AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This AMENDED AND RESTATED AGREEMENT is made as of April 18, 1997, and
amended as of July 18, 1997, by and between COMSAT Corporation ("COMSAT"),
a District of Columbia corporation, and ▇▇▇▇▇ Flower, a resident of the
Commonwealth of Virginia (the "Executive").
WHEREAS, the Executive serves as Vice President and Chief Financial
Officer of COMSAT;
WHEREAS, the Board of Directors of COMSAT (the "Board") believes it to
be in the best interests of COMSAT to enter into this Agreement to ensure
the Executive's continuing services to COMSAT; and
WHEREAS, COMSAT desires to continue to employ the Executive as Vice
President and Chief Financial Officer of COMSAT, and the Executive desires
to continue such employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, and intending to be legally bound hereby, COMSAT
and the Executive agree as follows:
1. EMPLOYMENT; DUTIES.
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(a) EMPLOYMENT AND EMPLOYMENT PERIOD. COMSAT shall employ the
Executive to serve as Vice President and Chief Financial Officer of COMSAT
or any successor entity for a period (the "Employment Period") commencing
on April 18, 1997 (the "Effective Date") and continuing thereafter until
April 17, 2000 unless terminated in accordance with the provisions of this
Agreement. Each 12-month period ending on the anniversary date of the
Effective Date is referred to herein as a "year of the Employment Period."
(b) OFFICES, DUTIES AND RESPONSIBILITIES. The Executive shall
report to the Chief Executive Officer of COMSAT. The Executive's offices
initially shall be located at COMSAT's present headquarters in Bethesda,
Maryland. The Executive shall have all duties and authority customarily
accorded a Vice President and Chief Financial Officer.
(c) DEVOTION TO INTERESTS OF COMSAT. During the Employment
Period, the Executive shall devote his best efforts and full business time
and attention to the performance of his duties hereunder. Notwithstanding
the foregoing, the Executive shall be entitled to undertake outside
activities (E.G. charitable, educational, personal interests, and board of
directors memberships) that do not compete with COMSAT and do not
unreasonably or materially interfere with the performance of his duties
hereunder as reasonably determined by the Chief Executive Officer in
consultation with the Executive.
2. COMPENSATION AND FRINGE BENEFITS.
(a) BASE COMPENSATION. COMSAT shall pay the Executive a base
salary ("Base Salary") during the Employment Period, with payments made in
installments in accordance with COMSAT's regular practice for compensating
executive personnel, provided that in no event shall such payments be made
less frequently than twice per month. The initial annual Base Salary shall
be $210,000. Thereafter, the Base Salary for the Executive shall be
reviewed for increases annually during the Employment period, consistent
with COMSAT's normal review process. Any Base Salary increases shall be
approved by the Board in its sole discretion.
(b) BONUS COMPENSATION. The Executive will be eligible to receive
bonuses ("Annual Bonus") during the Employment Period under the Annual
Incentive Plan (the "AIP") in accordance with the following parameters: (i)
the target bonus for each year during the Employment Period shall be 50% of
Base Salary for achieving 100% of the target level for the performance
measures and (ii) the performance measures, the relative weight to be
accorded each performance measure and the amount of bonus payable in
relation to the target bonus for achieving more or less than 100% of the
target level for the performance measures shall be determined for each year
during the Employment Period by the Committee on Compensation and
Management Development of the Board (the "Compensation Committee").
(c) FRINGE BENEFITS. The Executive shall be entitled to the
fringe benefits in effect for COMSAT senior executives from time to time,
including (i) participation in the COMSAT Directors and Executives Deferred
Compensation Plan, the COMSAT Split Dollar Insurance Plan, the COMSAT
Educational Grant Program, the COMSAT Retirement Plan, the COMSAT Savings
and Profit-Sharing Plan, the COMSAT 1995 Key Employee Stock Plan, the
COMSAT Employee Stock Purchase Plan, the COMSAT health and disability
insurance programs and the COMSAT financial planning program and (ii)
reimbursement of reasonable expenses incurred in connection with travel and
entertainment related to COMSAT's business and affairs. The Executive also
shall be entitled to such other or additional fringe benefits as are made
available to COMSAT senior executives during the Employment Period. COMSAT
reserves the right to modify or terminate at any time the fringe benefits
provided to the senior management group.
(d) SERP. The Executive shall continue to participate in the
COMSAT Insurance and Retirement Plan for Executives (the "SERP"). Any
future amendments or changes to the SERP which provide for a reduction,
deferral or elimination of benefits payable to participants in the SERP
shall expressly not apply to the Executive unless the Executive consents
otherwise.
(e) LEGAL EXPENSES. The Executive shall be entitled to
reimbursement of the Executive's reasonable legal fees and costs incurred
in connection with the negotiation and execution of this Agreement, subject
to a maximum reimbursement of $5,000.
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3. TRADE SECRETS; RETURN OF DOCUMENTS AND PROPERTY.
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(a) The Executive acknowledges that during the course of his
employment he will receive secret, confidential and proprietary information
("Trade Secrets") of COMSAT and of other companies with which COMSAT does
business on a confidential basis and that the Executive will create and
develop Trade Secrets for the benefit of COMSAT. Trade Secrets shall
include, without limitation, matters of a technical nature, such as
scientific and engineering secrets, "know-how," formulae, secret processes
or machines, inventions and computer programs (including documentation of
such programs), and matters of a business nature, such as customer data and
proprietary information about costs, profits, markets, sales and customer
databases, and other information of a similar nature to the extent not
available to the public, and plans for future development. All Trade
Secrets disclosed to or created by the Executive shall be deemed to be the
exclusive property of COMSAT. The Executive acknowledges that Trade Secrets
have economic value to COMSAT due to the fact that Trade Secrets are not
generally known to the public or the trade and that the unauthorized use or
disclosure of Trade Secrets is likely to be detrimental to the interests of
COMSAT and its subsidiaries. The Executive therefore agrees to hold in
strict confidence and not to disclose to any third party any Trade Secret
acquired or created or developed by the Executive during the term of this
Agreement except (i) when the Executive uses o discloses any Trade Secret
in the proper course of the Executive's rendition of services to COMSAT
hereunder, (ii) when such Trade Secret becomes public knowledge other than
through a breach of this Agreement, or (iii) when the Executive is required
to disclose any Trade Secret pursuant to any valid legal process. The
Executive shall notify COMSAT immediately of any such legal process in
order to enable COMSAT to contest such legal process's validity. After
termination of this Agreement, the Executive shall not use or otherwise
disclose Trade Secrets unless such information (x) becomes public knowledge
other than through a breach of this Agreement, (y) is disclosed to the
Executive by a third party who is entitled to receive and disclose such
Trade Secret, or (z) is required to be disclosed pursuant to any valid
legal process, in which case the Executive shall notify COMSAT immediately
of any such legal process in order to enable COMSAT to contest such legal
process's validity.
(b) Upon the effective date of notice of the Executive's or
COMSAT's election to terminate this Agreement, or at any time upon the
request of COMSAT, the Executive (or his heirs or personal representatives)
shall deliver to COMSAT (i) all documents and materials containing or
otherwise relating to Trade Secrets or other information relating to
COMSAT's business and affairs, and (ii) all documents, materials and other
property belonging to COMSAT, which in either case are in the possession or
under the control of the Executive (or his heirs or personal
representatives). The Executive shall be entitled to keep his personal
records (including Rolodex) relating to COMSAT's business and affairs
except to the extent those contain documents or materials described in
clause (i) of the preceding sentence.
4. DISCOVERIES AND WORKS. All discoveries and works made or conceived
by the Executive during his employment by COMSAT pursuant to this
Agreement, jointly or with others, that relate to COMSAT's activities
("Discoveries and Works") shall be owned by COMSAT. Discoveries and Works
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shall include, without limitation, inventions, computer programs (including
documentation of such programs), technical improvements, processes,
drawings and works of authorship. The Executive shall (a) promptly notify,
make full disclosure to, and execute and deliver any documents requested
by, COMSAT to evidence or better assure title to such Discoveries and Works
in COMSAT, (b) assist COMSAT in obtaining or maintain for itself at its own
expense United States and foreign patents, copyrights, trade secret
protection or other protection of any and all such Discoveries and Works,
and promptly execute, whether during his employment by COMSAT or
thereafter, all applications or other endorsements necessary or appropriate
to maintain patents and other rights for COMSAT and to protect its title
thereto. Any Discoveries and Works which, within six months after the
termination of the Executive's employment by COMSAT, are made disclosed,
reduced to a tangible or written form or description, or are reduced to
practice by the Executive and which pertain to work performed by the
Executive while with COMSAT shall, as between the Executive and COMSAT, be
presumed to have been made during the Executive's employment by COMSAT.
5. TERMINATION. This Agreement shall remain in effect during the
Employment Period, and this Agreement and Executive's employment with
COMSAT may be terminated only as follows:
(a) The Executive's employment may be terminated by the Executive
at any time upon 45 days advance written notice to COMSAT for "Good Reason"
(as defined below). In such event, or if the Executive's employment is
terminated by COMSAT without "Cause" (as defined below), the Executive
shall be entitled to receive the following benefits until the later of (x)
one year after the date of the Executive's termination of employment or (y)
April 17, 2000:
(i) The Executive's Base Salary in effect at the date of
termination;
(ii) An Annual Bonus equal to 50% of his then current Base
Salary; and
(iii) All benefits provided pursuant to Sections 2(c) and (d) of
this Agreement, which shall be deemed to vest fully and immediately if
subject to vesting; provided, however, that in the event COMSAT is
precluded from providing coverage under any such benefit plan by applicable
law or regulation, COMSAT may provide the Executive with a payment equal to
the cost of such coverage without regard to tax effect. The foregoing
benefits shall be calculated in accordance with the provisions of the
applicable plans as if the Executive had retired on his date of
termination, provided that the Board reserves the discretion to waive the
applicable early retirement reduction under the SERP in such event.
(b) "Good Reason" shall mean the occurrence of any of the
following (other than for "Cause"), without the Executive's express written
consent: (i) the assignment to the Executive of duties inconsistent with
the Executive's status as an executive officer of COMSAT or a substantial
reduction by COMSAT of the Executive's responsibilities as an executive
officer of COMSAT; (ii) any relocation of the Executive's offices outside
the Washington, D.C. metropolitan area by COMSAT prior to the third
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anniversary of the Effective Date; or (iii) any material default of the
provisions of Section 2 of this Agreement which continues for 20 business
days following COMSAT's receipt of written notice from the Executive
specifying the manner in which COMSAT is in default of such provisions. In
order for the Executive to terminate employment for "Good Reason," the
Executive must give COMSAT written notice of his termination of employment
for "Good Reason," stating the basis for the termination, within 90 days
after the Executive learns of the occurrence of the event constituting
"Good Reason."
(c) The Executive's employment may be terminated by COMSAT for
Cause at any time upon ten days written notice to the Executive, and after
giving the Executive an opportunity to discuss such decision with the
Board. For purposes of this Agreement, COMSAT shall have "Cause" to
terminate the Executive's employment hereunder upon (i) the continued and
deliberate failure of the Executive to perform his material duties, in a
manner substantially consistent with the manner reasonably prescribed by
the Board and in accordance with the terms of this Agreement (other than
any such failure resulting from his incapacity due to physical or mental
illness), which failure continues for 20 business days following the
Executive's receipt of written notice from the Board specifying the manner
in which the Executive is in default of his duties, (ii) the engaging by
the Executive in intentional serious misconduct that is materially and
demonstrably injurious to COMSAT or its reputation, which misconduct, if it
is reasonably capable of being cured, is not cured by the Executive within
20 business days following the Executive's receipt of written notice from
the Board specifying the serious misconduct engaged in by the Executive,
(iii) the conviction of the Executive of commission of a felony, whether or
not such felony was committed in connection with COMSAT's business, or (iv)
any material breach by the Executive of Section 10 hereof, which breach, if
it is reasonably capable of being cured, i not cured by the Executive
within 20 business days following the Executive's receipt of written notice
from the Board specifying the breach of Section 10 by the Executive. If
COMSAT shall terminate the Executive's employment for "Cause," COMSAT, in
full satisfaction of all of COMSAT's obligations under this Agreement and
in respect of the termination of the Executive's employment with COMSAT,
shall pay the Executive his Base Salary and any other compensation,
benefits and reimbursements due him under COMSAT plans through the date of
termination of his employment.
(d) If, prior to the expiration or termination of the Employment
Period, the Executive shall have been unable to perform substantially his
duties by reason of disability or impairment of health for at least six
consecutive calendar months, COMSAT shall have the right to terminate this
Agreement by giving 60 days written notice to the Executive to that effect,
but only if at the time such notice is given such disability or impairment
is still continuing. Following the expiration of the notice period, the
Employment Period shall terminate with the payment of the Executive's Base
Salary for the month in which notice is given and a prorated Annual Bonus
through such month. In the event of a dispute as to whether the Executive
is disabled within the meaning of this Section 5(d), or the duration of any
disability, either party may request a medical examination of the Executive
by a doctor appointed by the Chief of Staff of a hospital selected by
mutual agreement of the parties, or as the parties may otherwise agree, and
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the written medical opinion of such doctor shall be conclusive and binding
upon the parties as to whether the Executive has become disabled and the
date when such disability arose. The cost of any such medical examinations
shall be borne by COMSAT. In no event shall this Agreement terminate before
COMSAT's long-term disability benefits under applicable plans become
payable to the Executive.
(e) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, COMSAT shall pay to the Executive's estate
his Base Salary and a prorated Annual Bonus through the end of the month in
which the Executive's death occurred, at which time the Employment Period
shall terminate without further notice.
(f) If COMSAT elects not to renew the Executive's employment with
COMSAT at the end of the Employment Period and the Executive terminates
employment at the end of the Employment Period, the Executive shall be
entitled to receive the payments described in Section 5(a)(i), (ii) and
(iii) for the period beginning on the date of the Executive's termination
of employment and ending one year after the Executive's termination of
employment.
(g) If either the Executive or COMSAT elects not to renew the
Executive's employment with COMSAT at the end of the Employment Period, the
Executive shall be entitled to receive payments under the SERP beginning on
May 1, 2000 (the first day of the month after the end of such period),
calculated in accordance with the provisions of the SERP based on the
Executive's retirement on that date, provided that the Board reserves the
discretion to waive the applicable early retirement reduction under the
SERP in such event. If the Executive's employment with COMSAT under this
Agreement is terminated either by the Executive for Good Reason or by
COMSAT without Cause before the Executive attains age 55, the Executive
shall be entitled to receive payments under the SERP beginning on December
1, 1998 (the first day of the month after the Executive's 55th birthday),
calculated in accordance with the provisions of the SERP as if the
Executive retired on that date, provided that the Board reserves the
discretion to waive the applicable early retirement reduction under the
SERP in such event. If the Executive dies before payments begin under the
SERP, the Executive's surviving spouse, if any, shall receive under the
SERP a $200,000 lump sum death benefit, plus annual benefit payments for a
ten year period equal to 50% of the Executive's accrued benefit under the
SERP, according to the terms of the SERP. The provisions of this Section
5(g) shall be administered consistent with the terms of the SERP.
(h) If the Executive voluntarily terminates employment with
COMSAT, such termination shall not be considered a breach of this Agreement
by the Executive and shall not adversely affect the Executive's right to
receive such benefits as may be payable to the Executive on account of his
termination of employment under applicable COMSAT plans. The Executive
shall remain obligated to comply with the provisions of Sections 3, 4, 10
and 12 of this Agreement.
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6. CHANGE OF CONTROL. If a change of control (as defined for purposes
purposes of COMSAT's benefit plans) occurs during the Employment Term, the
change of control shall not adversely affect any of the Executive's rights
under this Agreement, and this Agreement shall continue in effect according
to its terms. In the event of a change of control, the Executive shall be
entitled to vesting and payment of benefits according to the terms of this
Agreement or COMSAT's applicable plans, whichever is more favorable.
7. CERTAIN ADDITIONAL PAYMENTS.
(a) Notwithstanding anything in this Agreement to the contrary,
in the event that it shall be determined that any payment or benefit to the
Executive, whether pursuant to the terms of this Agreement or otherwise (a
"Payment"), would constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), the Executive shall be paid an additional amount (a "Gross-Up
Payment") such that the net amount retained by the Executive after
deduction of any excise tax imposed under Section 4999 of the Code, and any
federal, state and local income and employment taxes and excise tax,
including any interest and penalties with respect thereto, imposed upon the
Gross-Up Payment shall be equal to the Payment. For purposes of determining
the amount of the Gross-Up Payment, the Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal rate of
federal income and employment taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive's residence on the date the Payment is made, net of the reduction
in federal income taxes that the Executive may obtain from the deduction of
such state and local income taxes.
(b) All determinations to be made under this Section 7 shall be
made by COMSAT's independent public accountant immediately prior to the
date the Payment is made (the "Accounting Firm"), which firm shall provide
its determinations and any supporting calculations and workpapers both to
COMSAT and the Executive within 10 days of such date. Any such
determination by the Accounting Firm shall be binding upon COMSAT and the
Executive. Within five days after receipt of the Accounting Firm's
determination, COMSAT shall pay to the Executive the Gross-Up Payment
determined by the Accounting Firm.
(c) In the event that upon any audit by the Internal Revenue
Service, or by a state or local taxing authority, of a Payment or Gross-Up
Payment, a change is finally determined to be required in the amount of
taxes paid by the Executive, appropriate adjustments shall be made under
this Section such that the net amount which is payable to the Executive
after taking into account the provisions of Section 4999 of the Code and
any interest and penalties shall reflect the intent of the partie as
expressed in paragraph (a) above, in the manner determined by the
Accounting Firm. The Executive shall notify COMSAT in writing of any claim
by the Internal Revenue Service that, if successful, would require the
payment by COMSAT of a Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise COMSAT of
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the nature of such claim and the date on which such claim is requested to b
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to COMSAT
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If COMSAT notifies the Executive in writing
prior to the expiration of such period that it desires to contest such
claim, the Executive shall: (i) give COMSAT any information reasonably
requested by COMSAT relating to such claim; (ii) take such action i
connection with contesting such claim as COMSAT shall reasonably request in
writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably
selected by COMSAT; (iii) cooperate with COMSAT in good faith in order
effectively to contest such claim; and (iv) permit COMSAT to participate in
any proceedings relating to such claim; PROVIDED, HOWEVER, that COMSAT
shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any
excise tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this
Section 7, COMSAT shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as COMSAT shall
determine. COMSAT's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in paragraphs (b) and (c) above
shall be borne solely by COMSAT. COMSAT agrees to indemnify and hold
harmless the Accounting Firm from any and all claims, damages and expenses
resulting from or relating to its determinations pursuant to paragraphs (b)
and (c) above, except for claims, damages or expenses resulting from the
gross negligence or willful misconduct of the Accounting Firm.
8. SURVIVORSHIP. The respective rights and obligations of the parties
hereunder shall survive any termination of the Executive's employment and
the Employment Term to the extent necessary to the intended preservation of
such rights and obligations.
9. MITIGATION AND NO OFFSETS. The Executive shall not be required to
mitigate the amount of any payment or benefit provided for in this
Agreement by seeking other employment or otherwise and there shall be no
offset against amounts due the Executive under this Agreement on account of
any remuneration attributable to any subsequent employment that he may
obtain. COMSAT's obligations to make payments under this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
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recoupment, defense or other right which COMSAT may have against the
Executive or others.
10. NON-COMPETITION.
(a) NON-COMPETITION AGREEMENT. As an inducement for COMSAT to
enter into this Agreement, the Executive agrees that, during the
Non-Competition Period (as defined below), the Executive shall not, without
the prior written consent of the Board, engage or participate, directly or
indirectly, as principal, agent, employee, employer, consultant,
stockholder, partner or in any other individual capacity whatsoever, in the
conduct or management of, or own any stock or any other equity investment
in or debt of, any business which is competitive with any business
conducted by COMSAT. The Non-Competition Period is the period commencing as
of the Effective Date and running through the date that is one year
following the date on which the Executive's employment with COMSAT
terminates for any reason.
(b) COMPETITIVE BUSINESS. For the purpose of this Agreement, a
business shall be considered to be competitive with any business of COMSAT
only if such business is engaged in providing services or products (i)
comparable to or competitive with (A) any service or product currently
provided by COMSAT during the Employment Period; (B) any service or product
which evolves from or results from enhancements in the ordinary course
during the Non-Competition Period to the services or products provided by
COMSAT as of the date hereof or during the Employment Period; or (C) any
future service or product of COMSAT as to which the Executive materially
and substantially participated in the development or enhancement, and (ii)
to customers, distributors or clients of the type served by COMSAT during
the Non-Competition Period.
(c) NON-SOLICITATION OF EMPLOYEES. During the Non-Competition
Period, the Executive will not (for his own benefit or for the benefit of
any person or entity other than COMSAT) solicit, or assist any person or
entity other than COMSAT to solicit, any officer, director, executive or
employee (other than an administrative or clerical employee) of COMSAT to
leave his or her employment.
(d) REASONABLENESS; INTERPRETATION. The Executive acknowledges
and agrees, solely for purposes of determining the enforceability of this
Section 10 (and not for purposes of determining the amount of money damages
or for any other reason), that (i) the markets served by COMSAT are
national and international and are not dependent on the geographic location
of executive personnel or the businesses by which they are employed; (ii)
the length of the Non-Competition Period is linked to the term of the
Employment Period; and (iii) the above covenants are manifestly reasonable
on their face, and the parties expressly agree that such restrictions have
been designed to be reasonable and no greater than is required for the
protection of COMSAT. In the event that the covenants in this Section 10
shall be determined by any court of competent jurisdiction in any action to
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be unenforceable by reason of their extending for too great a period of
time or over too great a geographical area or by reason of their being too
extensive in any other respect, they shall be interpreted to extend only
over the maximum period of time for which they may be enforceable, and/or
over the maximum geographical area as to which they may be enforceable
and/or to the maximum extent in all other respects as to which they may be
enforceable, all as determined by such court in such action.
(e) INVESTMENT. Nothing in this Agreement shall be deemed to
prohibit the Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive with COMSAT,
provided that such investments (i) are passive investments and constitute
five percent or less of the outstanding equity securities of such an entity
the equity securities of which are traded on a national securities exchange
or other public market, or (ii) are approved by the Board.
11. INDEMNIFICATION; LIABILITY INSURANCE. The Executive shall be
entitled to indemnification and coverage under COMSAT's liability insurance
policy for officers to the same extent as other officers of COMSAT. In
addition, the Executive shall be indemnified to the maximum extent
permitted by law of the jurisdiction in which COMSAT is incorporated, as it
may be amended from time to time.
12. ENFORCEMENT.
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(a) The Executive acknowledges that a breach of the covenants or
provisions contained in Sections 3, 4 and 10 of this Agreement will cause
irreparable damage to COMSAT, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive agrees that if the Executive
breaches or threatens to breach any of the covenants or provisions
contained in Sections 3, 4 and 10 of this Agreement, in addition to any
other remedy which may be available at law or in equity, COMSAT shall be
entitled to seek specific performance and injunctive relief in a court of
competent jurisdiction after notice and a hearing.
(b) The parties expressly agree that any litigation directly or
indirectly arising out of or relating to this Agreement, including an
action brought by COMSAT pursuant to this Section 12, shall be brought in a
court of competent jurisdiction in the State of Maryland.
13. EXPENSES OF ENFORCING THE AGREEMENT. If the Executive brings an
action to enforce any of the obligations of COMSAT under this Agreement and
prevails on any material issue, COMSAT shall pay the Executive on demand
the amount necessary to reimburse the Executive in full for all reasonable
expenses (including reasonable attorneys' fees and legal expenses) incurred
by the Executive in enforcing the obligations of COMSAT under this
Agreement.
14. SEVERABILITY. Should any provision of this Agreement be
determined to be unenforceable or prohibited by any applicable law, such
provision shall be ineffective to the extent, and only to the extent, of
such unenforceability or prohibition without invalidating the balance of
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such provision or any other provision of this Agreement, and any such
unenforceability or prohibition in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. ASSIGNMENT. The Executive's rights and obligations under this
Agreement shall not be assignable by the Executive. COMSAT's rights and
obligations under this Agreement shall not be assignable by COMSAT except
as incident to the transfer, by merger or otherwise, of all or
substantially all of the business of COMSAT. In the event of any such
assignment by COMSAT, all rights of COMSAT hereunder shall inure to the
benefit of the assignee, provided that all references herein to COMSAT
shall be deemed to refer with equal force and effect to any corporate or
other successor of COMSAT.
16. NOTICES. All notices and other communications which are required
or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method, provided that in such case it shall also be sent by certified or
registered mail, return receipt requested; the day after it is sent, if
sent for next day delivery to a domestic address by recognized overnight
delivery service (E.G., Federal Express); and upon receipt, if sent by
certified or registered mail, return receipt requested. Unless otherwise
changed by notice, in each case notice shall be sent to:
If to the Executive, addressed to:
▇▇▇▇▇ ▇. Flower
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy (not constituting notice) to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to COMSAT, addressed to:
COMSAT Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy (not constituting notice) to:
COMSAT Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
17. MISCELLANEOUS. This Agreement constitutes the entire agreement,
and supersedes all prior agreements, of the parties hereto relating to the
subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained herein. No
amendment, supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by the party to be bound thereby. The
validity, interpretation, performance and enforcement of the Agreement
shall be governed by the laws of the State of Maryland without giving
effect to conflicts of laws principles thereof. The headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. The waiver by any party of a
breach of any term or condition of this Agreement by the other party shall
not operate as nor be construed as a waiver of any subsequent breach
thereof or a waiver of a breach of any other term or condition o this
Agreement. This Agreement may be signed in two or more counterparts, each
of which shall constitute an original but all of which together shall form
only a single instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of July 18, 1997.
/s/ A. E. Flower
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▇▇▇▇▇ Flower, Executive
COMSAT Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
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