Exhibit 10.7
XXXXXX'X ENTERTAINMENT, INC
April 23, 2001
Xx. Xxxxxxx X. Xxxxxx
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, XX 00000
Re: SEVERANCE AGREEMENT
Dear Xxxxx:
Xxxxxx'x Entertainment, Inc. (the "Company") considers it essential to the
best interest of its stockholders to xxxxxx the continuous employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may exist and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a change in control of the Company, although no such change is
now contemplated.
In order to induce you to remain in the employ of the Company or its
subsidiaries and in consideration of your agreements set forth in Subsection
2(b) hereof, the Company agrees that you shall receive the severance benefits
set forth in this letter agreement ("this Agreement") in the event your
employment with the Company or its subsidiaries terminates subsequent to a
"Change in Control of the Company" (as defined in Section 2 hereof) under the
circumstances described below.
1. TERM OF AGREEMENT. This Agreement shall commence on April 23, 2001, and
shall continue in effect through December 31, 2001; PROVIDED, HOWEVER, that
commencing on January 1, 2002 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than
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April 23, 2001
Page 2
December 31 of the preceding year, the Company shall have given you written
notice that it does not wish to extend this Agreement; PROVIDED, FURTHER, if a
Change in Control of the Company shall have occurred during the original or
extended term of this Agreement, this Agreement shall automatically continue in
effect for a period of twenty-four months beyond the month in which such Change
in Control occurred.
2. CHANGE IN CONTROL.
(a) No benefit shall be payable to you hereunder unless there shall have
been a Change in Control of the Company, as set forth below. For purposes of
this Agreement, a "Change in Control of the Company" shall be deemed to have
occurred, subject to subparagraph (iv) hereof, if any of the events in
subparagraphs (i), (ii) or (iii) occur:
(i) Any "person" (as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than an employee benefit plan of the Company, or a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 25% or more of the
Company's then outstanding voting securities carrying the right to vote in
elections of persons to the Board, regardless of comparative voting power
of such voting securities, and regardless of whether or not the Board
shall have approved the acquisition of such securities by the acquiring
person; or
(ii) During any period of two consecutive years, individuals who, at
the beginning of such period, constitute the Board together with any new
director(s) (other than a director designated by a person who shall have
entered into an agreement with the Company to effect a transaction
described in clauses (i) or (iii) of this Subsection) whose election by
the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the two year period
or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(iii) The holders of securities of the Company entitled to vote
thereon approve the following:
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Page 3
(A) A merger or consolidation of the Company with any other
corporation regardless of which entity is the surviving company,
other than a merger or consolidation which would result in the
voting securities of the Company carrying the right to vote in
elections of persons to the Board outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
at least 80% of (a) the Company's then outstanding voting securities
carrying the right to vote in elections of persons to the Board, or
(b) the voting securities of such surviving entity outstanding
immediately after such merger or consolidation, or
(B) A plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.
(iv) Notwithstanding the definition of a "Change in Control" of the
Company as set forth in this Section 2(a), the Human Resources Committee
of the Board (the "Committee") shall have full and final authority, which
shall be exercised in its discretion, to determine conclusively whether a
Change in Control of the Company has occurred, and the date of the
occurrence of such Change in Control and any incidental matters relating
thereto, with respect to a transaction or series of transactions which
have resulted or will result in a substantial portion of the assets or
business of the Company (as determined, prior to the transaction or series
of transactions, by the Committee in its sole discretion which
determination as to whether a substantial portion is involved shall be
final and conclusive) being held by a corporation at least 80% of whose
voting securities are held, immediately following such transaction or
series of transactions, by holders of the voting securities of the Company
(as determined by the Committee in its sole discretion prior to such
transaction or series of transactions which determination as to whether
the 80% amount will be satisfied shall be final and conclusive). The
Committee may exercise any such discretionary authority without regard to
whether one or more of the transactions in such series of transactions
would otherwise constitute a Change in Control of the Company under the
definition set forth in this Section 2(a).
(b) For purposes of this Agreement, a "Potential Change in Control of the
Company" shall be deemed to have occurred if the following occur:
(i) The Company enters into a written agreement or letter of intent,
the consummation of which would result in the occurrence of a Change in
Control of the Company;
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April 23, 2001
Page 4
(ii) Any person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control of the Company;
(iii) Any person (other than an employee benefit plan of the
Company, or a trustee or other fiduciary holding securities under an
employee benefit plan of the Company) who is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing
9.5% or more of the Company's then outstanding voting securities carrying
the right to vote in elections of persons to the Board increases such
beneficial ownership of such securities by an additional five percentage
points or more thereby beneficially owning 14.5% or more of such
securities; or
(iv) The Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control of the Company has
occurred.
You agree that, subject to the terms and conditions of this Agreement, in
the event of a Potential Change in Control of the Company, you will remain in
the employ of the Company (or the subsidiary thereof by which you are employed
at the date such Potential Change in Control occurs) until the earliest of (x) a
date which is six months from the occurrence of such Potential Change in Control
of the Company, (y) the termination by you of your employment by reasons of
Disability or Retirement (at your normal retirement age), as defined in
Subsection 3(a), or (z) the occurrence of a Change in Control of the Company.
(c) GOOD REASON. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence after a Change in Control
of the Company, of any of the following circumstances unless, in the case of
paragraphs (i), (v), (vi), (vii) or (viii), such circumstances are fully
corrected prior to the Date of Termination specified in the Notice of
Termination, as such terms are defined in Subsections 3(e) and 3(d),
respectively, given in respect thereof:
(i) The assignment to you of any duties inconsistent with your
status as an executive officer of the Company (or your status in the
position held by you immediately prior to the Change in Control) or a
substantial adverse alteration in the nature or status of your
responsibilities from those in effect immediately prior to the Change in
Control of the Company;
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April 23, 2001
Page 5
(ii) A reduction by the Company in your annual base salary as in
effect on the date hereof or as the same may be increased from time to
time except for an across-the-board salary reduction of a specific
percentage applied to all individuals at grade levels 26 and above and all
individuals in similar grade levels of any person in control of the
Company;
(iii) The relocation of the Company's principal executive offices
where you are working immediately prior to the Change in Control of the
Company to a location more than 50 miles from the location of such offices
immediately prior to the Change in Control of the Company or the Company's
requiring you to be based anywhere other than the location of the
Company's principal executive offices where you were working immediately
prior to the Change in Control of the Company except for required travel
on the Company's business to an extent substantially consistent with your
business travel obligations during the year prior to the Change in
Control;
(iv) The failure by the Company, without your consent, to pay to you
any portion of your current compensation except pursuant to an
across-the-board compensation deferral of a specific percentage applied to
all individuals in grade levels 26 or above and all individuals in similar
grades of any person in control of the Company, or to pay to you any
portion of an installment of deferred compensation under any deferred
compensation program of the Company, within thirty days of the date such
compensation is due;
(v) The failure by the Company to continue in effect any
compensation plan in which you are participating immediately prior to the
Change in Control of the Company which is material to your total
compensation, including but not limited to, the Company's Bonus Plan,
Executive Deferred Compensation Plan, Deferred Compensation Plan,
Restricted Stock Plan, Stock Option Plan, or any substitute plans adopted
prior to the Change in Control, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with respect
to such plan, or the failure by the Company to continue your participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of your participation relative to other
participants, as existed immediately prior to the Change in Control of the
Company;
(vi) The failure by the Company to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Company's pension, savings and retirement plan, life insurance, medical,
health and accident, or disability plans in which you were participating
at the time of the
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 6
Change in Control of the Company, the taking of any action by the Company
which would directly or indirectly materially reduce any of such benefits
or deprive you of any material fringe benefit enjoyed by you at the time
of the Change in Control of the Company, or the failure by the Company to
provide you with the number of paid vacation or PTO days to which you are
entitled on the basis of years of service with the Company in accordance
with the Company's normal vacation policy and/or PTO policy in effect at
the time of the Change in Control of the Company;
(vii) The failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 5 hereof; or
(viii) Any purported termination of your employment by the Company
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Subsection 3(d) hereof and the requirements of Subsection
3(b) below; for purposes of this Agreement, no such purported termination
shall be effective.
Your right to terminate your employment pursuant to this Agreement for
Good Reason shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason hereunder.
3. TERMINATION FOLLOWING CHANGE IN CONTROL (OR PRIOR TO A CHANGE IN
CONTROL IN SPECIFIC CIRCUMSTANCES). If any of the events described in Subsection
2(a) hereof constituting a Change in Control of the Company shall have occurred,
then following such Change in Control, you shall be entitled to the benefits
provided in Subsection 4(c) hereof: (1) if your employment was terminated within
six months prior to the Change of Control under the circumstances described in
Section 4.(2) below, or (2) if your employment is terminated during the term of
this Agreement after such Change in Control if such termination is (y) by the
Company, other than for Cause or (z) by you for Good Reason as provided in
Subsection 3(c)(i) hereof or by your Voluntary Termination as provided in
Subsection 3(c)(ii) hereof.
(a) DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for six consecutive months, and
within thirty days after written notice of termination is given you shall not
have returned to the full-time performance of your duties, your employment may
be terminated for "Disability". Termination by the Company or you of your
employment based on "Retirement" shall mean termination at
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 7
age 65 (or later) with ten years of service or retirement in accordance with any
retirement contract between the Company and you.
(b) CAUSE. Termination by the Company of your employment for "Cause" shall
mean termination upon your engaging in willful and continued misconduct, or your
willful and continued failure to substantially perform your duties with the
Company (other than due to physical or mental illness), if such failure or
misconduct is materially damaging or materially detrimental to the business and
operations of the Company, PROVIDED that you shall have received written notice
of such failure or misconduct and shall have continued to engage in such failure
or misconduct after 30 days following receipt of such notice from the Board,
which notice specifically identifies the manner in which the Board believes that
you have engaged in such failure or misconduct. For purposes of this Subsection,
no act, or failure to act, on your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith and without your reasonable
belief that your action or omission was in the best interest of the Company.
Notwithstanding the foregoing, you shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to you a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that in the
good faith opinion of the Board you were guilty of failure to substantially
perform your duties or of misconduct in accordance with the first sentence of
this Subsection, and of continuing such failure to substantially perform your
duties or misconduct as aforesaid after notice from the Board, and specifying
the particulars thereof in detail.
(c) VOLUNTARY RESIGNATION. After a Change in Control of the Company and
for purposes of receiving the benefits provided in Subsection 4(c) hereof, you
shall be entitled to terminate your employment by voluntary resignation given at
any time during the two years following the occurrence of a Change in Control of
the Company hereunder, PROVIDED such resignation is (i) by you for Good Reason
or (ii) by you voluntarily without the necessity of asserting or establishing
Good Reason and regardless of your age or any disability and regardless of any
grounds that may exist for the termination of your employment if such voluntary
termination occurs by written notice given by you to the Company during the
thirty days immediately following the one year anniversary of the Change in
Control (your "Voluntary Termination"), provided, however, for purposes of this
Subsection 3(c)(ii) only, the language "25% or more" in Subsection 2(a)(i)
hereof is changed to "a majority". Such resignation shall not be deemed a breach
of any employment contract between you and the Company.
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April 23, 2001
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(d) NOTICE OF TERMINATION. Any purported termination of your employment
by the Company or by you shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 6 hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the provision so
indicated.
(e) DATE OF TERMINATION, ETC. "Date of Termination" shall mean:
(i) If your employment is terminated for Disability, thirty days
after Notice of Termination is given (provided that you shall not have
returned to the full-time performance of your duties during such thirty
day period), and
(ii) If your employment is terminated pursuant to Subsection (b) or
(c) above or for any other reason (other than Disability), the date
specified in the Notice of Termination (which, in the case of a
termination pursuant to Subsection (b) above shall not be less than thirty
days, and in the case of a termination pursuant to Subsection (c) above
shall not be less than fifteen nor more than sixty days (thirty days in
case of your Voluntary Termination), respectively, from the date such
Notice of Termination is given);
PROVIDED that if within fifteen days after any Notice of Termination is given,
or, if later, prior to the Date of Termination (as determined without regard to
this provision), the party receiving such Notice of Termination notifies the
other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (which
is not appealable or with respect to which the time for appeal therefrom has
expired and no appeal has been perfected); PROVIDED FURTHER that the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Company will continue to pay you your full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, base salary) and continue you as a participant in all compensation, bonus,
benefit and insurance plans in which you were participating when the notice
giving rise to the dispute was given, until the dispute is finally resolved in
accordance with this Subsection. Amounts paid under this Subsection are in
addition to all other amounts due under this Agreement and shall not be offset
against or reduce any other amounts due under this Agreement.
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April 23, 2001
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4. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE OF CONTROL (OR IF
TERMINATION OCCURS PRIOR TO A CHANGE IN CONTROL IN SPECIFIC CIRCUMSTANCES).
Following a Change in Control of the Company as defined in Subsection 2(a),
then: (1) upon termination of your employment after such Change in Control, or
(2) notwithstanding anything in this Agreement to the contrary, if termination
of your employment occurred within six months prior to the Change in Control if
such termination was by the Company without Cause by reason of the request of
the person or persons (or their representatives) who subsequently acquire
control of the Company in the Change of Control transaction, you shall be
entitled to the following benefits:
(a) Deleted.
(b) If your employment shall be terminated by the Company for Cause, the
Company shall pay you your full base salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given, plus the Company
shall pay all other amounts and honor all rights to which you are entitled under
any compensation plan of the Company at the time such payments are due, and the
Company shall have no other obligations to you under this Agreement.
(c) If your employment shall be terminated (y) after a Change of Control,
by the Company other than for Cause or (z) after a Change of Control, by you for
Good Reason or by your Voluntary Termination as provided in Subsection 3(c)(ii),
or (yy) within six months prior to a Change of Control, by the Company under the
circumstances described in Section 4.(2) above, then you shall be entitled to
the benefits provided below:
(i) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given, plus all other amounts to which you are entitled under any
compensation or benefit plan of the Company, at the time such payments are
due;
(ii) In lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Company shall pay as severance
pay to you a lump sum severance payment (the "Severance Payment") equal to
3.0 times the average of the Annual Compensation (as defined below)
payable to you by the Company or any corporation affiliated with the
Company within the meaning of Section 1504 of the Internal Revenue Code of
1986, as amended (the "Code"). Annual Compensation is defined to consist
of two components: (a) Your annual salary in effect immediately prior to
the Change in Control or in effect as of the Date of Termination,
whichever annual salary is higher. Your annual salary for this purpose
will be determined without any reduction for deferrals of such salary
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under any deferred compensation plan (qualified or unqualified) and
without any reduction for any salary reductions used for making
contributions to any group insurance plan of the Company or its affiliates
and also without reduction for any other deductions from salary for any
reason; plus (b) The average of your annual bonuses under the Company's
Annual Management Bonus Plan, or any substitute or successor plan
including the Key Executive Officer Annual Incentive Plan, for the three
highest calendar years, in terms of annual bonus paid to you in such
years, during the five calendar years preceding the calendar year in which
the Change in Control occurred. Your annual bonuses for this purpose will
be determined without any reduction for deferrals under any deferred
compensation plan (qualified or unqualified) and without any reduction for
salary reductions used for making contributions to any group insurance
plan of the Company or its affiliates and also without reduction for any
other deductions from bonus for any reason. If you were not employed by
the Company or its affiliates for a sufficient period of time to receive
annual bonuses during each of the five calendar years before the Change in
Control occurred, then the average bonus will be measured using the three
highest calendar years, in terms of annual bonus paid to you, in all the
consecutive calendar years immediately preceding the date the Change in
Control occurred. If you were not eligible for three years of bonuses paid
during the calendar years immediately preceding the date the Change in
Control occurred, then the average bonus will be the average of the annual
bonuses that were paid to you during such time under such Plan. If you
were not eligible for any bonus during such time because of not being
employed by the Company for a sufficient period of time to qualify for a
previous bonus payment, then Annual Compensation will only consist of the
salary component as provided above and will not include a bonus component.
(iii) The Company shall also pay to you a pro rata amount of your
target bonus (the bonus amount for your grade level assuming 100 bonus
points are earned) as shown on the matrix for the Annual Management Bonus
Plan (or any substitute or successor plan) attributable to the bonus plan
year which contains your Date of Termination, regardless of whether or not
any bonus is determined to be actually earned for such year, provided that
the target bonus for calculating this pro rata payment will not be less
than the target bonus under such Plan for the Plan year that contains the
day immediately prior to the Change in Control (which target bonus will be
the one that applies to your grade level at that time) regardless of
whether or not any bonus was payable for such year. The pro-rata amount
will be based on the percentage of days of your employment in the calendar
year of the Date of Termination. For example, if the Date of Termination
is October 1 in a year with 365 days, with October 1 counted as the last
day of employment for a total of 274 days of employment that year,
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then the pro-rata amount will be 75.06849% of target bonus (274 days/365
days). In addition, the Company shall pay to you the amounts of any
compensation or awards payable to you or due to you under any incentive
compensation plan of the Company including, without limitation, the
Company's Restricted Stock Plan, Stock Option Plan (the "Option Plan") and
Annual Management Bonus Plan (or any substitute or successor plan
including the Key Executive Officer Annual Incentive Plan) and under any
agreements with you in connection therewith, and shall make any other
payments and take any other actions and honor such rights you may have
accrued under such plans and agreements including any rights you may have
to payments after the Date of Termination, which will include the payment
to you of any bonus earned during the bonus year fully completed prior to
the Date of Termination if such Date of Termination occurs prior to the
payment date for such bonus, it being understood, however, that the
pro-rata payment provided for in the first sentence of this paragraph
4(c)(iii) is in lieu of any bonus earned for the bonus plan year during
which occurred the Date of Termination.
(iv) In lieu of shares of common stock of the Company or any
securities of a successor company which shall have replaced such common
stock ("Company Shares") issuable upon exercise of outstanding and
unexercised options (whether or not they are fully exerciseable or
"vested"), if any, granted to you under the Option Plan including options
granted under the plan of any successor company that replaced or assumed
the options under said Option Plan ("Options") (which Options shall be
cancelled upon the making of the payment referred to below), you shall
receive an amount in cash equal to the product of (y) the excess of the
higher of the closing price of Company Shares as reported on the New York
Stock Exchange on or nearest the Date of Termination (or, if not listed on
such exchange, on a nationally recognized exchange or quotation system on
which trading volume in Company Shares is highest) or the highest per
share price (including cash, securities and any other consideration) for
Company Shares actually paid in connection with any change in control of
the Company, over the per share exercise price of each Option held by you
(whether or not then fully exercisable or "vested"), times (z) the number
of Company Shares covered by each such option.
(v) The Company shall also pay to you all legal fees and expenses
incurred by you as a result of such termination (including all such fees
and expenses, if any, incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement or in connection with any tax audit or
proceeding to the extent attributable to the
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application of Section 4999 of the Code to any payment or benefit provided
hereunder).
(vi) In the event that you become entitled to the payments (the
"Severance Payments") provided under paragraphs (ii), (iii), and (iv),
above (and Subsections (d) and (e), below), and if any of the Severance
Payments will be subject to the tax (the "Excise Tax") imposed by Section
4999 of the Code, the Company shall pay to you at the time specified in
paragraph (vii), below, an additional amount (the "Gross-Up Payment") such
that the net amount retained by you (such net amount to be the amount
remaining after deducting any Excise Tax on the Severance Payments and any
federal, state and local income tax and Excise Tax payable on the payment
provided for by this paragraph), shall be equal to the amount of the
Severance Payments after deducting normal and ordinary taxes but not
deducting (a) the Excise Tax and (b) any federal, state and local income
tax and Excise tax payable on the payment provided for by this paragraph.
For example, if the Severance Payments are $1,000,000 and if you are
subject to the Excise Tax, then the Gross-Up Payment will be such that you
will retain an amount of $1,000,000 less only any normal and ordinary
taxes on such amount. (The Excise Tax and federal, state and local taxes
and any Excise Tax on the payment provided by this paragraph will not be
deemed normal and ordinary taxes). For purposes of determining whether any
of the Severance Payments will be subject to the Excise Tax and the amount
of such Excise Tax, the following will apply:
(A) Any other payments or benefits received or to be received
by you in connection with a Change in Control of the Company or your
termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the
Company, any person whose actions result in a Change in Control of
the Company or any person affiliated with the Company or such
person) shall be treated as "parachute payments" within the meaning
of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated
as subject to the Excise Tax, unless in the opinion of tax counsel
selected by the Company's independent auditors and acceptable to you
such other payments or benefits (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in
whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the
Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code, or are otherwise not subject to the Excise
Tax;
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(B) The amount of the Severance Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of
(y) the total amount of the Severance Payments or (z) the amount of
excess parachute payments within the meaning of Section 280G(b)(1)
(after applying clause (A), above); and
(C) The value of any non-cash benefits or any deferred payment
or benefit shall be determined by the Company's independent auditors
in accordance with proposed, temporary or final regulations under
Sections 280G(d)(3) and (4) of the Code or, in the absence of such
regulations, in accordance with the principles of Section 280G(d)(3)
and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, you shall be deemed to pay Federal income taxes at
the highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state
and locality of your residence on the Date of Termination, net of
the maximum reduction in Federal income taxes which could be
obtained from deduction of such state and local taxes. In the event
that the amount of Excise Tax attributable to Severance Payments is
subsequently determined to be less than the amount taken into
account hereunder at the time of termination of your employment, you
shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction (plus the portion of
the Gross-Up Payment attributable to the Excise Tax and Federal (and
state and local) income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax
and/or a Federal (and state and local) income tax deduction) plus
interest on the amount of such repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax
attributable to Severance Payments is determined to exceed the
amount taken into account hereunder at the time of the termination
of your employment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional gross-up payment to
you in respect of such excess (plus any interest payable with
respect to such excess) at the time that the amount of such excess
is finally determined.
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 14
(vii) The payments provided for in paragraphs (ii), (iii), (iv) and
(vi) above, shall be made not later than the fifth day following the Date
of Termination (or following the date of the Change in Control if your
employment is terminated under the circumstances described in Section
4.(2) above), PROVIDED, HOWEVER, that if the amounts of such payments
cannot be finally determined on or before such day, the Company shall pay
to you on such day an estimate, as determined in good faith by the
Company, of the minimum amount of such payments and shall pay the
remainder of such payments (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be
determined but in no event later than the thirtieth day after the Date of
Termination (or following the date of the Change in Control if your
employment is terminated under the circumstances described in Section
4.(2) above). In the event that the amount of the estimated payments
exceeds the amount subsequently determined to have been due, such excess
shall constitute a loan by the Company to you payable on the fifth day
after demand by the Company (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code).
(d) If your employment shall be terminated (y) by the Company other than
for Cause, or (z) by you voluntarily for Good Reason or by your Voluntary
Termination, or by the Company within six months prior to a Change in Control
under the circumstances described in Section 4.(2) hereof, then for a
twenty-four month period after such termination, the Company shall arrange to
provide you with life, disability, accident and health insurance benefits
substantially similar to those which you are receiving immediately prior to the
Notice of Termination. Benefits otherwise receivable by you pursuant to this
Subsection 4(d) shall be reduced to the extent comparable benefits are actually
received by you during the twenty-four month period following your termination,
and any such benefits actually received by you shall be reported to the Company.
(e) In the event a Change in Control of the Company occurs while you are
employed with the Company or its affiliates but after you and the Company have
executed an agreement that expressly provides for your subsequent retirement
including an agreement that expressly provides for your early retirement, then
the present value, computed using a discount rate of 8% per annum, of (i) the
total amount of all unpaid deferred payments as payable to you in accordance
with the payment schedule that you elected when the deferral was agreed to and
using the plan interest rate applicable to your situation, including, without
limitation, any unpaid deferred payments to be paid to you under the Company's
Executive Deferred Compensation Plan and the Company's other deferred
compensation plans, and (ii) the total amount of all other payments payable or
to become payable to you or your estate or beneficiary
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 15
under such retirement agreement (other than payments payable pursuant to a plan
qualified under Section 401(a) of the Internal Revenue Code) shall be
accelerated and paid to you (or your estate or beneficiary if applicable) in a
lump sum cash payment within five business days after the occurrence of the
Change in Control of the Company. In addition, if you and the Company or its
affiliates have executed such a retirement agreement and if the Change in
Control of the Company occurs before the effective date of your retirement, then
you shall receive the Severance Payment payable under Subsection 4(c)(ii) herein
in addition to the lump sum cash payment of the present value of your total
unpaid deferred payments and other payments under the retirement agreement as
aforesaid. All benefits (other than the payments accelerated and paid out to you
in a lump sum as provided above) to which you or your estate or any beneficiary
are entitled under such retirement agreement shall continue in effect
notwithstanding the Change in Control of the Company. This Subsection 4(e) shall
survive your retirement.
(f) Notwithstanding that a Change in Control shall not have yet
occurred, if you so elect, by written notice to the Company given at any time
after the date hereof and prior to the time such amounts are otherwise payable
to you:
(i) The Company shall deposit with an escrow agent, pursuant to an
escrow agreement between the Company and such escrow agent, a sum of
money, or other property permitted by such escrow agreement, which are
substantially sufficient in the opinion of the Company's management to
fund payment of the following amounts to you, as such amounts become
payable (provided such deposit will not be necessary to the extent the
escrow already contains funds or other assets which are substantially
sufficient in the opinion of the Company's management to fund such
payments) :
(A) Amounts payable, or to become payable, to you or to your
beneficiaries or your estate under the Company's Executive Deferred
Compensation Plan and under any agreements related thereto in
existence at the time of your election to make the deposit into
escrow.
(B) Amounts payable, or to become payable, to you or to your
beneficiaries or your estate by reason of your deferral of payments
payable to you prior to the date of your election to make the
deposit into escrow under any other deferred compensation agreements
between you and the Company in existence at the time of your
election to make the deposit into escrow, including but not limited
to deferred compensation agreements relating to the deferral of
salary or bonuses.
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 16
(C) Amounts payable, or to become payable, to you or to your
beneficiaries or your estate under any executed agreement that
expressly provides for your retirement from the Company (including
payments described under Subsection 4(e) above) which agreement is
in existence at the time of your election to make the deposit into
escrow, other than amounts payable by a plan qualified under Section
401(a) of the Code.
(D) Subject to the approval of the Committee, amounts then due
and payable to you, but not yet paid, under any other benefit plan
or incentive compensation plan of the Company (whether such amounts
are stock or cash) other than amounts payable to you under a plan
qualified under Section 401(a) of the Code.
(ii) Within 5 days after the occurrence of a Potential Change of
Control, the Company shall deposit with an escrow agent (which shall be
the same escrow agent, if one exists, acting pursuant to clause (i) of
this Subsection 4(f)), pursuant to an escrow agreement between the Company
and such escrow agent, a sum of money, or other property permitted by such
escrow agreement, substantially sufficient in the opinion of Company
management to fund the payment to you of the amounts specified in
Subsection 4(c) of this Agreement.
(iii) It is intended that any amounts deposited in escrow pursuant
to the provisions of clause (i) or (ii) of this Subsection 4(f), shall be
subject to the claims of the Company's creditors, as set forth in the form
of such escrow agreement.
(g) You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise (except as specifically provided in
this Section 4).
(h) In addition to all other amounts payable to you under this Section 4,
you shall be entitled to receive all benefits payable to you under any benefit
plan of the Company in which you participate to the extent such benefits are not
paid under this Agreement.
5. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 17
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle you to
compensation from the Company in the same amount and on the same terms as you
would be entitled to hereunder if you terminate your employment voluntarily for
Good Reason following a Change in Control of the Company, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, successors,
heirs, distributees, devises and legatees. If you should die while any amount
would still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. NOTICES. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid, by FAX
if available, or by overnight courier service, addressed as follows:
To the Company:
General Counsel
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000
FAX: 000-000-0000
To you:
Addressed to your name at your office address (or FAX number)
with the Company or its affiliates (or any successor thereto)
at the time the notice is sent and your home address at that
time; and if you are not employed by the Company at the time
of the notice,
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 18
your home address as shown on the records of the Company or
its affiliates (or any successor thereto) on the date of the
notice.
To such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
7. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Delaware. All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
such sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law. The
obligations of the Company under Section 4 shall survive the expiration of the
term of this Agreement.
8. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Las Vegas,
Nevada in accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that you shall be entitled to seek specific
performance of your right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection with this
Agreement.
Xxxxxxx X. Xxxxxx
April 23, 2001
Page 19
11. SIMILAR PROVISIONS IN OTHER AGREEMENT. The Severance Payment under
this Agreement supersedes and replaces any previous severance agreement and any
other severance payment to which you may be entitled under any previous
agreement between you and the Company or its affiliates.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our binding agreement on this subject.
Very truly yours,
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Agreed:
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
