EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into by and between
Point.360, a California corporation (the "Company"), and R. Xxxx Xxxxxxxx (the
"Executive"), as of June 7, 2001.
I. RECITAL.
WHEREAS, the Company desires to employ the Executive as Chairman and Chief
Executive Officer.
NOW, THEREFORE, the Company and the Executive desire to set forth in this
Agreement the terms and conditions of the Executive's employment with the
Company.
II. EMPLOYMENT.
The Company hereby employs the Executive and the Executive hereby accepts
such employment, upon the terms and conditions hereinafter set forth. The
Company agrees that the Executive will be located, and will render such
services, in the Hollywood, California area.
III. DUTIES.
A. The Executive shall serve during the course of his employment as
Chairman and Chief Executive Officer of the Company and shall have such other
similar duties and responsibilities as the Board of Directors of the Company
shall determine from time to time.
B. The Executive agrees to devote substantially all of his time, energy and
ability to the business of the Company and shall not be involved in the
operations or management of any other competitive business. Nothing herein shall
prevent the Executive, upon written approval of the Board of Directors of the
Company, from serving as a director or trustee of other corporations or
businesses which are not in competition with the business of the Company or in
competition with any present or future affiliate of the Company.
C. The Executive shall report to the Chief Executive Officer of the
Company.
IV. COMPENSATION.
A. BASE SALARY. The Company shall pay the Executive a base salary at a rate
to be determined by the Compensation Committee of the Board of Directors but
which rate shall not be less than the greater of
1. $285,000 per year, or
2. if such rate is increased from time to time by the Compensation
Committee, such increased rate of Base Salary.
1
Such salary shall be earned monthly and shall be payable in periodic
installments no less frequently than monthly in accordance with the Company's
customary practices. Amounts payable shall be reduced by standard withholding
and other authorized deductions.
B. ANNUAL BONUS, INCENTIVE, SAVINGS AND RETIREMENT PLANS. The Executive
shall be entitled to participate in all annual bonus, incentive, savings and
retirement plans, practices, policies and programs applicable generally to other
peer executives of the Company as well as discretionary plans approved by the
Compensation Committee.
C. WELFARE BENEFIT PLANS. The Executive shall be eligible for participation
in and shall receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company to the extent applicable generally
to other peer executives of the Company as well as discretionary plans approved
by the Compensation Committee.
D. EMPLOYMENT EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures as in effect generally
with respect to other peer executives of the Company.
E. FRINGE BENEFITS. The Executive shall be entitled to fringe benefits in
accordance with the plans, practices, programs and policies as in effect
generally with respect to other peer executives of the Company.
F. ACCRUED VACATION. The Executive shall be entitled to paid vacation of
four weeks per year.
G. AUTOMOBILE. The Company shall provide the Executive with the use of a
Company owned or leased automobile.
V. TERMINATION.
A. DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death. If the Company determines in good
faith that disability of the Executive has occurred (pursuant to the definition
of Disability set forth below), it may give to the Executive written notice of
its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the day of
receipt of such notice by the Executive. For purposes of this Agreement,
"Disability" shall mean failure of the Executive to perform his duties with the
Company on the basis provided in this agreement for a period of 3 months as a
result of incapacity due to mental or physical illness. "Incapacity" as used
herein shall be limited only to such Disability which substantially prevents
Company from availing itself of the services of the Executive.
B. CAUSE. The Company may terminate the Executive's employment for Cause.
For purposes of this Agreement, "Cause" shall mean that the Company, acting in
good faith based upon the information then known to the Company, determines that
the Executive has:
2
1. committed an act of fraud upon, or an act evidencing material
dishonesty toward the Company; or
2. been convicted of a felony, which conviction through lapse of time
or otherwise is not subject to appeal; or
3. refused to perform material required duties and responsibilities or
performed them with negligence or misconduct and failed to cure such misconduct
given the opportunity within ten days written notice by the Company to remedy
such acts; or
4. materially breached any of the covenants set forth in this
Agreement; or
5. committed any act materially detrimental to the Company's business
or goodwill.
C. OBLIGATIONS OF THE COMPANY UPON TERMINATION BASED UPON DEATH OR
DISABILITY OR CAUSE.
1. DEATH OR DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Death or Disability, this Agreement shall terminate
without further obligations to the Executive or his legal representatives under
this Agreement, other than for payments made by the Company to the Executive
equal to the sum of:
(a) the Executive's annual base salary through the date of termination
to the extent not theretofore paid
(b) reasonable employment expenses, as provided herein, through the date
of termination to the extent not theretofore paid and
(c) any accrued vacation pay to the extent not theretofore paid
The sum of the amounts described in clauses (a), (b) and (c) shall be
hereinafter referred to as the "Accrued Obligations", which shall be paid to the
Executive or his estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the date of termination and in addition, the Company shall pay
to the Executive or his estate or beneficiary, as applicable, any amounts due
pursuant to the terms of any applicable welfare or pension benefit plans.
2. CAUSE. If the Executive's employment is terminated by the Company
for Cause, this Agreement shall terminate without further obligations to the
Executive other than for the timely payment of Accrued Obligations and any
amounts due pursuant to the terms of any applicable welfare or pension benefit
plans.
3. WITHOUT CAUSE. If the Executive's employment is terminated or
constructively terminated by the Company without Cause, in addition to
Executive's other rights, the Company shall continue to pay Executive's Base
Salary, health, medical and other benefits for a period of 24 months following
the termination, at which time the Executive will be entitled to pursue, at the
Executive's cost, applicable COBRA benefits.
3
4. CONSTRUCTIVE TERMINATION. For purposes of this Agreement,
constructive termination shall occur if
(a) the Executive's place of employment or the Company's business office
is moved more than 50 miles from its present location,
(b) there is a material downward change in the Executive's duties and
responsibilities,
(c) there is a downward change in the Executive's Base Salary, or
(d) there is a change in the Executive's title and/or responsibilities
that is clearly a demotion.
VI. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default, or
misrepresentation in connection with any of its provisions, shall be submitted
to arbitration, to be held in Los Angeles, California in accordance with the
rules and procedures of the American Arbitration Association. In the event
either party institutes arbitration under this Agreement, the costs and expenses
of such arbitration (including counsel fees) shall be borne by each of the
parties, or as the arbitrator(s) may determine at the request of either party.
VII. CONFIDENTIAL INFORMATION.
The Executive shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by the Executive during his employment by the
Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by the Executive or his representatives in
violation of this Agreement). After termination of the Executive's employment
with the company, he shall not, without the prior written consent of the
Company, or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
VIII. SUCCESSORS.
A. This Agreement is personal to the Executive and shall not, without the
prior written consent of the Company, be assignable by the Executive.
B. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns and any such successor or assignee shall
be deemed substituted for the Company under the terms of this Agreement for all
purposes. As used herein, "successor" and "assignee" shall include any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires the stock of the
Company or to which the Company assigns this Agreement by operation of law or
otherwise.
4
IX. WAIVER.
No waiver of any breach of any term or provision of this Agreement shall be
construed to be, nor shall be, a waiver of any other breach of this Agreement.
No waiver shall be binding unless in writing and signed by the party waiving the
breach.
X. MODIFICATION.
This Agreement may not be amended or modified other than by a written
agreement executed by the Executive and the Board of Directors of the Company.
XI. SAVINGS CLAUSE.
If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect other provisions or applications of the
Agreement which can be given effect without the invalid provisions or
applications and to this end the provisions of this Agreement are declared to be
severable.
XII. COMPLETE AGREEMENT.
This instrument constitutes and contains the entire agreement and
understanding concerning the Executive's employment and the other subject
matters addressed herein between the parties, and supersedes and replaces all
prior negotiations and all agreements proposed or otherwise, whether written or
oral, concerning the subject matters hereof. This is an integrated document.
XIII. GOVERNING LAW.
This Agreement shall be deemed to have been executed and delivered within
the State of California, and the rights and obligations of the parties hereunder
shall be construed and enforced in accordance with, and governed by, by the laws
of the State of California without regard to principles of conflict of laws.
XIV. CONSTRUCTION.
Each party has cooperated in the drafting and preparation of this
Agreement. Hence, in any construction to be made of this Agreement, the same
shall not be construed against any party on the basis that the party was the
drafter. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect.
XV. COMMUNICATIONS.
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered or if mailed
by registered or certified mail, postage prepaid, addressed to the Executive at
the Executive's residence address on file with the Company, or addressed to the
Company at 0000 Xxxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxxxx 00000. Any party may
change the address at which notice shall be given by written notice given in the
above manner.
5
XVI. EXECUTION.
This Agreement is being executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Photographic copies of such signed counterparts may be used
in lieu of the originals for any purpose.
XVII. LEGAL COUNSEL.
The Executive and the Company recognize that this is a legally binding
contract and acknowledge and agree that they have had the opportunity to consult
with legal counsel of their choice.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Point.360 R. Xxxx Xxxxxxxx
By: /s/ Xxxx X. Steel /s/ R. Xxxx Xxxxxxxx
---------------------- --------------------
Its: Executive Vice President,
Finance and Administration
and Chief Financial Officer
6
