EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made effective as of this
30th day of November, 1999 by and between TALENT, ENTERTAINMENT AND MEDIA
SERVICES, INC., a Delaware corporation (the "Company"), and XXXXXXX X. XXXXX
("Employee").
RECITALS
A. The Company wishes to employ Employee, and Employee wishes to be employed
by the Company.
B. The parties wish to set forth in this Agreement the terms and conditions of
such employment.
AGREEMENTS
In consideration of the mutual promises and covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Employment. Subject to the terms and conditions of this Agreement, the
Company employs Employee to serve in an executive capacity and Employee accepts
such employment and agrees to dedicate all of his business time and effort to
Company business and perform such reasonable responsibilities and duties as may
be assigned to him from time to time by the Company's Board of Directors (the
"Board") or the Chairman or other designee of the Board. Employee's title shall
be President, with responsibility for the overall operations of the Company and
such other specific executive responsibilities as may be assigned from time to
time by, and subject to the direction of, the Board or its Chairman or other
designee. Employee's title may be changed by the Company, from time to time, in
the Company's sole discretion, so long as such title realistically reflects
Employee's responsibilities and Employee is maintained in an executive capacity.
Employee shall have all power and authority of a corporate officer as provided
by the Company's bylaws.
2. Term. The employment of Employee by the Company pursuant to this
Agreement shall commence on the date hereof and continue for a term of three
years or until terminated as provided elsewhere herein.
3. Compensation.
a) Salary. The initial monthly base salary payable to Employee shall
be $17,500, which base salary shall be paid according to the Company's
normal payroll practices and shall be reviewed from time to time on the
same schedule as applicable to Senior Vice Presidents of the Company's
parent corporation and in accordance with the Company's policies and
practices regarding periodic review and adjustment of executive
compensation. Employee's base salary shall not be reduced during the term
hereof without Employee's written consent.
b) Incentive Plan. Employee will have the opportunity to earn
incentive compensation pursuant to an incentive compensation plan based
upon Employer's performance. The parties shall endeavor in good faith to
agree upon an incentive compensation plan within 30 days after the date of
this Agreement. This incentive plan may be modified by the Company in its
discretion after January 1, 2001, provided that the Company shall consult
with Employee in developing any such modification.
4. Fringe Benefits. In addition to the options for shares of the Company's
Common Stock available to Employee under the same terms as those available to
Company employees, and any other employee benefit plans generally available to
Company employees, the Company shall include Employee (and Employee's
dependents) in any group medical insurance plan maintained for the employees of
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the Company at the Company's expense. The manner of implementation of such
benefits with respect to such items as procedures and amounts is discretionary
with the Company but shall be equivalent to benefits provided generally to
Senior Vice Presidents of the Company's parent corporation and shall include
medical, dental and hospital coverage for Employee and Employee's dependents who
are eligible under the applicable plans.
5. Vacation. Employee shall be entitled to vacation with pay in keeping
with Employee's established vacation practices, but in no event less than four
weeks per service anniversary year. In addition, Employee shall be entitled to
such holidays as the Company may approve for its executive personnel.
6. Expense Reimbursement. In addition to the compensation and benefits
provided above, the Company shall pay a $500 per month automobile allowance and
all other, non-automobile related, reasonable expenses of Employee incurred in
connection with the performance of Employee's duties and responsibilities to the
Company pursuant to this Agreement, upon submission of appropriate vouchers and
supporting documentation in accordance with the Company's usual and ordinary
practices, provided that such expenses are reasonable and necessary business
expenses of the Company. The Company shall pay Employee's reasonable cellular
telephone expenses that are related to Company. The Company shall also pay
Employee $5,000 per year for individual purchase by Employee of supplemental
insurance products or for use in such other manner as Employee sees fit.
7. Termination. This Agreement may be terminated in the manner provided
below:
a) For Cause. The Company may terminate Employee's employment by the
Company, for cause, upon written notice to the Employee stating the facts
constituting such cause, provided that Employee shall have 20 days
following such notice to cure any conduct or act, if curable, alleged to
provide grounds for termination for cause hereunder and agrees to
diligently pursue completion of such cure as quickly as possible. In the
event of termination for cause, the Company shall be obligated to pay the
Employee only the base salary due him through the date of termination.
Cause shall include willful and persistent failure to abide by instructions
or policies from or set by the Board of Directors; willful and persistent
failure to attend to material duties or obligations imposed under this
Agreement; commission of a felony, a misdemeanor involving moral turpitude
or any other serious misdemeanor offense or pleading guilty or nolo
contendere to same; an act of fraud, dishonesty or theft on the part of
Employee; or any act or failure to act on the part of Employee, which
materially xxxxx or injures or may materially harm or injure the
reputation, good name or interests of Company (which shall include, to the
extent allowed by applicable law, but not be limited to, any drug, alcohol
and/or any other substance abuse which materially impairs the ability of
Employee to perform his duties and services hereunder).
b) Disability. If Employee experiences a permanent disability (as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended), the Company shall have the right to terminate this Agreement
without further obligation hereunder except for any amounts payable
pursuant to disability plans generally applicable to executive employees.
c) Death. If Employee dies, this Agreement shall terminate
immediately, and Employee's legal representative shall be entitled to
receive the base salary due to Employee through the 60th day from the date
on which his death shall have occurred and any other death benefits
generally applicable to executive employees.
d) Termination without cause. The Company may terminate Employee's
employment by the Company at any time immediately, without cause, by giving
written notice to the Employee. If the Company terminates under this
section 7.d., it shall: (1) continue coverage of Employee and Employee's
dependents under its medical plans at the Company's expense for the lesser
of 12 months or until Employee secures other employment (unless
continuation of coverage under such plans is unfeasible, in which event the
Company will provide substantially similar benefits); and (2) pay to
Employee 12 months of Employee's then-current base salary; provided,
however, that such salary shall be paid under the normal payment schedule
as if Employee were still employed by Company and shall be reduced by
applicable withholdings.
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e) Termination by Employee for Good Reason. Employee may terminate his
employment at any time for Good Reason (as defined below in this
subsection), in which event Employee shall be entitled to payments and
benefits to the same extent and payable in the same manner as if Employee
was terminated without cause as described in Section 7(d). "Good Reason"
shall mean (x) without Employee's express written consent, a reduction of
Employee's base compensation or the assignment to Employee of duties
materially inconsistent with Employee's position, duties, responsibilities
and status, or a demotion or change in titles (except in connection with
termination of Employee's employment in compliance with this Section 7);
(y) a material breach by the Company of its obligations hereunder which (if
curable) is not cured by the Company within 20 days after its receipt of
written notice stating the facts constituting such material breach; or (z)
without Employee's express written consent, relocation of the site of
Employee's duties to a location outside the Los Angeles, California
metropolitan area.
f) Change in Control. If this Agreement is terminated under Section
7(d) or 7(e) within 12 months following the effective date of a Change in
Control (as defined in this Section 7(f)), the amount owed by the Company
as severance shall equal Employee's total cash compensation during the 12
months preceding such termination, payable in the manner described in
Section 7(d). "Change in Control" shall be deemed to have occurred if (i) a
"person" (as such term is used in Paragraphs 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended [the "Exchange Act"]) becomes
the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of the Company representing more than 50% of
the total voting power represented by the Company's then outstanding Voting
Securities; (ii) the stockholders of the Company approve a merger or
consolidation of the Company (other than a merger or consolidation which
would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) 50% or more of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation); or (iii) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one transaction
or a series of transactions) all or substantially all the Company's assets.
8. Return of the Company's Materials. Upon the termination of this
Agreement, Employee shall promptly return to the Company all files, credit
cards, keys, instruments, equipment, and other materials owned or provided by
the Company.
9. Insurance. The Company shall use commercially reasonable efforts to
carry director's and officer's professional liability insurance coverage for
Employee while in the performance of Employee's duties hereunder in an amount of
at least $10,000,000.
10. Non-delegability of Employee's Rights and Company Assignment Rights.
The obligations, rights and benefits of Employee hereunder are personal and may
not be delegated, assigned, or transferred in any manner whatsoever, nor are
such obligations, rights or benefits subject to involuntary alienation,
assignment or transfer. The Company may transfer its obligations hereunder to a
subsidiary, affiliate or successor.
11. Notices. All notices, demands and communications required by this
Agreement shall be in writing and shall be deemed to have been given for all
purposes when sent to the respective addresses set forth below, (i) upon
personal delivery, (ii) one day after being sent, when sent by overnight courier
service to and from locations within the continental United States, (iii) three
days after posting when sent by registered, certified, or regular United States
mail, with postage prepaid and return receipt requested, or (iv) on the date of
transmission when sent by confirmed facsimile.
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If to the Company: Talent, Entertainment and Media Services, Inc.
c/o Employee Solutions, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
If to Employee: Xxxxxxx X. Xxxxx
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(Or when sent to such other address as any party shall specify by written notice
so given.)
12. Entire Agreement. This Agreement, together with the confidentiality and
non-solicit agreement dated as of the same date as this Agreement (the "Other
Agreements") constitutes the final written expression of all of the agreements
between the parties, and is a complete and exclusive statement of those terms.
It supersedes all understandings and negotiations concerning the matters
specified herein (including all prior written employment agreements and
arrangements, if any), except as provided in the Other Agreements. Any
representations, promises, warranties or statements made by either party that
differ in any way from the terms of this written Agreement or the Other
Agreements shall be given no force or effect. Except as provided in the Other
Agreements, the parties specifically represent, each to the other, that there
are no additional or supplemental agreements between them related in any way to
the matters herein contained unless specifically included or referred to herein.
No addition to or modification of any provision of this Agreement shall be
binding upon any party unless made in writing and signed by all parties.
Notwithstanding anything herein or in the Other Agreements to the contrary, the
parties acknowledge and agree that the confidentiality and non-compete
provisions of Employee's prior employment agreement with Employee Solutions,
Inc., an Arizona corporation, shall continue in full force and effect according
to their terms, except that such non-compete shall expire on the expiration date
determined pursuant to the prior employment agreement or one year after the
effective date of a termination of this Agreement under Section 7(d) or 7(e),
whichever is earlier.
13. Waiver. The waiver by either party of the breach of any covenant or
provision in this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
14. Invalidity of Any Provision. The provision of this Agreement are
severable, it being the intention of the parties hereto that should any
provisions hereof be invalid or unenforceable, such invalidity or
unenforceability of any provision shall not affect the remaining provisions
hereof, but the same shall remain in full force and effect as if such invalid or
unenforceable provisions were omitted.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Arizona exclusive of the
conflict of law provisions thereof. The parties agree that in the event of
litigation, venue shall lie exclusively in Maricopa County, Arizona.
16. Headings; Construction. Headings in this Agreement are for
informational purposes only and shall not be used to construe the intent of this
Agreement. The language in all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for nor
against any party.
17. Counterparts; Facsimile Signatures. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same agreement.
Delivery by any party of a facsimile signature to the other parties to this
Agreement shall constitute effective delivery by said party of an original
counterpart signature to this Agreement.
18. Binding Effect; Benefits. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors, executors, administrators and assigns. This Agreement may be
assigned by the Company in its sole discretion, provided that the Company shall
assign this Agreement to any person to which the Company sells all or
substantially all of its assets. Notwithstanding anything contained in this
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Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
19. Binding Effect on Marital Community. Employee represents and warrants
to the Company that he has the power to bind his marital community (if any) to
all terms and provisions of this agreement by his execution hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed this Employment
Agreement and caused the same to be duly delivered on its behalf as of the date
first above written.
"COMPANY" "EMPLOYEE"
TALENT, ENTERTAINMENT AND MEDIA SERVICES, INC.,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Its: Chief Executive Officer
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