ex10_1.htm


    Exhibit
10.1


     

    AGREEMENT AND GENERAL
RELEASE

    


    THIS
AGREEMENT AND GENERAL RELEASE (“Agreement”) is made by and between TerreStar
Networks Inc., a Delaware corporation (hereinafter referred to as “Employer”),
and Neil Hazard, his heirs, executors, administrators, successors, and assigns
(collectively referred to herein as “Employee”) (Employer and Employee shall be
collectively referred to herein as “Parties”).  Capitalized terms used
herein and not otherwise defined herein are used as defined in the Employment
Agreement (as defined below). 

    


    RECITALS

    


    WHEREAS, Employer and Employee are
parties to a certain executive employment agreement dated January 15th, 2008
(the “Employment Agreement”), pursuant to which Employee was employed as
Employer’s Chief Financial Officer; and

    


    WHEREAS, the Employment Agreement
provided that, in the event Employee were terminated without Cause (as defined
in the Employment Agreement), Employee would be entitled to certain severance
benefits, conditioned upon Employee’s executing and delivering to the Employer a
mutual release in form and substance acceptable to Employer; and

    


    WHEREAS, Employer has decided to
terminate Employee’s employment with Employer without Cause, and has provided
Employee with written notice of its intent to do so, and Employee seeks the
severance benefits contemplated under his Employment Agreement; and

    


    WHEREAS, the parties desire to avoid
any conflict arising out of their employment relationship and the cessation of
that relationship, and to resolve and settle any potential disputes, claims,
allegations, charges, issues, differences or matters pertaining to, arising
from, or associated with Employee’s employment with Employer and/or the
separation from service;

    


    NOW, THEREFORE, in consideration of the
mutual agreements and promises contained herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereby
agree as follows:

    


    1.           Last Day
of Employment.  Employee’s last
day of employment with Employer is November 30, 2008.

    


    2.           Consideration.  In consideration
for Employee’s execution of this Agreement and General Release (“Agreement”) and
compliance with its terms, and in accordance with Section 5(e) of the Employment
Agreement, Employer agrees to provide Employee with the following:

    


    (i)           A
payment equal to one (1) times the Employee’s current annual Total Cash
Compensation, as defined in the Employment Agreement, as severance pay. This severance pay shall
be paid in substantially equal bi-weekly installments (consistent with the
Company’s payroll practice currently in effect for active employees at the
executive level) over a period of twelve (12) months, commencing no later than
thirty (30) days after the Employee’s separation from service by the Company
without Cause, except as otherwise provided in this Agreement.  For
avoidance of doubt, the above referenced payments shall be made in accordance
with the amounts and dates set forth on Schedule 1, attached
hereto.

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    (ii)         To
the extent that the Employee qualifies for, complies with the requirements of
and otherwise remains eligible for continuation of his health care insurance
benefits under COBRA, and payment of COBRA premiums is permitted under
applicable laws and regulations, the Employer shall pay the COBRA premiums until
the earlier of (A) such time as Employee obtains alternative employment and
becomes eligible for health insurance through his new employer and (B) eighteen
(18) months following the date of his separation from service.

    


    (iii)        The
vesting period for any unvested options, shares of restricted stock, or other
rights to purchase equity securities of the Employer, or its subsidiaries, or
respective affiliates (collectively, the “Award Shares”) that
were previously awarded to Employee pursuant to any Plan shall be accelerated
such that any unvested Award Shares awarded to Employee shall become fully
vested effective immediately prior to the effective date of Employee’s
separation from service.

    


    3.          
  No
Consideration Absent Execution of this Agreement.  Employee
understands and agrees that Employee would not receive the monies or other
consideration specified in Section 2 above, except for Employee’s execution of
this Agreement and fulfillment of the promises contained herein.

    


    4.         
   General
Release of All Claims.


    


    (i)           Employee
knowingly and voluntarily releases and forever discharges, to the fullest extent
permitted by law, TerreStar Networks Inc., TerreStar Corporation, Motient
Corporation, TerreStar Networks Holdings (Canada) Inc., TerreStar Networks
(Canada) Inc., TerreStar Global, Ltd., their parents, affiliates, subsidiaries,
divisions, predecessors, insurers, successors and assigns, and their current and
former employees, attorneys, officers, directors, insurers, shareholders, and
agents thereof, both individually and in their business capacities, and their
employee benefit plans and programs and their administrators and fiduciaries,
all of whom are intended third-party beneficiaries of this Agreement
(collectively referred to throughout the remainder of this Agreement as
“Employer”), of
and from any and all claims, known and unknown, asserted or unasserted, which
the Employee has or may have against Employer as of the date of execution of
this Agreement, including, but not limited to, any alleged violation
of:

    


    
      	
               
      

            	
              §

            	
              Title
      VII of the Civil Rights Act of
1964;

            


    

    


    
      	
               
      

            	
              §

            	
              Sections
      1981 through 1988 of Title 42 of the United States
  Code;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Employee Retirement Income Security Act of 1974 (“ERISA”) (except for any
      vested benefits under any tax qualified benefit
  plan);

            


    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              §

            	
              The
      Immigration Reform and Control Act;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Americans with Disabilities Act of
1990;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Age Discrimination in Employment
Act;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Workers Adjustment and Retraining Notification
  Act;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Fair Credit Reporting Act;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Sarbanes-Oxley Act of 2002;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Occupational Safety and Health Act;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Virginia Human Rights Act – Va. Code § 2.2-3900 et seq., any regulations
      thereunder, and any human rights law of any Virginia county or
      municipality;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Statutory Provisions Regarding Retaliation/Discrimination for Filing a
      Workers’ Compensation Claim – Va. Code § 65.2-308(A) and
    (B);

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Virginia Equal Pay Act – Va. Code §
40.1-28.6;

            


    

    


    
      	
               
      

            	
              §

            	
              The
      Virginians With Disabilities Act – Va. Code § 51.5-1 et
    seq.;

            


    

    


    
      	
               
      

            	
              §

            	
              AIDS
      Testing Law – Va. Code Ann.
§32.1-36.1;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Wage Payment and Hour Laws – Va. Code § 40.1-28.8 et
  seq.;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Occupational Safety and Health (VOSH) Law – Va. Code § 401-49.3 et
      seq.;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Code § 8.01-40 regarding unauthorized use of name or picture of any
      person;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Code § 40.1-27 regarding preventing employment by others of former
      employee;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Code § 40.1-28.7:2 regarding protection of crime victims’
      employment;

            


    

    


    
      	
               
      

            	
              §

            	
              Virginia
      Code § 18.2-465.1 regarding protection of court witnesses’ and jurors’
      employment;

            


    

    


    
      	
               
      

            	
              §

            	
              any other
      federal, state or local law, rule, regulation, or
    ordinance;

            


    

    


    
      	
               
      

            	
              §

            	
              any
      public policy, contract, tort, or common law;
or

            


    

    


    
      	
               
      

            	
              §

            	
              any
      basis for recovering costs, fees, or other expenses including attorneys’
      fees incurred in these matters.

            


    

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    EMPLOYEE
ACKNOWLEDGES THAT THIS IS A GENERAL RELEASE OF ALL CLAIMS AGAINST
EMPLOYER.

    


    (ii)           In
return, Employer agrees to release Employee of and from any and all claims,
causes of action, demands, obligations, agreements, promises, liability,
damages, costs and/or fees arising out of or relating to your employment with
the Employer, including Employee’s separation from service, up through the date
of this agreement.  EMPLOYER ACKNOWLEDGES THAT THIS IS A GENERAL
RELEASE OF ALL CLAIMS AGAINST EMPLOYEE.

    


    5.         
   Acknowledgments
and Affirmations.

    


    (a)           Employee
affirms that Employee has not filed, nor caused to be filed, nor is Employee
presently a party to, any claim, complaint or action against Employer in any
legal or administrative forum.

    


    (b)           Employee affirms that
Employee has reported all hours worked as of the date Employee signed
this Agreement and has been paid for and/or has received all compensation,
wages, bonuses, commissions, and/or benefits to which Employee may be
entitled.

     

    (c)           Employee
affirms that Employee has been granted any leave to which Employee was entitled
under the Family and Medical Leave Act or related state or local leave or
disability accommodation laws, and that there has been no retaliation as a
result of, interference with, or restraint of Employee’s use of such leave.


     

    (d)        
  Employee affirms that Employee has no known workplace injuries or
occupational diseases.

    


    (e)           Employee
affirms that Employee has not divulged any proprietary or confidential
information of Employer and will continue to maintain the confidentiality of
such information consistent with Employer’s policies and Employee’s agreement(s)
with Employer and/or common law.

    


    (f)        
   Employee affirms that Employee has not been retaliated against
for reporting any allegations of wrongdoing by Employer or its officers,
including any allegations of corporate fraud.

    


    (g)           Employee
acknowledges and agrees that he will resign all public and private
director/officer positions he holds in Employer or any related or affiliated
corporations or business entities, including but not limited to any positions
held with TerreStar Networks Inc., TerreStar Corporation, Motient Corporation,
TerreStar Networks Holdings (Canada) Inc., TerreStar Networks (Canada) Inc.,
TerreStar Global Ltd., their parents, affiliates, subsidiaries, divisions,
predecessors, insurers, successors and assigns.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (h)           Since,
as part of Employee’s employment, Employee had access to information of a nature
not generally disclosed to the public, Employee acknowledges and affirms that
Employee will keep confidential and not disclose to anyone, the business,
proprietary, and trade secret information of Employer in Employee’s possession,
as well as the personal, confidential, or otherwise proprietary information
regarding Employer’s employees, and personnel practices and related
matters.  This obligation is understood to be in addition to any
agreements Employee signed with Employer concerning confidentiality and
non-disclosure, non-competition, non-solicitation, and assignment of inventions
or other intellectual property developments, which agreements will remain in
full force and effect.  Employee expressly acknowledges and agrees
that the obligations imposed on Employee in the sections of the Employment
Agreement captioned “Company
Property”, “Non-Competition;
Non-Solicitation”, “Protection of Company
Property”, “Intellectual Property”,
“Publicity”, “Non-Disparagement” and “Arbitration” (Sections 6, 7,
8, 9, 13, 14 and 21, respectively) remain in full force and effect subsequent to
the effective date of Employee’s separation from service and Employee’s
execution of this Agreement.  Employer acknowledges that the
obligations imposed on it under the “Arbitration” and “Indemnification” sections of
the Employment Agreement (Sections 21 and 22, respectively) remain in full force
and effect subsequent to the effective date of Employee’s separation from
service and Employer’s execution of this Agreement.

     

    (i)         
  Employee affirms and agrees that Employee will not take, copy, use
or distribute in any form or manner documents or information that Employer deems
proprietary, including, but not limited to, trade secrets, research and
development materials, lists of customers or potential customers, financial
information, business and strategic plans, software programs and codes, access
codes, and other similar materials or information.

    


    (j)        
   Both parties acknowledge that this Agreement does not limit
either party’s right, where applicable, to file or participate in an
investigative proceeding of any federal, state or local governmental
agency.  To the extent permitted by law, Employee agrees that if such
an administrative claim is made, Employee shall not be entitled to recover any
individual monetary relief or other individual remedies.  Employee
further agrees that Employee will not provide information or testimony in any
court action against Employer except pursuant to a lawful subpoena or other
valid legal process and that Employee will notify Employer of any subpoena or
informal request to testify in Court that Employee receives within 3 business
days after Employee’s receipt of such subpoena or informal request.

    


    (k)           Both
parties acknowledge and affirm that Employee’s separation from service did not
arise in the context of a “Change of Control” as that term is defined in the
Employment Agreement.

     

    6.          
 Non-disparagement;
Employment References.

     

    (a)           Employee agrees not to defame,
disparage or demean Employer in any manner whatsoever.

     

    (b)           Employer,
and its officers and directors serving in such capacity, agree not to defame,
disparage or demean Employee in any manner whatsoever.  Employer
further agrees that all reference checks regarding Employee will be referred to
Employer’s Human Resources Department and that the only information that will be
provided in response to inquiries from prospective employers about the Employee
shall be the dates of employment and position held with Employer.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    7.          
  Return of
Property.

    


    (a)           The
Parties agree that nothing in this Agreement is intended to limit or prohibit,
or shall be construed as limiting or prohibiting, either Party from providing
information in response to a lawfully issued subpoena or otherwise complying
with any legal requirement, or from participating in any investigation if
requested to do so by the EEOC or other federal, state or local
agency.  The Parties further agree that the existence and substance of
this Agreement also may be disclosed in order to enforce its terms.

    


    (b)           Employee
affirms that Employee has returned all of Employer’s property, documents
(including paper and electronic versions), and/or any confidential information
belonging to Employer in Employee’s possession or control.  Employee
also affirms that Employee is in possession of all of Employee’s property that
Employee had at Employer’s premises and that Employer is not in possession of
any of Employee’s property.

     

    8.       
     Governing
Law and Interpretation.  This Agreement
shall be governed and conformed in accordance with the laws of the Commonwealth
of Virginia without regard to its conflict of laws provisions.  In the
event of a breach of any provision of this Agreement, either Party may institute
an action specifically to enforce any term or terms of this Agreement and/or to
seek any damages for breach.  Should any provision of this Agreement
be declared illegal or unenforceable by any court of competent jurisdiction and
should such provision be unable to be modified to be enforceable, excluding the
general release language, such provision shall immediately become null and void
in such jurisdiction, leaving the remainder of this Agreement in full force and
effect.

    


    9.          
   Nonadmission
of Wrongdoing.  The Parties agree
that neither this Agreement nor the furnishing of the consideration for this
Agreement shall be deemed or construed at any time for any purpose as an
admission by Employer of wrongdoing or
evidence of any liability or unlawful conduct of any kind.

    


    10.           Amendment.  This
Agreement may not be modified, altered or changed except in writing and signed
by the Parties wherein specific reference is made to this
Agreement.

     

    11.           Entire
Agreement.  Except as set
forth herein, this Agreement sets forth the entire agreement among the Parties
hereto, and fully supersedes any prior agreements or understandings among the
Parties regarding the subject matter hereof, except any restrictive covenants to
which Employee is subject as a result of or in connection with his employment
with Employer (including any non-competition, non-solicitation, non-disclosure,
or rights to inventions agreements executed by Employee). Employee acknowledges
that Employee has not relied on any representations, promises, or agreements of
any kind made to Employee in connection with Employee’s decision to accept this
Agreement, except for those set forth in this Agreement.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    12.           Joint
Participation and Negotiation of Agreement.  The Parties have
had the opportunity to seek the advice of legal counsel and the opportunity to
review, comment upon, and negotiate this Agreement.  Accordingly, it
is agreed that no rule of construction shall apply against any Party or in favor
of any Party.  This Agreement shall be construed in light of the fact
that the Parties jointly prepared this Agreement, and any uncertainty or
ambiguity shall not be interpreted against any one Party and in favor of the
other.

     

    13.           OWBPA
Considerations.

     

    (a)           IN ACCORDANCE WITH THE REQUIREMENTS
OF THE OLDER WORKER BENEFIT PROTECTION ACT, EMPLOYEE IS ADVISED THAT EMPLOYEE HAS
UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS
AGREEMENT.  EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR
TO SIGNING THIS AGREEMENT.

    


    EMPLOYEE
MAY REVOKE THE PORTION OF THIS AGREEMENT THAT WAIVES ALL CLAIMS UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT (ADEA) FOR A PERIOD OF SEVEN (7) CALENDAR DAYS
FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT.  ANY REVOCATION
WITHIN THIS PERIOD MUST BE SUBMITTED IN WRITING TO BILL SPARKS, VICE PRESIDENT
OF HUMAN RESOURCES FOR EMPLOYER, AND MUST STATE, “I HEREBY REVOKE MY ACCEPTANCE
OF OUR AGREEMENT AND GENERAL RELEASE.”  THE REVOCATION MUST BE
PERSONALLY DELIVERED TO MR. SPARKS, TRANSMITTED BY ELECTRONIC MAIL OR FACSIMILE
(AT (703) 483-7990), OR SENT BY OVERNIGHT DELIVERY AND RECEIVED BY MR SPARKS
WITHIN EIGHT DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT.  THE PARTIES
SPECIFICALLY AGREE THAT THE CONSIDERATION SET FORTH IN SECTION 2 OF THIS
AGREEMENT IS ALLOCATED AS FOLLOWS:  $750 TO EMPLOYEE’S RELEASE OF ADEA
CLAIMS, AND THE REMAINDER TO EMPLOYEE’S OTHER OBLIGATIONS AS SET FORTH IN THIS
AGREEMENT, INCLUDING EMPLOYEE’S RELEASE OF ALL OTHER CLAIMS RELEASED IN THIS
AGREEMENT.

    


    EMPLOYEE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT, DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO TWENTY-ONE (21) CALENDAR
DAY CONSIDERATION PERIOD.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    EMPLOYEE
ACKNOWLEDGES THAT, AFTER DUE CONSIDERATION, EMPLOYEE FREELY AND KNOWINGLY ENTERS
INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE
HAS OR MIGHT HAVE AGAINST EMPLOYER.

    


    The
Parties knowingly and voluntarily sign this Agreement and General Release as of
the date(s) set forth below:

     

    
      
        
          
            
              
                
                  
                    
                      	 	Employee  	 	 	TerreStar
      Networks Inc.	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	By:	
                              /s/
      Neil Hazard  

                            	 	 	By: 	
                              /s/
      Jeffrey W. Epstein

                            	 
	 	
                              Neil
      Hazard 

                            	 	 	 	
                              Jeffrey
      W. Epstein

                            	 
	 	
                               

                            	 	 	 	
                               

                            	 
	Date:	November 24,
2008 	 	 	Date: 	November
      24, 2008	 


                    

                  

                

              

            

          

        

      

    

     

     

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    


    SCHEDULE
1

    


    SEPARATION COMPENSATION
PAYMENTS

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                          DATE

                                        	
                                          AMOUNT

                                        
	
                                          Lapse
      of Ability to Revoke Release

                                        	
                                          $  57,600
      ($25,600 + accrued PTO)

                                        
	
                                          Following
      consecutive 25 bi-weekly Pay 

                                          Periods
      based on Company’s Current Payroll 

                                          Schedule
      (amount per pay period)

                                        	
                                          $  25,600.00
      (total $640,000.00)

                                        
	
                                          TOTAL

                                        	
                                          $  697,600.00

                                           

                                        


                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

     

     

     

     

    9