EMPLOYMENT AGREEMENT
Exhibit 10.13
EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of June 27, 2007 (the
“Effective Date”) between The Film Department Holdings LLC, a Delaware limited liability
company (the “Company”), and Xxxxxx Xxxxx (the “Executive”), for the executive
services of the Executive.
WHEREAS, the Company recognizes that the Executive possesses special and unique skills and the
Company wishes to assure itself of the services of the Executive for the period provided for in
this Agreement; and
WHEREAS, the Executive represents and warrants that he is free to accept this employment offer and
commence employment on the date hereof without restriction from any employer or other person or
entity other than the Company.
NOW THEREFORE, in consideration of the various covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
1. Condition Precedent. The Company shall have no obligation hereunder unless and until the
following conditions have all occurred: (a) the Company has received $25 million in capital
contributions from its members, (b) the Company shall have completed the sale of $30 million of
senior secured second lien notes, and (c) the Company or its subsidiary shall have entered into a
$140 million credit agreement and shall have the right to borrow funds thereunder on the terms and
conditions set forth therein.
2. Engagement and Term. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts employment with the Company and its wholly-owned subsidiary, The Film
Department LLC, upon the terms and subject to the conditions of this Agreement. The term of the
Executive’s employment hereunder shall commence on the Effective Date, and shall continue until the
second (2nd) anniversary of the Effective Date, unless earlier terminated in accordance
with the provisions of this Agreement (the period from the Effective Date through the earlier of
such expiration or termination, as such period may be extended hereunder, is referred to herein as
the “Employment Term”). The Company, in its sole discretion, shall have the right and option to
extend the Employment Term for up to two (2) successive two (2) year periods. The Company may
exercise either or both such option(s) by written notice to the Executive provided at least sixty
(60) days prior to the end of the then current Employment Term. Following expiration of the
Employment Term, any employment of the Executive by the Company shall be at will. Immediately upon
termination of the Executive’s employment for any reason, the Executive shall be deemed to have
concurrently resigned from all offices and positions he then holds with the Company and any
subsidiaries or affiliates of the Company (“Subsidiaries”).
3. Position, Duties and Responsibilities.
(a) Executive Vice President of Business and Legal Affairs. During the Employment Term, the
Executive shall be Executive Vice President of Business and Legal Affairs. In such capacity, the
Executive shall have the powers and authorities of an executive vice president of business and
legal affairs as customarily exercised at comparable companies in
the independent film industry, and shall be responsible for the day-to-day legal affairs of
the Company. The Executive shall report directly to the Chief Executive Officer (the “CEO”)
and President & Chief Operating Officer (the “President & COO”) of the Company.
(b) Performance of Duties. During the Employment Term, the Executive shall devote all of
his working and business time, attention and energies to performing his duties hereunder. The
Executive shall perform his duties and obligations hereunder diligently, faithfully, competently
and to the best of his abilities in furtherance of the business of the Company, and in accordance
with the highest ethical and professional standards.
(c) Competition.
(i) During the Employment Term, the Executive shall not, directly or indirectly, in any city, town,
county, parish or other municipality in any state of the United States (the names of each such
city, town, parish, or other municipality, including, without limitation, the name of each county
in the State of California, being expressly incorporated by reference herein), or any other place
in the world, where the Company, or its Subsidiaries, successors or assigns, engages or proposes
to engage in the Business (as defined in the LLC Agreement) or any other business then engaged in
by, or known by the Executive to be contemplated by, the Company or any Subsidiary (the
“Competitive Business”), engage or in any way become interested in any person or entity
that engages in any capacity, including, without limitation, as an individual, partner,
shareholder, owner, member, principal, joint venturer, officer, director, agent, employee,
independent contractor, trustee, advisor, representative, consultant or otherwise, in the
Competitive Business; provided however, that the Executive may (i) serve as an officer or
director of, or otherwise participate in, educational, welfare, social, religious and civic
organizations, (ii) deliver lectures or fulfill speaking engagements, or (iii) manage personal
investments (provided that the Executive shall not manage actively any personal investments
in any person or entity in the entertainment industry or related to the Competitive Business or
that is or may be directly or indirectly competitive with the Company or any Subsidiary, in each
case under this Section 3(c)(i) as long as such activities do not in any way
interfere with the performance of the Executive’s duties or obligations hereunder.
(ii) No provision of this Agreement shall be construed to prohibit the Executive’s acquisition,
ownership, or trading of a passive, noncontrolling interest of less than five percent (5%) of the
issued and outstanding publicly traded stock of such entity.
(d) Nonsolicitation. At all times during the Employment Term and for a period of two (2)
years after termination of this Agreement for any reason (including for purposes of this Agreement
the expiration of the Employment Term), the Executive shall not, directly or indirectly, solicit,
induce, or attempt to solicit or induce any officer, director, employee, member, agent, advisor,
representative or consultant of the Company or any Subsidiary to terminate his, her or its
employment or other relationship with the Company or any Subsidiary for any reason whatsoever,
including, without limitation, for the purpose of associating with any competitor of the Company
or any Subsidiary or otherwise encourage any such person or entity to leave, sever
or otherwise change, his, her or its employment or other relationship with the Company or any
Subsidiary.
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(e) Noninterference. During the Employment Term and for a period of two
(2) years after the termination of this Agreement for any reason, the Executive shall not, directly
or indirectly, solicit, induce, or attempt to solicit or induce any customers, clients, vendors,
suppliers or consultants of, or others having a business relationship with, the Company or any
Subsidiary to terminate or change his, her or its relationship with the Company or any Subsidiary,
for any reasons whatsoever, including, without limitation, for the purpose of associating with any
competitor of the Company or any Subsidiary or otherwise encourage such customers, clients,
vendors, suppliers or consultants of the Company or any Subsidiary to terminate, sever or change
his, her or its relationship with the Company or any Subsidiary for any reason.
(f) Rights and Remedies upon Breach. If the Executive breaches any of the provisions of
Sections 3(c), (d) or (e) above (the “Restrictive Covenants”), the Company and any
Subsidiary shall have the following rights and remedies, each of which shall be independent of the
others and severally enforceable, and each of which shall be in addition to, and not in lieu of,
any other rights or remedies available to the Company or any Subsidiary:
(i) Specific Performance. The right and remedy to have the Restrictive Covenants
specifically enforced by any court of competent jurisdiction by injunctive decree or other equitable
relief, it being agreed that any breach of the Restrictive Covenants may cause irreparable injury to
the Company and any Subsidiary and that money damages might not provide an adequate remedy to the
Company or any Subsidiary.
(ii) Modification by the Court. If any court determines that any of the Restrictive
Covenants, or any part thereof, is illegal, invalid or unenforceable because of the duration, scope
or territorial restrictions of such provision or otherwise, such court shall have the power (and is
hereby instructed by the parties) to reduce the duration, scope or territorial restrictions of such
provision or otherwise modify the Restrictive Covenants, as the case may be (it being the intent of
the parties that any such reduction or modification be limited to the minimum extent necessary to
render such provision legal, valid and enforceable), so that, in its reduced or modified form, such
provision shall then be legal, valid and enforceable.
(iii) Enforceability in Jurisdictions. The Executive intends to and hereby confers
jurisdiction to enforce the Restrictive Covenants, by seeking appropriate injunctive relief in
accordance with this Section 3(f) upon the courts of any jurisdiction within the geographic
scope of such covenants.
(g) Executive’s Representations.
(i) The Executive represents and warrants that the Executive is free to enter into this Agreement
with the Company and that the Executive is not bound by any independent contractor agreement,
employment agreement, nondisclosure agreement, noncompetition agreement or any other agreement or
obligation that may infringe on the Company’s ability to engage the services of the Executive or in
any manner prevent the Executive from performing any of the duties that may be required of the
Executive under this Agreement. The Executive further represents and warrants that the Executive
will
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not provide to the Company, or utilize in performing services for the Company, any trade secrets or
proprietary information of any former employer or other contracting entity.
(ii) The Executive agrees to indemnify and hold the Company harmless against any and all costs,
attorneys’ fees, losses, liabilities and expenses resulting from any claims arising out of,
directly or indirectly, or in any way related to the Executive’s representations set forth herein,
including without limitation any breach thereof.
4. Location of Engagement; Transportation. During the Employment Term, the Executive shall
perform his services to the Company in the Los Angeles, California area (to be headquartered at a
specific location to be determined in accordance with the LLC Agreement), subject to the travel
needs of the Company’s business consistent with policies and practices of the Company, for which
travel air transportation, hotel accommodations, ground transportation to and from all such
locations, a full size rental car, and a per diem (in lieu of reimbursements of actual expenses) to
be negotiated in good faith (all of the foregoing to be reasonable “business class”) will be
provided by the Company at its cost and expense.
5. Compensation.
(a) Compensation. During the Employment Term, the Company shall pay or cause to be paid to
the Executive an annualized base compensation of $250,000 (the “Base Compensation”) for the
services of the Executive. On each anniversary of the Effective Date during the Employment Term,
the Base Compensation shall be increased for the next succeeding year of the Employment Term by an
amount equal to eight percent (8%) of the Base Compensation (as adjusted, the
“Compensation”). During the Employment Term, the Compensation shall be payable in equal
installments in accordance with the Company’s then current normal payroll practices and procedures
for salaried employees, but no less frequently than twice per month, less any deductions,
withholdings and offsets required by law, rule or regulation or otherwise authorized by the
Executive.
(b) Contingent Compensation. Promptly following each and every anniversary of the Effective
Date during the Employment Term, the Company shall pay or cause to be paid to the Executive, bonus
compensation equal to five percent (5%) of the Compensation per year, commencing with the first (1st) anniversary of the Effective Date (the “Bonus”); provided that payment of the
Bonus shall be at the sole discretion of the CEO and the President & COO.
(c) Incentive Interests. Pursuant to a separate Management Incentive Share Agreement and
subject to the terms and conditions set forth therein, the Executive shall be eligible to receive
additional compensation through the granting of incentive phantom interests equivalent to two and
one-half percent (21/2%) of the amount of the distributions that would otherwise be payable to the
holders of Class A Units pursuant to the LLC Agreement.
6. Expenses. The Company shall reimburse the Executive for all reasonable business expenses
incurred by the Executive during the Employment Term in the performance of the Executive’s services
pursuant to this Agreement and consistent with the policies and practices of the Company. The
Company shall make reimbursement within a reasonable time following the Executive’s presentation of
expense statements, vouchers, receipts, and such other
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supporting information as the Company reasonably may require from the Executive. The Executive
acknowledges that the Company’s policies and practices regarding the documentation of expenses for
which reimbursement is sought may change from time to time, and the Executive agrees that he will
comply with all such documentation requirements.
7. Benefits.
(a) The Executive, and the Executive’s dependents, shall be eligible to participate in any group
life insurance, hospitalization, medical, health and accident, dental, disability, or similar plan
or program generally made available by the Company to its most senior executives. The Company
affirmatively represents that it shall offer the Executive a medical/health care plan that is
reasonable for comparable companies in the independent film industry.
(b) The Executive shall be eligible to participate in all savings, retirement and similar plans
generally made available by the Company to its most senior executives. The Company expects that
such plans are to initially include a 401(k) plan and a defined contribution pension plan where the
aggregate costs of all such plans, including administration thereof; do not exceed the amounts in
the Budget for the “Pension 2.5%” line item for any applicable year.
(c) The Executive shall be entitled to two (2) weeks of paid vacation during each full year of the
Employment Term, in accordance with the accrual methodology and vacation-day accrual limitations in
the Employee Handbook to be adopted and approved by the Company and applied to its employees. The
Executive may observe the legal and other holidays recognized by the Company, and religious
holidays that the Executive deems appropriate, in the sound exercise of his business judgment.
8. Confidential Information. The Executive acknowledges that he has or will have access to
confidential or proprietary information (whether in oral, written, electronic or other format)
regarding the affairs, trade secrets, operations, results of operations, business and prospects of
the Company and any Subsidiary (the “Confidential Information”). Examples of Confidential
Information include, without limitation, information regarding business plans, marketing plans,
financial information, acquisition information, distribution information, licensing information,
personnel information, scripts, ideas for projects, motion pictures, processes, know-how, trade
secrets, formulas, litigation, operations, methods, pricing information, costs, marketing data,
procedures, customer lists, customer information, development activities and technical data and
other information. The Executive acknowledges that the improper use or disclosure of Confidential
Information may have a material adverse effect on the Company and/or any Subsidiary, including,
without limitation, its operations, financial performance, development of its business and
prospects. The Executive therefore covenants and agrees as set forth below:
(a) The Executive shall keep secret and confidential all Confidential Information, and shall
not disclose, divulge or otherwise use any Confidential Information other than for the benefit of
the Company in connection with the Executive’s proper performance of his duties under and pursuant
to this Agreement, except with the prior written consent of the CEO or the President & COO;
provided that (i) during the Employment Term the Executive may use and disclose the
Confidential Information as reasonably necessary in the performance of his duties and
responsibilities under this Agreement and for the benefit of the Company in the
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reasonable and good faith exercise of his power and authority pursuant to this Agreement, (ii) the
Executive shall have no such obligation to the extent Confidential Information is or becomes
publicly known, other than as a result of the Executive’s breach, directly or indirectly, of his
obligations hereunder, and (iii) the Executive may, after giving prior written notice to the
Company, disclose such matters to the extent required by applicable laws or governmental
regulations or judicial or regulatory process (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar process); provided,
however, that if the Executive is so requested to disclose any Confidential Information pursuant to
the foregoing clause (iii), the Executive agrees to provide the Company with prompt prior written
notice, if not precluded by applicable law, in reasonable detail of each such request so that the
Company may seek an appropriate protective order; provided, further, that if, absent the entry of a
protective order or the receipt of a waiver under this Agreement, the Executive is, in the
reasonable opinion of his counsel, legally compelled to disclose such Confidential Information under pain of liability for contempt or other censure or penalty (civil or
criminal), the Executive may disclose such information to the governmental entity to the extent
required without liability under this Agreement. In such event, the Executive shall exercise his
reasonable commercial efforts to obtain reliable assurances that confidential treatment will be
accorded any such Confidential Information so disclosed.
(b) The Executive shall deliver to the Company at its principal executive offices at the
termination of this Agreement (including at the end of the Employment Term), or at any other time
the Company may so request, (i) all memoranda, notes, records, reports, and other documents and
information (including, without limitation, drafts, whole or partial copies, and information stored
or maintained electronically, magnetically, in a computer, or through any other medium currently
existing or invented in the future) relating to, discussing or containing any portion of the
business of the Company or any Confidential Information and which he may then possess or have under
his direct or indirect control and (ii) all of the Company’s and any Subsidiary’s property and
equipment (including, without limitation, any cell phones, pagers, credit cards, computers, etc.).
(c) The Executive’s duties may require that he enter into confidentiality agreements, nondisclosure
agreements, or comparable agreements with third parties, and a third party may require the
Executive’s entry into such an agreement(s) personally and on behalf of the Company. In any such
event, the Executive agrees to engage in reasonable efforts to perform any such agreement.
9. Termination.
(a) Definitions. The following definitions shall apply to the use of such terms in this
Agreement:
(i) “Cause” means:
(1) the Executive’s willful malfeasance, gross negligence or gross or willful
misconduct in the performance of the duties or responsibilities of his position with the Company
or any Subsidiary in accordance with this Agreement;
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(2) the Executive’s failure to timely carry out any lawful directive prescribed by the CEO
or the President & COO in accordance with this Agreement and the LLC Agreement other than any
such failure resulting solely from the Executive’s Disability;
(3) the Executive’s misappropriation of any funds or property of the Company or any Subsidiary or
the commission by the Executive of an act of fraud or dishonesty;
(4) reasonable evidence (as determined in good faith by the CEO or the President & COO) to
indicate that the Executive has committed any felony;
(5) acting in any way (including any act of moral turpitude) that has or is reasonably likely to
have a material adverse effect on the Company’s or any Subsidiary’s business, operations, results
of operation, prospects or reputation;
(6) the improper disclosure, divulging or use by the Executive of any Confidential Information in
violation of any confidentiality or proprietary agreement or obligation to which the Executive is
a party or bound (including Section 8 hereof);
(7) use of illegal drugs or improper use of alcohol, during work hours, being under the influence
of illegal drugs or excessive alcohol during work hours or, subject to applicable federal or
state law, chronic alcoholism or drug addiction (which shall not include the proper use of
lawfully prescribed drugs); or
(8) any other material violation of any provision of this Agreement;
provided, that with respect to any violation of Section (2) or (8) that is
reasonably subject to cure, the Executive shall have the right, within thirty (30) days after
receipt of notice from the Company, to cure such event or circumstance giving rise to the
violation, in the event of which such event or circumstance shall be deemed to not constitute Cause
hereunder.
The Company agrees that each of the following must occur before the Company may assert the
existence of Cause under Section (2) or (8) above: (A) the Company must provide written
notice to the Executive, with reasonable detail, of the matter(s) giving rise to the notice; and
(B) the Executive must have the opportunity to respond in writing to the written notice, with the
assistance of any counsel deemed appropriate by the Executive (at the Executive’s expense), not
later than ten (10) days after delivery of the written notice; and (C) the Company must provide the
Executive, if requested in the written response to the written notice contemplated above, the
opportunity to address the CEO and President & COO during a confidential meeting to be held as
soon as reasonably practicable after the request; provided, however, that the Company
may assert the existence of Cause under Section (2) or (8) above upon the earlier of the
completion of the foregoing procedures or the Executive’s failure to provide a written response or
orally present their position at a meeting with the CEO and President & COO within the time periods
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described above (the foregoing shall collectively be referred to herein as, the
“Cause
Determination Procedure”).
(ii) “Constructive Termination without Cause” means the termination of the Executive’s
employment with the Company pursuant to this Agreement by the Executive, after one or more of the
following events, but within ninety (90) days of the occurrence thereof, in any case where no Cause
exists and after the Executive provides written notice to the CEO and the President & COO, with
reasonable detail, of the matter:
(1) the uncured material violation by the Company of any provision of this Agreement;
(2) any material diminution in the duties, authority, responsibilities, or positions of the
Executive from that specified in this Agreement; or
(3) the assignment to the Executive of duties or responsibilities that are materially inconsistent
or different from those set forth herein (excluding an isolated and inadvertent action by the
Company not taken in bad faith and which is remedied by the Company promptly after receipt by the
CEO and the President & COO of written notice from the Executive specifying in reasonable detail
the applicable action);
provided, that with respect to any violation or event that is reasonably subject to cure,
the Company shall have the right, within thirty (30) days after receipt of notice, to cure such
event or circumstance giving rise to the violation, in the event of which such event or
circumstance shall be deemed to not constitute constructive Termination without Cause.
“Disability” means the inability of the Executive to perform the essential functions of his
position in accordance with this Agreement with or without reasonable accommodation on account of
mental or physical disability, illness or other incapacity for (a) sixty (60) consecutive days, or
(b) any one hundred twenty (120) days in any three hundred sixty (360) day period, it being
understood and agreed that the Executive’s continuous and sustained participation in the operation
of the Company and presence at work is an essential function of the job.
(b) Termination by the Company for Cause or by the Executive other than upon Constructive
Termination without Cause.
(i) The Executive’s employment with the Company pursuant to this Agreement may only be terminated
for Cause upon a decision of the CEO and the President & COO and compliance with the Cause
Determination Procedure.
(ii) If the Company terminates this Agreement for Cause or the Executive terminates this Agreement
other than upon Constructive Termination without Cause, on the date such termination, the Executive
shall be paid all earned but unpaid Compensation, together with accrued, but unused, vacation pay
(as determined in accordance with the Company’s then current policy on vacation accrual) through
the date of termination, and any other benefits accrued through the date of termination pursuant to
the terms of this Agreement. The Company shall also reimburse the Executive in
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accordance with Section 6 hereof for expenses incurred prior to the date of termination
which are otherwise reimbursable but which have not then been reimbursed pursuant to Section
6 hereof.
(c) Termination by the Company without Cause by the Executive for Constructive Termination
without Cause. In the event the Executive’s employment with the Company pursuant to this
Agreement is terminated by the Company without Cause, or the Executive’s employment is terminated
by the Executive for Constructive Termination without Cause, the Executive shall be entitled to the
following:
(i) to be paid on the date of termination, earned but unpaid Compensation and Bonus (if awarded
pursuant to Section 5(b), a Bonus shall be deemed earned, for the purposes of this Agreement,
pursuant to a fraction, the numerator of which shall equal the number of weeks elapsed in the then
current year of the Employment Term and the denominator of which shall equal 52 weeks) together
with accrued but unused, vacation pay (as determined in accordance with the Company’s then current
policy on vacation accrual) through the date of termination, in addition to any other rights the
Executive may have under applicable law;
(ii) to reimbursement in accordance with Section 6 hereof of the expenses incurred prior to the
date of termination which are otherwise reimbursable but which have not been reimbursed pursuant to
Section 6 hereof; and
(iii) to be paid the cash equivalent of the Compensation (the “Compensation Payment”) for
the lesser of (x) twelve (12) months or (y) the unexpired portion of the Employment Tenn as if the
Employment Term had not been terminated (the “Severance Period”), with the pro rata
equivalent of the Compensation Payment, subject to Section 12(q) herein, payable by the Company to
the Executive in accordance with the Company’s then current normal payroll practices, but not less
frequently than twice per month, and the Executive and the Executive’s family, as applicable, shall
also continue, for the Severance Period, to be entitled to the continuation of all benefits set
forth in Section 7(a) hereof; provided, however, that in accordance with Section
12(m) hereof any Compensation Payment paid to the Executive pursuant to this Section 9(c) shall be
reduced by any compensation earned by the Executive from other employment, or his similar provision
of services, during the Severance Period.
(d) Death and Disability. This Agreement shall automatically terminate upon the death of
the Executive and may be terminated by the CEO and the President & COO in the event of the
Disability of the Executive. In the event that this Agreement is terminated due to the death or
Disability of the Executive, the Executive or his estate shall be entitled to receive in full
satisfaction of all obligations due to the Executive from the Company hereunder,
(i) all earned but unpaid Compensation and Bonus, together with accrued, but unused, vacation pay
(as determined in accordance with the Company’s policy on vacation accrual) through the
date of termination;
(ii) reimbursement in accordance with Section 6 hereof of expenses incurred prior to the
date of termination which are otherwise reimbursable but which have not been reimbursed pursuant to
Section 6 hereof; and
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(iii) an amount equal to the lesser of (x) three (3) months’ Compensation or (y) the
unexpired portion of the Employment Term as if the Employment Term had not been terminated, with
the pro rata equivalent thereof, subject to Section 12(q) hereof, payable by the Company to the
Executive in accordance with the Company’s then current normal payroll practices, but no less
frequently than twice per month.
(e) Incentive Interests. In addition to the foregoing, upon termination of the Executive’s
employment, the Executive shall continue to have such rights, if any, that may continue to exist
under the Management Incentive Share Agreement upon the terms and conditions set forth therein.
10. Indemnification. Except as otherwise required by Law, and expressly subject to the
protections and rights afforded to the Executive under Section 2802 of the California Labor Code,
or as provided in this Agreement, the Company shall indemnify and hold harmless the
Executive from and against all liabilities, judgments, losses (including amounts paid in
settlement), costs, damages and expenses (including all reasonable legal or other expenses incurred
in investigating or defending against any such liability, judgment, loss, cost, damage or expense)
actually incurred by the Executive by reason of any act or omission or any alleged act or alleged
omission performed or omitted by the Executive (including those in connection with serving as
officers or on boards of directors of the Company or for any Subsidiary or affiliate of the
Company) so long as the Executive shall have acted in good faith on behalf of the Company and in a
manner reasonably believed to be within the scope of authority conferred on the Executive by or
pursuant to this Agreement, except that the Executive shall not be entitled to be indemnified in
respect of any liability, loss, cost, damage or expense incurred by the Executive by reason of
fraud, gross negligence or willful misconduct. The rights granted pursuant to this
Section 10 shall be deemed contract rights, and no amendment, modification or repeal of
this Section 10 shall have the effect of limiting or denying any such rights with respect
to actions taken or proceedings, appeals, inquiries or investigations arising prior to any
amendment, modification or repeal. To the fullest extent permitted by applicable law, expenses
(including reasonable legal fees) incurred by the Executive in defending any claim, demand, action,
suit or proceeding shall promptly, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Executive to repay such amount if it shall be determined that
the Executive is not entitled to be indemnified as authorized in Section 10 hereof. The
rights set forth in this Section 10 are in addition to, and not in lieu of, any
indemnification rights of the Executive set forth in the LLC Agreement; provided that in no event
shall the Executive receive or be entitled to duplicative indemnification. The indemnification
obligations set forth in this Section 10 shall survive the termination of this Agreement
and the Employment Term for any
reason.
11. Assignment of Intellectual Property Rights.
(a) Definition of “Intellectual Property”; Certain Limitations.
(i) As used herein, the term “Intellectual Property” shall mean all software, inventions,
discoveries, processes, know-how, plans, procedures, formula, trade secrets, methods, artistic or
creative materials (including, without limitation, concepts, scripts, ideas for projects, motion
pictures and development materials), service
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marks, designs, licenses, logos, proprietary or technical information and all other intellectual
property of any nature and in any media, including works-in-progress, whether or not subject to
patent, trademark, tradename, tradedress, copyright, trade secret, or mask work protection, and
whether or not reduced to practice, which are made, created, authored, conceived, or reduced to
practice by the Executive, either alone or jointly with others, during the period of employment
with the Company which (x) relate, to any extent, to the past, actual or planned business or
activities of the Company or any Subsidiary, (y) result from or is suggested by, to any extent,
work performed by the Executive for the Company or any Subsidiary (whether or not made or conceived
during normal working hours or on the premises of the Company) or (z) which result, to any
extent, from use of the premises or property of the Company.
(ii) The Company hereby notifies the Executive that the provisions of this Section 11 do
not apply to any Intellectual Property for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on the Executive’s own time,
unless (x) such Intellectual Property relates to the past, actual or planned business or activities
of the Company, including, without limitation, research and development or (y) such Intellectual
Property results in any way from any work performed by the Executive for the Company.
(b) Work for Hire. Except as provided in Section 11(a)(ii) above, the Executive
expressly acknowledges that all copyrightable aspects of the Intellectual Property are to be
considered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the
“Act”), and that the Company is to be the “author” within the meaning of such Act for all purposes.
All such copyrightable works, as well as all copies of such works in whatever medium
fixed or embodied, shall be owned exclusively by the Company as of its creation, and the Executive
hereby expressly disclaims any and all interest in any of such copyrightable works.
(c) Assignment. The Executive acknowledges and agrees that all Intellectual Property
constitutes trade secrets of the Company (other than any Intellectual Property described in clause
(ii) of Section 11(a)) and shall be the sole property of the Company or any other entity designated
by the Company. In the event that title to any or all of the Intellectual Property, or any part or
element thereof, may not, by operation of law, vest in the Company, or such Intellectual Property
may be found as a matter of law not to be “works made for hire” within the meaning of the Act, the
Executive hereby, conveys and irrevocably assigns to the Company, without further consideration,
all his right, title and interest, throughout the universe and in perpetuity, in all Intellectual
Property and all copies thereof in whatever medium fixed or embodied, and in all written records,
graphics, diagrams, notes, or reports relating thereto in the Executive’s possession or under his
control, including, with respect to any of the foregoing, all rights of patent, trademark,
tradename, tradedress, copyright, trade secret, mask work, and any and all other proprietary rights
therein, the right to modify and create derivative works, the right to invoke the benefit of any
priority under any international convention, and all rights to register and renew same.
(d) Proprietary Notices; No Filings; Waiver of Moral Rights. The Executive acknowledges
that all Intellectual Property shall, at the sole option of the Company, bear the Company’s patent,
copyright, trademark, trade secret, mask work and other proprietary rights notices. The Executive
agrees not to file any patent, copyright, or trademark applications relating to any Intellectual
Property, except with prior written consent of an authorized officer of
11
the Company (other than the Executive). The Executive hereby expressly disclaims any and all
interest in any Intellectual Property and waives any right of droit morale or similar rights,
such as rights of integrity or the right to be attributed as the creator of any Intellectual
Property.
(e) Further Assurances. The Executive agrees to assist the Company, or any party
designated by the Company, promptly on the Company’s request, whether before, during or after the
termination of employment, in perfecting, registering, maintaining, and enforcing, in any
jurisdiction, the Company’s rights in the Intellectual Property by performing all acts and
executing all documents and instruments deemed necessary or convenient by the Company, including,
by way of illustration and not limitation:
(i) Executing assignments, applications, and other documents and instruments in connection with (x)
obtaining patents, copyrights, trademarks, mask works, or other proprietary protections for the
Intellectual Property and (y) confirming the assignment to the Company of all right, title, and
interest in the Intellectual Property or otherwise establishing the Company’s exclusive ownership
rights therein; and
(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as
well as in the enforcement of the Company’s rights in the Intellectual Property,
including, but not limited to, testifying in court or before any patent, copyright, trademark or
mask work registry office or any other administrative body.
The Executive shall be reimbursed for all reasonable out-of-pocket costs incurred in connection
with the foregoing if such assistance is requested by the Company after the termination of the
Executive’s employment.
(f) Disclosure of Intellectual Property. The Executive shall make full and prompt
disclosure to the Company on a continuing basis of all Intellectual Property subject to assignment
by the Executive to the Company.
12. General.
(a) Notices. All notices, requests and other communications hereunder must be in writing
and shall be deemed to have been duly given only if delivered personally, by facsimile transmission
or certified mail (first class postage prepaid) return receipt requested, or
nationally recognized overnight delivery service with proof of receipt maintained, to the parties
at the following addresses or facsimile numbers:
If to the Company, to:
The Film Department Holdings LLC
0000 Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxx, President & COO
0000 Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxx, President & COO
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If to the Executive, to:
Xxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
All such notices, requests and other communications shall (a) if delivered personally to the
address as provided in this Section, be deemed given upon delivery, (b) if delivered by facsimile
transmission to the facsimile number as provided in this Section, be deemed given on the first
business day following confirmation, (c) if delivered by nationally recognized overnight delivery
service in the manner described above to the address as provided in this Section, be deemed
received the first business day after the business day sent, and (d) if delivered by mail in the
manner described above to the address as provided in this Section, be deemed given upon the earlier
of actual receipt or seven (7) business days after deposit in the mail (in each case regardless of
whether such notice, request or other communication is received by any other Person to whom a copy
of such notice is to be delivered pursuant to this Section). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to that party by
giving notice specifying such change to the other parties hereto.
(b) Entire Agreement. Except as set forth in the Management Incentive Share Agreement,
this Agreement sets forth the entire understanding of the parties with respect to the subject
matter hereof; supersedes all existing agreements between them concerning such subject matter, and
may be modified only by a written instrument duly executed by each party.
(c) Waiver. Any term or condition of this Agreement may be waived at any time by the party
that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in
a written instrument duly executed (with respect to the Company, after due authorization by the
CEO or the President & COO) by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition of this Agreement
on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded,
shall be cumulative and not alternative.
(d) Amendment. This Agreement may be amended, supplemented or modified only by a written
instrument duly executed (with respect to the Company, after due authorization by the CEO or the
President & COO) by or on behalf of each party hereto.
(e) No Third Party Beneficiary. The terms and provisions of this Agreement are intended
solely for the benefit of each party hereto and their respective successors or permitted assigns,
and it is not the intention of the parties to confer third-party beneficiary rights upon any other
person.
(f) No Assignment Binding Effect. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned (with respect to the Company, after due authorization by the
CEO or the President & COO) by any party hereto without the prior written consent of the other
parties hereto, and any attempt to do so shall be void. Subject to the preceding sentence, this
Agreement is binding upon, shall inure to the benefit of and is enforceable by
the parties hereto and their respective successors and assigns.
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(g) Headings; Definitional Provisions; etc. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the provisions hereof. Any
reference to the masculine, feminine, or neuter gender shall be a reference to such other gender
as is appropriate. References to the singular shall include the plural and vice versa.
The words “herein” and “hereunder” and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever
the words “include,” “including” or “includes” appear in this Agreement, they shall be read to be
followed by the words “without limitation” or words having similar import.
(h) Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law, and if the rights or obligations of any party
hereto under this Agreement shall not be materially and adversely affected thereby,
(a) such provision shall be fully severable, (b) this Agreement shall be construed and enforced
as if such illegal, invalid or unenforceable provision had never composed a part
hereof, (c) the remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by its severance and
(d) in lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may be possible.
(i) Drafting History. In resolving any dispute or construing any provision in the
Agreement, there shall be no presumption made or inference drawn (a) because the attorneys for one
of the parties drafted such provision of the Agreement, (b) because of the drafting history of
the Agreement, or (c) because of the inclusion of a provision not contained in a prior draft or
the deletion of a provision contained in a prior draft.
(j) Arbitration. The Company, on the one hand, and the Executive, on the other hand, agree
that, if a dispute arises concerning or relating to this Agreement or the provision of the
Executive’s services hereunder, the dispute shall be submitted to binding arbitration under the
rules of the American Arbitration Association then in effect. The arbitration shall take place in
Los Angeles County, California and both the parties agree to submit to the jurisdiction of the
arbitrator selected in accordance with the American Arbitration Association Commercial Rules and
procedures. Except for any claims for injunctive relief, the parties agree that this arbitration
procedure shall be the exclusive means of redress for any disputes relating to or arising from
this Agreement between the parties, including disputes over rights provided by federal, state or
local statutes, regulations, ordinances and common law, including all laws that prohibit
discrimination based on any protected classification. The parties expressly waive the right to
trial in a court of law, and agree that the arbitrator’s award shall be final and binding on the
parties, and not appealable, subject to manifest error which can only be corrected by the
arbitrator. Each party shall pay for its own costs and attorneys’ fees related to the arbitration;
however, the Company shall pay all costs which are unique to the arbitration, including the
arbitrator’s fees. If a party prevails on a statutory claim which affords the prevailing party
their attorneys’ fees, or where there is a written agreement providing for such fees, the
arbitrator may award reasonable fees to the prevailing party. The arbitrator shall have the
authority to award any damages authorized by law other than punitive, consequential or special
damages. The parties agree to keep the fact, and results and findings, of the arbitration
14
confidential (subject to applicable law) and agree to execute all necessary documents to maintain
such confidentiality.
(k) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California applicable to a contract executed and performed in such State
without giving effect to the conflicts of laws principles thereof that would result in the
applicability of the laws of another jurisdiction.
(l) Attorneys’ Fees. If any legal action, arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys’ fees and other costs it incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
(m) Mitigation. The Executive shall be obligated to take reasonable steps to mitigate any
damages hereunder including seeking other employment or engagement of services and taking other
reasonable actions by way of mitigation of the amounts payable to the Executive under any
provisions of this Agreement, and such amounts otherwise so payable shall be reduced if the
Executive obtains other employment or engagement. The Company’s obligation to make payments
provided for in this Agreement and otherwise to perform its obligations hereunder shall be subject
to setoff, counterclaim, recoupment, defense and other claim, right or action which the Company (or
any other party) may have against the Executive or others.
(n) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
(o) Successors and Assigns. This Agreement, and the Executive’s rights and obligations
hereunder, may not be assigned by the Executive and any prohibited assignment attempted by the
Executive is void. This Agreement shall be binding on and enforceable by any successor to the
Company, whether by merger, acquisition of substantially all of the Company’s assets or otherwise,
as fully as if such successor was a signatory hereto and the Company shall cause such successor to,
and such successor shall, expressly assume the Company’s obligations hereunder. Notwithstanding
anything else herein contained, the term “Company” as used in this Agreement, shall include all
such successors.
(p) No Conflicting Obligations. The Executive affirms that no obligation of the Executive
precludes or in the future may preclude the Executive’s entry into and full faithful
performance of each and all of his duties and obligations under this Agreement.
(q) Section 409A. Unless otherwise expressly provided, any payment of compensation by
Company to the Executive, whether pursuant to this Agreement or otherwise, shall be made within two
and one-half months (21/2 months) after the later of the end of the calendar year of the Company’s
fiscal year in which the Executive’s right to such payment vests (i.e., is not subject to a
“substantial risk of forfeiture” for purposes of Code Section 409A of the Internal Revenue Code of
1986, as amended (“Code”)). To the extent that any severance payments (including payments
on constructive termination for “good reason”) come within the definition of “involuntary
severance” under Code Section 409A, such amounts up to the lesser of
15
two times the Executive’s annual compensation for the year preceding the year of termination
or
two times the 401(a)(17) limit for the year of termination, shall be excluded from “deferred
compensation” as allowed under Code Section 409A, and shall not be subject to the following Code
Section 409A compliance requirements. All payments of “nonqualified deferred compensation” (within
the meaning of Section 409A) are intended to comply with the requirements of Section 409A, and
shall be interpreted in accordance therewith. No party may accelerate any such deferred payment,
except in compliance with Section 409A, and no amount shall be paid prior to the earliest date on
which it is permitted to be paid under Section 409A. In the event that the Executive is a “key
employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof) of a
corporation any stock of which is publicly traded on an established securities market, payments
determined to be “nonqualified deferred compensation” payable following termination of the
engagement shall be deferred and not paid until the earlier of (i) the last day of the sixth (6th)
complete calendar month following such termination of the engagement, or (ii) the Executive’s
death, consistent with the provisions of Code Section 409A. Notwithstanding anything herein to the
contrary no amendment may be made to this Agreement if it would cause the Agreement or any payment
hereunder not to be in compliance with Section 409A.
[signature page follows]
16
IN WITNESS WHEREOF, the parties have duly executed this Employment Agreement as of the date
first above written.
| COMPANY: | ||||||
| THE FILM DEPARTMENT HOLDINGS LLC | ||||||
| By: | /s/ Xxxx Xxxx
|
|||||
| EXECUTIVE: | ||||||
| /s/ Xxxxxx Xxxxx | ||||||
| Xxxxxx Xxxxx | ||||||
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