ECLECTIC
ENTERTAINMENT
April 22, 2003
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
Eclectic Entertainment Inc. ("Eclectic"), a business unit of OBN
Holdings Inc. ("OBN"), 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX
00000, agrees to employ you and you agree to accept such employment
upon the following terms and conditions:
1. Term. Your employment under this Agreement shall commence on May
1, 2003 (your "Commencement Date") and, unless terminated by Eclectic
or you pursuant to paragraph 8(a), (b) or (c) shall continue through
and until the third anniversary of your Commencement Date (the
"Expiration Date"). The period from your Commencement Date through
the Expiration Date is referred to as the "Term" notwithstanding any
earlier termination of your employment for any reason.
2. Duties. You agree to devote your business time, attention and
energies to the business of Eclectic and its subsidiaries during your
employment with Eclectic. You will be President of Eclectic, and you
agree to perform all duties reasonable and consistent with that office
as the Chief Executive Officer of Eclectic (the "CEO") or other
individual designated by the CEO may assign to you from time to time.
Your principal place of business shall be at Eclectic's California
office in the Los Angeles, California metropolitan area.
3. Compensation.
(a) Salary. For all the services rendered by you in any
capacity under this Agreement, Eclectic agrees to pay you Seventy Two
Thousand Dollars ($72,000) a year in base salary ("Salary"), less
applicable deductions and withholding taxes, in accordance with
Eclectic's payroll practices as they may exist from time to time.
Your Salary will be reviewed each January 1st during the Term,
commencing January 1, 2004, and, assuming satisfactory performance,
will, at that time, be increased (but not decreased) by a percentage
generally consistent with Eclectic's then applicable compensation
policies for Eclectic executives at comparable position and
performance levels.
(b) Bonus Compensation. You also shall be entitled to receive
annual bonus compensation ("Bonus") during your employment with
Eclectic under this Agreement, determined and payable as follows:
(i) Your Bonus for each calendar year during your employment
with Eclectic under this Agreement will be determined in accordance
with Eclectic's Short-Term Incentive Plan (the " STIP"), as
applicable, as the same may be amended from time to time.
(ii) Your Bonus for any calendar year shall be payable, less
applicable deductions and withholding taxes, by the end of the first
quarter of the following year.
4. Benefits. You shall participate in such vacation, medical,
dental, life insurance, long-term disability insurance, 401(k),
pension, long-term incentive and other plans as Eclectic may have or
establish from time to time and in which you would be entitled to
participate under the terms of the plan. This provision, however,
shall not be construed to either require Eclectic to establish any
welfare, compensation or long-term incentive plans, or to prevent the
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ENTERTAINMENT
modification or termination of any plan once established, and no
action or inaction with respect to any plan shall affect this
Agreement.
5. Business Expenses. During your employment under this Agreement,
Eclectic shall reimburse you for such reasonable travel and other
expenses incurred in the performance of your duties consistent with
Eclectic's then applicable expense reimbursement policies.
6. Non-Competition, Confidential Information, Etc.
(a) Non-Competition. You agree that, with the exception of
your ongoing law practice, your employment with Eclectic is on an
exclusive basis and that, while you are employed by Eclectic, you will
not engage in any other business activity which is in conflict with
your duties and obligations (including your commitment of time) under
this Agreement. You agree that, during the Non-Compete Period (as
defined below), you shall not directly or indirectly engage in or
participate as an owner, partner, stockholder, officer, employee,
director, agent of or consultant for any Eclectic Competitor (as
defined below); provided, however, that this provision shall not
prevent you from investing as less than a one (1%) percent stockholder
in the securities of any company listed on a national securities
exchange or quoted on an automated quotation system. The Non-Compete
Period shall cover the entire Term plus any period after the Term for
which you receive payments pursuant to paragraph 8(d)(i) or 8(e). An
Eclectic Competitor is any business entity which engages in (I)
television broadcasting in any form or fashion, (ii) the production,
licensing or distribution of feature films, (iii) the production,
licensing or distribution of television programs, either alone or in
association with another entity. In every case, the good faith
judgment of Eclectic shall be conclusive as to whether a business
entity constitutes an Eclectic Competitor.
(b) Confidential Information. You agree that, during the Term
or at any time thereafter, (i) you shall not use for any purpose other
than the duly authorized business of Eclectic, or disclose to any
third party, any information relating to Eclectic or any of its
affiliated companies which is proprietary to Eclectic or any of its
affiliated companies ("Confidential Information"), including any
customer information, trade secret or any written (including in any
electronic form) or oral communication incorporating Confidential
Information in any way (except as may be required by law or in the
performance of your duties under this Agreement consistent with
Eclectic's policies); and (ii) you will comply with any and all
confidentiality obligations of Eclectic to a third party, whether
arising under a written agreement or otherwise. Information shall not
be deemed Confidential Information which (x) is or becomes generally
available to the public other than as a result of a disclosure by you
or at your direction or by any other person who directly or indirectly
receives such information from you, or (y) is or becomes available to
you on a non-confidential basis from a source which is entitled to
disclose it to you.
(c) No Employee Solicitation. You agree that, during the Term
and for one (1) year thereafter, you shall not, directly or
indirectly, engage, employ or solicit the employment or consulting
services of any person who is then or has been within six (6) months
prior to the time of such action, an employee of Eclectic or any of
its affiliated companies, or agree to do so.
(d) Eclectic Ownership. The results and proceeds of your
services under this Agreement, including, without limitation, any
works of authorship resulting from your services during your
employment with Eclectic and/or any of its affiliated companies and
any works in progress resulting from such services, shall be works-
made-for-hire and Eclectic shall be deemed the sole owner throughout
the universe of any and all rights of every nature in such works,
whether such rights are now known or hereafter defined or discovered,
with the right to use the works in perpetuity in any manner Eclectic
determines in its sole discretion without any further payment to you.
If, for any reason, any of such results and proceeds are not legally
deemed a work-made-for-hire and/or there are any rights in such
results and proceeds which do not accrue to Eclectic under the
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ENTERTAINMENT
preceding sentence, then you hereby irrevocably assign and agree to
assign any and all of your right, title and interest thereto,
including, without limitation, any and all copyrights, patents, trade
secrets, trademarks and/or other rights of every nature in the work,
whether now known or hereafter defined or discovered, and Eclectic
shall have the right to use the work in perpetuity throughout the
universe in any manner Eclectic determines in its sole discretion
without any further payment to you. You shall, as may be requested by
Eclectic from time to time, do any and all things which Eclectic may
deem useful or desirable to establish or document Eclectic's rights in
any such results and proceeds, including, without limitation, the
execution of appropriate copyright, trademark and/or patent
applications, assignments or similar documents and, if you are
unavailable or unwilling to execute such documents, you hereby
irrevocably designate the CEO or his designee as your attorney-in-fact
with the power to execute such documents on your behalf. To the extent
you have any rights in the results and proceeds of your services under
this Agreement that cannot be assigned as described above, you
unconditionally and irrevocably waive the enforcement of such rights.
This paragraph 6(d) is subject to, and does not limit, restrict, or
constitute a waiver by Eclectic or any of its affiliated companies of
any ownership rights to which Eclectic or any of its affiliated
companies may be entitled by operation of law by virtue of being your
employer.
(e) Litigation. You agree that, during the Term, for one (1)
year thereafter and, if longer, during the pendancy of any litigation
or other proceeding, (i) you shall not communicate with anyone (other
than your own attorneys and tax advisors), except to the extent
necessary in the performance of your duties under this Agreement, with
respect to the facts or subject matter of any pending or potential
litigation, or regulatory or administrative proceeding involving
Eclectic or any of Eclectic's affiliated companies, other than any
litigation or other proceeding in which you are a party-in-opposition,
without giving prior notice to Eclectic or Eclectic's counsel; and
(ii) in the event that any other party attempts to obtain information
or documents from you with respect to matters possibly related to such
litigation or other proceeding, you shall promptly notify Eclectic's
counsel before providing such information or documents.
(f) No Right to Give Interviews or Write Books, Articles, Etc.
During the Term, except as authorized by Eclectic, you shall not (i)
give any interviews or speeches, or (ii) prepare or assist any person
or entity in the preparation of any books, articles, television or
motion picture productions or other creations, in either case,
concerning Eclectic or any of its affiliated companies or any of their
respective officers, directors, agents, employees, suppliers or
customers.
(g) Return of Property. All documents, data, recordings, or
other property, whether tangible or intangible, including all
information stored in electronic form, obtained or prepared by or for
you and utilized by you in the course of your employment with Eclectic
or any of its affiliated companies shall remain the exclusive property
of Eclectic. In the event of the termination of your employment for
any reason, Eclectic reserves the right, to the extent permitted by
law and in addition to any other remedy Eclectic may have, to deduct
from any monies otherwise payable to you the following: (i) all
amounts you may owe to Eclectic or any of its affiliated companies at
the time of or subsequent to the termination of your employment with
Eclectic; and (ii) the value of the Eclectic property which you retain
in your possession after the termination of your employment with
Eclectic. In the event that the law of any state or other
jurisdiction requires the consent of an employee for such deductions,
this Agreement shall serve as such consent.
(h) Non-Disparagement. You agree that, during the Term and for
one (1) year thereafter, you shall not, in any communications with the
press or other media or any customer, client or supplier of Eclectic
or any of its affiliated companies, criticize, ridicule or make any
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ECLECTIC
ENTERTAINMENT
statement which disparages or is derogatory of Eclectic or any of its
affiliated companies or any of their respective directors or senior
officers.
(i) Injunctive Relief. Eclectic has entered into this
Agreement in order to obtain the benefit of your unique skills,
talent, and experience. You acknowledge and agree that any violation
of paragraphs 6(a) through (h) of this Agreement will result in
irreparable damage to Eclectic, and, accordingly, Eclectic may obtain
injunctive and other equitable relief for any breach or threatened
breach of such paragraphs, in addition to any other remedies available
to Eclectic.
(j) Survival; Modification of Terms. Your obligations under
paragraphs 6(a) through (i) shall remain in full force and effect for
the entire period provided therein notwithstanding the termination of
your employment whether under this Agreement or otherwise for any
reason or the expiration of the Term. You and Eclectic agree that the
restrictions and remedies contained in paragraphs 6(a) through (i) are
reasonable and that it is your intention and the intention of Eclectic
that such restrictions and remedies shall be enforceable to the
fullest extent permissible by law. If a court of competent
jurisdiction shall find that any such restriction or remedy is
unenforceable but would be enforceable if some part were deleted or
the period or area of application reduced, then such restriction or
remedy shall apply with the modification necessary to make it
enforceable.
7. Disability. In the event that you become "disabled" within the
meaning of such term under Eclectic's Short-Term Disability ("STD")
program and its Long-Term Disability ("LTD") program during the Term
(such condition is referred to as a "Disability"), you will receive
compensation under the STD program for the first twenty-six (26) weeks
of consecutive absence in accordance with its terms. Thereafter, you
will be eligible to receive benefits under the LTD program in
accordance with its terms. If you have not returned to work by
December 31st of a calendar year during the Term, you will receive
bonus compensation for the calendar year(s) during the Term in which
you receive compensation under the STD program, determined as follows:
(i) For the portion of the calendar year from January 1st until
the date on which you first receive compensation under the STD
program, bonus compensation shall be determined in accordance with the
STIP, as applicable, and prorated for such period; and
(ii) For any subsequent portion of that calendar year and any
portion of the following calendar year in which you receive
compensation under the STD program, bonus compensation shall be in an
amount equal to your Target Bonus and prorated for such period(s).
Bonus compensation under this paragraph 7 shall be paid, less
applicable deductions and withholding taxes, by the end of the first
quarter of the year(s) following the year as to which such bonus
compensation is payable. You will not receive bonus compensation for
any portion of the calendar year(s) during the Term while you receive
benefits under the LTD program. For the periods that you receive
compensation and benefits under the STD and LTD programs, such
compensation and benefits and the bonus compensation provided under
this paragraph 7 are in lieu of Salary and Bonus under paragraphs 3(a)
and (b).
8. Termination.
(a) Termination for Cause. Eclectic may, at its option,
terminate your employment under this Agreement forthwith for Cause and
thereafter shall have no further obligations under this Agreement,
including, without limitation, any obligation to pay Salary or Bonus
or provide benefits. Cause shall mean: (i) embezzlement, fraud or
other similar conduct involving Eclectic which would constitute a
felony; (ii) conviction of a felony; (iii) unauthorized disclosure of
Confidential Information; (iv) your failure to obey a material lawful
directive that is appropriate to your position from an executive(s) in
your reporting line; (v) your material breach of this Agreement; or
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ENTERTAINMENT
(i) your failure (except in the event of your disability) or refusal
to substantially perform your material obligations under this
Agreement. Eclectic will give you written notice prior to terminating
your employment pursuant to (iv), (v) or (vi) of this paragraph 8(a),
setting forth the nature of any alleged failure, breach or refusal in
reasonable detail and the conduct required to cure. Except for a
failure, breach or refusal which, by its nature, cannot reasonably be
expected to be cured, you shall have ten (10) business days from the
giving of such notice within which to cure any failure, breach or
refusal under (iv) or (v) of this paragraph 8(a); provided, however,
that, if Eclectic reasonably expects irreparable injury from a delay
of ten (10) business days, Eclectic may give you notice of such
shorter period within which to cure as is reasonable under the
circumstances.
(b) Good Reason Termination. You may terminate your employment
under this Agreement for Good Reason at any time during the Term by
written notice to Eclectic no more than thirty (30) days after the
occurrence of the event constituting Good Reason. Such notice shall
state an effective date no earlier than thirty (30) business days
after the date it is given. Eclectic shall have thirty (30) business
days from the giving of such notice within which to cure and, in the
event of such cure, your notice shall be of no further force or
effect. Good Reason shall mean without your consent (other than in
connection with the termination or suspension of your employment or
duties for Cause or in connection with your Disability): (i) the
assignment to you of duties or responsibilities substantially
inconsistent with your position(s) or duties; (ii) the withdrawal of
material portions of your duties described in paragraph 2; (iii) the
material breach by Eclectic of its material obligations under this
Agreement, including without limitation, a reduction in your Salary or
Target Bonus; or (iv) Eclectic's failure to offer to extend or renew
this Agreement no later than thirty (30) days before the end of the
Term on substantially similar terms.
(c) Termination Without Cause. Eclectic may terminate your
employment under this Agreement without Cause at any time during the
Term by written notice to you.
(d) Termination Payments/Benefits. In the event that your
employment terminates under paragraph 8(b) or (c), you shall
thereafter receive, less applicable withholding taxes:
(i) Your Salary, as in effect on the date on which your
employment terminates, for twelve (12) months after the date of such
termination or the balance of the Term, whichever is longer, paid in
accordance with Eclectic's then effective payroll practices;
(ii) Bonus compensation for the calendar year in which such
termination occurs, payable by the end of the first quarter of the
following year, determined as follows:
(x) For the portion of the calendar year from January 1st
until the date of the termination, bonus compensation shall be
determined in accordance with the STIP, as applicable, and prorated
for such period; and
(y) For the remaining portion of such calendar year during
the Term, bonus compensation shall be in an amount equal to your
Target Bonus and prorated for such period;
(iii) Bonus compensation for each subsequent calendar year or
portion thereof during the Term, in an amount equal to your Target
Bonus, prorated for any partial calendar year and payable by the end
of the first quarter of the following year;
(iv) Medical and dental insurance coverage provided under COBRA
at no cost to you (except as hereafter described) pursuant to
Eclectic's then-current benefit plans until the end of the Term or, if
earlier, the date on which you become eligible for medical and dental
coverage from a third party; provided, that, during the period that
Eclectic provides you with this coverage, an amount equal to the
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ECLECTIC
ENTERTAINMENT
applicable COBRA premiums (or such other amounts as may be required by
law) will be included in your income for tax purposes to the extent
required by law and Eclectic may withhold taxes from your compensation
for this purpose; and provided, further, that you may elect to
continue your medical and dental insurance coverage under COBRA at
your own expense for the balance, if any, of the period required by
law;
(v) Life insurance coverage until the end of the Term pursuant
to Eclectic's then-current policy in the amount then furnished to
Eclectic employees at no cost (the amount of such coverage will be
reduced by the amount of life insurance coverage furnished to you at
no cost by a third party employer);
You shall be required to mitigate the amount of any payment provided
for in (i), (ii) and (iii) of this paragraph 8(d) by seeking other
employment, and the amount of such payments shall be reduced by any
compensation earned by you from any source, including, without
limitation, salary, sign-on or annual bonus compensation, consulting
fees, commission payments and, in the event you receive significantly
more long-term compensation than you received from Eclectic,
Eclectic's good faith estimate of the present value of the portion of
such long-term compensation in excess of the long-term compensation
from Eclectic; provided, that mitigation shall not be required, and no
reduction for other compensation shall be made, for twelve (12) months
after the termination of your employment or, if less, the balance of
the Term. You agree to notify Eclectic with respect to any such
compensation earned by you during the period when such mitigation is
required and to promptly respond to any inquiries from Eclectic with
respect to such compensation or your efforts to fulfill your
mitigation obligations under this provision.
(e) Termination of Benefits. Notwithstanding anything in this
Agreement to the contrary (except as otherwise provided in paragraph
8(d) with respect to medical and dental benefits and life insurance),
participation in all Eclectic benefit plans and programs (including,
without limitation, vacation accrual, the 401(k) plan, the pension
plan and the related excess plans, LTD and accidental death and
dismemberment and business travel and accident insurance) will
terminate upon the termination of your employment except to the extent
otherwise expressly provided in such plans or programs and subject to
any vested rights you may have under the terms of such plans or
programs.
(f) Resignation from Official Positions. If your employment
with Eclectic terminates for any reason, you shall be deemed to have
resigned at that time from any and all officer or director positions
that you may have held with Eclectic or any of its then current or
previously affiliated companies and all board seats or other positions
in other entities you held on behalf of Eclectic. If, for any reason,
this paragraph 8(g) is deemed insufficient to effectuate such
resignation, you agree to execute, upon the request of Eclectic, any
documents or instruments which Eclectic may deem necessary or
desirable to effectuate such resignation or resignations, and you
hereby authorize the Secretary and any Assistant Secretary of Eclectic
to execute any such documents or instruments as your attorney-in-fact.
Not withstanding the aforementioned, should you retire from your
position as an officer of Eclectic or its affiliated companies, if you
so desire, you may retain your position as a member of the Board of
Directors until your term expires.
9. Death. In the event of your death prior to the end of the Term
while actively employed, your beneficiary or estate shall receive (i)
your Salary up to the date on which the death occurs; (ii) any Bonus
earned in the prior year but not yet paid; and (iii) bonus
compensation for the calendar year in which the death occurs,
determined in accordance with the STIP, as applicable (i.e., based
upon Eclectic's achievement of its goals and Eclectic's good faith
estimate of your achievement of your personal goals), and pro-rated
for the portion of the year through the date of death, payable, less
applicable deductions and withholding taxes, by the end of the first
quarter of the following year. In the event of your death after the
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ENTERTAINMENT
termination of your employment while you are entitled to receive
compensation under paragraph 8(d) your beneficiary or estate shall
receive (x) any Salary payable under paragraph 8(d)(i) up to the date
on which the death occurs; (y) any bonus compensation earned under
paragraph 8(d)(ii) or (iii) with respect to the prior year but not yet
paid; and (z) any bonus compensation for the calendar year in which
the death occurs, determined in accordance with paragraph 8(d)(ii) or
(iii) and pro-rated for the portion of the year through the date of
death, payable, less applicable deductions and withholding taxes, by
the end of the first quarter of the following year.
10. No Acceptance of Payments. You represent that you have not
accepted or given nor will you accept or give, directly or indirectly,
any money, services or other valuable consideration from or to anyone
other than Eclectic for the inclusion of any matter as part of any
film, television program or other production produced, distributed
and/or developed by Eclectic and/or any of its affiliated companies.
11. Equal Opportunity Employer. You recognize that Eclectic is
an equal opportunity employer. You agree that you will comply with
Eclectic policies regarding employment practices and with applicable
federal, state and local laws prohibiting discrimination on the basis
of race, color, sex, religion, national origin, citizenship, age,
marital status, sexual orientation, disability or veteran status.
12. Employee Statement of Business Conduct. You agree that you
will comply with the Eclectic Employee Statement of Business Conduct.
13. Notices. All notices under this Agreement must be given in
writing, by personal delivery or by mail, at the parties' respective
addresses shown on this Agreement (or any other address designated in
writing by either party), with a copy, in the case of Eclectic, to the
attention of the General Counsel of Eclectic. Any notice given by
mail shall be deemed to have been given three days following such
mailing.
14. Assignment. This is an Agreement for the performance of
personal services by you and may not be assigned by you or Eclectic
except that Eclectic may assign this Agreement to any affiliated
company of or any successor in interest to Eclectic.
15. CALIFORNIA LAW AND JURISDICTION. YOU ACKNOWLEDGE THAT THIS
AGREEMENT HAS BEEN EXECUTED, IN WHOLE OR IN PART, IN CALIFORNIA, AND
YOUR EMPLOYMENT DUTIES ARE PRIMARILY PERFORMED IN CALIFORNIA.
ACCORDINGLY, YOU AGREE THAT THIS AGREEMENT AND ALL MATTERS OR ISSUES
ARISING OUT OF OR RELATING TO YOUR ECLECTIC EMPLOYMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY THEREIN. ANY ACTION TO
ENFORCE THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURTS LOCATED IN THE CITY OF LOS ANGELES.
16. Binding Arbitration. Should any dispute arise as to the
terms of this agreement, you agree to submit to binding arbitration.
17. No Implied Contract. Nothing contained in this Agreement
shall be construed to impose any obligation on Eclectic or you to
renew this Agreement or any portion thereof. The parties intend to be
bound only upon execution of a written agreement and no negotiation,
exchange of draft or partial performance shall be deemed to imply an
agreement. Neither the continuation of employment nor any other
conduct shall be deemed to imply a continuing agreement upon the
expiration of the Term.
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18. Entire Understanding. This Agreement contains the entire
understanding of the parties hereto relating to the subject matter
contained in this Agreement, and can be changed only by a writing
signed by both parties.
19. Void Provisions. If any provision of this Agreement, as
applied to either party or to any circumstances, shall be found by a
court of competent jurisdiction to be unenforceable but would be
enforceable if some part were deleted or the period or area of
application were reduced, then such provision shall apply with the
modification necessary to make it enforceable, and shall in no way
affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
20. Supersedes Prior Agreements. With respect to the period
covered by the Term, this Agreement supersedes and cancels all prior
agreements relating to your employment by Eclectic or any of its
affiliated companies.
21. Eclectic No Longer Affiliated with OBN. At such time as
OBN no longer holds a controlling ownership interest in Eclectic, the
references to "affiliated companies" in the covenants set forth in
paragraphs 6(b), (c) and (e) (with respect to confidential
information, no employee solicitation and litigation) shall, without
limiting the scope of such covenants, continue to apply to OBN and its
affiliated companies.
22. No Restriction on Employment. You represent that you are
not subject to any covenant, agreement, or restriction (including, but
not limited to, a covenant of non-competition) with or by any third
party that would prevent you from beginning your employment on your
Commencement Date and thereafter performing your duties and
responsibilities with Eclectic, or would impinge upon, interfere with,
or restrict your ability to perform your duties or responsibilities
with Eclectic under this Agreement.
If the foregoing correctly sets forth our understanding, please sign,
date and return all three (3) copies of this Agreement to the
undersigned for execution on behalf of Eclectic; after this Agreement
has been executed by Eclectic and a fully-executed copy returned to
you, it shall constitute a binding agreement between us.
Very truly yours,
ECLECTIC ENTERTAINMENT, INC.
/s/ XXXXX XXXX XXXXX
_________________________
Xxxxx Xxxx Xxxxx
Chief Executive Officer
ACCEPTED AND AGREED:
/s/ XXXXXX X. XXXXXX
_________________________
Xxxxxx X. Xxxxxx
Dated: April 22, 2003
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