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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
