Exhibit 10.8
Agreement made as of April 14, 1997 between XXXXX XXXXXX ("you"), residing
at 00 Xxxxxxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, and LANCIT MEDIA
ENTERTAINMENT, LTD., having an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Company").
1. EMPLOYMENT
1.01.The Company hereby employs you, and you accept employment, as
Vice President - Marketing. You shall perform such additional
services, of a similar nature and degree of responsibility as
those of your primary duties, as may from time to time be
assigned to you.
1.02.During the term of this agreement, you will devote substantially
all of your working time and attention to the interests of the
Company. Your services will be rendered exclusively to the
Company during that term, and you will not render any services to
others or engage in any other business, directly or indirectly.
You will discharge your responsibilities in a diligent and
faithful manner, consistent with sound business practices.
1.03.Your principal place of employment will be at such offices as the
Company may provide in or around New York City, or such other
place as you and the Company mutually designate. You will travel
as reasonably necessary for the performance of your duties.
2. TERM
2.01.The term of this agreement will begin on April 14, 1997 and will
continue for a one (1) year period ending on April 13, 1998 (the
"Expiration Date").
0.00.Xxx grant the Company one (1) option to extend the term for a
period of one year commencing April 14, 1998 (the "Option Year").
The Company may, in its sole discretion, exercise such option by
giving you notice not later than March 13, 1998.
3. BASE SALARY
3.01 The Company will pay you a base salary at the rate of $110,000
per year during the term of this agreement. Your base salary may
be subject to such merit increases, if any, as the Company may
determine in its sole discretion from time to time, based on its
periodic review of your performance in accordance with its
regular policies and procedures.
4. OTHER COMPENSATION; BENEFITS AND EXPENSES
4.01 You shall be eligible to participate in all plans now existing or
adopted in the future for the general benefit of all employees of
the Company, such as pension plans, investment funds, and group
or other insurance plans and benefits, to the extent that you are
and remain eligible to participate, and subject to the provisions
of such plans in effect from time to time. The Company reserves
its right to modify, suspend or discontinue any and all such
benefits at any time without recourse by you.
4.02.The Company will reimburse you for your reasonable business
expenses incurred in connection with the performance of your
duties under this agreement, in accordance with the Company's
general policies regarding expenses and expense accounting.
4.03.All compensation payable to you under this agreement will be
subject to applicable tax withholding.
4.04.During the first year of the term of this agreement, you should
be entitled to 10 days of vacation. During the Option Year, if
applicable, you shall be entitled to 15 days of vacation.
5. TERMINATION
5.01.The term of this agreement will terminate at your death. The term
may be terminated at the Company's option, by notice to you, as a
result of your disability (defined in paragraph 5.02), for cause
(defined in paragraph 5.03), or without cause (subject to the
provisions of subparagraph 5.04(b)).
5.02."Disability" means illness or other physical or mental disability
or incapacity which, in the Company's judgment, has substantially
prevented you from performing your duties during any period of 90
consecutive days or for 90 days during any period of 180
consecutive days, and which can reasonably be expected to
continue in the judgment of a physician selected by the company.
The Company will have the right to terminate your employment as a
result of your disability by giving written notice to you not
later than 30 days after the expiration of any such 90-day
period.
5.03."Cause" for termination means (i) fraud, embezzlement, or other
misappropriation, (ii) your material breach of your obligations
with respect to any rules or regulations of employment which may
be adopted or amended from time to time by the Company, (iii)
your failure to perform your duties, which failure is not cured
within thirty (30) days after the date on which the Company gives
you written notice of such failure, or (iv) your default of any
obligations under this agreement (other than those specified in
clauses (i) through (iii) above), which default is not cured
within thirty (30) days
after the date on which the Company gives you written notice of
such default. If your employment is terminated by the Company for
cause, the Company's obligations to you will terminate
immediately except as expressly provided in subparagraphs 5.04(a)
and (c).
5.04.(a) If your employment is terminated during the term of this
agreement by your voluntary action, death, or disability or by
the Company for cause, the Company will pay, in lieu of any other
payments hereunder (including bonus payments), your base salary
that has actually accrued to the date of termination and any
vacation pay that has accrued to that date and is payable under
the Company's standard policies. You acknowledge that upon
receipt of such payments pursuant to this subparagraph, the
Company will have no further obligations to you under this
agreement, except as provided under subparagraph 5.04(c).
(b) If your employment is terminated during the term of this
agreement other than by your voluntary action, death or
disability, or by the Company for cause, you shall receive, in
lieu of all amounts otherwise payable hereunder (including bonus
payments), the balance of the base salary (excluding the Option
Year salary if the Company has not yet opted for the Option Year
at the time of termination) which would be payable during the
remainder of the term, but in no event shall such amount be less
than the base salary for six (6) months. Such payments will be
made at the same intervals as they would have been made if this
agreement had not been terminated. In addition, you shall receive
any base salary that has actually accrued to the date of
termination and any vacation pay that has accrued to that date
and is payable under the Company's standard policies. You
acknowledge that upon receipt of such payments pursuant to this
subparagraph, the Company will have no further obligations to you
under this agreement, except as provided under subparagraph
5.04(c).
(c) If your employment is terminated for any reason, you will be
entitled to any benefits then vested under benefit plans and
otherwise payable in accordance with the provisions of the plan
concerned.
(d) In the event of any termination of your employment, this
paragraph 5.04 will apply in place of any Company severance
policies that might otherwise be applicable, and the Company will
have no obligation to make any payments to you except those
expressly prescribed in subparagraphs 5.04(a), 5.04(b), and
5.04(c).
6. RESTRICTIONS
6.01.Without limiting the generality of paragraph 1.02, you shall not
engage or be financially interested, directly or indirectly, at
any time during the term of this agreement, in any activity
competitive with any business then carried on by the Company or
by any other enterprise directly controlled by the Company.
Notwithstanding the preceding sentence, you may own less than one
percent (1%) of the number of shares outstanding of any
securities that are listed for trading on any securities
exchange.
0.00.Xxx recognize and acknowledge that certain information is
proprietary to and confidential with the Company, including
without limitation the following: the Company's strategic and/or
business plan, pending projects, projects in development,
acquisition targets at both the individual project and corporate
level, co-production arrangements, joint ventures, funding
sources, distribution arrangements, the contacts at such entities
and the financial terms of such agreements with the
Company (collectively, "Confidential Information"). You will not
directly or indirectly, on behalf of yourself or others, during
or at any time after the termination of your providing services
hereunder, irrespective of time, manner or reason for
termination, disclose, publish, disseminate or utilize such
Confidential Information, or any part thereof except in
furtherance of the business of the Company. You will not remove
or duplicate in any manner at any time any lists or other
records, or any parts thereof, concerning the Company's
Confidential Information and upon termination of your employment
will return to the Company any and all lists and records
concerning the Company's Confidential Information thereof in your
possession.
6.03.(a) You agree that during the Term of your employment with the
Company and for the two (2) years following termination of such
employment, neither you nor any Related Person shall knowingly,
either directly or indirectly, for yourself or for any other
person or entity, enter into any agreement, or assist any other
person or entity in entering into any agreement or other
arrangement regarding any of the projects introduced to or
acquired or developed by the Company during the term of your
employment. The Company agrees that the restriction of this
subparagraph 6.03 shall not apply to any project which was the
subject of a written agreement between the Company and a third
party, the term of which has ended, and which is not then the
subject of a negotiation for an extended or new term. Your right
to enter into an agreement or other arrangement regarding
projects described by the previous sentence shall be subject to
your obligation to send the Company notice of your intention to
do so, and the Company's failure to commence negotiations for
such project, within five (5) business days after receipt of such
notice. "Related Person" shall mean any person or entity who or
which, directly or indirectly, is controlled by you or any person
who is a member of your family.
(b) You also agree that prior to the date twelve months after the
date on which your employment with the Company is terminated
neither you nor any entity with whom you are at the time
affiliated shall, by virtue of any action taken or information
supplied by you, directly or indirectly hire, offer to hire,
entice away, or in any other manner persuade or attempt to
persuade any officer, employee, agent, representative, customer
or supplier of the Company to discontinue his or her relationship
with the Company.
7. NOTICES
7.01.All notices under this agreement shall be in writing and shall be
given by courier or other personal delivery or by registered or
certified mail at the appropriate address below or at a
substitute address designated by written notice by the party
concerned:.
TO YOU: The address shown above.
TO THE COMPANY: The address shown above.
Each notice to the Company shall be addressed for the attention
of its President and Chief Executive Officer and a copy of each
such notice shall be sent to Rubin, Bailin, Ortoli, Mayer, Xxxxx
& Fry LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Xxxxxx, Esq. Notices shall be deemed given when mailed
or, if personally delivered, when so delivered, except that a
notice of change of address shall be effective only from the date
of its receipt.
8. MISCELLANEOUS
8.01 This agreement supersedes all previous agreements between the
parties hereto, and contains the entire understanding
of the parties relating to its subject matter. No change or
termination of this agreement will be binding upon the Company
unless it is made by an instrument signed by an officer of the
Company. No change of this agreement will be binding upon you
unless it is made by an instrument signed by you. A waiver by
either party of any provision of this agreement in any instance
shall not be deemed to waive it for the future. All remedies,
rights, undertakings, and obligations contained in this agreement
shall be cumulative, and none of them shall be in limitation of
any other remedy, right, undertaking, or ligation of either
party.
8.02 The Company may assign its rights under this agreement in whole
or in part to any subsidiary, affiliated or controlling
corporation, to any entity owning or acquiring a substantial
portion of the stock or assets of the Company, or to any
partnership or other venture in which the Company participates,
provided that no such assignment shall relieve the Company of any
obligations hereunder. You shall not assign any of your rights or
delegate any of your duties under this agreement without the
prior express written consent in each instance of the Company.
8.03.Neither party will be entitled to recover damages or to terminate
the term of this agreement by reason of any breach by the other
party of its material obligations hereunder, unless the other
party has failed to remedy such breach within a reasonable time
after it has been given notice of such breach. In any action or
proceeding against the Company for breach of this agreement by
reason of termination, damages shall in no event exceed lost
salary under paragraph 3.01, and you shall have the obligation to
locate new employment and, upon re-employment, to offset amounts
earned against any amounts due under this agreement.
8.04 You hereby warrant and represent that you have full power and
authority to enter into this agreement and that your execution,
performance and delivery of this agreement will not (a) violate,
conflict with, or result in the breach of any terms, conditions,
covenants, or provisions of, or constitute a default under, any
agreement to which you are a party or (b) violate the rights of
any party. Notwithstanding anything in paragraph 8.03 to the
contrary, you will at all times indemnify and hold harmless the
Company from and against any and all claims, damages,
liabilities, costs and expenses, including legal expenses and
reasonable counsel fees, arising out of any breach or alleged
breach by you of the warranties and representations made by you
in this agreement or any other act or omission by you.
8.05.THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE OF NEW YORK,
AND THE VALIDITY, INTERPRETATION AND LEGAL EFFECT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY
WITHIN THE STATE OF NEW YORK. THE NEW YORK COURTS (STATE AND
FEDERAL) WILL HAVE EXCLUSIVE JURISDICTION OF ANY CONTROVERSIES
REGARDING THIS AGREEMENT; ANY ACTION OR OTHER PROCEEDING WHICH
INVOLVES SUCH A CONTROVERSY WILL BE BROUGHT IN THOSE COURTS, IN
NEW YORK COUNTY, AND NOT ELSEWHERE. ANY PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY, AMONG OTHER METHODS, BE SERVED UPON YOU
BY DELIVERING IT OR MAILING IT, BY REGISTERED OR CERTIFIED MAIL,
DIRECTED TO THE ADDRESS FIRST ABOVE WRITTEN OR SUCH OTHER ADDRESS
AS YOU MAY DESIGNATE PURSUANT TO ARTICLE 7.
8.06.The provisions of this agreement will survive any termination of
your employment, unless the context requires otherwise.
8.07 If any provision of this agreement or the application thereof is
held invalid, the invalidity shall not affect other
effect without the invalid provisions or application, and to t
his end the provisions of this agreement are declared to be
severable.
8.08 This agreement shall not become effective until executed by both
parties. IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
LANCIT MEDIA ENTERTAINMENT, LTD.
BY: /s/XXXXX X. XXXXXXX
Authorized Officer
EMPLOYEE:
/s/ XXXXX XXXXXX
Name:XXXXX XXXXXX
Social Security Number: ###-##-####
