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EXHIBIT 10.70
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into effective as of October 1,
1995, by and between Tele-Communications, Inc. ("TCI"), a Delaware corporation,
and Xxxx Xxxxxx (the "Executive").
RECITALS
TCI conducts, among other enterprises and businesses, an
education business consisting primarily of an electronic delivery of education
services to homes, schools and businesses (the "Education Business"); and
TCI desires to employ Executive to manage the Education Business;
and
Executive desires to accept employment with TCI as manager of the
Education Business; and
TCI and Executive desire to form a corporation which corporation
will own and operate either directly or indirectly all of the Education
Business (such corporation hereinafter referred to as "Education Company"); and
Each of TCI and Executive desire to evidence their agreement that
Executive will be the Chairman of the Board and Chief Executive Officer of the
Education Company and become an employee of the Education Company and TCI on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the parties hereto agree as follows:
1. Employment.
TCI hereby agrees to employ Executive as an employee of TCI and
as the Chairman of the Board and Chief Executive Officer of the Education
Business commencing October 1, 1995 and extending through September 30, 2000
(the "Term of Employment"). TCI and Executive will act promptly after the
execution of this Agreement to form the Education Company and cause Executive
to be elected as Chief Executive Officer of the Education Company.
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2. Compensation.
a. TCI or the Education Company (hereinafter sometimes
collectively referred to as the "Employer") shall pay the Executive during the
Term of Employment a Base Salary of not less than $400,000 per annum. The
Employer, in its discretion, may increase (but may not decrease) the
Executive's Base Salary (and if so increased may not be thereafter decreased)
from time to time.
b. During the Term of Employment, the Executive shall be
eligible to participate in TCI's employee benefit plans, programs and practices
on the same basis as other salaried employees of TCI and on the same basis as
those similarly situated senior executives of TCI. Executive shall be entitled
to four weeks of vacation per year, which may be taken in accordance with TCI's
generally applicable vacation policy.
c. Upon the execution of this Agreement, Executive shall be
granted under the Tele-Communications, Inc. 1996 Stock Incentive Plan
nonqualified stock options on 100,000 shares of the Series A TCI Group Common
Stock, a par value of $1.00 per share, of Tele-Communications, Inc. at an
exercise price equal to $17 per share. Such options shall have a 10 year term,
vesting and other provisions customary in option grants to senior executives of
TCI and shall be evidenced by an option agreement substantially in the form
attached hereto as Exhibit A.
d. Promptly after the formation of the Education Company,
Executive shall purchase 15% of the common equity of the Education Company at
the fair value thereof at such time provided that Executive enters into an
agreement regarding such shares having terms described in Exhibit B and hereby
incorporated as part of this Agreement.
e. Executive shall be reimbursed by Employer for all
reasonable expenses incurred in connection with his employment pursuant to this
Agreement, in accordance with the prevailing policies of the Employer.
3. Duties and Responsibilities of the Executive as an Employee.
During the term of Employment, the Executive shall devote as much
time and services as may be required in order to perform his duties and
responsibilities assigned to him by the Chief Executive Officer of TCI ETC
Holding, Inc. (TCI ETC Holdings being the entity that initially will own all of
the stock of the Education Company) or such other entity which shall own the
majority of the voting securities of the Education Company but in any event not
less than the majority of his business time, to the best of his abilities and
with reasonable diligence, which duties and responsibilities shall be
consistent with such matters normally assigned to the Chairman of the Board and
the Chief Executive Officer of a company. The responsibility and duties of the
Executive would include, not by way of limitation, revenues, expenditures and
capital budgets, including any capital expenditures (and, if necessary,
funding) which must be made by other TCI
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entities in order to provide requisite transmission services. The parties
contemplate that, while a substantial portion of the Education Company's
business will be conducted in Denver, Colorado, Executive will reside in and
his business headquarters will be in suburban Virginia or the District of
Columbia, and Employer will pay Executive's reasonable costs incurred in
commuting between business locations in Virginia or the District of Columbia
and Colorado and performing services pursuant to this Agreement. It is
understood that Executive has substantial involvement with benevolent,
political professional and civic affairs and as a director, consultant or
advisor to or partner or member of entities including Xxxxx & Xxxxxx, CICO
International LLC, Circus Circus Enterprises, Inc., Xxxxxx Associates LLC,
Cyberonics, Crop Growers Corporation, Xxxxxxxxx-Xxxxxxx, Inc., ICF Xxxxxx
International, Inc., International Planning & Analysis Center and related
entities, Xxxxxxx Aerospace Corporation, Xxxxxxxx Wertheim Investment Services,
Inc., Xxxxxxxx Xxxxxxxx & Co. Incorporated, Service Corporation International,
Specialty Retail Group, Inc., Sports International, Tanknology Environmental,
Inc., Togar LLC and Xxxxx and shall be permitted to continue his involvement
with such entities and to engage in other such activities with other entities
in the future.
4. Restrictive Covenants.
a. Upon termination of Executive's employment, the Executive
agrees for the one year period the following such termination, unless this
termination is by TCI and/or the Education Company without "cause" (as defined
herein), not to compete, directly or indirectly, with TCI or the Education
Company or any of their affiliates are subsidiaries by engaging in or being
employed by a rendering services or advice to any business or enterprise which
directly competes in a material respect with the business of the Education
Business. Executive acknowledges that in an event of a breach of this covenant
by Executive, the remedies of the Education Company and/or TCI at law may be
inadequate to protect them from injury which may occur and therefore the
Executive consents to either TCI or the Education Company seeking injunctive
relief in a court of competent jurisdiction to restrict Executive's violation
of this covenant not to compete which violation of such covenant could result
in irreparable injury to TCI and/or the Education Company. Nothing herein
contained shall be construed as denying Executive the right to own securities
of any corporation which is listed on a national securities exchange or quoted
in the NASDAQ System to the extent of an aggregate of 5% of the amount of such
securities outstanding.
b. The Executive shall hold in a fiduciary capacity for the
benefit of TCI and the Education Company all secret or confidential
information, knowledge or data relating to the Education Business which shall
have been obtained by the Executive during the Executive's employment by either
TCI or the Education Company or during Executive's serving as a member of the
Board of Directors of either and which shall not be or become public knowledge
(other than by acts of the Executive or representatives of the Executive in
violation of this Agreement). After termination of the Executive's employment
under this Agreement, the Executive shall not, without the prior written
consent of the appropriate of TCI or the Education Company, or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than TCI or the Education
Company and those designated by either.
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5. Source of Payments.
All payments provided in this Agreement shall be made in cash
from the general funds of either TCI or the Education Company and no special or
separate funds shall be established and no other subrogation of assets shall be
made to assure payment.
6. ENTIRE AGREEMENT.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS
BETWEEN THE PARTIES. THIS AGREEMENT SUPERSEDES ANY PRIOR EMPLOYMENT, SEVERANCE
OR SIMILAR AGREEMENT BETWEEN TCI AND ANY OF ITS AFFILIATES AND THE EXECUTIVE.
7. General Provisions.
a. Assignability; Binding Effect. This Agreement is personal
to the Executive and shall not be assignable by the Executive otherwise than by
will or the laws of descent and distribution. This Agreement shall inure to
the benefit of and be binding on and enforceable by the Executive's legal
representatives and permitted successors and assigns. The rights of the
Employer under this Agreement may be assigned or transferred by the Employer to
any subsidiary of TCI, provided that the assignee or transferee assumes all the
liabilities, obligations and duties of the assignor, as contained in this
Agreement, either contractually or as a matter of law. This Agreement shall
inure to the benefit of and be binding on and enforceable by the successors and
assigns of the Employer.
b. No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, execution, attachment, levy or similar process or assignment,
voluntary or involuntary, by operation of law or otherwise, and any attempt, to
effect such action shall be null, void and of no effect.
c. Notices. All notices and other communications hereunder
shall be in writing and shall be given if by the Executive to the Employer by
telecopy or facsimile transmission at the telecommunications number set forth
below and if by either the Employer or the Executive either by hand delivery to
the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
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If to the Executive:
Xxxxxx Associates, Inc.
1325 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
If to the Employer:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
or to such address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
8. Modification and Waiver.
a. Amendment of Agreement. This Agreement may not be
modified or amended except by an instrument in writing signed by the parties
hereto.
b. Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there by an estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall
be deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
9. Severability.
If any provision of this Agreement shall be held invalid in whole
or in part, such invalidity shall in no way affect the rest of such provision
not held so invalid, and the rest of such provision, together with all
provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect. If this Agreement or any portion thereof
conflicts with any law or regulation governing the activities of the Employer,
this Agreement or appropriate portion thereof shall be deemed invalid and of no
force or effect.
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10. GOVERNING LAW.
THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED IN THE STATE OF
COLORADO, AND ITS VALIDITY, INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL
BE GOVERNED BY THE LAWS OF SAID STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
11. Titles; References.
The titles of the Sections and subsections of this Agreement are
for the convenience of reference only and are not to be considered in
construing this Agreement. References herein to Sections or subsections are to
Sections or subsections of this Agreement unless otherwise specified.
12. Termination.
a. Termination by the Employer. Executive's employment by
the Employer may be terminated by the Employer only as provided in clauses (i),
(ii) and (iii) below.
(i) Upon the death of Executive.
(ii) Effective as of December 31 of any year, upon giving
written notice of such termination of Executive six (6) months prior to
the effective date thereof and by paying to Executive in a lump sum in
cash upon such termination all remaining compensation that would have
been payable under Section 2 hereof if this Agreement remained in full
force and effect for the balance of the Term of Employment.
(iii) At any time for "cause," which for purposes of this
Agreement shall be deemed to have occurred only on the happening of any
of the following:
(A) the plea of guilty to, or conviction for, the
commission of a felony offense by Executive; provided, however, that
after indictment, the Employer may suspend Executive from the rendition
of services but without limiting or modifying in any other way the
Employer's obligations under this Agreement;
(B) a material breach by Executive of a material
fiduciary duty owed to the Employer;
(C) a material breach by Executive of the covenants
made by him in Section 4 hereof; or
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(D) the willful and gross neglect by Executive of the
material duties specifically and expressly required by this Agreement;
provided, however, that any claim that "cause," within the meaning of
clause (B), (C) or (D) above, exists for the termination of Executive's
employment may be asserted on behalf of the Employer only by a duly
adopted resolution of the Board of Directors of TCI and only after 30
days prior written notice to Executive during which period he may cure
the breach or neglect that is the basis of any such claim, if curable.
b. Effect of Termination by Employer. If Executive's
employment by the Employer is terminated by the Employer pursuant to Section
12(a) hereof, all compensation under Section 2 of this Agreement that has
accrued in favor of Executive as of the date of such termination, to the extent
unpaid or undelivered shall be paid or delivered to Executive on the date of
termination. Upon such termination of Executive's employment and payment of
such amount (and, if applicable, the full amount payable pursuant to clause ii
of Section 12(a)), the Employer's obligations under this Agreement shall
terminate, except as provided in Section 2(e) (as it relates to expenses
incurred prior to such termination) and Section 2(d). Executive acknowledges
that his obligations under Section 4 hereof will survive any such termination.
c. Termination by Executive. Executive shall have the right
to terminate his employment by the Employer, and be relieved of any obligation
to render or provide any further services hereunder upon six months prior
written notice to the Employer of the effective date of such termination.
If Executive's employment by the Employer is terminated by
Executive pursuant to this Section 12(c), all compensation under Section 2 of
this Agreement that has accrued in favor of Executive as of the date of such
termination, to the extent unpaid or undelivered shall be paid or delivered to
Executive in a lump sum in cash on the date of termination. Upon such
termination of Executive's employment and payment of such amounts, Executive
and the Employer shall each be relieved of any further obligations under this
Agreement, except (in the case of Executive) as provided in Section 4 of this
Agreement, and except (in the case of the Employer) as provided in Section 2(e)
(as it relates to expenses incurred prior to such termination) and Section
2(d).
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IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its Board of
Directors, the Employer has caused these presents to be executed in its name on
its behalf effective as of the Effective Date.
/s/ XXXX XXXXXX
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Xxxx Xxxxxx
TELE-COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name:
Title:
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EXHIBIT A
STANDARD TCI OPTION AGREEMENT
