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RETENTION AGREEMENT
THIS RETENTION AGREEMENT dated as of July 16, 1998 by and between
American Telecasting, Inc. (the "Company") and Xxx X. Xxxxxxx, (the "Employee").
WITNESSETH:
WHEREAS, the Company recognizes the competitive nature of the market
for executive talent; and
WHEREAS, the Company has determined that appropriate steps should be
taken to encourage certain key persons to remain employed by the Company by
providing for certain benefits;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree to the following:
1. Definitions. The capitalized terms used herein shall have the
meanings ascribed to them below.
(a) "Cause" shall mean (A) the willful and continued failure by
the Employee substantially to perform the Employee's duties
with the Company (other than any such failure resulting from
the Employee's incapacity due to physical or mental illness)
as determined by the Board of Directors of the Company (the
"Board"), after a demand for substantial performance is
delivered to the Employee by the Company, which demand
specifically identifies the manner in which the Company
believes that the Employee has not substantially performed
the Employee's duties or (B) the willful engaging by the
Employee in misconduct which is demonstrably and materially
injurious to the Company, momentarily or otherwise.
Notwithstanding the foregoing, the Employee's employment
shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to the Employee by
the Company a copy of a Notice of Termination authorized by
the Board stating that in the good faith opinion of the
Board the Employee is guilty of conduct set forth in clauses
(A) or (B) above and specifying the particulars there of in
detail.
(b) "Disability" shall be deemed the reason for the termination
by the Company of the Employee's employment, if, as a result
of the Employee's incapacity due to physical or mental
illness, the Employee shall have been absent from the
full-time performance of the Employee's duties with the
Company for a period of six (6) or more consecutive months.
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(c) "Material Employment Change" shall mean any of the
following:
(i) a reduction in the Employee's base or other
compensation as in effect on the date hereof or as
the same may be increased from time to time during
the term of this Agreement; or
(ii) the relocation of the Employee's principal place of
employment to a location that increases the
Employee's one-way commuting distance from his
primary residence to such principal place of
employment by more than 25 miles - or the Company's
requiring the Employee to be based anywhere other
than such principal place of employment (or permitted
relocation thereof) except for required travel on the
Company's business to an extent substantially
consistent with the Employee's present business
travel obligations.
2. Retention Incentive.
(a) Upon the earliest to occur of the following dates and events
while the Employee is employed by the Company, the Employee
shall be entitled to receive a lump sum cash payment of
$40,000 (the "Retention Incentive"):
(i) the termination of the Employee's employment by the
Company other than for Cause;
(ii) the termination of the Employee's employment by the
Employee following the occurrence of a Material
Employment Change;
(iii) June 30, 1999; or
(iv) the death or Disability of the Employee.
(b) If the Employee's employment is terminated prior to June 30,
1999 by the Company for Cause or by the Employee other than
(i) following a Material Employment Change or (ii) on
account of the Employee's death or Disability, no Retention
Incentive shall be paid to the Employee.
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(c) In addition to the Retention Incentive, if the Employee's
employment with the Company terminates under circumstances
enumerated in Item (2)(a)(i)-(iii) above on or before
December 31, 1999, then the Employee shall be entitled to
receive an additional lump sum cash payment equivalent to
nine (9) months of compensation at the highest base rate of
salary in effect at the Company for the Employee between the
date of this Agreement and December 31, 1999.
3. No Effect on Other Contractual Rights. The provisions of this
Agreement, and any payment provided for hereunder, shall not
reduce any amounts otherwise payable, or in any way diminish the
Employee's existing rights or rights (or rights which would accrue
solely as a result of the passage of time) under any employee
benefit plan or employment agreement or other contract, plan
or arrangement nor shall any amounts payable hereunder be
considered in determining the amount of benefits payable to the
Employee under any such plan, agreement or contract. If no
employment agreement or other contract, plan or arrangement by the
Company is in effect with respect to the Employee, then any
amounts payable under this Agreement during its duration, in the
event of a termination of employment of the Employee with the
Company, shall constitute the Company's entire termination of
employment benefit to the Employee, other than accrued wages and
paid time off, expense account reimbursements and amounts due
under the Company's employee benefit plans or under applicable
laws.
4. Successor to the Company.
(a) This Agreement shall be binding on the Company's successors
and assigns.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal and legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the Employee
should die while any amounts are still payable to the
Employee hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms
of this Agreement to the Employee's personal representative,
devisee, legatee, or other designee or, if there be no such
designee, to the Employee's estate.
5. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested,
postage prepaid as follows:
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If to the Company:
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Chairman of the Board
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
If to the Employee:
Xxx X. Xxxxxxx
000 XX Xxxxxxxx
Xxxxxxxx, XX 00000
or such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
6. Amendment Waiver. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Employee and the
Company. No waiver by either party hereto at any time of any
breach of the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party which are not set forth expressly in this
Agreement.
7. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforce ability of
any other provision of this Agreement, which shall remain in full
force and effect.
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8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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By:
Title:
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Xxx X. Xxxxxxx
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