Exhibit 10.37
[LETTERHEAD]
As of September 1, 1994
Xx. Xxxxxxx X. X'Xxxx
000 00xx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Re: Employment Agreement
Dear Xx. X'Xxxx:
This letter will constitute your employment agreement with Xxxx-XX Video
Services (the "Company"), a wholly-owned subsidiary of The Xxxx-XX Corporation:
1. EMPLOYMENT. The Company hereby employs you as its President, provided that
this shall not limit the Company's authority to appoint another individual as
the Chairman and Chief Executive Officer of the Company. You agree to perform
all duties (consistent with your position as President of a subsidiary) as may
be assigned to you from time to time by the President of The Xxxx-XX
Corporation, to serve on the executive committee of the Company if so appointed,
and to devote your full business time, skill and attention to such services on
an exclusive basis. You will be based in Los Angeles but may from time to time
be asked to travel domestically or abroad, in which event the Company will pay
your reasonable travel and living expenses in accordance with its normal
policies.
2. COMMENCEMENT DATE AND TERM.
2.1 COMMENCEMENT DATE. The Commencement Date of this agreement shall be
the closing date of the Company's acquisition of substantially all of the assets
of Film Video Masters, Inc., a California corporation dbn Paskal Video (the
"Acquisition") or such earlier date as may be mutually agreed. In the event the
Acquisition is not consummated by September 30, 1994 then this agreement shall
be deemed rescinded without further action by either party.
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As of September 1, 1994
Page 2
2.2 TERM. The term of your employment will begin as of the Commencement
Date and will continue for a period of 36 months thereafter, provided that the
Company may terminate your employment without liability on at least 10 days
prior written notice to you if you are unable to render substantially all of the
services required hereunder for a period of 3 consecutive months or more because
of physical or mental disability.
2.3 NON SOLICITATION. For a period of one year following the expiration
or other termination of your employment, you will not solicit or induce any
employees of the Company to terminate their employment with the Company.
3. COMPENSATION AND BENEFITS
3.1 COMPENSATION. For the indicated weeks following the Commencement Date
your compensation will be as follows:
Weeks Gross Weekly Compensation
----- -------------------------
1-52 $2,942.61
53-103 3,230.77
105-156 3,903.84
3.2 FRINGE BENEFITS. You will be entitled to three weeks paid vacation
per year, a car allowance of $400/month and reimbursement for business related
automobile operating expenses (fuel and parking). You are eligible for group
medical coverage on the same conditions, limitations and contribution
requirements as may be from time to time offered to those employees of Xxxx-XX
Video Services who are not covered under the Motion Picture Industry Health
Plan, for participation in the 401(k) plan made by the Xxxx-XX Corporation and
for such additional benefits as the Company's Board of Directors may determine.
To the extent (if any) that Xxxx-XX Video Services is required to offer you
participation in the Motion Picture Industry Health, Pension or other benefit
Plan, you acknowledge that you have been offered such participation and
specifically waive it.
4. INTELLECTUAL PROPERTY.
4.1 INCLUDED INVENTIONS. For purposes of this agreement, "Included
Inventions" shall mean all developments, designs, creations, improvements,
original works of authorship, copyrights, formulas, processes, know how,
techniques and/or inventions made or conceived or reduced to practice during the
term of this agreement or reduced to practice within 12 months after termination
of
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As of September 1, 1994
Page 3
this agreement, that relate in any way to interactive entertainment, computer
graphics, visual effects, audio and visual production and post production
(including without limitation telecine, film to tape transfers, audio layback
and video tape duplication), film, television, cable, CD ROM, multi-media, or
any other business now or hereafter conducted by the Company.
Excluded from the foregoing definitions of "Included Inventions" are any
inventions exempt under the provisions of Section 2870 of the California Labor
Code, which provides as follows:
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities or trade secret information
except for those inventions that either: (1) relate at the time of
conception or reduction to practice of the invention to the employer's
business, or actual or demonstrably anticipated research or development of
the employer; or (2) result from any work performed by the employee for the
employer.
(b) To the extent that a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
4.2 DISCLOSURE AND OWNERSHIP. You agree to promptly disclose all Included
Inventions to the Company. All Included Inventions shall be the sole and
exclusive property of the Company and you hereby assign to the Company all of
your right, title and interest in such Included Inventions.
4.3 FURTHER ASSURANCES. You will assist the Company in applying for
and obtaining patents, copyrights and/or other protection for the Included
Inventions (during the term of this Agreement and thereafter) provided that
you will be reasonably compensated if the Company requests your assistance
after termination of this agreement. You will sign such additional documents
as the Company may request in order to confirm the Company's rights to
Included Inventions. In the event the Company is unable to obtain your
signature on any document needed to apply for, obtain or enforce any
intellectual property rights relating to any Included Invention for any
reason whatsoever (including without limitation your refusal, unavailability
or incapacity), you hereby irrevocably appoint Xxxxxxxxxxx X. Xxxxxxx or
J. R. XxXxxx, or either of them acting alone, with full power of substitution,
as your agent and attorney in fact to act for and on your behalf in
connection with the execution and filing of any such document with the same
legal force and effect as if such acts were performed by you.
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As of September 1, 1994
Page 4
5. CONFIDENTIAL INFORMATION. You agree, during the term of your employment;
(i) to keep secret and confidential all information previously or subsequently
acquired by you concerning the business and affairs of the Company which is
designated as confidential at the time of disclosure or within a reasonable
period thereafter; and (ii) not to use such information in a manner adverse to
the Company's interests.
6. EQUITABLE RELIEF. You acknowledge and agree that because of the unique and
extraordinary nature of your services, any breach or threatened breach by you of
this agreement will cause irreparable injury and incalculable harm to the
Company and that the Company shall be entitled to any remedy at law or in
equity, including injunctive relief, provided that there is otherwise a basis
for such relief.
7. FINDER'S COMPENSATION. Subject to and within 10 business days after the
closing date of the Acquisition, the Company shall pay you the sum of $100,000
as a finder's fee, less applicable withholding taxes at the rate of 24.45%.
This fee is in lieu of any finder's compensation owed to you by Paskal Video.
You agree to defend, hold harmless and indemnify the Company, The Xxxx-XX
Corporation, Paskal Video and their respective officers, directors, employees
and agents from and against all liability, costs and expenses (including
attorney's fees) which they may incur by virtue of any claims for finder's
compensation from Xxx Xxxx or others to the extent attributable to your
statements or actions.
8. MISCELLANEOUS. This agreement constitutes the entire understanding
relating to your employment and no waiver or modification shall be valid unless
in writing and signed by the party to be charged. You represent and warrant
that you have not entered into any agreements for commissions and finder's
compensation arising out of your employment by the Company.
If this sets forth our agreement, please sign and return a copy of this
letter.
Very truly yours,
Xxxx-XX Video Services
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Chairman and CEO
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As of September 1, 1994
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Accepted and Agreed:
/s/ Xxxxxxx X. X'Xxxx
Xxxxxxx X. X'Xxxx
