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EXHIBIT 10.24
EMPLOYMENT AGREEMENT
Agreement, made this 1st day of March, 1999, between Hallmark Entertainment
Networks, Inc., a Delaware corporation with offices at 1325 Avenue of the
Americas, Xxx Xxxx, Xxx Xxxx 00000-0000, or its permitted assigns ("Employer"),
and Xxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to retain the services of Employee and Employee
desires to be employed by Employer upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto agree as follows:
1. Employment and Duties.
(a) Effective March 1, 1999 (the "Effective Date"), Employer hereby employs
Employee and Employee hereby agrees to serve as President and Chief Executive
Officer reporting to the Board of Directors of Employer. Employee agrees to
perform such services consistent with Employee's position as shall, from time to
time, be assigned to Employee, including but not limited to development of
existing and new channels which Employer owns or in which Employer invests.
Employee shall use Employee's best efforts to promote the interests of Employer
and shall devote Employee's full business time, energy and skill exclusively
to the business and affairs of Employer during the "Term" (as "Term" is defined
in Paragraph 2 below). So long as it does not interfere with Employee's
performance of his duties hereunder, Employee will be permitted to continue
consulting work with TCI and its affiliates.
(b) Employee's primary duties shall be to act as the chief executive
officer and operating head of Employer responsible for administering the
approved annual budget and directing the overall development of Employer's
business subject to the guidance of the Board of Directors. Employee will be
responsible for such television programs and other audiovisual properties
(collectively, the "Properties" and individually, a "Property") as are assigned
to him. Employer shall use its reasonable best efforts during the Term to
procure Employee's appointment as non-executive Chairman of Odyssey Holdings,
LLC, in which Employer has an investment.
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(c) Employer and its owners may be incorporating subsidiary production or
distribution companies for the development or distribution of individual
Properties. Employer shall have the right to loan or make available, without
additional compensation to Employee, Employee's services as an officer or
director to any such subsidiary, provided, that his duties as an officer of any
such subsidiary shall be consistent with his duties hereunder. Employee further
agrees that all the terms of this Employment Agreement shall be applicable to
Employee's services for each such subsidiary.
2. Term of Employment. The term of Employee's employment ("Term") with
Employer shall commence on the Effective Date and shall end on the day before
the third anniversary of the Effective Date in 2002, unless terminated earlier
as is provided in Paragraph 8 of this Agreement or extended by mutual agreement
of the parties.
3. Compensation.
(a) Salary. As compensation for Employee's services hereunder, Employer
shall pay to Employee a salary at the annual rate of $675,000 per year from the
Effective Date through the end of the Term. Such salary shall be paid biweekly,
in arrears.
(b) Bonuses.
(i) Performance Bonus. As of the day before each anniversary of the
Effective Date through the end of the Term, Employee shall be entitled to a
performance bonus of up to 50% of his then annual rate of salary if
Employer has achieved 20% growth over the immediately preceding
twelve-month period in net revenues to its fully or partially owned
channels, as reasonably determined by Employer. If Employer does not
achieve 20% growth in such net revenues, then Employee shall receive a pro
rata portion of such 50% bonus based on the growth that does occur,
provided that no bonus shall be due if there is no growth in net revenues.
An example of how such performance bonus might be calculated is attached as
Schedule 1 hereto. Such bonus shall be due within thirty days after it is
earned. Subject to the provisions of Paragraph 8, Employer shall guarantee
to Employee a full performance bonus for the twelve months ending the day
before the first anniversary of the Term. As used herein, "net revenues"
shall be determined according to Employer's normal accounting practices,
consistently applied throughout the Term in accordance with generally
accepted accounting principles, and shall include the
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consolidated net revenues of Employer and its subsidiaries, after
intercompany eliminations, with revenues of partially owned subsidiaries
being included in proportion to Employer's interest in same. If during the
Term, Employer sells or otherwise disposes of an operation, or acquires
part or all of an operation or increases its interest in a partially owned
operation, and as a result net revenues are reduced or increased, equitable
adjustment (as mutually agreed by Employer and Employee) shall be made in
the prior year's base for purposes of determining Employee's performance
bonus.
(ii) Discretionary Bonus. Employee may be paid such additional bonus
and at such times as Employer in its sole discretion determines.
(c) Withholding. All payments of salary shall be made in appropriate
installments to conform with the regular payroll dates for salaried personnel of
Employer. Employer shall be entitled to deduct from each payment of compensation
to Employee such items as federal, state and local income taxes, FICA, and such
other deductions as may be required by law.
(d) Expenses. During the Term, Employer shall pay or reimburse Employee on
an accountable basis for all reasonable and necessary out-of-pocket expenses for
entertainment, first-class travel and hotel accommodations, meals and other
expenditures incurred by Employee in connection with Employee's services to
Employer in accordance with Employer's expense account policies for its senior
executive personnel.
(e) Fringe Benefits. During the Term, Employee shall be entitled to receive
the following fringe benefits: (i) four weeks paid vacation, (ii) participation
in a Share Appreciation Rights ("SAR") Plan in the form attached as Exhibit A,
and (iii) any other fringe benefits, on terms that are or may become available
generally to senior executives of Employer or to any executive of Employer more
senior to Employee, whichever is more favorable to Employee. To the extent
permitted by any fringe benefit plan, all waiting periods applicable to Employee
shall be waived, and if it cannot be waived, Employer shall reimburse Employee
for COBRA and similar payments he may reasonably incur during such waiting
period.
Employee will be granted two million SARs, as of the Effective Date, in the
Share Appreciation Rights Plan, subject to approval of Employer's Board of
Directors.
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(f) SAR Plan Special Rule. Notwithstanding the provisos in the first
sentence of paragraph 4 of the SAR Plan, the limits on distributions shall not
apply to Employee if during the first three years of the Term and one year
thereafter, a "Market Event" occurs. A "Market Event" shall mean (i) a public
offering of equity securities of Employer commenced during the Term and
completed no later than one year after the Term or (ii) a sale of all of the
outstanding stock of Employer or the sale of all or substantially all of the
assets of Employer to an unrelated third party completed no later than one year
after the Term. Furthermore, the Board of Directors of Employer may waive such
limitations in its sole discretion.
4. Place of Employment; Personal Assistant. During the Term, Employee shall
be required to perform Employee's duties at the Los Angeles office of Employer,
and Employee shall undertake all reasonable travel required by Employer in
connection with the performance of Employee's duties hereunder. Employee's
current personal assistant will be employed by Employer as Employee's personal
assistant at the same compensation which such assistant received from Employee's
prior employer.
5. Confidentiality; Intellectual Property; Name and Likeness.
(a) Employee agrees that Employee will not during the Term or thereafter
divulge to anyone (other than Employer (and its principal owners, executives,
representatives and employees who need to know such information) or any persons
designated by Employer) any knowledge or information of any type whatsoever
designated or treated as confidential by Employer relating to the business of
Employer or any of its subsidiaries or affiliates, including, without
limitation, all types of trade secrets, business strategies, marketing and
distribution plans as well as concrete proposals, plans, scripts, treatments
and formats described in subparagraph (b) below. Employee further agrees that
Employee will not disclose, publish or make use of any such knowledge or
information of a confidential nature (other than in the performance of
Employee's duties hereunder) without the prior written consent of Employer. This
provision does not apply to information which becomes available publicly without
the fault of Employee or information which Employee discloses in confidence to
his own privileged representatives or is required to disclose in legal
proceedings, provided Employee gives advance notice to the
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President of Employer and an opportunity to Employer to resist such disclosure
in legal proceedings.
(b) During the Term, Employee will disclose to Employer all concrete
proposals, plans, scripts, treatments, and formats invented or developed by
Employee during the term which relate directly or indirectly to the business of
Employer or any of its subsidiaries or affiliates including, without limitation,
any proposals and plans which may be copyrightable, trademarkable, patentable or
otherwise exploitable. Employee agrees that all such proposals, plans, scripts,
treatments, and formats are and will be the property of Employer. Employee
further agrees, at Employer's request, to do whatever is necessary or desirable
to secure for the Employer the rights to said proposals, plans, scripts,
treatments, and formats, whether by copyright, trademark, patent or otherwise
and to assign, transfer and convey the rights thereto to Employer at Employer's
expense.
(c) Employer shall have the right in perpetuity to use Employee's name
reasonably in connection with credits for Properties for which Employee performs
any services.
6. Employee's Representations. Employee represents and warrants that:
(a) Employee has the right to enter into this Agreement and is not subject
to any contract, commitment, agreement, arrangement or restriction of any kind
which would prevent Employee from performing Employee's duties and obligations
hereunder;
(b) To the best of Employee's knowledge, Employee is not subject to any
undisclosed medical condition which might have a material effect on Employee's
ability to perform satisfactorily Employee's services hereunder.
7. Non-Competition; No Raid.
(a) During the Term, and except as permitted under Paragraph 1(a),
Employee shall not engage directly or indirectly, whether as an employee,
independent contractor, consultant, partner, shareholder or otherwise, in a
business or other endeavor which interferes with any of his duties or
obligations hereunder or which is directly competitive with the business of the
Employer or its subsidiaries, including but not limited to the production,
distribution or any other exploitation of audiovisual television material (the
"Other Business").
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(b) Employee further agrees that during the Term and for a period of one
year thereafter, Employee will not employ or knowingly attempt to employ or
assist anyone else to employ any person who is, at the date of termination of
Employee's employment, working as an officer, policymaker or in high-level
creative development or distribution (including without limitation executive
employees) for or rendering substantially full-time services as such to
Employer.
8. Termination.
(a) This Agreement may be terminated and the Term ended on five business
days written notice for any one of the following reasons (except (i) in which
case termination shall occur on the date of death):
(i) The death of Employee;
(ii) By Employer, on the physical or mental disability of Employee to
such an extent that Employee is unable to render services to Employer for a
period exceeding an aggregate of ninety business days during any
twelve-month period of the Term. For purposes of counting the aggregate of
ninety business days, days properly designated by Employee as vacation days
shall not be counted;
(iii) By Employer, for "cause," which for purposes of this Agreement
shall be defined as:
(A) the illegal use of a controlled substance, or the immoderate
use of alcohol which adversely and materially or frequently affects
Employee's performance of Employee's services under this Agreement;
(B) Employee's conviction of any act which constitutes a felony
under federal, state or local laws or the law of any foreign country;
(C) Employee's persistent failure after written notice to
perform, or Employee's persistent refusal to perform after written
notice, Employee's duties and responsibilities pursuant to this
Agreement; or
(D) Employee's dishonesty in non-trivial financial dealings with
or on behalf of Employer, its subsidiaries, affiliates and parent
corporation or in connection with performance of his duties hereunder.
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(iv) By Employee, for "good reason" which phrase shall mean: (a) a
material breach by Employer of any of its material obligations to Employee
hereunder which Employer has failed to cure within ten business days after
written notice from Employee specifying such breach; or (b) a public
offering of equity securities is completed, if at the time of such
offering, such entity is the owner, directly or indirectly, of a
controlling interest in Employer, provided that this clause (b) shall not
apply to any public offering of equity securities by Employer or any
subsidiary of Employer.
(b) Employer shall also have the right to terminate Employee prior to the
expiration of the Term in addition to pursuant to Paragraph 8(a) above by
providing Employee with not less than thirty (30) days advance notice in
writing. In the event of a termination pursuant to this Paragraph 8(b), the
Employer shall pay to the Employee within thirty (30) days after such notice of
termination the remaining amounts described in Paragraph 3 above for the balance
of the Term (or if less than one hundred eighty (180) days are left in the Term
at the expiration of such thirty (30) days), for one hundred eighty (180) days
as if there had been no termination of this Agreement, discounted to the date of
payment at the Alternate Base Rate (as such term is defined in an October 16,
1998 Credit Agreement, as amended, between Hallmark Entertainment, Inc. and
Chase Manhattan Bank) on the date payment is made pursuant to this Paragraph
8(b), and except for any annual bonus and payments under the SAR Plan which
Employee is due hereunder (which shall be paid when due), Employer shall have
no further obligations to Employee hereunder. If Employer terminates Employee
under this Paragraph 8(b), Paragraph 7(a) shall not apply from the date of
termination.
(c) In the event that Employer terminates this Agreement due to any of the
reasons set forth in Paragraphs 8(a)(i) and 8(a)(iii)(A)-(D) above, Employee
shall be paid Employee's salary through the later of the expiration of the five
(5) business days period referred to in Paragraph 8(a) or the end of the month
in which the termination event occurs after which Employer's obligation to pay
salary to Employee shall terminate. Should Employer terminate this Agreement due
to Employee's disability as defined above in Paragraph 8(a)(ii), Employee shall
continue to receive six months of salary. After making the payments provided for
in this subparagraph (c), Employer shall have no further obligations to
Employee.
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(d) If Employee validly terminates this Agreement for good reason, Employer
shall pay to Employee within thirty (30) days after such notice of termination
the remaining amounts described in Paragraph 3 above for the balance of the
Term, discounted to the date of payment at the Alternate Base Rate on the date
payment is made pursuant to this Paragraph 8(d) and except for any annual bonus
and payments under the SAR Plan which Employee is due hereunder, Employer shall
have no further obligations to Employee hereunder. If Employee terminates this
Agreement under this Paragraph 8(d), Paragraph 7(a) shall not apply from the
date of termination.
(e) Upon termination of this Agreement, Employee shall promptly return all
of Employer's property to Employer.
(f) Upon termination of Employee's employment for any reason, Employee
shall tender Employee's resignation from the Board of Directors of any of
Employer's subsidiaries or affiliates on which Employee is serving, and Employer
shall accept such resignation forthwith.
9. Breach; Remedies. Both parties recognize that the services to be
rendered under this Agreement by Employee are special, unique and extraordinary
in character, and that in the event of the breach by Employee of the terms and
conditions of this Agreement, Employer shall be entitled, inter alia, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, and to seek to enforce the specific performance thereof by
Employee, and/or to seek to enjoin Employee from performing services for any
other person, firm or corporation. The parties further stipulate that the law of
New York shall apply to any dispute or action regarding this agreement and
Employee agrees to submit to the jurisdiction of any court of competent
jurisdiction in New York in any such action and agrees to waive all objections
to such jurisdiction, including (but not limited to) any objections based upon
lack of personal jurisdiction or venue or forum non conveniens.
10. Assignment. This Agreement is a personal contract and, except as
specifically set forth herein, the rights, interests and obligations of Employee
herein may not be sold, transferred, assigned, pledged or hypothecated, although
she may assign or use as security payments due hereunder from Employer. The
rights and obligations of Employer hereunder shall bind in their
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entirety the successors and assigns of Employer, although Employer shall remain
fully liable hereunder. As used in this Agreement, the term "successor" shall
include any person, firm, corporation or other business entity which at the
time, whether by merger, purchase or otherwise, acquires all or substantially
all of the assets or business of Employer.
11. Amendment; Captions. This Agreement contains the entire agreement
between the parties. It may not be changed orally, but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Paragraph headings are for convenience of
reference only and shall not be considered a part of this Agreement. If any
clause in this Agreement is found to be unenforceable, illegal or contrary to
public policy, the parties agree that this Agreement shall remain in full force
and effect except for such clause.
12. Prior Agreements. This Agreement supersedes and terminates all prior
agreements between the parties relating to the subject matter herein addressed,
and sets out the full agreement between the parties concerning its subject
matter.
13. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed effective when delivered in
person or, if mailed, by registered or certified mail, return receipt requested,
in which case the notice shall be deemed effective on the date of deposit in the
mails, postage prepaid, addressed to Employee at Employee's address first
written above and, in the case of Employer, addressed to its President with a
copy to General Counsel, Hallmark Cards, Incorporated, 0000 XxXxx Xxxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000. Either party may change the address to which
notices are to be addressed by notice in writing given to the other in
accordance with the terms hereof.
14. Periods of Time. Whenever in this Agreement there is a period of time
specified for the giving of notices or the taking of action, the period shall be
calculated excluding the day on which the giver sends notice and excluding the
day on which action to be taken is actually taken.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute one instrument.
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IN WITNESS WHEREOF, Employer has by its appropriate officer signed this
Agreement and Employee has signed this Agreement as of the day and year first
above written.
HALLMARK ENTERTAINMENT NETWORKS, INC.
By: /s/ XXXXXX X. XXXXX, XX.
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Title: PRESIDENT
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EMPLOYEE
/s/ XXXXX XXXXX
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Xxxxx Xxxxx
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