damage or destruction of the Company's current
headquarters as a result of natural disasters, terrorism, acts of war
or acts of God; or
(iv) any reduction in the Base Salary; or
(v) any material breach by the Company of this Agreement.
(f) Subject to the terms of Section 9, if the employment of the
Executive is terminated without Cause or the Executive terminates his employment
for Good Reason, then the Executive shall be entitled to (i) receive, and the
Company shall pay to the Executive without setoff, counterclaim or other
withholding, except as set forth in Section 4(e), a lump sum amount (in addition
to any salary, benefits or other sums due the Executive through the Termination
Date) equal to (x) his base salary in effect on the Termination Date for the
period from the Termination Date through April 16, 2006 (the "Severance Period")
and (y) any annual bonuses, at a level equal to 60% of Base Salary, that would
have been customarily paid during the Severance Period; (ii) the continuation of
medical and dental insurance benefits, on the same terms as provided by the
Company for active employees, under the Consolidated Omnibus Reconciliation Act
of 1985 ("COBRA") for eighteen months following the Termination Date; and (iii)
receive a monthly amount equal to the actual costs to the Executive to obtain
life insurance benefits substantially similar to those benefits provided to the
Executive for the remainder of the
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Severance Period; provided that (1) the amount of such monthly payments shall
not exceed twice the amount that the Company would have paid to provide such
life insurance benefit to the Executive if he were an active employee, and (2)
such payments shall cease if the Executive obtains a life insurance benefit from
another employer during the remainder of the Severance Period. The Company's
obligations under this Section 6(f) shall be conditioned upon the Executive
executing and delivering an agreement, and waiver and release of claims against
the Company in the form attached as Exhibit C. Any amount becoming payable under
Section 6(f) shall be paid in immediately available funds on the tenth business
day following the execution and delivery by the Executive of the agreement, and
waiver and release of claims against the Company attached as Exhibit C; provided
that the Executive has not revoked such agreement in accordance with the terms
thereof prior to such date.
7. Nondisclosure of Confidential Information. (a) The Executive
acknowledges that in the course of his employment he will occupy a position of
trust and confidence. The Executive shall not, except in connection with the
performance of his functions or as required by applicable law, disclose to
others or use, directly or indirectly, any Confidential Information.
(b) "Confidential Information" shall mean information about the
Company's business and operations that is not disclosed by the Company and that
was learned by the Executive in the course of his employment by the Company,
including, without limitation, any business plans, product plans, strategy,
budget information, proprietary knowledge, patents, trade secrets, data,
formulae, sketches, notebooks, blueprints, information and client and customer
lists and all papers and records (including computer records) of the documents
containing such Confidential Information, other than information that is
publicly disclosed by the Company in writing. The Executive acknowledges that
such Confidential Information is specialized, unique in nature and of great
value to the Company, and that such information gives the Company a competitive
advantage. The Executive agrees to deliver or return to the Company, at the
Company's request at any time or upon termination or expiration of his
employment or as soon as possible thereafter, all documents, computer tapes and
disks, records, lists, data, drawings, prints, notes and written information
(and all copies thereof) furnished by or on behalf of the Company or prepared by
the Executive in the course of his employment by the Company.
(c) The provisions of this Section 7 shall survive the Term for one
year.
8. Covenant Not to Compete. During the Restricted Period (as defined
below), the Executive shall not, directly or indirectly, enter into the
employment of, render services to, or acquire any interest whatsoever in
(whether for his own account as an individual proprietor, or as a partner,
associate, stockholder, officer, director, consultant, trustee or otherwise), or
otherwise assist, any person or entity engaged (a) in any operations in North
America involving the transmission of radio entertainment programming in
competition with the Company or (b) in the business of manufacturing, marketing
or distributing radios, antennas or other parts for use in devices which receive
broadcasts of XM Satellite Radio Inc. or any successor to XM Satellite Radio
Inc., in any such case if such employment, services or acquisition is in such
operations or business; provided that nothing in this Agreement shall prevent
(i) the Executive from entering into the employment of, or rendering services
to, News Corporation or DIRECTV, Inc. or (ii) purchase or ownership by the
Executive by way of investment of less than five percent of the shares or equity
interest of any corporation or other entity. Without limiting the generality of
the
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foregoing, the Executive agrees that during the Restricted Period, the Executive
shall not call on or otherwise solicit business or assist others to solicit
business from any of the customers of the Company as to any product or service
described in (a) and (b) above that competes with any product or service
provided or marketed by the Company at the end of the Term. The Executive agrees
that during the Restricted Period he will not solicit or assist others to
solicit the employment of or hire any employee of the Company without the prior
written consent of the Company. For purposes of this Agreement, the "Restricted
Period" shall mean three years following the end of the Term; provided that if
the employment of the Executive is terminated without Cause or the Executive
terminates his employment for Good Reason, the "Restricted Period" shall be the
greater of: (a) the Severance Period, and (b) one year following the end of the
Term.
9. Change of Control Provisions. (a) Notwithstanding the terms of
Section 6(f), if following a Change of Control (as defined below) the employment
of the Executive is terminated without Cause or the Executive terminates his
employment for Good Reason, then the Executive shall be entitled to (i) receive,
and the Company shall pay to the Executive without setoff, counterclaim or other
withholding, except as set forth in Section 4(e), a lump sum amount (in addition
to any salary, benefits or other sums due the Executive through the Termination
Date) equal to the product of the Base Salary multiplied by lesser of (x) four,
and (y) (1) the multiple of base salary, if any, that the Chief Executive
Officer of the Company would be entitled to receive under his or her employment
agreement in effect immediately prior to a Change of Control if he or she was
terminated without Cause or terminated for Good Reason following such Change of
Control times (2) 0.8; (ii) the continuation of medical and dental insurance
benefits, on the same terms as provided by the Company for active employees,
under COBRA for eighteen months following the Termination Date and, for an
additional eighteen months thereafter, monthly payment of an amount equal to the
actual costs to the Executive to obtain medical and dental insurance benefits
substantially similar to those benefits provided to the Executive on the
Termination Date; provided that (1) the amount of such monthly payments shall
not exceed twice the amount that the Company would have paid to provide such
medical and dental insurance benefits to the Executive, as if he were an active
employee, and (2) such payments shall cease if the Executive obtains medical and
dental benefits from another employer; and (iii) receive a monthly amount equal
to the actual costs to the Executive to obtain life insurance benefits
substantially similar to those benefits provided to the Executive as an active
employee for a period of thirty six months after the Termination Date; provided
that (1) the amount of such monthly payments shall not exceed twice the amount
that the Company would have paid to provide such life insurance benefit to the
Executive if he was an active employee, and (2) such payments shall cease if the
Executive obtains a life insurance benefit from another employer. Any amount
becoming payable under Section 9(a)(i) shall be paid in immediately available
funds within ten business days following the Termination Date.
(b) For the purposes of this Agreement, a "Change of Control" shall
mean the occurrence of any of the following: (i) the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of the Company to any "person" or "group"
(as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), (ii) any person or group
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such
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person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting stock of the Company, including by way of
merger, consolidation or otherwise, or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board (together with any new directors whose election by such Board or whose
nomination for election by the stockholders of the Company was approved by a
vote of a majority of the directors of the Company, then still in office, who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board, then in office.
(c) If the Executive is, in the opinion of a nationally recognized
accounting firm jointly selected by the Executive and the Company, required to
pay an excise tax on "excess parachute payments" (as defined in Section 280G(b)
of the Internal Revenue Code of 1986, as amended (the "Code")) under Section
4999 of the Code as a result of an acceleration of the vesting of stock options,
the Company shall have an absolute and unconditional obligation to pay the
Executive in accordance with the terms of this Section 9 the amount of such
taxes. In addition, the Company shall have an absolute and unconditional
obligation to pay the Executive such additional amounts as are necessary to
place the Executive in the exact same financial position that he would have been
in if he had not incurred any expected tax liability under Section 4999 of the
Code. The determination of the exact amount, if any, of any expected "excess
parachute payments" and any expected tax liability under Section 4999 of the
Code shall be made by a nationally-recognized independent accounting firm
selected by the Executive and the Company. The fees and expenses of such
accounting firm shall be paid by the Company. The determination of such
accounting firm shall be final and binding on the parties. The Company
irrevocably agrees to pay to the Executive, in immediately available funds to an
account designated in writing by the Executive, any amounts to be paid under
this Section 9(c) within two business days after receipt by the Company of
written notice from the accounting firm which sets forth such accounting firm's
determination. In addition, in the event that such payments are not sufficient
to pay all excise taxes on "excess parachute payments" under Section 4999 of the
Code as a result of an acceleration of the vesting of options or for any other
reason and to place the Executive in the exact same financial position that he
would have been in if he had not incurred any expected tax liability under
Section 4999 of the Code as a result of a change in control, then the Company
shall have an absolute and unconditional obligation to pay the Executive such
additional amounts as may be necessary to pay such excise taxes and place the
Executive in the exact same financial position that he would have been had he
not incurred any tax liability as a result of a change in control under the
Code. Notwithstanding the foregoing, in the event that a written ruling (whether
public or private) of the Internal Revenue Service ("IRS") is obtained by or on
behalf of the Company or the Executive, which ruling expressly provides that the
Executive is not required to pay, or is entitled to a refund with respect to,
all or any portion of such excise taxes or additional amounts, the Executive
shall promptly reimburse the Company in an amount equal to all amounts paid to
the Executive pursuant to this Section 9 less any excise taxes or additional
amounts which remain payable by, or are not refunded to, the Executive after
giving effect to such IRS ruling. Each of the Company and the Executive agrees
to promptly notify the other party if it receives any such IRS ruling.
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10. Remedies. The Executive and Company agree that damages for breach
of any of the covenants under Sections 7 and 8 above will be difficult to
determine and inadequate to remedy the harm which may be caused thereby, and
therefore consent that these covenants may be enforced by temporary or permanent
injunction without the necessity of bond. The Executive believes, as of the date
of this Agreement, that the provisions of this Agreement are reasonable and that
the Executive is capable of gainful employment without breaching this Agreement.
However, should any court or arbitrator decline to enforce any provision of
Section 7 or 8 of this Agreement, this Agreement shall, to the extent applicable
in the circumstances before such court or arbitrator, be deemed to be modified
to restrict the Executive's competition with the Company to the maximum extent
of time, scope and geography which the court or arbitrator shall find
enforceable, and such provisions shall be so enforced.
11. Consulting Agreement. So long as this Agreement has not been
terminated by the Company or the Employee pursuant to Section 6, and the
Employee has complied with his obligations under this Agreement in all material
respects, on April 15, 2006, the Company shall offer the Employee a consulting
agreement. Such consulting agreement will expire on May 3, 2007. The Company
shall agree to pay the Employee's reasonable out-of-pocket expenses associated
with the performance of his direct obligations under such consulting agreement,
but shall not be entitled to any cash compensation from the Company during the
term of such consulting agreement. As sole consideration for the services
performed by the Employee under such consulting agreement, the Company shall
grant the Employee 300,000 restricted stock units. These restricted stock units
will vest on May 3, 2007 if the Employee continues to be engaged by the Company
as a consultant on May 2, 2007. Such consulting agreement shall be in form and
substance acceptable to the Company in all other respects.
12. Indemnification. The Company shall indemnify the Executive to the
full extent provided in the Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws and the law of the State of
Delaware in connection with his activities as an officer of the Company.
13. Entire Agreement. The provisions contained herein constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede the Employment Agreement, dated as of May 5, 2004, between the
parties hereto and any and all prior agreements, understandings and
communications between the parties, oral or written, with respect to such
subject matter.
14. Modification. Any waiver, alteration, amendment or modification of
any provisions of this Agreement shall not be valid unless in writing and signed
by both the Executive and the Company.
15. Severability. If any provision of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof, which shall
remain in full force and effect.
16. Assignment. The Executive may not assign any of his rights or
delegate any of his duties hereunder without the prior written consent of the
Company. The Company may not assign any of its rights or delegate any of its
obligations hereunder without the prior written
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consent of the Executive, except that any successor to the Company by merger or
purchase of all or substantially all of the Company's assets shall assume this
Agreement.
17. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the successors in interest of the Executive and the Company.
18. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed effective when delivered
personally or transmitted by facsimile transmission, one business day after
deposit with a nationally recognized overnight courier (with next day delivery
specified) and five days after mailing by registered or certified mail:
if to the Company:
Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
if to the Executive:
Xxxxx X. Xxxxx
Address on file at the offices
of the Company
or to such other person or address as either party shall furnish in writing to
the other party from time to time.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within the State of New York.
20. Non-Mitigation. The Executive shall not be required to mitigate
damages or seek other employment in order to receive compensation or benefits
under Section 6 or 9 of this Agreement; nor shall the amount of any benefit or
payment provided for under Section 6 or 9 of this Agreement be reduced by any
compensation earned by the Executive as the result of employment by another
employer.
21. Arbitration. (a) The Executive and the Company agree that if a
dispute arises concerning or relating to the Executive's employment with the
Company, or the termination of the Executive's employment, such dispute shall be
submitted to binding arbitration under the rules of the American Arbitration
Association regarding resolution of employment disputes in effect at the time
such dispute arises. The arbitration shall take place in New York, New York,
before a single experienced arbitrator licensed to practice law in New York and
selected in accordance with the American Arbitration Association rules and
procedures. Except as provided below, the Executive and the Company agree that
this arbitration procedure will be the exclusive
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means of redress for any disputes relating to or arising from the Executive's
employment with the Company or his termination, including disputes over rights
provided by federal, state, or local statutes, regulations, ordinances, and
common law, including all laws that prohibit discrimination based on any
protected classification. The parties expressly waive the right to a jury trial,
and agree that the arbitrator's award shall be final and binding on both
parties, and shall not be appealable. The arbitrator shall have discretion to
award monetary and other damages, and any other relief that the arbitrator deems
appropriate and is allowed by law. The arbitrator shall have the discretion to
award the prevailing party reasonable costs and attorneys' fees incurred in
bringing or defending an action, and shall award such costs and fees to the
Executive in the event the Executive prevails on the merits of any action
brought hereunder.
(b) The Company shall pay the cost of any arbitration proceedings under
this Agreement if the Executive prevails in such arbitration on at least one
substantive issue.
(c) The Company and the Executive agree that the sole dispute that is
excepted from Section 21(a) is an action seeking injunctive relief from a court
of competent jurisdiction regarding enforcement and application of Section 7, 8
or 10 of this Agreement, which action may be brought in addition to, or in place
of, an arbitration proceeding in accordance with Section 21(a).
22. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party.
23. Executive's Representation. The Executive hereby represents and
warrants to Company that he is not now under any contractual or other obligation
that is inconsistent with or in conflict with this Agreement or that would
prevent, limit, or impair the Executive's performance of his obligations under
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SIRIUS SATELLITE RADIO INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
Senior Vice President,
Human Resources
/s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Exhibit A
THIS OPTION HAS NOT BEEN REGISTERED UNDER STATE OR FEDERAL
SECURITIES LAWS. THIS OPTION MAY NOT BE TRANSFERRED EXCEPT
BY WILL OR UNDER THE LAWS OF DESCENT AND DISTRIBUTION.
AMENDED AND RESTATED SIRIUS SATELLITE RADIO
2003 LONG-TERM STOCK INCENTIVE PLAN
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT (this "Agreement"),
dated as of March 11, 2005 ("Date of Grant"), between SIRIUS SATELLITE RADIO
INC., a Delaware corporation (the "Company"), and XXXXX X. XXXXX (the
"Employee").
1. Grant of Option; Vesting. (a) Subject to the terms and conditions of
this Agreement and the Amended and Restated Sirius Satellite Radio 2003
Long-Term Stock Incentive Plan (as amended, the "Plan"), the Company hereby
grants to the Employee the right and option (this "Option") to purchase up to
one million eight hundred thousand (1,800,000) shares (the "Shares") of common
stock, par value $0.001 per share, of the Company at a price per share of $3.14,
the closing price of the Company's common stock on April 29, 2004 (the day the
Employee and the Compensation Committee of the Company agreed to the essential
terms of the Employee's employment with the Company) (the "Exercise Price").
This Option is not intended to qualify as an Incentive Stock Option for purposes
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). In
the case of any stock split, stock dividend or like change in the Shares
occurring after the date hereof, the number of Shares and the Exercise Price
shall be adjusted as set forth in Section 4(b) of the Plan.
(b) Subject to the terms of this Section 1(b), the right and option to
purchase up to six hundred thousand (600,000) Shares (the "2004 Performance
Options") shall vest and become exercisable on March 15, 2005.
(c) Subject to the terms of this Section 1(c), the right and option to
purchase up to seven hundred and fifty thousand (750,000) Shares (the "First
Tranche 2005 Performance Options") shall vest and become exercisable on April
15, 2007 if the Employee continues to be employed by the Company or engaged by
the Company as a consultant under a written consulting agreement on April 14,
2007. Notwithstanding anything to the contrary contained in the preceding
sentence, the First Tranche 2005 Performance Options shall vest on March 15,
2006 if and only if (i) the Employee continues to be employed by the Company on
March 14, 2006 and (ii) the Company satisfies performance criteria to be
established by the Board of Directors of the Company, or the Compensation
Committee thereof, for the year ending December 31, 2005. The Board of Directors
of the Company, or the Compensation Committee thereof, shall determine in
its sole discretion such performance criteria for the year ending December 31,
2005 and shall cause the Company to deliver to the Employee a notice setting
forth in reasonable detail such performance criteria.
(d) Subject to the terms of this Section 1(d), the right and option to
purchase up to four hundred and fifty thousand (450,000) Shares (the "Second
Tranche 2005 Performance Options") shall vest and become exercisable on April
15, 2007 if the Employee continues to be employed by the Company or engaged by
the Company as a consultant under a written consulting agreement on April 14,
2007. Notwithstanding anything to the contrary contained in the preceding
sentence, the Second Tranche 2005 Performance Options shall vest on April 16,
2006 if and only if (i) the Employee continues to be employed by the Company on
April 15, 2006 and (ii) the Company satisfies performance criteria to be
established by the Board of Directors of the Company, or the Compensation
Committee thereof, for the year ending December 31, 2005. The Board of Directors
of the Company, or the Compensation Committee thereof, shall determine in its
sole discretion such performance criteria for the year ending December 31, 2005
and shall cause the Company to deliver to the Employee a notice setting forth in
reasonable detail such performance criteria.
(e) If the Employee's employment with, or engagement as a consultant
to, the Company terminates for any reason, this Option, to the extent not then
vested, shall immediately terminate without consideration; provided that if the
Employee's employment or engagement as a consultant terminates (i) due to death
or Disability (as defined below), the unvested portion of this Option, to the
extent not previously canceled or forfeited, shall immediately become vested and
exercisable; or (ii) in the case of his employment, without Cause (as defined in
the Amended and Restated Employment Agreement, dated as of March 11, 2005 (the
"Employment Agreement"), between the Company and the Employee), or by the
Employee for Good Reason (as defined in the Employment Agreement), the unvested
portion of this Option, to the extent not previously canceled or forfeited,
shall vest in accordance with the terms of this Agreement, but any conditions
contained in this Agreement which would require the Employee to be an employee
of, or consultant to, the Company on a specified date shall have no force or
effect.
2. Term. This Option shall terminate on May 5, 2014; provided that if:
(a) the Employee's employment with, or engagement as a consultant to,
the Company is terminated due to the Employee's death or Disability, the
Employee may exercise the vested portion of this Option until one year following
the date of such termination, but no later than May 5, 2014;
(b) the Employee's employment with the Company is terminated for Cause,
the Employee may exercise the vested portion of this Option until ninety days
following the date of such termination, but no later than May 5, 2014;
(c) the Employee's employment is terminated without Cause or by the
Employee for Good Reason, the Employee may exercise the vested portion of this
Option, and any portion of this Option which may vest in the future in
accordance with the terms of this Agreement, until May 5, 2014;
(d) the Employee voluntarily terminates his employment with the Company
without Good Reason, the Employee may exercise the vested portion of this Option
until ninety days following the date of such termination, but not later than May
5, 2014; and
(e) the Employee's voluntarily terminates his engagement by the Company
as a consultant or his written consulting agreement expires in accordance with
its terms, the Employee may exercise the vested portion of this Option until
ninety days following the date of such termination or expiration, but not later
than May 5, 2014.
Subject to the terms of the Plan, if the Employee's employment or engagement as
a consultant to the Company is terminated by death, this Option shall be
exercisable only by the person or persons to whom the Employee's rights under
such Option shall pass by the Employee's will or by the laws of descent and
distribution of the state or county of the Employee's domicile at the time of
death. "Disability" shall mean the Employee is unable to perform the essential
duties and functions of his position because of a disability, even with a
reasonable accommodation, for one hundred eighty days within any three hundred
sixty-five day period. Upon making a determination of Disability, the Company
shall determine the date of the Employee's termination of employment. Subject to
the terms of the Plan, if the Employee's employment is terminated by Disability
under circumstance in which it is reasonable to conclude that the Employee does
not have the ability to exercise this Option, this Option shall be exercisable
by the person or persons who have been legally appointed to act in the name of
the Employee.
3. Exercise. Subject to Sections 1 and 2 of this Agreement and the
terms of the Plan, this Option may be exercised, in whole or in part, by means
of a written notice of exercise signed and delivered by the Employee (or, in the
case of exercise after death of the Employee, by the executor, administrator,
heir or legatee of the Employee, as the case may be, or, in the case of exercise
after the termination of the Employee as a result of a Disability under
circumstance in which it is reasonable to conclude that the Employee does not
have the ability to exercise this Option, by the person or persons who have been
legally appointed to act in the name of the Employee) to the Company at the
address set forth herein for notices to the Company. Such notice shall (a) state
the number of Shares to be purchased and the date of exercise, and (b) be
accompanied by payment of the Exercise Price in cash or such other method of
payment as may be permitted by Section 6(d) of the Plan, subject, in the case of
a broker-assisted exercise, to applicable law.
4. Non-transferable. This Option may not be transferred, assigned,
pledged or hypothecated in any manner (whether by operation of law or otherwise)
other than (a) by will or by the applicable laws of descent and distribution or
(b) in accordance with the provisions of Section 14(a)(iii) of the Plan, and
shall not be subject to execution, attachment or similar process. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or of
any right or privilege conferred hereby shall be null and void.
5. Withholding. Prior to delivery of the Shares purchased upon exercise
of this Option, the Company shall determine the amount of any United States
federal, state and local income tax, if any, which is required to be withheld
under applicable law and shall, as a condition of
exercise of this Option and delivery of certificates representing the Shares
purchased upon exercise of this Option, collect from the Employee or, subject to
such rules as may be established by the administrator of the Plan, from a broker
who has been instructed by the Employee to sell Shares deliverable upon exercise
of this Option, the amount of any such tax to the extent not previously
withheld.
6. Rights of the Employee. Neither this Option, the execution of this
Agreement nor the exercise of any portion of this Option shall confer upon the
Employee any right to, or guarantee of, continued employment by the Company, or
in any way limit the right of the Company to terminate employment of the
Employee at any time, subject to the terms of any written employment or similar
agreement between the Company and the Employee.
7. Professional Advice. The acceptance and exercise of this Option may
have consequences under federal and state tax and securities laws that may vary
depending upon the individual circumstances of the Employee. Accordingly, the
Employee acknowledges that the Employee has been advised to consult his or her
personal legal and tax advisor in connection with this Agreement and this
Option.
8. Agreement Subject to the Plan. The Option and this Agreement are
subject to the terms and conditions set forth in the Plan, which terms and
conditions are incorporated herein by reference. A copy of the Plan previously
has been delivered to the Employee. This Agreement, the Employment Agreement and
the Plan constitute the entire understanding between the Company and the
Employee with respect to this Option.
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to its
conflict of laws principles, and shall bind and inure to the benefit of the
heirs, executors, personal representatives, successors and assigns of the
parties hereto.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally or when telecopied
(with confirmation of transmission received by the sender), three business days
after being sent by certified mail, postage prepaid, return receipt requested or
one business day after being delivered to a nationally recognized overnight
courier with next day delivery specified to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
Company: Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Employee: Xxxxx X. Xxxxx
Address on file at the
office of the Company
Notices sent by email or other electronic means not specifically authorized by
this Agreement shall not be effective for any purpose of this Agreement.
11. Binding Effect. This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
12. Prior Agreement. This Agreement supersedes in all respects the
Stock Option Agreement, dated as of May 5, 2004 (the "Prior Agreement"), between
the Company and the Employee. Pursuant to the Prior Agreement the Employee was
awarded options to purchase 2,800,000 Shares, 1,000,000 of which vested and
became exercisable on the date of grant and were exercised and sold on December
3, 2004.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SIRIUS SATELLITE RADIO INC. EMPLOYEE
By:
------------------------ --------------------------
Xxxx X. Xxxxxxx Xxxxx X. Xxxxx
Senior Vice President,
Human Resources
Exhibit B
THE RSUs HAVE NOT BEEN REGISTERED UNDER STATE OR FEDERAL SECURITIES
LAWS. THE RSUs MAY NOT BE TRANSFERRED EXCEPT
BY WILL OR UNDER THE LAWS OF DESCENT AND DISTRIBUTION.
AMENDED AND RESTATED
SIRIUS SATELLITE RADIO 2003 LONG-TERM STOCK INCENTIVE PLAN
AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT
THIS AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT (this
"Agreement"), dated as of March 11, 2005, between SIRIUS SATELLITE RADIO INC., a
Delaware corporation (the "Company"), and XXXXX X. XXXXX (the "Employee").
1. Grant of RSUs. Subject to the terms and conditions of this
Agreement, the Company hereby grants one million one hundred sixty-seven
thousand (1,167,000) restricted share units ("RSUs") to the Employee. This grant
is made pursuant to the terms of the Amended and Restated Sirius Satellite Radio
2003 Long-Term Stock Incentive Plan (as amended, the "Plan"), which Plan is
incorporated herein by reference and made a part of this Agreement. Each RSU
represents the unfunded, unsecured right of the Employee to receive one share of
common stock, par value $.001 per share, of the Company (each, a "Share") on the
date or dates specified in this Agreement. Capitalized terms not otherwise
defined herein shall have the same meanings as in the Plan.
2. Dividends. If on any date while RSUs are outstanding the Company
shall pay any dividend on the Shares (other than a dividend payable in Shares),
the number of RSUs granted to the Employee shall, as of the record date for such
dividend payment, be increased by a number of RSUs equal to: (a) the product of
(x) the number of RSUs held by the Employee as of such record date, multiplied
by (y) the per Share amount of any cash dividend (or, in the case of any
dividend payable, in whole or in part, other than in cash, the per Share value
of such dividend, as determined in good faith by the Company), divided by (b)
the average closing price of a Share on the Nasdaq National Market on the twenty
trading days preceding, but not including, such record date. In the case of any
dividend declared on Shares that is payable in the form of Shares, the number of
RSUs granted to the Employee shall be increased by a number equal to the product
of (1) the aggregate number of RSUs held by the Employee on the record date for
such dividend, multiplied by (2) the number of Shares (including any fraction
thereof) payable as a dividend on a Share. In the case of any other change in
the Shares occurring after the date hereof, the number of RSUs shall be adjusted
as set forth in Section 4(b) of the Plan.
3. No Rights of a Stockholder. The Employee shall not have any rights
as a stockholder of the Company until the Shares have been registered in the
Company's register of stockholders.
4. Issuance of Shares subject to RSUs. (a) Subject to earlier issuance
pursuant to the terms of this Agreement or the Plan, on April 15, 2005, the
Company shall issue, or cause there to be transferred, to the Employee four
hundred thousand (400,000) Shares, representing an equal number of the RSUs
granted to the Employee under this Agreement, if the Employee continues to be
employed by the Company on April 14, 2005.
(b) Subject to earlier issuance pursuant to the terms of this Agreement
or the Plan, on April 15, 2006, the Company shall issue, or cause there to be
transferred, to the Employee seven hundred and sixty-seven thousand (767,000)
Shares, representing an equal number of the RSUs granted to the Employee under
this Agreement, if the Employee continues to be employed by the Company on April
14, 2006.
(c) If the Employee's employment with Company terminates for any
reason, the RSUs shall immediately terminate without consideration; provided
that if the Employee's employment terminates (i) due to death or Disability (as
defined below), the Company shall issue within 30 days, or cause there to be
transferred within 30 days, to the Employee or his estate Shares equal to the
unvested portion of the RSUs, to the extent not previously canceled or
forfeited, or (ii) without Cause (as defined in the Amended and Restated
Employment Agreement, dated as of March 11, 2005 (the "Employment Agreement"),
between the Company and the Employee), or by the Employee for Good Reason (as
defined in the Employment Agreement), the unvested portion of the RSUs, to the
extent not previously canceled or forfeited, shall vest in accordance with the
terms of this Agreement, but any conditions contained in this Agreement which
would require the Employee to be an employee of the Company on a specified date
shall have no force or effect. "Disability" shall mean the Employee is unable to
perform the essential duties and functions of his position because of a
disability, even with a reasonable accommodation, for one hundred eighty days
within any three hundred sixty-five day period. Upon making a determination of
Disability, the Company shall determine the date of the Employee's termination
of employment.
5. Term. This Agreement shall terminate on May 5, 2014.
6. Non-transferable. The RSUs may not be transferred, assigned, pledged
or hypothecated in any manner (whether by operation of law or otherwise) other
than by will or by the applicable laws of descent and distribution, and shall
not be subject to execution, attachment or similar process. Any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of RSUs or of any
right or privilege conferred hereby shall be null and void.
7. Withholding. Prior to delivery of the Shares pursuant to this
Agreement, the Company shall determine the amount of any United States federal,
state and local income tax, if any, which is required to be withheld under
applicable law and shall, as a condition of delivery of certificates
representing the Shares pursuant to this Agreement, collect from the Employee
the amount of any such tax to the extent not previously withheld.
8. Rights of the Employee. Neither this Agreement nor the RSUs shall
confer upon the Employee any right to, or guarantee of, continued employment by
the Company, or in any way limit the right of the Company to terminate the
employment of the Employee at any time, subject
to the terms of any written employment or similar agreement between the Company
and the Employee.
9. Professional Advice. The acceptance of the RSUs may have
consequences under federal and state tax and securities laws that may vary
depending upon the individual circumstances of the Employee. Accordingly, the
Employee acknowledges that the Employee has been advised to consult his or her
personal legal and tax advisor in connection with this Agreement and the RSUs.
10. Agreement Subject to the Plan. This Agreement and the RSUs are
subject to the terms and conditions set forth in the Plan, which terms and
conditions are incorporated herein by reference. A copy of the Plan previously
has been delivered to the Employee. This Agreement, the Employment Agreement and
the Plan constitute the entire understanding between the Company and the
Employee with respect to the RSUs.
11. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to its
conflict of laws principles, and shall bind and inure to the benefit of the
heirs, executors, personal representatives, successors and assigns of the
parties hereto.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally or when telecopied
(with confirmation of transmission received by the sender), three business days
after being sent by certified mail, postage prepaid, return receipt requested or
one business day after being delivered to a nationally recognized overnight
courier with next day delivery specified to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
Company: Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Employee: Xxxxx X. Xxxxx
Address on file at the
office of the Company
Notices sent by email or other electronic means not specifically authorized by
this Agreement shall not be effective for any purpose of this Agreement.
13. Binding Effect. This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
14. Prior Agreement. This Agreement supersedes in all respects the
Restricted Stock Unit Agreement, dated as of May 5, 2004 (the "Prior
Agreement"), between the Company and the Employee. Pursuant to the Prior
Agreement, the Employee was awarded 1,200,000 RSUs, 133,000 of which vested on
the date of grant.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SIRIUS SATELLITE RADIO INC. EMPLOYEE:
By:
------------------------ --------------------------
Xxxx X. Xxxxxxx Xxxxx X. Xxxxx
Senior Vice President,
Human Resources
Exhibit C
AGREEMENT AND RELEASE
This Agreement and Release, dated as of _________, 200_ (this
"Agreement"), is entered into by and between XXXXX X. XXXXX (the "Executive")
and SIRIUS SATELLITE RADIO INC., and its subsidiaries and affiliated companies
(collectively, the "Company").
The purpose of this Agreement is to completely and finally settle,
resolve, and forever extinguish all obligations, disputes and differences
arising out of the Executive's employment with and separation from Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the Executive and the Company hereby agree as
follows:
1. The Executive's employment with the Company is terminated as of
_____________, 200_ (the "Termination Date").
2. The Company and the Executive agree that the Executive shall be
provided severance pay and other benefits in accordance with the terms of
Section 6(f) of the Amended and Restated Employment Agreement, dated as of March
11, 2005 (the "Employment Agreement"), between the Executive and the Company;
provided that no such severance shall be paid if the Executive revokes this
Agreement pursuant to Section 4 below. The Executive acknowledges and agrees
that he is entering into this Agreement in consideration of such severance and
the Company's agreements set forth herein.
3. The Executive, for himself, and for his heirs, attorneys, agents,
spouse and assigns, hereby waives, releases and forever discharges the Company
and its predecessors, successors, and assigns, if any, as well as its and their
officers, directors and employees, stockholders, agents, servants,
representatives, and attorneys, and the predecessors, successors, heirs and
assigns of each of them (collectively "Released Parties"), from any and all
grievances, claims, demands, causes of action, obligations, damages and/or
liabilities of any nature whatsoever, whether known or unknown, suspected or
claimed, which the Executive ever had, now has, or claims to have against the
Released Parties, by reason of any act or omission occurring before the date
hereof, including, without limiting the generality of the foregoing, (a) any
act, cause, matter or thing stated, claimed or alleged, or which was or which
could have been alleged in any manner against the Released Parties prior to the
execution of this Agreement and (b) all claims for any payment under the
Employment Agreement; provided that nothing contained in this Agreement shall
affect the Executive's rights (i) to indemnification from the Company as
provided in the Employment Agreement or otherwise; (ii) to coverage under the
Company's insurance policies covering officers and director; (iii) to other
benefits which by their express terms extend beyond the Executive's termination
of employment; and (iv) under this Agreement. Without limiting the generality of
the foregoing, the Executive expressly releases the Released Parties from all
claims for discrimination, harassment and/or retaliation, under Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended,
the New York State Human Rights Law, as amended, as well as any and all claims
arising out of any alleged contract of employment, whether written, oral,
express or implied, or any other federal, state or local civil or human rights
or labor law, ordinances, rules, regulations, guidelines, statutes, common law,
contract or tort law, arising out of or relating to the Executive's employment
with and/or separation from the Company, and/or any events occurring prior to
the execution of this Agreement.
4. The Executive also specifically waives all rights or claims that he
has or may have under the Age Discrimination In Employment Act of 1967, 29
U.S.C. 'SS''SS' 621-634, as amended ("ADEA"). In accordance with the ADEA, the
Company specifically advises the Executive that: (1) he may and should consult
an attorney before signing this Agreement, (2) he has twenty-one (21) days to
consider this Agreement, and (3) he has seven (7) days after signing this
Agreement to revoke this Agreement.
5. The Company, for itself, and for its predecessors, successors, and
assigns, if any, as well as its and their officers, directors and employees,
stockholders, agents, servants, representatives, and attorneys, and the
predecessors, successors, heirs and assigns of each of them, hereby waives,
releases and forever discharges the Executive and his heirs, attorneys, agents,
spouse and assigns (collectively, "Executive Released Parties") from any and all
grievances, claims, demands, causes of action, obligations, damages and/or
liabilities of any nature whatsoever, which the Company ever had, now has, or
claims to have against the Executive Released Parties by reason of any act or
omission occurring before the date hereof including, without limiting the
generality of the foregoing, any act, cause, matter or thing stated, claimed or
alleged of which the Company has actual knowledge which was or could have been
alleged in any manner against the Executive Released Parties prior to the
execution of this Agreement.
6. This release does not affect or impair the Executive's rights with
respect to xxxxxxx'x compensation or similar claims under applicable law or any
claims under medical, dental, disability, life or other insurance arising prior
to the date hereof.
7. The Executive warrants that he has not made any assignment,
transfer, conveyance or alienation of any potential claim, cause of action, or
any right of any kind whatsoever, including but not limited to, potential claims
and remedies for discrimination, harassment, retaliation, or wrongful
termination, and that no other person or entity of any kind has had, or now has,
any financial or other interest in any of the demands, obligations, causes of
action, debts, liabilities, rights, contracts, damages, costs, expenses, losses
or claims which could have been asserted by the Executive against the Company.
8. The Executive shall not make any disparaging remarks about the
Company, or its officers, agents, employees, practices or products; provided
that the Executive may provide truthful and accurate facts and opinions about
the Company where required to do so by law. Neither the Company nor any of its
officers shall make any disparaging remarks, written or oral, about the
Executive; provided that the Company and its officers may provide truthful and
accurate facts and opinions about the Executive where required to do so by law.
The restrictions contained in this Section 8 shall be of no force and effect if
either the Company or any of its
officers or the Executive is required by law to offer facts or opinions
regarding the other.
9. The parties acknowledge that this Agreement is a settlement of
disputed potential claims and is not an admission of liability or of the
accuracy of any alleged fact or claim. The Company expressly denies any
violation of any federal, state, or local statute, ordinance, rule, regulation,
order, common law or other law in connection with the employment and termination
of employment of the Executive. The parties expressly agree that this Agreement
shall not be construed as an admission by any of the parties of any violation,
liability or wrongdoing, and shall not be admissible in any proceeding as
evidence of or an admission by any party of any violation or wrongdoing.
10. In the event of a dispute concerning the enforcement of this
Agreement, the finder of fact shall have the discretion to award the prevailing
party reasonable costs and attorneys' fees incurred in bringing or defending an
action, and shall award such costs and fees to the Executive in the event the
Executive prevails on the merits of any action brought hereunder.
11. The parties declare and represent that no promise, inducement, or
agreement not expressed herein has been made to them.
12. This Agreement in all respects shall be interpreted, enforced and
governed under the laws of the State of New York and any applicable federal laws
relating to the subject matter of this Agreement. The language of all parts of
this Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any of the parties. This Agreement
shall be construed as if jointly prepared by the Executive and the Company. Any
uncertainty or ambiguity shall not be interpreted against any one party.
13. This Agreement and the Employment Agreement contains the entire
agreement of the parties as to the subject matter hereof. No modification or
waiver of any of the provisions of this Agreement shall be valid and enforceable
unless such modification or waiver is in writing and signed by the party to be
charged, and unless otherwise stated therein, no such modification or waiver
shall constitute a modification or waiver of any other provision of this
Agreement (whether or not similar) or constitute a continuing waiver.
14. The Executive and the Company represent that they have been
afforded a reasonable period of time within which to consider the terms of this
Agreement, that they have read this Agreement, and they are fully aware of its
legal effects. The Executive and the Company further represent and warrant that
they enter into this Agreement knowingly and voluntarily, without any mistake,
duress or undue influence, and that they have been provided the opportunity to
review this Agreement with counsel of their own choosing. In making this
Agreement, each party relies upon his or its own judgment, belief and knowledge,
and has not been influenced in any way by any representations or statements not
set forth herein regarding the contents hereof by the entities who are hereby
released, or by anyone representing them.
15. The parties agree that this Agreement may be executed in
counterparts and as executed shall constitute one Agreement, binding on all
parties. The parties further agree that execution of this Agreement may be
accomplished by receipt of facsimile signatures of the parties. This Agreement
shall be of no force or effect until executed by all the signatories.
16. Should any provision of this Agreement be declared or be determined
by a forum with competent jurisdiction to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term, or provision shall be deemed not to be a part of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SIRIUS SATELLITE RADIO INC.
By:
-----------------------------
Name:
Title:
--------------------------------
Xxxxx X. Xxxxx
