EXHIBIT 10.21
PRIVATE AND CONFIDENTIAL
January 28, 1997
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Dear Mr. Minami:
This letter agreement (this "Agreement") sets forth the substance of our
understandings and agreements with respect to your employment relationship with
Ascent Entertainment Group, Inc., a Delaware corporation (together with its
affiliates, the "Company"), as a result of your resignation. Subject to the
conditions listed below, you will remain in the employ of the Company as
described below through December 1, 1997 (the "Expiration Date"). Based on the
foregoing and the terms and conditions stated below, the Company and you agree
as follows:
1. (a) You resign as Vice President, Chief Financial Officer and
Treasurer of the Company, and from any and all other offices,
positions or agencies with the Company and its affiliates effective
December 1, 1996.
(b) During the period from December 1, 1996 through the Expiration
Date (the "Severance Period"), you agree to provide advice to the
Company and its affiliates with respect to matters which may arise in
connection with your former duties, subject at all times to your
availability to provide such services. In consideration for your
prior service to the Company, your entering into this Agreement, and
your providing the advice described in the immediately preceding
sentence, during the Severance Period the Company will pay you your
current base salary and provide the other benefits described in this
Agreement. All expenses incurred by you in connection with your
employment by
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 2
the Company for travel between your home in Maryland and the Company's
headquarters in Denver, and your temporary living expenses in the
Denver area, shall be reimbursed by the Company and, if such
reimbursements are reported as income to you, shall be "grossed-up"
for tax purposes.
(c) During the Severance Period, you will continue to be eligible for
all of employee benefits for which you would otherwise be eligible,
including, without limitation, standard outplacement services, the
Company's Flexible Benefits program, and the Savings and
Profit-Sharing Plan, except as set forth in the following sentence.
You will not be eligible for the following benefits otherwise
available to employees of the Company: salary increases of any nature;
additional stock-based bonuses or awards of any nature or any cash
bonuses or awards; educational assistance; your deferred compensation
shall accrue interest at the lower rate prescribed by the plan for
employees terminating their employment prior to retirement; or any
benefits for which employees or senior executives of the Company are
otherwise eligible as a result of a change in control of the Company;
PROVIDED, HOWEVER, that if a transaction is announced prior to March
1, 1997, and such transaction actually results in a change in control
during the Severance Period having a substantially similar economic
effect announced prior to March 1, 1997, or if a subsequent
transaction which effectively replicates the economic effects of the
previously announced transaction is announced within thirty days after
the previously announced transaction is abandoned and consummated
during the Severance Period, then any restricted stock or options of
the Company or COMSAT Corporation ("COMSAT") held by you shall vest on
the same basis as similar restricted stock or options held by other
officers of the Company (excluding the President and Chief Executive
Officer
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 3
and the Executive Vice President, Finance and Chief Operating Officer)
pursuant to any benefit plan or program adopted in connection with
such change in control. For all purposes of service credit under the
benefit plans of the Company or COMSAT , your last date of employment
will be December 1, 1997; PROVIDED, HOWEVER, that the Company shall
request that each of the Company's Compensation Committee and the
COMSAT Compensation Committee consider at their respective February
1997 meetings whether the restricted stock or options of the Company
or COMSAT, as the case may be, set forth on Exhibit A shall continue
to vest through March 1, 1998 and shall continue to be exercisable
through June 1, 1998, recognizing that each committee's decision shall
be made in the sole discretion of such committee. Attached hereto as
Exhibit A is a complete list of all restricted stock awards,
restricted stock units and stock options which you have been granted
by the Company or COMSAT. You may retain the laptop computer which
has been provided to you by the Company for your professional use, in
addition to any items which have been given to you by the Company for
your personal use.
(d) During the Severance Period, you shall be free at all times to
seek, take on and perform other business and employment opportunities
and responsibilities outside the Company ("Other Business"), whether
or not for compensation, subject only to the express terms and
conditions of this Agreement. In the event that you engage in any
Other Business in which you are gainfully employed on a full-time
basis, your compensation from such employment shall offset up to 50%
of the Company's continuing salary obligations under this Agreement.
2. In consideration of the Company's agreement to enter into this
Agreement, you agree to the general release and covenant not to xxx
contained in this paragraph 2
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 4
and the other provisions of this Agreement, it being understood that
this release shall not waive any claim for benefits to which you are
or may be entitled under this Agreement, or any other payments or
other benefits to which you are entitled, or will become entitled
pursuant to the specific terms of any other employee benefit plans of
the Company or COMSAT.
(a) You, on behalf of yourself and your heirs, executors,
administrators, successors and assigns, agree to release, discharge
and covenant not to xxx the Company, its affiliated companies and its
and their predecessors, successors, assigns, shareholders, directors,
officers, employees, administrators, fiduciaries and agents, in their
individual and representative capacities (hereinafter in this
paragraph 2 referred to collectively as "Ascent") with respect to all
claims, charges, causes of action, liabilities, suits, debts and
demands, of any kind or nature, which you had, have or may have
against Ascent (collectively "Waived Claims"), including, without
limitation, (i) any claims relating to your employment with Ascent;
(ii) any claims relating to the termination of your employment
pursuant to the terms of this Agreement; (iii) any claims relating to
the terms, conditions and benefits associated with such employment or
your termination from employment; (iv) any claims under any local,
state or federal antidiscrimination law, including, without
limitation, Title VII of the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act, the Americans With Disabilities
Act, the Employee Retirement Income Security Act of 1974, as amended,
and the Fair Labor Standards Act; (v) any claims at common law,
including, without limitation, claims for breach of an express or
implied contract, or wrongful discharge; or (vi) any other claims,
statutory or otherwise.
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 5
(b) You agree not to initiate or participate in or assist in any way
in any individual or class action lawsuit against Ascent with respect
to any Waived Claims, unless compelled to do so by legal process or
court order. You further agree to waive any remedy or recovery in any
action which may be brought on your behalf by any governmental agency
or other person with respect to any Waived Claims.
3. Except to the extent provided herein, you release and waive any and
all rights or claims you may have to reemployment with the Company or
any of its affiliated companies after the Expiration Date, and agree
that you will not apply for employment with the Company or any of its
controlled affiliates after such date without the express written
consent of the President of Ascent Entertainment Group, Inc. prior to
making such application, which consent may be withheld in his sole
discretion. Further, you agree that you will not apply for employment
with COMSAT or any of its controlled affiliates (other than the
Company and its controlled affiliates) after such date without the
express written consent of the Vice President, Human Relations and
Organizational Development, of COMSAT prior to making such
application, which consent may be withheld in his sole discretion.
You further understand and agree that the Company's compliance with
the terms of this Agreement during the Severance Period is conditioned
upon the following:
(a) You acknowledge that: (i) the business of the Company (the
"Business") is conducted in the United States of America generally and
the States of Colorado, California and Florida in particular; (ii) the
reputation and goodwill of the Company, which constitutes a part of
the Business, are an integral part of the success of the Business
throughout the areas where the Company conducts its business; and
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 6
(iii) if you deprive the Company of any of the Business's reputation
and goodwill or in any manner utilizes its reputation and goodwill in
competition with the Business, the Company will be deprived of the
benefits of its Business. Accordingly, as an inducement for the
Company to enter into this Agreement, you agree that during the
Severance Period you shall not, without the prior written consent of
the President of Ascent Entertainment Group, Inc. which consent shall
not be unreasonably withheld or delayed, 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
competitive with any business conducted by the Company (excluding
COMSAT), and you further agree that during the Severance Period you
shall not, without the prior written consent of the Vice President,
Human Relations and Organizational Development of COMSAT, which
consent shall not be unreasonably withheld or delayed, 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
competitive with any business conducted by COMSAT.
For the purpose of this Agreement, a business shall be considered
to be competitive with any business of the Company or COMSAT only if
such business is engaged in providing services or products (i) similar
to any service or product currently provided by the Company or COMSAT
or provided by the Company or COMSAT as of the date, and (ii) to
customers, distributors or
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 6
clients of the type served by the Company or COMSAT as of the date
hereof.
(b) You will not (for your own benefit or for the benefit of any
person or entity other than the Company or its affiliates) solicit, or
assist any person or entity other than the Company or its affiliates
to solicit, any officer, director, executive or employee (other than
an administrative or clerical employee) of the Company or its
affiliates to leave his or her employment.
(c) You acknowledge and agree that (i) the markets served by the
Company 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
solicitation period is linked to the term of the Severance Period; and
(iii) the above covenants are manifestly reasonable on their face, 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.
(d) Nothing in this paragraph 3 shall be deemed to prohibit you
from owning equity or debt investments in any corporation, partnership
or other entity which is competitive with the Company, PROVIDED that
such investments (i) are passive investments and constitute two
percent (2%) 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 President of the Company.
(e) Further, you agree that you will not criticize, disparage,
slander, defame, impugn or make any statement to third parties orally
or in writing, or
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 8
take, or omit to take, any other actions that will damage or harm the
Company or its officers and directors, or the reputations of any of
them.
4. You agree that, except as agreed upon in writing by the Company, you
will not communicate or disclose, in any manner, the terms, nature or
scope of this Agreement to any person except: (a) as may be required
by law, rule, or regulation of any governmental agency; (b) to your
attorneys, accountants, or tax consultants; (c) to members of your
immediate family; or (d) to a court of competent jurisdiction for
purposes of enforcing the terms hereof.
5. Because of the nature of the terms of this Agreement and the general
release and covenant not to xxx contained herein, by agreeing to this
Agreement you acknowledge that you have been advised, in writing, by
the Company to consult with an attorney prior to executing this
Agreement, that you have had an opportunity to do so and that you
understand the nature, terms and effects of this Agreement, and the
general release and covenant not to xxx. You further acknowledge that
the Company has not made any representations to you, or your agents or
successors and assigns, concerning this Agreement, or the general
release and covenant not to xxx, other than those contained herein.
6. Finally, you agree and acknowledge that this Agreement, and the
general release and covenant not to xxx contained herein, shall not
operate or be construed as an admission by the Company of any
violation of your employment relationship with the Company or any
local, state or federal statute or regulation or of any duty at common
law or otherwise owed to you, your successors or assigns.
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 9
7. This Agreement shall inure to the benefit of and is binding upon the
Company and you, and our respective heirs, executors, administrators,
successors, representatives and assigns.
8. This Agreement may not be modified or amended except in writing signed
by the parties.
9. This Agreement shall be governed and construed exclusively under the
laws of the State of Colorado.
10. All notices required or permitted to be given hereunder shall be in
writing and shall be deemed to have been delivered on the date when
personally delivered or mailed, by certified or registered mail,
return receipt requested, addressed to the intended recipient as
follows:
(a) If to the Employee:
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
With a copy to:
Xxxxxx Xxxxx, Esquire
Minsk, Xxxxx, Xxxx & Xxxxxx
0 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxx
January 28, 1997
Page 10
(b) If to the Company:
Xx. Xxxxxxx Xxxxx
President and Chief Executive Officer
Ascent Entertainment Group, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Vice President, Business and Legal Affairs
Ascent Entertainment Group, Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If you agree to the foregoing, please sign both originals of this letter in
the space provided below and return one original to the undersigned.
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President,
Finance and COO
Agreed and acknowledged
Date: 1/30/97
-----------------
/s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
EXHIBIT A
XXXXXX X. XXXXXX
STOCK OPTIONS (NON-QUALIFIED)
Shares Issue Date Exercise Price Exercise/Release Dates
------ ---------- -------------- ----------------------
COMSAT CORPORATION
6,000 05/03/93 $30.0625 6,000 vested as of
05/03/96
5,000 01/21/94 $27.6250 2,500 as of 01/21/96
2,500 on 01/21/97
6,000 01/20/95 $19.3125 1,500 on 01/20/96
1,500 on 01/20/97
3,000 on 01/20/98
ASCENT ENTERTAINMENT GROUP, INC.
100,000 12/18/95 $15.00 10,000 on 12/18/96*
15,000 on 12/18/97*
25,000 on 12/18/98*
25,000 on 12/18/99
25,000 on 12/18/00
RESTRICTED STOCK AWARDS
COMSAT CORPORATION
345 01/24/94 345 on 1/21/97
3,000 02/18/94 600 on 02/18/97
1,200 on 02/18/98
1,200 on 02/18/99
1,000 01/19/95 200 on 01/19/98
400 on 01/19/99
400 on 01/19/00
* These options vest but will not be exercisable until 12/18/98 so long as
COMSAT Corporation continues to hold 80% of the outstanding common stock of
Ascent. However, in light of the nature of this agreement, the Company
will use its reasonable
efforts to cause such shares to be exercisable prior to the Expiration
Date, so long as such exercise will not cause COMSAT Corporation to hold
less than 80% of the outstanding common stock of Ascent. If such exercise
would cause COMSAT to go below 80%, the parties shall mutually agree upon
an alternative form of compensation.
