CHANGE OF CONTROL
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EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into as
of February 1, 2000 between Genius Products, Inc., a Nevada corporation (the
"COMPANY"), and Xxxxxx Xxxxxxx (the "EXECUTIVE").
STATEMENT OF PURPOSE
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The Company considers sound and vital management to be essential to
protecting and enhancing the best interests of the Company and its stockholders.
Although the Company knows of no change in control of the Company which is being
contemplated, the Company recognizes that a future change in control is always
possible and this possibility creates uncertainty and insecurity among members
of management. The Company believes that appropriate measures should be taken to
reinforce the dedication of key members of management and to provide them with a
greater sense of security so that they will be encouraged to remain in the
employ of the Company. The Company also believes that it is in the best
interests of the Company and its stockholders that appropriate measures be taken
to assure the neutrality of management in analyzing a potential change in
control and the options available to the Company and to preserve continuity in
corporate management and operations in the event of a change in control.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company and the Executive hereby agree as follows:
1. OPERATION OF AGREEMENT.
(a) This Agreement shall be effective upon its execution, but anything
in this Agreement to the contrary notwithstanding, neither this Agreement nor
any of its provisions, except its renewal provision, shall be operative unless
and until there has been a Change in Control of the Company, as defined in
Subsection 1(c) below and subject to the provisions of Subsection 1(d) below
(regarding action by a majority of the Incumbent Board to modify or terminate
this Agreement up to 30 days following a Change in Control).
(b) If no Change in Control of the Company has occurred on or before
the close of business on December 31, 2001, this Agreement shall thereupon
expire; PROVIDED, HOWEVER, the parties by their written mutual assent may extend
such date on which this Agreement shall expire.
(c) A "CHANGE IN CONTROL" shall be deemed to have occurred if any of
the following events shall have occurred:
(i) any corporation, other person or "GROUP" (as defined below)
becomes the "BENEFICIAL OWNER" (as defined below) of more
than 15% of the Company's outstanding Common Stock; or
(ii) the Company's outstanding Common Stock (x) is held of record
by less than 300 persons or (y) is neither listed on a
national securities exchange nor authorized to be quoted on
an inter-dealer quotation system of a registered national
securities association.
For purposes of this definition of Change in Control, the following
terms shall have the following meanings:
"BENEFICIAL OWNER" shall have the meaning which that term is
given in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "ACT").
"GROUP" shall mean persons who act in concert as described in
Section 14(d)(2) of the Act.
(d) Notwithstanding any provision of this Agreement to the contrary,
at any time up to thirty (30) days following the date of a Change in Control,
the Board of Directors may, in its sole and exclusive discretion with approval
of at least a majority of the Incumbent Board (as defined below), terminate this
Agreement or make any modifications to the terms and provisions of this
Agreement (including without limitation causing the Agreement not to apply with
respect to the given Change in Control or reducing the amount of benefits
described herein) without the consent of Executive. For purposes hereof,
"INCUMBENT BOARD" shall mean the group of individuals who, as of the date of
this Agreement, constitute the Board of Directors of the Company; PROVIDED,
HOWEVER, that any individual who becomes a director subsequent to the date of
this Agreement and whose election, or whose nomination for election by the
Company's shareholders, to the Board of Directors was either (i) approved by a
vote of at least a majority of the directors then comprising the Incumbent Board
or (ii) recommended by a nominating committee comprised entirely of directors
who are then Incumbent Board members, 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 either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Act), other actual
or threatened solicitation of proxies or consents or an actual or threatened
tender offer.
2. EMPLOYMENT; PERIOD OF EMPLOYMENT.
(a) The Company agrees to continue the Executive in its employ, and
the Executive hereby agrees to remain in the employ of the Company, for the
period set forth in Subsection 2(b) below (the "PERIOD OF Employment") in the
position and with the duties and responsibilities set forth in any Employment
Agreement in effect on the date of any Change in Control and Section 3 below,
subject to the other terms and conditions of this Agreement. If there is any
conflict between any terms of any such Employment Agreement and any terms
hereof, the terms of this Agreement shall prevail.
(b) The Period of Employment shall commence on the date of any Change
in Control and, subject only to the Executive's death or termination of
employment by the Company for "CAUSE" or "DISABILITY" or by the Executive for
"GOOD REASON" (as defined in Section 4), shall continue until the close of
business on the later of (i) that date two years after the date on which the
Change in Control occurred or (ii) the expiration date under Subsection 1(b),
taking into account any extensions of such expiration date.
3. POSITION, DUTIES, AND RESPONSIBILITIES.
(a) During the Period of Employment, the Executive shall continue to
serve as an officer of the Company, either (i) with substantially the same
offices, titles, duties and responsibilities as the Executive had immediately
prior to the Change in Control or (ii) with a higher office with titles, duties
and responsibilities commensurate with such higher office.
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(b) During the Period of Employment, the Executive shall devote his
full-time efforts during normal business hours to the business and affairs of
the Company, except reasonable vacation periods and periods of illness or
incapacity, but nothing in this Agreement shall preclude the Executive from
devoting reasonable time to serving as a director or member of a committee of
one or more organizations (business, charitable, civic, religious or otherwise)
involving no conflict with the interests of the Company.
4. TERMINATION FOLLOWING CHANGE IN CONTROL. If, after a Change in
Control of the Company has occurred, the Company shall terminate the Executive's
employment other than because of his death or for Disability or Cause or if the
Executive shall terminate his employment for Good Reason, the Executive shall be
entitled to all of the benefits and payments provided in Section 5 below,
subject to the provisions of Subsection 1(d) above.
(a) DISABILITY. Termination based on "DISABILITY" shall mean
termination because of the Executive's absence due to physical or mental illness
from his duties with the Company on a full-time basis for 150 consecutive
business days unless within 30 days after Notice of Termination (as defined in
Subsection 4(d) below) is given following such absence, the Executive shall
return to the full-time performance of his duties.
(b) CAUSE. Termination shall be deemed to have been for "CAUSE" only
if termination shall have been the result of an act or acts of dishonesty on the
part of the Executive constituting a felony and resulting or intended to result
in substantial gain or personal enrichment at the expense of the Company, or if
there has been a willful and substantial breach by the Executive of the
provisions of Subsection 3(b) above, and such breach has caused substantial
injury to the Company. In no event shall the Executive's termination by the
Company be considered to have been for Cause if such termination took place as a
result of (i) the Executive's bad judgment or negligence or (ii) any act or
omission without intent of gaining a profit to which the Executive was not
legally entitled or (iii) any act or omission believed by the Executive in good
faith to have been in, or not opposed to, the interests of the Company.
(c) GOOD REASON. "GOOD REASON" shall mean
(i) the assignment to the Executive of any duties inconsistent
with his duties described in Subsection 3(a) above or any
removal of the Executive from or any failure to re-elect the
Executive to his positions described in Subsection 3(a)
above, except in connection with promotions to higher
office;
(ii) a reduction by the Company in the Executive's base salary as
in effect immediately prior to the Change in Control;
(iii) the failure by the Company to maintain and to continue the
Executive's participation in the Company's benefit or
compensation plans as in effect immediately prior to the
Change in Control (including but not limited to bonus and
incentive compensation plans, stock option, bonus, award and
purchase plans, life insurance, medical, health and
accident, and disability plans); or the taking of any action
by the Company which would adversely affect the Executive's
participation in or reduce the Executive's benefits under
any of such plans or deprive the Executive of any fringe
benefit he enjoyed immediately prior to the Change in
Control; or the failure to provide the Executive with the
number of paid vacation days to which he was entitled under
the Company's normal vacation policy in effect immediately
prior to the Change in Control;
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(iv) the relocation of the Executive's office to anywhere other
than a location within 100 miles of Del Mar, California or
the Company's requiring the Executive to be based anywhere
other than within 100 miles of Del Mar, California (or such
other location as shall be the location of the Executive's
office immediately prior to the Change in Control) except
for required travel on the Company's business to an extent
consistent with the Executive's business travel obligations
immediately prior to the Change in Control; or
(v) the failure by the Company to obtain the assumption of this
Agreement by any successor as contemplated in Section 7
below.
(d) Any termination of the Executive's employment, unless because of
death, shall be communicated by written Notice of Termination to the other
party. In the event of termination of employment by the Company for Cause or
Disability or by the Executive for Good Reason, the Notice of Termination shall
state the specific ground for termination (Cause, Disability or Good Reason) and
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for the specified ground of termination.
(e) "TERMINATION DATE" shall mean (i) if the Executive's employment is
terminated due to death, the Executive's date of death, (ii) if the Executive's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
performance of his duties on a full-time basis during such thirty day period),
(iii) if the Executive's employment is terminated for Cause, the date specified
in the Notice of Termination, and (iv) if the Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given.
5. BENEFITS.
(a) If the Company shall terminate the Executive's employment other
than because of his death or for Disability or Cause, or if the Executive shall
terminate his employment for Good Reason, then the Company shall pay to the
Executive and provide him, his dependents, beneficiaries and estate, with the
following;
(i) The Company shall pay the Executive his full base salary
through the Termination Date at the higher of the rate in
effect when Notice of Termination is given or the rate in
effect one year prior to such date, plus credit for any
vacation earned but not taken. The Executive's full base
salary shall be paid at the times normally scheduled for
payment of the salaries of key members of management;
PROVIDED, HOWEVER, that all of such salary shall be paid not
later than Termination Date.
(ii) Subject to clause (iii) below, the Company shall pay the
Executive a lump sum payment equal to ten (10) times the
highest annual compensation (including base salary,
incentive compensation and monetary bonus or similar award)
paid or payable to the Executive by the Company for any of
the three fiscal years ended immediately prior to the
Termination Date. The Company shall gross-up the lump sum
payment such that the amount of the payment is net of all
federal, state, local, excise and other taxes and
withholdings, including without limitation, any "golden
parachute" taxes payable by the Executive. This lump sum
payment shall be due and payable on the 10th business day
after the Termination Date and bear interest from the
Termination Date until paid at then current prime rate of
interest published by Citibank, N.A.
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(iii) The Company shall pay all legal fees and expenses which the
Executive may incur as a result of the Company's contesting
the validity or enforceability of this Agreement, or as a
result of the Company's failure to make timely payment of
any sum due to the Executive hereunder.
(b) The Executive shall not be required to mitigate the benefits or
amounts of any payment provided for in this Section 5 by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
this Section 5 be reduced by any compensation earned by the Executive as a
result of employment by another employer after the Date of Termination, or
otherwise.
6. OPTIONS. Subject to the provisions of Subsection 1(d) above, all of
the Executive's outstanding stock options shall become exercisable in full on
the date of a Change in Control of the Company, whether or not the stock options
were exercisable on such date.
7. SUCCESSORS; BINDING AGREEMENT.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form
and substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. As
used in this Agreement, "COMPANY" shall mean the company as defined in the
preamble to this Agreement and any successor to its business or assets which
executes and delivers the agreement provided for in this Paragraph 7 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
8. NOTICES.
For the purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United Stated registered or
certified mail, return receipt requested, postage prepaid. All notices to the
Company will be effective if delivered to ITM Corporation, 0000 Xx Xxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000, attention: Chief Executive Officer. All notices
to Executive will be effective if delivered to Executive's last residential
address provided to the Company by Executive, or to such other address as any
party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
9. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of California.
10. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party of
any breach of this Agreement shall be deemed a waiver of any prior or subsequent
breach. No agreements or representations, oral or otherwise, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
11. SEPARABILITY. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
13. WITHHOLDING OF TAXES. The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
14. NON-ASSIGNABILITY. This Agreement is personal in nature and neither
of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except as
provided in Section 7 above. Without limiting the foregoing, the Executive's
right to receive payments hereunder shall not be assignable or transferable,
whether by pledge, creation of a security interest or otherwise, other than a
transfer by his will or by the laws of descent or distribution, and in the event
of any attempted assignment or transfer contrary to this paragraph, the Company
shall have no liability to pay any amount so attempted to be assigned or
transferred.
15. ARBITRATION; FEES.
(a) Any disputes between the Company and the Executive concerning this
Agreement will be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, by a panel of three
arbitrators, one selected by the Executive, one selected by the Company and the
other selected by the two so chosen. Judgment upon the arbitration award
rendered by the arbitrators shall be binding and conclusive and may be entered
in any court having jurisdiction thereof. The costs of the arbitration shall be
borne by the Company.
(b) In the event that the Executive receives an arbitration award
pursuant to subsection (a) above, the Company shall, within thirty (30) days
after the presentation of proper receipts or invoices therefor, reimburse the
Executive the reasonable fees and disbursements of counsel incurred in
connection of any amounts awarded the Executive pursuant thereto.
16. TERMINATION OF PRE-EXISTING EMPLOYMENT AGREEMENT. The Company and
the Executive hereby acknowledge and agree that this Agreement replaces any
employment agreement previously entered into between the Company and the
Executive, and that any rights granted under any such pre-existing employment
agreement are hereby terminated and of no further force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
GENIUS PRODUCTS, INC..
BY: /S/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
CEO
EXECUTIVE
BY: /S/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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