Exhibit 10.21


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS
AMENDED AND RESTATED, EMPLOYMENT AGREEMENT (the “Amended Agreement”) is entered
into this 10” day of October, 2005, by and between NEW SKIES SATELLITES B.V.,
an entity established under Dutch law (the “Company”) and Thai E. Rubin
(the “Employee”).


 


WHEREAS
the Company and the Employee have entered into that certain Employment
Agreement on or about the 15th day of September 2004, as amended and
restated as of November 1-, 2004 (the “2004 Agreement”); and


 


WHEREAS,
the Company and the Employee desire to amend the 2004 Agreement in certain
respects and to restate the 2004 Agreement to read in its entirety as follows.


 


NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:


 


1.             Employment and Performance of Duties.


 


(a)           The Company will employ the Employee in the
position of General Counsel. In addition, if requested, the Employee shall
serve as the Secretary of New Skies Satellites Holdings Ltd., an entity
established under Bermuda law (the “Parent”). The Employee will report
solely to the Chief Executive Officer or to the Chief Operating Officer (or the
functional equivalent of a Chief Executive Officer or Chief Operating Officer),
if so designated by the Company, in respect of his duties to the Company and to
the President of the Parent in respect of his duties to the Parent. The
Employee will have such duties, responsibilities and authority as are customary
for general counsels of comparable entities to the Company. These
responsibilities include, by way of example and without limitation, those set
forth in the attached job description.


 


(b)           The Employee shall devote his full working
time, energy and attention to the performance of his duties and
responsibilities and shall diligently and faithfully endeavour to promote the
business and best interests of the Company and any entity that is a direct or
indirect wholly-owned subsidiary of Parent (such subsidiaries hereinafter
referred to as the “Affiliates”). In performing his job duties, the Employee
will comply with the Company’s policies, procedures and instructions.


 


(c)           The Employee’s normal work location will be
the Company’s headquarters office in The Hague. The Employee will be employed
on a full-time basis with normal working hours as specified by the Employee’s
manager. The Company may instruct the Employee to perform his duties at another
location or on an amended work schedule, or may charge the Employee temporarily
or for longer periods with other duties, in a reasonable manner and consistent
with Employee’s overall duties and level of responsibility.


 


(d)           The Employee may not operate, participate in
the management, operation or control of, act as an employee, officer,
consultant, agent or representative of, or provide any services to any entity
or any type of business or service, in each case without the Company’s prior
written consent. It shall not be a violation of this subsection for the
Employee to (i) act or


 

















 


serve as a director, trustee or committee member of any civic or
charitable organization, or (ii) manage his personal, financial and legal
affairs, provided in each case that such activities are carried out outside of
the Employee’s normal working hours and, in the Company’s judgment, do not
interfere with the Employee’s performance of his duties and responsibilities
hereunder.


 


2.             Effective Date.


 


The
effective date of this Amended Agreement is January 1, 2005. The first day
of Employee’s employment as General Counsel was August 16, 2003 and the
first day of Employee’s employment was 14th December 1998.


 


3.             Compensation.


 


As
compensation for the agreements made by the Employee herein and the performance
by the Employee of his obligations hereunder, following the effective date of
this Amended Agreement, during the employment period the Company shall pay the
Employee a base salary of U.S.$ 265,000 gross per annum (the “Base Salary”),
payable accordance with the Company’s payroll policies and procedures then in
effect. The Base Salary is inclusive of the “holiday pay” provided for under
Dutch law. Compensation for overtime work is included as part of the Employee’s
Base Salary and will not be separately compensated. The Base Salary may be
increased (but not decreased) in the future in the Company’s absolute
discretion. Any such increased Base Salary shall then become the Base Salary
for all purposes hereunder.


 


Payment
of the Base Salary shall be made in US$ or in Euros, at Employee’s election.
Translations to Euro for all purposes hereunder (including, without limitation,
for payroll, withholding and related purposes) shall be made using the average
US$-Euro exchange rate for the three calendar months prior to the 15th of August 2003.


 


4.             Annual Bonus.


 


As
compensation for the agreements made by the Employee herein and the performance
by the Employee hereunder (including, without limitation, the performance of
annual bonus objectives established by the Company), the Employee shall be
eligible to earn. an annual cash bonus pursuant to the terms and under the
conditions set forth in the New Skies Annual Bonus Plan, as such Bonus Plan may
be amended from time to time. Employee’s “on target” cash bonus shall equal 50%
of the Employee’s Base Salary during the period as to which the bonus is paid
following the effective date of this Amended Agreement (the “Annual Bonus”).
The Company and Employee agree that the 50% bonus level represents an “on
target” bonus and is not a maximum or a minimum percentage. Actual bonus
payments shall be calculated in accordance with the terms of the Bonus Plan.
Except as otherwise provided in Section 6, no bonus shall be payable for
any year in which the Employee’s employment is terminated prior to December 31.
The Annual Bonus shall be paid to the Employee within a reasonable period
following the determination of the amount of such bonus.


 


5.             Tax-free Allowance Subject to 30% Ruling.


 


If
and insofar as the Employee has received or may receive a tax-free allowance
for extra-territorial costs under Section 9 of the 1965 Payroll Tax
Implementation Decree (as further


 


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described
in clause (ii) below), the following shall apply:


 


(i)            The originally agreed upon Wages from Current
Employment shall be reduced for employment law purposes so that 100/70 of the
adjusted Wages from Current Employment is equal to the originally agreed upon
Wages from Current Employment. As used herein, “Wages from Current Employment”
are all income (in cash, cash equivalent, or benefit in kind) that is subject
to wage tax withholding in the Netherlands.


 


(ii)           The Employee shall receive an allowance for
extra-territorial costs from the Company, equal to 30/70 of the adjusted Wages
from Current Employment (the “Allowance”).


 


(iii)          The Employee is aware of the fact that, in
view of the applicable regulations, an adjustment to the remuneration agreed
under this Section may affect all considerations and benefits that are
linked to Wages from Current Employment, such as pension rights and social
security benefits.


 


(iv)          The intention of this Section is to
automatically apply Section 9 of the 1965 Payroll Tax Implementation
Decree to all elements of Wages from Current Employment that can benefit from
this special provision.


 


(v)           The Employee acknowledges and agrees that, as
a result of the adjustments described in clauses (i) and (ii), the
Employee’s adjusted Base Salary (the “Adjusted Base Salary”) shall equal 70/100
of the previously agreed Base Salary. The Employee hereby consents to this
adjustment and agrees that it shall not constitute a breach of this Amended Agreement
or give rise to any rights on the part of the Employee. Following any
adjustment hereunder, all references in this Amended Agreement to Base Salary
shall be deemed to refer to the Employee’s Total Base Compensation, which shall
equal the sum of the Adjusted Base Salary and an allowance equal to 30/70 of
the Adjusted Base Salary. For the avoidance of doubt, the term “originally
agreed upon Wages from Current Employment” shall refer to the Wages from
Current Employment in effect immediately prior to the adjustments described in
clauses (i) and (ii).


 


6.             Duration of the Agreement and Termination.


 


(a)           This Amended Agreement shall be in force for
an indefinite period of time. Employee and the Company each may terminate this
Amended Agreement by providing at least one month’s prior written notice (or
such longer notice as may be required by law) in a “Notice of Termination” to
the other. The Company shall be entitled to provide pay in lieu of notice where
permitted by applicable law. No notice shall be required in the event of a
termination for urgent cause (“dringende
reden”). For purposes of
this Amended Agreement, a “Notice of Termination” shall mean a notice which
shall indicate the specific termination provision in this Amended Agreement
relied upon, shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee’s employment under
the provision so indicated and shall attach any prior notices required under
this Section 6.


 


(b)           In the event of a termination of the Employee’s
employment (1) by the Company without Cause or (2) by the Employee
for Good Reason (as such terms are defined below), the


 


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Company shall pay to (or in the case of business expenses pursuant to
clause (i), reimburse) the Employee, or his estate in the event of his death,
within thirty (30) days following the Date of Termination (as defined below), (i) the
Employee’s Base Salary through the Date of Termination and outstanding business
expenses (to the extent not theretofore paid) and any other amounts due to the
Employee but which have not been paid, (ii) any earned but unpaid Annual
Bonus in respect of a calendar year ending prior to or coincident with the Date
of Termination, (iii) an Annual Bonus equal to the prior year’s Annual
Bonus pro-rated for the year in which the Date of Termination occurs based on
the number of days occurring in such year prior to the Date of Termination, (iv) a
lump-sum payment equal to two times the sum of (x) the Employee’s Base Salary
(as in effect on the Date of Termination) and (y) the greater of the Annual
Bonuses for each of the two most recently completed calendar years preceding
the calendar year in which the Date of Termination occurs, (v) reimbursement
for outplacement services in an amount up to $25,000 upon the Employee’s
submission of receipts for such services, and (vi) continuation of medical
and dental benefits under the Company’s employee benefit plans providing for
such benefits, for two years following the Date of Termination; provided the
Company’s obligation to provide continued welfare benefits under this clause (vi) shall
be reduced to the extent that equivalent coverages and benefits (determined on
a coverage-by-coverage and benefit-by-benefit basis) are provided under the
plans, programs or arrangements of a subsequent employer; and provided further
that in the event that the Employee is precluded from continuing full
participation in the Company’s welfare benefit plans that provide for the
benefits described and contemplated in this clause (vi), the Employee shall be
provided with the after-tax economic equivalent of any benefit or coverage
foregone. For this purpose, the economic equivalent of any benefit or coverage
foregone shall be deemed to be the total cost to the Employee of obtaining such
benefit or coverage himself on an individual basis. Payment of such after-tax
economic equivalent shall be made quarterly.


 


For
purposes of this Amended Agreement, the term “Cause” shall mean: (i) a
willful and material violation by the Employee of any of Section 1(d), 10
or 12 of this Amended Agreement (unless such violation is cured by the Employee
within thirty (30) days of receipt of a written notice from the Company) which
specifically identifies the facts and circumstances of such violation); (ii) the
willful failure by the Employee to substantially perform the duties reasonably
assigned to him within the scope of the Employee’s duties and authority as
stated in Section 1(a) hereunder (other than as a result of physical
or mental illness or injury), after the Company delivers to the Employee a
written demand for substantial performance that specifically identifies the
manner in which the Employee has not substantially performed the Employee’s
duties and provides the Employee thirty (30) days to begin to substantially
perform, provided that the Company shall not have the right to terminate the
Employee’s employment hereunder for Cause if the Employee begins to
substantially perform within such thirty-day period; (iii) the Employee’s
willful misconduct, willful waste of corporate assets or gross negligence which
in any such event substantially and materially injures the Company and its
Affiliates; or (iv) the indictment of the Employee for a felony involving
moral turpitude. In order for a termination to be considered to be for Cause,
the Notice of Termination must be delivered within six (6) months of the
date on which the Company first knows of the event constituting Cause.


 


For
purposes of this Amended Agreement, the term “Good Reason” shall mean: (i) a
reduction by the Company in the Employee’s Base Salary; (ii) any failure
by the Company to pay any amounts due to the Employee within ninety (90) days
of the date such amount is due;


 


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(iii) any
material diminution of the level of responsibility or authority of the
Employee, including the Employee’s reporting duties (provided, however, that
any change in Employee’s reporting duties consistent with the Company’s rights
under Section 1(a) shall not be deemed to be “Good Reason”); (iv) any
adverse change in Employee’s title or position; (v) the failure by the
Company to obtain from any successor an assumption of the obligations of the
Company as contemplated by Section 16(b) herein; (vi) the
Company requiring the Employee to be based at any office or location that is
more than 50 kilometers from the Company’s current corporate headquarters;
provided that, with respect to any such relocation, the Employee delivers a
written notice of such Good Reason termination to the Company within thirty
(30) days after receiving written notice from the Company of the possibility of
such event; and provided further that the Employee delivers a written notice to
the Company within six (6) months of the date on which the Employee first
knows of the event constituting Good Reason which specifically identifies the
facts and circumstances claimed by Employee to constitute Good Reason and the
Company has failed to cure such facts and circumstances within thirty (30) days
after receipt of such notice.


 


For
purposes of this Amended Agreement, “Date of Termination” shall mean one month
after the date on which a Notice of Termination is given or any later date
(agreed upon by the parties, after the giving of such notice).


 


The
payments provided in this Section 6(b) are (i) not subject to
offset or mitigation and (ii) conditioned upon and subject to the Employee
executing a valid general release and waiver, waiving all claims the Employee
may have against the Company, its Affiliates, directors, officers and
employees. The Company shall have no additional obligations under this Amended
Agreement except for (i) the indemnification obligations set forth in Section 7
herein, and (ii) any benefits (other than benefits in the nature of
severance pay) to which the Employee is entitled under the terms of any
employee benefit plan in which he is eligible to participate.


 


(c)           Notwithstanding the foregoing, upon any
termination of Employee’s employment, the Company shall provide the
repatriation benefits set forth in Section 8 (Repatriation) of the HQLP
attached hereto; provided that (i) notwithstanding any shorter time limit
in the HQLP, Employee shall be eligible for repatriation benefits for any
repatriation that occurs within ninety (90) days of Employee’s Date of
Termination; and (ii) upon a timely request by the Employee, the Company
shall pay covered repatriation costs directly or shall reimburse Employee for
such costs, at Employee’s option.


 


(d)           Other than as expressly stated herein, the
Company shall have no additional obligations arising from or relating to the
termination of Employee’s employment.


 


7.             Indemnification.


 


The
Company shall indemnify, defend and hold the Employee harmless from and against
any and all liability or obligation arising from or relating to this Amended
Agreement or the performance by the Employee of his obligations hereunder, in
accordance with the indemnification provisions set forth in Article 14 of
the Company’s Articles of Association, as in effect on the date hereof,
provided that this obligation to indemnify and defend shall not extend to
disputes between the Employee and the Company, if any, which relate to the
benefits or amounts in the nature of compensation from the Company to which the
Employee believes he is


 


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entitled.


 


8.             Annual Leave; Other Benefits.


 


(a)           Annual Leave. The Employee shall be entitled
to twenty-five (25) days annual leave per year. The Employee’s leave
entitlement, the ability to carry forward vacation time (if any), and the
conditions under which leave may be taken shall be subject to the Company’s
policies and procedures then in effect.


 


(b)           Company Car. The Company shall make available
to Employee during the employment period, under the policies and procedures
then in effect, a car determined by the Company to be suitable to Employee’s
position. The Employee may elect to receive a cash payment in lieu of such car,
in an amount to be determined by the Company


 


(c)           HQLP. The Employee shall be entitled to
participate in the New Skies Satellites N.V. Headquarters Location Premium
plan, as such plan may be amended by the Company from time to time.


 


(d)           Medical and Dental Benefits. During the
employment period, the Employee shall be entitled to medical and dental
coverage (including for Employee’s spouse and children under the age of 21), on
terms that are no less favorable than those generally provided to other senior
executives of the Company from time to time, subject to customary and
reasonable limits, co-payments, deductibles, employee contributions and
exclusions;


 


(e)           Other. During the Employment Period, the
Employee shall be entitled to any other benefits and perquisites generally
provided to other similarly senior staff of the Company, from time to time,
including without limitation any benefits provided to similarly senior
employees who were recruited from outside the Netherlands; provided that the
Employee shall not be entitled to participate in any plan providing for
benefits in the nature of severance pay.


 


(f)            Reimbursement of Expenses. The Company shall
promptly reimburse the Employee for all reasonable business expenses upon the
presentation of statements of such expenses, in accordance with the Company’s
policies and procedures now in force or as such policies and procedures may be
modified with respect to all senior executive officers of the Company.


 


(g)           Tax Filing. The Company shall provide and pay
for the preparation and filing, by a firm of Employee’s choosing, of Employee’s
annual personal income tax returns in both the Netherlands and the United
States. This benefit shall be provided for any calendar year (or portion
thereof) during which Employee is employed by Company.


 


9.             Personal Information.


 


The
Employee will provide the Company with personal data as and when requested by
the Company for administrative, tax and other reasons and will promptly notify
the Company of any change to such data. Without limiting the generality of the
previous sentence, the Employee shall provide all data that may be required
under the Act Advancement Proportional Participation Work Aliens (Wet Bevordering Evenredige Arbeidsdeelname
Allochtonen), the Obligation to


 


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Carry
Identification Papers Act (Wet op de
Identificatieplicht), and other applicable laws and regulations.


 


10.          Non-Solicitation and Non-Competition.


 


(a)           During the employment period and for one year
following the termination of Employee’s employment with the Company for any
reason, the Employee agrees not to offer employment to any employee of the
Company (or any of Company’s Affiliates), not to attempt to induce any such
employee to leave the employ of the Company or any of its Affiliates, and not
to solicit any clients or suppliers of the Company or its Affiliates to do
business with any competing business of the Company or its Affiliates.


 


(b)           Employee agrees not to engage in any aspect
of the Satellite Business (as defined below) for one year following the
termination of Employee’s employment for any reason, other than a termination
by the Company without Cause or by the Employee for Good Reason. Employee shall
be deemed to be engaging in the Satellite Business if he, directly or
indirectly and whether or not for compensation, renders personal services of
any kind in any capacity for any Competitor. As used herein, a “Competitor”
shall mean any corporation, firm, partnership, proprietorship, or other entity
which engages in the Satellite Business; and the “Satellite Business” shall
mean the business of communication of electronic video, data, internet/internet
protocol, voice, or other information by transmission via satellite for hire,
or any other business that is the same or substantially the same as any line or
lines of business engaged in by the Company or its Affiliates during the
employment period or that the Company or its Affiliates has begun making
material preparations to enter prior to the termination of Employee’s
employment.


 


(c)           The restrictions of this Section shall
be deemed to be separate restrictions with respect to each geographic area,
time period, and activity covered thereby, and each shall be enforceable by the
Company independently. Employee hereby agrees that if, in any judicial
proceeding, a court shall refuse to enforce any such separate restriction, then
such unenforceable restriction shall he deemed eliminated from this Amended
Agreement for the purpose of such proceeding only to the extent necessary to
permit the remaining restrictions contained in this Section to be
enforced.


 


(d)           The parties hereby declare that it is
impossible to measure in money the damages that will accrue to the Company by
reason of a failure by Employee to perform any of his obligations under this Section or
under Section 12 (Confidentiality; Intellectual Property and Ownership of
Work Product). If the Company or any of its Affiliates institutes any action or
proceeding to enforce the provisions hereof, to the maximum extent permitted by
applicable law, Employee hereby waives the claim or defence that the Company or
its Affiliates has an adequate remedy at law, and Employee shall not urge in
any such action or proceeding the claim or defence that any such remedy at law
exists. In the event this paragraph is not enforced, in whole or in part, the
Company reserves the right to seek costs and damages for any breach of this
Section. In addition to what is stipulated in article 7:650, section 3,
Dutch Civil Code, the penalty will be to the advantage of the Company.


 


(e)           The restrictions in this Section shall
be in addition to any restrictions imposed on the Employee by statute or at
common law and shall survive any termination of this Amended


 


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Agreement.


 


11.          Damages.


 


Contrary
to the proviso of articles 6:170 paragraph 3 and 7:661 paragraph 1 Civil Code
of The Netherlands, if an Employee is insured and is covered by such insurance
for damages caused to the Company in the performance of his duties, the
Employee will pay the Company (or a third party to whom the Company is liable)
for such damages up to the amount of the insurance coverage. This provision
shall apply even if the damages are not the result of malice aforethought or
conscious recklessness of the Employee.


 


12.          Confidentiality; Intellectual Property and
Ownership of Work Product,


 


(a)           The Employee shall not appropriate for his
own use, disclose, divulge, furnish, or make available to any person, unless in
the normal course or business or with the Company’s prior written consent, any
confidential or proprietary information concerning the Company and its
Affiliates, including without limitation any confidential or proprietary
information concerning the operations, plans or methods of doing business of
the Company or its Affiliates (the “Information”); provided that the term “Information”
shall not include such information which is or becomes generally available to
the public other than as a result of a disclosure by Employee in violation of
this Amended Agreement. Notwithstanding the foregoing, the Employee may
disclose Information to the extent he is compelled to do so by law or the rules or
regulations of any regulatory body to which he is subject, provided that the
Employee must provide the Company with a copy of all relevant documents
promptly upon receipt (and prior to making any disclosure) and must assist the
Company, as and when requested, in taking such action as the Company deems
appropriate in relation to such subpoena or request.


 


(b)           The Employee agrees that all right, title and
interest in and to all works of whatever nature generated in whole or in part
in the course of or as a direct or indirect result of his employment or in the
one-year period following any termination of such employment (collectively, “Work
Product”), including all rights of intellectual property according to
Netherlands or applicable foreign law, reside with and will fully accrue to the
Company. Work Product shall include, without limitation: patents, registered
models, designs, copyrights, inventions, improvements, discoveries, processes,
programs, systems, performances in the field of industrial design,
methodologies, computer programmes and educational systems. It is the Company’s
absolute discretion to apply or not for protection of the rights falling to it,
such as patents, under this Section. The Employee shall inform the Company of
all achievements obtained by him. that may lead to the creation of Work
Product. Work Product shall not include any works that the Employee can
demonstrate have been developed entirely by him on his own time and outside of
working hours, without the use of the Company’s facilities, supplies,
equipment, Information, materials or trade secrets and that did not result,
directly or indirectly, from work performed by the Employee on behalf of the
Company and its Affiliates.


 


(c)           Insofar as necessary, the Employee hereby
assigns all rights mentioned in paragraph (b) to the Company, who hereby
accepts such assignment. The Employee will, throughout the duration of this
Amended Agreement and after the termination hereof, render such assistance as
may be requested by the Company, free of charge, to obtain and perfect these


 


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rights, to register these rights in the name of the Company, and to
exercise these rights against third parties; provided, however, that the
Company shall pay the Employee for assistance in excess of five hours on an
hourly basis, determined on a pro rata basis with reference to the Employee’s
Base Salary. The Employee hereby grants the Company an irrevocable power of
attorney to perform the above-mentioned actions in the name of the Employee.
The Employee hereby waives any rights he may have to assert moral rights with
respect to any Work Product and renounces any possible claims to payments for
such Work Product (other than the Base Salary) to the maximum extent permitted
by law.


 


(d)           The obligations set forth in this Section shall
be in addition to any restrictions or obligations imposed on Employee by
statute or at common law and shall survive any termination of this Amended
Agreement.


 


(e)           Each of the rights and restrictions in this Section shall
be enforceable by the Company independently.


 


(f)            The Company reserves the right to seek costs
and damages for any breach of this Section. Contrary to which is stipulated in article 7:650,
section 3, Dutch Civil Code, the penalty will be to the advantage of the
Company.


 


13.          Return of Company Property and Confidential
Information.


 


At
the end of the employment period, or earlier at the Company’s request, the
Employee shall return to the Company all materials and property belonging to
the Company and its Affiliates (and, in the case of data, documents, and other
Information, all Information relating to the Company, its business and business
opportunities, or its officers, directors, employees, shareholders, customers,
and Affiliates), including without limitation and where applicable, company
car, mobile telephone, credit cards, computers and computer peripherals,
computer programs, files, other electronic data and software, all documents, in
whatever form, and all copies (in whatever form) thereof. All property shall be
returned in good repair and working order, subject only to ordinary and
reasonable wear and tear.


 


14.          Data Carriers, Materials, Tools and Restitution.


 


The
Employee will be permitted to make use of certain Company instruments,
materials, information and data processing systems when performing Employee’s
duties. The Employee may not publish, copy, or alter in any way any such
materials, information, software, systems, or data, other than as instructed by
the Company in writing.


 


15.          Excise Tax Matters.


 


(a)           Anything in this Amended Agreement to the
contrary notwithstanding, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Employee, whether
paid or payable or distributed or distributable pursuant to the terms of this
Amended Agreement or otherwise (a “Payment”), would be subject to the excise
tax (the “Excise Tax”) imposed by Section 4999 of the United States
Internal Revenue Code (the “Code”), then Employee shall be entitled to receive
an additional payment (a “Gross-Up Payment”) in. an amount equal to the lesser
of (i) U.S.$1,000,000 and (ii) the amount necessary


 


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such that after payment by Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments; provided that, in the event it shall be determined that, if in
lieu of receiving the Gross-Up Payment, the Employee would, if the amounts
constituting “parachute payments” for purposes of Section 280G of the Code
which would otherwise be payable to the Employee were reduced (as so reduced,
the “Reduced Amount”), be entitled to receive and retain, on a net after-tax
basis, an amount that is greater than the amount, on a net after-tax basis,
that the Employee would be entitled to retain upon his receipt of the Gross-Up
Payment, then Employee shall not be entitled to the Gross-Up Payment but rather
shall only be entitled to the Reduced Amount.


 


(b)           All determinations required to be made under
this Section 15, including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment (or whether there will be a Reduced
Amount and the amount of such Reduced Amount) and the assumptions to be
utilized in arriving at such determination, shall be made by a nationally
recognized accounting firm appointed by the Company and reasonably acceptable
to the Employee (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and Employee within ten business days of the
receipt of notice from Employee that there has been a Payment, or such earlier
time as is requested by the Company; provided that for purposes of determining
the amount of any Gross-Up Payment, Employee shall be deemed to pay federal
income tax at the highest marginal rates applicable to individuals in the
calendar year in which any such Gross-Up Payment is to be made and deemed to
pay state and local income taxes at the highest marginal rates applicable to
individuals in the state or locality of Employee’s residence and/or place of
employment in the calendar year in which any such Gross-Up Payment is to be
made, net of the maximum reduction in federal income taxes that can be obtained
from deduction of such state and local taxes, taking into account limitations
applicable to individuals subject to federal income tax at the highest marginal
rates. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 15,
shall be paid by the Company to Employee five days prior to when due (or to the
appropriate taxing authority on Employee’s behalf when due). If the Accounting
Firm determines that no Excise Tax is payable by Employee or that the Reduced
Amount will apply, it shall so indicate to Employee in writing. Subject to the
following sentence and Section 15(c) hereof, any determination by the
Accounting Firm shall be binding upon the Company and Employee. As a result of
the uncertainty in the application of Section 4999 of the Code, it is
possible that the amount of the Gross-Up Payment determined by the Accounting
Firm to be due to (or on behalf of) Employee was lower than the amount actually
due (“Underpayment”). In the event that the Company exhausts its remedies
pursuant to Section 15(c) and Employee thereafter is required to make
a payment of any Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of Employee.


 


(c)           Employee shall notify the Company in writing
of any claim by the Internal Revenue Service that, if successful, would require
the payment by the Company of any Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after Employee
is informed in writing of such claim and shall apprise the Company of the


 


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nature of such claim and the date on which such claim is requested to
be paid. Employee shall not pay such claim prior to the expiration of the
thirty day period following the date on which it gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies Employee prior to
the expiration of such period that it desires to contest such claim, Employee
shall (i) give the Company any information reasonably requested by the
Company relating to such claim, (ii) take such action in connection with
contesting such claim as the Company 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 the Company, (iii) cooperate
with the Company in good faith in order to effectively contest such claim and (iv) permit
the Company to participate in any proceedings relating to such claim; provided,
however, that the Company 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 Employee 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 15(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct Employee to
pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and Employee 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 the Company shall
determine; provided, further, that if the Company directs Employee to pay such
claim and sue for a refund, the Company shall advance the amount of such
payment to Employee, on an interest-free basis, and shall indemnify and hold
Employee harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such
advance; provided, further, that if Employee is required to extend the statute
of limitations to enable the Company to contest such claim, Employee may limit
this extension solely to such contested amount. The Company’s control of the
contest shall be limited to issues with respect to which a Gross Up Payment
would be payable hereunder and Employee 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)           If, after the receipt by Employee of an
amount paid or advanced by the Company pursuant to this Section 15,
Employee becomes entitled to receive any refund with respect to a Gross-Up
Payment, Employee shall (subject to the Company’s complying with the
requirements of Section 15(c)) promptly pay to the Company the amount of
such refund received (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Employee of an amount
advanced by the Company pursuant to Section 15(c), a determination is made
that Employee shall not be entitled to any refund with respect to such claim
and the Company does not notify Employee in writing of its intent to contest
such denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof, the
amount of the Gross-Up Payment required to be paid.


 


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16.          Amendment; Assignment.


 


(a)           This Amended Agreement is binding on and is
for the benefit of the parties hereto and their respective successors, heirs,
executors, administrators and other legal representatives. Neither this Amended
Agreement nor any right or obligation under this Amended Agreement may be
assigned, transferred, pledged or encumbered by the Company or by the Employee,
except as otherwise permitted herein.


 


(b)           The Company may assign this Amended Agreement
in whole to any third party; provided that in the event of any assignment to
any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of the
Company, the Company shall require such successor expressly to assume and agree
to perform this Amended Agreement in the same manner and to the same extent
that the Company would have been required to perform them. if no such
succession had taken place. As used in. this Amended Agreement, “Company” shall
mean both the Company and any such successor that assumes and agrees to perform
this Amended Agreement by operation of law or otherwise.


 


17.          Withholding.


 


The
Company may withhold from any amounts payable to Employee hereunder any taxes
or other amounts that the Company may reasonably determine are required to be
withheld pursuant to any applicable law, regulation, or benefit plan.


 


18.          Entire Agreement; Severability; Applicable Law;
Dissolution Process; Counterparts.


 


(a)           This Amended Agreement constitutes the entire
agreement among the parties hereto with respect to the Employee’s employment,
and supersedes and is in full substitution for any and all prior understandings
or agreements with respect to the Employee’s employment.


 


(b)           This Amended Agreement may be amended only by
an instrument in writing signed by the parties hereto, and any provision hereof
may be waived only by an instrument in writing signed by the party or parties
against whom or which enforcement of such waiver is sought. The failure of any
party hereto at any time to require the performance by any other party hereto
of any provision hereof shall in no way affect the full right to require such
performance at any time thereafter, nor shall the waiver by any party hereto of
a breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision or a waiver of the provision itself or a
waiver of any other provision of this Amended Agreement.


 


(c)           This Amended Agreement shall be governed by
and construed in accordance with the laws of the Netherlands, without reference
to its principles of conflicts of law.


 


(d)           If any provision of this Amended Agreement or
portion thereof is so broad, in scope or duration, so as to be unenforceable,
such provision or portion thereof shall be interpreted to be only so broad as
is enforceable.


 


(e)           At the Company’s request and subject to the
Company’s compliance with


 


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applicable law; the Employee agrees to take all steps necessary or
appropriate to terminate this Amended Agreement as of the end of the minimum
applicable notice period on the terms and conditions set forth in this Amended
Agreement. by dissolution by the District Court, Cantonal Division, location
The Hague.


 


(f)            Notwithstanding any provision in this
Agreement to the contrary, any payment otherwise required to be made hereunder
to the Employee at any date as a result of the termination of the Employee’s
employment hereunder shall be delayed for such period of time as may be
necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the
Code. On the earliest date on which such payments can be made without violating
the requirements of Section 409A(a)(2)(B)(i) of the Code, there shall
be paid to Employee (or if Employee has died; to his estate), in a single cash
lump sum, an amount equal to the aggregate amount of all payments delayed
pursuant to the preceding sentence.


 


(g)           This Amended Agreement may be executed in
several counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.


 


(h)           The headings in this Amended Agreement are
inserted for convenience of reference only and shall not be a part of or
control or affect the meaning of any provision hereof


 


IN
WITNESS WHEREOF, the parties have executed this Amended Agreement on the date
first written above.


 


	
   

  	
  NEW
  SKIES SATELLITES B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Daniel S. Goldberg

  	
   

  
	
   

  	
  Daniel
  S. Goldberg

  
	
   

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Thai E. Rubin

  	
   

  
	
   

  	
  Thai
  E. Rubin

  
				



 


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