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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 1, 1998, between TELE-COMMUNICATIONS,
INC., a Delaware corporation (the "Company"), and XXXXXXX X. XXXXX, now residing
at (home address redacted) ("Executive").
This Agreement sets forth the terms and conditions of the
employment by the Company of Executive.
In consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, do hereby agree as follows:
1. Term and Termination.
(a) Term. The term of Executive's employment (the "Employment Term")
under this Agreement shall commence on June 1, 1998, and end on May 31,
2003, and, pursuant to the terms of this Agreement, and will be
extended daily so that the remainder of the Employment Term shall, at
all times on and prior to the effective date of the termination of
Executive's employment as provided herein, be five (5) years. During
the Employment Term, the Company agrees to employ Executive, and
Executive agrees to serve the Company, upon and subject to the terms
and conditions set forth in this Agreement.
(b) Termination by the Company. Executive's employment by the Company
may be terminated by the Company only as provided in clauses (i), (ii),
(iii) and (iv) below.
(i) Upon the death of Executive;
(ii) Upon six (6) months' prior written notice from the Company to
Executive (the "Notice Period"), in the event of an illness or
other disability which has incapacitated Executive from
performing his duties hereunder, as determined in good faith
by the Board of Directors of the Company, for an aggregate of
one hundred eighty (180) consecutive days during the twelve
calendar months preceding the month in which such notice is
give; provided, however, that in the event that, prior to the
end of the Notice Period, Executive recovers from such illness
or other disability to an extent permitting him to perform his
duties hereunder, the notice of termination pursuant to this
clause (ii) shall be of no further force and effect;
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(iii) 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 upon such termination five years' compensation under
Section 4(a) of this Agreement calculated at the annual rate
then in effect;
(iv) 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 Company may suspend Executive from
the rendition of services but without limiting or
modifying in any other way the Company's obligations
under this Agreement;
(B) a material breach by Executive of a material fiduciary
duty owed to the Company;
(C) a material breach by Executive of any of the covenants
made by him in Sections 8 and 9 hereof; or
(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 Company only by a duly adopted resolution of the
Board of Directors of the Company and only after thirty (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; provided, further, that no state of facts
that, with or without notice to Executive or the passage of
time or both, would give rise to the right of the Company to
terminate Executive's employment pursuant to clause (ii) of
this Section 1(b) may, directly or indirectly, in whole or in
part, be the basis for a claim that "cause," within the
meaning of clause (D) above, exists for the termination of
Executive's employment; provided, further, that during the
period of twelve (12) months following a change in control of
the Company (as defined below), "cause" shall be deemed to
have occurred only upon the happening of an event referred to
in clause (A) above; and provided, further, that the term
"material" as used in clauses (B), (C) and (D) above and in
Section 12 hereof shall be construed be reference to the
effect of the relevant action or omission on the Company taken
as a whole. For purposes of the foregoing, a change in
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control of the Company will be considered to have occurred if
the group in control of the Company shall no longer include
Xxxx X. Xxxxxx, members of his family or representatives
thereof. The term "family" as used herein means Xxxx X.
Xxxxxx'x estate, spouse and lineal descendants and any trust
or other investment vehicle for the primary benefit of such
named persons or members of his family; and the term
"representatives" includes executors and trustees.
(c) Effect of Termination by the Company. If Executive's employment by the
Company is terminated by the Company pursuant to Section 1(b) hereof,
all compensation under Section 4 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 (iii) of Section 1(b)), the Company's
obligations under this Agreement shall terminate, except as provided
in the last three sentences of this Section 1(c) (if and to the extent
applicable), Section 5 (as it relates to expenses incurred prior to
such termination) and Section 7 of this Agreement. Executive
acknowledges that his obligations under Section 8, 9, 10 and 11 hereof
will survive any such termination. If Executive dies while employed by
the Company or during the period that he is receiving payments
pursuant to the immediately succeeding sentence, the Company shall, as
promptly as practicable following Executive's death, pay to
Executive's designated beneficiary or beneficiaries in a lump sum an
amount equal to one year's compensation under Section 4(a) of this
Agreement, calculated that the annual rate in effect at the time of
Executive's death. If Executive's employment is terminated pursuant to
Section 1(b)(ii) of this Agreement, the Company shall continue to pay
to Executive his annual salary (at the rate in effect at the time of
termination of his employment) as and when the same would otherwise be
due in accordance with Section 4 of this Agreement for five years from
such date of termination. The phrase "designated beneficiary or
beneficiaries" shall mean the person or persons named from time to
time by Executive in a signed instrument filed with the Company;
provided, however, that if a designation made in any such instrument
shall for any reason be ineffective, or if no such designation has
been made, the phrase "designated beneficiary or Beneficiaries" shall
mean the Executive's estate.
2. Services to Be Rendered by Executive. Executive agrees to serve the Company
as Executive Vice President, General Counsel and Secretary; provided,
however, that Executive's position shall correspond in rank,
responsibility, authority, and access to information as Executive's
position with the Company during the three-year period immediately
preceding June 1, 1998. In such capacity, Executive shall discharge such
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senior executive responsibilities as are commensurate with his title and
designated by the Company's Chairman of the Board, Chief Executive Officer
or President. Executive shall report directly to, and only to, the
Company's Chairman of the Board, Chief Executive Officer or President and,
if requested by the Company's Board of Directors, to the Board of Directors
and/or Executive Committee of the Board of Directors. If Executive is
elected a director of the Company or a director or an officer of any of the
Company's subsidiaries or affiliates, Executive will serve in any such
capacities without further compensation except as may be decided by the
Company at the Company's sole election. Executive shall discharge his
responsibilities, and shall in all other respects serve the Company,
faithfully and to the best of his ability. The Company agrees that
Executive shall, during the Employment Term, be based at the Company's
principal executive office, which shall be located in the Denver area, with
the understanding that Executive will travel as reasonably required in the
performance of his duties hereunder.
3. Time to Be Devoted by Executive. Executive agrees to devote substantially
all of his business time, attention, efforts and abilities to the business
of the Company. Executive confirms that he has no business interests of any
kind which will require a substantial portion of his business time other
than his employment by the Company; but nothing herein contained is
intended nor shall be construed as preventing Executive from spending an
insubstantial amount of time as a director of, or otherwise in connection
with investments he may have in, other entities or business organizations.
4. Compensation Payable to Executive.
(a) During the Employment Term, the Company shall pay to Executive a salary
at the rate of $560,000.00 per annum. The Board of Directors shall review
Executive's compensation annually to determine, in its sole discretion,
whether any increase in Executive's salary is appropriate.
(b) Executive's annual compensation shall be paid to Executive in
accordance with the Company's regular policy but not less frequently than
once a month.
5. Expenses. The Company shall reimburse Executive for the reasonable amount
of dining, hotel, traveling, entertainment and other expenses (consistent
with the Company's reimbursement standards for its most senior officers)
necessarily incurred by Executive in the discharge of his duties hereunder.
6. Executive Benefit Plans. While he is employed by the Company pursuant to
this Agreement, Executive shall be entitled to participate in, and to be
accorded all rights and benefits under, all formal incentive compensation
plans, stock incentive plans, employee stock purchase plans, retirement
plans, disability insurance, life insurance, health and major medical
insurance policy or policies, and other plans or benefits (including,
without limitation, any insurance covering Officers and Directors against
errors or omissions) now in existence or that may hereafter be adopted by
the Company for the benefit of its executive officers or key employees
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generally or for the benefit of its employees generally, provided that
Executive is eligible by the terms thereof to participate therein. Further,
during the period that any deferred compensation is payable to Executive,
Executive shall continue to be entitled to participate in, and to be
accorded all rights and benefits under, all group insurance policies
maintained or established by the Company for the benefit of its employees,
and for this purpose Executive shall be deemed to be a full-time employee
of the Company during such period. Executive shall be entitled to four (4)
weeks of paid vacation per year or, if greater, the maximum amount of paid
vacation per year to which any other employee of the Company of comparable
rank and responsibility is entitled.
7. Indemnification. The Company will indemnify and hold harmless Executive, to
the fullest extent permitted by applicable law, in respect of any
liability, damage, cost or expense (including reasonable counsel fees)
incurred in connection with the defense of any claim, action, suit or
proceeding to which he is a party, or threat thereof, by reason of his
being or having been an officer or director of the Company or any
subsidiary of the Company, or his serving or having served at the request
of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, business
organization, enterprise or other entity, including service with respect to
employee benefit plans. Without limiting the generality of the foregoing,
the Company will pay the expenses (including reasonable counsel fees) of
defending any such claim, action, suit or proceeding in advance of its
final disposition, upon receipt of an undertaking by Executive to repay all
amounts advanced if it should ultimately be determined that Executive is
not entitled to be indemnified under this Section.
8. Noncompetition. Executive agrees that while in the employ of the Company
and for the Applicable Period (as defined below) following the termination
of his employment, he will not, directly or indirectly, as principal or
agent, or in any other capacity, own, manage, operate, participate in or be
employed by or otherwise be interested in, or connected in any manner with,
any person, firm, corporation or other enterprise which directly competes
in a material respect with the business of the Company or any of its
majority-owned subsidiaries as it is conducted while Executive is employed
by the Company. Nothing herein contained shall be construed as denying
Executive the right to own securities of any such 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. For purposes hereof, the term "Applicable Period" means the
period beginning on the effective date of the termination of Executive's
employment with the Company (the "Effective Date") and ending on the second
anniversary of the Effective Date.
9. Confidentiality. Executive agrees that while in the employ of the Company
(otherwise than in the performance of his duties hereunder) and thereafter,
not to, directly or indirectly, make use of, or divulge to any person,
firm, corporation, entity or business organization, and he shall use his
best efforts to prevent the publication or disclosure of, any confidential
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or proprietary information concerning the business, accounts or finances
of, or any of the methods of doing business used by the Company or of the
dealings, transactions or affairs of the Company or any of its customers
which have or which may have come to his knowledge during his employment
with the Company; but this Section 9 shall not prevent Executive from
responding to any subpoena, court order or threat of other legal duress,
provided Executive notifies the Company hereof with reasonable promptness
so that the Company may seek a protective order or other appropriate
relief.
10. Delivery of Materials. Executive agrees that upon the termination of his
employment he will deliver to the Company all documents, papers, materials
and other property of the Company relating to its affairs, which may then
be in his possession or under his control.
11. Noninterference. Executive agrees that he will not, while in the employ of
the Company and for the Applicable Period following the termination of his
employment, solicit the employment of any employee of the Company on behalf
of any other person, firm, corporation, entity or business organization, or
otherwise interfere with the employment relationship between any employee
or officer of the Company and the Company.
12. Remedies. Executive agrees that, in the event of a material breach by
Executive of this Agreement, in addition to any other rights that the
Company may have pursuant to this Agreement, the Company shall be entitled,
if it so elects, to institute and prosecute proceedings, at law or in
equity, to obtain damages with respect to such breach or to enforce the
specific performance of this Agreement by Executive or to enjoin Executive
from engaging in any activity in violation hereof. Executive agrees that,
because Executive's services to the Company are of such a unique and
extraordinary character, a suit at law may be an inadequate remedy with
respect to a breach by Executive of Sections 8, 9, 10 and 11 hereof, and
that upon any such breach or threatened breach by him of such Sections the
Company shall be entitled, in addition to any other lawful remedies that
may be available to it, to injunctive relief. In the event of a breach by
the Company of this Agreement (which is not cured within 30 days from the
date of notice of such breach), Executive may declare that the Company has
terminated Executive pursuant to Section 1(b)(iii) hereof, and Executive
shall be entitled to the benefits and remedies as set forth in Section 1(c)
hereof.
13. Notices. All notices to be given hereunder shall be deemed duly given when
delivered personally in writing or mailed, certified mail, return receipt
requested, postage prepaid and addressed as follows:
a) If to be given to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
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with a copy similarly addressed and marked to the attention of the
Legal Department
b) If to be given to Executive:
Xxxxxxx X. Xxxxx
(home address redacted)
or to such other address as a party may request by notice given in accordance
with this Section 13.
14. Miscellaneous. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and replaces and
supersedes as of the date hereof any and all prior agreements and
understandings with respect to Executive's employment by the Company,
whether oral or written, between the parties hereto. This Agreement may not
be changed nor may any provision hereof be waived except by an instrument
in writing duly signed by the party to be charged. This Agreement shall be
interpreted, governed and controlled by the law of the State of Colorado,
without reference to principles of conflict of laws.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first above written.
TELE-COMMUNICATIONS, INC.
By /s/ Xxxx X. Xxxxxx
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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