Exhibit 10.1
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT is entered into as of July 1, 1998, by and
between PRIMESTAR, Inc., a Delaware corporation (the "Company") and CARL VOGEL
("Executive").
Recitals
A. The Company wishes to secure the services of Executive as its Chairman
and Chief Executive Officer on a full-time basis for the period to and including
June 30, 2001.
B. Executive is willing to provide such services on and subject to the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and Executive hereby incorporate by
reference and agree to the accuracy of the above recitals and further agree as
follows:
1. Term.
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The Company shall employ Executive and Executive accepts such employment
for a term beginning July 1, 1998 and ending June 30, 2001 upon the terms and
conditions set forth herein, unless earlier terminated in accordance with the
provisions of this Employment Agreement. Each party shall deliver notice to the
other of its/his intent to renew or extend the term of employment by no later
than December 31, 2000.
2. Duties and Non-Competition.
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2.1 Duties. The Company shall, during the term of employment, employ
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Executive, and Executive shall serve, as Chairman of the Board and Chief
Executive Officer of the Company. Executive's election as a director of the
Company, and as Chairman of the Board, shall become effective upon adoption of
such a resolution by the Company's Board of Directors, which shall occur as soon
after execution of this Agreement as is practical. During the term of
employment, Executive shall report directly and solely to the Company's Board of
Directors ("Board"). Executive shall have the authority, functions, duties,
powers and responsibilities normally associated with such position. Executive
agrees, subject to his election as such and without additional compensation, to
serve during the term of employment in such particular
additional offices of comparable stature and responsibility in the Company and
its subsidiaries as the Board may designate, and to serve as a director and as a
member of any committee of the Board of Directors of the Company and its
subsidiaries, to which he may be elected from time to time. During the term of
employment, (i) Executive's services shall be rendered on a substantially full-
time, exclusive basis, (ii) Executive will apply on a full-time basis (subject
to Section 10 hereof) all of his skill and experience to the performance of his
duties in such employment, and (iii) unless Executive otherwise consents, the
performance of his services shall be in the Denver metropolitan area, subject to
such reasonable travel as the performance of his duties in the business of the
Company may require.
2.2 Non-Competition. Subject to Section 10 hereof, at all times during
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the term of employment, and for a period of one year following the termination
of the term of employment pursuant to the provisions of Section 4.1, Executive
shall not, directly or indirectly, without the prior written consent of a
majority of the Board of Directors of the Company, render any services to any
other person or entity, or acquire any interest of any type in any other entity,
that is engaged, in whole or in part, either directly or indirectly, in the
ownership or operation of any business delivering multi-channel television
programming in the United States by direct broadcast satellite ("DBS");
provided, however, that the foregoing shall not be deemed to prohibit Executive
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from acquiring, solely as an investment and through market purchases, securities
of any corporation which are registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and which are
publicly traded, so long as he is not part of any control group of such
corporation and such securities, if converted, do not constitute more than one
percent (1%) of the outstanding voting power of that public company. The
foregoing limitation of ownership interest shall not apply to Executive's
present ownership interest in Star Choice Communications, a Canadian direct
broadcast satellite company.
3. Compensation.
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3.1 Base Salary. The Company shall pay or cause to be paid to
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Executive, during the term of employment, a base salary at the rate of not less
than (i) $450,000 per annum during the period from July 1, 1998 to June 30,
1999, (ii) $475,000 from July 1,1999 to June 30, 2000, and (iii) $500,000 from
July 1, 2000 to June 30, 2001 ("Base Salary"). Base Salary shall
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be payable in monthly or more frequent installments in accordance with the
Company's regular payroll practices for senior executives.
3.2 Reimbursement. The Company shall pay or reimburse Executive for
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all reasonable expenses actually incurred or paid by Executive during the term
of employment in the performance of his services hereunder upon presentation of
expense statements or vouchers or such other supporting information as the
Company may customarily require of its senior executives.
3.3 No Anticipatory Assignments. Except as specifically
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contemplated hereunder, neither Executive nor any legal representative or
beneficiary designated by him shall have any right, without the prior written
consent of the Company, to assign, transfer, pledge, hypothecate, anticipate or
commute any payment due in the future to such person pursuant to any provision
of this Agreement, and any attempt to do so shall be void and will not be
recognized by the Company.
3.4. Stock Options. No later than December 1, 1998, the Company
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will grant Executive options to purchase 2,000,000 shares of the Company's Class
A common stock (the "Common Stock") at a purchase price equal to the closing
price per share of the Company's stock on November 13, 1998 (the "Options"),
which Options shall vest and become exercisable at the rate of 1/3 on the date
which is 12 months following execution hereof and an additional 1/3 each 12
months thereafter. In the event the Company terminates Executive's employment
without cause, or in the event Executive terminates his employment pursuant to
Section 5.1 or 5.2 of this Agreement, all of the Options shall become vested at
the time of such termination and shall remain exercisable (but not beyond the
expiration of the option term) for a period of three years following the date
notice of any such termination is given. A separate Option Agreement consistent
with the terms of this Section 3.4 will be entered into between Executive and
the Company. Notwithstanding any provision to the contrary in the PRIMESTAR,
Inc. 1998 Incentive Plan (the "Plan") or any option agreement related to the
Plan, Executive's Options shall not expire or otherwise terminate upon the
occurrence of an Approved Transaction, Board Change or Control Purchase, as such
terms are defined in the Plan.
3.5 Bonus. In addition to Base Salary, Executive shall be eligible
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to receive an annual cash bonus with respect to the prior calendar year based on
the performance of the
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Company and of Executive. Executive's target bonus shall be 75% of Executive's
Base Salary (or pro-rata portion of such Base Salary in case of partial years),
but Executive acknowledges that his actual bonus will vary depending upon the
performance of the Company and Executive, up to a maximum bonus of 150% of Base
Salary. The Company may increase, but not decrease, the target bonus at any time
and from time to time. The Company's determination of the amount, if any, of the
annual bonuses to be paid to Executive under this Agreement shall be final and
conclusive. Payments of bonus compensation under this Section 3.2 shall be made
in accordance with the Company's then current practices and policies.
4. Termination by Company.
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4.1 Termination by Company For Cause. The Company may terminate
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Executive's employment and all of the Company's obligations hereunder, other
than its obligations set forth below in this Section 4.1, for cause. As used in
this Section 4.1, "cause" shall mean (a) Executive's conviction (treating a nolo
contendere plea as a conviction) of a felony (whether or not any right to appeal
has been or may be exercised), (b) Executive's willful and continuing refusal
without proper cause to perform his material obligations under this Agreement,
or (c) Executive's willful, material and continuing breach of any of the
covenants provided for in Section 2.2 or Section 9. Such termination shall be
effected by written notice thereof delivered by the Company to Executive and
shall be effective as of the date of such notice; provided, however, that the
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termination shall not be effective if (i) such termination is because of
Executive's breach of his obligations set forth in section 9, or the second
paragraph of Section 2 of this Agreement, and (ii) such notice is the first such
notice of termination delivered by the Company to Executive hereunder, and (iii)
within 30 days following the date of such notice Executive shall cure the
breach.
In the event of termination by the Company for cause in accordance with the
foregoing procedures, without prejudice to any other rights or remedies that the
Company may have at law or equity, the Company shall have no further obligations
to Executive other than (i) to pay Base Salary as accrued through the effective
date of termination, together with all accrued vacation pay, and (ii) with
respect to any rights Executive has through the effective date of termination
pursuant to any insurance or other benefit plans or arrangements of the Company.
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4.2 Termination by Company Without Cause. The Company shall have the
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right, exercisable by written notice to Executive, to terminate Executive's
employment under this Agreement without cause, effective at least 30 days after
the giving of such notice, which notice shall specify the effective date of such
termination. Upon the effectiveness of any such termination, Executive shall
have no further obligations or liabilities to the Company whatsoever (except for
his obligations under Section 5.4 and under Section 9, which shall survive such
termination) and Executive shall be entitled to the payments and benefits as
hereinafter provided in Section 5.3 hereof.
5. Termination by Executive.
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5.1 Termination by Executive For Cause. Executive shall have the
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right, exercisable by written notice to the Company, to terminate the term of
employment effective 15 days after the giving of such notice (except as
otherwise provided in Section 5.1.2) upon the occurrence of any of the events
set forth in Sections 5.1.1, 5.1.2, or 5.2 below. Upon the effectiveness of any
such termination, Executive shall have no further obligations or liabilities to
the Company whatsoever (except for his obligations under Section 5.4 and Section
9, all of which shall survive such termination) and Executive shall be entitled
to the payments and benefits as hereinafter provided in Section 5.3 hereof.
5.1.1 Material Breach by Company. Executive shall have the
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right to terminate the term of employment for cause at any time, if, at the time
notice is given by Executive to the Company describing the breach which has
occurred, the Company shall be in material breach of its obligations hereunder,
provided that, with the exception of clause (i) below, the term of employment
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shall not so terminate if within the 15-day period following notice by
Executive, the Company shall have cured all such material breaches of its
obligations hereunder. The parties acknowledge and agree that a material breach
by the Company shall include, but not be limited to, (i) the Company's failure
to cause Executive to serve in the capacities set forth in Section 2.1; (ii) the
Company's willful and continuing refusal to permit Executive to discharge his
duties described in Section 2.1 hereof; (iii) the Company failing to cause
Executive to receive the stock option grant described in Section 3.4 hereof;
(iv) Executive being required to report to persons other than as specified in
Section 2.1; (v) unless Executive otherwise consents, a requirement by the
Company that Executive's primary services be
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rendered in an area other than in the Denver metropolitan area; or (vi) any
breach of Sections 3.1, 3.2, 3.4, 3.5 or 8 of this Agreement.
5.1.2. Restriction of Management Autonomy. Provided that this
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Agreement has not been terminated previously under any other Section hereof,
Executive shall have the right to terminate the term of employment on 30 days'
notice at any time prior to June 1, 1999 if, at the time notice is given by
Executive to the Company describing the event(s) which have occurred, the Board
of Directors of the Company shall have materially intruded, on a recurring
basis, into matters relating to the day-to-day operations of the Company which
actions constitute a restriction on management's authority; provided, however,
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that with respect to the first two such occurrences, the termination shall not
be effective if within 30 days following the date of such notice the Board of
Directors of the Company shall have cured such restriction of management's
autonomy.
5.2 Termination by Executive Upon a Change in Control of Company.
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Provided that this Agreement has not been terminated previously under any other
Section hereof, Executive shall have the right to terminate the term of
employment at any time, without cause, within six months following the
occurrence of a "Change in Control" of the Company. For purposes of this
Agreement, a "Change in Control" of the Company shall be deemed to have occurred
in the event any person (as such term is defined in Sections 13(d)(3) and 14
(d)(2) of the Exchange Act) or entity which is not currently a shareholder shall
(a) become the "beneficial owner" (as such term is defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities representing more than
50% of the combined voting power of the then outstanding common stock or other
voting securities of the Company (or an amount less than 50% of such combined
voting power if the ownership interest gives such person effective voting
control or veto power over Company actions), other than a Change in Control
necessitated in response to actions by the U.S. Department of Justice, or (b)
acquire (1) the Company's high power assets, or (2) the Company's medium power
business, provided however that Executive cannot exercise the right to terminate
under this Section 5.2(b) prior to June 1, 1999.
5.3. Severance and Damages. Upon the effectiveness of a termination
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pursuant to Sections 4.2, 5.1 or 5.2, Executive shall cease to be an active
employee of the Company. In the event of any such a termination, Executive
shall be entitled to elect by delivery of written
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notice to the Company within 30 days after notice of termination is given,
either (a) to cease being an employee of the Company and receive a lump sum
payment as provided in Section 5.3.1, or (b) to remain an employee of the
Company as provided in Section 5.3.2. Regardless of the election made by
Executive pursuant to the preceding sentence, (i) after the effective date of
such termination, Executive shall have no further obligations or liabilities to
the Company whatsoever, (except for his obligations under Section 2.2 and
Section 9, all of which shall survive such termination), and (ii) Executive
shall be entitled to receive any earned and unpaid compensation including a
prorated bonus through the effective date of such termination.
5.3.1 In the event Executive shall elect to receive a lump sum
payment as provided in Section 5.3 (a) above, and a basis for his termination is
pursuant to Sections 4.2, 5.1, or 5.2(b), the Company shall pay to Executive as
severance an amount equal to twice Executive's then current base salary plus his
target bonus (i.e., 2 X base salary X 1.75). If Executive terminates this
agreement pursuant to Section 5.2(a), the Company shall pay to Executive as
severance the amount of $1.2 million.
5.3.2 In the event Executive shall elect to remain an employee of the
Company as provided in clause (b) of Section 5.3, the term of employment shall
continue and Executive shall remain an employee of the Company for a period
ending on the date which is 24 months after the date notice of termination is
given, in the case of a termination pursuant to Sections 4.2, 5.1 or 5.2, and
time during such period Executive shall be entitled to receive, whether or not
he becomes disabled during such period but subject to Section 7, Base Salary at
an annual rate equal to $600,000 per annum. Except as provided in the next
sentence, if Executive accepts full-time employment with any other entity during
such period or notifies the Company in writing of his intention to terminate his
status as an employee, then the term of employment shall cease and Executive
shall cease to be an employee of the Company effective upon the commencement of
such employment or the effective date of such termination as specified by
Executive in such notice, whichever is applicable, and Executive shall be
entitled to receive as severance, subject to the last sentence of this Section
5.3.2, the balance of the Base Salary Executive would have been entitled to
receive at the times Executive would have received such payments pursuant to
this Section 5.3.2, had Executive remained on the Company's payroll until the
end of the 24-month period. Notwithstanding the preceding sentence, (i) if
Executive accepts
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employment with any not-for-profit entity, then Executive shall be entitled to
remain an employee of the Company and receive the payments as provided in the
first sentence of this Section 5.3.2; and (ii) if Executive accepts full-time
employment with any direct or indirect subsidiary of the Company, or any 10%
shareholder of the Company, then the payments provided for in this Section 5.3.2
and the term of employment shall cease and Executive shall not be entitled to
further payment hereunder.
5.3.3 At the time Executive leaves the payroll of the Company
pursuant to the provisions of Sections 4, 5 or 6 of this Agreement, Executive's
rights to benefits and payments under any benefit plans or any insurance or
other death benefit plans or arrangements of the Company or under any bonus
unit, management incentive, stock option or other plan of the Company shall be
determined in accordance with the terms and provisions of such plans and any
agreements under which such awards were granted; provided, however, that
notwithstanding the foregoing or any more restrictive provisions of any such
plan or agreement, if Executive's term of employment with the Company shall
terminate as a result of a termination pursuant to Sections 4.2, 5.1 or 5.2,
then all stock options granted to Executive by the Company shall become vested
at the time of such termination and shall remain exercisable (but not beyond the
expiration of the option term) for a period of three years following the date
notice of any such termination is given.
5.3.4 In partial consideration for the Company's obligation to
make the payments described in this Section 5.3, Executive shall execute and
deliver to the Company a release in substantially the form attached hereto as
Annex A. The Company shall deliver such release to the Executive within 20 days
after the written notice of termination is delivered pursuant to Section 5.2 or
5.3 and Executive shall execute and deliver such release to the Company within
45 days after receipt thereof. If Executive shall fail to execute and deliver
such release to the Company within such 45-day period, or Executive shall revoke
the Executive's consent to such release as provided therein, the Executive's
term of employment shall terminate as provided in Section 5.1 or 5.2, and
Executive shall not be eligible to receive the payments set forth in Section
5.3.1 or 5.3.2.
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6. Disability.
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If during the term of employment Executive shall become physically or
mentally disabled, whether totally or partially, so that he is prevented from
performing his usual duties for a period of six consecutive months, or for
shorter periods aggregating six months in any 12-month period, the Company
shall, nevertheless, continue to pay Executive his full compensation when
otherwise due, as provided in Section 3, through the last day of the sixth
consecutive month of disability or the date on which the shorter periods of
disability shall have equaled a total of six months in any twelve-month period
(such last day or date being referred to herein as the "Disability Date"). If
Executive has not resumed his usual duties on or prior to the Disability Date,
the Company shall pay Executive disability benefits for the balance of the term
of employment in an amount equal to 75% of what the Base Salary otherwise would
have been pursuant to this Agreement had the disability not occurred. From and
after July 1, 2001 until Executive reaches age 65, Company shall continue to pay
Executive disability benefits in an amount equal to 75% of his Base Salary at
the conclusion of the term of employment. The Company shall be entitled to
deduct from all payments to be made to Executive during any disability period an
amount equal to all disability payments received by Executive (but only with
respect to that portion of the disability period occurring during the term of
employment) from Workmen's Compensation, Social Security and disability
insurance policies maintained by the Company; provided, however, that for so
long as, and to the extent that, proceeds paid to Executive from such disability
insurance policies are not includible in his income for federal income tax
purposes, the Company's deduction with respect to such payments shall be equal
to the product of (i) such payments and (ii) a fraction, the numerator of which
is one and the denominator of which is one less the maximum marginal rate of
federal income taxes applicable to individuals at the time of receipt of such
payments. All payments made under this Section 6 after the Disability Date are
intended to be disability payments, regardless of the manner in which they are
computed. The term of employment shall not be extended or be deemed suspended
by reason of any period of disability.
7. Death.
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Upon the death of Executive, this Agreement and all benefits hereunder
shall terminate except that (i) Executive's estate (or a designated beneficiary
thereof) shall be entitled to receive
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the Base Salary to the last day of the month in which his death occurs and such
termination shall not affect any vested rights which Executive may have at the
time of his death pursuant to any insurance or other death benefit plans or
arrangements of the Company or any of its affiliated companies or to the benefit
plans described in Section 8, which vested rights shall continue to be governed
by the provisions of such plans; and (ii) all Options granted under this
Agreement shall become vested at the time of death and shall remain exercisable
by the Executive's estate (but not beyond the expiration of the option term) for
a period of one year following the date of death.
8. Benefits.
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8.1 Life Insurance. Subject to Executive's satisfactory completion
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of any applications and other documentation and any physical examination that
may be required by the insurer, and to the availability of insurance, the
Company shall obtain $1,000,000 of term insurance on the life of Executive and
shall pay all premiums on such policy during the term of employment. Executive
shall have the right to designate the beneficiary of such policy. The life
insurance provided for in this Section 8.1 shall be in addition to the life
insurance provided by the Company in any group insurance plan generally
applicable to executives of the Company and shall be maintained by the Company
for as long as Executive remains on the payroll of the Company.
8.2 Other Benefits. During the term of employment Executive shall be
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eligible to participate in any pension, profit-sharing, group insurance,
hospitalization, medical, dental, accident, disability or similar plan or
program of the Company now existing or established hereafter to the extent that
he is eligible under the general provisions thereof. In addition, the Company
shall pay directly at Executive's request, or reimburse him upon presentation of
appropriate invoices for (i) Executive's reasonable legal expenses in connection
with the negotiation of terms and the preparation and review of this Agreement,
and (ii) receipt of tax or financial advisory services not to exceed $5,000 per
year. Executive shall also be entitled to not less than four weeks paid
vacation each year and to receive other benefits generally available to all
senior executives of the Company to the extent that he is eligible therefor.
9. Protection of Confidential Information.
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9.1 Covenant. Executive acknowledges that his employment by the
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Company (which, for purposes of this Section 9 shall mean the Company and its
affiliated companies) will,
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throughout the term of employment, bring him into close contact with many
confidential affairs of the Company, including information about costs, profits,
markets, sales, products, key personnel, pricing policies, operational methods,
technical processes and other business affairs and methods and other information
not readily available to the public, and plans for future development. Executive
further acknowledges that the services to be performed under this Agreement are
of a special, unique, unusual, extraordinary and intellectual character. In
recognition of the foregoing, Executive covenants and agrees:
9.1.1 Executive will keep secret all confidential matters of
the Company, including without limitation, the terms and provisions of this
Agreement, and will not intentionally disclose such matters to anyone outside of
the Company, either during or after the term of employment, except with the
Company's written consent, provided that (i) Executive shall have no such
obligation to the extent such matters are or become publicly known other than as
a result of Executive's breach of his obligations hereunder, (ii) Executive may,
after giving prior notice to the Company to the extent practicable under the
circumstances, disclose such matters to the extent required by applicable laws
or governmental regulations or judicial or regulatory process and (iii)
Executive may disclose the terms and provisions of this Agreement to his spouse
and legal, tax and financial advisors;
9.1.2 Executive will deliver promptly to the Company on
termination of his employment by the Company, or at any other time the Company
may so request, at the Company's expense, all memoranda, notes, records, reports
and other documents (and all copies thereof) relating to the Company's business,
which he obtained while employed by, or otherwise serving or acting on behalf
of, the Company and which he may then possess or have under his control; and
9.1.3 If the term of employment is terminated pursuant to
Section 4 or Section 5, or if the term of employment terminates as scheduled,
for a period of one year after such termination, without the consent of the
Company, Executive will not employ, and will not cause any entity of which he is
an affiliate to employ, any person who was a full-time executive employee of the
Company or any of its affiliated companies at the date of such termination or
within six months prior thereto.
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9.2 Specific Remedy. In addition to such other rights and remedies as
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the Company may have at equity or in law with respect to any breach of this
Agreement, if Executive commits a material breach of any of the provisions of
Section 9.1 or Section 2.2, the Company shall have the right and remedy to have
such provisions specifically enforced by any court having equity jurisdiction,
it being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company.
10. Other Employment.
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During the term of this Agreement, Executive shall devote all of his
business time, skill and energies exclusively to the business of the Company.
Any business interests of Executive outside of the Company must be disclosed to
the Board of Directors and, without the prior written consent of a majority of
the Board of Directors of the Company, Executive shall not maintain any outside
directorships, consulting arrangements, investments in video distribution
companies or other business activities. Notwithstanding the foregoing, Company
acknowledges Executive's service on the Board of Directors of Star Choice
Communications Inc., which may continue through March 31, 1999, but not
thereafter without Company's written consent. Executive shall be entitled to
participate in civic, charitable, and professional activities provided such
activities (i) do not interfere with the performance of his services hereunder,
(ii) do not present a conflict of interest or the appearance of a conflict of
interest, or (iii) are not in conflict with the policies and procedures of
Company regarding conduct of business, as now existing or as may be hereafter
established.
11. Indemnification.
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Provided that Executive performs his duties for the Company in good faith
and in a manner believed by him to be in the best interests of the Company and
not in contravention of the terms of this Agreement, the Company agrees to
indemnify Executive to the fullest extent permitted by applicable law against
all reasonably paid expenses (including reasonable attorneys' fees), judgments,
and amounts paid in settlement to which the Company has consented in writing, in
connection with any threatened, pending or completed investigation, claim,
action, suit or proceeding arising out of the performance by Executive of
services to the Company under this Agreement, provided that Executive cooperates
with the Company in connection therewith.
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Executive will provide the Company with prompt notice of the commencement of any
such investigation or litigation. The provisions of this Section 11 shall
survive termination of this Agreement with respect to events that occurred
during Executive's employment with the Company.
12. Notices.
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All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, or mailed
first-class, postage prepaid, by registered or certified mail, as follows (or to
such other or additional address as either party shall designate by notice in
writing to the other in accordance herewith):
12.1 If to the Company:
PRIMESTAR, Inc.
8085 S. Chester Street, Suite 300
Englewood, CO 80112
Attention: General Counsel
12.2 If to Executive, to his home address set forth on the records of
the Company, with a copy to:
Miles Cortez, Esq.
Cortez Macaulay Bernhardt & Schuetze LLC
1600 Broadway, Suite 1600
Denver, CO 80202
13. General.
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13.1 Most Favored Status. The parties intend that, as Company's
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Chairman and Chief Executive Officer, without Executive's prior approval no
Company employee shall receive salary, bonus, stock options, employee benefits
or severance benefits with a value greater than that provided to Executive. In
the event any employee shall receive salary, bonus, stock options, employee
benefits or severance benefits with a value in excess of that provided to
Executive, without Executive's prior approval, Executive's salary, bonus, stock
options, employee benefits or severance benefits shall be appropriately adjusted
to the higher amount. This clause shall not
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apply to any salary, bonus, stock options, employee benefits or severance
benefits granted to any employee other than Executive prior to July 1, 1998.
13.2 Governing Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Colorado.
13.3 Captions. The section headings contained herein are for
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reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13.4 Entire Agreement. This Agreement sets forth the entire
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agreement and understanding of the parties relating to the subject matter hereof
and supersedes all prior agreements, arrangements and understandings, written or
oral, between the parties.
13.5 No Other Representations. No representation, promise or
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inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or be liable for any alleged representation,
promise or inducement not so set forth.
13.6 Assignability. This Agreement and Executive's rights and
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obligations hereunder may not be assigned by Executive. Subject to the
Executive's rights hereinabove set forth, the Company may assign its rights,
together with its obligations, hereunder in connection with any sale, transfer
or other disposition of all or substantially all of its business and assets; and
such rights and obligations shall inure to, and be binding upon, any successor
to the business or substantially all of the assets of the Company, whether by
merger, purchase of stock or assets or otherwise, and such successor shall
expressly assume such obligations.
13.7 Amendments: Waivers. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended, and the terms or covenants hereof may
be waived, only by written instrument executed by both of the parties hereto, or
in the case of a waiver, by the party waiving compliance. The failure of either
party at any time or times to require performance of any provision hereof shall
in no manner affect such party's right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement.
13.8 Resolution of Disputes. Any dispute or controversy arising
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with respect to this Agreement may be referred by either party to Judicial
Arbiter Group, Inc. of Denver,
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Colorado ("JAG") for resolution in arbitration in accordance with the rules and
procedures of JAG. Any such proceedings shall take place in Denver before a
single arbitrator (rather than a panel of arbitrators), pursuant to any
streamlined or expedited (rather than a comprehensive) arbitration process,
before a nonjudicial (rather than a judicial) arbitrator, and in accordance with
an arbitration process which, in the judgment of such arbitrator, shall have the
effect of reasonably limiting or reducing the cost of such arbitration. The
resolution of any such dispute or controversy by the arbitrator appointed in
accordance with the procedures of JAG shall be final and binding. Judgment upon
the award rendered by such arbitrator may be entered in any court having
jurisdiction thereof, and the parties consent to the jurisdiction of the
Colorado courts for this purpose. The prevailing party shall be entitled to
recover the costs of arbitration (including reasonable attorneys' fees and the
fees of experts) from the losing party. If at any time any dispute or
controversy arises with respect to this Agreement, JAG is not in business or is
no longer providing arbitration services, then the American Arbitration
Association shall be substituted for JAG for the purposes of the foregoing
provision of this Section 13.8. If Executive shall be the prevailing party in
such arbitration, the Company shall promptly pay, upon demand of Executive, all
legal fees, court costs and other costs and expenses incurred by Executive in
any legal action seeking to enforce the award in any court.
13.9 Beneficiaries. Whenever this Agreement provides for any payment
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to Executive's estate, such payment may be made instead to such beneficiary or
beneficiaries as Executive may designate in writing filed with the Company.
Executive shall have the right to revoke any such designation and to redesignate
a beneficiary or beneficiaries by written notice to the Company (and to any
applicable insurance company) to such effect.
13.10 No Conflict. Executive represents and warrants to the Company
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that this Agreement is legal, valid and binding upon Executive and the execution
of this Agreement and the performance of Executive's obligations hereunder does
not and will not constitute a breach of, or conflict with the terms or
provisions of, any agreement or understanding to which Executive is a party
(including, without limitation, any other employment agreement). The Company
represents and warrants to Executive that this Agreement is legal, valid and
binding upon the Company and the Company is not a party to any agreement or
understanding which would prevent the fulfillment by the Company of the terms of
this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement the 30th
day of March, 1999 to be effective as of the date first above written.
PRIMESTAR, Inc.
By______________________________
Its ____________________________
________________________________
Carl Vogel
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