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EMPLOYMENT AGREEMENT
This Agreement is entered into, effective as of the 1st day of July,
1998, by and between American Telecasting, Inc., ("ATI") a Delaware corporation,
and Xxxxxx X. Xxxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employee has served as an employee of ATI pursuant to
Employment Agreements dated January 4, 1996 and July 1, 1997 between ATI and
Employee; and
WHEREAS, ATI wishes to engage Employee's services as President and
Chief Executive Officer of ATI upon the terms and conditions hereinafter set
forth; and
WHEREAS, Employee wishes to work for ATI upon the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and mutual promises
set forth herein, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Employment; Duties. ATI hereby agrees to employ Employee effective
as of the Effective Date as President and Chief Executive Officer, or in any
other executive capacity as ATI shall determine is necessary or appropriate in
connection with the operation of ATI, and Employee hereby agrees to serve in
such capacity. Employee's principal areas of responsibility, subject to
modification by ATI, shall be the general supervision and management of the
business of ATI. Employee shall perform such additional duties of a responsible
nature and not inconsistent with his position with ATI as shall be designated
from time to time by ATI. Employee agrees to use his best efforts to promote the
interests of ATI and to devote his full business time and energies to the
business and affairs of ATI.
2. Term of Agreement. The employment hereunder shall be for the
period which shall commence on July 1, 1998 (the "Effective Date") and shall
continue, unless earlier terminated in accordance with the terms of Paragraph 4,
until June 30, 1999 (the "Term of Employment").
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3. Compensation.
(a) Base Salary. As compensation for Employees's services rendered by
the Employee hereunder, ATI shall pay to Employee, as of the Effective Date, a
base salary at an annual rate equal to $215,400 per year ("Base Salary"). The
Base Salary shall be payable to the Employee on a semi-monthly basis, in
accordance with ATI's standard policies for management personnel.
(b) Bonus. Employee shall be eligible to participate in the Executive
Bonus program established by the Compensation Committee of the Board of
Directors.
(c) Benefits. Employee shall be entitled to participate in all
benefit programs established by ATI and generally applicable to ATI's executive
employees. Employee shall be reimbursed for legitimate business expenses
incurred in the course of his employment with ATI pursuant to ATI policies as
established from time to time.
4. Termination of Employment Relationship.
(a) Death or Incapacity. This Agreement shall terminate immediately
upon the death or incapacity of Employee.
(b) Termination by ATI. This Agreement may be terminated by ATI with
or without cause and, in such event, the Term of Employment shall terminate at
the termination date designated by ATI. For the purpose of this Agreement,
"Termination for Cause" or "Cause" shall include, but is not limited to, any
conduct involving dishonesty or moral turpitude or failure of the Employee to
devote full business time and energies to the business and affairs of ATI. ATI
may terminate Employee with or without Cause without prior notice.
(c) Termination by Employee. Employee may terminate this Agreement
for any reason and at any time upon giving thirty (30) days prior notice;
provided, however, that Employee's obligations under Paragraph 5 shall survive
any termination of this Agreement by Employee, by ATI or otherwise.
(d) Payment Upon Termination. If this Agreement is terminated by
Employee or by ATI for Cause prior to the completion of the Term of Employment,
the employee shall not be entitled to severance pay of any kind but shall be
entitled to all reasonable reimbursable expenses incurred by Employee and the
Base Salary earned by Employee prior to the date of termination, and all
obligations of ATI under Paragraph 3 hereof shall terminate upon the termination
date designated by ATI, except to the extent otherwise required by law. In the
event that Employee is terminated without Cause, ATI shall pay Employee twelve
months Base Salary, payable in installments on a semi-monthly basis as severance
pay.
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5. Non-Competition Agreement. Employee acknowledges that his
services to be rendered hereunder have a unique value to ATI, for the loss of
which ATI cannot be adequately compensated by damages in an action at law. In
view of the unique value to ATI of the services of Employee, and because of the
Confidential Information to be obtained by or disclosed to Employee, and as a
material inducement to ATI to enter into this Employment Agreement and to pay to
Employee the compensation referred to in Paragraph 3 hereof, Employee covenants
and agrees that:
(a) While Employee is employed by ATI, and for a period of one (1)
year thereafter, the Employee will not, either personally, whether as principal,
partner, employee, agent, distributor, representative, stockholder or otherwise,
or with or through any other person or entity operate or participate in the
wireless cable business or any other business which competes with ATI as of the
date of Employee's termination date (for purposes of Paragraph 5 hereof, ATI
shall be deemed to include all subsidiaries and joint ventures of ATI whether
now or hereafter affiliated with ATI) nor will Employee directly or indirectly
(i) solicit any person who has been a supplier or customer of ATI during the
period of one (1) year prior to the termination of employment, or (ii) solicit
or acquire wireless cable television channel licenses or leases of wireless
cable television channel licenses; provided, however, that during the period of
one (1) year following termination of his employment with ATI Employee may own
up to 5% of the stock of another company in the wireless cable business which is
traded on a national stock exchange or on the NASDAQ National Market System.
This noncompetition clause shall apply in the geographic territory comprised of
the entire United States and any other geographic area in which ATI is engaged
in business.
(b) It is agreed that the Employee's services are unique, and that
any breach or threatened breach by the Employee of any provisions of this
Paragraph 5 may not be remedied solely by damages. Accordingly, in the event of
a breach or threatened breach by the Employee of any of the provisions or this
Xxxxxxxxx 0, XXX shall be entitled to injunctive relief, restraining the
Employee and any business, firm, partnership, individual, corporation, or entity
participating in such breach or attempted breach, from engaging in any activity
which would constitute a breach of this Paragraph 5. Nothing herein, however,
shall be construed as prohibiting ATI from pursuing any other remedies available
at law or in equity for such breach or threatened breach, including the recovery
of damages.
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(c) The provisions of this Paragraph 5 shall survive the termination
of this Agreement and the termination of Employee's employment.
6. Assignability. Neither party may assign its rights and
obligations under this Agreement without the prior written consent of the other
party, which consent may be withheld for any reason or for no reason; provided
that in the event ATI is reorganized or restructured, ATI may assign its rights
and obligations under this Agreement without restriction or limitation to any
assignee which continues to conduct substantially the same business as ATI and
in which ATI controls, directly or indirectly, 50% or more of the voting power.
7. Severability. In the event that any of the provisions of this
Agreement shall be held to be invalid or unenforceable, the remaining provisions
shall nevertheless continue to be valid and enforceable as though invalid or
unenforceable parts had not been included therein. Without limiting the
generality of the foregoing, in the event that any provision of Paragraph 5
relating to time period and/or areas of restriction shall be declared by a court
of competent jurisdiction to exceed the maximum time period or area(s) such
court deems enforceable, said time period and/or area(s) of restriction shall be
deemed to become, and thereafter be, the maximum time period and/or area for
which such are enforceable.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior agreements or understandings among the parties hereto with respect to the
subject matter hereof.
9. Amendments. This Agreement shall not be amended or modified
except by a writing signed by both parties hereto.
10. Miscellaneous. The failure of either party at any time to require
performance of the other party of any provision of this Agreement shall in no
way affect the right of such party thereafter to enforce the same provision, nor
shall the waiver by either party of any breach of any provision hereof be taken
or held to be a waiver of any other or subsequent breach, or as a waiver of the
provision itself. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Colorado, without regard to the
conflict of laws of such State. The benefits of this Agreement may not be
assigned nor any duties under this Agreement be delegated by the Employee
without the prior written consent of ATI, except as contemplated in this
Agreement. This Agreement and all of its rights, privileges, and obligations
will be binding upon the parties and all successors and agreed to assigns
thereof.
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11. Survival. The rights and obligations of the parties shall survive
the Term of Employment to the extent that any performance is required under this
Agreement after the expiration or termination of such Term of Employment.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same document.
13. Notices. Any notice to be given hereunder by either party to the
other may be effected in writing by personal delivery, or by mail, certified
with postage prepaid, or by overnight delivery service. Notices sent by mail or
by an overnight delivery service shall be addressed to the parties at the
addresses appearing following their signatures below, or upon the employment
records of ATI but either party may change its or his address by written notice
in accordance with this paragraph.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
AMERICAN TELECASTING, INC. EMPLOYEE
By:
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Xxxxxx X. Xxxxxxxxx
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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (the "Amendment") is made
as of the ____ day of __________, 1998, by and between American Telecasting,
Inc., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxxx ("Employee").
WHEREAS, the Company and the Employee have entered into an Employment
Agreement dated as of the 10th day of August, 1995, as amended by First
Amendment to Employment Agreement dated as of September 9, 1997 (collectively
the "Employment Agreement"); and
WHEREAS, the Company and the Employee wish to extend the term of the
Employment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual promises
set forth herein, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Section 2 of the Employment Agreement is hereby amended in its
entirety to read as follows:
2. Term of Agreement. The term of this Agreement shall
commence on the date first written above (the "Effective
Date") and such term and the employment hereunder shall
continue, unless earlier terminated in accordance with terms
of Paragraph 4, for a period of five (5) years (the "Term of
Employment").
2. Except as set forth herein, the Employment Agreement remains in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have properly and duly executed
this Amendment as of the date first written above.
AMERICAN TELECASTING, INC. EMPLOYEE
By:
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Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxx
Chief Executive Officer
and President
