Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into on
this 16th day of April, 2004 (the "EXECUTION Date") and effective as of the 1st
day of January, 2004 (the "Effective Date"), by and between Equity Marketing,
Inc., a Delaware corporation (the "COMPANY"), and Xxxx X. Xxxxxx ("EXECUTIVE").
1. ENGAGEMENT AND DUTIES.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages and employs Executive as an officer of the
Company, with the title and designation "President, Client Operations and
Services." Executive hereby accepts such engagement and employment.
(b) During the term of this Agreement, the Executive, as President,
Client Operations and Services, of the Company, shall report to the Chief
Executive Officer of the Company. The Executive shall, subject to the direction
and control of the Chief Executive Officer, have general and active supervision
and control of the client operations and services of the Company and shall
perform all duties and enjoy all powers commonly incident to the position of
President, Client Operations and Services and otherwise as may be delegated to
him from time to time by the Chief Executive Officer; provided, however, that in
no event shall the scope of the Executive's duties or the extent of the
Executive's responsibilities be substantially different from the Executive's
current duties and responsibilities. The Company represents and warrants that it
will provide Executive with the authority and the resources reasonably required
for Executive to discharge his responsibilities under this Agreement, as
existing from time to time.
(c) Executive agrees to devote his full-time business time, energy and
efforts to the business of the Company and will use his best efforts and
abilities faithfully and diligently to promote the Company's business interests.
(d) For so long as Executive is employed by the Company or is receiving
severance under Section 5(a) or Section 5(c) of this Agreement, Executive shall
not, directly or indirectly, as owner, partner, joint venturer, shareholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever engage in, become financially interested
in, be employed by, render any consultation or business advice with respect to,
or have
any connection with, any business engaged in the development, design,
manufacture, sale, marketing, utilization or exploitation of any products or
services which are designed for the same purpose as, are similar to, or are
otherwise competitive with, current, proposed or anticipated products or
services of the Company Group, in any geographic area where, prior to or at the
time of the termination of Executive's employment, the business of the Company
Group was being conducted or was proposed to be conducted in any manner
whatsoever; provided, however, that the Executive may own any securities of any
corporation which is engaged in such business and is publicly owned and traded
but in an amount not to exceed at any one time one percent (1%) of any class of
stock or securities of such corporation. Subject to the foregoing prohibition,
and provided such services or investments do not violate any applicable law,
regulation or order, or interfere in any way with the faithful and diligent
performance by Executive of the services to the Company otherwise required or
contemplated by this Agreement or duly requested by the Board, the Company
expressly acknowledges that Executive may:
(i) make and manage personal business investments of Executive's
choice without consulting the Board;
(ii) serve in any capacity with any civic, educational, charitable
or trade organization; and
(iii) serve as a member of the board of directors or board of
advisors of other companies or businesses with the approval of the Chief
Executive Officer, which approval will not be unreasonably withheld. Nothing
herein shall preclude Executive from being compensated for such extra-company
roles.
2. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
"BOARD" shall mean the Board of Directors of the Company.
"COMPANY GROUP" shall mean the Company, including all parent, subsidiary
and affiliated entities, and each Person with respect to which the Company
directly or indirectly has Control.
"COMPENSATION COMMITTEE" shall mean the members of the Board who have been
appointed by the Board to determine compensation issues relating to the Company.
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"CONSUMER PRICE INDEX ADJUSTMENT" shall be determined as follows: the
Consumer Price Index for the Los Angeles - Riverside - Orange County, CA (All
Items), as published by the United States Department of Labor, Bureau of Labor
Statistics (1982-84=100) (the "INDEX") which is most recently available at the
commencement of the new year (the "NEW INDEX") shall be compared with the Index
most recently available twelve months prior to the New Index (the "PREVIOUS
INDEX"). If the New Index has increased over the Previous Index, the Consumer
Price Index Adjustment shall be set by multiplying the Base Rate of the prior
year by a fraction, the numerator of which is the New Index and the denominator
of which is the Previous Index; provided, however, that if the Index is changed
so that the base year used for the New Index differs from that used for the
Previous Index, the New Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of a majority of the outstanding voting securities of such Person, or
(ii) the power, directly or indirectly, by proxy, voting trust or otherwise, to
elect any of the outstanding directors, trustees or other managing persons of
such Person.
"EMPLOYMENT COMMENCEMENT DATE" shall mean January 1, 2004.
"EMPLOYMENT TERM" shall mean January 1, 2004 through December 31, 2006,
unless earlier terminated as provided herein.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Executive's employment with the Company, that:
(a) Executive materially breaches any obligation, duty or agreement
under this Agreement, which breach is not cured or corrected within 15 days of
written notice thereof from the Company (except for breaches of Sections 1(d), 6
or 7 of this Agreement, which cannot be cured and for which the Executive shall
have no opportunity to cure);
(b) In the judgment of the Chief Executive Officer or the Board,
Executive is negligent in the course of providing services to the Company, or
commits any act of personal dishonesty, fraud or breach of fiduciary duty or
trust against the Company;
(c) Executive is convicted of, or pleads guilty or nolo contendere with
respect to, theft, fraud or felony under federal or applicable state law, or any
other conduct of a criminal nature that has or that may have an adverse effect
on the Company's reputation or standing in the
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community, or on its continuing relationships with customers or those who
purchase or use its products or services;
(d) Executive commits any act or acts of personal conduct that, in the
reasonable judgment of the Chief Executive Officer or the Board are in violation
of a Company policy or policies as set forth in the Employee Handbook of the
Company in effect at the time of the act or acts, including, without limitation,
any act or acts which give rise to a likelihood of liability under federal or
applicable state law for discrimination or sexual or other forms of harassment
or other similar liabilities with respect to subordinate employees; or
(e) Executive commits any act or acts in violation of specific
directions of the Chief Executive Officer or the Board, or continued and
repeated failure to his perform duties as reasonably assigned by or pursuant to
this Agreement.
"OTHER THAN FOR CAUSE" shall mean, in the context of termination of
Executive's employment with the Company, either:
(a) Any termination by the Company other than pursuant to Sections 4(a),
(b), (c) or (e) hereof; or
(b) Any termination by Executive following a material breach of this
Agreement by the Company, including without limitation, (i) a violation by the
Company of a material duty imposed by California law upon the Company as
Executive's employer that cannot be cured by the Company or that is not cured
within 15 days after written notice by Executive; (ii) a violation by the
Company of a legal duty imposed upon it by applicable law pursuant to which
Executive may be subject to civil or criminal liability in connection with the
Company's wrongdoing or any failure by him to report such wrongdoing, provided
that the Executive did not personally commit the wrongdoing; or (iii) any
material change in Executive's title, or in the character or scope of
Executive's responsibilities, authority, or resources.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
(a) Base Salary. The Company shall pay to Executive a base salary (the
"BASE SALARY") at an annual rate of $350,000 during the period from January 1,
2004 to December 31, 2004, and at an annual rate of $400,000 during the period
from January 1, 2005 to December 31, 2005. Base Salary for the year commencing
January 1, 2006 shall be adjusted upward in an
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amount at the sole discretion of the Compensation Committee; provided, however,
that such upward adjustment shall be greater than or equal to the Consumer Price
Index Adjustment. The Base Salary shall be payable in installments throughout
the year in the same manner and at the same times the Company pays base salaries
to other executive officers of the Company.
(b) Bonus.
(i) Annual Financial Performance Bonus. Executive shall be
eligible to receive an annual financial incentive bonus no later than 90 days
after the end of each calendar year that is included within the Employment Term.
The amount of such bonus shall be determined in accordance with the Board
approved bonus program for executive officers as in effect from time to time
during the Employment Term; provided, however that Executive's targeted bonus
shall be 25% of Base Salary for the applicable year and the maximum bonus shall
be 50% of base salary for the applicable year.
(ii) Long Term Incentive Plan Participation. During each year of
the Employment Term, the Executive shall be eligible to participate in the
Equity Marketing, Inc. Long Term Incentive Plan (the "LTIP"). The amount and
terms of any LTIP award to Executive shall be determined in the discretion of
the Board and shall be subject to the terms and conditions of the LTIP.
(iii) Restricted Stock Units. On or before April 1, 2004, Executive
shall be granted 5,000 restricted stock units with a four year vesting schedule
and subject to the terms, conditions and limitations contained in the applicable
plan for such grant. During each subsequent year of the Employment Term and at
the same time as any annual awards of stock based compensation to other
executive officers of the Company, Executive shall be eligible to receive, in
the discretion of the Board, additional grants of restricted stock units, all
subject to the terms, conditions and limitations contained in the applicable
plan for such grant.
(iv) Stock Options. On the Execution Date, Executive shall receive
a grant of 100,000 options to purchase Common Stock ("OPTIONS") subject to the
terms, conditions and limitations contained in the form of Stock Option
Agreement attached hereto as Exhibit "A."
(c) Reimbursement. Executive shall be entitled to reimbursement from the
Company for the reasonable costs and expenses that he incurs in connection with
the performance of his duties and obligations under this Agreement in a manner
consistent with the Company's practices and policies for reimbursements for
executive officers.
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(d) Additional Reimbursement. During the Term of this Agreement, the
Company shall reimburse Executive on a basis comparable to the current practice
of the Company, for leasing garage space, telephone and home office equipment
for his use in performing his employment duties and obligations under this
Agreement.
(e) Group Benefit Plans. Executive shall be eligible to participate in
the Company's group health, dental, life, disability, retirement (including
401(k)) and pension benefit plans, subject to the terms, conditions and
limitations contained in the applicable plan documents and insurance policies.
(f) Vacation. In accordance with the Company's policy for executives at
the rank of vice president and above, no specific amount of vacation time will
be accrued by Executive. Executive shall be entitled to take the amount of
vacation time he and his supervisor determine to be appropriate in light of his
workload from time to time. Any vacation time shall be scheduled to minimize
interference with the exercise of Executive's duties under this Agreement.
(g) Insurance. During the Employment Term, the Company shall pay the
Executive such additional amounts on an after-tax basis as are required for the
Executive to maintain and pay all premiums on (i) group long term disability and
executive supplemental disability insurance paying at least $19,375 (gross) per
month (subject to Executive meeting underwriting guidelines for standard rates),
and (ii) term life insurance having a face value payable on death of no less
than $2 million, net of all loans or encumbrances, on the life of the Executive
with the Executive (or his estate) as beneficiary (subject to Executive meeting
underwriting guidelines for standard rates).
(h) Withholding. The Company may deduct from any compensation payable to
Executive the minimum amounts sufficient to cover applicable federal, state
and/or local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and payments.
(i) Fringe Benefits. During the Employment Term, Executive shall be
entitled to an automobile allowance of $1,000 per month. The automobile
allowance shall be paid in a manner consistent with the Company's practices and
policies therefor. The Company also agrees to reimburse Executive, on a taxable
basis, up to a total of $20,000 for the cost of reasonable attorneys' fees
incurred in connection with the preparation of this Agreement and in connection
with the preparation of an updated estate plan.
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4. TERMINATION OF EMPLOYMENT.
Executive's employment pursuant to this Agreement shall commence on the
Employment Commencement Date and shall terminate on the earliest to occur of the
following:
(a) upon the death of Executive;
(b) upon delivery to Executive of written notice of termination by the
Company if Executive shall suffer a physical or mental disability which renders
Executive unable to perform his duties and obligations under this Agreement for
at least 120 days, whether or not consecutive, in any 12-month period;
(c) upon delivery to Executive of written notice of termination by the
Company For Cause;
(d) upon delivery to Executive by the Company, or to the Company by
Executive, of written notice of termination Other Than For Cause; or
(e) December 31, 2006.
5. SEVERANCE COMPENSATION.
(a) If Executive's employment is terminated pursuant to Section 4(a)
(death) or Section 4(b) (disability), the Company shall pay to the Executive or
his estate his full Base Salary through the end of the month of Executive's
death or disability, and Executive or his estate shall be entitled to a prorated
share of any bonus or benefits as provided under Section 3 hereof for the
calendar year during which his death or disability occurred.
(b) If Executive's employment is terminated pursuant to Section 4(c) (by
the Company For Cause), Executive's Base Salary and all benefits under Section 3
shall cease as of the date of termination, and Executive shall not be entitled
to any bonus for the calendar year during which his employment shall be
terminated or at any time thereafter. In the event of termination of Executive's
employment pursuant to Section 4(c) (by the Company For Cause), and subject to
applicable law and regulations, the Company shall be entitled to offset against
any payments due Executive the loss and damage, if any, which shall have been
suffered by the Company as a result of the acts or omissions of Executive giving
rise to termination under Section 4(c). The foregoing shall not be construed to
limit any cause of action, claim or other rights which the Company may have
against Executive in connection with such acts or omissions. The foregoing shall
not be construed to limit any claim, defense, or other right that Executive may
have against the Company.
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(c) If Executive's employment is terminated pursuant to Section 4(d)
(Other Than For Cause) prior to the end of the Employment Term, Executive shall
be entitled to continue to receive (i) his Base Salary in accordance with
Section 3(a) of this Agreement, and (ii) the benefits provided under Sections
3(e), 3(g) and 3(i) of this Agreement, for a period of 12 months from the date
of such termination (the "SEVERANCE PERIOD"), payable at the same time and in
the same manner as if Executive's employment had not terminated. If for some
reason the Executive is not eligible to participate in the Company's group
plans, the Company shall pay the COBRA premiums associated with Executive's
obtaining comparable benefits. If Executive obtains other employment during the
Severance Period, any income therefrom that is earned during the Severance
Period shall be credited against amounts due hereunder and payment of the
benefits provided under Sections 3(e), 3(g) and 3(i) of this Agreement shall
cease on the date Executive becomes eligible for group health benefits with his
new employer.
(d) If Executive terminates his employment in breach of this Agreement
prior to the end of the Employment Term, Executive shall as of the date of
termination cease to be entitled to Base Salary, benefits or bonuses. In
addition, the Company shall be entitled to seek any other available remedies
pursuant to this Agreement or otherwise for such breach, and to offset against
any amounts due Executive any damages suffered as a result of such breach.
(e) Executive acknowledges that the Company has the right to terminate
Executive's employment Other Than For Cause and that such termination shall not
be a breach of this Agreement or any other express or implied agreement between
the Company and Executive. Accordingly, in the event of such termination,
Executive shall be entitled only to the compensation and benefits specifically
provided for in this Agreement and the Consulting Agreement, if applicable, in
the event of such termination, and shall not have any other rights to any
compensation or damages from the Company for breach of contract.
(f) Executive acknowledges that in the event of termination of his
employment for any reason, he shall not be entitled to any severance or other
compensation from the Company except as specifically provided in this Section 5.
Without limitation on the generality of the foregoing, this Section supersedes
any plan or policy of the Company which provides for severance to its officers
or employees, and Executive shall not be entitled to any benefits under any such
plan or policy.
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(g) Notwithstanding any contrary provision herein, if Executive's
employment is terminated by the Company pursuant to Section 4(d) (Other Than For
Cause), Executive shall receive the following courtesies and cooperation from
the Company: (i) the Company shall maintain a voice-mail box on its phone system
for Executive's use for not less than three (3) months, subject to Executive not
identifying himself as an officer or employee of the Company in connection with
any recorded information thereon; (ii) whether previously owned by Executive or
the Company, Executive shall have title and right of exclusive possession of his
laptop computer and his personal digital assistant/Blackberry (subject to his
assumption of any ongoing lease obligation and all monthly service charges
incurred in connection therewith); and (iii) the Company shall pay for
appropriate outplacement services for six (6) months. Nothing in this paragraph
shall allow Executive to retain Confidential Information of the Company without
the Company's consent.
6. COVENANT NOT TO SOLICIT.
(a) For so long as Executive is employed by the Company, and for a
period of one year thereafter, Executive will not directly or indirectly, either
alone or by action in concert with others: (i) induce any employee of any member
of the Company Group to engage in any activity in which Executive is prohibited
from engaging by Section 1(d) of this Agreement or to terminate his or her
employment with any member of the Company Group; or (ii) employ or offer
employment or induce any Person to employ or offer employment to anyone who is
or was within the 12 months prior to the date of the proscribed action employed
by any member of the Company Group; or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relationship of any member of the
Company Group to discontinue or reduce its business with any member of the
Company Group, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relationship and any member of the
Company Group; or (iv) solicit or accept any business whatsoever from any of the
customers with which the Company did business during the Executive's engagement
or employment by the Company.
(b) Executive acknowledges that the Company Group conducts business on a
world-wide basis, that its sales and marketing prospects are for continued
expansion into world markets and that, therefore, the territorial and time
limitations set forth in Section 1(d) and in this Section 6 are reasonable and
properly required for the adequate protection of the business of the Company
Group. In the event any such territorial or time limitation is deemed to be
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unreasonable by a court of competent jurisdiction, Executive agrees to the
reduction of the territorial or time limitation to the area or period which such
court deems reasonable.
(c) If any portion of the restrictions set forth in Section 1(d) and in
this Section 6 should, for any reason whatsoever, be declared invalid by a court
of competent jurisdiction, the validity or enforceability of the remainder of
such restrictions shall not thereby be adversely affected.
(d) The existence of any claim or cause of action by Executive against
the Company shall not constitute a defense to the enforcement by the Company of
the restrictive covenants set forth in Section 1(d) and in this Section 6. Any
claim or cause of action by Executive against the Company shall be litigated in
a separate action from any enforcement action brought by the Company under
Section 1(d) or this Section 6..
7. CONFIDENTIALITY.
Executive will not at any time (whether during or after his employment
with the Company) disclose or use for his own benefit or purposes or the benefit
or purposes of any other Person, other than any member of the Company Group, any
trade secrets, information or data of a proprietary or sensitive nature, or
other confidential information relating to customers, development programs,
costs, marketing, trading, investment, sales activities, promotion, credit and
financial data, financial methods, plans, or the business and affairs of the
Company Group generally. Executive agrees that upon termination for any reason
of this Agreement, he will immediately return to the Company all such
confidential memoranda, books, papers, plans, information, letters and other
data of a proprietary or sensitive nature, and all copies thereof or therefrom,
in any way relating to the business of the Company Group. Executive further
agrees that he will not retain or infringe at any time any trade name, trademark
or other proprietary business designation used or owned in connection with the
business of any member of the Company Group.
8. COPYRIGHT AND TRADEMARKS.
(a) All right, title and interest, of every kind whatsoever, in the
United States and throughout the world, in (i) any work, including the copyright
thereof (for the full terms and extensions thereof in every jurisdiction),
created by the Executive at any time during his employment by the Company, and
all material embodiments of the work subject to such rights; and (ii) all
inventions, ideas, discoveries, designs and improvements, patentable or not,
made or
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conceived by the Executive at any time during the term of his employment by the
Company, shall be and remain the sole property of the Company without payment of
any further consideration to the Executive or any other person than as set forth
herein, and each such work shall, for purposes of United States copyright law,
be deemed created by the Executive pursuant to his duties as an employee of the
Company and within the scope of his employment and shall be deemed a work made
for hire; and Executive agrees to assign, at the Company's expense, and the
Executive does hereby assign, all of his right, title and interest in and to all
such works, copyrights, materials, inventions, ideas, discoveries, designs and
improvements, patentable or not, and any copyrights, letters patent, trademarks,
trade secrets, and similar rights, and the applications therefor, which may
exist or be issued with respect thereto. For the purposes of this Section 8,
"works" shall include all materials created during the term of Executive's
employment by the Company, whether or not ever used by or submitted to the
Company, including, without limitation, any work which may be the subject matter
of a copyright under the United States copyright law. In addition to its other
rights, the Company may copyright any such work in its name in the United States
in accordance with the requirements of the United States copyright law and the
Universal Copyright Convention and any other convention or treaty to which the
United States is or may become a party. Notwithstanding the foregoing, Executive
is hereby notified and acknowledges that this Section 8(a) does not apply (i) to
an invention which qualifies fully under the provisions of Section 2870 of the
California Labor Code and/or (ii) to any work(s) which were developed entirely
on Executive's own time without using the Company's equipment, supplies,
facilities, or trade secrets, except as to any of these which are related to the
Company's business or actual or demonstrably anticipated research or development
of the Company.
(b) Whenever the Company shall so request, whether during or after the
term of his employment with the Company, the Executive shall execute,
acknowledge and deliver all applications, assignments or other instruments; make
or cause to be made all rightful oaths; testify in all legal proceedings;
communicate all known facts which relate to such works, copyrights, inventions,
ideas, discoveries, designs and improvements; perform all lawful acts and
otherwise render all such assistance as the Company may deem necessary to apply
for, obtain, register, enforce and maintain any copyrights, letters patent and
trademark registrations of the United States or any foreign jurisdiction or
under the Universal Copyright Convention (or any
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other convention or treaty to which the United States is or may become a party),
or otherwise to protect the Company's interests therein, including any which the
Company shall deem necessary in connection with any proceeding or litigation
involving the same. The Company shall reimburse the Executive for all reasonable
out-of-pocket costs reasonably incurred by the Executive in testifying at the
Company's request or in rendering any other assistance requested by the Company
pursuant to this Section 8. All registration and filing fees and similar
expenses shall be paid by the Company. For any and all services rendered by
Executive under this paragraph after the termination of his employment with the
Company, the Company shall compensate executive for the reasonable value of his
time, and shall make every reasonable effort to accommodate his schedule.
9. SPECIFIC PERFORMANCE.
Executive acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of Sections 1(d), 6 or 7
would be inadequate and, in recognition of this fact, Executive agrees that, in
the event of such a breach or threatened breach, in addition to any remedies at
law, the Company shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available. In
addition, the Executive recognizes that the services to be rendered by him to
the Company are of a special, unique, unusual, extraordinary and intellectual
character involving skill of the highest order and giving them peculiar value,
the loss of which cannot be adequately compensated in damages. Consequently, in
the event of a breach of this Agreement by the Executive, the Company shall be
entitled to injunctive relief or any other legal or equitable remedies. The
Executive agrees that the Company also may recover by appropriate action the
amount of the actual damage caused the Company by any failure, refusal or
neglect of the Executive to perform his agreements, representations and
warranties contained in this Agreement. The remedies provided in this Agreement
shall be deemed cumulative and the exercise of one shall not preclude the
exercise of any other remedy at law or in equity for the same event or any other
event.
10. RESOLUTION OF DISPUTES.
(a) Except as provided in subsection (c) below, any controversy or claim
between or among the parties, relating to Executive's employment with the
Company, including but not limited to those arising out of or relating to this
Agreement or any agreements or instruments
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relating hereto or delivered in connection herewith and any claim based on or
arising from an alleged tort, shall at the request of any party be determined by
arbitration. The arbitration shall be conducted in Los Angeles, California, in
accordance with the United States Arbitration Act (Title 9 of the United States
Code), notwithstanding any choice of law provision in this Agreement, and under
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA"). The parties shall have the right to review and
approve a panel of prospective arbitrators supplied by AAA, but the arbitration
shall be conducted by a single arbitrator selected from the approved panel by
AAA or by stipulation of the parties. The arbitrator shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator. The
arbitrator shall be entitled to order specific performance of the obligations
imposed by this Agreement. Judgment upon the arbitration award may be entered in
any court having jurisdiction.
(b) All decisions of the arbitrator shall be final, conclusive and
binding on all parties, provided that no decision of any arbitrator may be
enforced if (i) contrary to law, or (ii) if the arbitrator's decision is not in
writing, or (iii) if it fails to address all claims and defenses asserted in the
proceeding, or (iv) if it is contrary to the great weight of the evidence. The
fees and costs of the Arbitrator shall be paid entirely by the Company, except
that the Executive shall pay no more than any filing fee to pursue a civil
action for the claims asserted in either State or Federal Court, whichever fee
is lower. Each party shall pay for its own costs and attorneys' fees, if any.
However, the Arbitrator may award reasonable fees and costs to the Prevailing
Party (as defined in Section 11(h) hereof).
(c) Subsection (a) above does not prohibit a party from seeking and
obtaining injunctive relief from a court of competent jurisdiction pending the
outcome of arbitration. A party bringing an action for injunctive relief shall
not be deemed to have waived its right to demand arbitration of all disputes.
11. MISCELLANEOUS.
(a) Notices. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
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(i) If to the Company, to:
Equity Marketing, Inc.
0000 Xxx Xxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, General Counsel
Fax No. 000-000-0000
(ii) If to Executive, to:
Xxxx X. Xxxxxx
With a copy to:
Xxxxx & Associates
0000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxx Xxxxx, Esq.
Fax No. 000-000-0000
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the fifth day following deposit in the United States mails (or on
the seventh day if sent to or from an address outside the United States). Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter hereof, and any and all prior discussions, negotiations, commitments and
understandings, whether oral, written or implied, related to the subject matter
of this Agreement, are hereby extinguished and superseded. No representations,
oral or otherwise, express or implied, other than those contained in this
Agreement have been relied upon by any party hereto.
(c) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
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(d) Governing Law. This Agreement has been made and entered into in the
State of California and shall be construed in accordance with the laws of the
State of California.
(e) Captions. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Faxed signatures shall
have the effect of original signatures.
(g) Business Day. If the last day permissible for delivery of any notice
under any provision of this Agreement, or for the performance of any obligation
under this Agreement, shall be other than a business day, such last day for such
notice or performance shall be extended to the next following business day
(provided, however, under no circumstances shall this provision be construed to
extend the date of termination of this Agreement).
(h) Attorneys' Fees. If any action, proceeding or arbitration is brought
to enforce or interpret any provision of this Agreement, the Prevailing Party
shall be entitled to recover as an element of its costs, and not its damages,
its reasonable attorneys' fees, costs and expenses. The "PREVAILING PARTY" is
the party who would have been entitled to recover its costs under the California
Code of Civil Procedure had the action been maintained in the Superior Court of
California regardless of whether there is final judgment. A party not entitled
to recover its costs may not recover attorneys' fees. No sum for attorneys' fees
shall be counted in calculating the amount of a judgment for purposes of
determining whether a party is entitled to recover its costs or attorneys' fees.
(i) Advice from Independent Counsel. The parties hereto understand that
this Agreement is legally binding and may affect such party's rights. Each party
represents to the other that it has received legal advice from counsel of its
choice regarding the meaning and legal significance of this Agreement.
(j) Interpretation. Should any provision of this Agreement require
interpretation, it is agreed that any court or arbitrator interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any Person by reason of the rule of construction
that a document is to be construed more strictly against the Person who itself
or through its agent prepared the same, it being agreed that all Parties have
participated in the preparation of this Agreement.
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(k) Survival. The termination of the Executive's employment hereunder
shall not affect the enforceability of Sections 1(d), 6, 7 and 8.
(l) Waiver of Jury Trial. IF NOTWITHSTANDING THE AGREEMENT THAT ALL
DISPUTES BE SUBMITTED TO BINDING ARBITRATION, A DISPUTE IS SUBMITTED TO A COURT,
EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND
ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A TRIAL BY THE
COURT.
COMPANY:
EQUITY MARKETING, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President, General
Counsel and Secretary
EXECUTIVE:
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
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