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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into, effective as
of the 28th day of April, 1997, by and between American Telecasting, Inc.,
("ATI") a Delaware corporation, and Xxxxx Xxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, ATI and Employee wish to enter into an Employment Agreement to
reflect certain terms and conditions of ATI's employment of Employee.
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 as a
Vice-President - Operations, 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 management of
the operations of certain ATI wireless cable television systems. 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 term of this Agreement shall commence on the
date first above written (the "Effective Date") and shall continue, unless
earlier terminated in accordance with the terms of Paragraph 4, until April 30,
2000 (the "Term of Employment").
3. Compensation.
(a) Base Salary. As compensation for Employees's services rendered by the
Employee hereunder, ATI shall arrange to have Employee paid a base salary at an
annual rate equal to $131,500.00 per year ("Base Salary"), which shall be
increased by at least 5% at the beginning of each calendar year; provided,
however that any salary payments received by Employee from Fresno MMDS
Associates shall be credited against such Base Salary, and ATI's own payment
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obligation shall be reduced by such amount, it being acknowledged by the
parties that Employee is presently receiving salary payments from Fresno MMDS
Associates. The portion of the Base Salary to be paid by ATI shall be payable
to the Employee 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. Employee shall be provided with the use of, or
an allowance for, a car as determined by the Board of Directors.
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, as severance pay an amount equal to 12 months of Base Salary, to be
paid in
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accordance with ATI's standard policies for management personnel. In the event
Employee is terminated without Cause, Employee's group health insurance
coverage shall be continued, to the extent permitted by ATI's group health
insurance plan at that time, for a period of 12 months, or until Employee is
eligible for coverage under a different group health plan, whichever occurs
first, and Employee shall pay the portion of the premium allocable to other
employees of ATI generally, which allocable amount shall be deducted from
payments made pursuant to the prior sentence. If Employee is terminated without
Cause after the first calendar quarter of any year, Employee shall also be
entitled to receive, with respect to work performed in such calendar year, the
bonus described in Paragraph 3(b) which shall be pro-rated for the number of
days in the year worked by Employee. If Employee is terminated without Cause
within the first calendar quarter of any year, Employee will not be entitled to
receive such bonus with respect to work performed in such calendar year.
Notwithstanding any other provision in this Agreement to the contrary, in
the event Employee terminates his employment following a Change in Employment
Conditions, as defined below, the Employee shall be entitled to receive all the
benefits he would have received under this Agreement if he had been terminated
without Cause. For purposes of this Agreement, a Change in Employment
Conditions shall be:
i) a change by ATI in the Employee's function to a new position that is
not an executive officer position with executive officer responsibilities;
and
ii) the Employee's principal place of employment is relocated to a place
located outside the State of Colorado.
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
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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 1% 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.
(c) In the event Employee's employment by ATI is terminated for any reason
during the Term of Employment, the provisions of this Paragraph 5 shall survive
the termination of this Agreement and the termination of Employee's employment.
The provisions of this Paragraph 5 shall not otherwise survive.
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
(i) ATI may assign its rights and obligations under this Agreement to any
entity which is the successor or assign of ATI's entire business, and (ii) 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.
This Agreement is binding upon and inures to the benefit of all successors and
permitted assigns of the parties.
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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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written above.
AMERICAN TELECASTING, INC. EMPLOYEE
By: /s/ [ILLEGIBLE] /s/ XXXXX XXXXXX
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President & CEO Xxxxx Xxxxxx
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