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EMPLOYMENT AGREEMENT
This Agreement is entered into, effective as of the 1st day of July, 1997,
by and between American Telecasting, Inc., ("ATI") a Delaware corporation, and
Xxxxxx X. Xxxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee has served as an employee of ATI pursuant to an
Employment Agreement dated January 4, 1996 between ATI and Employee; and
WHEREAS, ATI wishes to engage Employee's services as President and Chief
Executive Officer of ATI upon the terms and conditions hereinafter set forth;
and
WHEREAS, Employees wishes to work for ATI upon the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the promises and mutual promises set
forth herein, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Employment; Duties. ATI hereby agrees to employ Employee effective as
of the Effective Date as President and Chief Executive Officer, or in any other
executive capacity as ATI shall determine is necessary or appropriate in
connection with the operation of ATI, and Employee hereby agrees to serve in
such capacity. Employee's principal areas of responsibility, subject to
modification by ATI, shall be the general supervision and management of the
business of ATI. Employee shall perform such additional duties of a
responsible nature and not inconsistent with his position with ATI as shall be
designated from time to time by ATI. Employee agrees to use his best efforts to
promote the interests of ATI and to devote his full business time and energies
to the business and affairs of ATI.
2. Term of Agreement. The employment hereunder shall be for the period
which shall commence on July 1, 1997 (the "Effective Date") and shall continue,
unless earlier terminated in accordance with the terms of Paragraph 4, until
June 30, 1998 (the "Term of Employment").
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(A) Base Salary. As compensation for employees services rendered by the
Employee hereunder, ATI shall pay to Employee, effective retroactively as of
January 1, 1997, a base salary at an annual rate equal to $203,200 per year
("Base Salary"). After January 1, 1998, the Base Salary may be increased by ATI
in its discretion. The Base Salary shall be payable to the Employee on a
semi-monthly basis, in accordance with ATI's standard policies for management
personnel.
(b) Bonus. Employee shall be eligible to participate in the Executive
Bonus program established by the Compensation Committee of the Board of
Directors.
(c) Benefits. Employee shall be entitled to participate in all benefit
programs established by ATI and generally applicable to ATI's executive
employees. Employee shall be reimbursed for legitimate business expenses
incurred in the course of his employment with ATI pursuant to ATI policies as
established from time to time.
4. Termination of Employment Relationship.
(a) Death or Incapacity. This Agreement shall terminate immediately upon
the death or incapacity of Employee.
(b) Termination by ATI. This Agreement may be terminated by ATI with or
without Cause and, in such event, the Term of Employment shall terminate at
the termination date designated by ATI. For the purpose of this Agreement,
"Termination for Cause" or "Cause" shall include, but is not limited to, any
conduct involving dishonesty or moral turpitude or failure of the Employee to
devote full business time and energies to the business and affairs of ATI. ATI
may terminate Employee with or without Cause without prior notice.
(c) Termination by Employee. Employee may terminate this Agreement for
any reason and at any time upon giving thirty (30) days prior notice; provided,
however, that Employee's obligations under Paragraph 5 shall survive any
termination of this Agreement by Employee, by ATI or otherwise.
(d) Payment Upon Termination. If this Agreement is terminated by Employee
or by ATI for Cause prior to the completion of the Term of Employment, the
employee shall not be entitled to severance pay of any kind but shall be
entitled to all reasonable reimbursable expenses incurred by Employee and the
Base Salary earned by Employee prior to the date of termination, and all
obligations of ATI under Paragraph 3 hereof shall terminate upon
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the termination date designated by ATI, except to the extent otherwise required
by law. In the event that Employee is terminated without Cause, ATI shall pay
Employee, on a semi-monthly basis as severance pay, six months Base Salary.
5. Non-Competition Agreement. Employee acknowledges that his services
to be rendered hereunder have a unique value to ATI, for the loss of which ATI
cannot be adequately compensated by damages in an action at law. In view of the
unique value to ATI of the services of Employee, and because of the
Confidential Information to be obtained by or disclosed to Employee, and as a
material inducement to ATI to enter into this Employment Agreement and to pay
to Employee the compensation referred to in Paragraph 3 hereof, Employee
covenants and agrees that:
(a) While Employee is employed by ATI, and for a period of one (1) year
thereafter, the Employee will not, either personally, whether as principal,
partner, employee, agent, distributor, representative, stockholder or
otherwise, or with or through any other person or entity operate or participate
in the wireless cable business or any other business which competes with ATI as
of the date of Employee's termination date (for purposes of Paragraph 5 hereof,
ATI shall be deemed to include all subsidiaries and joint ventures of ATI
whether now or hereafter affiliated with ATI) nor will Employee directly or
indirectly (i) solicit any person who has been a supplier or customer of ATI
during the period of one (1) year prior to the termination of employment, or
(ii) solicit or acquire wireless cable television channel licenses or leases of
wireless cable television channel licenses; provided, however, that during the
period of one (1) year following termination of his employment with ATI
Employee may own up to 5% of the stock of another company in the wireless
cable business which is traded on a national stock exchange or on the NASDAQ
National Market System. This noncompetition clause shall apply in the
geographic territory comprised of the entire United States and any other
geographic area in which ATI is engaged in business.
(b) It is agreed that the Employee's services are unique, and that any
breach or threatened breach by the Employee of any provisions of this
Paragraph 5 may not be remedied solely by damages. Accordingly, in the event of
a breach or threatened breach by the Employee of any of the provisions or this
Xxxxxxxxx 0, XXX shall be entitled to injunctive relief, restraining the
Employee and any business, firm, partnership, individual, corporation, or
entity participating in such breach or attempted breach, from engaging in any
activity which would constitute a breach of this Paragraph 5. Nothing herein,
however, shall be construed as prohibiting ATI from pursuing any other remedies
available at law or in equity for such breach or threatened breach, including
the recovery of damages.
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(c) The provisions of this Paragraph 5 shall survive the termination of
this Agreement and the termination of Employee's employment.
6. Assignability. Neither party may assign its rights and obligations
under this Agreement without the prior written consent of the other party,
which consent may be withheld for any reason or for no reason; provided that
in the event ATI is reorganized or restructured, ATI may assign its rights and
obligations under this Agreement without restriction or limitation to any
assignee which continues to conduct substantially the same business as ATI and
in which ATI controls, directly or indirectly, 50% or more of the voting power.
7. Severability. In the event that any of the provisions of this Agreement
shall be held to be invalid or unenforceable, the remaining provisions shall
nevertheless continue to be valid and enforceable as though invalid or
unenforceable parts had not been included therein. Without limiting the
generality of the foregoing, in the event that any provision of Paragraph 5
relating to time period and/or areas of restriction shall be declared by a
court of competent jurisdiction to exceed the maximum time period or area(s)
such court deems enforceable, said time period and/or area(s) of restriction
shall be deemed to become, and thereafter be, the maximum time period and/or
area for which such are enforceable.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior agreements or understandings among the parties hereto with respect to the
subject matter hereof.
9. Amendments. This Agreement shall not be amended or modified except by a
writing signed by both parties hereto.
10. Miscellaneous. The failure of either party at any time to require
performance of the other party of any provision of this Agreement shall in no
way affect the right of such party thereafter to enforce the same provision,
nor shall the waiver by either party of any breach of any provision hereof be
taken or held to be a waiver of any other or subsequent breach, or as a waiver
of the provision itself. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, without regard to the
conflict of laws of such State. The benefits of this Agreement may not be
assigned nor any duties under this Agreement be delegated by the Employee
without the prior written consent of ATI, except as contemplated in this
Agreement. This Agreement and all of its rights, privileges, and obligations
will be binding upon the parties and all successors and agreed to assigns
thereof.
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11. Survival. The rights and obligations of the parties shall survive the
Term of Employment to the extent that any performance is required under this
Agreement after the expiration or termination of such Term of Employment.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same document.
13. Notices. Any notice to be given hereunder by either party to the
other may be effected in writing by personal delivery, or by mail, certified
with postage prepaid, or by overnight delivery service. Notices sent by mail or
by an overnight delivery service shall be addressed to the parties at the
addresses appearing following their signatures below, or upon the employment
records of ATI but either party may change its or his address by written notice
in accordance with this paragraph.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
AMERICAN TELECASTING, INC. EMPLOYEE
By: [ILLEGIBLE] /s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
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