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EXHIBIT 10.62
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of this 26th day
of April, 1999, by and between THE XXXXXX ENTERTAINMENT COMPANY, a California
corporation (the "Company"), and XXXX XXXXXXX (the "Employee").
Whereas, Company desires to engage the services of Employee, whose
experience, knowledge and abilities are extremely valuable to Company, and
Employee desires to enter the employ of Company,
Now, therefore, Company and Employee agree as follows:
1. Position and Duties; Reporting.
(a) Company hereby employs Employee, and Employee hereby accepts
employment, as President and Chief Operating Officer of Company during
the Term hereof as defined in Paragraph 6 below, with powers and duties
consistent with such position. Employee shall perform such additional,
different and/or incidental duties, and accept the election or
appointment to such other offices or positions, as designated by the
Chairman and Chief Executive Officer of Company and shall faithfully
observe Company's policies and procedures consistent with the provisions
hereof. Employee shall report directly to the Chairman and Chief
Executive Officer of the Company. All entertainment industry divisions
and their employees of the Company shall report to Employee, excepting
only finance/CFO, business affairs and legal. Notwithstanding the
foregoing, no one except the Chairman or Chief Executive Officer of
Company shall occupy a position at or above the level of Employee with
respect to the entertainment business operations of the Company as
currently configured.
Notwithstanding any contrary provision of this Agreement, if
Company shall be merged, consolidated with another corporation,
reorganized or restructured, or if as a result of one or more
acquisitions or otherwise, a holding company shall be established, and
if as a result of such merger, consolidation, reorganization,
restructuring or the establishment of such holding company, Employee is
not the President and Chief Operating Officer of a unit which
encompasses most of the business and operations theretofore under
Employee's
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purview,Employee shall be entitled to terminate his employment upon
written notice given to Company by Employee within three (3) months of
such change, and such termination shall be deemed to be a termination by
Company without Cause hereunder with the results and consequences
specified in Paragraph 6(b) below. No such termination shall be
effective before ninety (90) days after the giving of such notice by
Employee unless otherwise agreed by Company.
(b) Employee shall devote his full working time to the promotion
of Company's business and welfare, and as such his services in the
entertainment industry shall be exclusive to Company hereunder during
the Term, subject only to the provisions of Paragraph 10 below.
Notwithstanding any contrary provisions hereof, Employee may engage in
other business activities with Company's prior written consent provided
the same shall not adversely affect the performance of Employee's
services hereunder and provided further, during the Term hereunder,
Employee shall not, directly or indirectly, (i) engage in any business
for his own account which is competitive with the businesses of Company
or Company's subsidiaries or affiliates (collectively, "Competitive
Business") so long as Company or the Company's subsidiaries or
affiliates (as the case may be) continue to engage in such business;
(ii) enter the employ of, or render any services to, any person engaged
in a Competitive Business; or (iii) become interested in a Competitive
Business in any capacity including, without limitation, as an
individual, partner, shareholder, officer, director, principal, agent,
trustee or consultant. In addition, during the Term and the one-year
period following termination of his employment hereunder, Employee shall
not, directly or indirectly (i) induce any customer or supplier of
Company or Company's subsidiaries or affiliates to terminate its
relationship with Company or Company's subsidiaries or affiliates (as
the case may be), or (ii) solicit or induce any of Company's employees
to terminate their employment with Company, or hire or cause any of the
then current employees of Company to be hired by any other company
(except companies controlled by Company). Notwithstanding anything to
the contrary, Employee may acquire and/or retain, solely as an
investment, and take customary actions to maintain and preserve
Employee's ownership of:
(i) securities of any corporation which are registered under
Sections 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and which are publicly traded, as long as Employee
is not part of any control group of such corporation; and
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(ii) any securities of a partnership, trust, corporation or
other person so long as Employee remains a passive investor in
that entity and does not become part of any control group
thereof (except in a passive capacity) and so long as such
entity is not, directly or indirectly, in competition with the
Company or its subsidiaries or affiliates.
2. Compensation.
(a) Annual Guaranteed Salary. During the term of his employment
hereunder, the Company shall pay to Employee a salary, in equal
installments not less frequently than monthly, at the rate of $250,000
per year subject to review annually by the Board of Directors for
increase in the Board's discretion (however, the annual increase shall
be no less than 7-1/2% per year on a cumulative basis).
(b) Incentive Compensation. Employee shall be eligible for
consideration to receive an annual bonus based on Company's performance,
which bonus (if any) shall be determined by the Board of Directors in
its sole discretion; however, the bonus shall be no less than the bonus
to be paid to any other senior management executive of Company of
similar stature or position as Employee. Notwithstanding the foregoing,
Employee's bonus for the first year of the Term shall be no less than
fifty percent (50%) of the bonus received by Xxxxx Xxxxxxx for the same
bonus period.
3. Warrants and Stocks.
(a) Warrants to Purchase Common Stock. On the effective date
hereof, Employee shall be granted warrants ("Warrants") to purchase two
hundred ten thousand (210,000) shares of common stock no par value per
share ("Common Stock"), of Company pursuant to the terms of the Warrant
Agreement dated as of April 5, 1999, among the Company, Xxxxx Xxxxxxx
and the other signatories thereto (the "Warrant Agreement"). The
Warrants granted to Employee shall consist equally of Series A Warrants,
Series B Warrants and Series C Warrants of Company. The Warrants shall
vest as provided in Schedule I attached hereto.
(b) Stock Options. Employee shall have the right to participate
in stock option
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plans available to any other senior executive employee of Company of
equal or lesser stature to Employee. With the exception of the number of
options, such participation shall be on terms no less favorable than
those provided for any other senior executive employee of comparable or
lesser level to Employee in Company. Notwithstanding the foregoing,
Employee shall be entitled to not less than fifty percent (50%) of the
total stock options to which Xxxxx Xxxxxxx is entitled for the first
year of the Term, or if no stock options are awarded to Xxxxx Xxxxxxx
during the first year of the Term, then Employee shall be entitled to
not less than fifty percent (50%) of the total stock options initially
awarded to Xxxxx Xxxxxxx.
4. Expenses. Company will reimburse or pay Employee for all usual,
reasonable and necessary expenses paid or incurred by Employee in the
performance of his duties hereunder, consistent with Company's expense
reimbursement policies and subject to receipt by Company of appropriate
documentary proof of all expenditures for which reimbursement is sought, and in
any case, on a basis no less favorable than applicable to any Company executive
at or below Employee's level.
5. Employee Benefits. Employee shall be entitled to participate to
the full extent of the participation by any other senior executive employee of
Company of comparable level or below to Employee in any profit-sharing, pension,
vacation, health insurance, life insurance and disability or other plans,
benefits or policies available to the senior executive employees of comparable
level or below to Employee established by Company (in its sole and absolute
discretion) from time to time and not duplicative of those provided herein.
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6. Term.
(a) The period of Employee's employment by Company hereunder
(the "Term") shall commence on the effective date hereof and shall
terminate upon the first to occur of the following events: (i) four (4)
years from the effective date as set forth in Xxxxxxxxx 00 xxxxxx, (xx)
the death of Employee, (iii) at the option of Company upon twenty (20)
days prior written notice to Employee, in the event of the inability of
Employee to perform his duties hereunder, whether by reason of injury,
illness (physical or mental) or otherwise, for a period of four (4)
consecutive months or six (6) months in the aggregate ("disability"), or
(iv) the discharge of Employee for Cause. Cause shall mean, and be
limited to, (x) acts of deliberate dishonesty constituting either the
commission of a felony or the misappropriation of substantial corporate
assets for personal benefit, (y) willful failure to observe or follow
reasonable and explicit instructions or directives of Company, or (z)
willful malfeasance or willful failure to act involving material
nonfeasance, if in either case such malfeasance or nonfeasance would
have a material adverse effect on Company.
Company agrees to give written notice to Employee specifying the claimed
Cause and, provided such Cause is curable, to permit Employee to correct
the claimed Cause as soon as practical thereafter but no later than
seven (7) business days after receipt of the applicable notice. However,
in no event shall the occurrence of Cause within clause (x) of this
Paragraph 6(a) be subject to cure. Upon the termination of Employee's
employment pursuant to this Paragraph 6(a), Company shall have no
further liability or obligation of any kind or nature whatsoever to
Employee under this Agreement, except that any salary or other benefits
accrued or earned by Employee to the date of termination but not paid
shall be paid by Company to Employee or his estate, and Employee shall
be entitled to such benefits, if any, under Sections 4 and 5 hereof to
which he has become entitled prior to the date of his termination of
employment.
(b) If, without Cause, Company without Employee's consent
determines to remove Employee from the office of the President and Chief
Operating Officer of Company, Employee shall have the right to elect to
treat such event as a termination of his employment by Company without
Cause with the consequences provided in this Paragraph 6(b). If
Employee's employment is terminated by Company without Cause, Employee
shall be entitled to receive from Company until what would otherwise
have been the ending date of the period of employment hereunder
(determined as provided in Paragraph 6(a) hereof)
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the salary, benefits and emoluments in effect at the date of such
termination, including without limitation, any stock options and/or
Warrants heretofore granted which would have vested during the Term.
Upon the payment of the amounts provided in this Paragraph 6(b), Company
shall have no further liability or obligation of any kind or nature
whatsoever to Employee under this Agreement.
(c) Key Man Clause. Employee may terminate this Agreement at any
time during the first two years of the Term hereunder upon ninety (90)
days written notice if Xxxxx Xxxxxxx ceases to occupy and discharge both
of the offices of Chairman of the Board and Chief Executive Officer of
Company, which notice by Employee may occur no later than ninety (90)
days after such departure of Xxxxx Xxxxxxx. Upon the effective date of
such termination by Employee, Company shall be relieved of the
obligation to pay or provide salary or other compensation and/or
benefits to Employee for any period subsequent to such termination date,
excepting only the obligation to pay to Employee a lump sum amount equal
to nine (9) months salary and provide Employee any Warrants and/or stock
options vested at that time.
7. Mitigation: Employee shall have no obligation to seek employment
if Employee's employment hereunder is terminated without Cause; provided,
however, that Employee agrees that if Employee furnishes his services for other
engagements or employment after such termination hereunder, the total
compensation actually earned by Employee together with any welfare or other
benefits earned by Employee shall reduce any amounts and benefits which Company
would otherwise be required to pay or provide to Employee. Employee agrees that
he shall give written notice to Company (promptly after accepting employment or
furnishing his services after such termination of his employment with Company)
of any amounts earned (or to be earned) by Employee and any benefits provided
(or to be provided) to Employee pursuant to his new employment agreement.
8. Nondisclosure of Confidential Information.
(a) "Confidential Information" shall include, but not be limited
to, all of Company's and its subsidiaries' and affiliates' performance,
sales, financial, pricing, cost, manufacturing, contractual and
marketing information, ideas, knowledge and data, and all processes,
products, formulae, designs, practices, techniques, trade secrets,
research, know-how, merchandising agreements, licensing agreements,
distribution agreements,
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customer lists, technical requirements of customers and identity and
purchasing terms of suppliers.
(b) Employee acknowledges that Company, and its subsidiaries and
affiliates, have exclusive rights to all of their respective
Confidential Information and agrees to assign all rights he might
otherwise possess in any Confidential Information to the Company. Except
as required in the performance of his duties hereunder, Employee shall
not at any time during or after the term of his employment, directly or
indirectly use, communicate, disclose or disseminate, lecture
upon/publish articles or otherwise put in the public domain, any
Confidential Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to
Company, or its subsidiaries or affiliates, or their products,
operations and activities until such Confidential Information is
disclosed by law or legal process or becomes generally available to the
public by independent discovery, development or publication or generally
known within the industry other than as a result of Employee's breach
hereof.
(c) All documents, records, notebooks, notes, memoranda,
correspondence, computer records and other repositories of or containing
Confidential Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to
Company, or its subsidiaries or affiliates, or to its products,
operations and activities made or compiled by Employee at any time or
made available to Employee prior to or during the term of his employment
by Company, including any and all copies thereof shall be the property
of Company, shall be held by Employee in trust solely for the benefit of
the Company, and shall be delivered to Company by Employee on the
termination of Employee's employment or at any other time on the request
of Company. Employee may retain a copy of his personal rolodex subject
to the Company's right to cause to be deleted therefrom any Confidential
Information or other information of a proprietary nature to Company.
9. Warranties/Indemnities. Employee hereby represents and warrants
that he: (i) is free to enter into this Agreement and to furnish Company all of
the services and grant all of the rights herein set forth; (ii) is in good
health and free from any disability or other condition which will or could
interfere with the full performance of his obligations hereunder; and (iii) has
not made nor will make any commitments or do any acts in conflict with this
Agreement or in derogation of Company's rights hereunder. Employee shall defend,
indemnify and hold harmless Company and
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all those claiming under Company from and against any claims, damages,
liabilities, costs and expenses (including reasonable outside attorney's fees
and costs, whether or not in connection with litigation) arising out of any
breach or default by Employee hereunder. Employee agrees that Company shall have
the sole right to control the legal defense against any such claims, demands or
litigation, including the right to select counsel of its choice and to
compromise or settle any such claims, demands or litigation.
10. Ownership of Properties.
(a) Materials Created Prior to the Term: Heretofore Employee has
created or acquired interests in various potential motion picture,
television or other entertainment projects (either directly or through
an entity known as The Xxxxxxx Company). A list of all such properties
is attached hereto as Schedule II (including sections II-A and II-B
thereof). All such projects and properties may be hereinafter referred
to as "Pre-existing Projects".
Employee hereby assigns to the Company all of his right, title
and interest in and to the Pre-existing Projects and shall retain no
interest whatsoever thereto except as hereinafter specified in this
Paragraph 10(a). Of the projects listed in Schedule II, eight (8)
projects, hereinafter referred to as "Schedule II-A Projects", are
generally acknowledged by the parties to be those which have the
greatest potential of future viability. The remaining projects shall be
referred to as "Schedule II-B Projects". In consideration for assigning
to the Company all of his (or The Xxxxxxx Company's) right, title and
interest in and to the Pre-existing Projects, Company agrees to pay to
Employee and Employee agrees to accept concurrently with the execution
of all necessary documentation (satisfactory to counsel for the Company)
to effect the transfer of all of Employee's (or The Xxxxxxx Company's)
interest with respect thereto and to secure a proper chain of title
thereto, the sum of Sixty-Five Thousand Dollars ($65,000), of which sum
Employer acknowledges Thirty-Five Thousand Dollars ($35,000) heretofore
was paid by Company and received by Employee.
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If and to the extent any of the Schedule II-A or II-B Projects
is produced at any time, and including the first and any subsequent
versions, remakes, sequels, television or other adaptations, or the
like, all results and proceeds thereof shall be the sole property of the
Company provided that the Company shall pay or cause to be paid to
Employee (or to The Xxxxxxx Company) the following: With respect to any
Schedule II-A Property which is produced, an amount equal to sixty
percent (60%) of the Company's net proceeds derived from such Project
(such net proceeds being the remainder, if any, of the Company's gross
proceeds from such Project after payment of all amounts, if any,
required to be paid by Company as successor-in-interest to Employee, in
connection therewith to third parties and recoupment of all of the
Company's direct out-of-pocket expenses, if any, incurred in connection
with such Project, but excluding any overhead charges unless the Company
is involved in the financing of the Project, in which case the Company
shall be entitled to recover its investment in such production plus
interest at the rate normally charged and recouped by the Company on its
own projects, and also including the Company's then standard overhead
charges). Furthermore, if and to the extent that Employee (or The
Xxxxxxx Company) has any unrecouped costs associated with such Schedule
II-A Project, then Employee and all others involved in financing such
project shall recoup their respective then unrecouped contributions
proportionately out of such net proceeds of Company from such Project
prior to the division and distribution of such net proceeds.
With respect to Schedule II-B Projects which are produced, all
proceeds derived therefrom by the Company shall be the sole property of
the Company without any obligation to pay any portion thereof to
Employee (or The Xxxxxxx Company); provided however that if Employee (or
The Xxxxxxx Company) is unrecouped on account of any expenses incurred
by it in conjunction with such Schedule II-B Project (after taking into
account the $65,000 payment paid by the Company pursuant to this
Paragraph 10(a), then Employee (or The Xxxxxxx Company) shall have the
right to recoup the same proportionately with other financiers.
Employee shall be entitled to receive any credits to which he
was contractually entitled prior to the date hereof with respect to any
Schedule II-A Projects which are produced, subject to the provision for
a presentation credit for Company if contractually permitted and on a
reasonable efforts basis, should it elect to receive same, or in such
other capacity as Company may designate. Employee agrees that in no
event will his services related to any projects referred to in this
Paragraph 10(a) interfere with or hinder in any way
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the services provided to be rendered to Company hereunder.
Notwithstanding to any contrary provision of this Paragraph 10
(a), if Employee is no longer employed by the Company at such time as
the Company elects to abandon further development or production of any
Schedule II-A Project, Company agrees to offer such project in
turnaround to Employee (or to the Xxxxxxx Company) subject to the
rights, if any, of any other producer attached or assigned to such
Schedule II-A Project by Company, but provided further that Company
agrees that the attachment of a producer other than Employee may not be
on such terms and conditions as to fully divest Employee of his interest
therein. In all other respects, such turnaround rights in favor of
Employee to such Schedule II-A Project shall be negotiated in good faith
based upon customary practices in the entertainment industry in Los
Angeles involving projects and producers of comparable stature.
(b) Script Previously Co-Written by Employee: Heretofore
Employee co-wrote with Xxxx Xxxx the original screenplay entitled "Boy
Meets Girl" (hereinafter called the "Previous Script"). A copy of the
Previous Script will be delivered to the Company under cover of a letter
dated June 15, 1999, identifying it as such. Company agrees that
Employee may dispose of his interest in the Previous Script through an
authorized and recognized agent to be identified and appointed in the
near future, provided Employee does not render any further services
concerning the Previous Script (either writing, producing or otherwise)
and his activities are simply to consult with his co-writer and the
aforesaid agent regarding disposition of Employee's interest in such
script. Provided Employee complies with his obligations hereunder,
Company shall have no claim to any portion of the results and proceeds
of disposition of the Previous Script.
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(c) Materials Created During the Term: Company, as employer,
shall own, and Employee hereby transfers and assigns to Company, all
rights in and to any material and/or ideas written, suggested or
submitted by Employee during the Term and all other results and proceeds
of his services for Company ("Properties"). Company and its licensees
and assigns shall have the right to adapt, change, revise, delete from,
add to and/or rearrange the Properties or any part thereof written or
submitted by Employee and to combine the same with other works to any
extent, and to change or substitute the title thereof, and, further, to
grant such credits in connection therewith as Company, in its sole
discretion, shall determine, and in this connection Employee hereby
waives any so-called "moral rights" of authors. Employee agrees to
execute and deliver to Company such assignments or other instruments as
Company may require from time to time to evidence its ownership of the
results and proceeds of Employee's services, failing which (after notice
opportunity to sign himself) Company shall have the irrevocable right to
do so as Employee's attorney-in-fact; provided, however, that nothing in
this Paragraph 10 shall be deemed in any manner to restrict or qualify
Employee's ownership or right to exploit Employee's personal memoirs.
11. Right to Injunction/Remedies. Employee acknowledges that
Company's remedies at law for a breach by him of the provisions of Paragraphs 1,
8 and 10 hereof may be inadequate. Accordingly, in the event of the breach or
threatened breach by Employee of any such provisions, Company shall be entitled
to seek injunctive relief in addition to any other remedy it may have. In the
event of any breach by Company of this Agreement, Employee shall be limited to
his remedy at law for damages, if any, and shall not have the right to terminate
or rescind this Agreement or in any way to enjoin or restrain the production,
distribution, advertising or other exploitation of any motion pictures or other
productions, it being specifically agreed that all rights granted and agreed to
be granted to Company under this Agreement shall be irrevocably vested in
Company and shall not be subject to rescission for any cause.
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12. Assignment. Employee may not assign, transfer or convey this
Agreement or any interest therein. Subject to the provisions of Paragraph 1(a)
hereof, this Agreement and all of Company's rights and obligations hereunder may
be assigned or transferred by it, in whole but not in part, to and shall be
binding upon and inure to the benefit of any successor of Company, but any such
assignment shall not relieve Company of any of its obligations. The term
successors shall mean only any corporation or other business entity which by
merger, consolidation, purchase of assets or otherwise succeeds to or otherwise
acquires all or substantially all of the assets of Company.
13. Arbitration.
(a) Without limiting Company's right to seek injunctive relief
as described in Paragraph 11, in the event of a disagreement or dispute
between Company and Employee related to this Agreement, the matter will
be finally settled in Los Angeles, California by arbitration by a single
arbitrator (unless the parties cannot agree on such arbitrator in which
case each party will select an arbitrator and the two arbitrators so
selected shall select the third arbitrator) in a proceeding conducted
under the rules of the American Arbitration Association or any similar
successor body, the arbitrator also apportioning the costs of the
arbitration. The decision of the arbitrator(s) in writing shall be final
and binding upon the parties and will not be subject to appeal. If
either party fails to abide by such decision, the other party may seek
the order of any federal or state court having jurisdiction thereof
which shall enter judgment on the decision of the arbitrator(s), and the
party so failing to abide shall be responsible for the payment of the
expenses of the court proceeding and all resulting enforcement expenses,
including actual attorneys' fees. The parties agree to use their best
efforts to complete any arbitration hereunder expeditiously.
(b) The prevailing party in any arbitration shall be entitled to
be reimbursed for attorneys fees and costs in connection with the
pursuit of such arbitration, subject to the following limitation: such
reimbursement shall not exceed the total attorneys fees and costs
incurred by whichever of the two parties to such arbitration has the
lesser aggregate attorneys fees and costs. By way of example, if
Employee brings an arbitration against Company and Company prevails in
such arbitration, (thus entitling Company to reimbursement of attorneys
fees and costs), and if Employee's legal fees and costs amount to
$50,000 and Company's legal fees and costs amount to $85,000, Company's
recovery of legal fees and costs against Employee in such instance shall
be limited to $50,000.
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14. Indemnification. Employee shall be entitled to the benefit of
indemnification to the fullest extent permitted by applicable law at the time of
assertion of any liability against Employee, and, in any event, to the most
favorable indemnification provisions or agreements available to any other senior
executive of Company. Company represents that it currently has and shall
maintain directors' and officers' liability insurance with coverage of not less
than $5,000,000 and Employee will be covered thereunder.
15. Notices. All notices hereunder shall be in writing and shall be
given either by personal delivery, telegram or telecopy (toll prepaid) or by
registered or certified mail (postage prepaid) to the appropriate party at the
address listed below, and the date of such personal delivery, mailing,
telegraphing or telecopying shall be the date of the giving of such notice.
If to Company: The Xxxxxx Entertainment Company
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board and Legal
Department
with a copy to: Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
If to Employee: Xxxx Xxxxxxx
000 Xxxx, #0
Xxxxx Xxxxxx, XX 00000
with a copy to: Xxxxxxxxx Xxxxx Xxxxx Xxxxxxx & Xxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
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16. Miscellaneous.
(a) In the event there is any conflict between the provisions of
this Agreement and any statute, law or regulation, the latter shall
prevail; provided, however, that in such event the provision(s) of this
Agreement so affected shall be curtailed and limited only to the minimum
extent necessary to permit compliance with the minimum mandatory
requirement(s) thereof, and no other provision(s) of this Agreement
shall be affected thereby, and all such other provisions will continue
in full force and effect.
(b) This Agreement shall be governed by the laws of the State of
California applicable to agreements executed and to be wholly performed
therein and shall not be modified except by a written document executed
by the parties hereto.
(c) This Agreement expresses the entire understanding of the
parties hereto and replaces any and all former agreements, negotiations
or understandings, written or oral, relating to the subject matter
hereof.
(d) The remedies herein provided are cumulative and the exercise
of one shall not preclude the exercise of any other.
(e) No waiver by either party hereto of any failure by the other
party to keep or perform any covenant or condition of this Agreement
shall be deemed a waiver of any preceding, succeeding or continuing
breach of the same, or any other covenant or condition.
(f) Paragraph headings are for the convenience of the parties
only and shall not be used in construing meaning.
(g) This Agreement shall not be construed to create a joint
venture or partnership between the parties, and shall not be interpreted
in favor of or against either party on grounds that said party drafted
this Agreement.
(h) This Agreement shall be executed in a number of identical
counterparts, each of which shall be construed as an original for all
purposes, but all of which taken together shall constitute one and the
same Agreement.
17. This Employment Agreement shall become effective (the "Effective
Date") as of April 26, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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EMPLOYEE THE XXXXXX ENTERTAINMENT COMPANY
_______________________________ By:_______________________________
XXXX XXXXXXX
Title:_________________________
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SCHEDULE I
Employee's right to exercise the Warrants granted pursuant to Paragraph
3(b) of the Agreement to which this Schedule I is attached shall vest in
accordance with the following schedule:
Length of Employment Employee's Warrants that Vest
-------------------- -----------------------------
On signing this Agreement 105,000
One year after the Effective Date
described in Paragraph 17 52,500
At the end of the second year
of the Term 26,250
At the end of the third year
of the Term 26,250
TOTAL 210,000 Warrants
Notwithstanding anything to the contrary herein or in the Warrant
Agreement, in the event of the termination of Employee's employment by Company
without Cause or as a result of Employee's death or disability during the term
of and pursuant to the attached Employment Agreement, all unvested Warrants held
individually by Employee shall immediately vest and shall remain exercisable for
a period equal to the then balance of the term of the Warrants (i.e., the
balance of the six year, seven year or eight year term depending on the relevant
Warrants).
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SCHEDULE II-A
Title of Project
CHAIN LETTER
XXXX GEKKO
FAMILY MOVIES - SKINNING THE CAT
YOUNG BLADES
XXXXXXX XXXXXX
THE SPECIALS
STREET FIGHTER
HAZARDOUS WASTE
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SCHEDULE II-B
Title of Project
XXXXXXXXXX XXXXX
XXXXX LAGOON
CON TOWN
XXXXXX BROTHERS
DUDLEY THE DRAGON
THE FIX
SLEEPY HOLLOW
LOOKING GLASS
HAPPENCHANCE
PRINCESS XXXXX
STRANGELY, PA
STUY HIGH
WET HOT AMERICAN SUMMER
YAHOOLIGANS
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