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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NO. 0-27192
ASCENT ENTERTAINMENT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1930707
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1225 Seventeenth Street, Suite 1800
Denver, Colorado 80202
(Address and Zip Code of principal executive offices)
Registrant's telephone number, including area code:
(303) 308-7000
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of Each Exchange on which Registered
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Common Stock, par value $.01 NASDAQ National Market
11 7/8% Senior Secured Discount Notes
Due 2004 None
Securities registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. [X] Yes No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
Aggregate market value of voting stock held by non-affiliates of the
Registrant was $253,051,519 based on a price of $15.125 per share, which was the
average of the bid and asked prices of such stock on March 20, 2000, as reported
on the NASDAQ National Market reporting system.
29,755,600 shares of Common Stock were outstanding on March 20, 2000.
DOCUMENTS INCORPORATED BY REFERENCE
None.
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TABLE OF CONTENTS PAGE
PART I
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ITEM 1.
GENERAL INFORMATION.................................... 1
MULTIMEDIA DISTRIBUTION................................ 2
ON COMMAND CORPORATION................................. 2
GENERAL.......................................... 2
INDUSTRY OVERVIEW................................ 3
OCC OPERATING AND GROWTH STRATEGY................ 3
PLATFORMS........................................ 3
SERVICES......................................... 5
SALES AND MARKETING.............................. 6
INSTALLATION AND SERVICE OPERATIONS.............. 7
HOTEL CONTRACTS.................................. 7
TECHNOLOGY....................................... 7
SUPPLIERS........................................ 7
COMPETITION...................................... 8
INTERNATIONAL MARKETS............................ 9
INVESTMENT IN OCC................................ 9
NETWORK SERVICES....................................... 9
ASCENT NETWORK SERVICES.......................... 9
DISCONTINUED OPERATIONS................................10
REGULATION.............................................11
PATENTS, TRADEMARKS AND COPYRIGHTS.....................11
EMPLOYEES..............................................12
ITEM 2. PROPERTIES.............................................12
ITEM 3. LEGAL PROCEEDINGS......................................12
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS....13
PART II
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ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS....................................14
ITEM 6. SELECTED FINANCIAL DATA................................14
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS....................16
ITEM 7A. QUALITIATIVE AND QUANTITATIVE DISCLOSURE ABOUT
MARKET RISK............................................23
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA............25
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE....................48
PART III
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ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.....49
ITEM 11. EXECUTIVE COMPENSATION.................................51
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.............................................59
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.........61
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K............................................62
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PART I
CERTAIN OF THE STATEMENTS THAT FOLLOW ARE FORWARD-LOOKING AND RELATE TO
ANTICIPATED FUTURE OPERATING RESULTS. STATEMENTS WHICH LOOK FORWARD IN TIME
ARE BASED ON MANAGEMENT'S CURRENT EXPECTATIONS AND ASSUMPTIONS, WHICH MAY BE
AFFECTED BY SUBSEQUENT DEVELOPMENTS AND BUSINESS CONDITIONS, AND NECESSARILY
INVOLVE RISKS AND UNCERTAINTIES. THEREFORE, THERE CAN BE NO ASSURANCE THAT
ACTUAL FUTURE RESULTS WILL NOT DIFFER MATERIALLY FROM ANTICIPATED RESULTS.
ALTHOUGH THE COMPANY HAS ATTEMPTED TO IDENTIFY SOME OF THE IMPORTANT FACTORS
THAT MAY CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE ANTICIPATED,
THOSE FACTORS SHOULD NOT BE VIEWED AS THE ONLY FACTORS WHICH MAY AFFECT FUTURE
OPERATING RESULTS.
ITEM 1. BUSINESS
GENERAL INFORMATION
Ascent Entertainment Group, Inc. ("Ascent" or the "Company") operates
diversified media and entertainment production and distribution businesses
characterized by well-known franchises. The Company conducts its business in two
reportable segments, Multimedia Distribution and Network Services. In the
Company's Multimedia Distribution segment, the Company's approximately 56.6%
owned publicly traded subsidiary, On Command Corporation ("On Command" or
"OCC"), is the leading provider (by number of hotel rooms served) of in-room on-
demand video entertainment and information services to the domestic lodging
industry. The Company's Network Services segment is comprised of the Company's
Ascent Network Services ("ANS") division. ANS is the primary provider of
satellite distribution support services that link the National Broadcasting
Company ("NBC") television network with 181 of its affiliated stations
nationwide. The Company's discontinued operations are comprised of the results
of the Company's former entertainment segment, which included the Denver
Nuggets, the Colorado Avalanche and Ascent Arena Company (the "Arena Company"),
the owner and manager of the Pepsi Center, (collectively the "Sports-related
businesses"), which the Company has announced its intentions to sell. In
addition, discontinued operations include the results of the Company's former
subsidiary, Beacon Communications, LLC ("Beacon"), in which a 90% interest was
sold on January 20, 1999. Beacon, (an independent motion picture and television
production company) was sold to an investment group which included Armyan
Bernstein, Beacon's Chairman and Chief Executive Officer. The Company began
accounting for Beacon as a discontinued operation as of December 31, 1998 and
for the Sports-related businesses as a discontinued operation during the first
quarter of 1999. Accordingly, the accompanying financial information included
in the Annual Report has been restated to conform to the discontinued operations
presentation of the Company's Sports-related businesses.
The Company is a Delaware corporation and was incorporated in 1995. The
Company was formed by COMSAT Corporation ("COMSAT") to organize COMSAT's
multimedia distribution and entertainment assets under one management group.
An initial public offering (the "Ascent IPO") of Ascent's common stock was
completed in December 1995. As a result of the Ascent IPO, COMSAT owned 80.67%
of the Company's common stock.
COMSAT originally became involved in the entertainment industry through its
acquisition of the multimedia distribution businesses, ANS and On Command Video
Corporation ("OCV"), and its initial acquisition of an interest in the Nuggets.
COMSAT expanded the Company by acquiring complementary entertainment businesses,
including increasing its investment in OCV and the Nuggets and acquiring the
Avalanche, Beacon, and other related interests. In 1996, the Company formed OCC
to combine OCV and the assets and certain liabilities of Spectravision, Inc.
("SpectraVision"), at the time the second largest provider of in-room on-demand
video entertainment services to the domestic lodging industry (the
"Spectravision Acquisition").
In connection with the Offering, the Company and COMSAT entered into a
Services Agreement, pursuant to which COMSAT provided certain services to the
Company; a Corporate Agreement, which provided COMSAT with certain control
rights, including with respect to the Company's board of directors, equity
securities, and Certificate of Incorporation and Bylaws; and a Tax Sharing
Agreement related to the treatment of Ascent as part of COMSAT's consolidated
tax group (See Notes 7 and 12 to the Company's Consolidated Financial
Statements).
On June 27, 1997, COMSAT consummated the distribution of all of its
ownership interest in Ascent to the COMSAT shareholders on a pro-rata basis in a
transaction that was tax-free for federal income tax purposes (the
"Distribution") pursuant to a Distribution Agreement dated June 3, 1997, between
Ascent and COMSAT. The Distribution was intended, among other things, to afford
Ascent more flexibility in obtaining debt financing to meet
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its growing needs. The Distribution Agreement terminated the Corporate
Agreement, the Tax Sharing Agreement and the Services Agreement. In addition,
pursuant to the Distribution Agreement, certain restrictions were put into place
to protect the tax-free status of the Distribution. Among the restrictions,
Ascent was not allowed to issue, sell, purchase or otherwise acquire stock or
instruments which afford a person the right to acquire the stock of Ascent until
July 1998. Finally, as a result of the Distribution, Ascent is no longer part of
COMSAT's consolidated tax group and accordingly, Ascent may be unable to
recognize future tax benefits and will not receive cash payments from COMSAT
resulting from Ascent's operating losses in 1999 and 1998 and anticipated
operating losses thereafter. (See Notes 7 and 12 to the Company's Consolidated
Financial Statements.)
MERGER AGREEMENT
On February 22, 2000, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Liberty Media Corporation ("Liberty") and
Liberty AEG Acquisition, Inc. ("Merger Sub"), an indirect wholly-owned
subsidiary of Liberty. Pursuant to the Merger Agreement, Merger Sub commenced a
Tender Offer (the "Offer") offering Ascent stockholders $15.25 in cash for each
share of Ascent common stock. Liberty commenced the offer on February 29, 2000
and under its terms and subject to its conditions, the Offer will expire on
March 27, 2000, unless extended pursuant to the Merger Agreement. The Offer is
conditioned on the tender of at least a majority of the Ascent shares as well as
other customary conditions. Under the Merger Agreement and subject to the terms
thereof, following the Offer, Merger Sub will be merged with and into Ascent
(the "Merger") and all shares not purchased in the Offer (other than Shares held
by Liberty, Merger Sub or Ascent, or shares held by dissenting stockholders)
will be converted into the right to receive $15.25 per Share in cash.
MULTIMEDIA DISTRIBUTION
ON COMMAND CORPORATION
GENERAL
OCC is a holding company whose principal assets are OCV, SpectraVision and
On Command Development Corporation, each of which operates as a separate, wholly
owned subsidiary of On Command Corporation. OCC is the leading provider (by
number of hotel rooms served) of in-room, on-demand video entertainment and
information services to the domestic lodging industry. OCC has experienced
rapid growth in the past seven years, increasing its base of installed rooms
from approximately 37,000 rooms at the end of 1992 to approximately 956,000
rooms at December 31, 1999, of which approximately 884,000 rooms are served by
on-demand systems.
OCC provides in-room video entertainment and information services on three
technology platforms, the recently developed OCX video system, the On Command
Video ("OCV") System and the SpectraVision systems. The OCX video system
provides enhanced multimedia applications, including an improved graphical
interface for movies and games, TV-based Internet with a wireless keyboard and
other guest services. At December 31, 1999, OCC had installed the OCX systems
in approximately 34,000 hotel rooms, 30,000 with Internet capability. The OCV
System is a patented video selection and distribution technology platform that
allows hotel guests to select at any time movies and games through the
television sets in their hotel rooms. At December 31, 1999, OCC had
approximately 749,000 rooms installed with the OCV platform. There are
variations of the SpectraVision Video Systems still installed in hotels
including tape based scheduled and on-demand systems. The SpectraVision Video
System generally offers fewer movie choices than the OCV or OCX systems. At
December 31, 1999, OCC had 177,000 rooms installed with SpectraVision equipment.
In addition to movies, OCC's platforms provide for in-room viewing of
programming of select cable channels (such as HBO, Showtime, ESPN, CNN and
Disney Channel) and other interactive and information services, which includes
high speed Internet access through the OCX platform. OCC primarily provides its
services under long-term contracts to hotel chains, hotel management companies,
and individually owned and franchised hotel properties, predominantly in the
deluxe, luxury, and upscale hotel categories serving business travelers, such as
Marriott, Hilton, Hyatt, Wyndham, Starwood, Doubletree, Fairmont, Embassy
Suites, Four Seasons, and other select hotels.
At December 31, 1999, approximately 87% of OCC's 956,000 installed rooms
were located in the United States, with the balance located primarily in Canada,
the Caribbean, Australia, Europe, Latin America and the Asia-Pacific region. In
addition to installing systems in hotels served by OCC, OCC sells its systems to
certain other providers of in-room entertainment, including Hospitality Network,
Inc., which is licensed to use OCCs system to provide on-demand, in-room
entertainment and information services to certain gaming-based, hotel properties
and ALLIN Communications, Inc., which is licensed to install OCC's systems in
cruise ships.
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INDUSTRY OVERVIEW
Providing in-room entertainment and information services to the lodging
industry includes offering pay-per-view motion pictures and Internet
connectivity, free-to-guest programming of select pay cable channels, and an
increasing array of interactive programs and information services. Pay-per-view
movies were introduced in the early 1970s and have since become a standard
amenity offered by many hotels to their guests. Historically, providers of
programming to hotels delivered their content on a fixed time schedule that did
not provide the hotel guest flexibility in choosing when to watch a movie.
Typically, a guest would be offered a choice of four to eight movies, each of
which would be shown once every two to four hours. The development of video
switches (including OCV's patented video switch) enabled providers of pay-per-
view services to offer scheduling flexibility to the viewer. Changes in
technology have also led to the ability to provide a number of on-demand
interactive services such as guest folio review, automatic checkout, survey
completion, guest messaging, video games and Internet service. The market for
in-room entertainment and information is characterized as a highly competitive
environment among several industry-dedicated companies and a number of new
entrants including cable companies, telecommunications companies, laptop
connectivity companies and others. See "Competition."
OPERATING AND GROWTH STRATEGY
On Command Corporation's operating and growth strategy is to: (i) increase
revenues and create new revenue sources through an expanding range of
interactive and information services offered to the lodging industry through the
OCX platform, including @Hotel TV-based Internet; (ii) increase its installed
hotel customer base by obtaining contracts with business and luxury hotels and
select mid-priced hotels without current service, converting hotels currently
served by other providers whose contracts are expiring, and servicing hotels
which are acquired or constructed by existing customers; (iii) expand its room
base in underserved foreign markets; and (iv) increase revenues and decrease
costs in certain hotels acquired in the SpectraVision acquisition by installing
more current technology offering greater reliability, broader selection, and
more viewing flexibility.
OCC has been actively pursuing the renewal or extension of most of the
contracts with hotel customers with SpectraVision equipment by offering these
customers the opportunity to obtain OCV or OCX on-demand pay-per-view movies and
related services. As of December 31, 1999, OCC had converted approximately
181,000 rooms previously served by SpectraVision's systems to OCC's on-demand
system. Management expects to have a substantial majority of the remaining
SpectraVision rooms converted to OCC's on-demand system by the end of 2001.
PLATFORMS
OCX Platform
OCX is a multimedia platform that can be used to modify existing OCC
installations or can incorporate digital content storage in new installations.
At December 31, 1999, OCC had installed the OCX system in 34,000 hotel rooms,
30,000 of which have Internet capability. The platform currently provides
interactive, multimedia menus, high-speed, TV-based Internet service, e-mail
access over the Internet, Sony PlayStation games, as well as more choices and
higher-quality video (with digital content storage) for OCC's on-demand movie
services. Potential offerings using the digital platform include flexible
pricing and packaging, non-theatrical short videos (such as business, lifestyle,
and sports videos) and special events, including out-of-market sports events.
On July 1, 1999, OCC launched its OCX platform which is now being supported
by OCC using standard procedures. Over the next several months, OCC will be
implementing new systems and procedures to better service and support the
existing OCX properties and improve the operational efficiencies of the OCX
platform. OCC has been actively marketing OCX and as of December 31, 1999, had
already signed contracts to install OCX an additional 75,000 rooms. OCC is
outfitting all major metropolitan areas with sufficient technical staff to
support the increasing demand for OCX.
OCX provides enhanced multimedia applications and @Hotel Internet access
using a customized version of Microsoft's Internet Explorer, adapted for use
over the TV in conjunction with a wireless keyboard. @Hotel Internet
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service is available to guests for a daily fee and includes complete web access
and e-mail capability. OCC has also partnered with several Internet content
providers to organize hotel-friendly Internet sites. OCX operates by means of
several client computers that serve multiple guest rooms and are located outside
of the actual rooms.
The OCX platform supports a high degree of interactivity and customization,
including a powerful and compelling multimedia user interface. The OCX platform
is a standards-based, client-server architecture utilizing Windows NT in the
"back end" and a customized NTSC version of Internet Explorer running on Windows
98 PC clients in the "front end." HTML-based menus allow integration of content
and navigational elements, and video content is provided via a digital file
server or an array of video cassette players.
A key component of the OCX platform is the "Site Manager" software
application that controls the system, interfaces with the hotel Property
Management System, and acts as the system's overall resource manager (including
user session management and resource allocation). In its design and
functionality, this application reflects OCC's years of operational experience
and provides a key strategic advantage in serving the lodging industry.
The OCX platform provides a significant increase in the breadth of possible
services and in the efficiency of providing them. While the platform itself may
be extended to support extensive product offerings, early implementations will
include video-on-demand, @Hotel TV-based Internet access, Sony's PlayStation
video games and a rich multimedia user interface. With the OCX technology, each
component of the platform has multiple uses. For example, the same PC client
used for navigating graphics-intensive menus is used subsequently for accessing
the Internet and sending e-mail. With digital content storage, a feature film
could be replaced by four 30-minute short subject videos (for example,
instructional videos, self-help videos or comedy videos), unlike one-for-one
replacement with videocassettes. More importantly, the Company can begin to
transition to network delivery of content.
OCC undertakes a significant investment when it installs its system in a
hotel property, sometimes rewiring part of the hotel. Depending on the size of
the hotel property, the quality of the cabling and antenna system at the hotel,
and the configuration of the system installed, the installation cost of a new,
OCV on-demand system with movies, guest services and video game capabilities,
including the head-end equipment averages from approximately $375 to $450 per
room. If the Company provides televisions, the cost can increase by $200 to
$325 per room depending on the size of the TV. The installation cost of a full
OCX system, including digital content storage and Internet capability with a
wireless keyboard is approximately $75 per room higher than the OCV system in
the same size hotel. In addition, the OCV system can be modified to enable OCX
functionality for movies, games, Internet, and guest services. The cost of this
modification is between $175 to $300 per room depending on the required wiring
in the hotel. Most installations undertaken by OCC today use the OCX platform.
Due to constraints placed on OCC by most movie studios, OCX is only installed
with video cassette players in certain international markets.
OCV Platform
The On Command Video system was patented by OCV in 1992 and consists of a
microprocessor controlling the television in each room, a hand-held remote
control, and a central "head-end" video rack and system computer located
elsewhere in the hotel. Programming signals originate from video cassette
players located within the head-end rack and are transmitted to individual rooms
by way of OCV's proprietary video switching technology. Movie starts are
controlled automatically by the system computer. The system computer also
records the purchase by a guest of any title and reports billing data to the
hotel's accounting system, which posts the charge to the guest's bill.
Manual functions of the OCV equipment and system are limited to changing
videocassettes once per month and are all handled by OCC's service personnel who
also update the system's movie titles screens. OCV's information system is
capable of generating regular reports of guests' entertainment selections,
permitting OCV to adjust its programming to respond to viewing patterns. The
number of guests that can view a particular movie at the same time varies from
hotel to hotel depending upon the popularity of the movie. OCV provides more
copies of the most popular programming to hotels. The high-speed, two-way
digital communications capability of the OCV system enables OCC to provide
advanced interactive and information features, such as video games, in addition
to basic guest services such as video checkout, room service ordering and guest
satisfaction surveys. The OCV system also enables hotel owners to broadcast
informational and promotional messages and to monitor room availability.
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For example, in a typical hotel with 400 rooms, the central head-end video
rack would consist of approximately 120 videocassette recorders containing up to
ten copies of the most popular movies and a total of up to 50 different titles.
The OCV system includes a computerized in-room on-screen menu that offers to
guests a list of only those movie selections available to the guest at that
time. As a result, even though the on-screen menu may not include a list of all
titles available in the particular hotel, the list includes all movies currently
available to the guest, thus eliminating the possibility of a guest being
disappointed when the guest's selection is not available.
SpectraVision Platform
In comparison with OCX and OCV systems, hotels still equipped with
SpectraVision technology generally offer fewer choices if served by
SpectraVision on-demand systems, or only offer hotel guests eight to twelve
movies per day at scheduled times, or some combination thereof. SpectraVision
originated a tape-based system which typically offered a hotel guest eight
movies per day at predetermined times. In 1991, SpectraVision introduced the
Guest Choice system to provide hotel guests with on-demand viewing of videotapes
based upon proprietary equipment and software. In 1994, SpectraVision
introduced a digital video on-demand service, called Digital Guest Choice. The
Digital Guest Choice system provides on-demand viewing of digitally stored
movies that reside on high capacity disk arrays. OCC has converted the Digital
Guest Choice systems in the United States to its OCV on-demand systems although
some units of Digital Guest Choice equipment continue to be used in Asia.
SERVICES
Pay-Per-View Movie Services
Through its OCV and SpectraVision subsidiaries, OCC provides on-demand and,
in some cases, scheduled in-room television viewing of major motion pictures and
independent non-rated motion pictures for mature audiences, for which a hotel
guest pays on a per-view basis. Depending on the type of system installed and
the size of the hotel, guests can choose up to 50 different movies with an on-
demand system, or from eight to twelve movies with a scheduled system.
OCC obtains the non-exclusive rights to show recently released motion
pictures from major motion picture studios generally pursuant to a master
agreement with each studio. The license period and fee for each motion picture
are negotiated individually with each studio, which typically receives a
percentage of that picture's gross revenues generated by the pay-per-view
system. Typically, OCC obtains rights to exhibit major motion pictures during
the "Hotel/Motel Pay-Per-View Window," which is the time period after initial
theatrical release and before release for home video distribution or cable
television exhibition. OCC attempts to license pictures as close as possible to
motion pictures theatrical release date to benefit from the studios' advertising
and promotional efforts. OCC also obtains independent motion pictures, most of
which are non-rated and are intended for mature audiences, for a one-time flat
fee that is nominal in relation to the licensing fees paid for major motion
pictures.
OCC provides service under contracts with hotels that generally provide for
a term of five to seven years. Under these contracts, OCC installs its system
into the hotel at OCC's cost, and OCC retains ownership of all its equipment
used in providing the service. Traditionally, the hotel provides its own
televisions, however, based on certain economic evaluations, OCC may provide
televisions to hotels in exchange for other contractual consideration. OCC's
contracts with hotels generally provide that OCC will be the exclusive provider
of in-room, pay-per-view video entertainment services to the hotel and generally
permit OCC to set the movie price. The hotels collect movie-viewing charges
from their guests and retain a commission equal to a percentage of the total
pay-per-view revenue that varies depending upon the size and profitability of
the system. Some contracts also require OCC to upgrade systems to the extent
that new technologies and features are introduced during the term of the
contract. At the scheduled expiration of a contract, OCC generally seeks to
extend the agreement on terms that are based upon the competitive situation in
the market.
The revenue generated from OCC's pay-per-view service is dependent on the
occupancy rate at the property, the "buy rate" or percentage of occupied rooms
that buy movies or other services at the property, and the price of the movie or
service. Occupancy rates vary based on the property's location, its competitive
position within the marketplace, and, over time, based on seasonal factors and
general economic conditions. Buy rates generally reflect the hotel's guest mix
profile, the popularity of the motion pictures or services available at the
hotel, and the guests' other entertainment alternatives. Buy rates also vary
over time with general economic conditions and the business of OCC is closely
related to the performance of the business and luxury hotel segments of the
lodging industry. Movie price levels are established by OCC and are set based
on the guest mix profile at each property and overall economic
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conditions. Currently, OCC's movie prices typically range from $8.95 to $9.95
for a purchase by the hotel guest. The current price for OCC's pay-per-day
service is $15.99 per day.
Free-To-Guest Services
OCC also markets free-to-guest services pursuant to which a hotel may elect
to receive one or more programming channels, such as HBO, Showtime, CNN, ESPN,
TBS, Disney Channel, Discovery Channel, and other cable networks. OCC provides
hotels free-to-guest services through a variety of arrangements, including
having the hotel pay the company a fixed monthly fee per room for each
programming channel selected or having the price of such programming included in
the Company's other offerings.
Internet Services
Beginning in 1997, OCC developed and selectively deployed for market
testing several new services to complement its existing offerings and strengthen
its growth strategy by creating new potential revenue sources. In July 1999, OCC
commercially released its OCX platform which enables guest use of the @Hotel
Internet service over the TV at December 31, 1999, OCC had installed the
internet service approximately 30,000 rooms. As an adjunct to the OCX multimedia
platform, OCC has also installed high-speed laptop connectivity for hotel rooms,
and high-bandwidth services for conference spaces. OCC's goal is to provide a
variety of services that leverage the connectivity infrastructure that it has or
will establish in its client hotels.
Game Services
At December 31, 1999, On Command offered games in approximately 186,000
rooms. Both the OCV and OCV platforms support Sony Playstation games. Kids,
families, and business travelers can entertain themselves with the most popular
video game titles available on the market. There are approximately between 8
and 16 titles available in most game rooms at a guest price of $5.99/hour.
Other Hotel and Guest Services
In addition to entertainment services, OCC provides other guest services to
the lodging industry. These services use the two-way interactive communications
capability of OCC's equipment and room availability monitoring. Among the guest
services provided are video check-out, room service ordering and guest
satisfaction surveys. Guest services are also currently available in Spanish,
French and certain other foreign languages. In most cases, the guest services
are made a part of the contract for pay-per-view services which typically runs
for a term of five to seven years. OCC is also testing shorter and more targeted
non-movie programming on a lower cost pay-per-view basis. The initial categories
of content include business, lifestyle and kids-only. In addition, OCC is in the
process of long-term testing of a new sports category of programming that
provides hotel guests with a selection of out-of-market sports not televised
nationally, or subject to local blackout restrictions.
SALES AND MARKETING
Substantially all of OCV's growth to date has been derived from obtaining
contracts with hotels in the United States not under contract with existing
vendors or served by other vendors as the contracts covering such hotels
expired. OCC believes that, as a result of the acquisition of SpectraVision,
opportunities for additional growth in the United States are more limited than
in the past. Therefore, OCC has broadened its strategy for obtaining new hotel
customers to both smaller hotels and international markets. OCC believes that
both smaller hotels in the United States and hotels in many international
markets are underserved by the in-room entertainment industry.
OCC's marketing efforts have historically been primarily focused on
business and leisure hotels with approximately 150 rooms or more. Management
believes that such hotels consistently generate the highest revenues per room in
the lodging industry and have the highest potential for new service revenue
growth. OCC also targets smaller deluxe, luxury and upscale hotels and select
mid-priced hotels serving business travelers that meet its profitability
criteria. As mentioned above, OCC has recently begun to employ additional
engineering, development and marketing efforts to target hotels under 150 rooms.
On Command intends to continue targeting established hotel chains, certain
business and leisure hotel management companies, and selected independent
hotels.
OCC markets its services to hotel guests by means of on-screen advertising
that highlights the services and motion picture selections of the month as well
as an in-room entertainment guide distributed to more than 817,000 hotel rooms
each month.
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INSTALLATION AND SERVICE OPERATIONS
At December 31, 1999, OCC's installation and service organization consisted
of approximately 368 installation and service personnel in the United States and
Canada. OCC installation and service personnel are responsible for all of the
hotel rooms served by OCC in the United States and Canada, including system
maintenance and distribution of videocassettes. OCC's installation personnel
also prepare site surveys to determine the type of equipment to be installed at
each hotel, install systems, train the hotel staff to operate the systems, and
perform quality control tests. OCC also uses local installation subcontractors
supervised by full-time OCC personnel to install its systems.
OCC maintains a toll-free technical support hot line that is monitored 24
hours a day by trained support technicians. The on-line diagnostic capability
of the OCX, OCV and SpectraVision systems enables the technician to identify and
resolve a majority of the reported system malfunctions from OCC's service
control center without visiting the hotel property. Should a service visit be
required, the modular design of the OCX, OCV and SpectraVision systems generally
permits installation and service personnel to replace defective components at
the hotel site.
HOTEL CONTRACTS
OCC typically negotiates and enters into a separate contract with each
hotel for the services provided. However, for some of OCC's large hotel
management customers, OCC negotiates and enters into a single master contract
for the provision of services for all of the corporate-managed hotels of such
management company. In the case of franchised or independently owned hotels,
the contracts are generally negotiated separately with each hotel. Existing
contracts generally have a term of five or seven years from the date the system
becomes operational. At expiration, OCC typically seeks to extend the term of
the contract on terms competitive in the market. At December 31, 1999,
approximately 10% of the pay-per-view hotels served by OCC have contracts that
have expired and are on a month-to-month basis. Approximately 10% of the pay-
per-view hotels served by OCC have contracts expiring in 2000. However, some of
the SpectraVision hotel contracts, which OCC classified internally as expired,
have two-year automatic renewal provisions under certain conditions and may
continue to be in effect. As a result, the expiration rates set forth above may
overstate the actual number of hotel contracts that are expiring.
TECHNOLOGY - RESEARCH AND DEVELOPMENT
On Command Development Corporation, a wholly-owned subsidiary of OCC,
develops technologies to be used by OCV and SpectraVision to support and enhance
OCV's and SpectraVision's operations and to develop new applications to be
marketed by OCV and SpectraVision.
OCC's product development philosophy is to design high quality
entertainment and information systems which incorporate features allowing OCC to
add system enhancements as they become commercially available and economically
viable. The high speed, two-way digital communications capability of the OCX
system enables OCC to provide advanced interactive features such as video games
and Internet in addition to basic guest services such as video checkout, room
service ordering, and guest survey.
The Company's systems incorporate proprietary communications system designs
with commercially manufactured components and hardware such as video cassette
players, televisions, amplifiers, and computers. Because the Company's systems
generally use industry standard interfaces, OCC can integrate new technologies
as they become economically viable.
SUPPLIERS
OCC contracts directly with various electronics firms for the manufacture
and assembly of its systems hardware, the design of which is controlled by On
Command Development Corporation. Historically, these suppliers have been
dependable and able to meet delivery schedules on time. OCC believes that, in
the event of a termination of any of its sources, alternate suppliers could be
located without incurring significant costs or delays. However, certain
electronic component parts used with the Company's products are available from a
limited number of suppliers and can be subject to temporary shortages because of
general economic conditions and the demand and supply for such component parts.
In addition, some of the SpectraVision systems currently installed in hotels
require a high level of service and repair. As these systems become older,
servicing replacement parts will become more difficult. If OCC were to
experience a shortage of any given electronic part, OCC believes that
alternative parts could be obtained or system design changes could be made. In
such event, OCC could experience a temporary reduction in the rate of new
installations and/or an increase in the cost of such installations.
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The head-end electronics are assembled at OCC's facilities for testing
prior to shipping. Following assembly and testing of equipment designed
specifically for a particular hotel, the system is shipped to each location,
where OCC-employed and trained technicians install the system, typically
assisted by independent contractors.
For those hotels for which OCC supplies televisions, On Command purchases
such televisions from a small number of television vendors. In the event of a
significant price increase for televisions by such vendors, the Company could
face additional, unexpected capital expenditure costs.
OCC, through its OCV and SpectraVision subsidiaries, maintains direct
contractual relations with various suppliers of pay-per-view and free-to-guest
programming, including the motion picture studios and/or their domestic and
international distributors and programming networks. OCC believes its
relationships with all suppliers are good.
In addition, OCC receives satellite signal transport services for much of
its domestic cable television programming from DIRECTV, Inc. OCC believes that
its relationship with DIRECTV, Inc. is good. However, an interruption in
DIRECTV's satellite service could interfere with OCC's ability to serve many of
its hotel customers' free-to-guest cable programming requirements.
COMPETITION
In the U.S., taking into account the various providers of cable television
services, there are numerous providers of in-room video entertainment to the
lodging industry, at least three of which provide on-demand pay-per-view, free-
to-guest programming, and guest services by means of the in-room television.
Internationally, there are more companies competing in the pay-per-view lodging
industry than in the United States.
Pay-per-view, the most profitable component of the services offered,
competes for a guest's time and entertainment resources with broadcast
television, free-to-guest programming, and cable television services. In
addition, there are a number of competitors that are developing ways to use
their existing infrastructure to provide in-room entertainment and/or
information services to the lodging industry, including cable companies
(including wireless cable), telecommunications companies, Internet and high-
speed connectivity companies, and direct-to-home and direct broadcast satellite
companies. Some of these competitors have been providing free-to-guest services
to hotels and are beginning to provide video-on-demand, Internet and high speed
connectivity to hotels.
OCC is the leading provider (by number of hotel rooms served) of in-room
video entertainment services to the United States lodging industry. OCC is also
the leading provider (by number of hotel rooms served) of in-room on-demand
video entertainment services to the lodging industry on a worldwide basis.
Domestically, OCC competes on a national scale primarily with LodgeNet
Entertainment Corporation ("LodgeNet") and on a domestic and international
regional basis with certain other smaller entities. Based on publicly available
information, OCC estimates that, at December 31, 1999, LodgeNet serves
approximately 4,900 lodging properties, of which 661,700 rooms are equipped with
on-demand service. At December 31, 1999, OCC served approximately 956,000
rooms, of which approximately 884,000 are on-demand rooms.
Competition with respect to in-room video entertainment and information
contracts centers on a variety of factors, depending upon the circumstances
important to a particular hotel. Among the more important factors are (i) the
features and benefits of the entertainment and information systems, (ii) the
quality of the vendor's technical support and maintenance services, and (iii)
the financial terms and conditions of the proposed contract. With respect to
hotel properties already receiving in-room entertainment services, the current
provider may have certain informational and installation cost advantages
compared to outside competitors.
Furthermore, while the Company is addressing the likelihood of increased
demand for Internet services in the hotel guestroom, OCC may face additional
competition in this area from traditional as well as new competitors. Some of
these competitors may be better funded from both public capital and/or private
venture capital markets and have access to additional capital resources which
OCC does not have.
OCC believes its competitive advantages include (i) technological
leadership represented by its superior on-demand capability and range of
services offered, (ii) system reliability and high quality service and (iii) its
presence and ability to offer its service inmost markets around the world. OCC
believes that its growth (including OCV's growth prior to the acquisition of
SpectraVision) reflects the strong competitive position of its products and
services.
OCC also competes with local cable television operators by customizing
packages of programming to provide only those channels desired by the hotel
subscriber, which typically reduces the overall cost of the service provided.
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On Command Corporation anticipates substantial competition in obtaining new
contracts with major hotel chains. OCC believes that hotels view the provision
of in-room on-demand entertainment and information both as a revenue source and
as a source of competitive advantage in that sophisticated hotel guests are
increasingly demanding a greater range of quality entertainment and information
alternatives. At the same time, OCC believes that certain major hotel chains
have awarded contracts based primarily on the level and nature of financial and
other incentives offered by the service provider. While OCC believes its
competitive advantages will enable OCC to continue to offer financial
arrangements that are attractive to hotels, its competitors may attempt to
maintain or gain market share at the expense of profitability. OCC may not
always be willing to match incentives provided by its competitors.
The communications industry is subject to rapid technological change. New
technological developments could adversely effect OCC's operations unless OCC is
able to provide equivalent services at competitive prices.
International Markets
In addition to its operations in the fifty United States, OCC offers its
services in canada, Latin America, Puerto Rico, the U.S. Virgin Islands, Hong
Kong, Singapore, Thailand, Australia, the Bahamas, Europe, and elsewhere in the
Asia-Pacific region.
The Company historically experienced higher international revenues and
operating cash flow per room than in the United States because of higher prices,
higher buy rates, and the general lack of programming alternatives. However, the
Company generally also incurs greater capital expenditure and operating costs
outside the United States. Additionally, the effect of the Asian economic crisis
contributed to a decline in revenues from that region in 1998 and 1999. At
December 31, 1999, the Company services 423 hotels with a total of
approximately 126,000 rooms located outside the United States.
The competition to provide pay-per-view services to hotels is even more
dispersed in international markets, than in the United States. Expansion of
OCC's operations into foreign markets involves certain risks that are not
associated with further expansion in the United States including availability
of programming, government regulation, currency fluctuations, language barriers,
differences in signal transmission formats, local economic and political
conditions, and restriction on foreign ownership and investment. Consequently,
these risks may hinder OCC's efforts to grow its base of hotel rooms in foreign
markets.
INVESTMENT IN OCC
The Company made its initial investment in OCV in 1991 and owned
approximately 84% of OCV (78.4% on a fully diluted basis) prior to the
acquisition of SpectraVision. In connection with the acquisition of OCV by OCC,
each stockholder of OCV received (i) 2.84 shares of OCC common stock for each
share of OCV common stock previously held and (ii) Series A Warrants to
purchase, on a cashless basis, 18.607% of a share of OCC common stock for each
share of OCV common stock previously held. Of the 21,750,000 shares of OCC
common stock and Series A Warrants to purchase 1,425,000 shares of OCC common
stock distributed to the OCV stockholders, Ascent received 17,149,766 shares of
OCC common stock and Series A Warrants to purchase 1,123,823 shares of OCC
common stock. Hilton Hotels Corporation, a current minority stockholder of OCC
and a significant customer of OCC, received approximately 2,331,986 shares of
OCC common stock and Series A Warrants to purchase approximately 152,786 shares.
OCC currently has no agreements or understandings with respect to the
minority stockholders of OCC or OCC, other than a letter agreement dated April
19, 1996 with Gary Wilson Partners that provides that Gary Wilson Partners will,
so long as (a) it owns any shares of OCC common stock received upon exercise of
the Series C Warrant that it received for advisory and other services that it
provided in connection with the acquisition of Spectravision and (b) the Company
continues to own 20% of the outstanding shares of OCC common stock, vote its
shares of OCC common stock in accordance with the instructions of the Company.
NETWORK SERVICES
ASCENT NETWORK SERVICES
ANS merged with and into the Company on May 30, 1997. Prior thereto, ANS
was a wholly-owned subsidiary of Ascent. ANS, as a division of the Company,
principally operates a nationwide network (excluding satellite transponders) for
satellite distribution of NBC's national television programming to the majority
of NBC's affiliate stations nationwide, as well as an installation, field
service and maintenance support business relating to such network. ANS also
provides satellite distribution field service and maintenance support for
networks operated by other customers. ANS has operated its satellite
distribution network for NBC since 1984 under the NBC Agreement, a 10-year
agreement that was extended in 1994 through the end of 1999. On August 1, 1999,
the Company completed negotiations and entered into a three-year extension
through the end of 2002 of the NBC Agreement, under which Ascent provides
satellite service, maintenance and support of NBC's national television network.
Management of the Company does not anticipate any significant capital
expenditures will be incurred in connection with the extension agreement.
ANS has historically been a stable source of revenues and operating cash
flows for the Company, generating approximately $20 million of revenues and $10
million of EBITDA annually since 1995. Ascent's strategy for maintaining and
expanding this source of cash flow is to renew and extend the NBC Agreement once
the current extension expires in 2002, and to be engaged for and complete
successfully the full digital upgrade of the NBC satellite distribution network.
The NBC Agreement was initially entered into in 1984, in connection with
ANS's construction, service and support of NBC's master earth station and
receiver earth stations at NBC affiliates. Pursuant to such contract, ANS
designed, built and continues to operate a Ku-band satellite distribution
network, for which the network control center is located in Florida. The Company
owns and operates the network (excluding the satellite transponders, which are
leased by NBC) and receives yearly payments from NBC in connection with such
operations. The network consists of the
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network control center, two master earth stations, eight transmit/receive
stations, 174 receive earth stations at NBC affiliates, 56 portable uplink
antennas, and six transportable transmit/receive trucks. Management continues to
believe that at the end of such extension period, it is possible that NBC will
engage ANS to complete a full upgrade of the NBC distribution network to digital
technology. No assurance can be provided that a full digital upgrade will occur
or that ANS will be engaged to complete the digital upgrade on terms as
favorable to the Company as the current agreement.
In 1998, NBC issued a request for information from ANS and certain of its
other vendors with respect to an upgrade of each component of the NBC
distribution network to digital technology. In August 1996, ANS and NBC
executed a letter of intent pursuant to which ANS has procured and installed
certain of such digital equipment to provide MSNBC, LLC, a partnership between
NBC and Microsoft Corporation ("MSNBC") with network service, maintenance and
support. The partial digital upgrade service is being provided for a 10 year
term and is currently governed by the underlying NBC Agreement. The Company
anticipates finalizing a service agreement with MSNBC separate from the
underlying NBC Agreement in the first half of 2000 for the partial digital
upgrade service. The network service, maintenance and support provided to
MSNBC are related to and dependent upon the original NBC distribution network.
DISCONTINUED OPERATIONS
SPORTS-RELATED BUSINESSES
The Company owns and operates franchises in two major professional sports
leagues, the Colorado Avalanche in the NHL and the Denver Nuggets in the NBA.
Both of these franchises are located in Denver, Colorado where residents have
historically supported successful local sports franchises. The Arena Company
was formed for the purpose of developing plans for the Pepsi Center as a
privately financed arena in Denver for the Avalanche, the Nuggets and other
entertainment events, including among other things, concerts, college sporting
events, ice and dance performances, comedy shows and circuses. The Company
believes that the construction of the Pepsi Center enhanced the asset value of
its sports franchises, allows the Company to take advantage of the growing
popularity of the NHL and NBA, and augments the revenues and operating cash
flows of the two sports franchises. The Pepsi Center was completed in the fall
of 1999 and commenced operations in September 1999.
On July 27, 1999, the Company entered into a definitive Purchase and Sale
Agreement (the "Sports Sale Agreement") to sell its Sports-related businesses
to a group of entities controlled by Donald L. Sturm ("The Sturm Group") for
$321.0 million in cash (of which Liberty Denver Arena LLC, an unrelated third
party, was to receive up to $20.5 million), subject to further adjustment for
cash balances and receipts received by the Company prior to closing, which
related to the Nuggets and Avalanche 1999/2000 playing seasons. In conjunction
with the sale, the approximate $140.0 million in non-recourse Arena Note
obligations were to remain the obligation of an entity to be acquired. On
December 1, 1999, the Company terminated the Sports Sale Agreement with The
Sturm Group. As a result of the termination of the Sports Sale Agreement with
The Sturm Group, Ascent continues to consider commencing litigation against The
Sturm Group, and Mr. Sturm personally, as a result of their actions in
connection with the termination of the Sports Sale Agreement. In December 1999,
Ascent announced that it would continue to pursue the sale of these businesses
or other strategic alternatives with respect to these businesses, as discussed
below.
The Company began accounting for the Nuggets, the Avalanche and the Arena
Company (collectively, the "Sports-related businesses" as a discontinued
operation as of March 31, 1999, pursuant to guidance contained in Emerging
Issues Task Force Issues (EITF) No. 95-18, "Accounting and Reporting for
Discontinued Business Segment when the Measurement Date occurs after the Balance
Sheet Date but before the Issuance of the Financial Statements." That is, in
conjunction with the Company entering into an agreement on April 25, 1999 to
sell its Sports-related businesses, the Sports-related businesses met the
conditions for classification as discontinued operations contained in EITF 95-
18. While the agreement dated April 25, 1999 was terminated and the Sports Sale
Agreement to sell the Sports-related businesses to The Sturm Group was
terminated on December 1, 1999, it continues to be the Company's intent to sell
its Sports-related businesses. In doing so, the Company has engaged two
investment banking firms who are actively engaged in the sales process.
Accordingly, the Company has continued to classify the net assets and operations
of its Sports-related businesses as discontinued operations.
A Summary of the significant business conditions of the Company's Sports-
related businesses follows:
The NHL and the NHL Players' Association entered into a seven-year NHL
Collective Bargaining Agreement on August 11, 1995 that took retroactive effect
as of September 6, 1993. Though the NHL Collective Bargaining Agreement
originally expired September 15, 2000, both the NHL and NHL Players' Association
had the right to
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reopen negotiations at the end of the 1997-1998 season. However, both parties
have agreed to waive the right to reopen negotiations in connection with an
agreement that allowed NHL players to participate in the 1998 Winter Olympics.
In 1997, the NHL Collective Bargaining Agreement was extended through the 2002-
2003 season. The Company believes that the NHL Collective Bargaining Agreement
renders unlikely any player labor disruptions in the near future.
On January 6, 1999, after a 189 day work stoppage, the NBA Players'
Association approved a new NBA Collective Bargaining Agreement, which was
subsequently ratified by the NBA owners on January 7, 1999. The NBA Collective
Bargaining Agreement has a six year term, with an option for a seventh year,
exercisable in the sole discretion of the NBA. The agreement provides for,
among other things, maximum and minimum total team salaries, with certain
exceptions, maximum and minimum individual player salaries, an escrow system
providing for a reduction of player salaries to the extent player salaries and
benefits exceed a pre-determined percentage of basketball related income ("BRI")
and an escrow "back-up" tax applicable to teams whose total team salaries exceed
the salary cap in years that total player benefits and salaries exceed a pre-
determined percentage of BRI.
Development and construction costs of the Pepsi Center totaled
approximately $200.0 million, including financing costs. On July 29, 1998, the
Company completed the offering of approximately $140 million of single A rated
asset backed taxable notes (the "Arena Notes"). The Arena Notes, were sold by
the Denver Arena Trust (the "Trust"), a bankruptcy remote entity 100%
beneficially owned by the Arena Company, bear an interest rate of 6.94% and have
a final maturity of twenty-one years with an average life of ten years. The
revenue streams that are securitized in connection with the Arena Notes are
contractually obligated fees under the arena naming rights agreement with Pepsi,
the founding sponsorship agreements with Coors and US West and 89 of the Pepsi
Center's luxury suite licenses.
BEACON
Acquired in 1994, Beacon produced feature-length motion pictures for
theatrical distribution and television programming. On January 20, 1999, the
Company sold ninety percent of the membership interests in Beacon to an
investment group which included Armyan Bernstein, Beacon's Chairman and Chief
Executive Officer. The purchase price for the 90% interest was $19 million in
cash, net of certain adjustments, after which Ascent received approximately
$15.9 million at closing. During the second and third quarters of 1999, the
Company attempted to collect the remaining balance due under the Purchase
Agreement of approximately $900,000. In turn, Beacon filed a claim against the
Company seeking an adjustment to the purchase price . Pursuant to the
Purchase Agreement, any disputes or disagreements among the parties were to be
settled pursuant to a binding arbitration in the State of California. The
arbitration commenced in November of 1999 and on February 21, 2000, the
arbitrator issued his opinion awarding the buyers approximately $3.5 million.
Accordingly, the Company recorded a $3.5 million expense during the fourth
quarter of 1999, resulting in the Company's recognition of a $.2 million loss
from the sale of its 90% interest in Beacon. After the sale Ascent has no
obligations to fund any of Beacon's liabilities or film development or
production commitments. The 10% interest in Beacon being retained by Ascent is
now subject to purchase and sale options between Ascent and the buyers at a
price proportionate to the initial purchase price of $21.0 million, which Ascent
intends to exercise in the near future. The Company began accounting for Beacon
as a discontinued operation as of December 31, 1998 ( See Note 3 to the
Company's Consolidated Financial Statements).
REGULATION
The Federal Communications Commission (the "FCC") has broad jurisdiction
over electronic communications. The FCC does not directly regulate On Command
Corporation's pay-per-view or free-to-guest services. However, the FCC's
jurisdiction does encompass certain aspects of ANS's satellite delivery
operations.
On February 1, 1996, Congress passed The Telecommunications Act of 1996
(the "Telecommunications Act"), which was signed into law on February 8, 1996.
The Telecommunications Act has and will continue to alter federal, state, and
local laws and regulations for telecommunications providers and services, and
may affect the Company. There are numerous rulemakings to be undertaken by the
FCC that will interpret and implement the Telecommunications Act. It is not
possible at this time to predict the outcome of such rulemakings.
PATENTS, TRADEMARKS AND COPYRIGHTS
The Company uses a number of trademarks for its products and services,
including "Ascent," "On Command," "OCX," "OCV," "SpectraVision," "Denver
Nuggets," "Colorado Avalanche" and others. Many of these trademarks are
registered by the Company, and those trademarks that are not registered are
protected by common law and state unfair competition laws. Because the Company
believes that these trademarks are significant to the Company's business, the
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Company has taken affirmative legal steps to protect its trademarks in the past
and intends to actively protect these trademarks in the future. The Company
believes that its trademark position is adequately protected. The Company also
believes that its trademarks are generally well recognized by consumers of its
products and are associated with a high-level of quality and value.
On Command Development Corporation, OCV and SpectraVision own or have
applied for a number of patents and patent licenses covering various aspects of
OCC's pay-per-view and interactive systems. Although OCC maintains and protects
these valuable assets, OCC believes that the design, innovation and quality of
its products and their relationships with its customers are at least as
important, if not more so, to the maintenance and growth of OCC.
EMPLOYEES
The Company had approximately 1,000 employees at December 31, 1999,
excluding the Company's Sports-related businesses. The Company considers its
relations with its employees to be good.
ITEM 2. PROPERTIES
The Company currently leases its principal offices in Denver, Colorado
under a lease which expires on May 31, 2000. The Company's Network Service
segment, which includes ANS, leases facilities from COMSAT in Maryland and also
leases its principal facilities which are located in Palm Bay, Florida. The
Company's Multimedia Distribution segment, which includes OCC, entered into a
lease in December 1996 for facilities in San Jose, California and relocated its
headquarters and OCV's manufacturing facilities to that location. In connection
with the acquisition of SpectraVision, OCC acquired SpectraVision's headquarters
building in Plano, Texas and directed SpectraVision to assume certain leases for
office space throughout the United States, Canada, Mexico, Puerto Rico, Hong
Kong and Australia for its customer support operations. On October 31, 1997, OCC
sold the SpectraVision headquarters building for $4.5 million in cash.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to certain legal proceedings in the ordinary course
of its business. However, the Company does not believe that any such legal
proceedings will have a material adverse effect on the Company's financial
position or results of operations. In addition, through its ownership of the
Avalanche and the Nuggets, the Company is a defendant along with other NHL and
NBA owners in various lawsuits incidental to the operations of the two
professional sports leagues. The Company will generally be liable, jointly and
severally, with all other owners of the NHL or NBA, as the case may be, for the
costs of defending such lawsuits and any liabilities of the NHL or NBA which
might result from such lawsuits. The Company does not believe that any such
lawsuits, singly or in the aggregate, will have a material adverse effect on the
Company's financial condition or results of operations. The Nuggets, along with
three other teams, have also agreed to indemnify the NBA, its member teams and
other related parties against certain American Basketball Association related
obligations and litigation, including costs to defend such actions. The Company
ves that the ultimate disposition and the costs of defending these or any
other incidental NHL or NBA legal matters or of reimbursing related costs, if
any, will not have a material adverse effect on the Company's financial
condition or results of operations.
On September 11, 1998, OCC reached an agreement with LodgeNet to settle all
pending litigation between the companies. As a result the companies have
dismissed all pending litigation between the parties in the United States
federal District Courts in California and South Dakota, with no admission of
liability by either party. The terms of the confidential settlement include a
cross-license of each company's patented technologies at issue to the other
party and a covenant not to engage in patent litigation against the other party
for a period of five years. Each party is responsible for its own legal costs
and expenses, and in connection with the multiple cross-licenses, OCC expects to
receive royalty payments, net of legal fees and expenses, in an aggregate amount
of approximately $10.8 million. OCC received the first payment of approximately
$2.9 million (net of expenses) in September 1998, received the second payment
of $3.9 million (net of expenses) in July 1999 and expects to receive the final
payment of approximately $3.9 million (net of expenses) in July 2000. OCC has
been and will be recognizing the royalty revenue when payments are received.
In September 1998, OCV filed suit against MagiNet, alleging a breach by
MagiNet of a license agreement between OCV and MagiNet, and terminating the
license agreement. OCV has also demanded the payment of license fees from
MagiNet which OCC believes were due and payable under the license agreement and
have not been paid by
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MagiNet. MagiNet has counter-claimed against OCV, alleging that OCV breached the
license agreement, and alleging various torts by OCV in its relationship with
MagiNet. While the outcome of MagiNet's counterclaim cannot be predicted with
certainty, the Company intends to defend itself vigorously and expects that any
liability, to the extent not provided by insurance or otherwise, will not have a
material adverse effect on the financial condition of the Company.
In June 1999, the Company and certain of its present and former directors
were named as defendants in lawsuits filed by shareholders (the "Shareholder
lawsuits") in June 1999 in the Delaware Court of Chancery. These proposed class
actions asserted that the Company's agreement to sell the Company's Sports-
related businesses to entities controlled by William and Nancy Laurie
constituted a sale of substantially all assets of the Company, thereby requiring
a shareholder vote, and resulted from breaches of fiduciary duties by the
director defendants (see Note 3 of Notes to Consolidated Financial Statements).
On June 23, 1999, the Company, the director defendants and the Laurie-controlled
purchasing entities that were also named as defendants, entered into an
agreement with the shareholder plaintiffs to settle the lawsuits. Under the
settlement agreement, the Company, the director defendants, and the Laurie-
controlled entities agreed, among other things, to amend the terms of the
proposed sale to the Laurie entities to permit the Company to conduct a new
process in which the Company would solicit additional offers for the purchase of
the Sports-related businesses. The Company and the director defendants also
agreed, among other things, to engage an additional investment banker to assist
in the new auction process, and to add Peter W. May to the Company's Board of
Directors. On July 27, 1999, as a result of the new auction process, the Company
entered into a definitive agreement to sell the Sports-related businesses to The
Sturm Group. The settlement of the Shareholder lawsuits is subject to the
approval of the Delaware Court of Chancery after a hearing that is anticipated
to occur during the second quarter of 2000. If approved by the Court, the
settlement would result in, among other things, the dismissal with prejudice of
the claims asserted in the Shareholder lawsuits and the payment by the Company
of plaintiff attorney fees and expenses in an amount to be approved by the
Court. For the year ended December 31, 1999, the Company has incurred legal and
related expenses of approximately $820,000 in connection with the Shareholder
lawsuits.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
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PART II
ITEM 5. MARKET PRICE AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS.
As of March 15, 2000, there were approximately 28,131 record holders of
shares of Common Stock, $.01 par value, of the Company ("Common Stock").
Ascent's Common Stock trades on the Nasdaq Stock Market, under the symbol
"GOAL." The Company's Transfer Agent and Registrar is The Bank of New York, 101
Barclay Street, New York, New York. The Company has not declared or paid any
dividends on the Common Stock and does not intend to do so in the foreseeable
future. For a description of certain restrictions on the Company's payment of
dividends, see "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and Note 6 to the Company's Consolidated Financial
Statements.
The following table sets forth, for each of the periods indicated, the high
and low sales quotations per share as reported by the Nasdaq National Market
based on published financial sources.
Year Ended December 31, 1998:
- -----------------------------
First Quarter............................... $11 $9-11/16
Second Quarter.............................. $12-3/4 $10-5/16
Third Quarter............................... $11-5/16 $5-7/8
Fourth Quarter.............................. $9-3/16 $5-11/16
Year Ended December 31, 1999:
- -----------------------------
First Quarter............................... $12-3/8 $7-1/4
Second Quarter.............................. $14-3/16 $8-3/4
Third Quarter............................... $15 $12-3/4
Fourth Quarter.............................. $17-1/2 $11-1/2
ITEM 6. SELECTED FINANCIAL DATA
The following selected consolidated financial data should be read in
conjunction with the Company's consolidated financial statements and schedules
and accompanying notes and with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" presented elsewhere in this
document. The Company began accounting for Beacon as a discontinued operation
as of December 31, 1998 and for the Sports-related businesses as a discontinued
operation during the first quarter of 1999. Accordingly, the accompanying 1998,
1997, 1996 and 1995 financial information have been restated to conform to the
Company's discontinued operations.
14
<PAGE>
FIVE YEAR FINANCIAL SUMMARY
(Amounts in thousands, except per share and room data information)
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Statement of Operations Data:
- -----------------------------
<S> <C> <C> <C> <C> <C>
Revenues.......................... $275,379 $261,276 $242,043 (1)$167,976 $ 135,782
Operating expenses (excluding
depreciation and amortization)... 213,463 185,913 183,588 125,198 108,373
Loss from continuing operations... (51,118) (31,926) (10,162) (33,338) (10,146)
Net Loss.......................... (77,577) (49,725) (41,514) (36,034) (21,023)
Basic and diluted net
Loss per common share:
Loss from continuing
operations................ (1.72) (1.07) (1.13) (.34) (.42)
Net loss....................... (2.61) (1.67) (1.40) (1.21) (.87)
Weighted average number of
Common shares outstanding (2)..... 29,756 29,756 29,755 29,753 24,217
Other Financial Data:
- ---------------------
Capital Expenditures.............. $ 86,080 $ 86,633 $ 93,914 $ 78,791 $ 82,903
Cash Flow Data:
Net cash provided by operating
activities of
continuing operations....... $ 64,117 $ 72,326 $ 22,239 $ 25,160 $ 62,954
Net cash used in investing
Activities................... (68,429) (83,534) (83,846) (82,009) (182,221)
Net cash provided by
Financing activities......... 15,532 30,000 77,248 82,988 124,406
EBITDA (3)........................ $ 61,916 $ 75,363 $ 58,455 $ 42,778 $ 27,409
Cash dividends per share $ -- $ -- $ -- $ -- $ --
Balance Sheet Data
(at end of period):
Total assets $581,301 $623,624 $656,386 $ 637,155 $ 433,935
Total long-term debt 339,922 305,537 259,958 50,000 70,000
Stockholder's equity 99,721 176,526 227,698 269,585 301,269
Room Data:
Total Number of Guest-pay total
rooms (at end of period):
On-Demand...................... 884,000 829,000 765,000 709,000 361,000
Scheduled only (4)............. 72,000 100,000 128,000 208,000 51,000
-------- -------- -------- ------------ ---------
Total rooms........... 956,000 929,000 893,000 917,000 412,000
======== ======== ======== ============ =========
</TABLE>
15
<PAGE>
(1) Includes $24.1 million in revenues from SpectraVision. The results of
operations for the fourth quarter of 1996 include the results from
SpectraVision's assets that were acquired on October 8, 1996.
(2) Gives effect to the 24,000-for-1 stock split of the outstanding Common
Stock effected upon consummation of the Ascent IPO.
(3) EBITDA represents earnings from continuing operations before interest
expense, income taxes, depreciation and amortization, other income
(expense) and non-cash charges related to stock based compensation. The
most significant difference between EBITDA and cash provided from operating
activities is changes in working capital. EBITDA is presented because it
is a widely accepted financial indicator used by certain investors and
analysts to analyze and compare companies on the basis of operating
performance. In addition, management believes EBITDA provides an important
additional perspective on the Company's operating results and the Company's
ability to service its long-term debt and fund the Company's continuing
growth. EBITDA is not intended to represent cash flows for the period, or
to depict funds available for dividends, reinvestment or other
discretionary uses. EBITDA has not been presented as an alternative to
operating income or as an indicator of operating performance and should not
be considered in isolation or as a substitute for measures of performance
prepared in accordance with generally accepted accounting principles, which
are presented and discussed in Item 7 under Liquidity and Capital
Resources. See the Consolidated Financial Statements and the Notes thereto
appearing elsewhere in this document. EBITDA for the year ended December
31, 1995 excludes the provision for restructuring during such period. The
Company's method for calculating EBITDA may be different than other
companies.
(4) Historically, the Company through its Satellite Cinema division, provided
satellite delivered (scheduled only) pay-per-view movies to the lodging
industry prior to its ownership of OCV. Effective October 8, 1996, the
Company, through OCC, acquired the assets and certain liabilities of
SpectraVision, which assets included a certain number of scheduled only
pay-per-view rooms. In the third quarter of 1997, OCC assigned to Skylink
operating rights and sold assets associated with approximately 26,500 rooms
in the United States and Canada.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis of the Company's financial condition
and results of operations should be read in conjunction with the Consolidated
Financial Statements and Notes thereto and other financial information included
elsewhere in this Annual Report.
Certain of the statements that follow are forward-looking and relate to
anticipated future operating results. Statements which look forward in time are
based on management's current expectations and assumptions, which may be
affected by subsequent developments and business conditions, and necessarily
involve risks and uncertainties. Therefore, there can be no assurance that
actual future results will not differ materially from anticipated results.
Although the Company has attempted to identify some of the important factors
that may cause actual results to differ materially from those anticipated, those
factors should not be viewed as the only factors which may affect future
operating results.
OVERVIEW
The Company operates in two reportable segments: Multimedia Distribution,
which consists of OCC; and Network Services, which consists of Ascent Network
Services.
Multimedia Distribution
- -----------------------
The Company made its initial investment in OCC in 1991 and owned
approximately 84% of OCV prior to the acquisition of SpectraVision. As a result
of consummating the SpectraVision Acquisition, the Company owned approximately
56.6% (approximately 46% on a fully diluted basis) of the outstanding common
stock of OCC.
It is expected that the Company will continue to derive a majority of its
consolidated revenues from OCC. Revenue and income growth are anticipated from
the continued installation of OCX systems for new hotel customers and to replace
OCV and SpectraVision systems serving existing customers. The primary sources of
revenues of OCC (which are more fully discussed below) are movie rentals, video
games, free-to-guest services and video system sales.
16
<PAGE>
The Company projects that the conversion of hotel rooms to OCC's new OCX
technology, as well as the continued upgrading and expansion of the products and
services offered by OCC, may require capital expenditures of approximately $90.0
million to $110.0 million during 2000.
In conjunction with the acquisition of SpectraVision, OCC acquired video
systems and equipment. These assets, which were recorded at their estimated
fair market value of approximately $41,800,000 in October 1996, were depreciated
over 3 years. As a result, OCC's 1999 fourth quarter operating results were
impacted from a reduction in depreciation and amortization expense charges
relating to these SpectraVision assets.
Network Services
- ----------------
Through ANS, the Company provides satellite distribution support services,
principally to the NBC television network for which it is the primary provider.
In 1984, ANS entered into the ten-year NBC Agreement to design, build, operate
and support its satellite distribution network. In 1994, ANS and NBC extended
the term of the NBC Agreement to 1999. On August 1, 1999, the Company completed
negotiations and entered into a three-year extension through the end of 2002 of
the NBC Agreement, under which Ascent provides satellite service, maintenance
and support of NBC national television network. Management of the Company does
not anticipate any significant capital expenditures will be incurred in
connection with the extension agreement. In addition, in August 1996, the
Company and NBC executed a letter of intent pursuant to which the Company has
procured and installed certain digital technology equipment and has agreed to
provide MSNBC, LLC, a joint venture between NBC and Microsoft Corporation
("MSNBC"), with network service, maintenance and support. This partial digital
upgrade service, governed by the underlying NBC Agreement, is provided for under
a 10-year term. ANS and MSNBC currently anticipate finalizing a service
agreement separate from the underlying NBC Agreement in the first half of 1999
for the MSNBC partial digital upgrade service. The network service, maintenance
and support provided to MSNBC are related to and dependent upon the original NBC
distribution network. The Company anticipates that ANS will assist NBC in
completing the upgrade of the NBC distribution network to digital technology,
although no assurance can be provided in this regard. Such a digital upgrade, if
awarded to ANS, would not commence until 2002 or 2003.
In connection with the NBC Agreement, ANS depreciated the equipment
relating to the Network distribution system over the term of the original
agreement, which expired in December 1999. Accordingly, the operating results
for ANS during fiscal years 2000-2002 will be impacted from a reduction in
depreciation expense relating to such equipment, as such equipment was fully
depreciated at December 31, 1999.
Merger Agreement with Liberty Media Corporation
- -----------------------------------------------
On February 22, 2000, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Liberty Media Corporation ("Liberty") and
Liberty AEG Acquisition, Inc. ("Merger Sub"), an indirect wholly-owned
subsidiary of Liberty. Pursuant to the Merger Agreement, Merger Sub commenced a
tender offer (the "Offer") offering Ascent stockholders $15.25 in cash for each
share of Ascent common stock. Liberty commenced the Offer on February 29, 2000
and under its terms and subject to its conditions, the Offer will expire on
March 27, 2000, unless extended pursuant to the Merger Agreement. The Offer is
conditioned on the tender of at least a majority of the Ascent shares as well as
other customary conditions. Under the Merger Agreement and subject to the terms
thereof, following the Offer, Merger Sub will be merged with and into Ascent
(the "Merger") and all shares not purchased in the Offer (other than shares held
by Liberty, Merger Sub or Ascent, or shares held by dissenting stockholders)
will be converted into the right to receive $15.25 per share in cash.
Seasonality, Variability and Other
- ----------------------------------
The Company's businesses are subject to the effects of both seasonality and
variability.
The Multimedia Distribution segment revenues are influenced principally by
hotel occupancy rates and the "buy rate" or percentage of occupied rooms at
hotels that buy movies or other services at the property. Higher revenues are
generally realized during the summer months and lower revenues realized during
the winter months due to business and vacation travel patterns which impact the
lodging industry's occupancy rates. Buy rates generally reflect the hotel's
guest mix profile, the popularity of the motion pictures or services available
at the hotel and the guests' other entertainment alternatives.
As a result of the operating losses expected to be incurred by OCC, the
Company expects to incur operating losses on a consolidated basis during 2000.
However, the Company expects to record positive earnings before income taxes,
depreciation and amortization and to reflect positive cash flows from operating
activities during this period.
17
<PAGE>
Results of Operations
- ---------------------
Consolidated Operations
- -----------------------
The Company's continuing operations are comprised of the results of On
Command Corporation, Ascent Network Services and the parent company, Ascent
Entertainment Group, Inc. The Company's discontinued operations are comprised
of the results of the Company's former entertainment segment, which included the
Denver Nuggets, the Colorado Avalanche and the Arena Company which the Company
has announced its intentions to sell (see Note 2 of Notes to the Consolidated
Financial Statement). In addition, discontinued operations include the results
of the Company's former subsidiary, Beacon Communications, LLC ("Beacon"), in
which a 90% interest was sold on January 20, 1999. The accompanying 1998 and
1997 financial information has been restated to conform to the discontinued
operations presentation of the former entertainment segment and Beacon. The
consolidated financial statements have been restated for all periods presented
to reflect the former entertainment segment and Beacon's results of operations
and net assets as discontinued operations.
Year Ended December 31, 1999 Compared to Year Ended December 31, 1998
- ---------------------------------------------------------------------
The following table sets forth certain data as a percentage of revenues for the
period indicated:
<TABLE>
<CAPTION>
1999 1998
---- ----
Amount Percent Amount Percent
------ ------- ------ -------
(Dollars in thousands)
<S> <C> <C> <C> <C>
Revenues..................................................... $275,379 100.0% $261,276 100.0%
Cost of services............................................. 187,302 68.0 178,262 68.2
Depreciation and amortization................................ 104,283 37.9 98,194 37.6
General and administrative................................... 26,161 9.5 7,651 2.9
-------- ------ -------- ------
Loss from operations......................................... (42,367) (15.4) (22,831) (8.7)
Interest and other income (expense), net..................... 5,531 2.0 1,942 0.7
Interest expense, net........................................ (29,265) (10.6) (24,473) (9.4)
Income tax benefit........................................... 2,277 0.8 2,248 0.9
Minority interest............................................ 2,706 4.6 11,188 4.3
-------- ------ --------
Loss from continuing operations.............................. (51,118) (18.6) (31,926) (12.2)
Loss from discontinued operations, net....................... (26,243) (9.6) (17,799) (6.8)
Loss from sale of discontinued operations, net............... (216) 0.0 -- --
-------- ------ -------- ------
Net loss..................................................... $(77,577) (28.2)% $(49,725) (19.0)%
======== ====== ======== ======
</TABLE>
Continuing Operations
- ---------------------
Revenues
- --------
Revenues for the year ended December 31, 1999 were $275.4 million, an
increase of $14.1 million, or 5.4%, as compared to $261.3 million in revenues
for the year ended December 31, 1998. This increase is attributable to a $14.1
million increase in revenues in the Company's Multimedia Distribution segment,
which includes OCC. The increase in revenues at OCC is primarily attributable to
continued conversions of SpectraVision properties to the superior performing OCX
and OCC systems, an increase in cable programming revenues, an increase in the
net royalty payment from LodgeNet Entertainment Corporation, continued
reductions in movie denial rates and an increase in game and equipment sales.
Revenues from the Company's Network Services segment, which includes the
operations of the Company's Ascent Network Services division, were relatively
flat with 1998.
Cost of Services
- ----------------
Cost of services for the year ended December 31, 1999 were $187.3 million,
an increase of $9.0 million, or 5.0%, compared to $178.3 million for the year
ended December 31, 1998. Cost of services at OCC increased by $10.3 million.
This increase in costs at OCC is primarily due to increased direct costs
associated with the increase in movie revenues at OCC (primarily hotel
commissions and movie royalties) and equipment sales and cable programming
revenues.
18
<PAGE>
Depreciation and Amortization
- -----------------------------
Depreciation and amortization for the year ended December 31, 1999 was
$104.3 million, an increase of $6.1 million or 6.2% compared to $98.2 million
for the year ended December 31, 1998. Depreciation and amortization at OCC was
$96.9 million in 1999 compared to $90.5 million during 1998, an increase of $6.4
million. This increase is primarily attributable to the following (i) the
continuing installation of on-demand video systems and the conversion of hotels
previously served by SpectraVision equipment at OCC and the resulting increase
in depreciation, (ii) accelerated depreciation on certain end-of-life assets at
OCC, and (iii) the recognition by OCC of a non-cash expense associated with
accounting for cashless stock options of $1.1 million in an executive
compensation agreement reflecting the increased share price of OCC's stock.
These increases were partially offset by the termination of amortization of
SpectraVision equipment in October 1999. Depreciation and amortization for
Network Services was $7.3 million during 1999 compared to $7.5 million during
1998.
General and Administrative Expenses
- -----------------------------------
General and administrative expenses, which include only those costs
incurred by the parent company (Corporate), were $26.2 million for the year
ended December 31, 1999, an increase of $18.5 million compared to $7.7 million
for the year ended December 31, 1998. This increase principally reflects
expenses recognized during the year ended December 31, 1999 of $3.7 million for
the Company's stock appreciation rights due to increases in the Company's stock
price, $1.9 million in expenses recognized for severance payments made to the
Company's former President and Chief Executive Officer, costs of $.8 million
incurred in conjunction with the settlement of a shareholder lawsuit, and costs
of $13.3 million in connection with the Company's unsuccessful efforts in 1999
to sell its Sports-related business and have its continuing operations acquired
by Liberty in a stock-for-stock merger (see Notes 2 and 3 of Notes to Condensed
Consolidated Financial Statements).
Interest and Other Income (Expense)
- -----------------------------------
Interest and other income (expense) increased by $3.6 million in the year
ended December 31, 1999 as compared to the year ended December 31, 1998. This
increase is primarily attributable to the recognition of a $1.8 million gain at
Corporate from the sale of investment securities and to an increase in interest
income recognized on Corporate's cash and cash equivalent balances during 1999.
Interest Expense
- ----------------
Interest expense increased $4.8 million in the year ended December 31, 1999
as compared to the year ended December 31, 1998. This increase is attributable
to additional borrowings incurred during 1999 by OCC for capital expenditures
combined with an increase in borrowing costs at Corporate, primarily those costs
related to the Company's 11.875% Senior Notes.
Income Tax Benefit
- ------------------
The Company recorded an income tax benefit from continuing operations of
$2.3 million, or 4.3% of losses from continuing operations, during the year
ended December 31, 1999 as compared to an income tax benefit of $2.2 million, or
6.9% of losses from continuing operations, during the year ended December 31,
1998. The decrease in the Company's 1999 benefit rate as compared to 1998 is
primarily due to uncertainties regarding the Company's ability to realize a
portion of benefits associated with the future deductible temporary differences
(deferred tax assets) and net operating loss carry forwards.
Minority Interest
- -----------------
Minority interest reflects the losses attributable to the minority interest
in the Company's 56.6% owned subsidiary, OCC.
Discontinued Operations
- -----------------------
The combined loss from discontinued operations totaled $26.2 million during
the year ended December 31, 1999 as compared to a loss of $17.8 million during
1998. The increased loss is primarily due to the operations of the Denver
Nuggets and the Arena Company, partially offset by an improvement in the
operations of the Colorado Avalanche and the absence of operating losses from
Beacon. Specifically, while revenues for the Nuggets increased in 1999 over 1998
due, in part, to the NBA work stoppage during the fourth quarter of 1998,
operating expenses increased due to a reserve taken on
19
<PAGE>
receivables due from NBA Properties, the merchandising affiliate of the NBA, an
increase in player salaries over 1998 and the incurrence of contract termination
costs for a former coach. While the Arena Company has realized improved
financial results since opening in September 1999, its operating losses have
increased over 1998 due to the recognition of both depreciation and interest
costs attributable to the Pepsi Center since it commenced operations.
Previously such costs were capitalized as part of the construction cost of the
Pepsi Center project. The improvement in operating results for the Avalanche
during 1999 is primarily attributable to the team's participation in three
rounds of the NHL playoffs, compared to one round in 1998.
The $0.2 million loss from sale of discontinued operations, net of taxes,
during the year ended December 31, 1999 reflects the loss from the sale of 90%
of the Company's interest in Beacon.
Year Ended December 31, 1998 Compared to Year Ended December 31, 1997
- ---------------------------------------------------------------------
The following table sets forth certain data as a percentage of revenues for the
period indicated:
<TABLE>
<CAPTION>
1998 1997
---- ----
Amount Percent Amount Percent
------ ------- ------ -------
<S> <C> <C> <C> <C>
(Dollars in thousands)
Revenues......................................................... $261,276 100.0% $242,043 100.0%
Cost of services................................................. 178,262 68.2 175,184 72.4
Depreciation and amortization.................................... 98,194 37.6 88,737 36.6
General and administrative....................................... 7,651 2.9 8,404 3.5
-------- ------ -------- ------
Loss from operations............................................. (22,831) (8.7) (30,282) (12.5)
Interest and other income (expense), net......................... 1,942 0.7 (382) (.1)
Interest expense, net............................................ (24,473) (9.4) (20,059) (8.3)
Income tax benefit............................................... 2,248 0.9 3,066 1.2
Minority interest................................................ 11,188 4.3 14,319 5.9
-------- ------ -------- ------
Loss from continuing operations.................................. (31,926) (12.2) (33,338) (13.8)
Loss from discontinued operations, net........................... (17,799) (6.8) (8,176) (3.4)
-------- ------ -------- ------
Net loss......................................................... $(49,725) (19.0)% $(41,514) (17.2)%
======== ====== ======== ======
</TABLE>
Continuing Operations
- ---------------------
Revenues
- --------
Revenues for the year ended December 31, 1998 were $261.3 million, an
increase of $19.3 million, or 8.0%, as compared to $242.0 million in revenues
for the year ended December 31, 1997. This increase is attributable to
increases in revenue of $16.7 million and $2.6 million within the Multimedia
Distribution segment and Network Services segment. The increase in revenues at
OCC is primarily attributable to increases in its on-demand movie business from
stronger buy rates in its core movie product, the non-recurrence of the
interruption in satellite service to a number of SpectraVision hotels which
occurred during the first quarter of 1997, and the receipt of the LodgeNet
royalty payments during the third quarter of 1998. The increase in Network
Services revenues is attributable to an increase in service and maintenance
revenues from NBC affiliates and other private networks.
Cost of Services
- ----------------
Cost of services for the year ended December 31, 1998 were $178.3 million,
an increase of $3.1 million, or 1.8%, as compared to $175.2 million in cost of
services for the year ended December 31, 1997. This increase reflects
additional operating costs at both OCC and ANS. OCC experienced an increase in
hotel commissions and free-to-guest expenses, both associated with the increase
in room revenue, and increased expenditures in research and development and
costs related to new products and initiatives. Offsetting these increased costs
at OCC is a decline in certain non-recurring costs; those costs associated with
the termination of satellite movie service related to SpectraVision rooms and
the non-recurrence of costs associated with the interruption of satellite
service which occurred during the first quarter of 1997. The increase in cost
of services at ANS is attributable to an increase in material costs associated
with the increased sales revenues during 1998.
20
<PAGE>
Depreciation and Amortization
- -----------------------------
Depreciation and amortization for the year ended December 31, 1998 was
$98.2 million, an increase of $9.5 million, or 10.7%, as compared to $88.7
million in depreciation and amortization for the year ended December 31, 1997
Depreciation and amortization at OCC was $90.5 million in 1998 million compared
to $81.0 million during 1997. The increase is primarily attributable to a
higher installed room base and the conversion of hotels served by SpectraVision
equipment to OCC equipment. Depreciation and amortization for Network Services
was $7.5 million in 1998, compared to $7.6 million during 1997.
General and Administrative Expenses
- -----------------------------------
General and administrative expenses (which include only those costs
incurred by the parent company, Ascent Entertainment Group, Inc.), for the year
ended December 31, 1998 were $7.7 million, as compared to $8.4 million in
general and administrative expenses for the year ended December 31, 1997. This
decrease is attributable to a reduction in expense associated with the Company's
stock appreciation rights and the non-reccurrence of charges from COMSAT and
costs associated with the Distribution, partially offset by increased
compensation costs in 1998. In addition, the year-to-date results for 1997
reflect a favorable expense settlement.
Interest and Other Income (Expense)
- -----------------------------------
Interest and other income (expense) for the year ended December 31, 1998
was $1.9 million, as compared to an expense of $382,000 for the year ended
December 31, 1997. This increase is primarily attributable to an increase in
interest income recognized on the Company's cash and cash equivalent balances.
Interest Expense
- ----------------
Interest expense, net of amounts capitalized, for the year ended December
31,1998 was $24.5 million, as compared to $20.1 million for the year ended
December 31, 1997. This increase is attributable to additional borrowings
incurred during 1998 combined with an increase in borrowing costs at Ascent,
primarily those costs related to the Company's 11.875% Senior Notes issued in
December 1997.
Income Tax Benefit
- ------------------
The Company recorded a $2.2 million income tax benefit from continuing
operations, or 6.9% of losses from continuing operations, during the year ended
December 31, 1998 as compared to an income tax benefit of $3.1 million, or 9.3%
of losses from continuing operations, during the year ended December 31, 1997.
The decline in the Company's effective tax benefit in 1998 is due to the
Company's inability to recognize tax benefits from its operating losses due to
uncertainties regarding its ability to realize a portion of the benefits
associated with future deductible temporary differences (deferred tax assets)
and net operating loss carryforwards, prior to their expiration. Prior to the
Distribution on June 27, 1997, the Company was able to recognize tax benefits
from its taxable losses as a result of a tax sharing agreement with COMSAT so
long as Ascent was a member of the consolidated tax group of COMSAT.
Minority Interest
- -----------------
Minority interest reflects the losses attributable to the minority interest
in the Company's 57% owned subsidiary, OCC.
Discontinued Operations
- -----------------------
The combined loss from discontinued operations totaled $17.8 million during
the year ended December 31, 1998 as compared to a loss of $8.2 million during
1997. The increased loss is primarily due to the operations of the Colorado
Avalanche and operating losses from Beacon partially offset by improved
operating results at the Nuggets. While the Avalanche realized increased
revenues from their regional broadcasting agreement with Fox Sports, the receipt
of NHL expansion proceeds and from regular season ticket sales and sponsorship
sales in spite of playing fewer home games in 1998 as compared to 1997, these
increases were entirely offset by a decline in playoff revenues of $4.4 million.
Specifically, the Avalanche had five fewer home playoff games as a result of
playing in only one playoff round as compared to three rounds of the playoffs in
1997. In addition, operating costs for the Avalanche increased in 1998 over
1997 due to an increase in player salaries. The operating losses of Beacon
totaled $3.9 million in 1998 as compared to income of $1.9 million during 1997.
The increased loss in 1998 is primarily attributable to a decline in
21
<PAGE>
revenues at Beacon. In 1998, Beacon had no movie releases as compared to 3
movies releases in 1997. This increase in operating losses was partially offset
by improved operating results at the Nuggets which was the result of increased
revenues during the first half of 1998 combined with a reduction in costs during
the second half of the year, primarily player cost savings from the NBA lockout.
Liquidity and Capital Resources
Cash and cash equivalents increased by $15.8 million since December 31,
1998 to $60.3 million at December 31, 1999. The primary sources of cash during
the 1999 were cash from continuing operating activities of $64.1 million,
proceeds of $15.9 million from the sale of 90% of the Company's interest in
Beacon and borrowings under the OCC Credit Facility of $17.0 million. Cash was
expended primarily for property and equipment at OCC, specifically $85.5 million
of capital expenditures were incurred at OCC to support continued hotel
installations with the OCX and OCV systems, conversions of SpectraVision systems
and fixed asset purchases.
Long-term debt totaled $339.9 million at December 31, 1999 as compared to
$305.5 million at December 31, 1998. The increase in long-term debt is
attributable to additional borrowings of $17.0 million under the OCC Credit
Facility and the accretion of interest on the Company's 11.875% Senior Secured
Discount Notes ("the Senior Notes"). The Arena Revenue Backed Notes of $136.2
million (the "Arena Notes") which were issued by the Arena Company's
beneficially owned trust are classified in the Company's consolidated balance
sheet in the net assets of discontinued operations. The Arena Notes are non-
recourse to the Arena Company but the Arena Company is obligated to the
noteholders to operate the Pepsi Center in a first-class manner, as defined.
Based on borrowings at December 31, 1999, the Company had access to $42.5
million of long-term financing under the Ascent credit facility and OCC had
access to $20 million of long-term financing under its credit facility, subject
to certain covenant restrictions, (see Note 6 of the Company's 1999 Consolidated
Financial Statements.)
The Company's cash requirements during 2000 are expected to include (i) the
continuing conversion and installation by OCC of on-demand in-room video
entertainment systems, (ii) funding the operating requirements of Ascent and its
subsidiaries (including the operations of the Sports-related businesses), (iii)
the payment of interest under the OCC Credit Facility and the Ascent Credit
Facility, if such facility is utilized and (iv) the payment of transaction costs
relating to the Liberty merger, if completed. The Company anticipates capital
expenditures in connection with the continued installation and conversion by OCC
of on-demand service will be approximately $90.0 to $110.0 million during 2000.
The Company anticipates that OCC's funding for its operating requirements and
capital expenditures for the continued conversion and installation by OCC of on-
demand services will be funded primarily through cash flows from OCC's
operations and financed under the OCC Credit Facility. On Command expects that
the available cash, cash flows from operations and funds currently available
under the OCC Credit Facility will be sufficient to finance its expected
investment in in-room video systems through at least the first half of 2000. On
Command anticipates capital expenditures in connection with the continued
installation and conversion of hotel rooms will be approximately $26 to $28
million per month through June 30, 2000. Management of On Command expects to
need additional financing in 2000 and is currently considering financing
alternatives, including obtaining additional financing and renegotiating the
covenants contained in the OCC Credit Facility. If OCC is unable to raise
additional financing, OCC would need to reduce its capital spending well below
the levels stated above during fiscal 2000, which would impact its ability for
growth. Management of the Company believes that the available cash, cash flows
from operating activities and funds available under the Ascent Credit Facility,
will be sufficient for the Company, the Sports-related businesses and its Ascent
Network Services Division to satisfy their growth and finance their working
capital requirements during 2000.
Management of the Company continues to focus its efforts on the operations
of OCC and OCC's strategies to successfully upgrade and expand OCC's technology
and service offerings and to convert hotel rooms to OCC's OCX system. On
August 1, 1999, the Company completed previously disclosed negotiations and
entered into a three-year extension through the end of 2002 of the NBC Service
Agreement, under which Ascent provides satellite service, maintenance and
support of NBC's national television network. Management of the Company does
not anticipate any significant capital expenditures will be incurred in
connection with the extension agreement. Management continues to believe that
at the end of such extension period, it is possible that NBC will engage ANS to
complete a full upgrade of the NBC distribution network to digital technology.
No assurance can be provided that a full digital upgrade will occur or that ANS
will be engaged to complete the digital upgrade on terms as favorable to the
Company as the current agreement.
The Company previously determined that no cash interest would be payable on
the Senior Notes until June 2003. Thereafter, the Company's ability to pay
interest on the Senior Notes and to satisfy its other debt obligations will
depend upon the future performance of the Company and, in particular, on the
successful implementation of OCC's strategy, including the installation of OCX
systems and the upgrade and expansion of OCC's technology and service
22
<PAGE>
offerings, On Command's ability to obtain additional financing and the
conversion of the hotel rooms acquired in the acquisition of SpectaVision,
to OCC's on-demand technology. In addition, the Company's future performance
would also be dependent on the operating results of the Company's Sports-related
assets, the proceeds from the sale of the Sports-related assets, if consummated,
and the ability to attain significant and sustained growth in the Company's cash
flow. There can be no assurance that OCC will successfully implement its
strategy or that the Company will be able to generate sufficient cash flow from
operating activities to meet its long-term debt service obligations and working
capital requirements. Based on the Company's current expectation with respect to
its existing businesses, the Company does not expect to have cash flows after
capital expenditures sufficient to repay all of the Senior Notes at maturity
and, accordingly, may have to refinance the Senior Notes at or before their
maturity. There can be no assurance that any such financing could be obtained on
terms that are acceptable to the Company, or at all. In the absence of such
financing, the Company could be forced to sell assets.
Accordingly, on December 21, 1999, the Company's Board of Directors
announced that it was continuing to seek a qualified buyer for Company's Sports-
related businesses and that Allen & Company Incorporated and Wasserstein Perella
& Co. would continue to represent the Company in the sale process. Ascent also
announced that the Company was exploring other strategic alternatives involving
the whole company in response to the termination of the Company's stock-for-
stock merger agreement with Liberty on November 29, 1999 (see Note 2 of Notes to
the Consolidated Financial Statements) and that Donaldson Lufkin & Jenrette
would continue to represent Ascent in these alternatives. As a result of this
exploration of strategic alternatives, in February 2000 the Company entered into
the Liberty Merger Agreement (see Note 2 of Notes to the Consolidated Financial
Statements).
Assuming the consummation of the Merger Agreement with Liberty, of which
there can be no assurances, (See Note 2), and as a result of the terms of the
Senior Notes, the Company will be required to offer to redeem the Senior Notes
at 101% of their accreted value within 60 to 90 days after the Change in
Control.
In addition, the consummation of the Merger Agreement with Liberty would
also result in an event of default under the terms of the Ascent Credit
Facility. The Company intends to negotiate with the lenders under the Ascent
Credit Facility regarding possible amendments upon consummation of the Merger
Agreement.
Inflation
- ---------
Inflation has not significantly impacted the Company's financial position
or operations.
Information Systems and The Year 2000
- -------------------------------------
The Company and its subsidiaries had developed formal plans to identify,
evaluate and implement changes to its computer systems as necessary to address
the Year 2000 issue. Through the date of this report, there have been no
adverse effects on the Company's business, results of operations or financial
condition as a result of Year 2000 problems with its computer systems and
operations. In addition, the Company has not encountered any Year 2000 problems
with any of its vendors or customers. Although the Company has made reasonable
efforts to identify and protect itself with respect to external Year 2000
problems, there can be no assurance that the Company will not be affected by
such problems. The Company will consider the necessity of implementing a formal
contingency plan to mitigate any adverse effects associated with the Year 2000
issue, should one arise.
ITEM 7(a). QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk. The Company's exposure to market risk for changes in
--------------------
interest rates relate primarily to the Company's investment portfolio, including
restricted investments, and long-term debt obligations. The Company does not
use derivative financial instruments in its investment portfolio. The Company
places its investments with high credit quality issuers and, by policy and debt
restrictions, limits the amount of credit exposure to any one issuer. As stated
in its policy, the Company is averse to principal loss and ensures the safety
and preservation of its invested funds by limiting default risk and market risk.
The Company mitigates default risk by investing in only the safest and
highest credit quality securities. The portfolio includes only short-term
investment securities with active secondary or resale markets to ensure
portfolio liquidity. At December 31, 1999, the weighted average interest rate
on the Company's cash and cash equivalent balance of $60.3 million was 6.0%
consisting of fixed rate short-term investments.
The Company does have cash flow exposure due to rate changes for portions
of its debt obligations. Specifically, no cash flow exposure exists on the
Company's Senior Secured Discount Notes as they represent fixed-rate
obligations. (See Note 5 to the 1999 Consolidated Financial Statements).
However, revolving loans extended under the OCC Credit Facility generally bear
an interest rate that is variable and based on the London Interbank Offering
Rate ("LIBOR") and on certain operating ratios at OCC. At December 31, 1999,
OCC had $180.0 million outstanding, on the OCC Credit Facility and the weighted
average interest rate on the OCC Credit Facility was 6.74%. Assuming no
increase or decrease in the amount outstanding a hypothetical immediate 100
basis point increase (or decrease) in interest rates would have increased (or
decreased) the Company's annual interest expense and cash outflow by $1.8
million and $1.6 million during the years ended December 31, 1999 and 1998
respectively.
The estimated fair value of Company's Senior Secured Discount Notes was
$157,248,000 and $139,305,000 at December 31, 1999 and 1998, respectively. This
Value was estimated by obtaining a yield-adjusted price as of December 31, 1999,
for each obligation from an investment banker. The fair values of the
Company's remaining long-term liabilities and other financial instruments
approximate their carrying values. The book value of the Company's Senior
Secured Discount Notes was $159,922,000 and $142,537,000 at December 31, 1999
and 1998 respectively.
23
<PAGE>
Foreign Currency Risk. The Company, through OCC, transacts business in
----------------------
various foreign currencies, primarily in Canada, Asia and in certain European
countries. The Company believes the risks of foreign exchange rate fluctuations
on its present operations are not material to the Company's overall financial
condition. However, should the Company's international operations continue to
grow, the Company will consider using foreign currency contracts, swap
arrangements, or other financial instruments designed to limit exposure to
foreign exchange rate fluctuations.
24
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of
Ascent Entertainment Group, Inc.:
We have audited the accompanying consolidated balance sheets of Ascent
Entertainment Group, Inc. and its subsidiaries (the "Company") as of December
31, 1999 and 1998, and the related consolidated statements of operations,
comprehensive loss, stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1999. Our audits also included the
financial statement schedules listed in the Index at Item 14(a). These financial
statements and financial statement schedules are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements and financial statement schedules based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Ascent
Entertainment Group, Inc. and its subsidiaries as of December 31, 1999 and 1998,
and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 1999 in conformity with accounting
principles generally accepted in the United States of America. Also, in our
opinion, such financial statement schedules, when considered in relation to the
basic consolidated financial statements taken as a whole, present fairly in all
material respects, the information set forth therein.
Deloitte & Touche LLP
Denver, Colorado
March 10, 2000
25
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
CONSOLIDATED BALANCE SHEETS
December 31, 1999 and 1998
(in thousands, except par value amounts)
<TABLE>
<CAPTION>
1999 1998
---- ----
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents.......................................................... $ 60,349 $ 44,576
Receivables, net (Note 4).......................................................... 33,492 36,414
Prepaid expenses................................................................... 1,253 2,939
Deferred income taxes (Note 7)..................................................... -- 417
Income taxes receivable (Note 7)................................................... 2,050 --
Other current assets............................................................... 289 43
Net assets of discontinued operations (Note 3)..................................... 82,216 --
--------- ---------
Total current assets.............................................................. 179,649 84,389
--------- ---------
Property and equipment, net (Note 5)............................................... 294,498 296,513
Goodwill, net...................................................................... 90,086 96,502
Other investments.................................................................. 364 1,493
Deferred income taxes (Note 7)..................................................... 9,320 3,866
Other assets, net.................................................................. 7,384 8,717
Net assets of discontinued operations (Note 3)..................................... -- 132,144
--------- ---------
Total assets.......................................................................... $ 581,301 $ 623,624
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term debt (Note 6)...................................... $ -- $ --
Accounts payable................................................................... 32,038 23,668
Deferred income.................................................................... 788 2,412
Other taxes payable................................................................ 5,476 7,480
Accrued compensation............................................................... 10,715 7,588
Other accrued liabilities (Note 7)................................................. 15,140 14,348
Current portion of capital lease obligations (Note 8).............................. 2,533 --
Income taxes payable (Note 7)...................................................... 1,680 1,821
--------- ---------
Total current liabilities......................................................... 68,370 57,317
--------- ---------
Long-term debt (Note 6)............................................................ 339,922 305,537
Obligations under capital leases and other long-term liabilities (Notes 7 and 8)... 2,082 2,298
--------- ---------
Total liabilities.............................................................. 410,374 365,152
--------- ---------
Minority interest.................................................................. 71,206 81,946
Commitments and contingencies (Notes 2, 5, 6 and 8)................................ -- --
Stockholders' equity (Note 9):
Preferred stock, par value $.01 per share, 5,000 shares authorized, none
outstanding.......................................................................
Common stock, par value $.01 per share, 60,000 shares authorized, 29,756 shares
issued and outstanding............................................................. 297 297
Additional paid-in capital......................................................... 307,873 306,358
Accumulated deficit................................................................ (208,449) (130,872)
Accumulated other comprehensive income............................................. -- 743
--------- ---------
Total stockholders' equity..................................................... 99,721 176,526
--------- ---------
Total liabilities and stockholders' equity............................................ $ 581,301 $ 623,624
========= =========
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
26
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
Years ended December 31, 1999, 1998 and 1997
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenues (Notes 8 and 11, and Note 12 for related party revenues)............ $275,379 $261,276 $242,043
-------- -------- --------
Operating expenses:
Cost of services...................................................... 187,302 178,262 175,184
Depreciation and amortization......................................... 104,283 98,194 88,737
General and administrative (Notes 2 and 3)............................ 26,161 7,651 8,404
-------- -------- --------
Total operating expenses...................................... 317,746 84,107 272,325
-------- -------- --------
Operating loss............................................................... (42,367) (22,831) (30,282)
Interest and other income (expense), net (Note 3)............................ 5,531 1,942 (382)
Interest expense, net (Notes 6 and 12)....................................... (29,265) (24,473) (20,059)
-------- -------- --------
Loss from continuing operations before taxes and minority interest........... (66,101) (45,362) (50,723)
Income tax benefit (Note 7).................................................. 2,277 2,248 3,066
-------- -------- --------
Loss from continuing operations before minority interest..................... (63,824) (43,114) (47,657)
Minority interest............................................................ 12,706 11,188 14,319
-------- -------- --------
Loss from continuing operations.............................................. (51,118) (31,926) (33,338)
Loss from discontinued operations, net of taxes (Note 3)..................... (26,243) (17,799) (8,176)
Loss from sale of discontinued operations, net of taxes...................... (216) -- --
-------- -------- --------
Net loss..................................................................... $(77,577) $(49,725) $(41,514)
======== ======== ========
Basic and diluted net loss per common share:
Loss from continuing operations............................................. $ (1.72) $ (1.07) $ (1.13)
Discontinued operations..................................................... (.89) (.60) (.27)
-------- -------- --------
Basic and diluted net loss per common share.................................. $ (2.61) $ (1.67) $ (1.40)
======== ======== ========
Weighted average number of common shares outstanding......................... 29,756 29,756 29,755
======== ======== ========
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
27
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
Years ended December 31, 1999, 1998, and 1997
(in thousands)
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Net loss.............................................. $(77,577) $(49,725) $(41,514)
-------- -------- --------
Other comprehensive income (loss):
Unrealized loss on securities....................... (1,143) (857) (80)
Income tax benefit related to items of
other comprehensive loss......................... 400 300 28
-------- -------- --------
Other comprehensive loss, net of tax................ (743) (557) (52)
-------- -------- --------
Comprehensive loss.................................... $(78,320) $(50,282) $(41,566)
======== ======== ========
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
28
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years ended December 31, 1999, 1998 and 1997
(in thousands)
<TABLE>
<CAPTION>
Accumulated
Additional Other Total
Common Paid-in Accumulated Comprehensive Stockholder's
Stock Capital Deficit Income Equity
----- ------- ------- ------ ------
<S> <C> <C> <C> <C> <C>
Balance at
January 1, 1997................ $ 297 $307,569 $ (39,633) $ 1,352 $ 269,585
Net loss...................... -- -- (41,514) -- (41,514)
Other comprehensive
loss, net................. -- -- -- (52) (52)
Other......................... -- (321) -- -- (321)
------ -------- ----------- --------- ----------
Balance at
December 31, 1997.............. 297 307,248 (81,147) 1,300 227,698
Net loss...................... -- -- (49,725) -- (49,725)
Other comprehensive loss, net. -- -- -- (557) (557)
Other......................... -- (890) -- -- (890)
------ -------- ----------- --------- ----------
Balance at
December 31, 1998.............. 297 306,358 (130,872) 743 176,526
Net loss...................... -- -- (77,577) -- (77,577)
Other comprehensive loss, net. -- -- -- (743) (743)
Other......................... -- 1,515 -- -- 1,515
------ -------- ----------- --------- ------------
Balance at December 31, 1999 $ 297 $307,873 $ (208,449) $ -- $ 99,721
====== ======== =========== ========= ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
29
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended December 31, 1999, 1998 and 1997
(in thousands)
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ----------
OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net loss.................................................................................... $(77,577) $(49,725) $ (41,514)
Adjustments to reconcile net loss to net cash provided by continuing operations:
Depreciation and amortization............................................................. 104,283 98,194 88,737
Minority interest in losses of subsidiaries............................................... (12,706) (11,188) (14,319)
Loss from discontinued operations.................................................. 26,243 17,799 8,176
Loss from sale of discontinued operations.......................................... 216 -- --
Gain on sale of investments........................................................... (1,758) -- --
Accretion of discount on Senior Secured Discount Notes.................................... 17,385 15,579 294
Provision for loss on investments......................................................... -- 856 387
(Gain)Loss on disposals of property and equipment.......................................... -- 72 (1,016)
Changes in operating assets and liabilities:
Current assets........................................................................... 2,730 4,972 6,476
Current liabilities...................................................................... (8,277) 6,988 6,694
Noncurrent assets........................................................................ 11,053 (4,509) (5,066)
Noncurrent liabilities................................................................... 2,525 (6,712) (26,608)
Other.................................................................................... -- -- (2)
-------- -------- ---------
Net cash provided by operating activities of continuing operations.......................... 64,117 72,326 22,239
Net cash provided by discontinued operations............................................... 4,553 2,186 779
-------- -------- ---------
Net cash provided by operating activities................................................... 68,670 74,512 23,018
-------- -------- ---------
INVESTING ACTIVITIES:
Proceeds from sale of discontinued operations............................................. 15,893 -- --
Proceeds from notes and other long-term receivable........................................ -- 2,703 2,951
Proceeds from sale of investments......................................................... 1,758 396 1,920
Purchase of property and equipment........................................................ (86,080) (86,633) (93,914)
Proceeds from sale of property and equipment.............................................. -- -- 4,459
Distributions from partnerships and joint ventures........................................ -- -- 738
-------- -------- ---------
Net cash used in investing activities....................................................... (68,429) (83,534) (83,846)
-------- -------- ---------
FINANCING ACTIVITIES:
Proceeds from borrowings under credit facilities.......................................... 17,000 30,000 133,000
Payments on capital lease obligations..................................................... (1,468) -- --
Net proceeds from issuance of Senior Secured Discount
Notes................................................................................... -- -- 122,231
Proceeds from borrowings under former credit facilities................................... -- -- 59,000
Repayment of borrowings under former credit facilities.................................... -- -- (252,000)
Proceeds from issuance of subsidiary's equity instruments................................. -- -- 15,000
Common stock issued....................................................................... -- -- 17
-------- -------- ---------
Net cash provided by financing activities................................................... 15,532 30,000 77,248
-------- -------- ---------
Net increase in cash and cash equivalents................................................... 15,773 20,978 16,420
Cash and cash equivalents, beginning of year................................................ 44,576 23,598 7,178
-------- -------- ---------
Cash and cash equivalents, end of year...................................................... $ 60,349 $ 44,576 $ 23,598
======== ======== =========
Supplemental cash flow information:
Interest paid............................................................................... $ 9,843 $ 9,856 $ 16,712
======== ======== =========
Income taxes paid........................................................................... $ 2,721 $ 581 $ 2,447
======== ======== =========
Non-cash investing and financing activities:
Reversal of accrual made in OCC purchase price allocation................................. $ -- $ -- $ 3,000
======== ======== =========
Capitalized lease obligations incurred at OCC............................................. $ 5,760 $ -- $ --
======== ======== =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
30
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
Note 1 - Organization and Summary of Significant Accounting Policies:
The accounting and reporting practices of Ascent Entertainment Group, Inc.
(the "Company" or "Ascent") and its majority owned subsidiaries conform to
generally accepted accounting principles and prevailing industry practices. The
following is a summary of the Company's significant accounting and reporting
policies.
Basis of Presentation and Principles of Consolidation. The accompanying
consolidated financial statements include the accounts of Ascent and its
majority-owned subsidiary, On Command Corporation ("OCC"). Ascent Network
Services, Inc. ("ANS"), formerly a wholly owned subsidiary of Ascent, was merged
into Ascent and became an operating division of Ascent on May 30, 1997. The
Company's discontinued operations are comprised of the results of the Company's
former entertainment segment, which included the Denver Nuggets, the Colorado
Avalanche and Ascent Arena Company (the "Arena Company"), the owner and manager
of the Pepsi Center, (collectively the "Sports-related businesses"), which the
Company has announced its intentions to sell (see Note 3). In addition,
discontinued operations include the results of the Company's former subsidiary,
Beacon Communications, LLC ("Beacon"), in which a 90% interest was sold on
January 20, 1999. The accompanying 1998 and 1997 financial information has been
restated to conform to the discontinued operations presentation of the former
entertainment segment and Beacon. All significant intercompany transactions have
been eliminated.
OCC provides video distribution and pay-per-view video entertainment
services to the lodging industry and has operating subsidiaries or branches in
the United States, Canada, Mexico, Hong Kong, Singapore, Thailand, the United
Kingdom, Spain and Australia. Effective October 8, 1996, OCC acquired the
assets, properties and certain liabilities of SpectraVision, Inc. (the
"SpectraVision Acquisition"), a leading provider of in-room video entertainment
services to the lodging industry. Prior to the acquisition of SpectraVision, On
Command Video Corporation ("OCV"), formerly an 84% owned subsidiary of Ascent,
was merged with a subsidiary of OCC and became a wholly owned subsidiary of OCC
pursuant to an Agreement and Plan of Merger. ANS provides video distribution
services to the National Broadcasting Company ("NBC") television network and
other private networks.
Ascent executed an initial public offering (the "Ascent IPO") of its common
stock on December 18, 1995. Prior to the Offering, Ascent was a wholly owned
subsidiary of COMSAT Corporation ("COMSAT"). Until June 27, 1997 COMSAT
continued to own a majority (80.67%) of Ascent's common stock and control
Ascent. On June 27, 1997, COMSAT consummated the distribution of its 80.67%
ownership interest in Ascent to the COMSAT shareholders on a pro-rata basis in a
transaction that was tax-free for federal income tax purposes (the
"Distribution"). Ascent and COMSAT entered into a Distribution Agreement and a
Tax Disaffiliation Agreement, both dated as of June 3, 1997 (see Notes 7 and 12)
in connection with the Distribution. As a result of the Distribution, Ascent
became an independent publicly held corporation. All costs incurred by Ascent
during 1997 which were directly associated with the Distribution have been
charged to expense.
Cash and Cash Equivalents. Ascent considers highly liquid investments with a
maturity of three months or less at the time of purchase to be cash equivalents.
Property and Equipment. Property and equipment is stated at cost, less
accumulated depreciation and amortization. Installed video systems consist of
video system equipment and related costs of installation at hotel locations.
Distribution systems to networks consist of equipment at network affiliates and
the related costs of installation. Capitalized leases are recorded at the
present value of future lease payments. Construction in progress consists of
purchased and manufactured parts of partially constructed video systems at OCC.
Depreciation and amortization are calculated using the straight-line method
over the estimated service life of each asset. The service lives for property
and equipment are: installed video systems, 3 to 7 years; distribution systems,
10 to 15 years; furniture, fixtures and equipment, 3 to 10 years; and buildings
and leasehold improvements, 3 to 20 years. Video systems and equipment acquired
in the acquisition of SpectraVision (see Note 5) were depreciated over 3 years.
Goodwill. The consolidated balance sheets include goodwill related to the
acquisitions of On Command Video Corporation and SpectraVision by OCC. Goodwill
is amortized over 10 to 25 years. Accumulated goodwill amortization was
$27,657,000 and $21,241,000 at December 31, 1999 and 1998, respectively.
31
<PAGE>
Evaluation of Long-Lived Assets. The Company evaluates the potential impairment
of long-lived assets and long-lived assets to be disposed of in accordance with
Statement of Financial Accounting Standards (SFAS) No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of."
As of December 31, 1999 and 1998, management believes that there was not any
impairment of the Company's long-lived assets or any other such identifiable
intangibles.
Other Investments. Other investments at December 31, 1999 consist of OCC's
investment in Maginet Corporation (MagiNet), a private company (see Notes 8 and
12) and the Company's 10% ownership interest in Beacon Communications, LLC (see
Note 3). Other investments are accounted for at cost, net of appropriate
reserves for declines in value based on management's evaluation. At December
31, 1998, other investments consisted of the Company's investment in MagiNet and
certain other marketable equity securities. The Company's investment in
marketable equity securities was sold in 1999 for a net gain of $1.8 million
which is included in other income in the accompanying financial statements.
Debt Issuance Costs. Costs associated with the issuance of the Company's Senior
Secured Discount notes and current credit facilities are capitalized and
amortized over the term of the related borrowing or facility. Amortization of
debt issuance costs is charged to operations and is included in interest
expense.
Revenue and Cost Recognition. OCC installs pay-per-view video systems in
hotels, generally under five to seven-year agreements, whereby revenues are
recognized at the time of viewing. Revenue from the sale of video systems is
recognized when the equipment is shipped, except for systems requiring
installation by OCC, which is recognized upon completion of the installation and
acceptance by the customer. Revenues from royalties are recognized when earned.
Revenue from other services is recorded as services are provided.
General and administrative expense. General and administrative expenses include
only those costs incurred by the parent company, Ascent Entertainment Group,
Inc. Similar costs incurred by the Company's division and majority-owned
subsidiaries are included in the cost of services in the accompanying
consolidated statements of operations. For the years ended December 31, 1999,
1998, and 1997, the Company's subsidiaries incurred related costs of
$26,130,000, $24,448,000 and $22,672,000 respectively.
Research and Development Costs. Research and development costs are charged to
operations as incurred. These costs are included in cost of services in the
consolidated statements of operations. The amounts charged were $8,479,000,
$7,537,000 and $6,912,000 for the years ended December 31, 1999, 1998 and 1997,
respectively.
Income Taxes. A current or deferred income tax liability or asset is recognized
for temporary differences which exist due to the recognition of certain income
and expense items for financial reporting purposes in periods different than for
tax reporting purposes. The provision for income taxes is based on the amount of
current and deferred income taxes at the date of the financial statement as
measured by the provisions of current tax laws.
Net Loss Per Share. The Company computes and presents its net loss per share in
accordance with SFAS No. 128 "Earnings Per Share". Net loss per share is
calculated using the income available to common stockholders divided by the
weighted average number of common shares outstanding in the respective years.
Basic and dilutive shares were 29,756,000, 29,756,000 and 29,755,000, for the
years ended December 31, 1999, 1998, and 1997, respectively. The Company has not
presented diluted loss per share, which would include the impact of potential
dilutive common shares in the respective periods, because their inclusion would
have been antidilutive in all periods presented.
Use of Estimates, Significant Risks and Uncertainties. The preparation of
financial statements in conformity with generally accepted accounting principles
requires management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosures of contingent assets and
liabilities at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Such management estimates
include the allowance for doubtful accounts receivable, the estimated useful
lives of video systems and property and equipment, intangible assets, including
goodwill, and the amounts of certain accrued liabilities.
The Company participates in the highly competitive multimedia distribution
and network services businesses and believes that changes in any of the
following areas could have a material adverse effect on the Company's future
financial position or results of operations: declines in hotel occupancy as a
result of general business, economic, seasonal or other factors; loss of one or
more of its major hotel chain customers; and risks of technological
obsolescence.
32
<PAGE>
Recently Issued Accounting Standards. In June 1998, the Financial Accounting
Standards Board issued SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities," which defines derivatives, requires that all derivatives be
carried at fair value, and provides for hedging accounting when certain
conditions are met. SFAS No. 133, which has been amended by SFAS 137, is
effective for the Company's fiscal year ending December 31, 2000. The Company
does not believe adoption of SFAS No. 133 will have a material impact on the
Company's financial position, results of operations or cash flows.
In 1998, OCC early adopted Statement of Position ("SOP") 98-1, "Accounting
for the Costs of Computer Software Developed or Obtained for Internal Use,"
which provides guidance on accounting for the costs of computer software
developed or obtained for internal use. During the years ended December 31,
1999 and 1998, OCC capitalized $5,700,000 and $4,100,000 of costs ,
respectively, in accordance with this SOP. The SOP had no effect on the other
Ascent businesses.
Reclassifications. Certain reclassifications have been made to the 1998 and
1997 financial statements to conform with the current year's presentation, most
notably the classification of the Company's Sports-related businesses (see Note
3) as discontinued operations.
Note 2 - Proposed Business Combinations
Merger Agreement - On February 22, 2000, the Company entered into an
Agreement and Plan of Merger (the "Merger Agreement") with Liberty Media
Corporation ("Liberty") and Liberty AEG Acquisition, Inc. ("Merger Sub"), an
indirect wholly-owned subsidiary of Liberty. Pursuant to the Merger Agreement,
Merger Sub commenced a tender offer (the "Offer) offering Ascent stockholders
$15.25 in cash for each share of Ascent common stock. Liberty commenced the
offer on February 29, 2000 and under its terms and subject to its conditions,
the Offer will expire on March 27, 2000, unless extended pursuant to the Merger
Agreement. The Offer is conditioned on the tender of at least a majority of the
Ascent shares as well as other customary conditions. Under the Merger Agreement
and subject to the terms thereof, following the Offer, Merger Sub will be merged
with and into Ascent (the "Merger") and all shares not purchased in the Offer
(other than shares held by Liberty, Merger Sub or Ascent, or shares held by
dissenting stockholders) will be converted into the right to receive $15.25 per
share in cash.
Terminated Merger Agreement - Previously, on October 20, 1999, the Company
entered into an Agreement and Plan of Merger with AT&T Corp., and Liberty.
Pursuant to that Merger Agreement, upon consummation of the merger, each share
of Ascent common stock would be converted into .4626 shares of Liberty Media
Group Class A Common Stock. That Merger Agreement was conditioned upon, among
other things, the sale of the Company's Sports-related businesses pursuant to
the Sports Sale Agreement (as defined in Note 3 below). On November 29, 1999,
Liberty terminated the Agreement and Plan of Merger due to Company's amendment
of the Sports Sale Agreement and inability to renegotiate the terms of the
merger agreement with Liberty. (See Note 3 of Notes to Consolidated Financial
Statements). Costs incurred in conjunction with the terminated Merger Agreement
of approximately $1.3 million, primarily investment banker fees and attorney
fees, have been expensed and are included in General and Administrative Expenses
in the accompanying statement of operations for the year ended December 31,
1999.
Note 3 -- Discontinued Operations:
Beacon - On January 20, 1999, the Company sold 90% of its interest in
Beacon to an investor group controlled by Beacon's management and venture
capital investors (the "Buyers") pursuant to a Purchase and Sale Agreement (the
"Purchase Agreement"). The purchase price for the 90% interest was $19.0
million in cash, net of certain adjustments. At closing, approximately $15.9
million in cash was received. After the sale of the 90% interest, the Company
has no future obligations to fund any of Beacon's liabilities or film
development or production commitments. The 10% interest in Beacon retained by
the Company is subject to purchase and sale options between the Company and the
Buyers at a price proportionate to the purchase price which the Company intends
to exercise in the near future. During the first quarter of 1999, the Company
reported a gain of $3.2 million on the sale of 90% of its interest in Beacon.
During the second and third quarters of 1999, the Company attempted to
collect the remaining balance due under the Purchase Agreement of $900,000. In
turn, Beacon filed a claim against the Company seeking an adjustment to the
purchase price. Pursuant to the Purchase Agreement, any disputes or
disagreements among the parties were to be settled pursuant to binding
arbitration in the State of California. The arbitration commenced in November
1999 and on February 21, 2000, the arbitrator issued his opinion awarding Beacon
approximately $3.5 million. Accordingly, the Company recorded a $3.5 million
expense during the fourth quarter of 1999, resulting in the Company's
recognition of
33
<PAGE>
a $0.2 million loss (net of the gain recognized during the first quarter of
1999) from the sale of its 90% interest in Beacon.
Sports-related businesses - On July 27, 1999, the Company entered into a
definitive Purchase and Sale agreement (the "Sports Sale Agreement") to sell its
Sports-related businesses to a group of entities controlled by Donald L. Sturm
("The Sturm Group") for $321.0 million in cash (of which Liberty Denver Arena
LLC, an unrelated third party, was to receive up to $20.5 million), subject to
further adjustment for cash balances and receipts received by the Company prior
to closing, which related to the Nuggets and Avalanche 1999/2000 playing
seasons. In conjunction with the sale, the approximate $140.0 million in non-
recourse Arena Note obligations were to remain the obligation of an entity to be
acquired. On December 1, 1999, the Company terminated the Sports Sale Agreement
with The Sturm Group. As a result of the termination of the Sports Sale
Agreement with The Sturm Group, Ascent is considering commencing litigation
against The Sturm Group, and Mr. Sturm personally, as a result of their actions
in connection with the termination of the Sports Sale Agreement, and has
announced that it will continue to pursue the sale of these businesses or other
steps with respect to these businesses. There can be no assurances that any
actions taken by Ascent would result in transactions that would have value to
Ascent's stockholders that would be equal to the terminated sale of the Sports-
related businesses to The Sturm Group, or that any transactions would occur in
the near future.
Transaction costs, totaling $12.0 million, which include investment banker
and attorney fees and expenses, fees payable to William and Nancy Laurie in
conjunction with the termination of the previous agreement between Ascent and
the Lauries, which was entered into on April 25, 1999 and other costs associated
with the Company's attempts to sell its Sports-related businesses have been
expensed and are included in general and administrative expenses in the
accompanying statement of operations for the year ended December 31, 1999. Fees
totaling approximately $1.7 million were paid to Allen & Company, an investment
banking firm in which a Director of the Company is employed.
The Company began accounting for Beacon as a discontinued operation as of
December 31, 1998 and for the Sports-related businesses as a discontinued
operation as of March 31, 1999, pursuant to guidance contained in Emerging
Issues Task Force Issue No. 95-18, "Accounting and Reporting for Discontinued
Business Segment when the Measurement Date occurs after the Balance Sheet Date
but before the Issuance of the Financial Statements." Accordingly, the
consolidated financial statements have been restated for all prior periods
presented to reflect the results of operations and net assets of Beacon and the
Sports-related businesses as discontinued operations. The loss from
discontinued operations of Beacon and the Sports-related businesses, net of
taxes, for the years ended December 31, 1999, 1998 and 1997 is composed of the
following:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 and 1998
----------------------------------------------
1999 1998
----------- ---------------------------------
Sports Sports
Related Related 1998
Businesses Businesses Beacon Total
----------- ----------- --------- ---------
(in thousands)
<S> <C> <C> <C> <C>
Revenues.................................. $125,125 $ 82,353 $ 28,195 $110,548
======== ======== ======== ========
Loss from discontinued operations
before taxes............................. (28,134) $(17,155) $ (4,798) $(21,953)
Income tax benefit........................ 1,891 3,264 890 4,154
-------- -------- -------- --------
Loss from discontinued operations......... $(26,243) $(13,891) $ (3,908) $(17,799)
======== ======== ======== ========
Year Ended December 31, 1997
--------------------------------
Sports
Related 1997
Businesses Beacon Total
--------------------------------
(in thousands)
Revenues.................................. $ 93,532 $ 92,939 $186,471
======== ======== ========
Income/loss from discontinued operations
before taxes............................. (14,746) $ (1,820) $(12,926)
Income tax benefit........................ 4,627 123 4,750
-------- -------- --------
Loss from discontinued operations......... $(10,119) $ 1,943 $ (8,176)
======== ======== ========
</TABLE>
34
<PAGE>
The net assets of the discontinued operations included in the consolidated
balance sheets as of December 31, 1999 and December 31, 1998, consist of the
following:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
12/31/99 12/31/98
--------- --------------------------------------
Sports Sports
Related Related
Businesses Businesses Beacon Total
---------- ---------- ------------- ---------
(in thousands)
Current assets...................................... $ 61,997 $ 38,194 $ 3,062 $ 41,256
Property and equipment, net......................... 194,823 92,249 -- 92,249
Restricted cash held in trust (1)................... 30,915 112,47 -- 112,478
Film inventory...................................... -- -- 8,457 48,457
Franchise rights, net............................... 87,745 92,559 -- 92,559
Other assets........................................ 21,685 24,453 10,651 35,104
Current liabilities, including current portion of
Arena Notes (1), (2)........................... (154,680) (70,222) (5,763) (75,985)
Non-recourse Arena Notes and other obligations (1).. (126,685) (136,170) (35,079) (171,249)
Other long term liabilities (3)..................... (33,584) (33,725) (9,000) (42,725)
--------- --------- --------- ---------
Net assets of discontinued operations............... $ 82,216 $ 119,816 $ 12,328 $ 132,144
========= ========= ========= =========
</TABLE>
A summary of significant matters relating to the Sports-related businesses
follows:
(1) Non-Recourse Arena Notes - On July 29, 1998, the Denver Arena Trust (the
"Trust" - a wholly owned subsidiary of the Arena Company) issued and sold
$139,835,000 principal amount of 6.94% Arena Revenue Backed Notes (the
"Arena Notes") due November 2019. The proceeds from the sale of the Arena
Notes were used by the Trust to purchase from the Company revenue contracts
related to the naming rights, suite licensing and certain corporate
sponsorships of the Company, and the underlying rights related to such
contracts (collectively, the "Revenue Rights"). The Arena Notes are non-
recourse to the Company, but the Company is obligated to the noteholders to
operate the Pepsi Center in a first-class manner. Should a payment default
occur absent a default in the Company's obligations to operate the Pepsi
Center, the noteholders will have no recourse to the assets of the Company.
Conversely, the Revenue Rights are not available to the creditors of the
Company. To secure the Company's obligations to operate the new arena, the
Company has pledged to the Trust substantially all of the Company's assets,
including the Pepsi Center itself. These assets, if necessary, could be
pledged to a subsequent lender that agreed to an appropriate intercreditor
agreement with the Trust.
The Arena Notes provide for semi-annual payments of interest on May 15 and
November 15 of each year and annual payments of principal on November 15 of
each year commencing November 15, 1999. The amount of principal payable
will be equal to the lesser of the targeted principal distribution amount
or the cash available for such payment after application to all prior
payment priorities. The targeted principal distribution amount has been
calculated so that based on the projected revenues contractually obligated
to be paid under the Revenue Rights, the Arena Notes will be paid in full
by November 2014.
Pursuant to the Arena Notes, the Trust established restricted cash
investment accounts which, among other things, receive the proceeds from
the Revenue Rights, disburse funds for the development and construction of
the Pepsi Center, disburse required principal and interest payments and
establish debt service principal and interest reserve balances on behalf of
the noteholders.
Total minimum payments on the Non-Recourse Arena Notes for the years
subsequent to December 31, 1999 are as follows (in thousands):
2000 .................................... $ 9,485
2001 .................................... 5,075
2002 .................................... 5,600
2003 .................................... 6,155
2004 .................................... 6,855
Thereafter .............................. 103,000
--------
Total ................................... $136,170
========
35
<PAGE>
(2) Concession Agreements - On April 3, 1998, the Arena Company entered into
two separate ten year management agreements with Ogden Entertainment, Inc.
("Ogden") and Levy Premium Food Service, Inc. ("Levy") pursuant to which
Ogden agreed to manage all the concession operations at the new arena,
except for suites, the club seats, the restaurants and floor seats
(collectively, the premium areas), which are being managed by Levy.
Pursuant to the management agreements, the Arena Company is contingently
liable for the unamortized portion of such manager contributions, plus
other reasonable damages, if the Company should terminate the management
agreements. As of December 31, 1999, the Company has received payments of
$4,500,000 and $2,700,000 from Ogden and Levy, respectively and has
included this balance in deferred revenue, net of revenues recognized, in
the net assets of discontinued operations presented above.
(3) Sponsorships Agreements - The Arena Company entered into long-term
sponsorship agreements with the Pepsi-Cola Company, the Coors Brewing
Company, the Denver Post, US West, Inc. and other corporations which grant
exclusive sponsorship and promotional rights for certain categories of
advertising at the Pepsi Center. In addition, the Avalanche and the
Nuggets have entered into various long-term sponsorship agreements with
these and other sponsors. At December 31, 1999, the Arena Company, the
Avalanche and the Nuggets have received payments under these long-term
sponsorship agreements of $17,500,000 and have included this balance in
deferred revenue, net of revenues recognized, in the net assets of
discontinued operations presented above.
(4) Employment and Consulting Agreements - At December 31, 1999, the Avalanche
and the Nuggets have consulting agreements with certain of their executive
officers, coaches, and players. Virtually all of the contracts with
players provide for guaranteed payments, which must be paid to the player
even if he is injured or released. Other contracts provide for payments
contingent upon the fulfillment of certain terms and conditions. Amounts
required to be paid under such contracts for years subsequent to December
31, 1999, including deferred compensation to be earned in the future, but
excluding option years under such agreements, are as follows:
Nuggets Avalanche
------- ---------
(in thousands)
2000....................................... $ 44,785 $ 35,770
2001....................................... 40,409 21,882
2002....................................... 28,786 8,097
2003....................................... 28,819 2,125
2004....................................... 20,215 1,000
Thereafter................................. 20,612 1,250
-------- -------
Total...................................... $183,626 $70,124
======== =======
Note 4 -- Receivables:
Receivables consist of the following at December 31, 1999 and 1998:
1999 1998
-------- -------
(in thousands)
Trade receivables.................................... $ 36,557 $33,834
Current portion of notes and long-term receivables... -- 4,081
Less allowance for doubtful accounts............... 3,065 1,501
------- -------
Receivables, net................................... $ 33,492 $36,414
======= =======
Ascent generates a substantial portion of its revenues from OCC and from
hotel guests' usage of OCC pay-per-view video systems located in various hotels
primarily throughout the United States, Canada, Mexico, Europe, Australia, and
the Far East. OCC performs periodic credit evaluations of its installed hotel
locations and generally requires no collateral. While the Company does maintain
allowances for potential credit losses, actual bad debts have not been
significant. The Company invests its cash in high-credit quality instruments
and/or institutions. These instruments are short-term in nature and, therefore,
bear minimal interest rate or credit risk.
36
<PAGE>
Note 5 -- Property and Equipment:
Property and equipment consists of the following at December 31, 1999 and 1998:
<TABLE>
<CAPTION>
<S> <C> <C>
1999 1998
-------------- -------------
(in thousands)
Buildings and leasehold improvements........................................... $ 1,687 $ 1,462
Installed video systems........................................................ 546,618 482,360
Distribution systems to networks............................................... 93,641 100,363
Leased vehicles under capital leases........................................... 2,675 --
Furniture, fixtures and equipment.............................................. 28,323 22,342
-------- --------
Total...................................................................... 672,944 606,527
Less accumulated depreciation and amortization................................. 429,144 357,823
-------- --------
Net property and equipment in service.......................................... 243,800 248,704
Construction-in-progress....................................................... 50,698 47,809
-------- --------
Property and equipment, net................................................. $294,498 $296,513
======== ========
</TABLE>
Vehicles acquired under capital leases had a cost basis of $2,675,000 at
December 31, 1999, less accumulated amortization of 453,900.
Note 6 -- Long-term debt:
Long-term debt consists of the following at December 31, 1999 and 1998:
<TABLE>
<CAPTION>
1999 1998
---------------- --------------
(in thousands)
<S> <C> <C>
OCC Credit Facility, variable rate; due 2000............................................... $180,000 $163,000
Senior Secured Discount Notes, 11.875%, due 2004 net of unamortized discount of $65,078
and $82,463............................................................................... 159,922 142,537
-------- --------
Total long-term debt $339,922 $305,537
======== ========
</TABLE>
OCC Credit Facility. OCC currently has a $200.0 million credit facility (the
"OCC Credit Facility"). The OCC Credit Facility matures in November 2002 and,
subject to certain conditions, can be renewed for two additional years. At
December 31, 1999, there was $20.0 million of available borrowings under the OCC
Credit Facility, subject to certain covenant restrictions.
Revolving loans extended under the OCC Credit Facility generally will bear
interest at LIBOR plus a spread that may range from 0.375% to 0.75% depending on
certain operating ratios of OCC. At December 31, 1999, the weighted average
interest rate on the OCC Credit Facility was 6.74%. In addition, a fee ranging
from .1875% to .25% per annum is charged on the unused portion of the OCC Credit
Facility, depending on certain OCC operating ratios. The OCC Credit Facility
contains customary covenants, including, among other things, compliance by OCC
with certain financial covenants.
Senior Secured Discount Notes. On December 22, 1997, Ascent completed the sale
of $225,000,000 principal amount at maturity of Senior Secured Discount Notes
due 2004 (the "Senior Notes"). The Senior Notes, which mature on December 15,
2004, were sold at a discount for an aggregate price of $126,663,750,
representing a yield to maturity of 11.875% computed on a semi-annual bond
equivalent basis from the date of issuance. Cash interest will not be payable
on the Senior Notes prior to December 15, 2002. Commencing December 15, 2002,
cash interest on the senior notes will accrue and thereafter will be payable on
June 15 and December 15 of each year (commencing June 15, 2003) at a rate of
11.875% per annum. The Senior Notes are redeemable, at the option of Ascent, in
whole or in part, on or after December 15, 2001, at specified redemption prices
plus accrued and unpaid interest. In addition, at any time prior to December
15, 2000, Ascent may redeem up to 35% of the originally issued principal amount
at maturity of the Senior Notes with the net cash proceeds of one or more sales
of its capital stock at a redemption price equal to 111.875% of the accreted
value thereof to the redemption date. The Senior Notes are senior secured
indebtedness of Ascent, secured by a pledge of all of the capital stock of OCC,
now owned or hereafter acquired by Ascent. The Senior Notes rank senior to all
existing and future subordinated indebtedness of Ascent and pari passu in right
of payment to all unsubordinated indebtedness of Ascent. The Senior Notes
contain covenants, which restrict, including, among other things, the Company's
ability to pay dividends, incur additional indebtedness and the making of loans,
investments and other defined payments. The net proceeds from the offering and
sale of the Senior Notes of approximately $121.0 million, after deducting debt
issuance costs, were used to repay outstanding indebtedness under Ascent's
former credit facility.
37
<PAGE>
Assuming the consummation of the Merger Agreement with Liberty, of which
there can be no assurances, (see Note 2), and as a result of the terms of the
Senior Notes, the Company will be required to offer to redeem the Senior Notes
at 101% of their accreted value within 60 to 90 days after the change in
control.
Ascent Credit Facility. Concurrently with the sale of the Senior Notes, the
Company and a bank entered into a second amended and restated loan and security
agreement (the "Ascent Credit Facility") to decrease the maximum amount of
borrowings under the Company's previous credit facility from $140.0 million to
$50.0 million and restate other terms and conditions of the previous agreement.
Available borrowings under the Ascent Credit Facility, as amended, were reduced
to $42.5 million as a result of the sale of Beacon and will be permanently
reduced commencing in March 2000 and on a quarterly basis thereafter in varying
amounts through December 2002 when the facility will terminate. The Ascent
Credit facility requires the Company to repay and permanently reduce the
available borrowings thereunder with 100% of the net cash proceeds from the
issuance and sale of additional shares of the Company's capital stock and with
the net cash proceeds from sales of assets of the Company or its subsidiaries
(other than OCC), unless there exists no event of default and such proceeds are
reinvested in similar assets within 120 days. In addition, the Ascent Credit
Facility includes restrictions, on among other things, the Company's ability to
pay dividends and to make loans and investments. At December 31, 1999, there
was $42.5 million of available borrowings under the Ascent Credit Facility. In
conjunction with sale of its membership interests in Beacon (see Note 2), the
Company and the Bank amended the Ascent Credit facility to amend certain terms
and conditions of the agreement relating to Beacon.
The Ascent Credit Facility is secured by first priority pledges of, and
liens on, the capital stock and/or partnership or membership interests in all of
the Company's subsidiaries other than OCC (collectively, the "Credit Facility
Guarantors"), and a negative pledge on all of the assets of the Credit Facility
Guarantors, with limited exceptions. The obligations of the Company under the
Ascent Credit Facility are guaranteed by the Credit Facility Guarantors.
At the Company's option, interest rates under the Ascent Credit Facility
will be a fluctuating rate of interest equal to either (i) an adjusted London
Interbank Offering Rate ("LIBOR") plus an applicable borrowing margin or (ii)
the greater of the Federal Funds Effective Rate plus .5% plus an applicable
borrowing margin, or the bank's prime rate plus an applicable borrowing margin.
The applicable borrowing margin will be 2.75% (for LIBOR borrowing) and 1.50%
(for Base Rate borrowings, as defined) until December 31, 2000. Thereafter, the
applicable borrowing margin will range from 2.00% to 2.75% for LIBOR borrowings
or 0.75% to 1.50% for Base Rate borrowings, based upon certain financial ratios
of the Company. In addition, a fee of .50% per annum is charged on the unused
portion of the Ascent Credit Facility. The Ascent Credit Facility also contains
customary events of default requiring Ascent to maintain certain financial
covenants and events of default specifically related to Ascent's sports teams.
Total minimum payments on long-term debt for the years subsequent to
December 31, 1999, assuming the Senior Notes are not redeemed prior to maturity
and the OCC Credit Facility is not extended, are as follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
2000 ..................................................................................... --
2001 ..................................................................................... --
2002 ..................................................................................... $180,000
2003 ..................................................................................... --
2004 ..................................................................................... 225,000
Thereafter ............................................................................... --
--------
Total .................................................................................... $405,000
========
</TABLE>
Note 7 -- Income Taxes
Through June 27, 1997, the date of the Distribution, Ascent was a member of
COMSAT's consolidated tax group for federal income tax purposes. Accordingly,
Ascent prepared its tax provision based on Ascent's inclusion in COMSAT's
consolidated tax return pursuant to the tax sharing agreement entered into in
connection with the Offering (see Note 1). Such tax provision, up to the
Distribution, was calculated as if prepared on a separate return basis.
Pursuant to the tax sharing agreement and the tax disaffiliation agreement,
taxes payable or receivable with respect to periods that Ascent
38
<PAGE>
was included in COMSAT's consolidated tax group are settled with COMSAT
annually. At December 31, 1999 and 1998, Ascent's federal income tax receivable
from COMSAT was $1,196,000. The balance due from COMSAT at December 31, 1999 is
included in other long-term assets in the accompanying financial statements. As
a result of the Distribution (see Notes 1 and 12), the Company ceased being a
member of COMSAT's consolidated tax group. Additionally, in conjunction with the
SpectraVision Acquisition, Ascent's ownership in OCC decreased to approximately
57% and OCC began filing a separate return commencing on October 9, 1996.
The components of income tax expense (benefit) attributable to continuing
operations for the years ended December 31, 1999, 1998 and 1997 are as follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------------- ----------------- ----------------
Federal: (in thousands)
<S> <C> <C> <C>
Current................................................ $ -- $ 851 $(1,387)
Deferred............................................... (2,477) (2,815) (2,675)
State and local.......................................... 162 (175) 408
Foreign.................................................. 38 (109) 588
------- ------- -------
Total.................................................. $(2,277) $(2,248) $(3,066)
======= ======= =======
</TABLE>
The difference between the Company's income tax benefit computed at the
statutory federal tax rate and Ascent's effective tax rate for the years ended
December 31, 1999, 1998 and 1997 is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------------- ---------------- ---------------
(in thousands)
<S> <C> <C> <C>
Federal income tax benefit computed at the statutory rate........ $(23,135) $(15,877) $(17,753)
State income tax benefit, net of federal income tax benefit...... (689) (1,194) (1,110)
Goodwill amortization............................................ 2,404 2,542 2,464
Foreign taxes.................................................... 38 (109) 588
Changes in valuation allowance................................... 26,839 15,815 10,620
Valuation allowance attributable to losses from
-------- -------- --------
discontinued operations....................................... (9,276) -- --
Other............................................................ 1,542 (3,425) 1,125
-------- -------- --------
Income tax benefit from continuing operations................... $ (2,277) $ (2,248) $ (4,066)
======== ======== ========
</TABLE>
The net current and net non-current components of deferred tax assets
and liabilities as shown on the balance sheets at December 31, 1999 and 1998
are:
<TABLE>
<CAPTION>
1999 1998
----------------- ---------------
(in thousands)
<S> <C> <C>
Current deferred tax asset................................................ $ -- $ 417
Non-current deferred tax asset (liability)................................ 9,320 3,866
------ ------
Net deferred tax asset................................................. $9,320 $4,283
====== ======
</TABLE>
39
<PAGE>
The deferred tax assets and liabilities at December 31, 1999 and 1998 are:
<TABLE>
<CAPTION>
1999 1998
----------------- ----------------
(in thousands)
Assets:
<S> <C> <C>
Net operating loss carryforwards......................................... $ 67,073 $ 38,426
Alternative minimum tax credit carryforwards............................. 9,320 11,123
Other accrued liabilities................................................ 19,071 16,361
Other.................................................................... 3,970 2,850
Valuation allowance...................................................... (82,039) (55,200)
-------- --------
Total deferred tax assets................................................ 17,395 13,560
-------- --------
Liabilities:
Property and equipment, net............................................ (6,642) (6,945)
Other.................................................................. (1,433) (2,332)
-------- --------
Total deferred tax liabilities......................................... (8,075) (9,277)
-------- --------
Net deferred asset........................................................ $ 9,320 $ 4,283
======== ========
</TABLE>
The Company has federal net operating loss carryforwards of approximately
$18.7 million which expire beginning in 2019. In addition, the Company has
state net operating loss carryforwards of approximately $105.0 million which
expire beginning in 2006. The Company also has alternative minimum tax credit
carryforwards of approximately $9.2 million available to offset future regular
federal tax liabilities.
OCC has federal net operating loss carryforwards of approximately $151.0
million which expire beginning in 2010. However, because of the acquisition of
SpectraVision by OCC, the pre-ownership change net operating loss carryforwards
(approximately $43.0 million) are subject under Section 382 of the Internal
Revenue Code to an annual limitation estimated to be approximately $6.0 million.
In addition, OCC has state net operating loss carryforwards of approximately
$111.0 million which expire beginning in 2000 and may be subject to limitation
in the event of certain defined changes in stock ownership. OCC's alternative
minimum tax credit carryforwards of approximately $1,595,000 and $251,000 are
available to offset future regular federal and state tax liabilities,
respectively.
Note 8 -- Commitments and Contingencies
Facility and Equipment Leases. Ascent continues to lease other facilities used
by ANS from COMSAT under a three year lease. Total rental payments to COMSAT
were approximately $46,000, $46,000 and $62,000 for the years ended December 31,
1999, 1998 and 1997, respectively. The Company's operating lease for its
corporate headquarters expires in May 2000 and ANS' lease for its principal
facility expires in February 2005.
OCC leases its principal facilities under a non-cancelable operating lease
which expires in June 2004. Rental payments under this lease were $1,690,000,
$1,553,000 and $1,303,000 for years ended December 31, 1999, 1998 and 1997,
respectively. In 1997, the owner of this facility was a minority stockholder of
OCC. In addition to lease payments, OCC is responsible for taxes, insurance and
maintenance of the leased premises. OCC also leases certain other office space
under non-cancelable operating leases expiring from 2000-2004 from unrelated
parties.
The Company and its subsidiaries also lease equipment under non-cancelable
operating leases which extend through 2004. Rental expense under all non-
cancelable leases was approximately $2,726,000, $5,714,000 and $6,358,000 for
the years ended December 31, 1999, 1998 and 1997, respectively.
The future minimum rental commitments under the Company's facility and
equipment leases at December 31, 1999 are as follows (in thousands):
<TABLE>
<S> <C>
2000.................................................................................... $ 2,568
2001.................................................................................... 2,287
2002.................................................................................... 2,259
2003.................................................................................... 2,214
2004.................................................................................... 1,318
Thereafter.............................................................................. 33
-------
Total................................................................................ $10,679
=======
</TABLE>
40
<PAGE>
Capital Leases - During 1999, OCC amended certain of its operating lease
agreements, primarily for vehicles and equipment, that qualify such amended
leases as capitalized leases. Certain of these leases contain restrictions
including maintenance of certain operating ratios. Following is a summary of
future minimum lease payments for OCC's capital lease obligations:
<TABLE>
<CAPTION>
Year's ending December 31 (in thousands):
<S> <C>
2000 $ 2,819
2001 1,820
-------
Total future minimum lease payments 4,639
Less amounts representing interest (348)
-------
Present value of future minimum lease payments 4,291
Less current portion 2,533
-------
Long-term portion of capital lease obligations $ 1,758
=======
</TABLE>
Purchase Commitments - The Company has non-cancelable commitments for the
purchase of video systems and office equipment totaling $9,500,000 as of
December 31, 1999.
Employment and Consulting Agreements. Ascent has employment and consulting
agreements with certain officers. These agreements provide severance pay
benefits if there is a change in control of the Company. At December 31, 1999,
the maximum contingent liability under those agreements providing severance pay
benefits was approximately $5,300,000. Other contracts provide for payments
upon the fulfillment of their contractual terms and conditions, which generally
relate only to normal performance of employment duties.
Litigation. On September 11, 1998, OCC reached an agreement with LodgeNet
Entertainment Corporation ("LodgeNet") to settle all pending litigation between
the companies. As a result, the two providers of in-room entertainment and
information services to the lodging industry have dismissed all pending
litigation between the parties in United States Federal District Courts in
California and South Dakota, with no admission of liability by either party.
The terms of the confidential settlement include a cross-license of each
company's patented technologies at issue to the other party and a covenant not
to engage in patent litigation against the other party for a period of five
years. Each company is responsible for its own legal costs and expenses, and in
connection with the multiple cross-licenses, OCC expects to receive royalty
payments, net of legal fees and expenses, in an aggregate amount of
approximately $10,800,000. OCC received the first payment of approximately
$2,900,000 (net of expenses) in September 1998 and received the second payment
of approximately $3,950,000 (net of expenses) in July 1999. OCC expects to
receive the final payment of approximately $3,900,000 (net of expenses) in July
2000 although no assurance can be given in this regard. OCC has been and will be
recognizing the royalty revenue when payments are received.
In September 1998, OCV filed suit against MagiNet(see Note 12), alleging a
breach by MagiNet of a license agreement between OCV and MagiNet, and
terminating the license agreement. OCV has also demanded the payment of license
fees from MagiNet which OCC believes were due and payable under the License
Agreement and have not been paid by MagiNet. MagiNet has counter-claimed against
OCV, alleging that OCV breached the license agreement, and alleging various
torts by OCV in its relationship with MagiNet. While the outcome of MagiNet's
counterclaim cannot be predicted with certainty, the Company intends to defend
itself vigorously and expects that any liability, to the extent not provided by
insurance or otherwise, will not have a material adverse effect on the financial
condition of the Company.
In June 1999, the Company and certain of its present and former directors
were named as defendants in lawsuits filed by shareholders (the "Shareholder
lawsuits") in June 1999 in the Delaware Court of Chancery. These proposed class
actions asserted that the Company's agreement to sell the Company's Sports-
related businesses to entities controlled by William and Nancy Laurie
constituted a sale of substantially all assets of the Company, thereby requiring
a shareholder vote, and resulted from breaches of fiduciary duties by the
director defendants (see Note 3 of Notes to Condensed Consolidated Financial
Statements). On June 23, 1999, the Company, the director defendants and the
Laurie-controlled purchasing entities that were also named as defendants,
entered into an agreement with the shareholder plaintiffs to settle the
lawsuits. Under the settlement agreement, the Company, the director defendants,
and the Laurie-controlled entities agreed, among other things, to amend the
terms of the proposed sale to the Laurie entities to permit the Company to
41
<PAGE>
conduct a new process in which the Company would solicit additional offers for
the purchase of the Sports-related businesses. The Company and the director
defendants also agreed, among other things, to engage an additional investment
banker to assist in the new auction process, and to add Peter W. May to the
Company's Board of Directors. On July 27, 1999, as a result of the new auction
process, the Company entered into a definitive agreement to sell the Sports-
related businesses to The Sturm Group. The settlement of the Shareholder
lawsuits is subject to the approval of the Delaware Court of Chancery after a
hearing that is anticipated to occur after the closing of the sale of the
Sports-related businesses during the second quarter of 2000. If approved by
the Court, the settlement would result in, among other things, the dismissal
with prejudice of the claims asserted in the Shareholder lawsuits and the
payment by the Company of plaintiff attorney fees and expenses in an amount to
be approved by the Court. For the year ended December 31, 1999, the Company
incurred and expensed legal fees and related expenses of approximately $820,000
in connection with the Shareholder lawsuits.
The Company is a party to certain additional legal proceedings in the
ordinary course of its business. However, the Company does not believe that any
such legal proceedings will have a material adverse effect on the Company's
financial position or results of operations. In connection with its ownership of
the Nuggets and the Avalanche, the Company is a defendant along with other NBA
and NHL owners in various lawsuits incidental to the operations of the two
professional sports leagues. The Company will generally be liable, jointly and
severally, with all other owners of the NBA or NHL, as the case may be, for the
costs of defending such lawsuits and any liabilities of the NBA or NHL which
might result from such lawsuits. The Company does not believe that any such
lawsuits, individually or in the aggregate, will have a material adverse effect
on the Company's financial position or results of operations. The Nuggets, along
with three other teams, have also agreed to indemnify the NBA, its member teams
and other related parties against certain American Basketball Association
("ABA") related obligations and litigation, including costs to defend such
actions. Management of Ascent believes that the ultimate disposition and the
costs of defending these or any other incidental NBA or NHL legal matters or of
reimbursing related costs, if any, will not have a material adverse effect on
the financial statements of the Company.
Note 9 -- Stockholders' Equity
Stockholders' Rights Plan. On June 27, 1997, the Company adopted a Rights Plan
(the "Plan") and, in accordance with the Plan, declared a dividend of one
preferred share purchase right for each outstanding share of common stock,
payable July 10, 1997 to stockholders of record on that date. The Plan is
intended to enable all Ascent stockholders to realize the long term value of
their investment in the Company. The Plan will not prevent a takeover, but
should encourage anyone seeking to acquire the Company to negotiate with the
Board of Directors prior to attempting a takeover. In connection with the Merger
Agreement with Liberty (See Note 2), the Plan was amended to provide that the
Merger Agreement was exempt from the operation of the Plan.
The rights become exercisable after a person or group acquires 15% or more
of the Company's common stock or announces an offer, the consummation of which
would result in the ownership of 15% or more of the Company's common stock. Once
exercisable, each right will entitle the holder other than the person or group
that has acquired 15% of the Company's shares to purchase one one-hundredth of a
share of Series A Junior Participating Preferred Stock, par value $.01, at a
price of $40.00, subject to adjustment. If a person or group acquires 15% or
more of Ascent's outstanding common stock, each right will entitle its holder to
purchase a number of shares of the Company's common stock having a market value
of two times the exercise price of the right. In the event a merger or other
business combination transaction is effected after a person or group has
acquired 15% or more of the Company's common stock, each right will allow its
holder to purchase a number of the resulting company's common shares having a
market value of two times the exercise price of the right. Following the
acquisition by a person or group of 15% or more of the Company's common stock
but prior to the acquisition of a 50% ownership interest, the Company may
exchange the rights at an exchange ratio of one share of common stock per right.
The Company may also redeem the rights at $.01 per right at any time prior to a
15% acquisition. The rights, which do not have voting power and are not entitled
to dividends until such time as they become exercisable, expire on July 2007.
Stock Option Plans. Ascent adopted the 1995 Key Employee Stock Plan (the
"Employee Plan") and the 1995 Non-Employee Directors Stock Plan (the "Director
Option Plan") contemporaneously with the Offering. The Employee Plan provides
for the issuance of stock options, restricted stock awards, stock appreciation
rights and other stock based awards and the Director Option Plan provided for
the issuance of stock options and common stock. Options granted under the
Employee or Director Option Plans generally expire 10 years from the date of
grant. For each of the plans, options are generally granted at prices not less
than the fair market value of the Company's common stock at the date of grant.
In order for the Distribution to be tax-free (see Notes 1 and 12), the
Distribution Agreement required Ascent to cancel substantially all of the
outstanding options, and not to have any plans or agreements to issue stock.
Therefore, in connection with the Distribution, the Director Option Plan was
terminated as it only provided for the issuance of common stock and stock
options. In addition, substantially all of the stock options previously granted
under the Employee Plan (1,283,750 options) were canceled and, in exchange,
option holders were issued stock appreciation rights ("SARs"), payable only in
cash, with an exercise price equal to $9.53 per share, based on the average
trading price of the Ascent
42
<PAGE>
common stock for five days commencing with the date of the Distribution. In June
1997, the Company also adopted the 1997 Non-employee Directors Stock
Appreciation Rights Plan (the "Directors SAR Plan") approved by the stockholders
in April 1998, pursuant to which each non-employee director was granted a SAR
with respect to 100,000 shares of Ascent common stock with a three year vesting
period. The exercise price for the non-employee directors SARs granted in 1997
is $8.27 per share, the market price on the date of the Distribution.
Under the Employee Plan, 120,000 SARs (exercise price of $9.53) were
granted to certain officers and key employees of the Company in June 1997 and
22,000 SARs (exercise price of $9.63) were granted to other employees in October
1997. During the year ended December 31, 1999, an additional 100,000 SARs
(exercise price of $13.82) were granted to a director of the Company under the
Directors SAR Plan (see Note 8) and, in January 2000, 240,000 options (exercise
price of $11.91) were granted to certain executives of the Company under the
Employee Plan.
The Company's SARs permit the optionee to surrender the SAR, in whole or in
part, on any date that the fair market value of the Company's common stock
exceeds the exercise price for the SAR and receive payment in cash. Payment
would be equal to the excess of the fair market value of the shares reflected by
the surrendered SAR over the exercise price for such shares. The SARs vest over
either a three year or five year period from the date of grant of the SAR or
option for which they were exchanged.. The change in value of SARs is reflected
in the Company's statement of operations based upon the market value of the
common stock. During the years ended December 31, 1999, 1998 and 1997 the
Company recorded an expense (benefit) of $3,512,000, ($424,000), and $424,000
relating to the SARs, respectively.
The weighted average remaining contractual life of the outstanding options
under the Director Option Plan at December 31, 1999 is approximately 7 years.
The following is a summary of changes in shares under the Company's Stock Plans:
<TABLE>
<CAPTION>
Options Outstanding
-------------------
Options Weighted
Available for Number of Average
Grant Shares Exercise Price
----- --------- --------------
<S> <C> <C> <C>
Balances, January 1, 1997................................... 266,750 1,343,250 $ 15.93
Conversion of options to SARs............................. -- (1,283,750) 15.92
Canceled/Expired.......................................... -- (14,500) 15.00
Options granted........................................... (8,000) 8,000 10.50
------- ---------- ------
Balances, December 31, 1997................................. 258,750 53,000 15.31
Exercised................................................. -- -- --
Canceled/Expired.......................................... -- (32,000) 16.31
Options granted........................................... -- -- --
------- ---------- ------
Balances, December 31, 1998................................. 258,750 21,000 13.79
Conversion of options to SARs............................. -- (5,000) 15.00
Canceled/Expired.......................................... -- -- --
Options granted........................................... -- -- --
------- ---------- ------
Balances, December 31, 1999................................. 258,750 16,000 $13.41
======= ========== ======
</TABLE>
In 1996, the Company adopted the disclosure-only provisions of SFAS No.
123, "Accounting for Stock-Based Compensation." Accordingly, no compensation
cost was recognized for the options granted under the Ascent Stock Option Plans
in 1996 and 1997. Had compensation cost for the Director Option Plan in 1998
and 1997 and, both the Director and Employee Plans in 1996 been determined based
on the fair value at the grant date for awards made in those years consistent
with the provisions of SFAS No. 123, the Company's net loss and loss per common
share would have been increased to the pro forma amounts as indicated below (in
thousands, except per share information):
<TABLE>
<CAPTION>
1999 1998 1997
---------------- ----------------- ----------------
<S> <C> <C> <C>
Net loss as reported............................................ $(77,577) $(49,725) $(41,514)
Net loss pro forma.............................................. $(77,606) $(49,740) $(41,571)
Basic and diluted loss per share as reported.................... $( 2.61) $( 1.67) $( 1.40)
Basic and diluted loss per share pro forma...................... $( 2.61) $( 1.67) $( 1.40)
</TABLE>
Under SFAS 123, the fair value of stock-based awards to employees is
calculated through the use of option pricing models, even though such models
were developed to estimate the fair value of freely tradable, fully transferable
options without vesting restrictions, which significantly differ from the
Company's stock option awards. These models also require subjective assumptions,
including future stock price volatility and expected time to exercise, which
greatly
43
<PAGE>
affect the calculated values and in which the Company has no significant history
or established trends. The Company's calculations for 1998 and 1997 were made
using the Black-Scholes option pricing model with the following weighted average
assumptions for 1998 and 1997, respectively: expected life, 12-24 months
following the last vesting date of the award; stock volatility, 55.8% and 47.2%
risk free interest rates, 4.6% and 5.3%; and no dividends during expected term.
The Company's calculations are based on an option valuation approach and
forfeitures are recognized as they occur. For 1999, the Company's calculations
utilized a value of $15.25 for each option, which reflects the cash value of a
share of the Company's common stock pursuant to the Merger Agreement with
Liberty (see Note 2).
OCC Stock Option Plans. OCC has also adopted a stock incentive plan (the "OCC
Plan"), expiring in 2006, under which employees of OCC may be granted stock
options, restricted stock awards, stock appreciation rights and other stock
based awards. Under the OCC Plan options generally are granted at fair market
value on the date of grant. At December 31, 1999, the OCC Plan has 2,772,531
shares reserved for issuance and options to purchase 2,285,079 shares of OCC
stock were outstanding.
In addition, OCC has also adopted a stock option plan for its independent
directors (the "OCC Directors Plan"). The OCC Directors Plan authorizes the
granting of an annual award of 400 shares of OCC's common stock and a one-time
grant of a non-qualified option to purchase 50,000 shares of OCC's common stock
(a "Director Option") to each Independent Director on an annual basis. In 1999,
200,000 options were granted. In 1998, 12,000 options were granted. No options
were granted in 1997.
During the year ended December 31, 1999, OCC recognized $1.1 million as
stock-based compensation expense due to the cashless exercise feature of such
options. No such expense was recorded in prior periods as the exercise price of
such options exceeded the fair market value of the Company's common stock.
OCC has also adopted the disclosure only provisions of SFAS 123. The
Company's share of OCC's pro forma compensation cost for 1999, 1998 and 1997
would be approximately $1,011,000, $1,652,000 and $2,326,000 or an additional
loss of $.04, $.06, and $.08 per share to the respective proforma amounts
above.
On Command Warrants. In connection with the SpectraVision Acquisition, OCC also
issued warrants representing the right to purchase a total of 7,500,000 shares
of OCC common stock (20% of the outstanding common stock of OCC, after exercise
of the warrants). The warrants have a term of 7 years and an exercise price of
$15.27 per share. Series A Warrants to purchase on a cashless basis up to
1,425,000 shares of OCC common stock were issued to former OCV shareholders, of
which Ascent received warrants to purchase 1,123,823 shares; Series B warrants
to purchase for cash an aggregate of 2,625,000 shares of OCC common stock were
issued to the SpectraVision bankruptcy estate for distribution to creditors; and
Series C warrants were issued to OCC's investment advisors to purchase for cash
an aggregate of 3,450,000 shares of OCC common stock in consideration for
certain banking and advisory services provided in connection with the
transactions.
COMSAT Stock Incentive Plans. COMSAT has stock incentive plans which provide
for the issuance of stock options, restricted stock awards, stock appreciation
rights and restricted stock units. Qualifying employees of the Company have been
participants of these plans. The amount of expense charged to the Company for
participation in these plans in 1999, 1998 and 1997 was $34,000, $437,000, and
$688,000, respectively.
Note 10 -- Employee Benefit Plans
OCC, ANS and Ascent Corporate each participate in various 401(k) plans for
qualifying employees. A portion of employee contributions is matched by the
respective entity. Matching contributions for the years ended December 31, 1999,
1998 and 1997 were $1,121,000, $906,000, and $831,000, respectively.
Note 11 -- Business Segment Information
The Company implemented SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information", during the fourth quarter of 1998. In
accordance with SFAS No. 131, the Company initially classified its businesses
into 3 reporting segments: multimedia distribution, network services and
entertainment. The multimedia distribution segment includes the video
distribution and on-demand video entertainment services provided by OCC to the
lodging industry. The network services segment includes the results of ANS and
the video distribution services it provides to the NBC television network and
other private networks. The entertainment segment included three operating
businesses, the Denver Nuggets and the Colorado Avalanche franchises in the NBA
and NHL, respectively,
44
<PAGE>
and the Arena Company, the owner and manager of the new arena. As discussed in
Note 2, the entertainment segment's results are included in discontinued
operations.
Information as to the operations of the Company is set forth below based on
the nature of the products and services offered. The Company evaluates
performance based on several factors, of which the primary financial measure is
business segment operating income (loss) before depreciation and amortization,
corporate expenses and interest expense ("EBITDA"). The Company's income taxes
are not evaluated at the segment level and, therefore, are not included herein.
The accounting policies of the business segments are the same as those described
in the Summary of Significant Accounting Policies (see Note 1).
<TABLE>
<CAPTION>
Years ended December 31,
------------------------------
1999 1998 1997
---------- ---------- ---------
Revenue (from external customers): (in thousands)
<S> <C> <C> <C>
Multimedia Distribution (1).......................................... $252,948 $238,820 $222,103
Network Services..................................................... 22,431 22,456 19,940
-------- -------- --------
Total................................................................ $275,379 $261,276 $242,043
======== ======== ========
Operating income (loss):
Multimedia Distribution (1).......................................... $(20,947) $(18,493) $(25,446)
Network Services..................................................... 4,893 3,462 3,701
Corporate............................................................ (26,313) (7,800) (8,537)
-------- -------- --------
Total................................................................ $(42,367) $(22,831) $(30,282)
======== ======== ========
Earnings (loss) before interest, taxes, depreciation and
amortization (EBITDA):
Multimedia Distribution.............................................. $ 75,912 $ 72,045 $ 55,579
Network Services..................................................... 12,165 10,970 11,280
Corporate............................................................ (26,161) (7,652) (8,404)
-------- -------- --------
Total EBITDA......................................................... $ 61,916 $ 75,363 $ 58,455
-------- -------- --------
Less reconciling item -depreciation and amortization...................... 104,283 98,194 88,737
-------- -------- --------
Total operating income (loss)............................................. $(42,367) $(22,831) $(30,282)
======== ======== ========
Interest income:
Multimedia Distribution.............................................. $ 520 $ 489 $ 153
Network Services..................................................... 133 386 671
Corporate............................................................ 2,985 1,067 346
-------- -------- --------
Total................................................................ $ 3,638 $ 1,942 $ 1,170
======== ======== ========
Interest expense, net:
Multimedia Distribution.............................................. $ 10,888 $ 9,834 $ 7,612
Corporate............................................................ 18,377 14,442 12,447
-------- -------- --------
Total................................................................ $ 29,265 $ 24,473 $ 20,059
======== ======== ========
Capital expenditures:
Multimedia Distribution.............................................. $ 85,478 $ 83,208 $ 91,796
Network Services..................................................... 570 2,071 1,859
Corporate............................................................ 32 1,354 259
-------- -------- --------
Total................................................................ $ 86,080 $ 86,633 $ 93,914
======== ======== ========
Depreciation and leasehold amortization:
Multimedia Distribution.............................................. $ 87,345 $ 81,808 $ 72,430
Network Services..................................................... 7,272 7,508 7,579
Corporate............................................................ 152 151 133
-------- -------- --------
Total................................................................ $ 94,769 $ 89,467 $ 80,142
======== ======== ========
Amortization of intangible assets -
Multimedia Distribution (1).......................................... $ 9,514 $ 8,727 $ 8,595
======== ======== ========
</TABLE>
45
<PAGE>
As of December 31,
-------------------
1999 1998
-------- --------
Identifiable assets:
Multimedia Distribution......................... $419,706 $421,797
Network Services................................ 10,021 19,506
Corporate....................................... 69,358 50,177
Net Assets of Discontinued Operations........... 82,216 132,144
-------- --------
Total....................................... $581,301 $623,624
======== ========
(1) The Multimedia Distribution segment's operating results reflect the
allocation of intangible asset amortization incurred by Ascent relating to
the acquisition of OCV by Ascent (see Note 1).
Significant customers. OCC has one customer, Marriott Corporation, which
accounted for 21%, 17%, and 14%, of consolidated revenues in 1999, 1998, and
1997, respectively. In 1999, Hilton and its affiliates (See Note 12) accounted
for 17% of consolidated revenues. No other customers accounted for more than
10% of consolidated revenues during 1999, 1998 and 1997.
Geographic Operating Information. The following represents total revenues for
the years ended December 31, 1999, 1998 and 1997 and long-lived assets
(excluding goodwill) as of December 31, 1999 and 1998 by geographic territory
(in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
--------------------------------- ---------------------------- ----------
Total Long Lived Total Long Lived Total
Revenues (1) Assets Revenues(1) Assets Revenues(1)
<S> <C> <C> <C> <C> <C>
United States $250,335 $275,614 $237,510 $414,243 $217,026
Canada 13,034 21,021 12,690 17,984 13,251
All other foreign 12,010 14,931 11,076 10,506 11,766
-------- -------- -------- -------- --------
Total $275,379 $311,566 $261,276 $442,733 $242,043
======== ======== ======== ======== ========
</TABLE>
(1)- Net revenues are attributed to countries based on invoicing location of
customer.
Note 12 -- Related Party Transactions and Agreements with COMSAT
In connection with the Distribution, Ascent and COMSAT executed the
Distribution Agreement, dated June 3, 1997. The Distribution Agreement provided,
among other things, that COMSAT would distribute all of its holdings of Ascent
common stock to COMSAT shareholders on a pro-rata basis. COMSAT consummated the
Distribution on June 27, 1997 (see Note 1). In addition, while COMSAT has
received a ruling from the IRS that the Distribution will not be taxable to
COMSAT or its shareholders, such a ruling is based on the representations made
by COMSAT in the IRS ruling documents. Accordingly, in order to maintain the
tax-free status of the Distribution, Ascent is subject to numerous restrictions
under the Distribution Agreement, most of which have expired. The most
significant restriction still in place is that Ascent shall not take any action,
nor fail or omit to take any action, that would cause the Distribution to be
taxable or cause any representation made in the ruling documents to be untrue in
a manner which would have an adverse effect on the tax-free status of the
Distribution.
Pursuant to the Distribution Agreement, Ascent will indemnify COMSAT
against any tax related losses incurred by COMSAT to the extent such losses are
caused by any breach by Ascent of its representations, warranties or covenants
made in the Distribution Agreement. In turn, COMSAT will indemnify Ascent
against any tax related losses incurred by Ascent to the extent such losses are
caused by any COMSAT action causing the Distribution to be taxable. To the
extent that tax related losses are attributable to subsequent tax legislation or
regulation, such losses will be borne equally by COMSAT and Ascent.
Prior to the Distribution, Ascent was charged by COMSAT for certain general
and administrative services. In 1996, charges for these services from COMSAT
were determined pursuant to an Intercompany Services Agreement ("Services
Agreement"). The Services Agreement, which was amended in December 1996 to
reflect a reduced level of services to be provided effective January 1, 1997,
was terminated on June 27, 1997 in connection with the Distribution. Total
charges incurred under the Services Agreement were approximately $173,000 for
the year ended December 31, 1997.
46
<PAGE>
During the year ended December 31, 1997, Ascent paid COMSAT $245,000 in
interest relating to intercompany obligations between the two entities. No
interest was paid during the years ended December 31, 1999 and 1998 to COMSAT.
In conjunction with the Acquisition of SpectraVision, Ascent and OCC
entered into a Corporate Agreement (the "OCC Corporate Agreement"), pursuant to
which, among other things, OCC has agreed not to incur any indebtedness without
Ascent's prior consent, other than indebtedness under OCC's Credit Facility (see
Note 6), and indebtedness incurred in the ordinary course of operations which
together shall not exceed $200.0 million through June 30, 2000; provided,
however, that such indebtedness may only be incurred in compliance with the
financial covenants contained in OCC's credit facility, with any amendments to
such covenants subject to the written consent of Ascent.
OCC earned revenues of approximately $47,895,000, $22,955,000 and
$22,000,000 for the years ended December 31, 1999, 1998, and 1997,
respectively, from Hilton and its affiliates. Accounts receivable from Hilton
and its affiliates at December 31, 1999 and 1998 were approximately $1,600,000
and $1,400,000, respectively. Hilton is a minority stockholder of OCC.
OCC earned revenues of $83,000 and $901,000 for the years ended December
31, 1998 and 1997 respectively, from MagiNet Corporation, which is a related
party by virtue of OCC's investment in its preferred stock (see Note 3). No
revenues were recognized from sales to MagiNet in 1999. Accounts receivable
from MagiNet at December 31, 1999 and 1998 were insignificant.
Note 13 - Financial Instruments and Off-Balance Sheet Risks:
Fair Value of Financial Instruments. The fair value of cash and cash
equivalents, receivables, other current assets, accounts payable and other
accrued liabilities approximate their carrying value due to the short-term
nature of these financial instruments. The fair value of certain long-term
investments (the Company's investment in MagiNet and Beacon Communications, LLC)
approximates their carrying value.
The estimated fair value of Company's Senior Secured Discount Notes was
$157,248,000 and $139,305,000 at December 31, 1999 and 1998, respectively. This
value was estimated by obtaining a yield-adjusted price as of December 31, 1999,
for each obligation from an investment banker. The fair Value of the OCC credit
facility at December 31, 1999 and 1998 was approximately $187,000,000 and
$160,000,000 respectfully, based on the current rate offered to the Company for
debt of the same remaining maturities. The fair values of the Company's
remaining long-term liabilities and other financial instruments approximate
their carrying values.
Note 14 -- Quarterly Results of Operations (Unaudited):
The following is a summary of unaudited quarterly results of operations for
the years ended December 31, 1999 and 1998:
<TABLE>
<CAPTION>
Dec. 31 Sept. 30 June 30 March 31
-------- -------- ------- --------
(In thousands, except per share data)
1998(1)
<S> <C> <C> <C> <C>
Revenues................................................................... $ 66,009 $ 68,611 $ 65,925 $ 60,731
Operating expenses......................................................... 46,869 46,008 48,899 44,137
Depreciation and amortization.............................................. 25,225 24,750 24,273 23,946
Operating loss from continuing operations.................................. (8,013) (5,226) (9,751) (8,936)
Loss from discontinued operations. (1,241) (4,346) (8,264) (3,948)
Net loss................................................................... (9,254) (9,572) (18,015) (12,884)
Basic and diluted net loss per common share................................ (.31) (.32) (.61) (.43)
1999
Revenues................................................................... $ 67,636 $ 73,147 $ 68,268 $ 66,328
Operating expenses......................................................... 62,359 51,163 51,781 48,160
Depreciation and amortization.............................................. 25,035 27,220 26,778 25,250
Operating loss from continuing operations.................................. (21,752) (9,436) (10,076) (9,854)
Loss from discontinued operations.......................................... (12,669) (4,557) 225 (9,242)
Loss from sale of discontinued operations.................................. (3,453) -- -- 3,237
Net loss................................................................... (37,874) (13,993) (9,851) (15,859)
Basic and diluted net loss per common share................................ (1.28) (.47) (.33) (.53)
</TABLE>
(1) Quarterly results for 1999 and 1998 have been restated to reflect the
results of operations of the Company's Sports-related businesses as discontinued
operations (see Note 3).
47
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
None.
48
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Executive Officers of the Registrant
<TABLE>
<CAPTION>
Positions And Offices Principal Occupations and
Name Age With Ascent Employment During Past 5 Years
- ---- --- -------------------------- ---------------------------------
<S> <C> <C> <C>
Arthur M. Aaron 42 Executive Vice President, Mr. Aaron has been Executive Vice
Business Affairs President, Business Affairs of the
Company since January 2000, prior to
which he was Vice President, Business
and Legal Affairs and Secretary of
the Company since April 1995. Prior
thereto, he was a General Attorney at
COMSAT Corporation since July 1993.
Mr. Aaron has also served as Acting
General Counsel of On Command
Corporation since April 1998.
David A. Holden 40 Executive Vice President, Mr. Holden has been Executive Vice
Finance and Chief President, Finance and Chief Financial
Financial Officer Officer of the Company since January
2000, prior to which he was Vice
President, Finance and Controller of
the Company since May 1996. Prior
thereto, he was employed by Deloitte
& Touche LLP for more than five years.
David Ehrlich 34 Vice President, Mr. Ehrlich has been Vice President,
General Counsel and Secretary General Counsel and Secretary of the
Company since January 2000, prior to
which he was Assistant General
Counsel of the Company since June
1996. Prior thereto, he was an
associate at the Denver law firm,
Sherman & Howard, L.L.C. since
February 1995.
Donald Elliman 55 President, Ascent Sports Mr. Elliman has been President of
Holdings, Inc. Ascent Sports Holdings, Inc. since
January 2000. Prior thereto he was
Executive Vice President of Time, Inc. from
1995 through 1999 and President of Sports
Illustrated from 1995 through 1997.
Allan Goodson 42 Executive Vice President Mr. Goodson has been Executive Vice
and Chief Operating President and Chief Operating Officer of
Officer of On Command OCC since January 2000. Prior thereto,
Corporation Mr. Goodson served as a founding
partner and Chief Operating Officer
of STC Cable Corp. from April 1998 to
June 1999. Prior thereto that he
held the position of Executive Vice
President and Chief Operating Officer
for TCI Great Lakes, Inc. from August
1992 to November 1995.
</TABLE>
49
<PAGE>
Directors of the Registrant
Charles M. Neinas, 67, has been President of Neinas Sports Services, Inc. since
July 1997. Mr. Neinas became Chairman in June 1999 and from August 1999 through
December 1999, Mr. Neinas served as Acting President and Chief Executive Officer
of the Company. Prior thereto, Mr. Neinas was Executive Director of the College
Football Association from 1980 through June 1997. Mr. Neinas served as a member
of the Board of Directors of the National Association of Collegiate Directors of
Athletics from 1990 to 1993.
Paul Gould, 54, has been Managing Director and Executive Vice President of Allen
& Company, Incorporated, an investment banking firm, for over 10 years. Mr.
Gould has been with Allen & Company for over 25 years and is a director of
Liberty Media Corporation and Sunburst Hospitality Corporation.
Charles M. Lillis, 57, is Chairman and Chief Executive Officer of MediaOne
Group. Prior thereto, Mr. Lillis was President and Chief Executive Officer of
MediaOne Group from April 1995 to May 1997, and prior to that time was President
of US WEST Diversified Group from 1991 to 1994 and was Executive Vice President
and Chief Planning Officer of US WEST, Inc. from 1987 to 1991. Mr. Lillis
joined US WEST in 1985 as Vice President of Strategic Marketing. Mr. Lillis is
a member of the board of directors of SuperValu, Inc.
Peter May, 57, is currently President and Chief Operating Officer of Triarc
Companies, Inc. Mr. May was President and Chief Operating Officer of Triangle
Industries, Inc. from 1983 to December 1988. Mr. May is a Trustee of the
University of Chicago and a member of the Advisory Council on the Graduate
School of Business of the University of Chicago.
OTHER INFORMATION CONCERNING DIRECTORS
Committees
As of March 2000, the Board has two standing committees, described below.
The Audit Committee consists of Messrs. Lillis (Chairman) and May. The
Audit Committee makes recommendations to the Board concerning the selection of
independent public accountants; reviews with the independent accountants the
scope of their audit; reviews the financial statements with the independent
accountants; reviews with the independent accountants and the Company's
management the Company's accounting and audit practices and procedures, its
internal controls and its compliance with laws and regulations; and reviews the
Company's policies regarding community and governmental relations, conflicts of
interest, business conduct, ethics and other social, political and public
matters, and the administration of such policies. In addition, the Audit
Committee considers and makes recommendations to the Board with respect to the
financial affairs of the Company, including matters relating to capital
structure and requirements, financial performance, dividend policy, capital and
expense budgets and significant capital commitments, and such other matters as
may be referred to it by the Board, the Chairman of the Board or the Chief
Executive Officer. The Audit Committee met two times in 1999.
The Compensation Committee consists of Messrs. Gould (Chairman) and Neinas.
The Compensation Committee approves long-term compensation for senior
executives; considers and makes recommendations to the Board with respect to:
programs for human resources development and management organization and
succession; salary and bonus for senior executives; and compensation matters and
policies and employee benefit and incentive plans; and exercises authority
granted to it to administer such plans. In addition, the Compensation Committee
recommends to the Board qualified candidates for election as directors and as
Chairman of the Board, and considers, acts upon or makes recommendations to the
Board with respect to such other matters as may be referred to it by the Board,
the Chairman of the Board or the Chief Executive Officer. The Compensation
Committee will consider candidates for election as directors recommended by
stockholders, if the recommendations are submitted in writing to the Secretary
of the Company. The Compensation Committee met two times during 1999.
Directors Compensation
The Company does not pay its current directors any cash compensation.
Directors who were not employees of the Company or its subsidiaries have been
granted stock appreciation rights ("SARs") with respect to 100,000 shares of
Ascent Common Stock pursuant to the 1997 Non-Employee Directors Stock
Appreciation Rights Plan. These SARs will vest 25% on the first anniversary of
grant, and 25% and 50%, respectively, on the second and third anniversaries.
50
<PAGE>
Prior to May 1997, the Company granted Common Stock and options to its non-
employee directors pursuant to the 1995 Non-Employee Directors Stock Plan.
Pursuant to this plan, Mr. Neinas was granted options to purchase 12,000 shares
of Ascent Common Stock at exercise prices ranging from $10.50 to $17.625, and
Mr. Lillis was granted options to purchase 4,000 shares of Ascent Common Stock
at an exercise price of $10.50. The 1995 Non-employee Directors Stock Plan was
canceled on May 13, 1997.
Compensation Committee Interlocks and Insider Participation
Mr. Paul Gould, a director of the Company, is a Managing Director and
Executive Vice President of Allen & Company Incorporated, an investment banking
firm that has performed financial advisory services for the Company since 1995,
including (i) serving as the managing underwriter for the Company's initial
public offering in 1995; (ii) advising the Company with respect to the
acquisition of SpectraVision in 1996; and (iii) serving as financial advisor to
the Company in connection with the Company's disposition of its sports and arena
related assets.
Mr. Charles Neinas, a director of the Company and former Chairman of the
Compensation Committee, served as Acting Chief Executive Officer and President
of the Company from June 1999 through December 1999. Mr. Neinas did not serve
on the compensation committee during this period.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company's directors and
officers and persons who own more than 10% of the common stock of the Company to
file initial reports of ownership and reports of changes in ownership of common
stock and other equity securities of the Company with the SEC and Nasdaq Stock
Market and to furnish the Company with copies of all Section 16(a) reports they
file. Based on its review of the copies of such reports received by it, the
Company believes that during 1999, its directors, officers and ten percent
beneficial owners complied with all applicable reporting requirements.
ITEM 11. EXECUTIVE COMPENSATION
The following table shows the compensation received by the Company's former
President and Chief Executive Officer and former Acting Chief Executive Officer
and the other four most highly compensated executive officers of the Company
(the "Named Executive Officers") for the three fiscal years ended December 31,
1999.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Name and Principal Position (1) Year Salary($) Bonus Other Annual Restricted Securities All Other
- ------------------------------- ---- --------- ----- ------------ -------------- ---------- ---------
($)(2) Compensation Stock Awards(s) Underlying Compensation
----- ------------ --------------- ---------- ------------
($)(3) ($) Options/SARs ($)(5)
------ --- ------------ ------
(#)(4)
------
Annual Compensation Long-Term Compensation
------------------- ----------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Charles Lyons....................... 1999 $408,653 (5) (5) 0 0 $3,633,118
Chairman, President and Chief 1998 623,557 $ 350,000 $ 64,831 0 0 138,726
Executive Officer 1997 500,000 350,000 19,530 0 297,500* 70,649
Charles M. Neinas................... 1999 $216,346 0 0 0 0 13,798
Chairman, Acting President and
Acting Chief Executive Officer
James A. Cronin, III................ 1999 500,000 200,000 0 0 0 33,699
Former Executive Vice President, 1998 498,846 375,000 0 0 0 16,069
Chief Financial Officer and 1997 400,000 350,000 0 0 297,500* 13,177
Chief Operating Officer
Brian A.C. Steel.................... 1999 360,833 156,791 -0- -0- 0 18,365
President and Chief Operating 1998 294,617 250,000 -0- -0- 0 6,320
Officer, OCC 1997 290,000 203,000 172,467 -0- 0 483,894
Arthur M. Aaron..................... 1999 200,000 100,000 0 0 0 21,136
Executive Vice President, 1998 196,009 95,000 0 0 0 8,403
Business Affairs 1997 175,000 61,250 0 0 100,000* 8,992
Timothy J. Romani................... 1999 220,000 213,000 0 0 0 20,814
</TABLE>
51
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
President, Ascent Arena 1998 202,615 260,000 0 0 0 28,769
Company, LLC 1997 159,999 200,000 0 0 50,000** 2,291
</TABLE>
___________
(1) Mr. Lyons resigned as Chairman, CEO and President of the Company effective
August 17, 1999. Mr. Neinas served as Acting CEO and President of the
Company from June 1999 through December 1999 and has received (i) a grant
of 100,000 SARs; (ii) three grants of 400 shares of Ascent common stock;
and (iii) and three grants of 4,000 options to purchase Ascent common stock
as compensation for his role as a director of the Company since 1995. Mr.
Cronin resigned from the Company on January 28, 2000. Mr. Steel resigned
from OCC on August 6, 1999. Mr. Aaron became Executive Vice President,
Business Affairs of the Company on January 28, 2000. (see "Employment and
Severance Arrangements" on page 53).
(2) For 1998, Mr. Aaron's bonus includes his annual bonus of $70,000 and a
special bonus paid in recognition of his efforts on the arena financing.
For 1998 and 1999 Mr. Romani's bonus includes his annual bonus compensation
of $60,000 and $63,000, respectively, with the remainder of the bonus
compensation related to the achievement of certain benchmarks set out in
Mr. Romani's employment agreement in connection with the construction of
the Pepsi Center.
(3) Other Annual Compensation shown for 1997, 1998 and 1999 does not include
perquisites and other personal benefits because the aggregate amount of
such compensation does not exceed the lesser of (i) $50,000 or (ii) 10
percent of individual combined salary and bonus for the Named Executive
Officer in each year. Other Annual Compensation in 1998 for Mr. Lyons
includes membership fees and insurance premium related tax reimbursements
and in 1997 includes for Mr. Lyons and Mr. Steel amounts reimbursed in each
case for the payment of taxes associated with relocation expenses.
(4) Ascent Stock appreciation rights (SARs) that were issued in exchange for
Ascent employee stock options are marked with a (*) and other Ascent SARs
are marked with a (**). (See "Employment and Severance Arrangements"
below).
(5) All Other Compensation for 1999 includes the following elements: (i)
unused credits under the Company's cafeteria plan that were paid in cash to
the Named Executive Officers; (ii) contributions on behalf of the Named
Executive Officers by the Company to the Company's 401(k) Plan, and in the
case of Mr. Steel, by OCC to OCV's 401(k) Plan; (iii) automobile
allowance; and (iv) above-market interest accrued for Mr. Lyons and Mr.
Romani under Ascent's Deferred Compensation Plan and for Mr. Steel and Mr.
Lyons the payment of life insurance premiums.
<TABLE>
<CAPTION>
Unused 401(k) Plan Automobile Insurance Total
------------ ---------------- ---------------- ----------------- -----------------
Credits Contribution Allowance Premium
------------ ---------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
Mr. Lyons $16,754 $4,875 $ 9,807 $3,890 $35,326
Mr. Neinas 13,798 0 0 0 13,798
Mr. Aaron 8,199 4,384 8,999 0 21,136
Mr. Romani 8,814 0 12,000 0 20,814
Mr. Steel 0 5,000 13,200 165 18,365
Mr. Cronin 20,500 0 13,199 0 33,699
</TABLE>
All Other Compensation for 1999 for Mr. Lyons includes $3,600,000 paid by
the Company to Mr. Lyons pursuant to a settlement agreement between Mr.
Lyons and the Company effective August 17, 1999.
Option/SAR Grants
There were no SARS or options granted to the Named Executive Officers in
1999.
Option Exercises and Fiscal Year-End Values
The following table sets forth information on (1) options exercised by the
Named Executive Officers in 1999, and (2) the number and value of their
unexercised options or SARs as of December 31, 1999.
52
<PAGE>
<TABLE>
<CAPTION>
AGGREGATED OPTION/SAR EXERCISES IN 1999, AND 12/31/99 OPTION/SAR VALUES
Name Shares Value Exercisable (#) Unexercisable (#) Exercisable ($) Unexercisable ($)
- ------------------- Underlying Realized ($) --------------- ----------------- --------------- -----------------
Options --------------
Exercised (#)
---------------
Number of Securities Value of Unexercised
Underlying Unexercised In-The-Money
Options/SARs at 12/31/1999 Options/SARs at 12/31/1999
-------------------------- --------------------------
<S> <C> <C> <C> <C> <C> <C>
Ascent Options/SARs
Charles Lyons -0- -0- -0- -0- -0- -0-
Charles Neinas -0- -0- 62,000 50,000 $370,000 $350,000
Arthur M. Aaron -0- -0- 75,000 25,000 $237,225 $ 79,075
Timothy J. Romani -0- -0- 30,000 20,000 $ 94,890 $ 63,260
Brian A.C. Steel -0- -0- -0- -0- -0- -0-
James A. Cronin, III -0- -0- 148,750 148,750 $470,496 $470,496
On Command Options
Brian A.C. Steel 175,000 $511,000 73,851 -0- -0- -0-
</TABLE>
Employment and Severance Arrangements
In connection with the resignation of Mr. Neinas as Acting Chief Executive
Officer and President of the Company, the resignation of Mr. Cronin as Executive
Vice President, Chief Financial Officer and Chief Operating Officer of the
Company and the continued efforts by the Company to explore its strategic
alternatives regarding a disposition of its assets, in January 2000 the Company
amended and restated Messrs. Aaron and Holden's employment agreements. The
Company's subsidiary Ascent Sports Holdings, Inc. ("ASH"), also entered into an
employment agreement with Mr. Elliman in January 2000.
Under his amended and restated employment agreement: (i) Mr. Aaron's base
salary was increased to $300,000 per year, subject to increases at the
discretion of the Ascent Board of Directors (for 1998 and 1999 his base salary
was $200,000); (ii) Mr. Aaron is eligible for an annual bonus based on
performance measures determined by Ascent's Compensation Committee with a target
bonus equal to 50% of his base salary; (iii) the term of the agreement was
extended by one year to expire June 27, 2003; (iv) Mr. Aaron will be promoted to
the position of Executive Vice President, Business Affairs for the term of the
agreement; and (v) the provisions regarding severance and change-of-control were
revised, as described further below. Mr. Holden's amended and restated
employment agreement is on substantially the same terms as Mr. Aaron's, other
than (iv) above in that Mr. Holden was promoted to the position of Executive
Vice President, Finance and Chief Financial Officer and except that Mr. Holden's
base salary under his amended and restated agreement was increased to $250,000
(for 1998 and 1999 his base salary was $165,000). Mr. Aaron's and Mr. Holden's
agreements also each set forth the terms of their additional grant on January
28, 2000, of options to purchase 100,000 shares each of Ascent's common stock.
Mr. Elliman's employment agreement expires on August 31, 2000. Pursuant to
the agreement, Mr. Elliman's base salary for 2000 is $50,000 per month. Mr.
Elliman will report directly to the Company's Board of Directors and, except as
otherwise provided in existing employment agreements, all other employees of the
Company's sports-related businesses, the Colorado Avalanche, Denver Nuggets and
the Pepsi Center, and their respective subsidiaries, will report directly or
indirectly to Mr. Elliman. Mr. Elliman's agreement does not contain "change-of-
control" provisions.
In addition, Mr. Elliman's agreement provides that if Mr. Elliman is
terminated without "cause" (as defined in his agreement) or upon Mr. Elliman's
death or physical or mental incapacity, then Mr. Elliman will receive a lump sum
payment from the Company equal to the lesser of three months salary or the
aggregate base salary otherwise payable to Mr. Elliman through the end of the
term of the agreement.
53
<PAGE>
The employment agreements for each of Messrs. Aaron and Holden (each an
"executive") contain provisions related to change-of-control and severance. If
an executive is terminated without "cause" (as defined in the agreements) or
upon certain events defined in the agreements which have the effect of a
constructive termination (including a "Change of Control Event") then: (i) there
shall be no forfeiture of any rights or interests related to fringe benefits
granted under the agreement, including, without limitation, any stock-based
incentives, all of which will fully vest, to the extent not previously vested,
immediately upon such termination becoming effective and final; (ii) the
executive shall receive current base salary, fringe benefits and the annual
bonus outlined in the agreement for the longer of (a) the remainder of the
employment period under the agreement or (b) three years following the date of
such termination, with no obligation to seek other employment and no offset to
the amounts paid by the Company if other employment is obtained, provided that
each of the executives and the Company shall explore alternatives to minimize
any excise tax pursuant to Section 4999 of the Internal Revenue Code of 1986, as
amended, that would otherwise be payable; and (iii) all other benefits provided
pursuant to the agreement shall be received by the executive. The Company is
obligated to fund a "rabbi" trust no later than one day prior to a Change of
Control Event with amounts sufficient to pay its obligations under these
employment agreements, and severance amounts must be paid in a lump sum
following the executive's termination for any reason, including, at the election
of the executive, during the 180 day-period following a Change of Control Event.
For purposes of the employment agreements, a "Change of Control Event"
shall mean and include either the occurrence of any of the following with
respect to Ascent, or any of the following becoming highly likely to occur, in
the determination of the Board: (i) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (A) the then
outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (B) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this clause (i), the following acquisitions shall not constitute
a Change of Control: (1) any acquisition directly from or by the Company, (2)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (3)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (1), (2) and (3) of clause (iii) below; or (ii) individuals who, as of
the date of the agreements, constitute the Board (the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to January 27, 2000,
whose election, or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or (iii) consummation of a reorganization, merger
or consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (1) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 75% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (2) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (3) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or (iv) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
On January 7, 2000, On Command and Alan Goodson entered into an employment
agreement that expires on January 7, 2002. Pursuant to the agreement, Mr.
Goodson's initial base salary under the agreement is $300,000 per year, subject
to increases at the discretion of the Board of Directors of OCC. Under the
agreement, Mr. Goodson is eligible
54
<PAGE>
for annual bonuses based on performance measures determined by the OCC
Compensation Committee with a target bonus equal to 70% of Mr. Goodson's base
salary for achieving 100% of the target level for the performance measures. In
addition, Mr. Goodson has been granted options to purchase 100,000 shares of OCC
Common Stock, exercisable at a per-share price equal to $15.90625. The options
vest 50% on January 7, 2001 and 50% on January 2002. The options will expire at
the earlier of (i) three months after the date upon which Mr. Goodson is
terminated for "cause" (as defined in the employment agreement); (ii) one year
after Mr. Goodson's employment agreement is terminated as a result of death or
(iii) on January 7, 2010. Mr. Goodson's agreement does not contain "change-of-
control" provisions.
In addition, Mr. Goodson's agreement provides that if Mr. Goodson is
terminated without "cause" (as defined in the agreement) or upon any substantial
reduction (except in connection with the termination of his employment
voluntarily by Mr. Goodson, or by the Company for "cause") by the Company of Mr.
Godson's responsibilities as Executive Vice President and Chief Operating
Officer of the Company, or the Company is in material default of the agreement,
then: (i) there shall be no forfeiture of any rights or interests related to
fringe benefits granted under the agreement, including, without limitation, the
SARs and any other stock-based incentives, except that half of his 100,000
options will vest, to the extent not previously vested, and the other half of
which will be canceled, immediately upon such termination becoming effective and
final; (ii) the executive shall receive current base salary, fringe benefits and
the annual bonus outlined in the agreement for the longer of (a) the remainder
of the employment period under the agreement or (b) one year following the date
of such termination, with no obligation to seek other employment and no offset
to the amounts paid by the Company if other employment is obtained; and (iii)
all other benefits provided pursuant to the agreement shall be received by the
executive.
On December 28, 1998, On Command and Mr. Steel entered into an amendment to
Mr. Steel's employment agreement. Pursuant to the amendment, Mr. Steel assumed
the title of President and Chief Operating Officer of OCC through September 11,
2000, while reporting directly to the Chief Executive Officer and Board of
Directors of OCC, and if there was no Chief Executive Officer, then to the
Chairman. In addition, under the terms of the amendment (i) Mr. Steel's base
salary was increased to $375,000 per year and (ii) if OCC failed to review Mr.
Steel's compensation prior to June 1, 1999 or revise such compensation prior to
August 1, 1999, then Mr. Steel would be entitled to terminate his employment
with OCC and receive (a) his then base salary for a year from such termination,
(b) a pro-rated annual bonus for the year in which employment was terminated and
(iii) a pro-rated portion of the options previously granted to Mr. Steel under
OCC's stock option plans that were scheduled to vest during the year of such
termination, which shall vest as of the date of such termination. Although OCC
and Mr. Steel entered into negotiations regarding his position and compensation
at OCC during the above time periods, Mr. Steel's compensation was not revised
prior to August 1 and on August 6, 1999, Mr. Steel resigned from OCC pursuant to
the terms of his amended employment agreement.
On January 28, 2000, Mr. Cronin terminated his employment agreement and
resigned as director, Executive Vice President, Chief Financial Officer and
Chief Operating Officer of the Company. In March 2000, the Board of Directors
authorized the payment of $200,000 as an annual bonus to Mr. Cronin for his
efforts on behalf of the Company in 1999.
Finally, on August 22, 1999, Mr. Lyons and the Company executed a
Settlement Agreement pursuant to which Mr. Lyons received $3,677,347 in full
settlement of the provisions of the Settlement Agreement and all outstanding
obligations of the Company to Mr. Lyons.
Compensation Committee Report on Executive Compensation
The Compensation Committee is responsible for establishing and
administering the Company's executive compensation philosophy. Through June
1999, the Compensation Committee was composed of Mr. Gould and Mr. Neinas as
Chairman of the Committee. In June 1999 when Mr. Neinas was elected Chairman of
the Board and Acting President and Chief Executive Officer, he left the
Compensation Committee, Peter Barton was elected to the Committee and Mr. Gould
became Chairman of the Committee. In December 1999, Mr. Neinas resigned as
Acting President and Chief Executive Officer of the Company and again became a
member of the Committee. For a description of each of Mr. Gould's and Mr.
Neinas' relationship to the Company, see "Compensation Committee Interlocks and
Insider Participation."
Set forth below is the Committee's report on the 1999 compensation of the
Named Executive Officers. This report shall not be deemed incorporated by
reference by any general statement incorporating by reference this Annual Report
on Form 10-K into any filing under the Securities Act of 1933, as amended, or
the Exchange Act, except to the extent that the Company specifically
incorporates this information by reference, and shall not otherwise be deemed
filed under such Acts.
55
<PAGE>
Compensation Philosophy and Guiding Principles.
The Company or its subsidiaries has or had employment agreements with each
of Messrs. Aaron, Cronin, Holden, Elliman, Goodson, Lyons, Romani and Steel.
The Compensation Committee has determined that the executive compensation
philosophy of the Company should be consistent with such agreements and guided
by the following principles:
Attract and retain talented management;
Closely align management's interests and actions with those of stockholders
through the establishment and/or enhancement of appropriate equity incentive
programs;
Appropriately reward employees for enhancing stockholder value through
improvement in financial performance and pursuit of strategic alternatives;
Emphasize risk-based performance incentives as a key component of both
annual and long term compensation.
Pursuit of Strategic Alternatives and Operating Improvements
During 1999, the company's Board of Directors was evaluating and pursuing
various strategic alternatives for the purpose of enhancing shareholder value,
and at the same time continuing to seek improvements in the operating
performance of the Company's subsidiaries. This resulted in several agreements
during 1999. In January 1999, the Company sold 90% of its Beacon motion picture
production subsidiary to an investor group that included Beacon management. In
April 1999, Ascent entered into an agreement to sell the Colorado Avalanche,
Denver Nuggets and the Pepsi Center (the "sports-related businesses") to a third
party for $400 million and the Board agreed to permit Mr. Lyons to participate
with the buyers and leave the Company upon consummation of the sale. That sale
was challenged by shareholders in a lawsuit filed against the Company in May
1999 seeking an injunction preventing the sale. The Company settled the
shareholder litigation and, as one of the conditions to the settlement,
conducted a public auction for the sports-related businesses. In July 1999, the
auction resulted in a new buyer agreeing to purchase the sports-related
businesses for $461 million. However, this new buyer did not obtain the
necessary consents and releases from the City and County of Denver, and on
December 1, 1999, the Company terminated that agreement. Finally, in October
1999, Ascent entered into an Agreement and Plan of Merger with AT&T Corp. and
Liberty Media Corporation ("Liberty"), pursuant to which each share of Ascent
Common Stock would be converted into .4626 shares of Liberty stock. The merger
was conditioned upon, among other things, the consummation of the sale of the
Company's sports-related businesses. When the agreement to sell the sports-
related businesses was terminated, AT&T and Liberty exercised their right to
terminate the Agreement and Plan of Merger because the condition to closing (the
sale of the sports-related businesses on the terms and conditions set forth in
the sale agreement) was incapable of being satisfied.
In December 1999, the Ascent Board announced that it would continue to seek
qualified purchasers for the sports-related businesses and, in response to the
termination by Liberty of its merger agreement with the Company, would continue
to examine the Company's strategic alternatives, which alternatives could
include a sale of the Company's majority interest in On Command and its Ascent
Network Services division, other transactions involving On Command or other
transactions involving the entire company.
In January 2000, the Company, through its subsidiary ASH, entered into an
employment agreement with Mr. Elliman to act as President of ASH, with primary
operational responsibility for the Company's sports-related businesses.
Subsequently, On Command entered into an employment agreement with Allan Goodson
to act as Executive Vice President and Chief Operating Officer with primary
operational responsibility for On Command. Then, on January 25, 2000, in
connection with the resignations of Mr. Neinas as Acting President and Chief
Executive Officer and Mr. Cronin as Executive Vice President, Chief Operating
Officer and Chief Financial Officer of the Company, the Ascent Board promoted
Mr. Aaron to the position of Executive Vice President, Business Affairs and Mr.
Holden to the position of Executive Vice President, Finance and Chief Financial
Officer of the Company. Mr. Aaron and Mr. Holden have primary executive
responsibility for managing the Company's ownership of its operating entities
and evaluation of its strategic alternatives. (See "Employment and Severance
Arrangements").
56
<PAGE>
Annual Compensation.
None of the Named Executive Officers or Mr. Holden received salary
increases in 1999 other than Messrs.Steel and Romani. Mr. Steel's salary
increase was approved by the on Command Board of Directors in connection with an
amendment to his employment agreement, and Mr. Romani's salary increase for 1999
was as set forth in his employment agreement.
In recognition of their efforts during 1999 in the management of the
Company's operating entities and in the evaluation and pursuit of the Company's
strategic alternatives and in recognition of their increased role in both areas
in the year 2000, the Compensation Committee recommended and the Board approved
an annual bonus for 1999 of $100,000 each for Messrs. Aaron and Holden. On
March 10, 2000, the Board approved a $200,000 bonus payable to Mr. Cronin for
his efforts on behalf of the Company in 1999.
Under the terms of his amended employment agreement and his severance
arrangement with On Command, Mr. Steel is entitled to receive a pro-rata annual
bonus for 1999 in an amount to be determined by the On Command Board of
Directors.
In connection with his service to the Company as Acting Chief Executive
Officer and President, Mr. Neinas' salary for 1999 was based on Mr. Lyons'
salary for such positions in 1999 on a pro-rated basis. The Compensation
Committee did not consider a bonus for Mr. Neinas in light of his membership on
the Compensation Committee.
Long Term Compensation
During 1999, none of the Named Executive Officers or Mr. Holden were
granted any additional equity incentives. In August of 1999 in connection with
his resignation from the Company, Mr. Lyons' outstanding SARs were terminated.
Pursuant to the terms of his amended employment agreement and in connection with
his resignation from On Command in August of 1999, Mr. Steel retained 369,257 of
his 385,312 On Command options with one year from his resignation date to
exercise such options. As a result of Mr. Cronin's resignation from Ascent,
the 223,125 SARs that will remain outstanding for ninety days are expected to
vest and be paid in connection with the tender offer for the Company made by
Liberty.
In January 2000 each of Messrs. Aaron and Holden were granted options to
purchase 100,000 shares of the Company's common stock and Mr. Goodson received
options to purchase 100,000 shares of On Command common stock. In each case the
grant reflected the intention of the Company (and On Command in Mr. Goodson's
case) to align senior management's interests with those of stockholders through
appropriate equity incentives and reflected the Company's recognition of the
participation required of each of Messrs. Aaron, Holden and Goodson in the
managing of the Company's operating entities and continuing process of
evaluating and pursuing the Company's strategic alternatives.
Deductibility of Executive Compensation.
Section 162(m) of the Internal Revenue Code of 1986, as amended, and the
U.S. Treasury Regulations relating thereto (collectively, "Section 162(m)")
restricts publicly traded companies from claiming or receiving a tax deduction
on compensation paid to certain executive officers in excess of $1 million,
unless such compensation is performance based. The Company's policy with respect
to the deductibility limit of Section 162(m) is generally to preserve the
deductibility of compensation paid when it is appropriate and in the best
interests of the Company and its stockholders.
Compensation Committee
Paul Gould, Chairman
Charles M. Neinas
57
<PAGE>
SHAREHOLDER RETURN PERFORMANCE GRAPH
The following graph and chart compare the cumulative total shareholder return on
the Company's common stock, including the reinvestment of dividends, with the
return on the NASDAQ Index and the Standard & Poor's Entertainment Index. On
December 18, 1995, the Company's common stock began publicly trading. The
performance graph sets forth the return on $100 invested in Ascent Entertainment
Group, Inc. common stock and the two stock indices from December 18, 1995 to
December 31, 1999.
[PERFORMANCE GRAPH]
58
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
COMMON STOCK OWNERSHIP OF FIVE PERCENT HOLDERS
As of March 20, 2000, the record date, 29,755,600 shares of Common Stock
were outstanding. To the knowledge of the Company, based upon Schedules 13G or
13D filed with the Securities and Exchange Commission (the "SEC" or
"Commission"), the following persons were the only beneficial owners of more
than five percent of the Company's Common Stock as of December 31, 1999:
% of
Shareholder Voting #of Shares Class
----------- ------ ---------- -----
Gabelli Asset Management , Inc.(1) 14.86% 4,421,112 Common
One Corporate Center
Rye, New York 10580
Snyder Capital Management, LP(2) 13.7% 4,069,690 Common
350 California Street
San Francisco, CA 94104
Ascent Acquisition Group, LLC(3) 9.4% 2,782,700 Common
280 Park Avenue
New York, NY 10017
Leon G. Cooperman(4) 5.9% 1,746,900 Common
88 Pine Street
Wall Street Plaza, 31st Floor
New York, NY 10005
- --------
(1) Based on information contained in Schedule 13D filed with the Commission and
dated March 15, 2000. The aggregate number and percentage of Common Stock which
Gabelli Asset Management, Inc. and its subsidiaries beneficially owns is
4,421,112 shares (14.86%) of Common Stock, as follows: (a) Gabelli Funds, LLC,
as agent, 1,364,230 shares (4.58%) of Common Stock (sole voting power: 1,364,230
shares; sole dispositive power: 1,364,230 shares; and shared voting or
dispositive power: none); (b) GAMCO Investors, Inc., as agent, 2,669,482 shares
(8.97%) of Common Stock (sole voting power: 2,669,482 shares; sole dispositive
power: 2,669,482 shares; and shared voting and dispositive power: none); (c)
Gemini Capital Management Limited, 82,000 shares (0.28%) of Common Stock (sole
voting power: 82,000 shares; sole dispositive power: 82,000 shares; and shared
voting and dispositive power: none); (d) Gabelli International II Limited, 5,000
shares (0.02%) of Common Stock (sole voting power: 5,000 shares; sole
dispositive power: 5,000 shares; and shared voting and dispositive power: none);
(e) Gabelli Associates Fund, 157,600 shares (0.53%) of Common Stock (sole voting
power: 157,600 shares; sole dispositive power: 157,600 shares; and shared voting
and dispositive power: none.); and (f) MJG Associates, Inc., 142,800 shares
(0.48%) of Common Stock (sole voting power: 142,800 shares; sole dispositive
power: 142,800 shares; and shared voting and dispositive power: none).
(2) Based on information contained in Schedule 13D/A filed with the Commission
and dated June 1, 1999, Snyder Capital Management, LP ("SCMLP") and Snyder
Capital Management, Inc. ("SCMI") are the beneficial owners of 4,069,690 shares
(13.7%) of Common Stock (sole voting power: none; sole dispositive power: none;
shared voting power: 3,597,590 shares; and shared dispositive power: 4,069,690
shares). SCMI is the sole general partner of SCMLP, and both entities are
wholly-owned by Nvest Companies, Inc., a publicly traded limited partnership.
All voting and investment decisions regarding advisory accounts managed by SCMLP
are made by SCMI and SCMLP and accordingly, SCMI and SCMLP do not consider Nvest
Companies or any entity controlling Nvest Companies to have any direct or
indirect control over the securities held in managed accounts.
(3) Based on information contained in Schedule 13D/A jointly filed with the
Commission and dated June 28, 1999 by Triarc Companies Inc. ("Triarc"), CP
International Management Services Ltd. ("CP"), Consolidated Press International
59
<PAGE>
Holdings Limited ("CPI") and Ascent Acquisition Group, LLC ("AAG). Peter May, a
director of the Company is also director, President and Chief Operating Officer
of Triarc. Mr. May's disclaims beneficial ownership of the 2,782,700 shares of
Ascent common stock which are directly held by Ascent Acquisition Group, LLC, an
entity which is 50% owned by Triarc.
(4) Based on information contained in Schedule 13G filed with the Commission and
dated on February 8, 2000. Mr. Cooperman is the Managing Member of Omega
Associates, L.L.C. ("Associates"). Associates is the general partner of Omega
Capital Partners, L.P. ("Capital LP"), Omega Institutional Partners, L.P.
("Institutional LP"), and Omega Capital Investors, L.P. ("Investors LP"). Mr.
Cooperman is also the President and majority stockholder of Omega Advisors, Inc.
("Advisors"), and Advisors serves as the investment manager to Omega Overseas
Partners, Ltd. ("Overseas"). Advisors also serves as a discretionary investment
advisor to a limited number of institutional clients (the "Managed Accounts").
Capital LP owns 545,318 shares, Institutional LP owns 30,376 shares, Investors
LP owns 62,560 shares, Overseas owns 660,259 shares and Managed Accounts owns
448,387 shares. Mr. Cooperman has the sole power as to all of these shares other
than those owned by Managed Accounts, as to which Mr. Cooperman possesses shared
power.
COMMON STOCK OWNERSHIP OF MANAGEMENT
The following table sets forth information regarding the beneficial
ownership of the Company's Common Stock and the Common Stock of On Command
Corporation, as of March 20, 2000, by all directors and nominees, by each of the
"named executive officers" and by all directors and executive officers as a
group. Under the rules of the SEC, beneficial ownership includes any shares
over which an individual has sole or shared voting power or investment power,
and also any shares that the individual has the right to acquire within 60 days
through the exercise of any stock option or other right.
<TABLE>
<CAPTION>
Name(1)
- ------- On Command
Ascent Shares Shares* Amount
Amount and Nature and Nature of
of Beneficial Beneficial
Ownership(2) Ownership
------------------ -----------------
<S> <C> <C>
Arthur M. Aaron............................................................................. 1,519 0
Timothy J. Romani........................................................................... 0 0
Charles Lyons(3)............................................................................ 19,551 0
Paul Gould.................................................................................. 0 0
Brian A.C. Steel(4)......................................................................... 0 73,851
Charles M. Lillis........................................................................... 4,000 0
Peter May(5)................................................................................ 0 0
Charles M. Neinas........................................................................... 12,000 0
James A. Cronin, III(6)..................................................................... 0 0
All directors and executive officers as a group (9 persons)................................. 37,070 73,851
</TABLE>
___________
* On Command is a subsidiary of the Company, based on the Company's
beneficial ownership of approximately 57% of the currently issued and
outstanding shares of On Command, including shares which may be purchased
on the exercise of warrants.
(1) Unless otherwise indicated, each person has sole voting and investment
power over the shares listed, and no director or executive officer
beneficially owns more than 1.0% of the Common Stock of the Company or OCC.
(2) Each number in this column has been rounded down to the nearest whole
share. Beneficial ownership of Ascent common stock includes 12,000 shares
that may be acquired by Mr. Neinas and 4,000 shares that may be acquired by
Mr. Lillis, each within 60 days after March 31, 2000, through the exercise
of stock options.
(3) Mr. Lyons resigned as Chairman, President and Chief Executive Officer of
the Company effective August 17, 1999.
(4) Beneficial ownership of On Command common stock includes 73,851 shares that
may be acquired by Mr. Steel within 60 days after March 31, 2000, through
the exercise of stock options. Mr. Steel resigned from On Command on
August 6, 1999.
60
<PAGE>
(5) Mr. May's disclaims beneficial ownership of 2,876,700 shares of Ascent
common stock which are directly held by Ascent Acquisition Group, LLC, an
entity which is 50% owned by Triarc Companies, Inc. ("Triarc"). Mr. May is
a director, President and Chief Operating Officer of Triarc.
(6) Mr. Cronin resigned as director, Executive Vice President, Chief Financial
Officer and Chief Operating Officer of the Company on January 28, 2000.
Mr. Cronin has continued in his role as Chairman of On Command Corporation.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Mr. Paul Gould, a director of the Company, is a Managing Director and
Executive Vice President of Allen & Company Incorporated, an investment banking
firm that has performed financial advisory services for the Company since 1995,
including (i) serving as the managing underwriter for the Company's initial
public offering in 1995; (ii) advising the Company with respect to the
acquisition of SpectraVision in 1996 and (iii) serving as financial advisor to
the Company in connection with the Company's disposition of its sports and arena
related assets.
Mr. Charles Neinas, a director of the Company and Chairman of the
Compensation Committee, served as Chief Executive Officer of the Company from
June 1999 through December 1999.
61
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
<TABLE>
<CAPTION>
<S> <C>
(a) Documents filed as part of this Report. Page
(1) Consolidated Financial Statements and Supplementary Data of Registrant
Independent Auditors' Report 25
Consolidated Balance Sheets as of December 31, 1999 and 1998 26
Consolidated Statements of Operations for the years ended December 31,
1999, 1998 and 1997 27
Consolidated Statements of Comprehensive Loss for the years ended December 31,
1999, 1998 and 1997 28
Consolidated Statements of Stockholders' Equity for the years ended December 31,
1999, 1998 and 1997 29
Consolidated Statements of Cash Flows for the years ended December 31,
1999, 1998 and 1997 30
Notes to Consolidated Financial Statements 31-47
</TABLE>
(2) Financial Statement Schedules
Schedule II - Valuation and Qualifying Accounts for the years ended
December 31,1999, 1998 and 1997
Information required by the other schedules has been presented in the
Notes to the Consolidated Financial Statements, or such schedule is not
applicable and, therefore, has been omitted.
(b) REPORTS ON FORM 8-K.
(1) The Registrant filed with the Commission on February 24, 2000 a Form 8-K
describing that (1) the Company had entered into an Agrement and Plan of
Merger with Liberty Media Corporation and AEG Acquisition, Inc and, (ii)
that consummation of the Merger Agreement is conditioned on the tender
of at least a majority of the Ascent shares and other customary
conditions.
(2) The Registrant filed with Comission on November 10, 1999 a Form 8-K
describing that the Company had amended the Purchase and Sale Agreement
dated as of July 27, 1999 (the "Sports Sale Agreement") (the "Third
Amendment") to extend the Drop Dead Date, as defined in the Sports
Sale Agreement, from November 10, 1999 to November 15, 1999.
(3) The Registrant filed with the Commission on November 1, 1999 a Form 8-K
describing the following: (i) the Company had entered into two
amendments to the Sports Sale Agreement and, (ii) that, as a result of
the second amendment to the Sports Sale Agreement, that certain
conditions to the consummation of Company's previously announced
Agreement and Plan of Merger (the "Merger Agreement") with AT&T Corp.,
Ranger Acquisitions Corp. and Liberty Media Corp. ("Liberty") are
incapable of being satisfied and that Liberty and the Company have
agreed to negotiate through November 30, 1999 toward an amendment to the
Merger Agreement.
(4) The Registrant filed with the Commission on October 21, 1999, a Form 8-K
describing the following: (i) The Company had entered into an Agreement
and Plan of Merger with Liberty, AT&T Corp. and Ranger Acquisition Corp.
("Merger Sub") whereby Merger Sub would merge with and into the Company
with the Company surviving as a wholly owned subsidiary of AT&T and,
(ii) that consummation of the Merger Agreement is subject to the
approval of the Company's shareholder's and appropriate governmental and
62
<PAGE>
regulatory authorities.
(c) EXHIBITS: The following exhibits are listed according to the number
assigned in the table in Item 601 of Regulation S-K.
3.1(a) Amended and Restated Certificate of Incorporation of Ascent
Entertainment Group, Inc. (as amended through December 12, 1995)
(Incorporated by reference to Exhibit 3.1 to Registrant's Amendment No. 4
to Registration Statement on Form S-1, Commission File No. 33-98502).
3.1(b) Amended and Restated Bylaws of Ascent Entertainment Group, Inc. (as
amended through June 27, 1997). (Incorporated by reference to Exhibit 3.1
to the Company's current report on Form 8-K filed on July 8, 1997 as
amended by a Form 8-K/A filed on July 11, 1997).
4.1 Rights Agreement, dated as of June 27, 1997, between Ascent
Entertainment Group, Inc. and The Bank of New York. (Incorporated by
reference to Exhibit 4.1 to the Company's current report on Form 8-K
filed on July 8, 1997 as amended by a Form 8-K/A filed on July 11, 1997).
4.2 Amendment to Rights Agreement dated as of February 22, 2000 between
Ascent Entertainment Group, Inc. and the Bank of New York (incorporated
by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K
filed on February 24, 2000).
4.3 Indenture between the Registrant and The Bank of New York, as
Trustee, dated December 22, 1997. (Incorporated by reference from the
exhibit of the same number to Amendment No. 1 to the Registrant's
Registration Statement on Form S-4 (No. 333-44461) filed on January 28,
1998.)
4.4 Indenture between the Denver Arena Trust and The Bank of New York, as
Indenture Trustee, dated July 29, 1998 (incoroprated by reference to
Exhibit 4.3 to the 1998 Annual Report).
10(a) Distribution Agreement between Ascent and COMSAT dated June 3,
1997. (Incorporated by reference to Exhibit 10(a) to the Company's current
report on Form 8-K filed on June 19, 1997).
10(b) Tax Disaffiliation Agreement between Ascent and COMSAT dated June
3, 1997. (Incorporated by reference to Exhibit 10(b) to the Company's
current report on Form 8-K filed on June 19, 1997).
10.1 Amended and Restated Employment Agreement by and between Ascent
Entertainment Group, Inc. and Charles Lyons. (Incorporated by reference to
Exhibit 10.1 to the Company's current report on Form 8-K filed on July 8,
1997 as amended by a Form 8-K/A filed on July 11, 1997). *
10.2 Amended and Restated Employment Agreement by and between Ascent
Entertainment Group, Inc. and James A. Cronin, III. (Incorporated by
reference to Exhibit 10.2 to the Company's current report on Form 8-K
filed on July 8, 1997 as amended by a Form 8-K/A filed on July 11, 1997).
*
10.3 Amended and Restated Employment Agreement by and between Ascent
Entertainment Group, Inc. and Arthur M. Aaron.*
10.4 Amended and Restated Employment Agreement by and between Ascent
Entertainment Group, Inc. and David A. Holden.*
10.5 Second Amended and Restated $50,000,000 Credit Agreement dated as
of December 22, 1997 among the Registrant, the lenders named therein and
NationsBank of Texas, N.A., as administrative agent. (Incorporated by
reference to Exhibit 10.5 to Amendment No. 1 to the Registrant's
Registration Statement on Form S-4 (No. 333-44461) filed on January 28,
1998.)
10.6 First Amendment to Second Amended and Restated $50,000,000 Credit
Agreement dated as of December 22, 1997 among the Registrant, the lenders
named therein and NationsBank of Texas, N.A., as administrative agent,
dated July 16, 1998. (Incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K for the year ended December 31, 1998
(the "1998 Annual Report").
10.7 Second Amendment to Second Amended and Restated $50,000,000 Credit
Agreement dated as of December 22, 1997 among the Registrant, the lenders
named therein and NationsBank of Texas, N.A., as administrative agent,
dated January 20, 1999. (Incorporated by reference to Exhibit 10.7 to
the 1998 Annual Report.
63
<PAGE>
10.8 $200,000,000 Credit Agreement dated as of November 24, 1997 among
On Command Corporation, the lenders named therein and NationsBank of
Texas, N.A., as administrative agent. (Incorporated by reference to the
exhibit of the same number to Amendment No. 1 to the Registrant's
Registration Statement on Form S-4 (No. 333-44461) filed on January 28,
1998.)
10.9 Employment Agreement by and between Ascent Entertainment Group,
Inc. and David B. Ehrlich. *
10.10 Ascent Entertainment Group, Inc. 1997 Directors and Executives
Deferred Compensation Plan. (Incorporated by reference to Exhibit 10.8 to
the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, Commission File No. 0-27192). *
10.11 Employment Agreement by and between OCC and Allan Goodson *
10.12 Agreement and Plan of Merger dated as of February 22, 2000 by and
among Ascent Entertainment Group, Inc., Liberty Media Corporation and
Liberty AEG Acquisition, Inc. (Incorporated by reference to the Company's
Current Report on Form 8-K filed February 24, 2000).
10.13 Amendment No. 1 to Employment Agreement between On Command
Corporation and Brian A.C. Steel dated December 28, 1998. (Incorporated by
reference to Exhibit 10.13 to the 1998 Annual Report) *
10.14 Sale and Servicing Agreement dated as of July 29, 1998 among
Denver Arena Trust and Ascent Arena Company, LLC and The Bank of New York
as Indenture Trustee. (Incorporated by reference to Exhibit 10.14 to the
1998 Annual Report)
10.15 Corporate Agreement dated as of October 8, 1997, between the
Registrant and On Command Corporation. (Incorporated by reference to
Exhibit 10.22 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.)
10.16 Master Services Agreement, dated as of August 3, 1993 by and
between Marriott International, Inc., Marriott Hotel Services, Inc. and On
Command Video. (Incorporated by reference to Exhibit 10.6 to Amendment No.
2 to Registrant's Registration Statement on Form S-1 (No. 33-98502) filed
on November 13, 1995.) (Confidential treatment granted).
10.17 Ascent Entertainment Group, Inc. 1995 Key Employee Stock Plan.
(Incorporated by reference to Exhibit 10.16 to Registrant's Annual Report
on Form 10-K (No. 0-27192) filed March 29, 1996.)*
10.18 Ascent Entertainment Group, Inc. 1997 Non-Employee Director Stock
Appreciation Rights Plan (Incorporated by reference to Exhibit 10.18 to
the 1998 Annual Report) *
10.19 Agreement for the Purchase and Sale of an Interest in Beacon
Communications, LLC dated January 20, 1999. (Incorporated by reference to
Exhibit 10.21 to the 1998 Annual Report).
10.20 Employment Agreement between Donald Elliman and Ascent Sports
Holdings, Inc. dated January 1, 2000
21 Subsidiaries of Ascent Entertainment Group, Inc.
23.1 Consent of Deloitte & Touche LLP
* Compensatory plan or arrangement.
64
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on March 27, 2000.
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Arthur M. Aaron
----------------------------------
Arthur M. Aaron
Executive Vice President, Business Affairs
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons in the capacities indicated on
March 27, 2000.
By: /s/ Arthur M. Aaron
---------------------------
Arthur M. Aaron
Executive Vice President, Business Affairs (Principal Executive
Officer)
By: /s/ David A. Holden
---------------------------
David A. Holden
Executive Vice President, Finance and Chief Financial Officer
(Principal Finance and Accounting Officer)
By: /s/ Charles M. Lillis
---------------------------
Charles M. Lillis (Director)
By: /s/ Charles M. Neinas
---------------------------
Charles M. Neinas (Director)
By: /s/ Paul A. Gould
---------------------------
Paul A. Gould (Director)
By: /s/ Peter May
---------------------------
Peter May (Director)
65
<PAGE>
ASCENT ENTERTAINMENT GROUP, INC.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
Balance at Charged Charged Balance
Beginning To To other At end
Of year Expenses Accounts Deductions Of Year
---------- -------- --------- ----------- -------
<S> <C> <C> <C> <C> <C>
1997: Allowance for loss on accounts receivable
$1,958 $1,002 $(1,245) $(68) $1,647
1998: Allowance for loss on accounts receivable
$1,647 $ 982 $(1,119) $ (9) $1,501
1999: Allowance for loss on accounts receivable
$1,501 $2,087 $ (523) $ - $3,065
</TABLE>
66
<PAGE>
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This AMENDED AND RESTATED AGREEMENT made as of June 27, 1997, and amended
and restated as of January 25, 2000, by and between Ascent Entertainment Group,
Inc., a Delaware corporation ("Ascent" or the "Company"), and Arthur M. Aaron, a
resident of the State of Colorado(the "Executive").
WHEREAS, Ascent desires to employ the Executive as Executive Vice
President, Business Affairs of Ascent, and the Executive desires to accept such
employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, Ascent and the Executive
agree as follows:
1. Employment; Duties.
------------------
(a) Employment and Employment Period. Ascent shall employ the
--------------------------------
Executive to serve as Executive Vice President, Business Affairs of Ascent or
its successor entity for a period (the "Employment Period") commencing on
January 25, 2000 (the "Effective Date") and continuing thereafter until June 27,
2003 unless terminated in accordance with the provisions of this Agreement.
Each 12 month period ending on the anniversary date of the Effective Date is
sometimes referred to herein as a "year of the Employment Period."
(b) Offices, Duties and Responsibilities. The Executive shall report
------------------------------------
directly to the chief executive officer of Ascent, if there is one (the "CEO"),
and otherwise directly to the Board of Directors of Ascent (the "Board"). The
Executive shall have all duties and authority customarily accorded a senior
business affairs officer, and such other duties as determined by the CEO or the
Board from time to time.
(c) Devotion to Interests of Ascent. During the Employment Period,
-------------------------------
the Executive shall render his business services solely in the performance of
his duties hereunder. The Executive shall use his best efforts to promote the
interests and welfare of Ascent. Notwithstanding the foregoing, the Executive
shall be entitled to undertake such outside activities (e.g., charitable,
----
educational, personal interests, board of directors membership, and so forth,
that do not compete with the business of Ascent as do not unreasonably or
materially interfere with the performance of his duties hereunder as reasonably
determined by the Board in consultation with the Executive.
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2. Compensation and Fringe Benefits.
--------------------------------
(a) Base Compensation. Ascent shall pay the Executive a base salary
-----------------
("Base Salary") at the rate of $300,000 per year during the Employment Period
with payments made in installments in accordance with Ascent's regular practice
for compensating executive personnel, provided that in no event shall such
--------
payments be made less frequently than twice per month. The Base Salary for the
Executive shall be reviewed each year during the Employment Period commencing
the second year of the Employment Period. Any Base Salary increases shall be
approved by the Board in its sole discretion.
(b) Bonus Compensation. The Executive will be eligible to receive
------------------
bonuses ("Annual Bonus") during the Employment Period in accordance with the
following parameters: (i) the target bonus for each year during the Employment
Period shall be 50% of Base Salary for achieving 100% of the target level for
the performance measures; and (ii) the performance measures, the relative weight
to be accorded each performance measure and the amount of bonus payable in
relation to the target bonus for achieving more or less than 100% of the target
level for the performance measures shall be determined for each year during the
Employment Period by the Compensation Committee after consultation with the
Board and the Executive.
(c) Fringe Benefits. The Executive also shall be entitled to
---------------
participate in group health, dental and disability insurance programs, and any
group profit sharing, deferred compensation, supplemental life insurance or
other benefit plans as are generally made available by Ascent to the senior
executives of Ascent on a favored nations basis. Such benefits shall include
reimbursement of documented expenses reasonably incurred in connection with
travel and entertainment related to Ascent's business and affairs. All benefits
described in the foregoing sentence that are reportable as earned or unearned
income will be "grossed up" by Ascent in connection with federal and state tax
obligations to provide Executive with appropriate net tax coverage so that the
benefits received by the Executive from the foregoing sentence shall be net of
income and employment taxes thereon. Ascent reserves the right to modify or
terminate from time to time the fringe benefits provided to the senior
management group, provided that the fringe benefits provided to the Executive
--------
shall not be materially reduced on an overall basis during the Employment
Period.
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(d) Stock Appreciation Rights. On June 27, 1997, Ascent granted to
-------------------------
Executive stock appreciation rights ("SARs"), exercisable only for cash, with
respect to 100,000 shares of Ascent's common stock, par value $0.01 per share,
each such SAR exercisable at the per-share price equal to $9.5250. The SARs
shall be exercisable by Executive according to the following schedule:
(i) 10% of the SARs on or after June 27, 1997;
(ii) 15% of the SARs on or after December 18, 1997;
(iii) 25% of the SARs on or after December 18, 1998;
(iv) 25% of the SARs on or after December 18, 1999;
(v) 25% of the SARs on or after December 18, 2000.
Notwithstanding the foregoing, 100% of the SARs shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "Change of Control Event" as defined in Section 7(a)
below, or upon the occurrence of any event that results in Ascent's Common Stock
no longer being traded on any of the New York Stock Exchange, American Stock
Exchange or NASDAQ National Market System (including, without limitation, as a
result of any so-called "going private" transaction with Ascent). Such SARs
shall be represented by a SAR agreement containing appropriate terms consistent
with the provisions of this Agreement. The SARs, to the extent they remain
unexercised, shall automatically and without further notice terminate and become
of no further force and effect only at the time of the earliest of the following
to occur:
(x) Three months after the date upon which a termination for cause by
Ascent (as provided in Section 5(b)) shall have become effective and final; or
(y) December 18, 2005.
In the event of any stock split, stock dividend, spin-off,
reclassification, recapitalization, merger, consolidation, subdivision,
combination or other change which affects the character or amount of Ascent's
common stock after the Effective Date and prior to the exercise and/or
expiration of all of the SARs, the number and exercise price of and/or the
formula for determining the value of such unissued or unexercised SARs shall be
adjusted in order to make such SARs, as nearly as may be practicable, equivalent
in nature and value to the SARs that would have existed had such change not
taken place. In addition, if Ascent adopts a stock-based
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incentive plan that in Executive's sole judgment provides for any term(s) more
favorable to the grantee than any term(s) set forth above, Executive will be
entitled to the benefit of such more favorable term(s) with respect to the SARs,
other than with respect to the vesting schedule thereof, but in no event will
any term(s) applicable to the SARs be less favorable to Executive than those set
forth above.
During the Employment Period, the Executive shall be granted additional
stock-based incentives as determined by the Compensation Committee in its sole
discretion. Notwithstanding any other provision of this Agreement except Section
5(b), the Compensation Committee may in its discretion provide that any stock-
based incentives granted to the Executive which have not vested prior to his
termination of employment shall continue to vest in accordance with their
original terms as if the Executive's employment had not terminated.
(e) Stock Options. Ascent hereby grants to Executive options
-------------
("Options") to purchase 100,000 shares of Ascent's common stock, par value $0.01
per share, each such Option exercisable at the per-share price equal to
$11.9063. The Options shall be exercisable by Executive according to the
following schedule:
(i) 50,000 Options on or after January 25, 2001;
(ii) an additional 50,000 Options on or after January 25, 2002.
Notwithstanding the foregoing, 100% of the Options shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "Change of Control Event" as defined in Section 7(a)
below, or upon the occurrence of any event that results in Ascent's Common Stock
no longer being traded on any of the New York Stock Exchange, American Stock
Exchange or NASDAQ National Market System (including, without limitation, as a
result of any so-called "going private" transaction with Ascent). Such Options
shall be represented by a Option agreement containing appropriate terms
consistent with the provisions of this Agreement. The Options, to the extent
they remain unexercised, shall automatically and without further notice
terminate and become of no further force and effect only at the time of the
earliest of the following to occur:
(x) Three months after the date upon which a termination for cause by
Ascent (as provided in Section 5(b)) shall have become effective and final; or
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(y) January 25, 2010.
In the event of any stock split, stock dividend, spin-off,
reclassification, recapitalization, merger, consolidation, subdivision,
combination or other change which affects the character or amount of Ascent's
common stock after the Effective Date and prior to the exercise and/or
expiration of all of the Options, the number and exercise price of and/or the
formula for determining the value of such unissued or unexercised Options shall
be adjusted in order to make such Options, as nearly as may be practicable,
equivalent in nature and value to the Options that would have existed had such
change not taken place. In addition, if Ascent adopts a stock-based incentive
plan that in Executive's sole judgment provides for any term(s) more favorable
to the grantee than any term(s) set forth above, Executive will be entitled to
the benefit of such more favorable term(s) with respect to the Options, other
than with respect to the vesting schedule thereof, but in no event will any
term(s) applicable to the Options be less favorable to Executive than those set
forth above.
During the Employment Period, the Executive may be granted additional
stock-based incentives as determined by the Compensation Committee in its sole
discretion. Notwithstanding any other provision of this Agreement except Section
5(b), the Compensation Committee may in its discretion provide that any stock-
based incentives granted to the Executive which have not vested prior to his
termination of employment shall continue to vest in accordance with their
original terms as if the Executive's employment had not terminated.
(f) Conflicting Provisions. Solely to the extent of any conflict
----------------------
between the provisions of this Agreement and the provisions of any agreement
between Executive, on the one hand, and Ascent and any of its affiliated or
related entities, on the other hand, relating to stock-based incentives
(including the SARs and Options), life insurance, health insurance, any other
employee equity participation, profit sharing or retirement plan, group health
plan or other employee benefits (individually and collectively referred to
herein as the "Fringe Benefits"), the provisions of this Agreement will control.
3. Trade Secrets; Return of Documents and Property.
-----------------------------------------------
(a) Executive acknowledges that during the course of his employment he
will receive secret, confidential and proprietary information ("Trade Secrets")
of Ascent and of other companies with which Ascent does business on a
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<PAGE>
confidential basis and that Executive will create and develop Trade Secrets for
the benefit of Ascent. Trade Secrets shall include, without limitation, (a)
literary, dramatic or other works, screenplays, stories, adaptations, scripts,
treatments, formats, "bibles," scenarios, characters, titles of any kind and any
rights therein, custom databases, "know-how," formulae, secret processes or
machines, inventions, computer programs (including documentation of such
programs) (collectively, "Technical Trade Secrets"), and (b) matters of a
business nature, such as customer data and proprietary information about costs,
profits, markets and sales, customer databases, and other information of a
similar nature to the extent not available to the public, and plans for future
development (collectively, "Business Trade Secrets"). All Trade Secrets
disclosed to or created by Executive shall be deemed to be the exclusive
property of Ascent (as the context may require). Executive acknowledges that
Trade Secrets have economic value to Ascent due to the fact that Trade Secrets
are not generally known to the public or the trade and that the unauthorized use
or disclosure of Trade Secrets is likely to be detrimental to the interests of
Ascent and its subsidiaries. Executive therefore agrees to hold in strict
confidence and not to disclose to any third party any Trade Secret acquired or
created or developed by Executive during the term of this Agreement except (i)
when Executive is required to use or disclose any Trade Secret in the proper
course of the Executive's rendition of services to Ascent hereunder, (ii) when
such Trade Secret becomes public knowledge other than through a breach of this
Agreement, or (iii) when Executive is required to disclose any Trade Secret
pursuant to any valid court order in which the Executive is compelled to
disclose such Trade Secret. The Executive shall notify Ascent immediately of any
such court order in order to enable Ascent to contest such order's validity. For
a period of two (2) years after termination of the Employment Period for all
Business Trade Secrets and for a period of five (5) years after termination of
the Employment Period for all Technical Trade Secrets, the Executive shall not
use or otherwise disclose Trade Secrets unless such information (x) becomes
public knowledge or is generally known in the entertainment or sports industry
among executives comparable to the Executive other than through a breach of this
Agreement, (y) is disclosed to the Executive by a third party who is entitled to
receive and disclose such Trade Secret, or (z) is required to be disclosed
pursuant to any valid court order, in which case the Executive shall notify
Ascent immediately of any such court order in order to enable Ascent to contest
such order's validity.
(b) Upon the effective date of notice of the Executive's or Ascent's
election to terminate this Agreement,
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<PAGE>
or at any time upon the request of Ascent, the Executive (or his heirs or
personal representatives) shall deliver to Ascent (i) all documents and
materials containing or otherwise relating to Trade Secrets or other information
relating to Ascent's business and affairs, and (ii) all documents, materials and
other property belonging to Ascent, which in either case are in the possession
or under the control of the Executive (or his heirs or personal
representatives). The Executive shall be entitled to keep his personal records
relating to Ascent's business and affairs except to the extent those contain
documents or materials described in clause (i) or (ii) of the preceding
sentence, in which case Executive may retain copies for his personal and
confidential use.
4. Discoveries and Works. All discoveries and works made or conceived by
---------------------
the Executive during his employment by Ascent pursuant to this Agreement,
jointly or with others, that relate to Ascent's activities ("Discoveries and
Works") shall be owned by Ascent. Discoveries and Works shall include, without
limitation, literary, dramatic or other works, screenplays, stories,
adaptations, scripts, treatments, formats, "bibles," scenarios, characters,
titles of any kind and any rights therein, other works of authorship,
inventions, computer programs (including documentation of such programs),
technical improvements, processes and drawings. The Executive shall (i)
promptly notify, make full disclosure to, and execute and deliver any documents
reasonably requested by, Ascent to evidence or better assure title to such
Discoveries and Works in Ascent, (ii) assist Ascent in obtaining or maintaining
for itself at its own expense United States and foreign copyrights, trade secret
protection or other protection of any and all such Discoveries and Works, and
(iii) promptly execute, whether during his employment by Ascent or thereafter,
all applications or other endorsements necessary or appropriate to maintain
copyright and other rights for Ascent and to protect their title thereto. Any
Discoveries and Works which, within sixty days after the termination of the
Executive's employment by Ascent, are made, disclosed, reduced to a tangible or
written form or description, or are reduced to practice by the Executive and
which pertain to work performed by the Executive while with Ascent and COMSAT,
shall, as between the Executive and Ascent and COMSAT, be presumed to have been
made during the Executive's employment by Ascent.
5. Termination. This Agreement shall remain in effect during the
-----------
Employment Period, and this Agreement and Executive's employment with Ascent may
be terminated only as follows:
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(a) By the Executive (an "Executive Election") at any time upon sixty
(60) days advance written notice to Ascent upon an "Executive Election Event"
(as defined below). In such event or if the Executive's employment is terminated
by Ascent without "cause" (as defined below), there will be no forfeiture,
penalty, reduction or other adverse effect upon any rights or interests relating
to any Fringe Benefits, including, without limitation, the SARs, the Options and
any other stock-based compensation, all of which will fully vest, to the extent
not previously vested, immediately upon such termination becoming effective and
final. Without limiting the foregoing, in the event of an Executive Election or
if the Executive's employment is terminated without "cause," the Executive shall
be entitled to receive the following benefits through the longer of (x) the
remainder of the Employment Period as if this Agreement had remained in effect
until the end of such five-year Employment Period and (y) three years following
the date of such termination (the "Duration Period"): (i) his then current Base
Salary; (ii) an Annual Bonus equal to fifty percent (50%) of his then current
Base Salary; and (iii) all other benefits provided pursuant to Sections 2(c) and
(d) of this Agreement. The Executive shall have no obligation to seek other
employment in the event of his termination pursuant to this paragraph (a), and
there shall be no offset against amounts due the Executive under this Agreement
on account of any remuneration attributable to any subsequent employment that he
may obtain. Ascent shall have the option at any time during the Duration Period
to pay to the Executive in a lump sum the amounts remaining under clauses (i)
and (ii) of this paragraph (a). If Ascent exercises such option, Ascent shall
have no further compensation payment obligations under clauses (i) and (ii)
above. Upon any termination of the Executive's employment under this Section
5(a), Ascent shall establish a "rabbi" trust, i.e., a trust for the benefit of
the Executive which is irrevocable by Ascent, but whose assets will be available
to Ascent's general creditors upon Ascent's insolvency, with terms and
provisions reasonably acceptable to the Executive, and shall contribute to such
trust an amount equal to the sum of all payments to be made to the Executive by
reason of such termination of employment, including, but not limited to, the
amounts set forth in Sections 5(a)(i), (ii) and (iii), and the amount which the
Executive would receive if he exercised all of his SARs, Options and stock-based
incentives on the date of his termination of employment. Ascent shall at all
times remain liable to carry out its obligations under this Agreement, but such
obligations may be satisfied with the assets of such trust distributed pursuant
to the terms of the trust, and any such distribution shall reduce Ascent's
obligations under this Agreement. In all circumstances of termination under this
Section 5(a), Ascent shall remain
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obligated under clause (iii) and all stock-based incentives(including the SARs
and Options) will remain exercisable for the maximum period provided in each
applicable grant.
An "Executive Election Event" shall be any of the following: (I) any
substantial reduction (except in connection with the termination of his
employment voluntarily by the Executive or by Ascent for "cause" as defined
below) by Ascent, without the Executive's express written consent, of his
responsibilities as Executive Vice President, Business Affairs of Ascent; (II)
any change in the reporting structure set forth in Section 1(b) above; (III) any
requirement that Executive perform material services of lesser stature than
those typically performed by the senior business affairs officer of comparable
companies; (IV) a "Change of Control Event" (as defined in Section 7(a) below);
provided that in such event, the amounts payable to the Executive under this
- --------
Section 5(a) will be contributed to the "rabbi" trust as provided above no later
than one day before such change of control becomes effective, whether or not the
Executive has given notice of termination at such time, and payable to the
Executive in a lump sum upon the effectiveness of his termination as a result of
a Change in Control Event; and provided, further, the Executive and the Company
-------- -------
shall explore alternatives to minimize any excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended as of the Effective Date (the
"Code") that would otherwise be payable; (V) any other material default of this
Agreement which continues for ten (10) business days following Ascent's receipt
of written notice from the Executive specifying the manner in which Ascent is in
default of this Agreement; (VI) the Board's requiring Executive to be based at
any office location other than the principal offices of Ascent, or the
relocation, without Executive's consent, of such principal offices to a location
outside the greater Denver area; or (VII) any purported termination of
Executive's employment otherwise than as expressly permitted by the Agreement.
(b) By Ascent at any time for "cause." For purposes of this Agreement,
Ascent shall have "cause" to terminate the Executive's employment hereunder upon
(i) the continued and deliberate failure of the Executive to perform his
material duties, in a manner substantially consistent with the manner reasonably
prescribed by the CEO or the Board and in accordance with the terms of this
Agreement (other than any such failure resulting from his incapacity due to
physical or mental illness), which failure continues for ten (10) business days
following the Executive's receipt of written notice from the CEO or the Board
specifying the manner in which the Executive is in default of his duties, (ii)
the engaging by
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the Executive in intentional serious misconduct that is materially and
demonstrably injurious to Ascent or its reputation, which misconduct, if it is
reasonably capable of being cured, is not cured by the Executive within ten (10)
business days following the Executive's receipt of written notice from the CEO
or the Board specifying the serious misconduct engaged in by the Executive,
(iii) the conviction of the Executive of commission of a felony involving a
crime of moral turpitude, whether or not such felony was committed in connection
with Ascent's business, or (iv) any material breach by the Executive of Section
8 hereof. If Ascent shall terminate the Executive's employment for "cause,"
there will be no forfeiture, penalty, reduction or other adverse effect upon any
vested rights or interests relating to any Fringe Benefits. In such event,
Ascent, in full satisfaction of all of Ascent's obligations under this Agreement
and in respect of the termination of the Executive's employment with Ascent,
shall pay the Executive his Base Salary, a prorated Annual Bonus and all other
compensation, benefits and reimbursement through the date of termination of his
employment, provided that the SARs, the Options and any other stock options
--------
granted to the Executive under the Ascent option or any successor plan shall
terminate three months after the date of termination of his employment for
"cause".
6. Disability; Death.
-----------------
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform substantially his duties by
reason of disability or impairment of health for at least six consecutive
calendar months, Ascent shall have the right to terminate this Agreement by
giving sixty (60) days written notice to the Executive to that effect, but only
if at the time such notice is given such disability or impairment is still
continuing. Following the expiration of the notice period, the Employment Period
shall terminate, and Ascent's payment obligations to the Executive under Section
2(a) and (b) shall terminate with the payment of the Executive's Base Salary for
the month in which the Employment Period terminates and a prorated Annual Bonus
through such month, and there will be no forfeiture, penalty, reduction or other
adverse effect upon any vested rights or interests relating to any Fringe
Benefits; provided that the SARs, the Options and any other stock options
--------
granted to the Executive under the Ascent option plan or any successor plan
shall become fully vested and shall terminate in accordance with their terms,
but in no event less than one year after such termination, notwithstanding the
limitations of Sections 2(d) and (e) of this Agreement. In the event of a
dispute as to whether the Executive is disabled within the meaning of this
paragraph (a), or the duration of any
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disability, either party may request a medical examination of the Executive by a
doctor appointed by the Chief of Staff of a hospital selected by mutual
agreement of the parties, or as the parties may otherwise agree, and the written
medical opinion of such doctor shall be conclusive and binding upon the parties
as to whether the Executive has become disabled and the date when such
disability arose. The cost of any such medical examinations shall be borne by
Ascent.
(b) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, Ascent shall pay to the Executive's estate his
Base Salary and a prorated Annual Bonus through the end of the month in which
the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that the SARs, the Options and any other stock
--------
options granted to the Executive under the Ascent option plan or any successor
plan shall become fully vested and shall terminate one year after the date of
termination of the Executive's employment for death, notwithstanding the
limitations of Section 2(d) and (e) of this Agreement.
(c) Nothing contained in this Section 6 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of Ascent which may be adopted by the Board.
7. Change of Control.
-----------------
(a) If, prior to the termination of the Employment Period, there is a
"Change of Control Event" (as hereinafter defined in this paragraph (a)), the
Executive shall have the right to exercise his Executive Election in accordance
with Section 5(a) by giving notice either prior to such Change of Control Event
becoming effective or up to 180 days following such Change of Control Event, but
termination pursuant to such notice shall not take effect in accordance with
Section 5(a) in any event prior to 120 days following such Change of Control
Event, provided, however, payment to the Executive shall be made as set forth in
Section 5(a)(IV). The expiration of such 180-day period shall not affect the
Executive's right to give notice under Section 5(a) with respect to any other
Executive Election Event. A "Change of Control Event" shall mean and include
either the occurrence of any of the following with respect to Ascent, or any of
the following becoming highly likely to occur, in the determination of the
Board: (i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
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as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this clause (i), the following acquisitions shall
not constitute a Change of Control: (1) any acquisition directly from the
Company, (2) any acquisition by the Company, (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (1), (2) and (3) of clause
(iii) below; or (ii) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or (iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (1) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
75% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be,
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(2) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (3) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or (iv) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(b) In the event that Ascent adopts any "change of control" provisions
applicable to any Ascent benefits plans, respectively, providing for the
accelerated vesting and/or payment of any benefits for its senior management
group, solely to the extent that such provisions give Executive greater rights
than those provided in paragraph (a) above, such better provisions shall apply
to the Executive to the same extent as other Ascent senior executives on a
favored nations basis with respect to the benefits affected by such Ascent
provisions, respectively.
8. Non-Competition.
---------------
(a) As an inducement for Ascent to enter into this Agreement, the
Executive agrees that for a period commencing as of the Effective Date and
running through the earlier of (i) the end of the Employment Period if the
Executive remains employed by Ascent for the entire Employment Period or (ii)
one year following termination of the Executive's employment by Ascent for
"cause" as defined in Section 5(b) hereof, or by the Executive for any reason
(other than an Executive Election Event, in which case the provisions of this
paragraph (a) shall not apply) (the "Non-Competition Period"), the Executive
shall not, without the prior written consent of the Board, 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
Ascent.
For the purpose of this Agreement, a business shall be considered to
be competitive with any business of Ascent only if such business is engaged in
providing services or
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products (i) substantially similar to (A) any service or product currently
provided by Ascent during the Employment Period; (B) any service or product
which directly evolves from or directly results from enhancements in the
ordinary course during the Non-Competition Period to the services or products
provided by Ascent as of the date hereof or during the Employment Period; or (C)
any future service or product of Ascent as to which the Executive materially and
substantially participated in the development or enhancement, and (ii) to
customers, distributors or clients served by Ascent during the Non-Competition
Period.
(b) Non-Solicitation of Employees. During the Non-Competition Period,
-----------------------------
the Executive will not (for his own benefit or for the benefit of any person or
entity other than Ascent) solicit, or assist any person or entity other than
Ascent to solicit, any officer, director, executive or employee (other than an
administrative or clerical employee) of Ascent to leave his or her employment.
(c) Reasonableness; Interpretation. The Executive acknowledges and
------------------------------
agrees, solely for purposes of determining the enforceability of this Section 8
(and not for purposes of determining the amount of money damages or for any
other reason), that (i) the markets served by Ascent 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 is linked to the term of the Employment Period and the
severance benefit provided for in Section 5(a); and (iii) the above covenants
are reasonable as an inducement to Ascent to enter into this Agreement, and the
parties expressly agree that such restrictions have been designed to be
reasonable and no greater than is required for the protection of Ascent. In the
event that the covenants in this Section 8 shall be determined by any court of
competent jurisdiction in any action to be unenforceable by reason of their
extending for too great a period of time or over too great a geographical area
or by reason of their being too extensive in any other respect, they shall be
interpreted to extend only over the maximum period of time for which they may be
enforceable, and/or over the maximum geographical area as to which they may be
enforceable and/or to the maximum extent in all other respects as to which they
may be enforceable, all as determined by such court in such action.
(d) Investment. Nothing in this Agreement shall be deemed to prohibit
-----------
the Executive from owning equity or debt investments in any corporation,
partnership or other entity which is competitive with Ascent, provided that such
--------
investments (i) are passive investments and constitute five
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percent (5%) 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 Board.
9. Indemnification; Liability Insurance. The Executive shall be entitled
------------------------------------
to indemnification and coverage under Ascent's liability insurance policy for
directors and officers to the same extent as other officers of Ascent. During
and after the term of employment, Ascent hereby agrees to indemnify and hold
Executive harmless against any and all claims arising from or in connection with
his employment by or service to Ascent to the full extent permitted by law and,
in connection therewith, to advance the expenses of Executive incurred in
defending against such claims subject to such limitations as may actually be
required by law.
10. Enforcement. The Executive acknowledges that a breach of the
-----------
covenants or provisions contained in Sections 3, 4 and 8 of this Agreement will
cause irreparable damage to Ascent, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive agrees that if the Executive breaches or
threatens to breach any of the covenants or provisions contained in Sections 3,
4 and 8 of this Agreement, in addition to any other remedy which may be
available at law or in equity, Ascent shall be entitled to seek specific
performance and injunctive relief.
11. Arbitration.
-----------
(a) Subject to Ascent's right to enforce Sections 3, 4 and 8 hereof by
an injunction issued by a court having jurisdiction (which right shall prevail
over and supersede the provisions of this Section 11), any dispute relating to
this Agreement, including the enforceability of this Section 11, arising between
the Executive and Ascent shall be settled by arbitration which shall be
conducted in Denver, Colorado, or any other location where the Executive then
resides at Ascent's request, before a single arbitrator in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA").
Within 90 days after the Effective Date, the parties shall mutually agree upon
three possible arbitrators, one of whom shall be selected by the AAA within 2
days after notice of a dispute to be arbitrated under this Section 11. The
parties shall instruct the arbitrator to use his or her best efforts to conclude
the arbitration within 60 days after notice of the dispute to AAA.
(b) The award of any such arbitrator shall be final. Judgment upon
such award may be entered by the
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prevailing party in any federal or state court sitting in Denver, Colorado or
any other location where the Executive then resides at Ascent's request.
(c) The parties will bear their own costs associated with arbitration
and will each pay one-half of the arbitration costs and fees of AAA; however,
the arbitrator may in his sole discretion determine that the costs of the
arbitration proceedings, including attorneys' fees, shall be paid entirely by
one party to the arbitration if the arbitrator determines that the other party
is the prevailing party in such arbitration.
12. Severability. Should any provision of this Agreement be determined to
------------
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Assignment. The Executive's rights and obligations under this
----------
Agreement shall not be assignable by the Executive. Ascent's rights and
obligations under this Agreement shall not be assignable by Ascent except as
incident to the transfer, by merger or otherwise, of all or substantially all of
the business of Ascent. In the event of any such assignment by Ascent, all
rights of Ascent hereunder shall inure to the benefit of the assignee.
14. Notices. All notices and other communications which are required or
-------
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice shall
be sent to:
If to Executive, addressed to:
Arthur M. Aaron
5911 E. Crestline Dr.
Greenwood Village, Colorado 80111
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If to Ascent, addressed to:
Ascent Entertainment Group, Inc.
1225 Seventeenth Street
Denver, Colorado 80202
Attention: David A. Holden
Telecopier No. (303) 308-0490
With a copy to:
Ascent Entertainment Group
1200 Seventeenth Street
Denver, Colorado 80202
Attention: David Ehrlich
Telecopier No. (303) 308-0489
16. Miscellaneous. This Agreement constitutes the entire agreement, and
-------------
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The validity, interpretation,
performance and enforcement of the Agreement shall be governed by the laws of
the State of Colorado. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ Arthur M. Aaron
--------------------------------
Arthur M. Aaron, Executive
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Charles M. Neinas
-----------------------------
Title: Chairman
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
This AMENDED AND RESTATED AGREEMENT originally made as of June 27, 1997 and
amended and restated as of January 25, 2000, by and between Ascent Entertainment
Group, Inc., a Delaware corporation ("Ascent" or the "Company"), and David A.
Holden, a resident of the State of Colorado(the "Executive").
WHEREAS, Ascent desires to employ the Executive as Executive Vice
President, Finance and Chief Financial Officer of Ascent, and the Executive
desires to accept such employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, Ascent and the Executive
agree as follows:
1. Employment; Duties.
------------------
(a) Employment and Employment Period. Ascent shall employ the
--------------------------------
Executive to serve as Executive Vice President, Finance and Chief Financial
Officer of Ascent or its successor entity for a period (the "Employment Period")
commencing on January 25, 2000 (the "Effective Date") and continuing thereafter
until June 27, 2003 unless terminated in accordance with the provisions of this
Agreement. Each 12 month period ending on the anniversary date of the Effective
Date is sometimes referred to herein as a "year of the Employment Period."
(b) Offices, Duties and Responsibilities. The Executive shall report
------------------------------------
directly to the chief executive officer of Ascent, if there is one (the "CEO")
and otherwise directly to the Board of Directors of Ascent (the "Board"). The
Executive shall have all duties and authority customarily accorded a chief
financial officer, and such other duties as determined by the CEO or the Board
from time to time.
(c) Devotion to Interests of Ascent. During the Employment Period,
-------------------------------
the Executive shall render his business services solely in the performance of
his duties hereunder. The Executive shall use his best efforts to promote the
interests and welfare of Ascent. Notwithstanding the foregoing, the Executive
shall be entitled to undertake such outside activities (e.g., charitable,
----
educational, personal interests, board of directors membership, and so forth,
that
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do not compete with the business of Ascent as do not unreasonably or materially
interfere with the performance of his duties hereunder as reasonably determined
by the Board in consultation with the Executive.
2. Compensation and Fringe Benefits.
--------------------------------
(a) Base Compensation. Ascent shall pay the Executive a base salary
-----------------
("Base Salary") at the rate of $250,000 per year during the Employment Period
with payments made in installments in accordance with Ascent's regular practice
for compensating executive personnel, provided that in no event shall such
--------
payments be made less frequently than twice per month. The Base Salary for the
Executive shall be reviewed each year during the Employment Period commencing
the second year of the Employment Period. Any Base Salary increases shall be
approved by the Board in its sole discretion.
(b) Bonus Compensation. The Executive will be eligible to receive
------------------
bonuses ("Annual Bonus") during the Employment Period in accordance with the
following parameters: (i) the target bonus for each year during the Employment
Period shall be 50% of Base Salary for achieving 100% of the target level for
the performance measures; and (ii) the performance measures, the relative weight
to be accorded each performance measure and the amount of bonus payable in
relation to the target bonus for achieving more or less than 100% of the target
level for the performance measures shall be determined for each year during the
Employment Period by the Compensation Committee after consultation with the
Board and the Executive.
(c) Fringe Benefits. The Executive also shall be entitled to
---------------
participate in group health, dental and disability insurance programs, and any
group profit sharing, deferred compensation, supplemental life insurance or
other benefit plans as are generally made available by Ascent to the senior
executives of Ascent on a favored nations basis. Such benefits shall include
reimbursement of documented expenses reasonably incurred in connection with
travel and entertainment related to Ascent's business and affairs, which shall
be deemed to include expenses related to Executive's membership in a Denver area
country club on substantially the same basis as paid by Ascent on the date
hereof. All benefits described in the foregoing sentence that are reportable as
earned or unearned income will be "grossed up" by Ascent in connection with
federal and state tax obligations to provide
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<PAGE>
Executive with appropriate net tax coverage so that the benefits received by the
Executive from the foregoing sentence shall be net of income and employment
taxes thereon. Ascent reserves the right to modify or terminate from time to
time the fringe benefits provided to the senior management group, provided that
--------
the fringe benefits provided to the Executive shall not be materially reduced on
an overall basis during the Employment Period.
(d) Stock Appreciation Rights. On June 27, 1997, Ascent granted to
-------------------------
Executive stock appreciation rights ("SARs"), exercisable only for cash, with
respect to 50,000 shares of Ascent's common stock, par value $0.01 per share,
each such SAR exercisable at the per-share price equal to $9.5250. The SARs
shall be exercisable by Executive according to the following schedule:
(i) 2,500 SARs on or after June 27, 1997;
(ii) an additional 2,500 SARs on or after April 1, 1998;
(iii) an additional 10,000 SARs on or after June 27, 1998;
(iv) an additional 5,000 SARs on or after April 1, 1999;
(v) an additional 10,000 SARs on or after June 27, 1999; and
(vi) an additional 20,000 SARs on or after June 27, 2000.
Notwithstanding the foregoing, 100% of the SARs shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "Change of Control Event" as defined in Section 7(a)
below, or upon the occurrence of any event that results in Ascent's Common Stock
no longer being traded on any of the New York Stock Exchange, American Stock
Exchange or NASDAQ National Market System (including, without limitation, as a
result of any so-called "going private" transaction with Ascent). Such SARs
shall be represented by a SAR agreement containing appropriate terms consistent
with the provisions of this Agreement. The SARs, to the extent they remain
unexercised, shall automatically and without further notice terminate and become
of no further force and effect only at the time of the earliest of the following
to occur:
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<PAGE>
(x) Three months after the date upon which a termination for cause by
Ascent (as provided in Section 5(b)) shall have become effective and final; or
(y) December 18, 2005.
In the event of any stock split, stock dividend, spin-off,
reclassification, recapitalization, merger, consolidation, subdivision,
combination or other change which affects the character or amount of Ascent's
common stock after the Effective Date and prior to the exercise and/or
expiration of all of the SARs, the number and exercise price of and/or the
formula for determining the value of such unissued or unexercised SARs shall be
adjusted in order to make such SARs, as nearly as may be practicable, equivalent
in nature and value to the SARs that would have existed had such change not
taken place. In addition, if Ascent adopts a stock-based incentive plan that in
Executive's sole judgment provides for any term(s) more favorable to the grantee
than any term(s) set forth above, Executive will be entitled to the benefit of
such more favorable term(s) with respect to the SARs, other than with respect to
the vesting schedule thereof, but in no event will any term(s) applicable to the
SARs be less favorable to Executive than those set forth above.
During the Employment Period, the Executive shall be granted additional
stock-based incentives as determined by the Compensation Committee in its sole
discretion. Notwithstanding any other provision of this Agreement except Section
5(b), the Compensation Committee may in its discretion provide that any stock-
based incentives granted to the Executive which have not vested prior to his
termination of employment shall continue to vest in accordance with their
original terms as if the Executive's employment had not terminated.
(e) Stock Options. Ascent hereby grants to Executive options
-------------
("Options") to purchase 100,000 shares of Ascent's common stock, par value $0.01
per share, each such Option exercisable at the per-share price equal to
$11.9063. The Options shall be exercisable by Executive according to the
following schedule:
(i) 50,000 Options on or after January 25, 2001;
(ii) an additional 50,000 Options on or after January 25, 2002.
4
<PAGE>
Notwithstanding the foregoing, 100% of the Options shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "Change of Control Event" as defined in Section 7(a)
below, or upon the occurrence of any event that results in Ascent's Common Stock
no longer being traded on any of the New York Stock Exchange, American Stock
Exchange or NASDAQ National Market System (including, without limitation, as a
result of any so-called "going private" transaction with Ascent). Such Options
shall be represented by a Option agreement containing appropriate terms
consistent with the provisions of this Agreement. The Options, to the extent
they remain unexercised, shall automatically and without further notice
terminate and become of no further force and effect only at the time of the
earliest of the following to occur:
(x) Three months after the date upon which a termination for cause by
Ascent (as provided in Section 5(b)) shall have become effective and final; or
(y) January 25, 2010.
In the event of any stock split, stock dividend, spin-off,
reclassification, recapitalization, merger, consolidation, subdivision,
combination or other change which affects the character or amount of Ascent's
common stock after the Effective Date and prior to the exercise and/or
expiration of all of the Options, the number and exercise price of and/or the
formula for determining the value of such unissued or unexercised Options shall
be adjusted in order to make such Options, as nearly as may be practicable,
equivalent in nature and value to the Options that would have existed had such
change not taken place. In addition, if Ascent adopts a stock-based incentive
plan that in Executive's sole judgment provides for any term(s) more favorable
to the grantee than any term(s) set forth above, Executive will be entitled to
the benefit of such more favorable term(s) with respect to the Options, other
than with respect to the vesting schedule thereof, but in no event will any
term(s) applicable to the Options be less favorable to Executive than those set
forth above.
During the Employment Period, the Executive may be granted additional
stock-based incentives as determined by the Compensation Committee in its sole
discretion. Notwithstanding any other provision of this Agreement except Section
5(b), the Compensation Committee may in its discretion
5
<PAGE>
provide that any stock-based incentives granted to the Executive which have not
vested prior to his termination of employment shall continue to vest in
accordance with their original terms as if the Executive's employment had not
terminated.
(f) Conflicting Provisions. Solely to the extent of any conflict
----------------------
between the provisions of this Agreement and the provisions of any agreement
between Executive, on the one hand, and Ascent and/or any of its affiliated or
related entities, on the other hand, relating to stock-based incentives
(including the SARs and the Options), life insurance, health insurance, any
other employee equity participation, profit sharing or retirement plan, group
health plan or other employee benefits (individually and collectively referred
to herein as the "Fringe Benefits"), the provisions of this Agreement will
control.
3. Trade Secrets; Return of Documents and Property.
-----------------------------------------------
(a) Executive acknowledges that during the course of his employment
he will receive secret, confidential and proprietary information ("Trade
Secrets") of Ascent and of other companies with which Ascent does business on a
confidential basis and that Executive will create and develop Trade Secrets for
the benefit of Ascent. Trade Secrets shall include, without limitation, (a)
literary, dramatic or other works, screenplays, stories, adaptations, scripts,
treatments, formats, "bibles," scenarios, characters, titles of any kind and any
rights therein, custom databases, "know-how," formulae, secret processes or
machines, inventions, computer programs (including documentation of such
programs) (collectively, "Technical Trade Secrets"), and (b) matters of a
business nature, such as customer data and proprietary information about costs,
profits, markets and sales, customer databases, and other information of a
similar nature to the extent not available to the public, and plans for future
development (collectively, "Business Trade Secrets"). All Trade Secrets
disclosed to or created by Executive shall be deemed to be the exclusive
property of Ascent (as the context may require). Executive acknowledges that
Trade Secrets have economic value to Ascent due to the fact that Trade Secrets
are not generally known to the public or the trade and that the unauthorized use
or disclosure of Trade Secrets is likely to be detrimental to the interests of
Ascent and its subsidiaries. Executive therefore agrees to hold in strict
confidence and not to disclose to any third party any Trade Secret acquired or
created or developed by Executive during
6
<PAGE>
the term of this Agreement except (i) when Executive is required to use or
disclose any Trade Secret in the proper course of the Executive's rendition of
services to Ascent hereunder, (ii) when such Trade Secret becomes public
knowledge other than through a breach of this Agreement, or (iii) when Executive
is required to disclose any Trade Secret pursuant to any valid court order in
which the Executive is compelled to disclose such Trade Secret. The Executive
shall notify Ascent immediately of any such court order in order to enable
Ascent to contest such order's validity. For a period of two (2) years after
termination of the Employment Period for all Business Trade Secrets and for a
period of five (5) years after termination of the Employment Period for all
Technical Trade Secrets, the Executive shall not use or otherwise disclose Trade
Secrets unless such information (x) becomes public knowledge or is generally
known in the entertainment or sports industry among executives comparable to the
Executive other than through a breach of this Agreement, (y) is disclosed to the
Executive by a third party who is entitled to receive and disclose such Trade
Secret, or (z) is required to be disclosed pursuant to any valid court order, in
which case the Executive shall notify Ascent immediately of any such court order
in order to enable Ascent to contest such order's validity.
(b) Upon the effective date of notice of the Executive's or Ascent's
election to terminate this Agreement, or at any time upon the request of Ascent,
the Executive (or his heirs or personal representatives) shall deliver to Ascent
(i) all documents and materials containing or otherwise relating to Trade
Secrets or other information relating to Ascent's business and affairs, and (ii)
all documents, materials and other property belonging to Ascent, which in either
case are in the possession or under the control of the Executive (or his heirs
or personal representatives). The Executive shall be entitled to keep his
personal records relating to Ascent's business and affairs except to the extent
those contain documents or materials described in clause (i) or (ii) of the
preceding sentence, in which case Executive may retain copies for his personal
and confidential use.
4. Discoveries and Works. All discoveries and works made or conceived by
---------------------
the Executive during his employment by Ascent pursuant to this Agreement,
jointly or with others, that relate to Ascent's activities ("Discoveries and
Works") shall be owned by Ascent. Discoveries and Works shall include, without
limitation, literary, dramatic or other
7
<PAGE>
works, screenplays, stories, adaptations, scripts, treatments, formats,
"bibles," scenarios, characters, titles of any kind and any rights therein,
other works of authorship, inventions, computer programs (including
documentation of such programs), technical improvements, processes and drawings.
The Executive shall (i) promptly notify, make full disclosure to, and execute
and deliver any documents reasonably requested by, Ascent to evidence or better
assure title to such Discoveries and Works in Ascent, (ii) assist Ascent in
obtaining or maintaining for itself at its own expense United States and foreign
copyrights, trade secret protection or other protection of any and all such
Discoveries and Works, and (iii) promptly execute, whether during his employment
by Ascent or thereafter, all applications or other endorsements necessary or
appropriate to maintain copyright and other rights for Ascent and to protect
their title thereto. Any Discoveries and Works which, within sixty days after
the termination of the Executive's employment by Ascent, are made, disclosed,
reduced to a tangible or written form or description, or are reduced to practice
by the Executive and which pertain to work performed by the Executive while with
Ascent shall, as between the Executive and Ascent, be presumed to have been made
during the Executive's employment by Ascent.
5. Termination. This Agreement shall remain in effect during the
-----------
Employment Period, and this Agreement and Executive's employment with Ascent may
be terminated only as follows:
(a) By the Executive (an "Executive Election") at any time upon sixty
(60) days advance written notice to Ascent upon an "Executive Election Event"
(as defined below). In such event or if the Executive's employment is terminated
by Ascent without "cause" (as defined below), there will be no forfeiture,
penalty, reduction or other adverse effect upon any rights or interests relating
to any Fringe Benefits, including, without limitation, the SARs, the Options and
any other stock-based compensation, all of which will fully vest, to the extent
not previously vested, immediately upon such termination becoming effective and
final. Without limiting the foregoing, in the event of an Executive Election or
if the Executive's employment is terminated without "cause," the Executive shall
be entitled to receive the following benefits through the longer of (x) the
remainder of the Employment Period as if this Agreement had remained in effect
until the end of such Employment Period and (y) three years following the date
of such termination (the "Duration Period"): (i) his
8
<PAGE>
then current Base Salary; (ii) an Annual Bonus equal to fifty percent (50%) of
his then current Base Salary; and (iii) all other benefits provided pursuant to
Sections 2(c) and (d) of this Agreement. The Executive shall have no obligation
to seek other employment in the event of his termination pursuant to this
paragraph (a), and there shall be no offset against amounts due the Executive
under this Agreement on account of any remuneration attributable to any
subsequent employment that he may obtain. Ascent shall have the option at any
time during the Duration Period to pay to the Executive in a lump sum the
amounts remaining under clauses (i) and (ii) of this paragraph (a). If Ascent
exercises such option, Ascent shall have no further compensation payment
obligations under clauses (i) and (ii) above. Upon any termination of the
Executive's employment under this Section 5(a), Ascent shall establish a "rabbi"
trust, i.e., a trust for the benefit of the Executive which is irrevocable by
Ascent, but whose assets will be available to Ascent's general creditors upon
Ascent's insolvency, with terms and provisions reasonably acceptable to the
Executive, and shall contribute to such trust an amount equal to the sum of all
payments to be made to the Executive by reason of such termination of
employment, including, but not limited to, the amounts set forth in Sections
5(a)(i), (ii) and (iii), and the amount which the Executive would receive if he
exercised all of his SARs, Options and stock-based incentives on the date of his
termination of employment. Ascent shall at all times remain liable to carry out
its obligations under this Agreement, but such obligations may be satisfied with
the assets of such trust distributed pursuant to the terms of the trust, and any
such distribution shall reduce Ascent's obligations under this Agreement. In all
circumstances of termination under this Section 5(a), Ascent shall remain
obligated under clause (iii) and all stock-based incentives(including the SARs
and Options) will remain exercisable for the maximum period provided in each
applicable grant.
An "Executive Election Event" shall be any of the following: (I) any
substantial reduction (except in connection with the termination of his
employment voluntarily by the Executive or by Ascent for "cause" as defined
below) by Ascent, without the Executive's express written consent, of his
responsibilities as Executive Vice President, Finance and Chief Financial
Officer of Ascent; (II) any change in the reporting structure set forth in
Section 1(b) above; (III) any requirement that Executive perform material
services of lesser stature than those typically performed by the principal
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financial officers of comparable companies; (IV) a "Change of Control Event" (as
defined in Section 7(a) below); provided that in such event, the amounts payable
--------
to the Executive under this Section 5(a) will be contributed to the "rabbi"
trust as provided above no later than one day before such change of control
becomes effective, whether or not the Executive has given notice of termination
at such time, and payable to the Executive in a lump sum upon the effectiveness
of his termination as a result of a Change in Control Event; and provided,
--------
further, the Executive and the Company shall explore alternatives to minimize
- -------
any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended as of the Effective Date (the "Code") that would otherwise be payable;
(V) any other material default of this Agreement which continues for ten (10)
business days following Ascent's receipt of written notice from the Executive
specifying the manner in which Ascent is in default of this Agreement; (VI) the
Board's requiring Executive to be based at any office location other than the
principal offices of Ascent, or the relocation, without Executive's consent, of
such principal offices to a location outside the greater Denver area; or (VII)
any purported termination of Executive's employment otherwise than as expressly
permitted by the Agreement.
(b) By Ascent at any time for "cause." For purposes of this Agreement,
Ascent shall have "cause" to terminate the Executive's employment hereunder upon
(i) the continued and deliberate failure of the Executive to perform his
material duties, in a manner substantially consistent with the manner reasonably
prescribed by the CFO and in accordance with the terms of this Agreement (other
than any such failure resulting from his incapacity due to physical or mental
illness), which failure continues for ten (10) business days following the
Executive's receipt of written notice from the CEO or the Board specifying the
manner in which the Executive is in default of his duties, (ii) the engaging by
the Executive in intentional serious misconduct that is materially and
demonstrably injurious to Ascent or its reputation, which misconduct, if it is
reasonably capable of being cured, is not cured by the Executive within ten (10)
business days following the Executive's receipt of written notice from the CEO
or the Board specifying the serious misconduct engaged in by the Executive,
(iii) the conviction of the Executive of commission of a felony involving a
crime of moral turpitude, whether or not such felony was committed in connection
with Ascent's business, or (iv) any material breach by the Executive of Section
8 hereof. If Ascent shall terminate the Executive's employment for "cause,"
there will be no forfeiture, penalty,
10
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reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits. In such event, Ascent, in full satisfaction of all of
Ascent's obligations under this Agreement and in respect of the termination of
the Executive's employment with Ascent, shall pay the Executive his Base Salary,
a prorated Annual Bonus and all other compensation, benefits and reimbursement
through the date of termination of his employment, provided that the SARs, the
--------
Options and any other stock options granted to the Executive under the Ascent
option or any successor plan shall terminate three months after the date of
termination of his employment for "cause".
6. Disability; Death.
-----------------
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform substantially his duties by
reason of disability or impairment of health for at least six consecutive
calendar months, Ascent shall have the right to terminate this Agreement by
giving sixty (60) days written notice to the Executive to that effect, but only
if at the time such notice is given such disability or impairment is still
continuing. Following the expiration of the notice period, the Employment Period
shall terminate, and Ascent's payment obligations to the Executive under Section
2(a) and (b) shall terminate with the payment of the Executive's Base Salary for
the month in which the Employment Period terminates and a prorated Annual Bonus
through such month, and there will be no forfeiture, penalty, reduction or other
adverse effect upon any vested rights or interests relating to any Fringe
Benefits; provided that the SARs, the Options and any other stock options
--------
granted to the Executive under the Ascent option plan or any successor plan
shall become fully vested and shall terminate in accordance with their terms,
but in no event less than one year after such termination, notwithstanding the
limitations of Sections 2(d) and (e) of this Agreement. In the event of a
dispute as to whether the Executive is disabled within the meaning of this
paragraph (a), or the duration of any disability, either party may request a
medical examination of the Executive by a doctor appointed by the Chief of Staff
of a hospital selected by mutual agreement of the parties, or as the parties may
otherwise agree, and the written medical opinion of such doctor shall be
conclusive and binding upon the parties as to whether the Executive has become
disabled and the date when such disability arose. The cost of any such medical
examinations shall be borne by Ascent.
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(b) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, Ascent shall pay to the Executive's estate his
Base Salary and a prorated Annual Bonus through the end of the month in which
the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that the SARs, the Options and any other stock
--------
options granted to the Executive under the Ascent option plan or any successor
plan shall become fully vested and shall terminate one year after the date of
termination of the Executive's employment for death, notwithstanding the
limitations of Sections 2(d) and (e) of this Agreement.
(c) Nothing contained in this Section 6 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of Ascent which may be adopted by the Board.
7. Change of Control.
-----------------
(a) If, prior to the termination of the Employment Period, there is a
"Change of Control Event" (as hereinafter defined in this paragraph (a)), the
Executive shall have the right to exercise his Executive Election in accordance
with Section 5(a)(IV) by giving notice either prior to such Change of Control
Event becoming effective or up to 180 days following such Change of Control
Event, but termination pursuant to such notice shall not take effect in
accordance with Section 5(a) in any event prior to 120 days following such
Change of Control Event, however payment to the Executive shall be made as set
forth in Section 5(a)(IV). The expiration of such 180-day period shall not
affect the Executive's right to give notice under Section 5(a) with respect to
any other Executive Election Event. A "Change of Control Event" shall mean and
include either the occurrence of any of the following with respect to Ascent, or
any of the following becoming highly likely to occur, in the determination of
the Board: (i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting
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power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this clause (i), the
following acquisitions shall not constitute a Change of Control: (1) any
acquisition directly from the Company, (2) any acquisition by the Company, (3)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (4)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (1), (2) and (3) of clause (iii) below; or (ii) individuals who, as of
the date hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board; or (iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (1) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 75% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (2) no Person (excluding any corporation resulting from such
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Business Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (3) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or (iv) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(b) In the event that Ascent adopts any "change of control" provisions
applicable to any Ascent benefits plans, respectively, providing for the
accelerated vesting and/or payment of any benefits for its senior management
group, solely to the extent that such provisions give Executive greater rights
than those provided in paragraph (a) above, such better provisions shall apply
to the Executive to the same extent as other Ascent senior executives on a
favored nations basis with respect to the benefits affected by such Ascent
provisions, respectively.
8. Non-Competition.
---------------
(a) As an inducement for Ascent to enter into this Agreement, the
Executive agrees that for a period commencing as of the Effective Date and
running through the earlier of (i) the end of the Employment Period if the
Executive remains employed by Ascent for the entire Employment Period or (ii)
one year following termination of the Executive's employment by Ascent for
"cause" as defined in Section 5(b) hereof, or by the Executive for any reason
(other than an Executive Election Event, in which case the provisions of this
paragraph (a) shall not apply) (the "Non-Competition Period"), the Executive
shall not, without the prior written consent of the Board, 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
Ascent.
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For the purpose of this Agreement, a business shall be considered to
be competitive with any business of Ascent only if such business is engaged in
providing services or products (i) substantially similar to (A) any service or
product currently provided by Ascent during the Employment Period; (B) any
service or product which directly evolves from or directly results from
enhancements in the ordinary course during the Non-Competition Period to the
services or products provided by Ascent as of the date hereof or during the
Employment Period; or (C) any future service or product of Ascent as to which
the Executive materially and substantially participated in the development or
enhancement, and (ii) to customers, distributors or clients served by Ascent
during the Non-Competition Period.
(b) Non-Solicitation of Employees. During the Non-Competition Period,
-----------------------------
the Executive will not (for his own benefit or for the benefit of any person or
entity other than Ascent) solicit, or assist any person or entity other than
Ascent to solicit, any officer, director, executive or employee (other than an
administrative or clerical employee) of Ascent to leave his or her employment.
(c) Reasonableness; Interpretation. The Executive acknowledges and
------------------------------
agrees, solely for purposes of determining the enforceability of this Section 8
(and not for purposes of determining the amount of money damages or for any
other reason), that (i) the markets served by Ascent 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 is linked to the term of the Employment Period and the
severance benefit provided for in Section 5(a); and (iii) the above covenants
are reasonable as an inducement for Ascent to enter into this Agreement, and the
parties expressly agree that such restrictions have been designed to be
reasonable and no greater than is required for the protection of Ascent. In the
event that the covenants in this Section 8 shall be determined by any court of
competent jurisdiction in any action to be unenforceable by reason of their
extending for too great a period of time or over too great a geographical area
or by reason of their being too extensive in any other respect, they shall be
interpreted to extend only over the maximum period of time for which they may be
enforceable, and/or over the maximum geographical area as to which they may be
enforceable and/or to the maximum extent in all other
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respects as to which they may be enforceable, all as determined by such court in
such action.
(d) Investment. Nothing in this Agreement shall be deemed to prohibit
----------
the Executive from owning equity or debt investments in any corporation,
partnership or other entity which is competitive with Ascent, provided that such
--------
investments (i) are passive investments and constitute five percent (5%) 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 Board.
9. Indemnification; Liability Insurance. The Executive shall be entitled
------------------------------------
to indemnification and coverage under Ascent's liability insurance policy for
directors and officers to the same extent as other directors and officers of
Ascent. During and after the term of employment, Ascent hereby agrees to
indemnify and hold Executive harmless against any and all claims arising from or
in connection with his employment by or service to Ascent to the full extent
permitted by law and, in connection therewith, to advance the expenses of
Executive incurred in defending against such claims subject to such limitations
as may actually be required by law.
10. Enforcement. The Executive acknowledges that a breach of the
-----------
covenants or provisions contained in Sections 3, 4 and 8 of this Agreement will
cause irreparable damage to Ascent, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive agrees that if the Executive breaches or
threatens to breach any of the covenants or provisions contained in Sections 3,
4 and 8 of this Agreement, in addition to any other remedy which may be
available at law or in equity, Ascent shall be entitled to seek specific
performance and injunctive relief.
11. Arbitration.
-----------
(a) Subject to Ascent's right to enforce Sections 3, 4 and 8 hereof by
an injunction issued by a court having jurisdiction (which right shall prevail
over and supersede the provisions of this Section 11), any dispute relating to
this Agreement, including the enforceability of this Section 11, arising between
the Executive and Ascent shall be settled by arbitration which shall be
conducted in Denver, Colorado, or any other location where the Executive then
resides at Ascent's request, before a single arbitrator in accordance
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with the commercial arbitration rules of the American Arbitration Association
("AAA"). Within 90 days after the Effective Date, the parties shall mutually
agree upon three possible arbitrators, one of whom shall be selected by the AAA
within 2 days after notice of a dispute to be arbitrated under this Section 11.
The parties shall instruct the arbitrator to use his or her best efforts to
conclude the arbitration within 60 days after notice of the dispute to AAA.
(b) The award of any such arbitrator shall be final. Judgment upon
such award may be entered by the prevailing party in any federal or state court
sitting in Denver, Colorado or any other location where the Executive then
resides at Ascent's request.
(c) The parties will bear their own costs associated with arbitration
and will each pay one-half of the arbitration costs and fees of AAA; however,
the arbitrator may in his sole discretion determine that the costs of the
arbitration proceedings, including attorneys' fees, shall be paid entirely by
one party to the arbitration if the arbitrator determines that the other party
is the prevailing party in such arbitration.
12. Severability. Should any provision of this Agreement be determined to
------------
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Assignment. The Executive's rights and obligations under this
----------
Agreement shall not be assignable by the Executive. Ascent's rights and
obligations under this Agreement shall not be assignable by Ascent except as
incident to the transfer, by merger or otherwise, of all or substantially all of
the business of Ascent. In the event of any such assignment by Ascent, all
rights of Ascent hereunder shall inure to the benefit of the assignee.
14. Notices. All notices and other communications which are required or
-------
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
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transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice shall
be sent to:
If to Executive, addressed to:
David A. Holden
5220 South Flower Street
Littleton, Colorado 80123
If to Ascent, addressed to:
Ascent Entertainment Group, Inc.
1225 Seventeenth Street
Denver, Colorado 80202
Attention: Arthur M. Aaron
Telecopier No. (303) 308-0489
With a copy to:
Ascent Entertainment Group
1225 Seventeenth Street
Denver, Colorado 80202
Attention: David Ehrlich
Telecopier No. (303) 308-0489
16. Miscellaneous. This Agreement constitutes the entire agreement, and
-------------
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The validity, interpretation,
performance and enforcement of the Agreement shall be governed by the laws of
the State of Colorado. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ David A. Holden
----------------------------------
David A. Holden, Executive
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Charles M. Neinas
--------------------------------
Title: Chairman
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EMPLOYMENT AGREEMENT
--------------------
This AGREEMENT made as of January 25, 2000, by and between Ascent
Entertainment Group, Inc., a Delaware corporation ("Ascent" or the "Company"),
and David Ehrlich, a resident of the State of Colorado(the "Executive").
WHEREAS, Ascent desires to employ the Executive as Vice President and
General Counsel and Corporate Secretary of Ascent, and the Executive desires to
accept such employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, Ascent and the Executive
agree as follows:
1. Employment; Duties.
------------------
(a) Employment and Employment Period. Ascent shall employ the
--------------------------------
Executive to serve as Vice President and General Counsel and Corporate Secretary
of Ascent or its successor entity for a period (the "Employment Period")
commencing on January 25, 2000 (the "Effective Date") and continuing thereafter
for a term of two years until January 25, 2002 unless terminated in accordance
with the provisions of this Agreement. Each 12 month period ending on the
anniversary date of the Effective Date is sometimes referred to herein as a
"year of the Employment Period."
(b) Offices, Duties and Responsibilities. The Executive shall report
------------------------------------
directly to either the Executive Vice President, Business Affairs or, if there
is one, the Chief Executive Officer of Ascent (the "CEO"). The Executive shall
have all duties and authority customarily accorded a senior legal officer,
general counsel and corporate secretary.
(c) Devotion to Interests of Ascent. During the Employment Period, the
-------------------------------
Executive shall render his business services solely in the performance of his
duties hereunder. The Executive shall use his best efforts to promote the
interests and welfare of Ascent. Notwithstanding the foregoing, the Executive
shall be entitled to undertake such outside activities (e.g., charitable,
----
educational, personal interests, board of directors membership, and so forth,
that do not compete with the business of Ascent as do not unreasonably or
materially interfere with the performance of his duties hereunder as reasonably
determined by the CEO or the Board in consultation with the Executive.
2. Compensation and Fringe Benefits.
--------------------------------
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(a) Base Compensation. Ascent shall pay the Executive a base salary
-----------------
("Base Salary") at the rate of $150,000 per year during the Employment Period
with payments made in installments in accordance with Ascent's regular practice
for compensating executive personnel, provided that in no event shall such
--------
payments be made less frequently than twice per month. The Base Salary for the
Executive shall be reviewed each year during the Employment Period commencing
the second year of the Employment Period. Any Base Salary increases shall be
approved by the Board in its sole discretion.
(b) Bonus Compensation. The Executive will be eligible to receive
------------------
bonuses ("Annual Bonus") during the Employment Period in accordance with the
following parameters: (i) the target bonus for each year during the Employment
Period shall be 25% of Base Salary for achieving 100% of the target level for
the performance measures; and (ii) the performance measures, the relative weight
to be accorded each performance measure and the amount of bonus payable in
relation to the target bonus for achieving more or less than 100% of the target
level for the performance measures shall be determined for each year during the
Employment Period by the Compensation Committee.
(c) Fringe Benefits. The Executive also shall be entitled to
---------------
participate in group health, dental and disability insurance programs, and any
group profit sharing, deferred compensation, supplemental life insurance or
other benefit plans as are generally made available by Ascent to the senior
executives of Ascent on a favored nations basis. Such benefits shall include
reimbursement of documented expenses reasonably incurred in connection with
travel and entertainment related to Ascent's business and affairs. All benefits
described in the foregoing sentence that are reportable as earned or unearned
income will be "grossed up" by Ascent in connection with federal and state tax
obligations to provide Executive with appropriate net tax coverage so that the
benefits received by the Executive from the foregoing sentence shall be net of
income and employment taxes thereon. Ascent reserves the right to modify or
terminate from time to time the fringe benefits provided to the senior
management group, provided that the fringe benefits provided to the Executive
--------
shall not be materially reduced on an overall basis during the Employment
Period.
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(d) Stock Options. Ascent hereby grants to Executive as of the
-------------
Effective Date options to purchase ("Options") 40,000 shares of Ascent's common
stock, par value $0.01 per share, each such SAR exercisable at the per-share
price equal to $11.9063 per share. The Options shall be exercisable by Executive
according to the following schedule:
(i) 50% of the Options on or after January 25, 2001; and
(ii) 50% of the Options on or after January 25, 2002.
Notwithstanding the foregoing, 100% of the Options shall immediately vest and
become immediately exercisable, without any further action by the Executive,
upon the occurrence of any "Change of Control Event" as defined in Section 7(a)
below, or upon the occurrence of any event that results in Ascent's Common Stock
no longer being traded on any of the New York Stock Exchange, American Stock
Exchange or NASDAQ National Market System (including, without limitation, as a
result of any so-called "going private" transaction with Ascent). Such Options
shall be represented by an Option agreement containing appropriate terms
consistent with the provisions of this Agreement. The Options, to the extent
they remain unexercised, shall automatically and without further notice
terminate and become of no further force and effect only at the time of the
earliest of the following to occur:
(x) Three months after the date upon which a termination for cause by
Ascent (as provided in Section 5(b)) shall have become effective and final; or
(y) January 25, 2010.
In the event of any stock split, stock dividend, spin-off,
reclassification, recapitalization, merger, consolidation, subdivision,
combination or other change which affects the character or amount of Ascent's
common stock after the Effective Date and prior to the exercise and/or
expiration of all of the Options, the number and exercise price of and/or the
formula for determining the value of such unissued or unexercised Options shall
be adjusted in order to make such Options, as nearly as may be practicable,
equivalent in nature and value to the Options that would have existed had such
change not taken place. In addition, if Ascent adopts a stock-based incentive
plan that in Executive's sole judgment provides for any term(s) more favorable
to the grantee than any term(s) set forth above, Executive will be entitled to
the
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benefit of such more favorable term(s) with respect to the Options, other than
with respect to the vesting schedule thereof, but in no event will any term(s)
applicable to the Options be less favorable to Executive than those set forth
above.
During the Employment Period, the Executive may be granted additional
stock-based incentives as determined by the Compensation Committee in its sole
discretion. Notwithstanding any other provision of this Agreement except Section
5(b), the Compensation Committee may in its discretion provide that any stock-
based incentives granted to the Executive which have not vested prior to his
termination of employment shall continue to vest in accordance with their
original terms as if the Executive's employment had not terminated.
(e) Conflicting Provisions. Solely to the extent of any conflict
----------------------
between the provisions of this Agreement and the provisions of any agreement
between Executive, on the one hand, and Ascent and any of its affiliated or
related entities, on the other hand, relating to stock-based incentives
(including the Options), life insurance, health insurance, any other employee
equity participation, profit sharing or retirement plan, group health plan or
other employee benefits (individually and collectively referred to herein as the
"Fringe Benefits"), the provisions of this Agreement will control.
3. Trade Secrets; Return of Documents and Property.
-----------------------------------------------
(a) Executive acknowledges that during the course of his employment
he will receive secret, confidential and proprietary information ("Trade
Secrets") of Ascent and of other companies with which Ascent does business on a
confidential basis and that Executive will create and develop Trade Secrets for
the benefit of Ascent. Trade Secrets shall include, without limitation, (a)
literary, dramatic or other works, screenplays, stories, adaptations, scripts,
treatments, formats, "bibles," scenarios, characters, titles of any kind and any
rights therein, custom databases, "know-how," formulae, secret processes or
machines, inventions, computer programs (including documentation of such
programs) (collectively, "Technical Trade Secrets"), and (b) matters of a
business nature, such as customer data and proprietary information about costs,
profits, markets and sales, customer databases, and other information of a
similar nature to the
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extent not available to the public, and plans for future development
(collectively, "Business Trade Secrets"). All Trade Secrets disclosed to or
created by Executive shall be deemed to be the exclusive property of Ascent (as
the context may require). Executive acknowledges that Trade Secrets have
economic value to Ascent due to the fact that Trade Secrets are not generally
known to the public or the trade and that the unauthorized use or disclosure of
Trade Secrets is likely to be detrimental to the interests of Ascent and its
subsidiaries. Executive therefore agrees to hold in strict confidence and not to
disclose to any third party any Trade Secret acquired or created or developed by
Executive during the term of this Agreement except (i) when Executive is
required to use or disclose any Trade Secret in the proper course of the
Executive's rendition of services to Ascent hereunder, (ii) when such Trade
Secret becomes public knowledge other than through a breach of this Agreement,
or (iii) when Executive is required to disclose any Trade Secret pursuant to any
valid court order in which the Executive is compelled to disclose such Trade
Secret. The Executive shall notify Ascent immediately of any such court order in
order to enable Ascent to contest such order's validity. For a period of two (2)
years after termination of the Employment Period for all Business Trade Secrets
and for a period of five (5) years after termination of the Employment Period
for all Technical Trade Secrets, the Executive shall not use or otherwise
disclose Trade Secrets unless such information (x) becomes public knowledge or
is generally known in the entertainment or sports industry among executives
comparable to the Executive other than through a breach of this Agreement, (y)
is disclosed to the Executive by a third party who is entitled to receive and
disclose such Trade Secret, or (z) is required to be disclosed pursuant to any
valid court order, in which case the Executive shall notify Ascent immediately
of any such court order in order to enable Ascent to contest such order's
validity.
(b) Upon the effective date of notice of the Executive's or Ascent's
election to terminate this Agreement, or at any time upon the request of Ascent,
the Executive (or his heirs or personal representatives) shall deliver to Ascent
(i) all documents and materials containing or otherwise relating to Trade
Secrets or other information relating to Ascent's business and affairs, and (ii)
all documents, materials and other property belonging to Ascent, which in either
case are in the possession or under the control of the Executive (or his heirs
or personal representatives). The
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Executive shall be entitled to keep his personal records relating to Ascent's
business and affairs except to the extent those contain documents or materials
described in clause (i) or (ii) of the preceding sentence, in which case
Executive may retain copies for his personal and confidential use.
4. Discoveries and Works. All discoveries and works made or conceived by
---------------------
the Executive during his employment by Ascent pursuant to this Agreement,
jointly or with others, that relate to Ascent's activities ("Discoveries and
Works") shall be owned by Ascent. Discoveries and Works shall include, without
limitation, literary, dramatic or other works, screenplays, stories,
adaptations, scripts, treatments, formats, "bibles," scenarios, characters,
titles of any kind and any rights therein, other works of authorship,
inventions, computer programs (including documentation of such programs),
technical improvements, processes and drawings. The Executive shall (i)
promptly notify, make full disclosure to, and execute and deliver any documents
reasonably requested by, Ascent to evidence or better assure title to such
Discoveries and Works in Ascent, (ii) assist Ascent in obtaining or maintaining
for itself at its own expense United States and foreign copyrights, trade secret
protection or other protection of any and all such Discoveries and Works, and
(iii) promptly execute, whether during his employment by Ascent or thereafter,
all applications or other endorsements necessary or appropriate to maintain
copyright and other rights for Ascent and to protect their title thereto. Any
Discoveries and Works which, within sixty days after the termination of the
Executive's employment by Ascent, are made, disclosed, reduced to a tangible or
written form or description, or are reduced to practice by the Executive and
which pertain to work performed by the Executive while with Ascent and COMSAT,
shall, as between the Executive and Ascent and COMSAT, be presumed to have been
made during the Executive's employment by Ascent.
5. Termination. This Agreement shall remain in effect during the
-----------
Employment Period, and this Agreement and Executive's employment with Ascent may
be terminated only as follows:
(a) By the Executive (an "Executive Election") at any time upon sixty
(60) days advance written notice to Ascent upon an "Executive Election Event"
(as defined below). In such event or if the Executive's employment is terminated
by Ascent without "cause" (as defined below), there will be no
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forfeiture, penalty, reduction or other adverse effect upon any rights or
interests relating to any Fringe Benefits, all of which will fully vest, to the
extent not previously vested, immediately upon such termination becoming
effective and final. Without limiting the foregoing, in the event of an
Executive Election or if the Executive's employment is terminated without
"cause," the Executive shall be entitled to receive the following benefits for a
period equal to eighteen months following the date of such termination (the
"Duration Period"): (i) his then current Base Salary; (ii) an Annual Bonus equal
to twenty-five percent (25%) of his then current Base Salary; and (iii) all
other benefits provided pursuant to Sections 2(c) and (d) of this Agreement. The
Executive shall have no obligation to seek other employment in the event of his
termination pursuant to this paragraph (a), and there shall be no offset against
amounts due the Executive under this Agreement on account of any remuneration
attributable to any subsequent employment that he may obtain. Ascent shall have
the option at any time during the Duration Period to pay to the Executive in a
lump sum the amounts remaining under clauses (i) and (ii) of this paragraph (a).
If Ascent exercises such option, Ascent shall have no further compensation
payment obligations under clauses (i) and (ii) above. Upon any termination of
the Executive's employment under this Section 5(a), Ascent shall establish a
"rabbi" trust, i.e., a trust for the benefit of the Executive which is
irrevocable by Ascent, but whose assets will be available to Ascent's general
creditors upon Ascent's insolvency, with terms and provisions reasonably
acceptable to the Executive, and shall contribute to such trust an amount equal
to the sum of all payments to be made to the Executive by reason of such
termination of employment, including, but not limited to, the amounts set forth
in Sections 5(a)(i), (ii) and (iii), and the amount which the Executive would
receive if he exercised all of his Options and stock-based incentives on the
date of his termination of employment. Ascent shall at all times remain liable
to carry out its obligations under this Agreement, but such obligations may be
satisfied with the assets of such trust distributed pursuant to the terms of the
trust, and any such distribution shall reduce Ascent's obligations under this
Agreement. In all circumstances of termination under this Section 5(a), Ascent
shall remain obligated under clause (iii) and all stock-based
incentives(including the Options) will remain exercisable for the maximum period
provided in each applicable grant.
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An "Executive Election Event" shall be any of the following: (I) any
substantial reduction (except in connection with the termination of his
employment voluntarily by the Executive or by Ascent for "cause" as defined
below) by Ascent, without the Executive's express written consent, of his
responsibilities as Vice President and General Counsel of Ascent; (II) any
change in the reporting structure set forth in Section 1(b) above; (III) any
requirement that Executive perform material services of lesser stature than
those typically performed by the general counsel of comparable companies; (IV) a
"Change of Control Event" (as defined in Section 7(a) below); provided that in
--------
such event, the amounts payable to the Executive under this Section 5(a) will be
contributed to the "rabbi" trust as provided above no later than one day before
such change of control becomes effective, whether or not the Executive has given
notice of termination at such time, and payable to the Executive in a lump sum
upon the effectiveness of his termination as a result of a Change in Control
Event; and provided, further, the Executive and the Company shall explore
-------- -------
alternatives to minimize any excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended as of the Effective Date (the "Code") that
would otherwise be payable; (V) any other material default of this Agreement
which continues for ten (10) business days following Ascent's receipt of written
notice from the Executive specifying the manner in which Ascent is in default of
this Agreement; (VI) the Board's requiring Executive to be based at any office
location other than the principal offices of Ascent, or the relocation, without
Executive's consent, of such principal offices to a location outside the greater
Denver area; or (VII) any purported termination of Executive's employment
otherwise than as expressly permitted by the Agreement.
(b) By Ascent at any time for "cause." For purposes of this Agreement,
Ascent shall have "cause" to terminate the Executive's employment hereunder upon
(i) the continued and deliberate failure of the Executive to perform his
material duties, in a manner substantially consistent with the manner reasonably
prescribed by the Executive Vice President, Business Affairs or CEO and in
accordance with the terms of this Agreement (other than any such failure
resulting from his incapacity due to physical or mental illness), which failure
continues for ten (10) business days following the Executive's receipt of
written notice from the Executive Vice President, Business Affairs or CEO
specifying the manner in which the Executive is in default of his duties, (ii)
the
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engaging by the Executive in intentional serious misconduct that is materially
and demonstrably injurious to Ascent or its reputation, which misconduct, if it
is reasonably capable of being cured, is not cured by the Executive within ten
(10) business days following the Executive's receipt of written notice from the
Executive Vice President, Business Affairs or CEO specifying the serious
misconduct engaged in by the Executive, (iii) the conviction of the Executive of
commission of a felony involving a crime of moral turpitude, whether or not such
felony was committed in connection with Ascent's business, or (iv) any material
breach by the Executive of Section 8 hereof. If Ascent shall terminate the
Executive's employment for "cause," there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits. In such event, Ascent, in full satisfaction of all of
Ascent's obligations under this Agreement and in respect of the termination of
the Executive's employment with Ascent, shall pay the Executive his Base Salary,
a prorated Annual Bonus and all other compensation, benefits and reimbursement
through the date of termination of his employment, provided that the Options and
--------
any other stock options granted to the Executive under the Ascent option or any
successor plan shall terminate three months after the date of termination of his
employment for "cause".
6. Disability; Death.
-----------------
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform substantially his duties by
reason of disability or impairment of health for at least six consecutive
calendar months, Ascent shall have the right to terminate this Agreement by
giving sixty (60) days written notice to the Executive to that effect, but only
if at the time such notice is given such disability or impairment is still
continuing. Following the expiration of the notice period, the Employment Period
shall terminate, and Ascent's payment obligations to the Executive under Section
2(a) and (b) shall terminate with the payment of the Executive's Base Salary for
the month in which the Employment Period terminates and a prorated Annual Bonus
through such month, and there will be no forfeiture, penalty, reduction or other
adverse effect upon any vested rights or interests relating to any Fringe
Benefits; provided that the Options and any other stock options granted to the
--------
Executive under the Ascent option plan or any successor plan shall become fully
vested and shall terminate in accordance
9
<PAGE>
with their terms, but in no event less than one year after such termination,
notwithstanding the limitations of Section 2(d) of this Agreement. In the event
of a dispute as to whether the Executive is disabled within the meaning of this
paragraph (a), or the duration of any disability, either party may request a
medical examination of the Executive by a doctor appointed by the Chief of Staff
of a hospital selected by mutual agreement of the parties, or as the parties may
otherwise agree, and the written medical opinion of such doctor shall be
conclusive and binding upon the parties as to whether the Executive has become
disabled and the date when such disability arose. The cost of any such medical
examinations shall be borne by Ascent.
(b) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, Ascent shall pay to the Executive's estate his
Base Salary and a prorated Annual Bonus through the end of the month in which
the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that the Options and any other stock options
--------
granted to the Executive under the Ascent option plan or any successor plan
shall become fully vested and shall terminate one year after the date of
termination of the Executive's employment for death, notwithstanding the
limitations of Section 2(d) of this Agreement.
(c) Nothing contained in this Section 6 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of Ascent which may be adopted by the Board.
7. Change of Control.
-----------------
(a) If, prior to the termination of the Employment Period, there is a
"Change of Control Event" (as hereinafter defined in this paragraph (a)), the
Executive shall have the right to exercise his Executive Election in accordance
with Section 5(a) by giving notice either prior to such Change of Control Event
becoming effective or up to 180 days following such Change of Control Event, but
termination pursuant to such notice shall not take effect in accordance with
Section 5(a) in any event prior to 120 days following such Change of Control
Event, provided, however, payment to the Executive shall be made as set forth in
Section 5(a)(IV). The
10
<PAGE>
expiration of such 180-day period shall not affect the Executive's right to give
notice under Section 5(a) with respect to any other Executive Election Event. A
"Change of Control Event" shall mean and include either the occurrence of any of
the following with respect to Ascent, or any of the following becoming highly
likely to occur, in the determination of the Board: (i) the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the then outstanding shares
of common stock of the Company (the "Outstanding Company Common Stock") or (B)
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that for purposes
of this clause (i), the following acquisitions shall not constitute a Change of
Control: (1) any acquisition directly from the Company, (2) any acquisition by
the Company, (3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (4) any acquisition by any corporation pursuant to a transaction
which complies with clauses (1), (2) and (3) of clause (iii) below; or (ii)
individuals who, as of the date hereof, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or (iii) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (a "Business Combination"), in
each case, unless, following such Business Combination, (1) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
11
<PAGE>
Combination beneficially own, directly or indirectly, more than 75% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, (2) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business Combination and (3) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or (iv) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(b) In the event that Ascent adopts any "change of control" provisions
applicable to any Ascent benefits plans, respectively, providing for the
accelerated vesting and/or payment of any benefits for its senior management
group, solely to the extent that such provisions give Executive greater rights
than those provided in paragraph (a) above, such better provisions shall apply
to the Executive to the same extent as other Ascent senior executives on a
favored nations basis with respect to the benefits affected by such Ascent
provisions, respectively.
8. Non-Competition.
---------------
(a) As an inducement for Ascent to enter into this Agreement, the
Executive agrees that for a period commencing as of the Effective Date and
running through the earlier of (i) the end of the Employment Period if the
Executive remains
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employed by Ascent for the entire Employment Period or (ii) one year following
termination of the Executive's employment by Ascent for "cause" as defined in
Section 5(b) hereof, or by the Executive for any reason (other than an Executive
Election Event, in which case the provisions of this paragraph (a) shall not
apply) (the "Non-Competition Period"), the Executive shall not, without the
prior written consent of the Board, 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 Ascent.
For the purpose of this Agreement, a business shall be considered to
be competitive with any business of Ascent only if such business is engaged in
providing services or products (i) substantially similar to (A) any service or
product currently provided by Ascent during the Employment Period; (B) any
service or product which directly evolves from or directly results from
enhancements in the ordinary course during the Non-Competition Period to the
services or products provided by Ascent as of the date hereof or during the
Employment Period; or (C) any future service or product of Ascent as to which
the Executive materially and substantially participated in the development or
enhancement, and (ii) to customers, distributors or clients served by Ascent
during the Non-Competition Period.
(b) Non-Solicitation of Employees. During the Non-Competition Period,
-----------------------------
the Executive will not (for his own benefit or for the benefit of any person or
entity other than Ascent) solicit, or assist any person or entity other than
Ascent to solicit, any officer, director, executive or employee (other than an
administrative or clerical employee) of Ascent to leave his or her employment.
(c) Reasonableness; Interpretation. The Executive acknowledges and
------------------------------
agrees, solely for purposes of determining the enforceability of this Section 8
(and not for purposes of determining the amount of money damages or for any
other reason), that (i) the markets served by Ascent 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 is linked to the term of the Employment Period and the
severance benefit provided for in Section 5(a); and (iii) the
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<PAGE>
above covenants are reasonable as an inducement to Ascent to enter into this
Agreement, and the parties expressly agree that such restrictions have been
designed to be reasonable and no greater than is required for the protection of
Ascent. In the event that the covenants in this Section 8 shall be determined by
any court of competent jurisdiction in any action to be unenforceable by reason
of their extending for too great a period of time or over too great a
geographical area or by reason of their being too extensive in any other
respect, they shall be interpreted to extend only over the maximum period of
time for which they may be enforceable, and/or over the maximum geographical
area as to which they may be enforceable and/or to the maximum extent in all
other respects as to which they may be enforceable, all as determined by such
court in such action.
(d) Investment. Nothing in this Agreement shall be deemed to prohibit
----------
the Executive from owning equity or debt investments in any corporation,
partnership or other entity which is competitive with Ascent, provided that such
--------
investments (i) are passive investments and constitute five percent (5%) 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 Board.
9. Indemnification; Liability Insurance. The Executive shall be entitled
------------------------------------
to indemnification and coverage under Ascent's liability insurance policy for
directors and officers to the same extent as other officers of Ascent. During
and after the term of employment, Ascent hereby agrees to indemnify and hold
Executive harmless against any and all claims arising from or in connection with
his employment by or service to Ascent to the full extent permitted by law and,
in connection therewith, to advance the expenses of Executive incurred in
defending against such claims subject to such limitations as may actually be
required by law.
10. Enforcement. The Executive acknowledges that a breach of the
-----------
covenants or provisions contained in Sections 3, 4 and 8 of this Agreement will
cause irreparable damage to Ascent, the exact amount of which will be difficult
to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive agrees that if the Executive breaches or
threatens to breach any of the covenants or provisions contained in Sections 3,
4 and 8 of this Agreement, in addition to any other remedy which may be
14
<PAGE>
available at law or in equity, Ascent shall be entitled to seek specific
performance and injunctive relief.
11. Arbitration.
-----------
(a) Subject to Ascent's right to enforce Sections 3, 4 and 8 hereof by
an injunction issued by a court having jurisdiction (which right shall prevail
over and supersede the provisions of this Section 11), any dispute relating to
this Agreement, including the enforceability of this Section 11, arising between
the Executive and Ascent shall be settled by arbitration which shall be
conducted in Denver, Colorado, or any other location where the Executive then
resides at Ascent's request, before a single arbitrator in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA").
Within 90 days after the Effective Date, the parties shall mutually agree upon
three possible arbitrators, one of whom shall be selected by the AAA within 2
days after notice of a dispute to be arbitrated under this Section 11. The
parties shall instruct the arbitrator to use his or her best efforts to conclude
the arbitration within 60 days after notice of the dispute to AAA.
(b) The award of any such arbitrator shall be final. Judgment upon
such award may be entered by the prevailing party in any federal or state court
sitting in Denver, Colorado or any other location where the Executive then
resides at Ascent's request.
(c) The parties will bear their own costs associated with arbitration
and will each pay one-half of the arbitration costs and fees of AAA; however,
the arbitrator may in his sole discretion determine that the costs of the
arbitration proceedings, including attorneys' fees, shall be paid entirely by
one party to the arbitration if the arbitrator determines that the other party
is the prevailing party in such arbitration.
12. Severability. Should any provision of this Agreement be determined to
------------
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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<PAGE>
13. Assignment. The Executive's rights and obligations under this
----------
Agreement shall not be assignable by the Executive. Ascent's rights and
obligations under this Agreement shall not be assignable by Ascent except as
incident to the transfer, by merger or otherwise, of all or substantially all of
the business of Ascent. In the event of any such assignment by Ascent, all
rights of Ascent hereunder shall inure to the benefit of the assignee.
14. Notices. All notices and other communications which are required or
-------
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice shall
be sent to:
If to Executive, addressed to:
David Ehrlich
758 Franklin Street
Denver, Colorado 80218
If to Ascent, addressed to:
Ascent Entertainment Group, Inc.
1225 Seventeenth Street
Denver, Colorado 80202
Attention: Arthur M. Aaron
Telecopier No. (303) 308-0489
With a copy to:
Ascent Entertainment Group
1225 Seventeenth Street
Denver, Colorado 80202
Attention: David Holden
Telecopier No. (303) 308-0490
15. Miscellaneous. This Agreement constitutes the entire agreement, and
-------------
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment,
16
<PAGE>
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The validity,
interpretation, performance and enforcement of the Agreement shall be governed
by the laws of the State of Colorado. The headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ David Ehrlich
-----------------------------------
David Ehrlich, Executive
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ David A. Holden
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
17
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
This AGREEMENT made as of January 7, 2000, by and between On Command
Corporation, a Delaware corporation (the "Company"), and Allan Goodson (the
"Executive").
WHEREAS, the Company desires to employ the Executive as Executive Vice
President and Chief Operating Officer, and the Executive desires to accept such
employment, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
made herein, and intending to be legally bound hereby, The Company and the
Executive agree as follows:
1. Employment; Duties.
------------------
(a) Employment and Employment Period. The Company shall employ the
--------------------------------
Executive to serve as Executive Vice President and Chief Operating Officer of
the Company or its successor entity for a period (the "Employment Period")
commencing on January 7, 2000 (the "Effective Date") and continuing thereafter
for a term of two years until January 7, 2002 unless terminated in accordance
with the provisions of this Agreement. Each 12 month period ending on the
anniversary date of the Effective Date is sometimes referred to herein as a
"year of the Employment Period."
(b) Offices, Duties and Responsibilities. The Executive shall report
------------------------------------
to the President or Chief Executive Officer of the Company (the "CEO"). The
Executive shall have all duties and authority customarily accorded a chief
operating officer.
(c) Devotion to Interests of The Company. During the Employment
------------------------------------
Period, the Executive shall render his business services solely in the
performance of his duties hereunder. The Executive shall use his best efforts to
promote the interests and welfare of the Company. Notwithstanding the foregoing,
the Executive shall be entitled to undertake such outside activities (e.g.,
charitable, educational, personal interests, board of directors membership, and
so forth, that do not compete with the business of the Company as do not
unreasonably or materially interfere with the performance of his duties
hereunder as reasonably determined by the CEO in consultation with the
Executive.
2. Compensation and Fringe Benefits.
--------------------------------
<PAGE>
(a) Base Compensation. The Company shall pay the Executive a base
-----------------
salary ("Base Salary") at the rate of $300,000 per year during the Employment
Period with payments made in installments in accordance with the Company's
regular practice for compensating executive personnel.
(b) Bonus Compensation. The Executive will be eligible to receive
------------------
bonuses ("Annual Bonus") during the Employment Period in accordance with the
following parameters: (i) the target bonus for each year during the Employment
Period shall be 70% of Base Salary for achieving 100% of the target level for
the performance measures; and (ii) the performance measures, the relative weight
to be accorded each performance measure and the amount of bonus payable in
relation to the target bonus for achieving more or less than 100% of the target
level for the performance measures shall be determined for each year during the
Employment Period by the Compensation Committee of the Company's Board of
Directors after consultation with the CEO and the Executive.
(c) Fringe Benefits. The Executive also shall be entitled to
---------------
participate in group health, dental and disability insurance programs, and any
group profit sharing, deferred compensation, supplemental life insurance or
other benefit plans as are generally made available by the Company to the senior
executives of the Company. Such benefits shall include reimbursement of
documented expenses reasonably incurred in connection with travel and
entertainment related to the Company's business and affairs. The Company
reserves the right to modify or terminate from time to time the fringe benefits
provided to the senior management group.
(d) Stock Options. The Company hereby grants to the Executive as of
-------------
the Effective Date options (the "Options") to purchase 100,000 shares of the
Company's common stock, par value $0.01 per share, exercisable at the per-share
price equal to $15.90625 (the "Exercise Price"). The Options shall be
exercisable by Executive according to the following schedule: (i) 50,000 of the
Options after January 7, 2001; and (ii) 50,000 of the Options after January 7,
2002; provided that if the Executive's employment is terminated by the Company
at any time prior to January 7,
2
<PAGE>
2001 other than for "cause" (as provided in Section 5(b)), then 50,000 Options
will become exercisable and the remaining 50,000 Options shall be cancelled. The
Options, to the extent they remain unexercised, shall automatically and without
further notice terminate and become of no further force and effect only at the
time of the earliest of the following to occur: (x) Three months after the date
upon which a termination for cause by the Company (as provided in Section 5(b))
or a termination by the Executive other than pursuant to an Executive Election
Event (as provided in Section 5(a)) shall have become effective and final; or
(y) January 7, 2010.
(e) Conflicting Provisions. Solely to the extent of any conflict
----------------------
between the provisions of this Agreement and the provisions of any agreement
between Executive, on the one hand, and the Company and any of its affiliated or
related entities, on the other hand, relating to stock-based incentives
(including the Options), life insurance, health insurance, any other employee
equity participation, profit sharing or retirement plan, group health plan or
other employee benefits (individually and collectively referred to herein as the
"Fringe Benefits"), the provisions of this Agreement will control.
3. Trade Secrets; Return of Documents and Property. (a) Executive
-----------------------------------------------
acknowledges that during the course of his employment he will receive secret,
confidential and proprietary information ("Trade Secrets") of the Company and of
other companies with which the Company does business on a confidential basis and
that Executive will create and develop Trade Secrets for the benefit of the
Company. Trade Secrets shall include, without limitation, custom databases,
"know-how," formulae, secret processes or machines, inventions, computer
programs (including documentation of such programs), customer data and
proprietary information about costs, profits, markets and sales, customer
databases, and other information of a similar nature to the extent not available
to the public, and plans for future development. All Trade Secrets disclosed to
or created by Executive shall be deemed to be the exclusive property of the
Company (as the context may require). Executive acknowledges that Trade Secrets
have economic value to the Company due to the fact that Trade Secrets are not
generally known to the public or the trade and that the unauthorized use or
disclosure of Trade Secrets is likely to be detrimental to the interests of the
Company and its subsidiaries. Executive therefore agrees to hold in strict
confidence and not to disclose to any third party any Trade Secret acquired or
created or developed by Executive during the term of this Agreement except (i)
when Executive is required to use or disclose any Trade Secret in the proper
course of the Executive's
3
<PAGE>
rendition of services to the Company hereunder, (ii) when such Trade Secret
becomes public knowledge other than through a breach of this Agreement, or (iii)
when Executive is required to disclose any Trade Secret pursuant to any valid
court order in which the Executive is compelled to disclose such Trade Secret.
The Executive shall notify the Company immediately of any such court order in
order to enable the Company to contest such order's validity. The Executive
shall not use or otherwise disclose Trade Secrets unless such information (x)
becomes public knowledge or is generally known in the entertainment or sports
industry among executives comparable to the Executive other than through a
breach of this Agreement, (y) is disclosed to the Executive by a third party who
is entitled to receive and disclose such Trade Secret, or (z) is required to be
disclosed pursuant to any valid court order, in which case the Executive shall
notify the Company immediately of any such court order in order to enable the
Company to contest such order's validity.
(b) Upon the effective date of notice of the Executive's or the
Company's election to terminate this Agreement, or at any time upon the request
of the Company, the Executive (or his heirs or personal representatives) shall
deliver to the Company (i) all documents and materials containing or otherwise
relating to Trade Secrets or other information relating to the Company's
business and affairs, and (ii) all documents, materials and other property
belonging to the Company, which in either case are in the possession or under
the control of the Executive (or his heirs or personal representatives). The
Executive shall be entitled to keep his personal records relating to the
Company's business and affairs except to the extent those contain documents or
materials described in clause (i) or (ii) of the preceding sentence, in which
case Executive may retain copies for his personal and confidential use.
4. Discoveries and Works. All discoveries and works made or conceived by
---------------------
the Executive during his employment by the Company pursuant to this Agreement,
jointly or with others, that relate to the Company's activities ("Discoveries
and Works") shall be owned by the Company. Discoveries and Works shall include,
without limitation, works of authorship, inventions, computer programs
(including documentation of such programs), technical improvements, processes
and drawings. The Executive shall
4
<PAGE>
(i) promptly notify, make full disclosure to, and execute and deliver any
documents reasonably requested by, the Company to evidence or better assure
title to such Discoveries and Works in the Company, (ii) assist the Company in
obtaining or maintaining for itself at its own expense United States and foreign
copyrights, trade secret protection or other protection of any and all such
Discoveries and Works, and (iii) promptly execute, whether during his employment
by the Company or thereafter, all applications or other endorsements necessary
or appropriate to maintain copyright and other rights for the Company and to
protect their title thereto. Any Discoveries and Works which, within sixty days
after the termination of the Executive's employment by the Company, are made,
disclosed, reduced to a tangible or written form or description, or are reduced
to practice by the Executive and which pertain to work performed by the
Executive while with the Company, shall, as between the Executive and the
Company, be presumed to have been made during the Executive's employment by the
Company.
5. Termination. This Agreement and Executive's employment with the
-----------
Company may be terminated as follows:
(a) By the Executive either at any time for any reason upon ninety
(90) days advance written notice to the Company, or upon an "Executive Election
Event" (as defined below) upon thirty (30) days advance written notice to the
Company. Upon an Executive Election Event or if the Executive's employment is
terminated by the Company without "cause" (as defined below), the Executive
shall be entitled to receive the following benefits through the longer of (x)
the remainder of the Employment Period as if this Agreement had remained in
effect until the end of such two-year Employment Period and (y) one year
following the date of such termination (the "Duration Period"): (i) his Base
Salary; (ii) an Annual Bonus equal to seventy percent (70%) of one year's Base
Salary; and (iii) all other benefits provided pursuant to Sections 2(c) of this
Agreement. The Executive shall have no obligation to seek other employment in
the event of his termination pursuant to this paragraph (a), and there shall be
no offset against amounts due the Executive under this Agreement on account of
any remuneration attributable to any subsequent employment that he may obtain.
The Company shall have the option at any time during the Duration Period to pay
to the Executive in a lump sum the amounts remaining under clauses (i) and (ii)
of this paragraph (a). If the Company exercises such option, the Company shall
have no further compensation payment obligations under clauses (i) and (ii)
above.
5
<PAGE>
An "Executive Election Event" shall be any any substantial reduction
(except in connection with the termination of his employment voluntarily by the
Executive or by the Company for "cause" as defined below) by the Company,
without the Executive's express written consent, of his responsibilities as
Executive Vice President and Chief Operating Officer of the Company, or any
other material default of this Agreement which continues for ten (10) business
days following the Company's receipt of written notice from the Executive
specifying the manner in which the Company is in default of this Agreement.
(b) By the Company at any time for "cause." For purposes of this
Agreement, the Company shall have "cause" to terminate the Executive's
employment hereunder upon (i) the continued and deliberate failure of the
Executive to perform his material duties, in a manner substantially consistent
with the manner reasonably prescribed by the CEO and in accordance with the
terms of this Agreement (other than any such failure resulting from his
incapacity due to physical or mental illness), which failure continues for ten
(10) business days following the Executive's receipt of written notice from the
CEO specifying the manner in which the Executive is in default of his duties,
(ii) the engaging by the Executive in intentional serious misconduct that is
materially injurious to the Company or its reputation, which misconduct, if it
is reasonably capable of being cured, is not cured by the Executive within ten
(10) business days following the Executive's receipt of written notice from the
CEO specifying the serious misconduct engaged in by the Executive, (iii) the
conviction of the Executive of commission of a felony, whether or not such
felony was committed in connection with the Company's business, or (iv) any
material breach by the Executive of Section 8 hereof. If the Company shall
terminate the Executive's employment for "cause," there will be no forfeiture,
penalty, reduction or other adverse effect upon any vested rights or interests
relating to any Fringe Benefits. In such event, the Company, in full
satisfaction of all of the Company's obligations under this Agreement and in
respect of the termination of the Executive's employment with the Company, shall
pay the Executive his Base Salary and all other benefits and reimbursement
through the date of termination of his employment, provided that the Options and
--------
any other stock options granted to the Executive under the Company's option plan
shall terminate three months after the date of termination of his employment for
"cause".
6
<PAGE>
6. Disability; Death.
-----------------
(a) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform substantially his duties by
reason of disability or impairment of health for at least six consecutive
calendar months, the Company shall have the right to terminate this Agreement by
giving sixty (60) days written notice to the Executive to that effect, but only
if at the time such notice is given such disability or impairment is still
continuing. Following the expiration of the notice period, the Employment Period
shall terminate, and the Company's payment obligations to the Executive under
Section 2(a) and (b) shall terminate with the payment of the Executive's Base
Salary for the month in which the Employment Period terminates and a prorated
Annual Bonus through such month, and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that the Options and any other stock options
--------
granted to the Executive under the Company option plan or any successor plan
shall become fully vested and shall terminate in accordance with their terms,
but in no event less than one year after such termination, notwithstanding the
limitations of Section 2(d) of this Agreement. In the event of a dispute as to
whether the Executive is disabled within the meaning of this paragraph (a), or
the duration of any disability, either party may request a medical examination
of the Executive by a doctor appointed by the Chief of Staff of a hospital
selected by mutual agreement of the parties, or as the parties may otherwise
agree, and the written medical opinion of such doctor shall be conclusive and
binding upon the parties as to whether the Executive has become disabled and the
date when such disability arose. The cost of any such medical examinations shall
be borne by the Company.
(b) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, the Company shall pay to the Executive's estate
his Base Salary and a prorated Annual Bonus through the end of the month in
which the Executive's death occurred, at which time the Employment Period shall
terminate without further notice and there will be no forfeiture, penalty,
reduction or other adverse effect upon any vested rights or interests relating
to any Fringe Benefits; provided that the Options and any other stock options
--------
granted to the Executive under the Company option plan or any successor plan
shall become fully vested and shall terminate one year after the date of
termination of the Executive's employment for death, notwithstanding the
limitations of Section 2(d) of this Agreement.
7
<PAGE>
(c) Nothing contained in this Section 6 shall impair or otherwise
affect any rights and interests of the Executive under any compensation plan or
arrangement of the Company which may be adopted by the Board.
7. Non-Competition.
---------------
(a) As an inducement for the Company to enter into this Agreement, the
Executive agrees that for a period commencing as of the Effective Date and
running through the earlier of (i) the end of the Employment Period if the
Executive remains employed by the Company for the entire Employment Period or
(ii) one year following termination of the Executive's employment by the Company
for "cause" as defined in Section 5(b) hereof, or by the Executive for any
reason (other than an Executive Election Event, in which case the provisions of
this paragraph (a) shall not apply) (the "Non-Competition Period"), the
Executive shall not, without the prior written consent of the Board, 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.
For the purpose of this Agreement, a business shall be considered to
be competitive with any business of the Company only if such business is engaged
in providing services or products (i) substantially similar to (A) any service
or product currently provided by the Company during the Employment Period; (B)
any service or product which directly evolves from or directly results from
enhancements in the ordinary course during the Non-Competition Period to the
services or products provided by the Company as of the date hereof or during the
Employment Period; or (C) any future service or product of the Company as to
which the Executive materially and substantially participated in the development
or enhancement, and (ii) to customers, distributors or clients served by the
Company during the Non-Competition Period.
(b) Non-Solicitation of Employees. During the Non-Competition Period,
-----------------------------
the Executive will not (for his own benefit or for the benefit of any person or
entity other than the Company) solicit, or assist any person or entity other
than the Company to solicit, any officer, director, executive or employee (other
than an administrative or clerical employee) of the Company to leave his or her
employment.
8
<PAGE>
(c) Reasonableness; Interpretation. The Executive acknowledges and
------------------------------
agrees, solely for purposes of determining the enforceability of this Section 8
(and not for purposes of determining the amount of money damages or for any
other reason), 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 is linked to the term of the Employment Period and the
severance benefit provided for in Section 5(a); and (iii) the above covenants
are reasonable as an inducement to the Company to enter into this Agreement, 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. In
the event that the covenants in this Section 8 shall be determined by any court
of competent jurisdiction in any action to be unenforceable by reason of their
extending for too great a period of time or over too great a geographical area
or by reason of their being too extensive in any other respect, they shall be
interpreted to extend only over the maximum period of time for which they may be
enforceable, and/or over the maximum geographical area as to which they may be
enforceable and/or to the maximum extent in all other respects as to which they
may be enforceable, all as determined by such court in such action.
(d) Investment. Nothing in this Agreement shall be deemed to prohibit
----------
the Executive 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 five percent (5%) 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 Board.
8. Liability Insurance. The Executive shall be covered under the
-------------------
Company's liability insurance policy for directors and officers to the same
extent as other officers of the Company.
9. Enforcement. The Executive acknowledges that a breach of the
-----------
covenants or provisions contained in Sections 3, 4 and 8 of this Agreement will
cause irreparable damage to the Company, the exact amount of which will be
difficult to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive agrees that if the Executive breaches or
threatens to breach any of the covenants or provisions contained in Sections 3,
4 and 8 of this Agreement, in addition to any other remedy which may be
available at law or in equity, the Company
9
<PAGE>
shall be entitled to seek specific performance and injunctive relief.
10. Arbitration.
-----------
(a) Subject to the Company's right to enforce Sections 3, 4 and 8
hereof by an injunction issued by a court having jurisdiction (which right shall
prevail over and supersede the provisions of this Section 11), any dispute
relating to this Agreement, including the enforceability of this Section 11,
arising between the Executive and the Company shall be settled by arbitration
which shall be conducted in Denver, Colorado, or any other location where the
Executive then resides at the Company's request, before a single arbitrator in
accordance with the commercial arbitration rules of the American Arbitration
Association ("AAA"). Within 90 days after the Effective Date, the parties shall
mutually agree upon three possible arbitrators, one of whom shall be selected by
the AAA within 2 days after notice of a dispute to be arbitrated under this
Section 11. The parties shall instruct the arbitrator to use his or her best
efforts to conclude the arbitration within 60 days after notice of the dispute
to AAA.
(b) The award of any such arbitrator shall be final. Judgment upon
such award may be entered by the prevailing party in any federal or state court
sitting in Denver, Colorado or any other location where the Executive then
resides at the Company's request.
(c) The parties will bear their own costs associated with arbitration
and will each pay one-half of the arbitration costs and fees of AAA; however,
the arbitrator may in his sole discretion determine that the costs of the
arbitration proceedings, including attorneys' fees, shall be paid entirely by
one party to the arbitration if the arbitrator determines that the other party
is the prevailing party in such arbitration.
11. Severability. Should any provision of this Agreement be determined to
------------
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Assignment. The Executive's rights and obligations under this
----------
Agreement shall not be assignable by the Executive. The Company's rights and
obligations under
10
<PAGE>
this Agreement shall not be assignable by the Company except as incident to the
transfer, by merger or otherwise, of all or substantially all of the business of
the Company. In the event of any such assignment by the Company, all rights of
the Company hereunder shall inure to the benefit of the assignee.
13. Notices. All notices and other communications which are required or
-------
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. Unless otherwise changed by notice, in each case notice
shall be sent to:
If to Executive, addressed to:
Allan Goodson
824 Woodburn Drive
Brentwood, Tennessee 37027
If to the Company, addressed to:
On Command Corporation
6331 San Ignacio
San Jose, California 95119
Attention: President and CEO
Telecopier No. (408) 360-4701
With a copy to:
Ascent Entertainment Group
1225 Seventeenth Street
Denver, Colorado 80202
Attention: General Counsel
Telecopier No. (303) 308-0489
14. Miscellaneous. This Agreement constitutes the entire agreement, and
-------------
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The validity, interpretation,
performance and enforcement of the Agreement shall be governed by the laws of
the State of California. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ Allan Goodson
--------------------------------
Allan Goodson, Executive
ON COMMAND CORPORATION
By: /s/ James A. Cronin, III
-----------------------------
Title: Chairman and Acting
Chief Executive Officer
12
<PAGE>
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made and entered into effective January 1, 2000, by and
between Ascent Sports Holdings, Inc., a Delaware corporation (the "Company"),
and Donald M. Elliman Jr. (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company is a wholly owned subsidiary of Ascent
Entertainment Group, Inc., a Delaware corporation ("Ascent"), and was formed to
own and operate Ascent's sports-related businesses, the Denver Nuggets Limited
Partnership, Colorado Avalanche, LLC and Ascent Arena Company, LLC;
WHEREAS, the Company desires to employ the Executive as President of
the Company, and the Executive desires to accept such employment, on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Term. The Company hereby agrees to employ the Executive as
----
President of the Company and the Executive agrees to be so employed for a period
commencing January 1, 2000 and ending August 31, 2000 (the "Term").
2. Performance and Scope. During the Term hereof, the Executive agrees
---------------------
to devote his full time and best efforts in the discharge of his duties for the
Company. The Executive shall report directly to the Sports Businesses Committee
of the Board of Directors of Ascent (the "Committee"). Except as otherwise
provided in existing employment agreements, all other employees of the Company
and its subsidiaries shall report, directly or indirectly, to the Executive. The
parties hereto understand that the Executive shall at all times be subject to
the authority and direction of the Committee and the Board of Directors of
Ascent.
<PAGE>
3. Compensation.
------------
a. As remuneration for the full-time services to be rendered to
the Company during the Term, Executive shall be paid total compensation
consisting of (i) a monthly base salary of $50,000 and (ii) benefits provided by
Section 3(b) hereof. The base salary shall not be decreased during the Term.
b. During the Term, in addition to his base salary, the Executive
shall receive such benefits as may be extended to other senior executives of
Ascent and Ascent's affiliates, including, if applicable, group life and health
insurance benefits, retirement benefits, deferred compensation benefits, and
expense reimbursements.
4. Termination of Employment. Notwithstanding the provisions of
-------------------------
Section 1 hereof, Employee's employment hereunder may be terminated prior to the
expiration of the Term upon the occurrence of any of the events described in
clauses (i) through (v) of this Section 4. If the termination event is described
in clause (i), (ii) or (iii), the Company shall pay to the Executive (or the
Employee's estate, in the case of clause (ii)), within the five days immediately
following the date of such termination of employment, a lump sum amount equal to
the lesser of three-months base salary or the aggregate base salary otherwise
payable to the Executive through the end of the Term. If the termination event
is described in clause (iv) or (v), the Executive shall forfeit his right to any
and all compensation and benefits he would have been entitled to receive with
respect to any employment period which would otherwise have followed the date of
such termination, but he shall not forfeit any rights or benefits he would
otherwise receive or retain in the absence of this Agreement. The events of
termination are as follows:
(i) At any time by the Committee, without "Cause" (as
defined in Section 4(v) hereof); or
(ii) In the event of Employee's death; or
2
<PAGE>
(iii) By the Committee in the event Executive is unable to
perform his services hereunder for a continuous period of thirty (30) days
by reason of his physical or mental illness or incapacity, as determined in
good faith by the Committee; or
(iv) At the option of Executive at any time upon ninety (90)
days prior written notice to the Committee; or
(v) At any time by the Committee, for "Cause", which, for
purposes of this Agreement, shall mean (x) the continued and deliberate
failure of the Executive to perform his material duties in a manner
substantially consistent with the manner reasonably prescribed by the
Committee and in accordance with the terms of this Agreement (other than
any such failure resulting from his incapacity due to physical or mental
illness), which failure continues for ten (10) business days following the
Executive's receipt of written notice from the Committee specifying the
manner in which the Executive is in default of his duties, (y) the engaging
by the Executive in intentional serious misconduct that is materially and
demonstrably injurious to the Company, Ascent or their affiliates, or (z)
any material breach by the Executive of Section 7 hereof.
5. Liability Insurance. The Executive shall be covered under the
-------------------
liability insurance policy for directors and officers of Ascent and its
affiliates to the same extent as other officers of Ascent and its affiliates.
6. No Mitigation. The Executive shall have no duty to mitigate his
-------------
damages, if any, arising from any termination of his employment hereunder.
7. Noncompetition and Other Covenants.
----------------------------------
a. Trade Secrets; Return of Documents and Property. The
Executive acknowledges that during the course of his employment he will receive
secret, confidential and proprietary information ("Trade Secrets") of
3
<PAGE>
the Company, Ascent and their affiliates and of other companies with which the
Company, Ascent and their affiliates do business on a confidential basis and
that the Executive will create and develop Trade Secrets for the benefit of the
Company, Ascent and its affiliates. Trade Secrets shall include, without
limitation, architectural and engineering data, customer and other marketing
data, custom databases, "know-how," formulae, secret processes or machines,
inventions, computer programs (including documentation of such programs) and
other information of a similar nature to the extent not available to the public,
and plans for future development. All Trade Secrets disclosed to or created by
the Executive during his employment hereunder shall be deemed to be the
exclusive property of the Company. The Executive acknowledges that Trade Secrets
have economic value to the Company due to the fact that Trade Secrets are not
generally known to the public or the trade and that the unauthorized use or
disclosure of Trade Secrets is likely to be detrimental to the interests of the
Company, Ascent and their affiliates. The Executive therefore agrees to hold in
strict confidence and not to disclose to any third party any Trade Secret
acquired or created or developed by the Executive during the Term of this
Agreement except (i) when the Executive is required to use or disclose any Trade
Secret in the proper course of the Executive's rendition of services to the
Company, Ascent or their affiliates hereunder, (ii) when such Trade Secret
becomes public knowledge other than through a breach of this Agreement, or (iii)
when the Executive is required to disclose any Trade Secret pursuant to any
valid court order in which the Executive is required to disclose such Trade
Secret. The Executive shall notify the Company immediately of any such court
order in order to enable the Company to contest such order's validity. After
termination of this Agreement, the Executive shall not use or otherwise disclose
Trade Secrets unless such information (x) becomes public knowledge or is
generally known in the sports industry among executives comparable to the
Executive other than through a breach of this Agreement, (y) is disclosed to the
Executive by a third party who is entitled to receive and disclose such Trade
Secret, or (z) is required to be disclosed pursuant to any valid court order, in
which case the Executive shall notify the Company immediately of any such court
order in order to enable the Company to contest such order's validity.
4
<PAGE>
b. Discoveries and Works. All discoveries and works made or
---------------------
conceived by the Executive in connection with and during his employment by the
Company pursuant to this Agreement, jointly or with others, that relate to the
activities of the Company, Ascent or their affiliates ("Discoveries and Works")
shall be owned by the Company. Discoveries and Works shall include, without
limitation, architectural and engineering developments, marketing plans and
proposals, and other works of authorship, inventions, computer programs
(including documentation of such programs), technical improvements, processes
and drawings. The Executive shall (i) promptly notify, make full disclosure to,
and execute and deliver any documents requested by, the Company to evidence or
better assure title to such Discoveries and Works in the Company, (ii) assist
the Company in obtaining or maintaining for itself at its own expense United
States and foreign copyrights, trade secret protection or other protection of
any and all such Discoveries and Works, and (iii) promptly execute, whether
during his employment by the Company or thereafter, all applications or other
endorsements necessary or appropriate to maintain copyright and other rights for
the Company and to protect its title thereto.
c. Non-Competition. As an inducement for the Company to enter
---------------
into this Agreement, the Executive agrees that for a period commencing as of the
Effective Date and running through December 31, 2000 (the "Non-Competition
Period"), the Executive shall not, without the prior written consent of the
Committee, 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 or could reasonably
expected to be competitive with any business conducted or intended to be
conducted by the Company, Ascent or their affiliates. For the purpose of this
Agreement, a business shall be considered to be competitive with any business of
the Company, Ascent or their affiliates only if such business is engaged in
providing services or products (i) substantially similar to (A) any service or
product provided by the Company, Ascent or their affiliates during his period of
employment hereunder; (B) any service or product which directly evolves from or
directly results from enhancements in the
5
<PAGE>
ordinary course during the Non-Competition Period to the services or products
provided by the Company, Ascent or their affiliates as of the date hereof or
during his employment hereunder; or (C) any future service or product of the
Company, Ascent or their affiliates as to which the Executive materially and
substantially participate in the development or enhancement, and (ii) to
customers, distributors or clients served by the Company, Ascent and their
affiliates during the Non-Competition Period.
d. Non-Solicitation of Employees. For a period commencing as of
-----------------------------
the Effective Date and running through the first anniversary of the termination
of the Executive's employment hereunder for any reason (the "Non-Solicitation
Period"), the Executive will not (for his own benefit or for the benefit of any
person or entity other than the Company, Ascent or their affiliates) solicit, or
assist any person or entity other than the Company, Ascent or their affiliates
to solicit, any officer, director, executive or employee (other than an
administrative or clerical employee) of the Company, Ascent or their affiliates
to leave his or her employment.
e. Reasonableness; Interpretations. The Executive acknowledges
-------------------------------
and agrees, solely for purposes of determining the enforceability of this
Section 7, that (i) the markets served by the Company, Ascent and its affiliates
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 the lengtho of the Non-Solicitation
Period are linked to the term of the Employment Period and the post-employment
payment provided for in Section 4; and (iii) the above covenants are reasonable
as an inducement for the Company to enter into this Agreement, 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. In the event that
the covenants in this Section 7 shall be determined by any court of competent
jurisdiction in any action to be unenforceable by reason of their extending for
too great a period of time or over too great a geographical area or by reason of
their being too extensive in any other respect, they shall be interpreted to
extend only over the maximum period of time for which
6
<PAGE>
they may be enforceable and/or to the maximum extent in all other respects as to
which they may be enforceable, all as determined by such court in such action.
f. Investment. Nothing in this Agreement shall be deemed to
----------
prohibit the Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive with the Company,
Ascent or their affiliates, provided that such investments (i) are passive
investments and constitute five percent (5%) 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
Committee.
8. Enforcement. The Executive acknowledges that a breach of the
-----------
covenants or provisions contained in Section 7 of this Agreement will cause
irreparable damage to the Company, Ascent and their affiliates, the exact amount
of which will be difficult to ascertain, and that the remedies at law for any
such breach will be inadequate. Accordingly, the Executive agrees that if the
Executive breaches or threatens to breach any of the covenants or provisions
contained in Section 7 of this Agreement, in addition to any other remedy which
may be available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief, without posting bond.
9. Notices. All notices and other communications which are required
-------
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if
transmitted by telecopy, electronic or digital transmission method, provided
that in such case it shall also be sent by certified or registered mail, return
receipt requested; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal
----
Express); and upon receipt, if sent by certified or
7
<PAGE>
registered mail, return receipt requested. Unless otherwise changed by notice,
in each case notice shall be sent to:
If to the Executive, addressed to:
Donald M. Elliman Jr.
[ ]
[ ]
If to the Company, addressed to:
Ascent Entertainment Group
Sports Business Committee
1225 Seventeenth Street
Denver, Colorado 80202
Attention: Paul Gould and Chuck Neinas
Telecopier No. (303) 308-0490
With a copy to:
Ascent Entertainment Group
1225 Seventeenth Street
Denver, Colorado 80202
Attention: General Counsel
Telecopier No. (303) 308-0489
10. Severability. Subject to the last sentence of Section 7(e) hereof,
------------
if any provision of this Agreement shall be determined to be unenforceable or
prohibited by any applicable law, such provision shall be ineffective to the
extent, and only to the extent, of such unenforceability or prohibition without
invalidating the balance of such provision or any other provision of this
Agreement, and any such unenforceability or prohibition in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
11. Miscellaneous. This Agreement constitutes the entire agreement,
-------------
and supersedes all prior understandings or agreements relating to the subject
matter hereof between Executive and the Company, Ascent or any affiliate thereof
(or any predecessor of any such entity). No amendment, supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. The validity, interpretation, performance and
enforcement of the Agree-
8
<PAGE>
ment shall be governed by the laws of the State of Colorado. The headings
contained herein are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
12. Continuing Liability. Unless this Agreement or Employee's
--------------------
employment hereunder is terminated in accordance with the express provisions
hereof, the parties shall have no right to terminate this Agreement or the
Employee's employment hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE ASCENT SPORTS HOLDINGS, INC.
/s/ Donald Elliman /s/ Charles M. Neinas
- --------------------------- ---------------------------------
Donald Elliman, By: Charles M. Neinas
Executive Title: Chairman
9
<PAGE>
Exhibit 21
Subsidiaries of the Company
On Command Corporation
On Command Development Corporation
On Command Video Corporation
SpectraVision, Inc.
Spectradyne International, Inc.
On Command Hong Kong Limited
On Command Australia Pty Limited
On Command (Thailand) Limited
Spectradyne Singapore Pfc Limited
On Command Canada, Inc.
Kalevision Systems, Inc. Canada
Spectradyne International, Inc. Sucursal en Mexico
Ascent Sports Holdings, Inc.
Ascent Sports LLC
Ascent Arena and Development Corporation
Ascent Arena Company, LLC
Ascent Arena Operating Company, LLC
The Denver Arena Trust
The Denver Nuggets Limited Partnership
The Colorado Avalanche LLC
Ascent Beacon Corporation
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos.
33-09067 and 33-09053 of Ascent Entertainment Group, Inc. on Form S-8 of our
report dated March 10, 2000, appearing in this Annual Report on Form 10-K of
Ascent Entertainment Group, Inc. for the year ended December 31, 1999.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
March 24, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 60,349
<SECURITIES> 0
<RECEIVABLES> 33,492
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 179,649
<PP&E> 294,498
<DEPRECIATION> 0
<TOTAL-ASSETS> 581,301
<CURRENT-LIABILITIES> 68,370
<BONDS> 339,922
0
0
<COMMON> 297
<OTHER-SE> 99,424
<TOTAL-LIABILITY-AND-EQUITY> 581,301
<SALES> 0
<TOTAL-REVENUES> 275,379
<CGS> 0
<TOTAL-COSTS> 187,302
<OTHER-EXPENSES> 130,444
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 29,265
<INCOME-PRETAX> (48,841)
<INCOME-TAX> 2,277
<INCOME-CONTINUING> (51,118)
<DISCONTINUED> (26,459)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (77,577)
<EPS-BASIC> (2.61)
<EPS-DILUTED> (2.61)
</TABLE>
