Exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 5, 2004 (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 May 5, 2004 (the
"Start Date") and end on May 4, 2007, 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 $525,000 (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; provided that the Base
Salary shall at all times be not less than the base salary of the
2
Company's President, Entertainment and Sports. All amounts paid to the Executive
under this Agreement shall be in U.S. dollars. The Executive's base salary shall
be paid at least monthly and, at the option of the Company, may be paid more
frequently.
(b) On or before May 15, 2004, the Company shall pay the Executive a
one-time cash starting bonus of $150,000.
(c) On the date hereof, the Company shall grant to the Executive an
option to purchase 2,800,000 shares of the Company's common stock, par value
$.001 per share (the "Common Stock"), at an exercise price of $3.14 per share.
Such options shall be subject to the terms and conditions set forth in the
Option Agreement attached to this Agreement as Exhibit A. If during the Term the
Company awards the Company's President, Entertainment and Sports (as of the date
hereof, for all purposes under this Agreement), additional options to purchase
Common Stock, then the Executive shall be awarded at least an equal number of
options to purchase the Common Stock as has been awarded to the Company's
President, Entertainment and Sports, on terms and conditions no less favorable.
(d) On the date hereof, the Company shall grant to the Executive
1,200,000 restricted stock units. Such restricted stock units of Common Stock
shall be subject to the terms and conditions set forth in the Restricted Stock
Unit Agreement attached to this Agreement as Exhibit B. If during the Term the
Company awards the Company's President, Entertainment and Sports, additional
restricted stock units, then the Executive shall be awarded at least an equal
number of restricted stock units as has been awarded to the Company's President,
Entertainment and Sports, on terms and conditions no less favorable.
(e) The Company is in the process of developing a bonus program for the
year ending December 31, 2004. This program will include a variety of objective
milestones, such as number of subscriber activations, and is subject to approval
by the Board of Directors. This program may also include objectives specifically
applicable to the Executive and his specific areas of responsibility. The
performance objectives applicable to the Executive's bonuses under such plan
shall be no more onerous than the performance objectives applicable to the
Company's Chief Executive Officer and President, Entertainment and Sports. 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%
Without prejudice to the foregoing, the Executive shall be guaranteed a bonus of
not less than $262,500 for the year ending December 31, 2004, one-half of which
shall be paid in cash and one-half of which shall be paid in restricted stock
units which vest one year from the date of grant; provided that the bonus paid
to the Company's President, Entertainment and Sports, with respect to the year
ending December 31, 2004 is paid in the same proportion. The Company reserves
the right to pay any subsequent bonus in the form of cash, restricted stock,
other securities of the Company, or any combination of the foregoing, in its
sole discretion; provided
3
that the Executive's bonus shall be paid in cash, restricted stock and other
securities of the Company in the same proportions as the bonus paid to the
Company's other executive officers.
(f) 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 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
fully 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.
(c) During the Term, the Executive shall be entitled to participate in
all compensation and benefits programs, and perquisites (other than any
relocation allowance, or reimbursement of living and travel expenses), made
available to the Company's Chief Executive Officer or President, Entertainment
and Sports, and shall participate in amounts and on terms and conditions at
least as favorable as those offered to the Company's President, Entertainment
and Sports.
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 affiliates (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
4
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 affiliates;
(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 affiliates 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 of Directors,
renders the Executive unfit to serve as an officer of the Company or
its affiliates;
(vii) the Executive's failure to comply with the Board's
reasonable written instructions within five days; or
(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 or its affiliates, 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.
5
(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. 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
6
(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(f), 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 (or such
higher salary as may be required by Section 1(a)) for the period from the
Termination Date through May 4, 2007 (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, if the
Severance Period extends beyond eighteen months following the Termination Date,
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 for the remainder of the 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 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 during the remainder of the Severance Period; 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 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
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 for
financial reporting purposes 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 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
shorter of: (a) the Severance Period, and (b) one year following the end of the
Term.
8
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(f), 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 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 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
9
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.
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. Indemnification. The Company shall indemnify the Executive to the
full extent provided in the Company's Amended and Restated Articles of
Incorporation and Amended and
10
Restated Bylaws and the law of the State of Delaware in connection with his
activities as an officer of the Company.
12. Entire Agreement. The provisions contained herein constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede any and all prior agreements, understandings and communications
between the parties, oral or written, with respect to such subject matter.
13. 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.
14. 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.
15. 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 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.
16. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the successors in interest of the Executive and the Company.
17. 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.
11
18. 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.
19. 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.
20. 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 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 20(a) is an action seeking injunctive relief from a court
of competent jurisdiction regarding enforcement and application of Sections 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 20(a).
21. 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.
22. 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.
12
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.
SIRIUS SATELLITE RADIO 2003 LONG-TERM STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of May 5, 2004
("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 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 two million eight hundred
thousand (2,800,000) shares (the "Shares") of common stock, par value $0.001 per
share, of the Company at a price per share of $3.14 (the "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) The right and option to purchase up to one million (1,000,000)
Shares shall vest and be exercisable on the date hereof.
(c) Subject to the terms of this Section 1(c), the right and option to
purchase up to six hundred thousand (600,000) Shares (the "2004 Performance
Options") shall vest and become exercisable on July 1, 2008 if the Employee
continues to be employed by the Company on June 30, 2008. Notwithstanding
anything to the contrary contained in the preceding sentence, the 2004
Performance Options shall vest on March 15, 2005 if and only if (i) the Employee
continues to be employed by the Company on March 14, 2005 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, 2004. On or before June 30, 2004, 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, 2004 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 seven hundred and fifty thousand (750,000) Shares (the "2005
Performance Options") shall vest and
become exercisable on July 1, 2008 if the Employee continues to be employed by
the Company on June 30, 2008. Notwithstanding anything to the contrary contained
in the preceding sentence, the 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. On or before June 30,
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) Subject to the terms of this Section 1(e), the right and option to
purchase up to four hundred and fifty thousand (450,000) Shares (the "2006
Performance Options") shall vest and become exercisable on July 1, 2008 if the
Employee continues to be employed by the Company on June 30, 2008.
Notwithstanding anything to the contrary contained in the preceding sentence,
the 2006 Performance Options shall vest on March 15, 2007 if and only if (i) the
Employee continues to be employed by the Company on March 14, 2007 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, 2006. On or before June 30, 2006, 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, 2006 and
shall cause the Company to deliver to the Employee a notice setting forth in
reasonable detail such performance criteria.
(f) The performance criteria applicable to the 2004 Performance
Options, the 2005 Performance Options and the 2006 Performance Options shall be
no more onerous than the performance criteria applicable to the Company's Chief
Executive Officer and President, Entertainment and Sports.
(g) If the Employee's employment with 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 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) without Cause (as defined in the
Employment Agreement, dated as of May 5, 2004 (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 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 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; and
(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.
Subject to the terms of the Plan, if the Employee's employment 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.
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.
SIRIUS SATELLITE RADIO 2003 LONG-TERM STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (this "Agreement"), dated as of
May 5, 2004, 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 two hundred thousand
(1,200,000) restricted share units ("RSUs") to the Employee. This grant is made
pursuant to the terms of the 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) On the date hereof, the
Company shall issue,
or cause there to be transferred, to the Employee one hundred and thirty three
thousand (133,000) Shares, representing an equal number of the RSUs granted to
the Employee under this Agreement.
(b) 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 three hundred thousand (300,000) 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.
(c) 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 four hundred and fifty thousand (450,000) 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.
(d) Subject to earlier issuance pursuant to the terms of this Agreement
or the Plan, on April 15, 2007, the Company shall issue, or cause there to be
transferred, to the Employee three hundred and seventeen thousand (317,000)
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, 2007.
(e) 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 Employment Agreement, dated
as of May 5, 2004 (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.
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 Employment Agreement, dated as of May 5, 2004 (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
