Exhibit 10.29e
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 8, 2004, between XXXXX XXXXXXXXX,
residing at 0000 Xxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx, 00000 ("Executive")
and PLAYBOY ENTERPRISES, INC., a Delaware corporation ("Employer" or the
"Company"), with an office at 000 Xxxxx Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx,
00000.
RECITAL
Employer is primarily in the business of multimedia entertainment.
Employer desires to hire Executive, and Executive desires to be employed by
Employer on the terms and subject to the conditions set forth below.
In consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment of the Executive
Employer hereby agrees to employ Executive and Executive hereby
agrees to be and remain in the employ of Employer, as the Senior Executive Vice
President of Employer, upon the terms and conditions hereinafter set forth.
2. Employment Period
The term of Executive's employment under this Agreement (the
"Employment Period") shall commence January 19, 2004 (the "Commencement Date")
and, subject to earlier termination as provided herein, shall continue for a
period of three years (the "Initial Period") after the Commencement Date. Unless
earlier terminated, at the end of the Initial Period, the parties will determine
whether or not to renew this Agreement and, if so, on what terms and conditions.
3. Duties and Responsibilities
(a) During the Employment Period, Executive (i) shall have the title
of Senior Executive Vice President, (ii) shall devote his full business time and
attention and expend his best efforts, energies and skills on a full-time basis
to the business of the Company, and shall not engage in any other activity that
would interfere with the performance of his duties under this Agreement
(provided that Executive is permitted to serve on the board of directors of
other organizations, subject to approval of the Company's CEO, or engage in
endeavors related to the community, his faith and other charitable functions
which do not materially interfere with the performance of his duties hereunder)
and (iii) shall perform such duties, and comply with all reasonable directions
and instructions of the Company's CEO.
(b) During the Employment Period, Executive's responsibilities will
include all pay and free cable and satellite broadcast television, home video
and theatrical entertainment development activities of the Company, and the
associated production, programming and
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distribution activities, the Company's gaming initiatives in Las Vegas, Nevada
and business development; provided, however, that the foregoing will not be
construed so as to prevent or limit the Company's good faith determination for
bona fide business reasons to operate one or more of any such activities through
a joint venture, third party license or other arrangement with a third party.
(c) During the Employment Period, Executive will report only to the
Company's CEO and will be the Company's most senior executive in regard to those
responsibilities set forth in Paragraph 3.(b) above.
4. Compensation
(a) For all services rendered and required to be rendered by,
covenants of and restrictions in respect to Executive, under this Agreement,
Employer shall pay to Executive during and with respect to the Employment
Period, and Executive agrees to accept a base salary computed at a rate of
$650,000 per annum ("Base Salary"), payable on a biweekly basis in accordance
with the Employer's standard payroll practices. In addition, on the Commencement
Date, Executive will be eligible to participate in a Board of Directors'
approved incentive compensation plan, with Executive's being eligible to earn up
to a maximum potential of 100% of his Base Salary. On the condition that
Executive is not terminated for Cause (as hereinafter defined), Company will
guarantee a payout of a minimum of 25% of such maximum potential under the 2004
incentive compensation plan, payable when fiscal 2004 incentive compensation is
paid to the Company's other senior executives. The incentive compensation will
be based upon the Company's fiscal 2004 operating plan that has been approved by
the Company's Board of Directors. Should Executive be employed by Company on
December 31, 2006, he will receive whatever payout he is entitled to receive
under the Company's incentive compensation plan for fiscal 2006 at the time such
payout is made to other executives of Company, even if such payout occurs after
the end of the Initial Period.
(b) In each calendar year of the Initial Period, Executive will also
be granted nonqualified options to purchase 45,000 shares (the "Options") of the
Class B common stock of the Company. The Option agreements will be subject to
the Company's stock option plan and contain the terms and conditions determined
by the Company's Compensation Committee, which will be consistent with the terms
and conditions of stock option grants made to other executive officers of the
Company. The strike price of the options will be the closing price of the
Company's Class B common stock at the close of business on the date prior to the
date on which such grants are made to the other executive officers by the
Compensation Committee of the Company's Board of Directors (which, for calendar
2004 is scheduled to take place on February 4, 2004).
(c) In each calendar year of the Initial Period, Executive will be
granted 15,000 deferred stock awards subject to the terms and conditions
determined by the Company's Compensation Committee of the Company's Board of
Directors consistent with the terms and conditions of deferred stock awards to
other executive officers of the Company (which, for calendar 2004 is scheduled
to take place on February 4, 2004).
(d) Executive will receive a one-time grant of 25,000 shares of the
Class B common stock of the Company as restricted shares, subject to the
Company's Stock Option Plan,
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which restrictions will lapse if, and only if, the Company has met its fiscal
2004 operating income threshold and Executive has not been terminated prior to
January 1, 2005.
(e) Effective on the Commencement Date, Executive will be entitled
to participate in the Company's health benefit plans, together with the
Company's Executive vacation policy, matching 401-K plan, deferred compensation
plan, stock prices and similar plans in effect from time to time. Executive's
participation in the foregoing plans, perquisites and travel and entertainment
policy will be on terms no less favorable than afforded to other executives of
the Company commensurate with Executive's level.
5. Termination of Employment Period; Change of Control
5.1 Employer may, at any time during the Employment Period by notice to
Executive (the "Termination Notice"), terminate the Employment Period for
"Cause" effective immediately. The Termination Notice shall specify the Cause
for termination. In such an event, Executive shall not be entitled to any
compensation or other amount from the Company from the effective date of
termination. For purposes hereof, for "Cause" means:
(a) Executive is convicted of a felony involving dishonesty,
fraud or breach of trust; or
(b) Executive engaged in wrongful conduct materially injurious
to the Company; provided that such conduct was not undertaken at the direction
of, or with the approval of, the Board or CEO; further provided that in the
event that the wrongful conduct is capable of being cured, Executive shall have
15 days from his receipt of the Termination Notice to cease or cure such
conduct.
5.2 The company may terminate this Agreement at any time, by delivering a
notice to Executive, without Cause, effective 30 days after Executive receives
such notice in accordance with the terms hereof. In such an event, Executive's
sole remedy shall be:
(a) to collect all unpaid Base Salary and all unreimbursed
expenses payable for all periods through the effective date of termination; plus
(b) if such termination occurs in and only in the first year
of the Initial Period (i.e., in calendar 2004), the sum of $162,500; plus
(c) a severance payment in the sum of 12 months of Executive's
then Base Salary;
(the sum of paragraphs 5.2 (a), (b) and (c) being collectively referred to as
the "Severance Payment").
The Severance Payment will be due and payable on the effective date of the
termination of this Agreement. In the event that the Severance Payment, all Base
Salary and all other amounts due hereunder to Executive are not paid in full on
such date, Executive will continue to earn his Base Salary until all such
amounts are paid in full.
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5.3 (a) In the event Executive becomes totally disabled or
disabled such that he is rendered unable to perform substantially all of his
usual duties for Company, and if such disability shall persist for a continuous
period in excess of three months, or an aggregate period in excess of three
months in any one fiscal year, Company shall have the right at any time after
the end of such period during continuance of Executive's disability by the
delivery of not less than 30 days' prior written notice to Executive to
terminate Executive's employment under this Agreement whereupon the applicable
provisions of Paragraph 5.4 below shall apply.
(b) For purposes of this Agreement, if Executive and Company
shall disagree as to whether Executive is totally disabled, or disabled such
that he is rendered unable to perform substantially all of his usual duties for
Company as set forth above, or as to the date at which time such total
disability began, the decision of a licensed medical practitioner, mutually
agreed upon by the parties, shall be binding as to both questions. If the
parties cannot agree as to the identity of the licensed medical practitioner,
Executive shall select a licensed medical practitioner of his choice and the
Company shall select a licensed medical practitioner of its choice. The two
licensed medical practitioners so selected shall select a third licensed medical
practitioner, which third individual shall resolve either or both of the
questions referred to above and which resolution shall be binding upon the
parties.
5.4 If Executive's employment with the Company is terminated on account of
Executive's disability as provided for in Paragraph 5.3 above or on account of
Executive's death, then Executive (or Executive's estate or personal
representative, as applicable) shall only be entitled to receive, and Company
shall pay to Executive (or Executive's estate or personal representative, as
applicable) the following amounts:
(a) all unpaid Base Salary and all unreimbursed expenses
payable for all periods through the effective date of termination; plus
(b) the sum of six months of Executive's then Base Salary;
plus
(c) a pro rata payout under the incentive compensation plan
for Executive in the year of such termination in an amount equal to the
fraction, the numerator of which is the number of calendar days from the
beginning of the year of such termination through the effective date of
termination and the denominator of which is 365.
5.5 The Company is party to a certain severance agreement with certain
executives of the Company ("the Severance Agreement"). The Company will enter
into a Severance Agreement on substantially the same terms upon the execution
hereof by Executive.
5.6 If Executive's employment with Company is terminated for any reason,
Company will have no right of offset, nor will Executive be under any duty or
obligation to seek alternative or substitute employment at any time after the
effective date of such termination or otherwise mitigate any amounts payable by
Company to Executive.
5.7 Executive shall have the right by the delivery of written notice to
Company within 30 days after either of the events hereinbelow set forth in
subparagraphs (a) or (b) to terminate his employment under this Agreement and
receive the Severance Payment as a result of "Constructive Termination without
Cause." Constructive Termination without Cause shall mean
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termination by the Executive of his employment following the occurrence of
either of the following events without Executive's written consent:
(a) Executive's being asked to report to anyone other than the
CEO of the Company;
(b) Company hires a Company President or COO;
(c) a material diminution in Executive's duties; or
(d) if Executive's principal place of business for the
performance of his duties is changed to a location more than 50 miles from
Glendale, California.
Any such Severance Payment will be in addition to any salary or other payments
due you through the effective date of such termination.
6. Location of Executive's Activities
Executive's principal place of business in the performance of his duties
and obligations under this Agreement shall be at Employer's place of business in
Glendale, California. Notwithstanding the preceding sentence, Executive will
engage in such travel and spend such time in other places as may be necessary or
appropriate in furtherance of his duties hereunder at the Employer's expense.
7. Miscellaneous
7.1 Notices. All notices, requests, demands, consents, and other
communications required or permitted to be given or made hereunder shall be in
writing and shall be deemed to have been duly given and received, (i) if
delivered by hand, the day it is so delivered, (ii) if mailed via the United
States mail, certified first class mail, postage prepaid, return receipt
requested, five business days after it is mailed, or (iii) if sent by a
nationally recognized overnight courier for next business day delivery, the
business day after it is sent, to the party to whom the same is so given or
made, at the address of such party as set forth at the head of this Agreement,
which address may be changed by notice to the other party hereto duly given as
set forth herein, with copies delivered as follows:
(a) if to Executive:
0000 Xxx Xxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
(b) if to the Company:
General Counsel
Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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7.2 Governing Law; Jurisdiction. This agreement shall be governed by, and
construed and enforced in accordance with, the substantive and procedural laws
of the State of Illinois. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts located in Xxxx County,
Illinois, and waives any claim based upon forum non-conveniens.
7.3 Headings. All descriptive headings in this agreement are inserted for
convenience only and shall be disregarded in construing or applying any
provision of this Agreement.
7.4 Counterparts. This Agreement maybe executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
7.5 Severability. If any provision of this Agreement, or part thereof, is
held to be unenforceable, the remainder of such provision and this Agreement, as
the case may be, shall nevertheless remain in full force and effect.
7.6 Entire Agreement and Representation. This Agreement contains the
entire agreement and understanding between Employee and Executive with respect
to the subject matter hereof. This Agreement supersedes any prior agreement
between the parties relating to the subject matter hereof. Except as otherwise
provided herein, this Agreement cannot be changed or terminated except by an
instrument in writing signed by the parties hereto.
7.7 Binding Effect. This Agreement shall be binding upon, and insure to
the benefit of, each parties' successors, transferees, heirs and assigns.
7.8 Confidentiality; Disclosure of Information
(a) Executive recognized and acknowledges that he will have
access to Confidential Information (as defined below) relating to the business
or interests of Company or of persons with whom Company may have business
relationships. Except as permitted herein or as may be approved by Company from
time to time, Executive will not during the Employment Period or at any time
thereafter, use or disclose to any other person or entity, any Confidential
Information of Company (except as required by applicable law or in connection
with performance of Executive's duties and responsibilities hereunder). If
Executive is requested or becomes legally compelled to disclose any of the
Confidential Information, he will give prompt notice of such request or legal
compulsion to Company. Company may waive compliance with this Paragraph 7.8(a)
or will provide Executive with legal counsel at no cost to Executive to seek an
appropriate remedy; provided however Executive may disclose any Confidential
Information in the event notwithstanding all such efforts of the Company and
such legal counsel Executive if compelled by court order to do so. The term
"Confidential Information" means information relating to Company's business
affairs, proprietary technology, trade secrets, patented processes, research and
development data, know-how, market studies and forecasts, competitive analyses,
pricing policies, executive lists, employment agreements (other than this
Employment Agreement), personnel policies, the substance of agreements with
customers, suppliers and others, marketing arrangements, customer lists,
commercial arrangements, or any other information relating to Company's business
which is treated as confidential or proprietary by Company in accordance with
its policies. Notwithstanding the immediately preceding sentence,
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the provisions of this Paragraph 7.8(a) shall not apply to any information that
(1) is in the public domain; (2) is or becomes available to the public other
than as a result of a disclosure by Executive in violation of this Paragraph
7.8(a); (3) was available to Executive on a non-confidential basis prior to the
date of this Employment Agreement; (4) was already lawfully in Executive's
possession prior to the date of this Employment Agreement; or (5) becomes
available to Executive on a non-confidential basis from a source other than
Company. This obligation shall continue until such Confidential Information
becomes publicly available, other than pursuant to a breach of this Paragraph
7.8(a) by the Executive, regardless of whether the Executive continues to be
employed by the Company.
(b) It is further agreed and understood by and between the
parties to this Agreement that all "Company Materials," which include, but are
not limited to, computers, computer software, computer disks, tapes, printouts,
source, HTML and other codes, flowcharts, schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks, customer lists, sound
recordings, other tangible or intangible manifestation of content, and all other
documents whether printed, typewritten, handwritten, electronic, or stored on
computer disks, tapes, hard drives, or any other tangible medium, as well as
samples, prototypes, models, products and the like shall be the exclusive
property of Company and, upon termination of Executive's employment with
Company, and/or upon the request of Company, all Company Materials, including
copies thereof, as well as all other Company property then in Executive's
possession or control, shall be returned to and left with Company.
7.9 Copyright
Executive acknowledges that all original works of authorship by
Executive, whether created alone or jointly with others, relating to the
Executive's employment with the Company, and which are protectable by copyright,
are "works made for hire" within the meaning of the United States Copyright Act,
17 U.S.C. ss. 101, as amended, and the copyright of which shall be owned solely,
completely and exclusively by Company. If any such work is considered to be a
work not included in the categories of work covered by the United States
Copyright Act, 17 U.S.C. ss. 101, as amended, such work is hereby conveyed and
transferred completely and exclusively to Company. Executive hereby irrevocably
designates counsel to Company as Executive's agent and attorney-in-fact to do
all lawful acts necessary to apply for and obtain patents and copyrights and to
enforce Company's rights under this section, provided that such counsel shall
take any such actions only after Executive has been requested to do such acts by
Company and failed to promptly do so. This Paragraph 7.9 shall survive the
termination of this Agreement. Any conveyance of copyright hereunder includes
all rights of paternity, integrity, disclosure and withdrawal and any other
rights that my be known as or referred to as "moral rights."
7.10 Indemnification
Company recognizes that the activities within the scope of
Executive's employment create the potential in some jurisdictions of civil or
even criminal actions being brought against Executive. To the fullest extent
permitted by law, Company shall indemnify, defend, protect and hold Executive
harmless from and against all claims, demands, causes of action, actions, suits,
costs, damages, penalties, fines, liabilities, losses and expenses, whether
civil or criminal, including, without limitation, reasonable attorneys' and
consultant's fees and expenses arising out of or resulting from the performance
of Executive's duties within the scope
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of Executive's employment. Company will include Executive as a named insured on
Company's directors and officers liability policy.
7.11 Non-Competition and Non-Solicitation
Executive acknowledges that Company has invested substantial time,
money and resources in the development and retention of its Confidential
Information (including trade secrets), customers, accounts and business
partners, and further acknowledges that during the course of Executive's
employment with Company, Executive will have access to Company's Confidential
Information (including trade secrets), and will be introduced to existing and
prospective customers, vendors, cable operators, accounts and business partners
of Company. Executive acknowledges and agrees that any and all "goodwill"
associated with any existing or prospective customer, vendor, cable operator,
account or business partner belongs exclusively to Company, including, but not
limited to, any goodwill created as a result or direct or indirect contacts or
relationships between Executive and any existing or prospective customers,
vendors, cable operators, accounts or business partners. Additionally, the
parties acknowledge and agree that Executive possesses skills that are special,
unique or extraordinary and that the value of Company depends upon his use of
such skills on its behalf.
In recognition of this, Executive covenants and agrees that:
(a) During Executive's employment with Company, Executive may not,
without prior written consent of Company (whether as an executive, agent,
servant, owner, partner, consultant, independent contractor, representative,
stockholder, or in any other capacity whatsoever) perform any work directly
competitive in any way to the business of Company or a substantially planned
business that Executive is aware of during Executive's employment with Company
on behalf of any entity or person other than Company (including Executive).
(b) During Executive's employment with Company and for one year
thereafter, Executive may not notice, solicit or encourage any Company employee
to leave the employ of the Company or any independent contractor to sever its
engagement with Company, absent prior written consent from Company.
(c) During Executive's employment with Company and for one year
thereafter, Executive may not, directly or indirectly, entice, solicit or
encourage any customer or prospective customer of Company to cease doing
business with Company, reduce its relationship with Company or refrain from
establishing or expanding a relationship with Company.
7.11 Non-Disparagement; Non-Disclosure
(a) Executive and Company hereby agree that during the Employment
Period and all times thereafter, neither Executive or Company will make any
public statement, or engage in any conduct, that is disparaging to the other
party or, in the case of Company, any of its Executives, officers, directors, or
shareholders known to Executive, including, but not limited to, any statement
that disparages the products, services, finances, financial condition,
capabilities or other aspect of the business of Company and the capabilities of
Executive. Notwithstanding any term to the contrary herein, neither Executive
nor Company shall be in breach of this Paragraph 7.11 for the making of any
truthful statements under oath.
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(b) Executive will not directly or indirectly be the source of
disclosing, by publishing or by granting interviews, of any Confidential
Information (which is known to Executive to be confidential) concerning the
personal, social or business activities of Company, its affiliates or the
executives and principals and the officers, directors, agents and Executives of
all the foregoing during or at any time after the termination of Executive's
employment, subject to the exceptions specified in Section 7.8(a) (1) - (5). In
addition, Executive agrees that without Company's express written approval in
each case, Executive will not:
i. write, be the source of or contribute to any
articles, stories, books, screenplays or any other
communication or publicity of any kind (written or
otherwise) or deliver lectures in any way regarding or
concerning the Confidential Information, or
ii. grant any interviews regarding or concerning the
Confidential Information during or at any time after the
termination of his employment.
7.12 Representations and Warranties. The execution, delivery and
performance of this Agreement by the Company has been duly authorized by all
necessary corporate action of the Company and this Agreement constitutes the
legal, valid and binding obligation or the Company, enforceable against the
Company in accordance with its terms and (3) this Agreement (to the extent that
it pertains to Options) does, or prior to Executive's exercise of any Options,
will, comply with the Plan; and
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Playboy Enterprises, Inc.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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