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EXHIBIT 16
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into effective January 1, 2000, by and
between Ascent Sports Holdings, Inc., a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxxxx Xx. (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company is a wholly owned subsidiary of Ascent
Entertainment Group, Inc., a Delaware corporation ("Ascent"), and was formed to
own and operate Ascent's sports-related businesses, the Denver Nuggets Limited
Partnership, Colorado Avalanche, LLC and Ascent Arena Company, LLC;
WHEREAS, the Company desires to employ the Executive as President of
the Company, and the Executive desires to accept such employment, on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Term. The Company hereby agrees to employ the Executive as
President of the Company and the Executive agrees to be so employed for a period
commencing January 1, 2000 and ending August 31, 2000 (the "Term").
2. Performance and Scope. During the Term hereof, the Executive
agrees to devote his full time and best efforts in the discharge of his duties
for the Company. The Executive shall report directly to the Sports Businesses
Committee of the Board of Directors of Ascent (the "Committee"). Except as
otherwise provided in existing employment agreements, all other employees of the
Company and its subsidiaries shall report, directly or indirectly, to the
Executive. The parties hereto understand that the Executive shall at all times
be subject to the authority and direction of the Committee and the Board of
Directors of Ascent.
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3. Compensation.
a. As remuneration for the full-time services to be
rendered to the Company during the Term, Executive shall be paid total
compensation consisting of (i) a monthly base salary of $50,000 and (ii)
benefits provided by Section 3(b) hereof. The base salary shall not be decreased
during the Term.
b. During the Term, in addition to his base salary, the
Executive shall receive such benefits as may be extended to other senior
executives of Ascent and Ascent's affiliates, including, if applicable, group
life and health insurance benefits, retirement benefits, deferred compensation
benefits, and expense reimbursements.
4. Termination of Employment. Notwithstanding the provisions of
Section 1 hereof, Employee's employment hereunder may be terminated prior to the
expiration of the Term upon the occurrence of any of the events described in
clauses (i) through (v) of this Section 4. If the termination event is described
in clause (i), (ii) or (iii), the Company shall pay to the Executive (or the
Employee's estate, in the case of clause (ii)), within the five days immediately
following the date of such termination of employment, a lump sum amount equal to
the lesser of three-months base salary or the aggregate base salary otherwise
payable to the Executive through the end of the Term. If the termination event
is described in clause (iv) or (v), the Executive shall forfeit his right to any
and all compensation and benefits he would have been entitled to receive with
respect to any employment period which would otherwise have followed the date of
such termination, but he shall not forfeit any rights or benefits he would
otherwise receive or retain in the absence of this Agreement. The events of
termination are as follows:
(i) At any time by the Committee, without "Cause" (as
defined in Section 4(v) hereof); or
(ii) In the event of Employee's death; or
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(iii) By the Committee in the event Executive is unable to
perform his services hereunder for a continuous period of thirty (30) days
by reason of his physical or mental illness or incapacity, as determined in
good faith by the Committee; or
(iv) At the option of Executive at any time upon ninety
(90) days prior written notice to the Committee; or
(v) At any time by the Committee, for "Cause", which, for
purposes of this Agreement, shall mean (x) the continued and deliberate
failure of the Executive to perform his material duties in a manner
substantially consistent with the manner reasonably prescribed by the
Committee and in accordance with the terms of this Agreement (other than
any such failure resulting from his incapacity due to physical or mental
illness), which failure continues for ten (10) business days following the
Executive's receipt of written notice from the Committee specifying the
manner in which the Executive is in default of his duties, (y) the engaging
by the Executive in intentional serious misconduct that is materially and
demonstrably injurious to the Company, Ascent or their affiliates, or (z)
any material breach by the Executive of Section 7 hereof.
5. Liability Insurance. The Executive shall be covered under the
liability insurance policy for directors and officers of Ascent and its
affiliates to the same extent as other officers of Ascent and its affiliates.
6. No Mitigation. The Executive shall have no duty to mitigate
his damages, if any, arising from any termination of his employment hereunder.
7. Noncompetition and Other Covenants.
a. Trade Secrets; Return of Documents and Property. The
Executive acknowledges that during the course of his employment he will receive
secret, confidential and proprietary information ("Trade Secrets") of the
Company, Ascent and their affiliates and of other companies with which the
Company, Ascent and their affiliates do business on a confidential basis and
that the Executive will create and develop Trade Secrets
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for the benefit of the Company, Ascent and its affiliates. Trade Secrets shall
include, without limitation,architectural and engineering data, customer and
other marketing data, custom databases, "know-how," formulae, secret processes
or machines, inventions, computer programs (including documentation of such
programs) and other information of a similar nature to the extent not available
to the public, and plans for future development. All Trade Secrets disclosed to
or created by the Executive during his employment hereunder shall be deemed to
be the exclusive property of the Company. The Executive acknowledges that Trade
Secrets have economic value to the Company due to the fact that Trade Secrets
are not generally known to the public or the trade and that the unauthorized use
or disclosure of Trade Secrets is likely to be detrimental to the interests of
the Company, Ascent and their affiliates. The Executive therefore agrees to hold
in strict confidence and not to disclose to any third party any Trade Secret
acquired or created or developed by the Executive during the Term of this
Agreement except (i) when the Executive is required to use or disclose any Trade
Secret in the proper course of the Executive's rendition of services to the
Company, Ascent or their affiliates hereunder, (ii) when such Trade Secret
becomes public knowledge other than through a breach of this Agreement, or (iii)
when the Executive is required to disclose any Trade Secret pursuant to any
valid court order in which the Executive is required to disclose such Trade
Secret. The Executive shall notify the Company immediately of any such court
order in order to enable the Company to contest such order's validity. After
termination of this Agreement, the Executive shall not use or otherwise disclose
Trade Secrets unless such information (x) becomes public knowledge or is
generally known in the sports industry among executives comparable to the
Executive other than through a breach of this Agreement, (y) is disclosed to the
Executive by a third party who is entitled to receive and disclose such Trade
Secret, or (z) is required to be disclosed pursuant to any valid court order, in
which case the Executive shall notify the Company immediately of any such court
order in order to enable the Company to contest such order's validity.
b. Discoveries and Works. All discoveries and works made or
conceived by the Executive in connection with and during his employment by the
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Company pursuant to this Agreement, jointly or with others, that relate to the
activities of the Company, Ascent or their affiliates ("Discoveries and Works")
shall be owned by the Company. Discoveries and Works shall include, without
limitation, architectural and engineering developments, marketing plans and
proposals, and other works of authorship, inventions, computer programs
(including documentation of such programs), technical improvements, processes
and drawings. The Executive shall (i) promptly notify, make full disclosure to,
and execute and deliver any documents requested by, the Company to evidence or
better assure title to such Discoveries and Works in the Company, (ii) assist
the Company in obtaining or maintaining for itself at its own expense United
States and foreign copyrights, trade secret protection or other protection of
any and all such Discoveries and Works, and (iii) promptly execute, whether
during his employment by the Company or thereafter, all applications or other
endorsements necessary or appropriate to maintain copyright and other rights for
the Company and to protect its title thereto.
c. Non-Competition. As an inducement for the Company to enter
into this Agreement, the Executive agrees that for a period commencing as of the
Effective Date and running through December 31, 2000 (the "Non-Competition
Period"), the Executive shall not, without the prior written consent of the
Committee, engage or participate, directly or indirectly, as principal, agent,
employee, employer, consultant, stockholder, partner or in any other individual
capacity whatsoever, in the conduct or management of, or own any stock or any
other equity investment in or debt of, any business which is or could reasonably
expected to be competitive with any business conducted or intended to be
conducted by the Company, Ascent or their affiliates. For the purpose of this
Agreement, a business shall be considered to be competitive with any business of
the Company, Ascent or their affiliates only if such business is engaged in
providing services or products (i) substantially similar to (A) any service or
product provided by the Company, Ascent or their affiliates during his period of
employment hereunder; (B) any service or product which directly evolves from or
directly results from enhancements in the ordinary course during the
Non-Competition Period to the services or products provided by the Company,
Ascent or their affiliates as of the date hereof or during his employment
hereunder; or (C) any future service or product of the Company, Ascent or their
affiliates as to which the Executive materially and substantially participate in
the development or enhancement, and (ii) to customers,
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distributors or clients served by the Company, Ascent and their affiliates
during the Non-Competition Period.
d. Non-Solicitation of Employees. For a period commencing as of
the Effective Date and running through the first anniversary of the termination
of the Executive's employment hereunder for any reason (the "Non-Solicitation
Period"), the Executive will not (for his own benefit or for the benefit of any
person or entity other than the Company, Ascent or their affiliates) solicit, or
assist any person or entity other than the Company, Ascent or their affiliates
to solicit, any officer, director, executive or employee (other than an
administrative or clerical employee) of the Company, Ascent or their affiliates
to leave his or her employment.
e. Reasonableness; Interpretations. The Executive acknowledges
and agrees, solely for purposes of determining the enforceability of this
Section 7, that (i) the markets served by the Company, Ascent and its affiliates
are national and international and are not dependent on the geographic location
of executive personnel or the businesses by which they are employed; (ii) the
length of the Non-Competition Period and the lengtho of the Non-Solicitation
Period are linked to the term of the Employment Period and the post-employment
payment provided for in Section 4; and (iii) the above covenants are reasonable
as an inducement for the Company to enter into this Agreement, and the parties
expressly agree that such restrictions have been designed to be reasonable and
no greater than is required for the protection of the Company. In the event that
the covenants in this Section 7 shall be determined by any court of competent
jurisdiction in any action to be unenforceable by reason of their extending for
too great a period of time or over too great a geographical area or by reason of
their being too extensive in any other respect, they shall be interpreted to
extend only over the maximum period of time for which they may be enforceable
and/or to the maximum extent in all other respects as to which they may be
enforceable, all as determined by such court in such action.
f. Investment. Nothing in this Agreement shall be deemed to
prohibit the Executive from owning equity or debt investments in any
corporation,
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partnership or other entity which is competitive with the Company, Ascent or
their affiliates, provided that such investments (i) are passive investments and
constitute five percent (5%) or less of the outstanding equity securities of
such an entity the equity securities of which are traded on a national
securities exchange or other public market, or (ii) are approved by the
Committee.
8. Enforcement. The Executive acknowledges that a breach of the
covenants or provisions contained in Section 7 of this Agreement will cause
irreparable damage to the Company, Ascent and their affiliates, the exact amount
of which will be difficult to ascertain, and that the remedies at law for any
such breach will be inadequate. Accordingly, the Executive agrees that if the
Executive breaches or threatens to breach any of the covenants or provisions
contained in Section 7 of this Agreement, in addition to any other remedy which
may be available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief, without posting bond.
9. Notices. All notices and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method, provided that in such case it shall also be sent by certified or
registered mail, return receipt requested; the day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or
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registered mail, return receipt requested. Unless otherwise changed by notice,
in each case notice shall be sent to:
If to the Executive, addressed to:
Xxxxxx X. Xxxxxxx Xx.
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If to the Company, addressed to:
Ascent Entertainment Group
Sports Business Committee
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx and Xxxxx Xxxxxx
Telecopier No. (000) 000-0000
With a copy to:
Ascent Entertainment Group
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier No. (000) 000-0000
10. Severability. Subject to the last sentence of Section 7(e)
hereof, if any provision of this Agreement shall be determined to be
unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. Miscellaneous. This Agreement constitutes the entire
agreement, and supersedes all prior understandings or agreements relating to the
subject matter hereof between Executive and the Company, Ascent or any affiliate
thereof (or any predecessor of any such entity). No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The
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validity, interpretation, performance and enforcement of the Agreement shall be
governed by the laws of the State of Colorado. The headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12. Continuing Liability. Unless this Agreement or Employee's
employment hereunder is terminated in accordance with the express provisions
hereof, the parties shall have no right to terminate this Agreement or the
Employee's employment hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE ASCENT SPORTS HOLDINGS, INC.
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By:
Title:
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