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Exhibit 10.3.8
RETENTION AGREEMENT
THIS RETENTION AGREEMENT (the "Agreement") entered into between
DOBSON
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.
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(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
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(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 herei
