Exhibit 10.2
4.13.99
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of March 31, 1999, effective as of April 1,
1998, between PRIMESTAR, Inc., a Delaware corporation (the "Company"), and
DANIEL O'BRIEN ("Executive").
The Company wishes to secure the services of Executive on a full-time basis
for the period to and including December 31, 2000 on and subject to the terms
and conditions set forth in this Agreement and Executive is willing to provide
such services on and subject to the terms and conditions set forth in this
Agreement.
The parties therefore agree as follows:
1. Term of Services. Executive's "term of employment", as this phrase is
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used throughout this Agreement, shall be for the period beginning April 1,
1998 and ending on December 31, 2000, subject, however, to earlier termination
as expressly provided herein. Each party shall deliver notice to the other of
its/his intent to renew or extend the term of employment by no later than June
30, 2000.
2. Employment. The Company shall, during the term of employment, employ
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Executive, and Executive shall serve, as President and Chief Operating Officer
of the Company. During the term of employment, Executive shall have the
functions, duties, powers and responsibilities normally associated with such
position and as may from time to time be delegated to Executive by the Chief
Executive Officer (CEO) of the Company or, if no CEO shall be appointed, by the
Board of Directors of the Company. 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 affiliated companies 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 all of his skill and experience to the performance of his duties in
such employment, (iii) Executive shall have no other employment and, without the
prior written consent of the CEO, no outside business activities which require
the devotion of substantial amounts of Executive's time and (iv) unless
Executive otherwise consents, the headquarters for 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.
At all times during the term of employment and for a period of one year
following the termination of the term of employment pursuant to the provisions
of Sections 5.2 or 5.3, 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
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prohibit Executive 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.
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) $350,000 per annum, during the period from April 1, 1998 to June 30,
1998, (ii) $375,000 per annum from July 1, 1998 to June 30, 1999, (iii) $400,000
per annum from July 1, 1999 to June 30, 2000, and (iv) $425,000 per annum from
July 1, 2000 to December 31, 2000 ("Base
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Salary"). Base Salary shall be payable in monthly or more frequent installments
in accordance with the Company's regular payroll practices for senior
executives.
3.2 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 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.
3.3 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.
3.4 No Anticipatory Assignments. Except as specifically contemplated
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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.
3.5. Stock Options. On April 2, 1998 the Company granted Executive
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stock options to purchase 400,000 shares of the Company's Class A common stock
at a purchase price of $7.6875 per share.
So long as the term of employment has not been terminated and subject to
the approval of the Board of Directors of the Company, Executive shall be
granted additional
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options to purchase shares of the Company's Class A common stock at such times
and in the amounts at least equal to the amounts set forth below:
Number of Options Time of Grant
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100,000 7/1/98 - 6/30/99
100,000 7/1/99 - 6/30/2000
Each of the foregoing option grants shall entitle Executive to purchase
shares of Class A common stock of the Company at a purchase price equal to the
fair market value of such common stock on the date of grant. All such options
shall vest following grant in accordance with a schedule similar to the vesting
schedule applicable to the April 2, 1998 grant and all previously granted
options (collectively, the "Options") shall in any event vest in full in the
event Executive's employment is terminated pursuant to Sections 4.2, 5.2.2 or
5.3 hereof. In connection with each Option grant, a separate Option Agreement
consistent with the terms of this Agreement 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 the terms of any Option
Agreement between the Company and Executive , the Options shall not expire or
otherwise terminate upon the occurrence of an Approved Transaction, a Board
Change or a Control Purchase, as such terms are defined in the Plan.
4. Termination by Company.
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4.1 Termination by Company for Cause. The Company may terminate the
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term of employment and all of the Company's obligations hereunder, other than
its obligations set forth below in this Section 4.1, for "cause". Termination
by the Company for "cause" shall mean termination by action of the CEO or the
Company's Board of Directors because of 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) or willful refusal without proper cause to
perform his obligations under this Agreement or
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because of Executive's material breach of any of the covenants provided for in
Sections 2 or 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 termination shall not be effective if
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(i) such termination is because of Executive's willful refusal without proper
cause to perform any one or more of his obligations under this Agreement or
breach by Executive of the covenants contained herein, and (ii) such notice is
the first such notice of termination for any reason delivered by the Company to
Executive hereunder, and (iii) within 15 days following the date of such notice
Executive shall cease his refusal and shall use his best efforts to perform such
obligations, or if such breach is capable of cure, Executive shall use his best
efforts to cure.
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 accrued through the effective
date of termination, (ii) to pay any annual bonus pursuant to Section 3.2 to
Executive in respect of any year prior to the year in which such termination is
effective which has been awarded but has not yet been paid as of such
termination and (iii) 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.
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 5.5 and under Section 9, which shall survive such
termination) and Executive shall be entitled to be paid for any accrued vacation
time and to receive the payments and benefits as hereinafter provided in Section
5.4 hereof and shall not be entitled to notice and severance.
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5. Termination by Executive.
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5.1 General. Executive shall have the right, exercisable by written
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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 5.2.2)
upon the occurrence of any of the events set forth in Sections 5.2 or 5.3 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 the penultimate paragraph of Section 2 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 5.4 hereof and shall not be entitled
to notice and severance.
5.2 Termination by Executive for Cause.
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5.2.1 Material Breach by Company. Provided that this
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Agreement has not previously been terminated under any other Section hereof,
Executive shall have the 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,
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the term of employment 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 failing to cause Executive to serve in the capacities set forth in
Section 2; (ii) Executive being required to report to persons other than those
specified in Section 2; (iii) unless Executive otherwise consents, the Company
requiring Executive's primary services to be rendered in an area other than in
the Denver metropolitan area; and (iv) any breach of Sections 3.1, 3.2, 3.3, 3.5
or 8 of this Agreement.
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5.3 Termination by Executive Upon a Change in Management or Control
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of Company.
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5.3.1 Appointment of New CEO. Provided that this Agreement
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has not previously been terminated 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 commencement of employment of a new CEO
of the Company.
5.3.2 Change in Control. Provided that this Agreement has not
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previously been terminated 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 (a) any person (as such term is defined in
Sections 13(d)(3) and 14 (d)(2) of the Exchange Act) or entity shall 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 partnership interests, common
stock or other voting securities of the Company, or (b) after June 1, 1999,
Hughes Electronics Corporation or any of its subsidiaries shall have acquired
the Company's medium power DBS business.
5.4. Severance and Damages; Release. Upon the effectiveness of a
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termination pursuant to Section 4.2 or Section 5, Executive shall cease to be an
active employee of the Company. In the event of such a termination, Executive
shall be entitled to elect by delivery of written 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
5.4.1, or (b) to remain an employee of the Company as provided in Section 5.4.2.
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 as
otherwise provided in Section 5.1, and (ii) Executive shall be entitled to
receive
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any earned and unpaid Base Salary and to be paid for any accrued vacation time
through the effective date of such termination and a pro rata portion of
Executive's annual bonus for the year in which such termination occurs,
calculated as provided in Section 5.4.3.
5.4.1 In the event Executive shall elect to receive a lump sum
payment as provided in clause (a) above, the Company shall pay to Executive as
severance, an amount equal to the sum of (x) in the case of a termination by
Company without cause or a termination by Executive pursuant to Sections 5.2 or
5.3.2 (b), two times the sum of Executive's then annual Base Salary plus the
amount of his annual bonus, calculated as provided in Section 5.4.3, (y) in the
case of a termination by Executive pursuant to Section 5.3.1, the amount of
Executive's then annual Base Salary for a period of 12 months, plus the amount
of his annual bonus, calculated as provided in Section 5.4.3, or (z) $750,000,
in the case of a termination by Executive pursuant to Section 5.3.2(a).
5.4.2 In the event Executive shall elect to remain an employee
of the Company as provided in clause (b) of Section 5.4, the term of employment
shall continue and Executive shall remain an employee of the Company for a
period ending on the date which is (x) 24 months after the date notice of
termination is given, in the case of a termination by Company without cause or a
termination by Executive pursuant to Sections 5.2 or 5.3.2(b), or (y) 12 months
after the date notice of termination is given, in the case of a termination by
Executive pursuant to Section 5.3.1 or 5.3.2(a), and 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 Executive's Base Salary in effect immediately prior to the date notice of
termination is given and an annual bonus in respect of each calendar year or
portion thereof (in which case a pro rata portion of such annual bonus will be
payable) during such period calculated as provided in Section 5.4.3 below.
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
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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
5.4.2, the balance of the Base Salary and regular annual bonuses Executive would
have been entitled to receive at the times Executive would have received such
payments pursuant to this Section 5.4.2, had Executive remained on the Company's
payroll until the end of the period described in the first sentence of this
Section 5.4.2. Notwithstanding the preceding sentence, if Executive accepts
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 5.4.2; and 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 5.4.2
and the term of employment shall cease and Executive shall not be entitled to
further payment hereunder.
5.4.3 The annual bonus payable to Executive in accordance with
Sections 5.4.1 or 5.4.2, as applicable, shall be based on the average of the
regular annual bonuses (excluding the amount of any special or spot bonuses)
received by Executive from the Company hereunder in respect of the two previous
calendar years immediately prior to termination; provided, that if such
termination occurs prior to the determination of Executive's annual bonus for
1998, then the annual bonus payable under this Section 5.4.3 shall be based on
the average of 75% of Executive's Base Salary and his 1997 annual bonus.
5.4.4 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
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of a termination by the Company pursuant to Section 4.2 or as a result of a
termination by Executive pursuant to Sections 5.2 or 5.3, 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.
5.4.5 If, as of the date (the "Termination Date") that
Executive leaves the payroll of the Company pursuant to the provisions of
Sections 4.2, 5 or 6 of this Agreement, Executive has not become fully vested in
any of the Time Warner stock options listed on Schedule I attached hereto (the
"TWX Options"), and Executive does not become an employee of Time Warner or any
of its subsidiaries within 90 days following the Termination Date, then within
21 days following the end of such 90-day period the Company shall pay to
Executive an amount equal to (x) the number of unvested TWX Options as of the
Termination Date, multiplied by (y) the average closing stock price of a share
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of Time Warner common stock on the New York Stock Exchange Composite Tape for
the ten consecutive trading days beginning on the Termination Date minus the
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weighted average option exercise price of such unvested TWX Options.
5.4.6 In partial consideration for the Company's obligation to
make the payments described in this Section 5.4, 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
21 days after receipt thereof. If Executive shall fail to execute and deliver
such release to the Company within such 21 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 5.2 or 5.3 and
Executive shall not be eligible to receive the payments provided for in this
Section 5.4.
6. Disability. If during the term of employment Executive shall become
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physically or mentally disabled, whether totally or partially, so that he is
prevented from performing
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his usual duties for a period of six consecutive months, or for shorter periods
aggregating six months in any twelve-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 (a) 75% of what the Base Salary otherwise would have been
pursuant to this Agreement had the disability not occurred, and (b) 75% of the
annual bonus amount determined in accordance with Section 5.4.3 hereof. From and
after January 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.
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7. Death. Upon the death of Executive, this Agreement and all benefits
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hereunder shall terminate except that (i) Executive's estate (or a designated
beneficiary thereof) shall be entitled to receive the Base Salary to the last
day of the month in which his death occurs and shall be entitled to receive
bonus compensation equal to the annual bonus determined in accordance with
clause (i) of Section 5.4.3 but prorated according to the number of months of
employment in such year and (ii) 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.
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. Following termination of
employment for any reason, Executive shall have the right, at his election, to
take over such policy at his expense. 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, receipt of tax or financial
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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. Executive shall have the right to
purchase additional disability insurance at the Company's cost for such
coverage.
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, 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;
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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.
9.2 Specific Remedy. In addition to such other rights and remedies
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as 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 the penultimate paragraph of Section 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. Indemnification. Provided that Executive performs his duties for the
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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
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Executive cooperates with the Company in connection therewith. Executive will
provide the Company with prompt notice of the commencement of any such
investigation or litigation. The provisions of this Section 10 shall survive
termination of this Agreement with respect to events which occurred during
Executive's employment with the Company.
11. Notices. All notices, requests, consents and other communications
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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):
11.1 If to the Company:
PRIMESTAR, Inc.
8085 S. Chester Street, Suite 300
Englewood, CO 80112
Attention: General Counsel
11.2 If to Executive, to the address set forth on the records of the
Company.
12. General.
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12.1 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 New York.
12.2 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.
12.3 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.
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12.4 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.
12.5 Assignability. This Agreement and Executive's rights and
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obligations hereunder may not be assigned by Executive. 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.
12.6 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.
12.7 Resolution of Disputes. Any dispute or controversy arising with
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respect to this Agreement may be referred by either party to ENDISPUTE for
resolution in arbitration in accordance with the rules and procedures of
ENDISPUTE. 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
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any such dispute or controversy by the arbitrator appointed in accordance with
the procedures of ENDISPUTE 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, ENDISPUTE is not in business or is no longer providing
arbitration services, then the American Arbitration Association shall be
substituted for ENDISPUTE for the purposes of the foregoing provision of this
Section 12.7. 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.
12.8 Beneficiaries. Whenever this Agreement provides for any
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payment 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.
12.9 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 as of the
date first above written.
PRIMESTAR, Inc.
By_______________________________
_________________________________
Daniel O'Brien
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