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EXHIBIT 10.2
HOLDEN EXECUTION VERSION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made by and among
Liberty Media Corporation, a Delaware corporation ("LMC"), Ascent Entertainment
Group, Inc., a Delaware corporation (the "Company") that is a wholly owned
indirect subsidiary of LMC, and Xxxxx X. Xxxxxx (the "Executive") as of June 1,
2000 (the "Effective Date").
RECITALS
The Executive is employed as of the Effective Date by the Company
pursuant to the terms of an amended and restated employment agreement made as of
June 27, 1997 and amended and restated as of January 25, 2000 (the "Prior
Agreement"). The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders to continue
to employ the Executive, and the Executive desires to continue his employment
with the Company, pursuant to the terms of this Agreement.
AGREEMENT
In consideration of the mutual covenants set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties, intending to be legally bound, agree as follows:
1. Employment Period. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for the period beginning on the Effective Date and ending on July 31,
2001, unless earlier terminated as set forth herein (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, the Executive shall (i)
serve as a senior executive officer of the Company and as a director and senior
executive officer of the Company's subsidiary, Ascent Sports Holdings, Inc.;
(ii) assist with the management of the sports-related businesses owned and
operated as of the Effective Date by the Company and its subsidiaries
(collectively, "Ascent") and the closing of the sale of such sports-related
businesses; (iii) assist with the preparation and filing of SEC filings for
Ascent and the maintenance of administrative functions for Ascent; (iv) seek and
develop community development opportunities for LMC and the Company to consider;
and (v) perform such other duties as mutually agreed by the Company and the
Executive.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive shall
devote reasonable attention and
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time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to the
Executive under this Agreement, use the Executive's reasonable best efforts to
carry out such responsibilities faithfully and efficiently. Subject to the
provisions of Section 7 below, it shall not be considered a violation of the
foregoing for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions, (iii) manage personal investments, and (iv)
engage in employment with, or provide consulting services to, one or more other
entities, so long as such activities do not significantly interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
(c) The Executive's services shall be performed primarily at
the principal office location where the Executive performed his duties
immediately prior to the Effective Date (or otherwise within 35 miles of such
office), subject to any reasonable travel requirements necessary to perform his
duties hereunder (which shall not require any more travel than was customary for
the Executive prior to the Effective Date).
(d) During the Employment Term, the Executive shall report to
Xxxx X. Xxxxxx or such other individual as the Board designates by notice to the
Executive.
3. Compensation.
(a) Base Salary. During the Employment Period, the Executive
shall be paid a monthly base salary of $20,714.29, or $290,000 for the entire
Employment Period (the "Base Salary"), payable pursuant to the Company's normal
payroll practices. Any compensation paid to the Executive on or after June 1,
2000 and prior to the execution of this Agreement by the parties, other than any
amounts paid with respect to equity incentive awards previously granted to the
Executive or with respect to fringe benefits not historically paid out of the
Executive's salary, shall be credited toward the Executive's Base Salary.
(b) Benefits. During the Employment Period, the Executive
shall be entitled to participate in savings and welfare benefit plans,
practices, policies and programs of the Company or any affiliate of the Company
(including 401(k), health insurance and other employee benefit plans) that are
provided generally to similarly situated employees of the Company. For purposes
of Section 5(a)(iii), the Company and the Executive agree that the value of all
benefits to be provided under this Section 3(b) during the Employment Period is
$65,000 (the "Benefit Amount").
(c) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive in accordance with the Company's policies,
practices and procedures.
(d) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the plans, policies,
programs and practices of the Company,
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provided that the Executive shall not be entitled to receive payment for any
unused vacation days remaining at the conclusion of the Employment Period.
(e) Equity Awards. Under the Prior Agreement, the Company
granted to the Executive certain options and stock appreciation rights which
vested prior to the Effective Date in accordance with the terms of the Prior
Agreement. In consideration of the benefits provided to the Executive under this
Agreement, and notwithstanding any provision of this Agreement or any
communication, documentation or other evidence to the contrary, the Executive
acknowledges and agrees that he will not be entitled to receive any stock
options, stock appreciation rights, restricted stock, stock units or other
performance or equity awards (collectively, "Awards") during the Employment
Period except as specifically provided in this Agreement, regardless of whether
the Company or any affiliate of the Company grants any such Award to any other
employee of the Company or any affiliate of the Company during the Employment
Period.
(f) Bonus and Other Payments. The Company shall pay the
Executive the following amounts:
(i) $90,000 upon execution of this Agreement,
representing earned bonus for 2000 and accrued vacation payments; and
(ii) $350,000 within ten business days following the
closing of the sale of Ascent's sports-related businesses (the "Sale Bonus").
(g) COBRA Coverage. Following the expiration of the Employment
Period, to the extent required by COBRA, Executive and his dependents may elect
eighteen months (or such other term as permitted by COBRA) of COBRA continuation
coverage, at their own expense, without any reimbursement or payment of premiums
for such coverage by the Company.
(h) Non-Competition Payment. As compensation for the covenants
made by the Executive under Sections 7(b) through 7(d) of this Agreement, the
Company and LMC shall be jointly and severally liable to pay to the Executive on
July 31, 2001 the sum of $918,000 (the "Non-Competition Payment").
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
The Company shall be entitled to terminate the Executive's employment because of
the Executive's Disability during the Employment Period. "Disability" means that
(i) the Executive is unable to perform the Executive's duties under this
Agreement for a period of not less than 180 consecutive days, as a result of
physical or mental illness or injury, and (ii) a physician selected by the
Company or its insurers, and acceptable to the Executive or the Executive's
legal representative, has determined that the Executive's incapacity is total
and permanent. A termination of the Executive's employment by the
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Company for Disability shall be communicated to the Executive or the Executive's
legal representative by written notice, and shall be effective on the 10th day
after receipt of such notice by the Executive or the Executive's legal
representative (the "Disability Effective Date").
(b) By the Company. The Company may terminate the Executive's
employment during the Employment Period for Cause or without Cause. "Cause"
shall mean conviction of the Executive for commission of a felony or gross
misconduct by the Executive, in either case that is willful and results in
material and demonstrable damage to the business of the Company or any of its
affiliates. A termination of the Executive's employment by the Company shall be
communicated to the Executive by written notice and shall be effective (i) if
the termination is for Cause, immediately upon receipt of such notice by the
Executive, and (ii) if the termination is without Cause, on the 30th day after
receipt of such notice by the Executive.
(c) By the Executive. The Executive may terminate employment
for Good Reason or without Good Reason. "Good Reason" means, without the
Executive's written consent:
(i) the Company's assignment to the Executive of any
duties inconsistent in any material respect with the duties described in Section
2(a) of this Agreement; provided, that a diminution or reduction in the
Executive's duties, responsibilities or authority shall not be a basis for Good
Reason;
(ii) any failure by the Company to comply with any
provision of Section 3 of this Agreement;
(iii) any requirement by the Company that the
Executive's services be rendered primarily at a location or locations other than
that provided for in Section 2(c) of this Agreement; or
(iv) any failure by the Company to comply with
Section 9(c) of this Agreement.
An isolated, insubstantial and inadvertent failure or action by the Company that
is not taken in bad faith and is remedied by the Company promptly after receipt
of notice thereof from the Executive shall not be a basis for Good Reason;
provided, however, that any failure to comply with Section 9(c) of this
Agreement shall be a basis for Good Reason. A termination of employment by the
Executive for Good Reason shall be effectuated by giving the Company written
notice ("Notice of Termination for Good Reason") of the termination, setting
forth in reasonable detail the specific conduct of the Company that constitutes
Good Reason and the specific provision(s) of this Agreement upon which the
Executive is relying. A termination of employment by the Executive for Good
Reason shall be effective (unless disputed by the Company) on the fifth business
day following the date when the Notice of Termination for Good Reason is
received by the Company, unless the notice sets forth a later date (which date
shall in no event be later than 30 days after the notice is received by the
Company).
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(d) Date of Termination. The "Date of Termination" means the
date of the Executive's death, the Disability Effective Date, the date on which
the termination of the Executive's employment by the Company or by the Executive
for Good Reason is effective, or the last day the Executive provides services
under this Agreement, in the case of the Executive's termination of employment
without Good Reason, as the case may be.
5. Obligations of the Company upon Termination. Following the
Executive's Date of Termination, the Company shall have the obligations to the
Executive set forth in this Section 5, and shall have no further obligations
under this Agreement, other than, if applicable, any obligations to reimburse
expenses due to the Executive under Section 3(c).
(a) Other Than for Cause; Death or Disability; Good Reason.
If, during the Employment Period, the Company terminates the Executive's
employment, other than for Cause, or the Executive's employment is terminated
because of death or Disability, or the Executive terminates employment for Good
Reason, the Company shall make the payments and provide the benefits set forth
in (i) through (v) below. In addition, if the Executive's employment is
terminated by the Company other than for Cause or Disability, or by the
Executive for Good Reason, the Company shall provide the Executive with
reasonable outplacement services. The payments and benefits provided pursuant to
this Section 5(a) are intended as liquidated damages for a termination of the
Executive's employment by the Company other than for Cause, or for the actions
of the Company leading to a termination of the Executive's employment by the
Executive for Good Reason, or for the Executive's termination of employment as a
result of death or Disability, and shall be the sole and exclusive remedy
therefor. The Company shall pay the Executive the amounts set forth below in a
lump sum in cash within 30 days following the Date of Termination:
(i) the unpaid amount of the Executive's Base Salary
for the period beginning on the Effective Date and ending on the Date of
Termination (the "Accrued Obligations");
(ii) an amount equal to (A) the Executive's Base
Salary, multiplied by (B) the percentage obtained by dividing (1) the number of
days beginning with the day immediately following the Termination Date and
ending on July 31, 2001, by (2) 426 (such percentage, the "Pro Rata
Percentage");
(iii) an amount equal to the Benefit Amount
multiplied by the Pro Rata Percentage;
(iv) the Sale Bonus (to the extent that the closing
of the sale of Ascent's sports-related businesses occurs on or prior to the
Termination Date and the Sale Bonus has not theretofore been paid); and
(v) the Non-Competition Payment.
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(b) Cause, Other than for Good Reason. If, during the
Employment Period, the Executive's employment is terminated by the Company for
Cause or the Executive voluntarily terminates employment other than for Good
Reason, the Company shall pay the Executive the Accrued Obligations in a lump
sum in cash within 30 days following the Date of Termination and,
notwithstanding anything in this Agreement to the contrary, the Company shall
have no obligation to make any other payment provided for under this Agreement.
6. Full Settlement. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action that the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and such amounts shall
not be reduced, regardless of whether the Executive obtains other employment.
7. Confidential Information; Noncompetition; Nonsolicitation.
(a) The Executive shall hold in a fiduciary capacity for the
benefit of LMC and the Company all secret or confidential information, knowledge
or data relating to LMC, the Company, and their respective affiliates (the
"Employing Entities") and the businesses of each of the Employing Entities that
the Executive obtains during the Executive's employment by the Company (before
and after the Effective Date) and that is not public knowledge (other than as a
result of the Executive's violation of this Section 7(a)) ("Confidential
Information"). The Executive shall not communicate, divulge or disseminate
Confidential Information at any time during or after the Executive's employment
with the Company, except with the prior written consent of LMC or the Company or
as otherwise required by law or legal process.
(b) For purposes of Sections 7(b) and (c), the "Noncompetition
Period" means the period during which the Executive is employed by the Company
pursuant to this Agreement and twenty-four months after the first to occur of
(i) the Executive's Date of Termination or (ii) the end of the scheduled
Employment Period. During the Noncompetition Period, the Executive shall not
solicit from any person or entity whatsoever any business of the type engaged in
by any entity that is an Employing Entity on the Effective Date.
(c) During the Noncompetition Period, the Executive shall not
induce or solicit any employee of any entity that is an Employing Entity on the
Effective Date to terminate his or her employment with any such Employing
Entity.
(d) The provisions of Sections 7(b) and (c) shall remain in
full force and effect until the expiration of the Noncompetition Period
notwithstanding the earlier termination of the Executive's employment hereunder.
In the event of a breach of the Executive's covenants under this Section 7, it
is understood and agreed that the Company shall be entitled to injunctive
relief, as well as any other legal remedies, specifically including repayment by
the Executive to the Company of
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a pro rata portion of the Non-Competition Payment based upon the number of days
remaining in the Non-Competition Period following the date on which the breach
occurred. For purposes of this Agreement, affiliates of LMC or the Company shall
include the entities set forth on Schedule 1 and all other entities controlling,
controlled by or under common control with LMC or the Company, as the case may
be, and "control" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a party, whether
by ownership of voting securities, by contract or otherwise.
8. Dispute Resolution. At the option of the Executive or the Company,
any dispute, controversy, or question arising under, out of or relating to this
Agreement or the breach thereof, other than that for injunctive relief to this
Agreement or the breach thereof, shall be referred for decision by arbitration
in the Denver metropolitan area of the State of Colorado by a neutral arbitrator
selected by the parties hereto. The proceeding shall be governed by the Rules of
the American Arbitration Association then in effect or such rules last in effect
(in the event such Association is no longer in existence). If the parties are
unable to agree upon such a neutral arbitrator within 30 days after either party
has given the other written notice of the desire to submit the dispute,
controversy or question for decision as aforesaid, then either party may apply
to the American Arbitration Association for an appointment of a neutral
arbitrator, or if such Association is not then in existence or does not act in
the matter within 30 days of application, either party may apply to the
Presiding Judge of the District Court of any county in the Denver metropolitan
area of the State of Colorado for an appointment of a neutral arbitrator to hear
the parties and settle the dispute, controversy or question, and such Judge is
hereby authorized to make such appointment. In the event that either party
exercises the right to submit a dispute arising hereunder to arbitration, the
decision of the neutral arbitrator shall be final, conclusive and binding on all
interested persons and no action at law or equity shall be instituted or, if
instituted, further prosecuted by either party other than to enforce the award
of the neutral arbitrator. The award of the neutral arbitrator may be entered in
any court that has jurisdiction. In the event that the Executive is successful
in pursuing any material claim(s) or dispute(s) arising out of this Agreement,
the Company shall pay the Executive's reasonable attorney's fees and expenses
and the Executive's reasonable expenses of any arbitration in connection with
all of the Executive's claims or disputes (whether or not the Executive's
pursuit of every claim or dispute is successful). In any other case, the
Executive and the Company shall each bear all their own costs and attorneys'
fees, except the Company shall in all events pay the costs of any arbitrator
appointed hereunder.
9. Successors.
(a) This Agreement is personal to the Executive and, without
the prior written consent of the Company, 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 enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon LMC, the Company and their respective successors and assigns.
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(c) Each of LMC and the Company shall require any successors
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of its business or assets expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that LMC or
the Company, as the case may be, would have been required to perform it if no
such succession had taken place. Except as specifically provided, herein, as
used in this Agreement, "LMC" and "the Company" shall mean both LMC or the
Company as defined above, as the case may be, and any such successor that
assumes and agrees to perform this Agreement, by operation of law or otherwise.
10. Miscellaneous.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Colorado, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified except by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) All notices and other communications under this Agreement
shall be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to the Company: Ascent Entertainment Group, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to LMC: Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as either party furnishes to the other in writing in
accordance with this Section 10(b). Notices and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such
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provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
(e) Any party's failure to insist upon strict compliance with
any provision of, or to assert any right under, this Agreement shall not be
deemed to be a waiver of such provision or right or of any other provision of or
right under this Agreement.
(f) Each of the Executive, the Company and LMC acknowledges
that this Agreement supersedes any prior agreement between any of LMC, the
Company or any affiliate of either of the foregoing and the Executive (including
the Prior Agreement, any other employment agreement and any consulting
agreement), or between the Executive and any Company plan or practice,
concerning the subject matter hereof, including any severance policy or plan of
the Company or of any affiliate of LMC or the Company (collectively, the
"Severance Plans"). The Executive hereby irrevocably waives any rights to
severance benefits under the Severance Plans or to the grant or acceleration of
equity awards under the Severance Plans or any equity award plan of LMC, the
Company or of any affiliate of either of the foregoing except as may be provided
in this Agreement.
(g) The Executive shall be covered under the indemnification
policies of the Company applicable to similarly situated officers of the
Company.
(h) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument.
*****
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the day and year first above written, notwithstanding the actual
date of signing.
EXECUTIVE:
----------------------------------------
Xxxxx X. Xxxxxx
COMPANY:
ASCENT ENTERTAINMENT GROUP, INC.
By:
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Xxxxxxx X. Xxxxxx, Senior Vice
President
LMC:
LIBERTY MEDIA CORPORATION
By:
------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice
President
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SCHEDULE 1
Sprint Corporation (PCS Group)
Liberty Digital, Inc.
TV Guide, Inc.
UnitedGlobalCom, Inc.
USA Networks, Inc.
Liberty Livewire Corp.
Liberty Livewire LLC
ICG Communications, Inc.
Teligent, Inc.
Antec Corporation
On Command Corporation
Corus Entertainment, Inc.
Primedia, Inc.
TCI Satellite Entertainment, Inc.
Discovery Communications, Inc.
OVC, Inc.
Starz Encore Group LLC
BET Holdings II, Inc.
BET Movies/STARZ! 3, LLC
BET Film Productions
Courtroom Television Network LLC
Telemundo Network Group LLC
TruePosition, Inc.
Ascent Arena Company, LLC
International Cable Channels Partnership, Ltd.
One Media Place, Inc.
XxxXxxx/Xxxxxx Productions
Jupiter Telecommunications Co., Ltd.
Jupiter Programming Co., Ltd.
Multithematiques SA
Liberty Ireland CMI Limited
Liberty Cablevision of Puerto Rico, Inc.
ACTV, Inc.
DMX Music, Inc.
Online Retail Partners, Inc.
Liberty Digital Health Group, LLC
Katalyst Venture Partners 1, LP
XM Satellite Radio Holdings, Inc.
Astrolink International LLC
Sky Latin America Partners
iSky, Inc.
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