Exhibit 10.21
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT, dated as of December 15, 1997, between LOEWS CINEPLEX
ENTERTAINMENT CORPORATION, a Delaware corporation, which maintains offices at
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Company"), and J. Xxxxxx Xxxxxxx
("Employee"), residing at 000 Xxxxx Xxxx Xxxxx, Xxx, Xxx Xxxx 00000.
WHEREAS, Employee and the Company desire to enter into this Employment
Agreement to be effective as of the date hereof.
NOW, THEREFORE, the parties hereby agree as follows:
1. TERM OF EMPLOYMENT.
------------------
(a) The Company hereby employs Employee, and Employee hereby accepts
employment, on the terms and subject to the conditions hereinafter set forth,
for a term (the "Employment Period") commencing on December 15, 1997 (the
"Commence-ment Date") and continuing until the fourth anniversary of the
Commencement Date or, if the term of this Agreement is extended pursuant to
Section 1(b) hereof, until the fifth anniversary of the Commencement Date (the
"Expiration Date").
(b) The Company shall have the right (the "Extension Option"),
exercisable upon written notice given to Employee on or before September 15,
2001, to extend the Employment Period, all in accordance with and subject to the
terms and conditions hereof, for an additional one-year period commencing on the
fourth anniversary of the Commencement Date.
2. DUTIES AND PRIVILEGES. During the Employment Period, Employee
---------------------
shall serve as President, International Operations, of the Company and be
responsible to and report directly to the Chief Executive Officer or the Chief
Operating Officer of the Company (in either case, the "Supervisory Officer").
During the Employment Period, Employee shall have such authority and perform
such duties which are consistent with Employee's title and position as
President, International Operations, of the Company as the Supervisory Officer
may from time to time prescribe; devote Employee's entire business time, ability
and energy exclusively to the performance of Employee's duties hereunder (except
that Employee may participate in charitable and industry activities that do not
interfere with his duties hereunder); and use Employee's best efforts to advance
the interests and businesses of the Company, and its divisions and subsidiaries.
During the Employment Period, the Company shall not hire any individual into a
position with the Company's International Division with a title or
responsibilities equivalent or more senior to those of Employee. Employee's
principal office shall be located at the Company's offices in the New York
metropolitan area. The Company shall not, without the consent of Employee, move
the location of Employee's principal office from the New York metropolitan area
(other than to move it to Los Angeles, California). During the Employment
Period, the Company shall provide Employee with an office and a secretary at
Employee's principal office.
3. COMPENSATION.
------------
(a) The Company shall pay to Employee a base salary at the rate
of $450,000 per year during the Employment Period; provided, however, that (i)
effective as of the first and second anniversaries of the Commencement Date (and
the fourth anniversary of the Commencement Date if the Company exercises the
Extension Option pursuant to Section 1(b) hereof), the annual rate of salary
payable to Employee pursuant to this Section 3(a) shall be increased to reflect
the increase (if any) in the cost of living during the previous year based upon
the Consumer Price Index for the New York-New Jersey Metropolitan area, as
reported by the Bureau of Labor Statistics of the United States Department of
Labor (in any event, such increase shall not be less than 3%), and (ii)
effective as of the third anniversary of the Commencement Date, the annual base
salary then payable to Employee pursuant to this Section 3(a) (i.e., the salary
payable for year 3 of the Employment Period) shall be increased by $50,000.
(b) During the Employment Period, Employee shall be eligible to
participate in all then operative employee benefit plans of the Company which
are applicable generally to the Company's senior executives ("Employee Benefit
Plans"), subject to the respective terms and conditions of such Employee Benefit
Plans. Notwithstanding the foregoing, Employee shall be entitled to no less than
four weeks paid vacation each year during the Employment Period. Nothing
contained in this Agreement shall obligate the Company to adopt or implement any
Employee Benefit Plan, or prevent or limit the Company from making any blanket
amendments, changes or modifications of the eligibility requirements or any
other provisions of, or terminating, any Employee Benefit Plan at any time
(whether during or after the Employment Period), and Employee's participation in
or entitlement under any such Employee Benefit Plan shall at all times be
subject in all respects thereto. To the extent permitted by law and provided for
by the applicable Employee Benefit Plan, Employee shall be entitled to prior
service credit for his years of service with any group of which the Company (or
its predecessor) was a member in respect of any medical or retirement Employee
Benefit Plan for which years of service are generally applicable.
(c) During the Employment Period, Employee shall be eligible to
receive an annual bonus (the "Annual Bonus"), the amount of which will be
targeted at $200,000. The amount and payment of the Annual Bonus shall be based
on the attainment of specified performance goals to be developed by the
Company's Board of Directors each year.
(d) To facilitate Employee's performance of Employee's duties
hereunder, the Company shall make available to Employee, during the Employment
Period, either a leased automobile or car allowance. In the event Employee
elects to lease an automobile, the Company shall provide Employee with a leased
automobile, the cost to the Company of which shall not exceed $1,200 per month
during the Employment Period. In the event Employee elects a car allowance, the
amount thereof shall be $1,300 per month during the Employment Period. In either
case, the Company shall also pay for
-2-
and provide parking for Employee near the Company's New York office.
(e) To facilitate Employee's performance of Employee's duties
hereunder, the Company shall pay the cost of Employee's membership (including
initiation costs, if any) in a luncheon club in Manhattan, provided that the
initiation costs and the amount of the monthly dues are approved by the Board of
Directors. The Company shall authorize Employee to travel first class, where
available, on all Company business.
(f) The Company shall reimburse Employee for all transportation
and related moving expenses incurred in the relocation of Employee and his
family to the New York metropolitan area.
(g) Upon Employee's request at any time during the Employment
Period, the Company shall pay to Employee a one-time signing bonus in the amount
of $75,000.
4. EXPIRATION OF TERM AND TERMINATION.
----------------------------------
(a) Employee's employment by the Company and this Agreement
shall automatically expire and terminate on the Expiration Date unless sooner
terminated pursuant to the provisions of this Section 4.
(b) Employee's employment by the Company and this Agreement
shall automatically terminate upon Employee's death.
(c) The Company shall have the right and option, exercisable by
giving written notice to Employee, to terminate Employee's employment by the
Company and this Agreement at any time after Employee has been unable to perform
the services or duties required of Employee in connection with Employee's
employment by the Company as a result of physical or mental disability (or
disabilities) which has (or have) continued for a period of twelve (12)
consecutive weeks, or for a period of sixteen (16) weeks in the aggregate,
during any twelve (12) month period.
(d) The Company shall have the right and option, exercisable by
giving written notice to Employee, to terminate Employee's employment by the
Company and this Agreement at any time after the occurrence of any of the
following events or contingencies (any such termination being deemed to be a
termination "for cause"):
(i) Employee materially breaches, materially repudiates or
otherwise materially fails to comply with or perform any of the terms of this
Agreement, any duties of Employee in connection with Employee's employment by
the Company or any of the Company's policies or procedures, or deliberately
interferes with the material compliance by any other employee of the Company
with any of the foregoing and such action (if correctable) is not materially
corrected within 30 days after notice from the Company;
(ii) The conviction by Employee of a felony or the pleading
by Employee of no contest (or similar plea) to any felony (other than a crime
for which vicarious liability is imposed upon Employee solely by reason of
Employee's position with the Company, and not by reason of Employee's conduct);
-3-
(iii) Any act or omission by Employee constituting fraud, gross
negligence or willful misconduct in connection with Employee's employment by the
Company and, if correctable, is not corrected within 30 days after notice from
the Company; or
(iv) Any other act, omission, event or condition constituting cause
for the discharge of an employee under the laws of New York which, if
correctable, is not corrected within 30 days after notice from the Company.
(e) The Company shall have no obligation to renew or extend the Employment
Period. Neither (i) the expiration of the Employment Period, nor (ii) the
failure or refusal of the Company to renew or extend the Employment Period, this
Agreement, or Employee's employment by the Company upon the Expiration Date, nor
(iii) the termination of this Agreement by the Company pursuant to any provision
of this Section 4 (except Section 4(g)), shall be deemed to constitute a
termination of Employee's employment by the Company "without cause" for the
purpose of triggering any rights of or causes of action by Employee.
(f) If this Agreement, the Employment Period or Employee's employment by
the Company is terminated or expires pursuant to any provision of this Section 4
(other than Section 4(g)), or is terminated by Employee by reason other than the
Company's material breach of this Agreement, Employee's right to receive salary
or other compensation from the Company and all other rights and entitlements of
Employee pursuant to this Agreement or as an employee of the Company shall
forthwith cease and terminate, and the Company shall have no liability or
obligation whatsoever to Employee, except that:
(i) The Company shall be obligated to pay to Employee (x) not later
than the effective date of such termination all unpaid salary, car allowance (if
any), vacation and reimbursable expenses which shall have accrued as of the
effective date of such termination and (y) as soon as practicable after the end
of the fiscal year in which the termination occurs, a pro rata portion of the
Annual Bonus for the portion of such fiscal year through the effective date of
such termination; and
(ii) The terms and conditions of applicable Employee Benefit Plans,
if any, shall control Employee's entitlement, if any, to receive benefits
thereunder.
(g) The Company shall have the unilateral right, at any time, without
notice, in the Company's sole and absolute discretion, to terminate Employee's
employment by the Company, without cause, and for any reason or for no reason
(the Company's "Termination Rights"). If the Company materially reduces the
duties or responsibilities of the Employee hereunder, or otherwise materially
breaches this Agreement, such action shall be deemed an exercise by the Company
of its Termination Rights. The Company's Termination Rights are not limited or
restricted by, and shall supersede, any policy of the Company requiring or
favoring continued employment of its employees during satisfactory performance,
any seniority system or any procedure governing the manner in which the
Company's discretion is to be exercised. Subject to
-4-
applicable laws, no exercise by the Company of its Termination Rights shall,
under any circumstances, be deemed to constitute (i) a breach by the Company of
any term of this Agreement, express or implied (including without limitation a
breach of any implied covenant of good faith and fair dealing), (ii) a wrongful
discharge of Employee or a wrongful termination of Employee's employment by the
Company, (iii) a wrongful deprivation by the Company of Employee's corporate
office (or authority, opportunities or other benefits relating thereto) or (iv)
the breach by the Company of any other duty or obligation, express or implied,
which the Company may owe to Employee pursuant to any principle or provision of
law (whether contract or tort); provided, however, that notwithstanding the
foregoing, a breach by the Company of its payment obligations pursuant to this
Section 4(g) shall be deemed to be a breach of this Agreement. If the Company
elects to terminate Employee's employment or is deemed to exercise its
Termination Rights pursuant to this Section 4(g) prior to the Expiration Date,
the Company shall have no obligation or liability to Employee pursuant to this
Agreement, or otherwise, except to pay to Employee until the Expiration Date (x)
the salary and benefits (in each case as if this Agreement had not been
terminated) as provided in Sections 3(a) and (b) hereof (excluding car
allowance, parking or cellular telephone benefits), and (y) an annual bonus
amount equal to the target bonus for the year in which such termination occurs,
or if no such target has been set for the year, the most recent Annual Bonus
actually paid or payable to the Employee (pro-rated for the portion of a fiscal
year ending on the Expiration Date). If the Company elects to terminate
Employee's employment or is deemed to exercise its Termination Rights pursuant
to this Section 4(g) prior to the Expiration Date, Employee shall have no
obligation to mitigate. However, it is agreed that if Employee receives
employment income (whether direct or indirect salary, compensation or otherwise)
from subsequent employment (including self-employment) after such termination
and on or before the Expiration Date, such employment income shall be set off
against any payments to be made to Employee by the Company in connection with
its exercise or deemed exercise of its Termination Rights.
(h) Immediately upon any termination of Employee's employment
hereunder or of this Agreement (whether or not pursuant to this Section 4),
Employee shall return to the Company all property of the Company heretofore
provided to Employee by the Company, or otherwise in the custody, possession or
control of Employee (including, without limitation, the "Confidential Materials"
described in Paragraph 6(b) of Exhibit A attached hereto). Notwithstanding any
provision of this Agreement to the contrary, no termination of this Agreement or
of Employee's employment for any reason whatsoever shall in any manner operate
to terminate, limit or otherwise affect the Company's ownership of any of the
rights, properties or privileges granted to the Company hereunder.
5. LOAN. On or about February 19, 1999, the Company will make
----
Employee a bridge loan in the amount of $1,250,000 subject to his execution of
the Promissory Note in the form substantially as set forth in Appendix A hereto,
the Deed of Trust in the form
-5-
substantially as set forth in Appendix B hereto and the Pledge Agreement (and
related Securities Account Control Agreements) in the form substantially as set
forth in Appendix C hereto. The loan shall be secured by Employee's investment
portfolio and a mortgage on his residence located at 000 Xxxxxx Xxxxx, Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000, on the terms and conditions set forth in the above
referenced documents, attached hereto in Appendices A, B and C.
6. STANDARD TERMS. Attached as Exhibit A hereto and deemed a part
--------------
hereof are the Company's Standard Terms and Conditions of Employment Agreement,
all of which terms are binding on the parties hereto and incorporated herein.
For convenience, provisions of this Agreement shall be referred to as "Sections"
and provisions of the Standard Terms shall be referred as "Paragraphs". In the
case of any conflict between the terms of this Agreement and the terms of
Exhibit A hereto, the terms of this Agreement shall govern.
7. SUPERSEDING AGREEMENT. The Agreement, including Exhibit A hereto,
---------------------
shall constitute the full and entire understanding of the parties hereto with
respect to the subject matter hereof and shall supersede any prior agreements
with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed on their behalf as of the date first above written.
/s/ J.Xxxxxx Xxxxxxx
-----------------------------
J. Xxxxxx Xxxxxxx
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
-6-
EXHIBIT A
STANDARD TERMS AND CONDITIONS
-----------------------------
OF EMPLOYMENT AGREEMENT
-----------------------
1. Definitions. All capitalized terms used herein shall have the
-----------
meanings ascribed to them in the Agreement attached hereto. The following words,
terms and phrases (and variations thereof) used herein shall have the following
meanings:
(a) An "Affiliate", of a party means a Person which, directly or
indirectly, owns or controls, is owned or controlled by, or is under common
ownership or control with, such party.
(b) "Intellectual Property" means any and all intellectual, artistic,
literary, dramatic or musical rights, works or other materials of any kind or
nature (whether or not entitled to protection under applicable copyright laws,
or reduced to or embodied in any medium or tangible form), including without
limitation all copyrights, patents, trademarks, service marks, trade secrets,
contract rights, titles, characters, plots, themes, dialogue, stories, scripts,
treatments, outlines, submissions, ideas, concepts, packages, compositions,
artwork and logos, and all audio, visual or audio-visual works of every kind and
in every stage of development, production and completion, and all rights to
distribute, advertise, promote, exhibit or otherwise exploit any of the
foregoing by any means, media or processes now known or hereafter devised.
(c) "Media Business" means all Persons engaging in any of the
following: (i) the creation, production, distribution, exhibition or other
exploitation of theatrical motion pictures, television programs, sound
recordings or other visual, audio or audio-visual works or recordings of any
kind; (ii) television (including pay, free, over-the-air, cable and satellite)
or radio broadcasting; (iii) book, newspaper or periodical publishing; (iv)
music publishing; (v) "merchandising" (as that term is generally understood in
the entertainment industry); or (vi) advertising.
(d) "Person" means any individual, corporation, trust, estate,
partnership, joint venture, company, association, league, group, governmental
agency or other entity of any kind or nature.
2. Compensation.
------------
(a) Employee's salary shall be payable in equal installments (not
less frequently than monthly) in accordance with the Company's customary payroll
practices. No additional compensation shall be payable to Employee by reason of
the number of hours worked or by reason of any hours worked on Saturdays,
Sundays, holidays or otherwise. All compensation payable to Employee hereunder
(whether in the form of salary, benefits or otherwise) shall be subject to all
applicable laws, statutes, governmental regulations or orders, the terms of all
applicable Employee Benefit Plans and the terms of all agreements between or
binding upon the Company and Employee requiring the deduction or withholding of
any amounts from such payments, and the Company shall have the right to make
such deductions and withholdings in accordance with the Company's interpretation
thereof in the Company's sole judgment.
(b) Subject to Section 3(b) of the Agreement, Employee shall be
eligible to participate in fringe benefits, if any, maintained by the Company
for employees generally on the same basis as comparable employees of the
Company.
(c) Subject to the requirements of Employee's position and corporate
office, Employee shall be entitled to annual vacations in accordance with the
Company's vacation policy in effect from time to time.
(d) The Company recognizes that, in connection with Employee's
performance of Employee's duties and obligations hereunder, Employee will incur
certain ordinary and necessary expenses of a business character. The Company
shall pay Employee for such business expenses on the presentation of itemized
statements of such expenses, provided their extent and nature are approved in
accordance with the policies and procedures of the Company.
3. Right to Insure. The Company shall have the right to secure, in its
---------------
own name or otherwise and at its own expense, life, health, accident or other
insurance covering or otherwise insuring Employee, and Employee shall have no
right, title or interest in or to any such insurance or any of the proceeds or
benefits thereof. Employee shall fully assist and cooperate with the Company in
procuring any such insurance, including without limitation by submitting to such
examinations, and by signing such applications and other instruments, as may
reasonably be required by any insurance carrier to which application is made by
the Company for any such insurance.
4. Employment Exclusive. Employee shall not perform services for any
--------------------
Person other than the Company during the Employment Period without the prior
written consent of the Company and will not during the Employment Period engage
in any activity which would interfere with the performance of Employee's
services hereunder, or become financially interested in or associated with,
directly or indirectly, any Media Business.
5. Interest in Other Corporations. Notwithstanding anything to the
------------------------------
contrary contained in Paragraph 4 hereof, Employee may own up to one percent
(1%) of any class
of any Person's outstanding securities which are listed on any national
securities exchange, registered under Section 12(g) of the Securities Exchange
Act of 1934 or otherwise publicly traded, provided that the holdings of Employee
of any such security of a Media Business or any Person which does business with
the Company or its Affiliates do not represent more than 10% of the aggregate of
Employee's investment portfolio at any time.
6. Ownership of Proceeds of Employment; Confidentiality of Information,
-------------------------------------------------------------------
Etc.
---
(a) The Company shall be the sole and exclusive owner throughout the
universe in perpetuity of all of the results and proceeds of Employee's
services, work and labor during the Employment Period in connection with
Employee's employment by the Company, including without limitation all
Intellectual Property which Employee may develop, create, write or otherwise
produce during the Employment Period, free and clear of any and all claims,
liens or encumbrances. All results and proceeds of Employee's services, work and
labor during the Employment Period shall be deemed to be works-made-for-hire for
the Company within the meaning of the copyright laws of the United States and
the Company shall be deemed to be the sole author thereof in all territories and
for all purposes.
(b) All information, documents, notes, memoranda and Intellectual
Property of any kind received, compiled, produced or otherwise made available to
Employee during or in connection with Employee's employment by the Company
relating in any way to the business of the Company or of any of its Affiliates
and which has not been made available or confirmed to the public by the Company
("Confidential Materials") shall be the sole and exclusive property of the
Company and shall in perpetuity (both during and after Employee's employment by
the Company) be maintained in utmost confidence by Employee and held by Employee
in trust for the benefit of the Company. Employee shall not during the
Employment Period or at any time thereafter directly or indirectly release or
disclose to any other Person any Confidential Materials, except with the prior
written consent of the Company and in furtherance of the Company's business or
as required by law.
(c) Employee shall not, and shall not authorize or assist any other
Person to, directly or indirectly, at any time during the Employment Period or
for a period of twelve (12) months thereafter, without the Company's consent,
solicit, entice, persuade or induce any Person to terminate or refrain from
extending or renewing (on the same or different terms) such Person's employment
by, or contractual or business relationship with, the Company or any of its
Affiliates.
(d) During the Employment Period and with Employee's prior consent
(such consent not to be unreasonably withheld), the Company shall have the right
to use the Employee's name, approved biography (such approval not to be
unreasonably withheld), and likeness in connection with its business, including
in advertising its
products and services, and may grant this right to others, but not for use as an
endorsement.
7. Warranties and Covenants. Employee warrants, represents and covenants
------------------------
to the Company as follows:
(a) Employee is free to enter into this Agreement and to perform the
services contemplated hereunder.
(b) Employee is not currently (and will not, to the best knowledge
and ability of Employee, at any time during the Employment Period be) subject to
any agreement, understanding, obligation, claim, litigation, condition or
disability which could adversely affect Employee's performance of any of
Employee's obligations hereunder or the Company's complete ownership and
enjoyment of all of the rights, powers and privileges granted to the Company
hereunder.
(c) No Intellectual Property written, composed, created or submitted
by Employee at any time during Employee's employment by the Company shall, to
the best of Employee's knowledge, violate the rights of privacy or publicity,
constitute a libel or slander or infringe upon the copyright, literary,
personal, private, civil, property or other rights of any Person.
8. Employment after Term. Employee's employment by the Company may be
---------------------
continued beyond the Expiration Date by the express consent of both parties
(which consent each party shall have the right to grant or withhold in its sole
and absolute discretion). In the event of any such continuation of Employee's
employment by the Company beyond the Expiration Date, the relationship between
the Company and Employee shall be that of employment-at-will which may be
terminated by either the Company or Employee at any time upon ten (10) days'
written notice, with or without cause, for any reason or for no reason, and
without liability of any nature. Employee's employment by the Company, if any,
after the Expiration Date shall be governed by all of the terms and conditions
of this Agreement not inconsistent with the at-will nature of such employment.
9. Immigration. In accordance with the Immigration Reform and Control
-----------
Act of 1986 and the regulations adopted thereunder (8 CFR, Parts 109 and 274a),
the obligations of the Company under this Agreement are subject to and
conditioned upon Employee verifying and delivering to the Company, within three
(3) business days of Employee's first date of employment, the Form I-9
prescribed by the Immigration and Naturalization Service, and presenting to the
officer of the Company designated therefor the original documentation required
under such regulations to establish (i) the identity of Employee and (ii) that
Employee is lawfully authorized to work in the United States. If Employee is
unable to provide the documents required within the aforesaid three (3)
business-day period, Employee must (i) present to such designated officer within
said three (3) business days a receipt for the application for the documents
prescribed and (ii) the original documents required within twenty-one (21) days
of Employee's first date
of employment. If Employee fails to verify and deliver the Form I-9 and present
the required original documents within the stated time period, this Agreement
and Employee's employment hereunder shall cease and terminate as if this
Agreement had never been entered into and neither party shall have any further
right, duty or obligation to the other under this Agreement.
10. Equitable Relief. Employee acknowledges that the services to be
----------------
rendered by Employee under this Agreement, and the rights and privileges granted
by Employee to the Company hereunder, are of a special, unique, extraordinary
and intellectual character which gives them a peculiar and special value, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law, and a breach by Employee of any of the provisions hereof will
cause the Company great and irreparable injury. Employee acknowledges that the
Company shall, therefore, be entitled, in addition to any other remedies which
it may have under this Agreement or at law, to seek injunctive and other
equitable relief (including without limitation specific performance) to enforce
any of the rights and privileges of the Company or any of the covenants or
obligations of Employee hereunder. Nothing contained herein, and no exercise by
the Company of any right or remedy, shall be construed as a waiver by the
Company of any other rights or remedies which the Company may have. In the
event that any court or tribunal shall at any time hereafter hold any covenants
or restrictions contained in this Agreement to be unenforceable or unreasonable
as to the scope, territory or period of time specified therein, such court shall
have the power, and is specifically requested by Employee and the Company, to
declare or determine the scope, territory or period of time which it deems to be
reasonable or enforceable and to enforce the restrictions contained therein to
such extent.
11. Governing Law, Legal Proceedings and Remedies.
---------------------------------------------
(a) The substantive laws (as distinguished from the choice of law
rules) of the State of New York shall govern (i) the validity and interpretation
of this Agreement, (ii) the performance by the parties hereto of their
respective duties and obligations hereunder and (iii) all other causes of action
(whether sounding in contract or in tort) arising out of or relating in any
fashion to Employee's employment by the Company or the termination of such
employment; provided, however, that should the Company exercises its right to
-------- -------
move Employee's principal office from the New York metropolitan area to Los
Angeles, California, then the laws of the State of California shall govern (i)
the validity and interpretation of this Agreement, (ii) the performance by the
parties hereto of their respective duties and obligations hereunder and (iii)
all other causes of action (whether sounding in contract or in tort) arising out
of or relating in any fashion to Employee's employment by the Company or the
termination of such employment.
(b) Any and all actions, suits or legal proceedings of any nature
(whether sounding in contract or in tort) arising out of or relating to this
Agreement, to the employment of Employee by the Company or to the termination of
such employment
shall be initiated and maintained only in a state or federal court located in
the City and County of New York, State of New York, which shall be the exclusive
forum for, and shall have sole and exclusive jurisdiction over the subject
matter of, all such proceedings, and the Company and Employee each hereby submit
and subject themselves irrevocably to the personal jurisdiction of such New York
state and federal courts; provided, however, that should the Company exercises
-------- -------
its right to move Employee's principal office from the New York metropolitan
area to Los Angeles, California, then any and all actions, suits or legal
proceedings of any nature (whether sounding in contract or in tort) arising out
of or relating to this Agreement, to the employment of Employee by the Company
or to the termination of such employment shall be initiated and maintained only
in a state or federal court located in Los Angeles, California, which shall be
the exclusive forum for, and shall have sole and exclusive jurisdiction over the
subject matter of, all such proceedings, and the Company and Employee each
hereby submit and subject themselves irrevocably to the personal jurisdiction of
such California state and federal courts.
(c) In any and all actions, suits or legal proceedings of any nature
(whether sounding in contract or in tort) arising out of or relating to this
Agreement, to the employment of Employee by the Company or to the termination of
such employment, the prevailing party shall be entitled to the reimbursement of
its reasonable out of pocket expenses (including reasonable attorneys' fees)
incurred in connection therewith.
12. Notices. All notices, requests, demands or other communications in
-------
connection with this Agreement shall be in writing and shall be deemed to have
been duly given if delivered in person, by telegram, by telecopier to the
applicable telecopier number listed below, or by United States mail, postage
prepaid, certified or registered, with return receipt requested, or otherwise
actually delivered:
If to Employee, to him at the address listed on page 1 of this Agreement.
If to the Company, to it at:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
with a copy at the same address,
Attention: General Counsel
or such other addresses as Employee or the Company shall have designated by
written notice to the other party hereto. Any such notice, demand or other
communication shall be deemed to have been given on the date actually delivered
(or, in the case of telecopier, on the date actually sent by telecopier) or upon
the expiration of three (3) days after the date mailed, as the case may be.
13. Service as Expert Witness. Employee acknowledges that during the
-------------------------
Employment Period Employee will have access to confidential and proprietary
information concerning the Company, including, without limitation, access to
various proprietary and confidential contracts and financial data. Employee
agrees that Employee shall not at any time either during or after the term of
this Agreement serve as an "expert witness" or in any similar capacity in any
litigation or other proceeding to which the Company or any of its Affiliates or
subsidiaries is a party without the prior written consent of the Company or such
affiliate or subsidiary, as the case may be.
14. Miscellaneous.
-------------
(a) This Agreement and the exhibits hereto contain a complete
statement of all of the arrangements between the parties with respect to
Employee's employment by the Company, supersede all existing agreements between
them concerning Employee's employment and cannot be changed or terminated
orally. No provision of this Agreement shall be interpreted against any party
because that party or its legal representative drafted the provision. There are
no warranties, representations or covenants, oral or written, express or
implied, except as expressly set forth herein. Employee acknowledges that
Employee does not rely and has not relied upon any representation or statement
made by the Company or any of its representatives relating to the subject matter
of this Agreement except as set forth herein.
(b) If any provision of this Agreement or any portion thereof is
declared by any court of competent jurisdiction to be invalid, illegal or
incapable of being enforced, the remainder of such provision, and all of the
remaining provisions of this Agreement, shall continue in full force and effect
and no provision shall be deemed dependent on any other provision unless so
expressed herein.
(c) The failure of a party to insist on strict adherence to any term
of this Agreement shall not be considered a waiver of, or deprive that party of
the right thereafter to insist on strict adherence to, that term or any other
term of this Agreement.
(d) The headings in this Agreement (including the exhibits hereto)
are solely for convenience of reference and shall not affect its interpretation.
(e) The relationship between Employee and the Company is exclusively
that of employer and employee, and the Company's obligations to Employee
hereunder are exclusively contractual in nature.
(f) Employee shall, at the request of the Company, execute and
deliver to the Company all such documents as the Company may from time to time
deem necessary or desirable to evidence, protect, enforce or defend its right,
title and interest in or to any Confidential Materials, Intellectual Property or
other items described in Paragraph 6 hereof. If Employee shall fail or refuse to
execute or deliver to the Company any such document upon request, the Company
shall have, and is granted, the power and authority to execute the same in
Employee's name, as Employee's attorney-in-fact, which power is coupled with an
interest and irrevocable.
(g) The Company may assign this Agreement, Employee's services
hereunder or any of the Company's interests herein (i) to any Person which is a
party to a merger or consolidation with the Company, (ii) to any Affiliate of
the Company or (iii) to any Person acquiring substantially all of the assets of
the Company or the unit of the Company for which Employee is rendering services;
and, provided that any such assignee assumes the Company's obligations under
this Agreement, the Company shall thereupon be relieved of any and all liability
hereunder. Employee shall not have the right to assign this Agreement or to
delegate any duties imposed upon Employee under this Agreement without the
written consent of the Company, and any such purported assignment or delegation
shall be void ab initio.
-- ------
* * * * * * * * * * * * * * * * * * * * *
