EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (this "AGREEMENT") is made and entered
into as of the 1st day of January, 1997, by and between Equity Marketing,
Inc., a Delaware corporation (the "COMPANY"), and Xxxxxxx X. Xxxxxx (the
"CONSULTANT").
1. ENGAGEMENT AND DUTIES.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby agrees to engage the Consultant; provided,
however, that (i) the Company shall be under no obligation to engage the
Consultant if his employment was terminated For Cause pursuant to Section
4(c) of the Employment Agreement or due to his death pursuant to Section 4(a)
of the Employment Agreement; and (ii) in the event that the Consultant's
employment was terminated due to a physical or mental disability pursuant to
Section 4(b) of the Employment Agreement, engagement of the Consultant shall
be conditioned upon his ability to render the required services hereunder.
The Company acknowledges and agrees that the Consultant may render services
hereunder through a "loanout" company, provided, however, that such services
by the "loanout" company shall be performed by Xxxxxxx X. Xxxxxx himself and
not by an assignee.
(b) The Consultant shall be engaged to act as a financial and business
consultant to the Company and to perform such other functions as may from
time to time reasonably be requested by the Board. In the performance of his
duties, the Consultant shall comply with the policies of and be subject to
the reasonable direction of the Board.
(c) The Consultant agrees to devote such time, energy and efforts to
the business of the Company as is necessary to fulfill his obligations
hereunder and shall be available no less than twenty (20) hours per month.
Although the Consultant shall not be required to reside in Los Angeles, he
shall upon reasonable notice and subject to his reasonable availability make
himself available in Los Angeles to render services hereunder, subject to the
Company's
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agreement to pay the reasonable expenses associated with his travelling from
any location within the United States to Los Angeles.
(d) For so long as the Consultant is retained as a Consultant to or is
a director on the Board of the Company, the Consultant shall not, directly or
indirectly, as owner, partner, joint venturer, shareholder, employee, broker,
agent, principal, trustee, corporate officer, director, licensor, or in any
capacity whatsoever engage in, become financially interested in, be employed
by, render any consultation or business advice with respect to, or have any
connection with, any business principally engaged in the development, design,
manufacture, sale, marketing, utilization or exploitation of any products or
services which are designed for the same purpose as, are similar to, or are
otherwise competitive with (as of the date of termination of his employment
with the Company), current, proposed or anticipated products or services of
the Company Group, in any geographic area where, prior to or at the time of
the termination of his engagement, the business of the Company Group was
being conducted or was proposed to be conducted in any manner whatsoever;
provided, however, that the Consultant may own any securities of any
corporation which is engaged in such business in an amount not to exceed at
any one time one percent (1%) of any class of stock or securities of such
corporation. (The Consultant may, for example, render services to a major
motion picture studio, provided such services are not rendered in those
segments of the business that are competitive with the Company Group.)
Subject to the foregoing prohibition and provided such services or
investments do not violate any applicable law, regulation or order, or
interfere in any way with the faithful and diligent performance by the
Consultant of the services to the Company otherwise required or contemplated
by this Agreement or duly requested by the Board, the Company expressly
acknowledges that the Consultant may:
(i) make and manage personal and business investments and provide
services in connection with the same on the Consultant's own behalf or on
behalf of any entity owned or controlled by the Consultant without consulting
the Board or render any direct third-
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party services or secure any part-time employment or full-time third-party
employment that is not competitive with the Company's business as described
in Section 1(d);
(ii) serve in any capacity with any civic, educational, charitable
or trade organization without the prior approval of the Board; and
(iii) serve as a member of the board of directors of other
noncompetitive companies or businesses without the approval of the Board.
(e) If the Consultant develops, obtains or comes into possession of any
commercial ideas, properties or projects ("Concepts") that are similar to or
competitive with the products or services of the Company (e.g., a screenplay
with merchandising potential shall not be considered "similar" or
"competitive"), the Consultant agrees to grant such ideas, properties and
projects to the Company for no consideration whatsoever. With respect to any
Concepts that are not similar to or competitive with those of the Company,
the Consultant shall give the Company a reasonably appropriate "first look"
and opportunity to purchase or otherwise exploit such ideas, properties and
projects.
2. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
"BOARD" shall mean the Board of Directors of the Company, not including
the Consultant.
"COMPANY GROUP" shall mean the Company and each Person with respect to
which the Company directly or indirectly has Control.
"CONSULTING PERIOD" shall mean that period of time following the
Employment Term (as defined in the Employment Agreement) (and any renewals
thereof) during which the Company agrees to retain the Consultant and
continuing for a period of three (3) years, subject to earlier termination as
provided herein.
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of any of the outstanding voting securities of such Person, or (ii)
the power, directly or indirectly, by
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proxy, voting trust or otherwise, to elect any of the outstanding directors,
trustees or other managing persons of such Person.
"EMPLOYMENT AGREEMENT" shall mean the concurrently executed Employment
Agreement between Xxxxxxx X. Xxxxxx and the Company.
"FOR CAUSE" shall mean, in the context of a basis for termination of the
Consultant's engagement by the Company, that:
(a) The Consultant materially breaches any obligation, duty or
agreement under this Agreement, which breach is not cured or corrected within
15 days of written notice thereof from the Company (except for breaches of
Sections 1(d), 10 or 11 of this Agreement, which cannot be cured and for
which the Consultant shall have no opportunity to cure;
(b) The Consultant is grossly negligent in the course of providing
services to the Company or commits any act of personal dishonesty, fraud or
breach of fiduciary duty or trust against the Company;
(c) The Consultant is convicted of, or pleads guilty or nolo contendere
with respect to, theft, fraud or felony under federal or applicable state
law; or
(d) The Consultant commits any act or acts of personal conduct that,
following due investigation and determination by the Board of probable cause,
gives rise to a likelihood of liability under federal or applicable state law
for discrimination or sexual or other forms of harassment or other similar
liabilities with respect to subordinate employees.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other
entity.
3. COMPENSATION.
(a) As compensation for his services hereunder, the Company shall pay
the Consultant for each year of the Consulting Period, a consulting fee equal
to two-thirds (2/3) of the annual Base Salary (as defined in the Employment
Agreement) that was payable to the Executive immediately prior to the
employment termination date (the "Consulting Fee"), such
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amount to be payable in equal monthly or more frequent installments in
accordance with the general practice of the Company for salaried senior
executives.
(b) During the term of this Agreement, the Company shall provide the
Executive with an automobile allowance in an amount equal to the amount that
was payable to the Executive under the Employment Agreement immediately prior
to the employment termination date.
4. OTHER BENEFITS.
(a) In addition to the compensation and benefits provided for in
Section 3 hereof, the Consultant shall also be entitled to participate in any
group health and/or receive medical benefits comparable to the benefits
received by the Executive under the Employment Agreement immediately prior to
the employment termination date or as such benefit plans may be modified by
the Company. If for some reason the Consultant is not eligible to
participate in the Company's group health plan, the Company shall pay the
COBRA premiums associated with the Consultant's obtaining comparable medical
benefits.
(b) The Company shall pay the Consultant such amounts on an after-tax
basis as are required for the Consultant (i) to maintain and pay all premiums
(up to a maximum of $8,823 per year) on the term life insurance that Xxxxxxx
X. Xxxxxx had during the Employment Term, and (ii) to maintain and pay all
premiums (up to a maximum of $6,500 per year) for disability insurance
coverage on behalf of the Consultant during the Consulting Period (if
available using the Company's best efforts) that is reasonably comparable to
the coverage Xxxxxxx X. Xxxxxx had during the Employment Term (i.e., 2/3 of
the then-current base compensation).
5. ELECTION TO DIRECTORSHIP.
(a) From the date of commencement of this Agreement until the
Termination Date, in connection with each annual meeting of shareholders of
the Company at which the term of office of the Consultant as director will
expire, the Board of Directors of the Company will include the Consultant as
one of the nominees of the Board of the Directors. The "TERMINATION DATE"
shall mean the date on which the Consultant's engagement as consultant
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is terminated pursuant to Section 8(a) (death of the Consultant), 8(b)
(disability of the Consultant) or 8(c) (termination For Cause) of this
Agreement; PROVIDED, HOWEVER that if the Consultant's engagement as
consultant is terminated for any other reason, the "TERMINATION DATE" shall
mean the date on which one of the following events or circumstances first
occurs: (i) the date on which the Consultant no longer owns of record 5% or
more of the outstanding Common Stock of the Company; (ii) the date the
Consultant violates Section 1(d) of this Agreement; (iii) the date the
Consultant resigns as a director of the Company; (iv) the date the Consultant
is removed by the shareholders of the Company as a director "for cause"; (v)
the date the Consultant is convicted of or pleads guilty or nolo contendere
with respect to theft, fraud or felony under applicable federal or state law;
(vi) the date the Board of Directors reasonably determines that the
Consultant could be removed as director by the shareholders "for cause" under
applicable law; and (vii) if in any calendar year the Consultant does not
attend at least 75% of the regular Board of Directors meetings, other than as
a result of temporary disability; In addition, the obligation of the Board of
Directors to include the Consultant as a nominee of the Board of Directors
shall be suspended during the time there is pending litigation between the
Consultant and the Company or any subsidiary of the Company.
6. REIMBURSEMENT OF EXPENSES.
(a) The Consultant shall be entitled to reimbursement as approved by
the Company for all reasonable travel and out-of-pocket expenses paid or
incurred in the performance of his duties hereunder; the Company shall pay
for the same class of travel for the Consultant as that provided to the
Company's then-current chief executive officer. All eligible expenses shall
be reimbursed upon submission of written statements and bills in accordance
with the then regular procedures of the Company.
7. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE CONSULTANT.
The Consultant represents and warrants to the Company that the
Consultant is not under and will not enter into any contractual or other
restriction or obligation that is inconsistent with the execution of this
Agreement, the performance of his duties hereunder or the rights of the
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Company hereunder. The Consultant represents, warrants and covenants to the
Company that he will use his best efforts in performing his duties hereunder.
8. TERMINATION OF ENGAGEMENT.
The Consultant's engagement pursuant to this Agreement shall terminate
on the earliest to occur of the following:
(a) upon the death of the Consultant;
(b) upon delivery to the Consultant of written notice of termination by
the Company if the Consultant shall suffer a physical or mental disability
which renders the Consultant unable to perform his duties and obligations
under this Agreement for at least 120 days, whether or not consecutive, in
any 12-month period;
(c) upon delivery to the Consultant of written notice of termination by
the Company For Cause; or
(d) upon delivery to the Consultant of written notice of termination by
the Company Other Than For Cause.
9. SEVERANCE COMPENSATION.
(a) If the Consultant's engagement is terminated pursuant to Section
8(a) (death) or Section 8(b) (disability), the Company shall pay to the
Consultant or his estate his full Consulting Fee through the end of the month
of the Consultant's death or disability, and the Consultant or his estate
shall be entitled to a prorated share of any other compensation or benefits
as provided under Sections 3 or 4 hereof for the calendar year during which
his death or disability occurred. Notwithstanding the foregoing, if (i) the
Consultant's engagement is terminated due to a disability; (ii) the
Consultant is a named beneficiary on a disability policy paid for by the
Company; and (iii) the Consultant is denied all or some disability benefits
under such a disability policy, then the Company shall pay the Consultant
such gross amounts as are equivalent to the disability benefits that were
denied the Consultant. Provided, however, that in no event shall the Company
be required to pay the Consultant more than the annual
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Consulting Fee that he would have earned under this Agreement during any
particular year. Such amounts shall be paid through the end of the
Consulting Period at the same time and in the same manner as if the
Consultant's engagement had not terminated. Any disability benefits that the
Consultant does receive shall be offset against any amounts paid to the
Consultant pursuant to this Section. The Consultant agrees to cooperate
fully with the Company and the disability insurance carrier with respect to
any claim for disability benefits.
(b) If the Consultant's engagement is terminated pursuant to Section
8(c) (by the Company For Cause), the Consultant's compensation and all
benefits set forth in Section 8 of this Agreement shall cease as of the date
of termination. In the event of termination of the Consultant's engagement
pursuant to Section 8(c) (by the Company For Cause), and subject to
applicable law and regulations, the Company shall be entitled to offset
against any payments due the Consultant the loss and damage, if any, which
shall have been suffered by the Company as a result of the acts or omissions
of the Consultant giving rise to termination under Section 8(c). The
foregoing shall not be construed to limit any cause of action, claim or other
rights which the Company may have against the Consultant in connection with
such acts or omissions.
(c) If the Consultant's engagement is terminated pursuant to Section
8(d) (by the Company Other Than For Cause) prior to the end of the Consulting
Period, the Consultant shall be: (A) entitled to continue to receive
compensation and benefits in accordance with Sections 3(a), 3(b) and 4 of
this Agreement through the end of the Consulting Period, payable at the same
time and in the same manner as if the Consultant's engagement had not
terminated. The Consultant shall have no duty to seek other employment or
another engagement, and if the Consultant does so, any income therefrom shall
not be credited against amounts due hereunder.
(d) If the Consultant terminates his engagement in breach of this
Agreement prior to the end of the Consulting Period, the Consultant shall as
of the date of termination cease to be entitled to any compensation
hereunder. In addition, the Company shall be entitled to seek any
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other available remedies pursuant to this Agreement or otherwise for such
breach, and to offset against any amounts due the Consultant any damages
suffered as a result of such breach.
(e) The Consultant acknowledges that the Company has the right to
terminate the Consultant's engagement Other Than For Cause and that such
termination shall not be a breach of this Agreement or any other express or
implied agreement between the Company and the Consultant. Accordingly, in
the event of such termination, the Consultant shall be entitled only to the
compensation and benefits specifically provided for in this Agreement in the
event of such termination, and shall not have any other rights to any
compensation or damages from the Company for breach of contract.
(f) The Consultant acknowledges that in the event of termination of his
engagement for any reason, he shall not be entitled to any severance or other
compensation from the Company except as specifically provided in this Section
9. Without limitation on the generality of the foregoing, this Section
supersedes any plan or policy of the Company which provides for severance to
its officers or employees, and the Consultant shall not be entitled to any
benefits under any such plan or policy.
10. COVENANT NOT TO SOLICIT.
(a) During the Consulting Period and through the first anniversary of
the end of the Consulting Period, the Consultant will not directly or
indirectly, either alone or by action in concert with others: (i) induce any
employee of any member of the Company Group to engage in any activity in
which the Consultant is prohibited from engaging by Section 1(d) of this
Agreement or to terminate his or her engagement with any member of the
Company Group; or (ii) employ or offer employment or induce any Person to
employ or offer employment to anyone who is or was within the 12 months prior
to the date of the proscribed action employed by any member of the Company
Group; or (iii) induce or attempt to induce any customer, supplier, licensee
or other business relationship of any member of the Company Group to
discontinue or reduce its business with any member of the Company Group, or
in any way interfere with the relationship between any such customer,
supplier, licensee or business
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relationship and any member of the Company Group; or (iv) solicit or accept
any business that is competitive with that of the Company Group from any of
the customers with which the Company did business during the Consultant's
engagement or employment with the Company. The Company's current chief
executive officer shall have the authority to waive the provisions of Section
10(a)(ii) insofar as it relates to the personal assistant who was assigned to
the Consultant.
(b) The Consultant acknowledges that the Company Group conducts
business on a world-wide basis, that its sales and marketing prospects are
for continued expansion into world markets and that, therefore, the
territorial and time limitations set forth in Section 1(d) and in this
Section 10 are reasonable and properly required for the adequate protection
of the business of the Company Group. In the event any such territorial or
time limitation is deemed to be unreasonable by a court of competent
jurisdiction, the Consultant agrees to the reduction of the territorial or
time limitation to the area or period which such court deems reasonable.
(c) If any portion of the restrictions set forth in Section 1(d) or in
this Section 10 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely affected.
(d) The existence of any claim or cause of action by the Consultant
against the Company shall not constitute a defense to the enforcement by the
Company of the restrictive covenants set forth in Section 1(d) or in this
Section 10, but such claim or cause of action shall be litigated separately.
11. CONFIDENTIALITY.
The Consultant will not at any time (whether during or after the
Consulting Period) disclose or use for his own benefit or purposes or the
benefit or purposes of any other person, any trade secrets, information,
data, or other confidential information relating to customers, development
programs, costs, marketing, trading, investment, sales activities, promotion,
credit and financial data, financial methods, plans, or the business and
affairs of the Company
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Group generally. The Consultant agrees that upon termination of his
engagement with the Company for any reason, he will return to the Company all
memoranda, books, papers, plans, information, letters and other data, and all
copies thereof or therefrom, in any way relating to the business of the
Company, unless, in the reasonable discretion of the Board, any such
materials are needed or appropriate to be retained by the Consultant as a
director of the Company, if applicable. The Consultant further agrees that
he will not retain or use at any time any trade name, trademark or other
proprietary business designation used or owned in connection with the
business of the Company.
12. COPYRIGHT AND TRADEMARKS.
(a) As to all concepts that are similar to or competitive with the
products or services of the Company as referenced in Section 1(e) of this
Agreement, all right, title and interest, of every kind whatsoever, in the
United States and throughout the world, in (i) any work, including the
copyright thereof (for the full terms and extensions thereof in every
jurisdiction), created by the Consultant at any time during the term of this
Agreement and all material embodiments of the work subject to such rights;
and (ii) all inventions, ideas, discoveries, design and improvements,
patentable or not, made or conceived by the Consultant at any time during the
term of this Agreement, shall be and remain the sole property of the Company
without payment of any further consideration to the Consultant or any other
person, and each such work shall, for purposes of United States copyright
law, be deemed created by the Consultant pursuant to his duties under this
Agreement and within the scope of his engagement and shall be deemed a work
made for hire; and the Consultant agrees to assign, at the Company's expense,
and the Consultant does hereby assign, all of his right, title and interest
in and to all such works, copyrights, materials, inventions, ideas,
discoveries, designs and improvements, patentable or not, and any copyrights,
letters patent, trademarks, trade secrets, and similar rights, and the
applications therefor, which may exist or be issued with respect thereto.
For the purposes of this Section 12, such "WORKS" shall include all such
materials created during the term of this Agreement, whether or not ever used
by or submitted to the
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Company, including, without limitation, any work which may be the subject
matter of a copyright under United States copyright law. In addition to its
other rights, the Company may copyright any such work in its name in the
United States in accordance with the requirements of the United States
copyright law and the Universal Copyright Convention and any other convention
or treaty to which the United States is or may become a party.
(b) Whenever the Company shall so request, whether during or after the
term of this Agreement, the Consultant shall execute, acknowledge and deliver
all applications, assignments or other instrument; make or cause to be made
all rightful oaths; testify in all legal proceedings; communicate all known
facts which relate to such works, copyright, inventions, ideas, discoveries,
designs and improvements; perform all lawful acts and otherwise render all
such assistance as the Company may deem necessary to apply for, obtain,
register, enforce and maintain any copyrights, letters patent and trademark
registrations of the United States or any foreign jurisdiction or under the
Universal Copyright Convention (or any other convention or treaty to which
the United States is or may become a party), or otherwise to protect the
company's interests therein, including any which the Company shall deem
necessary in connection with any proceeding or litigation involving the same.
The Company shall reimburse the Consultant for all reasonable out-of-pocket
costs incurred by the Consultant in testifying at the Company's request or in
rendering any other assistance requested by the Company pursuant to this
Section 12. All registration and filing fees and similar expenses shall be
paid by the Company.
13. SPECIFIC PERFORMANCE.
The Consultant acknowledges and agrees that the Company's remedies at
law for a breach or threatened breach of any of the provisions of Sections
1(d), 10 and 11 would be inadequate and, in recognition of this fact, the
Consultant agrees that, in the event of such a breach or threatened breach,
in addition to any remedies at law, the Company shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, preliminary or permanent injunction or any other equitable remedy
which may then be
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available. In addition, the Consultant recognizes that the services to be
rendered by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character involving skill of the highest order
and giving them peculiar value, the loss of which cannot be adequately
compensated in damages. Consequently, in the event of a breach of this
Agreement by the Consultant, the Company shall be entitled to injunctive
relief or any other legal or equitable remedies. The Consultant agrees that
the Company also may recover by appropriate action the amount of the actual
damage caused the Company by any failure, refusal or neglect of the
Consultant to perform his agreements, representations and warranties
contained in this Agreement. The remedies provided in this Agreement shall
be deemed cumulative and the exercise of one shall not preclude the exercise
of any other remedy at law or in equity for the same event or any other event.
14. RESOLUTION OF DISPUTES.
(a) Except as provided in subsection (c) below, any controversy or
claim between or among the parties, relating to the Consultant's engagement
by the Company, including but not limited to those arising out of or relating
to this Agreement or any agreements or instruments relating hereto or
delivered in connection herewith and any claim based on or arising from an
alleged tort, shall at the request of any party be determined by arbitration.
The arbitration shall be conducted in Los Angeles, California, in accordance
with the United States Arbitration Act (Title 9 of the United States Code),
notwithstanding any choice of law provision in this Agreement, and under the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA"). The parties shall have the right to review
and approve a panel of prospective arbitrators supplied by AAA, but the
arbitration shall be conducted by a single arbitrator selected from the
approved panel by AAA or by stipulation of the parties. The arbitrator shall
give effect to statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be determined by
the arbitrator. The arbitrator shall be entitled to order specific
performance of
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the obligations imposed by this Agreement. Judgment upon the arbitration
award may be entered in any court having jurisdiction.
(b) All decisions of the arbitrator shall be final, conclusive and
binding on all parties and shall not be subject to judicial review. All
costs of the arbitration shall be borne by the party which is not the
Prevailing Party (as defined in Section 15(h) of this Agreement). If
required, each party shall advance 50% of any costs of the arbitration
required to be advanced, subject to the right of the non-Prevailing Party to
reimbursement.
(c) Subsection (a) above does not prohibit a party from seeking and
obtaining injunctive relief from a court of competent jurisdiction pending
the outcome of arbitration. A party bringing an action for injunctive relief
shall not be deemed to have waived its right to demand arbitration of all
disputes. 15. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in
writing, and shall be delivered by personal service, courier, facsimile
transmission or by United States first class, registered or certified mail,
addressed to the following addresses:
(i) If to the Company, to:
Equity Marketing, Inc.
000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Senior Vice President, Business Affairs
(ii) If to the Consultant, to:
Xxxxxxx X. Xxxxxx
00000 Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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With a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx & Xxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxxx or Xxxxxxxx Xxxxxxx
Any Notice, other than a Notice sent by registered or certified mail, shall
be effective when received; a Notice sent by registered or certified mail,
postage prepaid return receipt requested, shall be effective on the earlier
of when received or the third day following deposit in the United States
mails (or on the seventh day if sent to or from an address outside the United
States). Any party may from time to time change its address for further
Notices hereunder by giving notice to the other party in the manner
prescribed in this Section.
(b) ENTIRE AGREEMENT. This Agreement and the concurrently executed
Employment Agreement (collectively, the "Agreements") contain the sole and
entire agreement and understanding of the parties with respect to the entire
subject matter of the Agreements, and any and all prior discussions,
negotiations, commitments and understandings, whether oral, written or
implied, related to the subject matter of the Agreements, including but not
limited to that certain Employment Agreement and that certain Consulting
Agreement dated as of October 1, 1993, are hereby extinguished and
superseded. No representations, oral or otherwise, express or implied, other
than those contained in this Agreement have been relied upon by any party to
this Agreement.
(c) SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason,
in whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
(d) GOVERNING LAW. This Agreement has been made and entered into in the
State of California and shall be construed in accordance with the laws of the
State of California.
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(e) CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(g) BUSINESS DAY. If the last day permissible for delivery of any
notice under any provision of this Agreement, or for the performance of any
obligation under this Agreement, shall be other than a business day, such
last day for such notice or performance shall be extended to the next
following business day (provided, however, under no circumstances shall this
provision be construed to extend the date of termination of this Agreement).
(h) ATTORNEYS' FEES. If any action, proceeding or arbitration is
brought to enforce or interpret any provision of this Agreement, the
Prevailing Party shall be entitled to recover as an element of its costs, and
not its damages, its attorneys' fees, costs and expenses. The "PREVAILING
PARTY" is the party who would have been entitled to recover its costs under
the California Code of Civil Procedure had the action been maintained in the
Superior Court of California regardless of whether there is final judgment.
A party not entitled to recover its costs may not recover attorneys' fees.
No sum for attorneys' fees shall be counted in calculating the amount of a
judgment for purposes of determining whether a party is entitled to recover
its costs or attorneys' fees.
(i) ADVICE FROM INDEPENDENT COUNSEL. The parties hereto understand
that this Agreement is legally binding and may affect such party's rights.
Each party represents to the other that it has received legal advice from
counsel of its choice regarding the meaning and legal significance of this
Agreement.
(j) INTERPRETATION. Should any provision of this Agreement require
interpretation, it is agreed that any court or arbitrator interpreting or
construing the same shall not apply a presumption that the terms hereof shall
be more strictly construed against any party by reason
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of the rule of construction that a document is to be construed more strictly
against the party who itself or through its agent prepared the same, it being
agreed that all parties have participated in the preparation of this
Agreement.
(k) SURVIVAL. The termination of the Consultant's engagement hereunder
shall not affect the enforceability of Sections 1(d), 10, 11 and 12.
(l) WAIVER OF JURY TRIAL. IF NOTWITHSTANDING THE AGREEMENT THAT ALL
DISPUTES BE SUBMITTED TO BINDING ARBITRATION, A DISPUTE IS SUBMITTED TO A
COURT, EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE
IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR
ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE
ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A
TRIAL BY THE COURT.
Company:
EQUITY MARKETING, INC.
/s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
Senior Vice President, General Counsel
and Secretary
Consultant:
/s/ XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
17
