Exhibit 10.3.8
RETENTION AGREEMENT
THIS RETENTION AGREEMENT (the "Agreement") entered into between XXXXXX
COMMUNICATIONS CORPORATION, an Oklahoma corporation ("Company"), and [form], an
individual (the "Executive"), dated as of the 1st day of November, 2004.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) "Cause" means termination of Executive's employment by
Company for one of the following reasons: (i) the conviction of Executive of a
felony by a federal or state court of competent jurisdiction; (ii) an act or
acts of dishonesty taken by Executive and intended to result in substantial
personal enrichment of Executive at the expense of Company; or (iii) Executive's
"willful" failure to follow a direct, reasonable and lawful written directive
from his supervisor or the Board of Directors (the "Board"), within the
reasonable scope of Executive's duties, which failure is not cured within thirty
(30) days. Further, for purposes of this Section (a):
(i) No act or omission by the Executive shall be
deemed "willful" unless done, or omitted, by Executive in bad faith and without
reasonable belief that Executive's action or omission was in the best interest
of Company.
(ii) Executive shall not be deemed to have been
terminated for Cause unless and until Company delivers to Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three-fourths
(3/4ths) of the entire membership of the Board at a meeting of the Board called
and held for such purpose (after reasonable notice to Executive and an
opportunity for Executive, together with Executive's counsel, to be heard before
the Board), finding that in the good faith opinion of the Board Executive was
guilty of conduct set forth in clause (i) above and specifying the particulars
thereof in detail. Provided, for purposes of this Subsection (a), the term
"Company" shall also include its parent or any of its subsidiaries, whichever is
the employer of Executive.
(b) "Compensation" means the salary and bonus paid to
Executive in 2004, including all amounts of regular base salary which would have
otherwise been paid to Executive by the Company, but payment of which was
deferred by Executive pursuant to Sections 125 or 401(k) of the Internal Revenue
Code of 1986, as amended, or pursuant to any nonqualified deferred compensation
plan or arrangement of the Company.
(c) "Management Change" means the termination or replacement
of the current Chief Executive Officer or Chief Operating Officer followed by
the hiring or selection of a replacement for such position. The "effective date"
of a Management Change shall be the date the Company employs or selects a
replacement Chief Executive Officer or Chief Operating Officer.
(d) "Term" means the term of this Agreement, commencing on
October 1, 2004 and continuing for two (2) years thereafter if not terminated
sooner on the earlier of the following: (i) the occurrence of an event described
in Section 3; or (ii) the six-month anniversary of the effective date of a
Management Change.
2. Agreement Not Employment Contract. This Agreement shall be
considered solely as a limited retention obligating Company to pay to Executive
certain amounts of compensation in the event and only in the event of his
termination of employment for the reasons and at the time specified herein.
Apart from the obligation of Company to provide the amounts of additional
compensation as provided in this Agreement, Company shall at all times retain
the right to terminate the employment of Executive, who's employment shall
remain "at will."
3. Termination.
(a) Death or Disability. This Agreement shall terminate
automatically upon Executive's death. If the Company determines in good faith
that the Disability of Executive has occurred, it may give to Executive written
notice of its intention to terminate Executive's employment. In such event,
Executive's employment with Company shall terminate effective on the 30th day
after the date of such notice (the "Disability Effective Date"), provided that,
within such time period, Executive shall not have returned to full-time
performance of Executive's duties. Nothing contained in this Agreement shall be
construed or judged to be a violation of the Americans with Disabilities Act,
nor shall such allegations be made by Executive who hereby waives the same.
(b) Cause. Company may terminate Executive's employment for
"Cause."
(c) Voluntary Termination. This Agreement shall terminate
automatically upon Executive's voluntary termination of his employment with
Company.
(d) Notice of Termination. Any termination by Company for
Cause shall be communicated by Notice of Termination to Executive given in
accordance with Section 13(b) of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provisions in this Agreement relied upon, (ii) sets forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated, and
(iii) if the Date of Termination (as defined below) is other than the date of
receipt of such notice, specifies the termination date (which date shall be not
more than 15 days after the giving of such notice). The failure by Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Cause shall not waive any right of Company hereunder
or preclude Company from asserting such fact or circumstance in enforcing his
rights hereunder.
(e) Date of Termination. "Date of Termination" means the date
of receipt of the Notice of Termination by Executive; provided, however, if
Executive's employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of Executive or the effective date of
Disability, as the case may be.
4. Obligations of the Company upon Termination.
2
(a) If, during the six-month period following the effective
date of a Management Change, Company terminates Executive's employment other
than for Cause, Disability, or death, Company shall pay to Executive in a lump
sum payment in cash, within 30 days after the Date of Termination equal to the
aggregate of the following amounts.
(i) To the extent not previously paid, Executive's
current base salary and bonus, if applicable, as earned through the Date of
Termination;
(ii) Any accrued vacation pay not yet paid by
Company; and
(iii) One (1) times Executive's Compensation.
(b) Notwithstanding anything in this Agreement to the
contrary, if Executive's employment is terminated by the Company for Cause or
Executive voluntarily terminates employment with the Company, Executive shall
not be entitled to any payment under Section 4(a)(iii).
5. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as Executive may have under any stock option or
other agreements with the Company. Amounts which are vested benefits or which
Executive is otherwise entitled to receive under any plan, policy, practice or
program of the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program.
6. Full Settlement. Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against Executive or others.
In no event shall Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to Executive under any
of the provisions of this Agreement.
7. Certain Additional Payments by the Company. Anything in this
Agreement to the contrary notwithstanding, in the event it is determined that
any payment or distribution by the Company to or for the benefit of the
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, including, by example and not by way
of limitation, acceleration by the Company of the date of vesting or payment or
rate of payment under any plan, program or arrangement of the Company (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive a "Gross-Up
Payment." For purposes of this Agreement, a "Gross-Up Payment" shall be
calculated as an amount equal to the Executive's liability for such excise
tax(es) and any income tax(es) attributable to such excise tax liability
(including any interest or penalty thereon) so that after payment by the
Executive of all taxes (including interest and penalties), the Executive has not
suffered any adverse economic consequence due to the
3
imposition of such excise tax(es) and income tax(es) thereon. The amount of
Gross Up Payment to which the Executive is entitled under this Section shall be
determined by the accounting firm retained by the Company.
8. Confidential Information. Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company, and respective businesses, which
shall have been obtained by Executive during Executive's employment by the
Company and which shall not be or become public knowledge (other than by acts by
Executive or his representatives in violation of this Agreement). After
termination of Executive's employment with the Company, Executive shall not,
without the prior written consent of the Company, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
9. Successors.
(a) This Agreement is personal to Executive and without the
prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) Company will require any successor (whether direct or
indirect, by merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to all or a portion of its business and/or assets
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
10. Indemnification. Executive shall be indemnified, including the
payment of reasonable attorney fees, and held harmless by the Company during the
term of this Agreement and following any termination of this Agreement for any
reason whatsoever in the same manner as would any other key management employee
of the Company with respect to acts or omissions occurring prior to (a) the
termination of this Agreement or (b) the termination of employment of Executive.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma 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 otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
4
(b) All notices and other communications hereunder 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 Executive:
At his last known address evidenced on the Company's payroll records.
If to the Company:
Xxxxxx Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
or to such other 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.
(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.
(d) Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) Executive's failure to insist upon strict compliance with
any provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(f) This Agreement contains the entire understanding of the
Company and Executive with respect to the subject matter hereof.
(g) EXECUTIVE AND COMPANY ACKNOWLEDGE THAT THE EMPLOYMENT OF
EXECUTIVE BY COMPANY IS "AT WILL," AND MAY BE TERMINATED BY EITHER EXECUTIVE OR
COMPANY AT ANY TIME AND FOR ANY LAWFUL REASON, SUBJECT TO COMPANY'S OBLIGATION
TO PROVIDE ADDITIONAL COMPENSATION AS PROVIDED IN THIS AGREEMENT.
12. No Trust. No action under this Agreement by the Company or its
Board of Directors shall be construed as creating a trust, escrow or other
secured or segregated fund, in favor of Executive or his beneficiary. The status
of Executive and his beneficiary with respect to any liabilities assumed by the
Company hereunder shall be solely those of unsecured creditors of the Company.
Any asset acquired or held by the Company in connection with liabilities assumed
by it hereunder, shall not be deemed to be held under any trust, escrow or other
secured or segregated fund for the benefit of Executive or his beneficiary or to
be security for the performance of the obligations of the Company, but shall be,
and remain a general, unpledged, unrestricted asset of the Company at all times
subject to the claims of general creditors of the Company.
5
13. No Assignability. Neither Executive nor his beneficiary, nor any
other person shall acquire any right to or interest in any payments payable
under this Agreement, otherwise than by actual payment in accordance with the
provisions of this Agreement, or have any power to transfer, assign, anticipate,
pledge, mortgage or otherwise encumber, alienate or transfer any rights
hereunder in advance of any of the payments to be made pursuant to this
Agreement or any portion thereof which is expressly declared to be nonassignable
and nontransferable. No right or benefit hereunder shall in any manner be liable
for or subject to the debts, contracts, liabilities, or torts of the person
entitled to such benefit.
14. Arbitration. Executive agrees that Executive's employment,
including separation and this Agreement relate to interstate commerce, and that
subject to and following exhaustion of the Executive's rights and obligations
with respect to administration and claims procedures under this Agreement, any
disputes, claims or controversies between Executive and the Company which may
arise out of or relate to this Agreement shall be settled by arbitration.
Nothing in this Agreement to arbitrate, however, shall preclude the Company from
obtaining injunctive relief from a court of competent jurisdiction prohibiting
ongoing breaches of the Executive's obligations under this Agreement pending
arbitration of the Agreement. This agreement to arbitrate shall survive the
termination of this Agreement. Any arbitration shall be in accordance with the
Rules of the American Arbitration Association and shall be undertaken pursuant
to the Federal Arbitration Act. Arbitration will be held in Oklahoma City,
Oklahoma unless the parties mutually agree on another location. The decision of
the arbitrator(s) will be enforceable in any court of competent jurisdiction.
The parties agree that punitive, liquidated or indirect damages shall not be
awarded by the arbitrator(s) unless such damages could be awarded in the dispute
by a court of competent jurisdiction. If any contest or dispute shall arise
between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of one or more of Executive's material claims
or defenses brought, raised or pursued in connection with such contest or
dispute. Such reimbursement shall be made as soon as practicable following the
resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
6
IN WITNESS WHEREOF, Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
___________________________________________
[name]
"EXECUTIVE"
XXXXXX COMMUNICATIONS CORPORATION,
an Oklahoma corporation
By:________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
"COMPANY"
7
