EXHIBIT 10.44
EMPLOYMENT AGREEMENT
Agreement, made as of January 1, 2001, between Crown Media Holdings, Inc.,
a Delaware corporation with offices at 00000 Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 or its permits assigns ("Employer") and Xxxxxxx Xxxxxx
("Employee").
WITNESSETH:
WHEREAS, Employer desires to retain the services of Employee and Employee
desires to be employed by Employer upon the terms and conditions set forth:
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto agree as follows:
1. Employment and Duties.
(a) Effective January 1, 2001, Employer hereby employs Employee and
Employee hereby agrees to serve as Executive Vice President and Chief Financial
Officer of Crown Media Holdings, Inc., reporting directly to the Chief Executive
Officer of Employer. Employee agrees to perform such services, as requested by
Employer, as are consistent with Employee's position. Employee shall use
Employee's best efforts to promote the interests of Employer and shall devote
Employee's full business time, energy and skill exclusively to the business and
affairs of Employer during the "Term" (as "Term" is defined in Paragraph 2
below).
(b) During the course of Employee's employment hereunder, Employer may
create or utilize subsidiary companies for the production and distribution of
programming or to conduct the other activities and businesses of Employer.
Employer shall have the right, without additional compensation to Employee, to
loan or make Employee available to any subsidiary of Employer or company in
common ownership with Employer to perform services for any programming, property
or project owned or controlled by Employer or any such entity, provided that
Employee's services for any such entity shall be consistent with Employee's
duties hereunder. Employee further agrees that all the terms of this Employment
Agreement shall be applicable to Employee's services for each such entity.
2. Term of Employment. The term of Employee's employment under this
Agreement ("Term") with Employer shall commence as of January 1, 2001 and shall
end on
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December 31, 2003, unless terminated earlier as is provided in Paragraph 8 of
this Agreement or extended by mutual agreement of the parties.
3. Compensation.
(a) Salary. As compensation for Employee's services hereunder, Employer
shall pay to Employee a salary at the rate of $400,000 per year during the first
year of the Term, $430,000 per year during the second year of the Term and
$460,000 during the third year of the Term. Such salary shall be paid biweekly,
in arrears.
(b) Bonuses. Following the end of each calendar year during the Term,
Employee will be paid such bonus as Employer in its discretion determines. The
amount of such bonuses will be determined by Employer based on achievement of
the financial goals set out in Schedule A attached hereto. The bonus will be
payable on the date designated by Employer.
(c) Withholding. All payments of salary shall be made in appropriate
installments to conform with the regular payroll dates for salaried personnel of
Employer. Employer shall be entitled to deduct from each payment of compensation
to Employee such items as federal, state and local income taxes, FICA,
unemployment insurance and disability contributions, and such other deductions
as may be required by law.
(d) Expenses. During the Term, Employer shall pay or reimburse Employee
on an accountable basis for all reasonable and necessary out-of-pocket expenses
for entertainment, travel (including business class commercial air travel, or if
business class air travel is not available, on the next best available
commercial basis), meals, hotel accommodations and other expenditures incurred
by Employee in connection with Employee's services to Employer in accordance
with Employer's expense account policies.
(e) Fringe Benefits. During the Term, Employee shall be entitled to
receive group medical, dental, life and disability insurance as per Employer
policy and any other fringe benefits, on terms that are or may become available
generally to comparable employees of Employer. Employee will also be paid an
automobile allowance of $975 per month.
4. Place of Employment. During the Term, Employee shall be based in Kansas
City, but may be required to perform Employee's duties at the offices of
Employer in Los Angeles, Denver and New York or such other location as may be
mutually agreeable to Employer and Employee. Employee shall undertake all travel
required by Employer in connection with the
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performance of Employee's duties hereunder.
5. Confidentiality, Intellectual Property; Name and Likeness.
(a) Employee agrees that Employee will not during the Term or
thereafter divulge to anyone (other than Employer and its executives,
representatives and employees who need to know such information or any persons
designated by Employer) any knowledge or information of any type whatsoever
designated or treated as confidential by Employer relating to the business of
Employer or any of its subsidiaries or affiliates, including, without
limitation, all types of trade secrets, business strategies, marketing and
distribution plans as well as concrete proposals, plans, scripts, treatments and
formats described in subparagraph (b) below. Employee further agrees that
Employee will not disclose, publish or make use of any such knowledge or
information of a confidential nature (other than in the performance of
Employee's duties hereunder) without the prior written consent of Employer. This
provision does not apply to information which becomes available publicly without
the fault of Employee or information , which Employee discloses in confidence to
Employee's own privileged representatives or is required to disclose in legal
proceedings, provided Employee gives advance notice to the Chief Executive
Officer of Employer and an opportunity to Employer to resist such disclosure in
legal proceedings.
(b) During the Term, Employee will disclose to Employer all concrete
proposals, plans, scripts, treatments, and formats invented or developed by
Employee during the Term which relate directly or indirectly to the business of
Employer or any of its subsidiaries or affiliates including, without limitation,
any proposals and plans which may be copyrightable, trademarkable, patentable or
otherwise exploitable. Employee agrees that all such proposals, plans, scripts,
treatments, and formats are and will be the property of Employer. Employee
further agrees, at Employer's request, to do whatever is necessary or desirable
to secure for the Employer the rights to said proposals, plans, scripts,
treatments, and formats, whether by copyright, trademark, patent or otherwise
and to assign, transfer and convey the rights thereto to Employer at Employer's
expense.
(c) Employer shall have the right in perpetuity to use Employee's name
in connection with credits for programming, properties and projects for which
Employee performs any services pursuant to this Agreement.
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6. Employee's Representations. Employee represents and warrants that:
(a) Employee has the right to enter into this Agreement and is not
subject to any contract, commitment, agreement, arrangement or restriction of
any kind which would prevent Employee from performing Employee's duties and
obligations hereunder;
(b) To the best of Employee's knowledge, Employee is not subject to any
undisclosed medical condition which might have a material effect on Employee's
ability to perform satisfactorily Employee's services hereunder.
7. Non-Competition; No Raid.
(a) During the Term, Employee shall not engage directly or indirectly,
whether as an employee, independent contractor, consultant, partner, shareholder
or otherwise, in a business or other endeavor which materially interferes with
any of Employee's duties or obligations hereunder or which is directly
competitive with the business of the Employer or its subsidiaries, including but
not limited to the production, distribution or any other exploitation of
audiovisual television material (the "Other Business").
(b) Employee further agrees that during the Term and for a period of
one year thereafter, Employee will not employ, or attempt to employ or assist
anyone else to employ, any person who is, at the date of termination of
Employee's employment, working as an officer, policymaker or in high-level
creative development or distribution (including without limitation executive
employees) for or rendering substantially full-time services as such to
Employer.
8. Termination.
(a) This Agreement may be terminated and the Term ended on five (5)
business days' written notice for any one of the following reasons (except (i)
in which case termination shall occur on the date of death):
(i) The death of Employee;
(ii) The physical or mental disability of Employee to such an extent
that Employee is unable to render services to Employer for a period exceeding an
aggregate of thirty (30) business days during any twelve month period of the
Term. For purposes of counting the aggregate of thirty (30) business days, days
properly designated by Employee as vacation days shall not be counted;
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(iii) For "cause," which for purposes of this Agreement shall be
defined as:
(A) the use of drugs and/or alcohol which interfere materially
with Employee's performance of Employee's services under this Agreement;
(B) Employee's conviction of any act which constitutes a
felony under federal, state or local laws or the law of any foreign country;
(C) Employee's persistent failure after written notice to
perform, or Employee's persistent refusal to perform after written notice, any
of Employee's duties and responsibilities pursuant to this Agreement; or
(D) Employee's dishonesty in financial dealings with or on
behalf of Employer, its subsidiaries, affiliates and parent corporation or in
connection with performance of Employee's duties hereunder.
(b) Employer shall also have the right to terminate Employee prior to
the expiration of the Term in addition to pursuant to Paragraph 8(a) above by
providing Employee with not less than thirty (30) days' advance notice in
writing. In the event of a termination pursuant to this Paragraph 8(b): (i) the
Employer shall pay to the Employee, commencing thirty (30) days after such
notice of termination, the remaining amounts described in Paragraph 3(a) above
for the balance of the Term at such time or times such payments would otherwise
be due. Employer shall have no further obligations to Employee hereunder. If
Employer terminates Employee under this Paragraph 8(b), Paragraph 7(a) shall not
apply from the date of termination.
(c) In the event that Employer terminates this Agreement due to any of
the reasons set forth in Paragraphs 8(a)(i), 8(a)(ii) or 8(a)(iii)(A-D) above,
Employee shall be paid Employee's salary through the later of the expiration of
the five (5) business days period referred to in Paragraph 8(a) or the end of
the month in which the termination event occurs, after which Employer's
obligation to pay salary to Employee shall terminate. After making the payments
provided for in this sub-paragraph (c), Employer shall have no further
obligations to Employee pursuant to this Agreement.
(d) Upon termination of this Agreement, Employee shall promptly return
all of Employer's property to Employer.
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(e) Upon termination of Employee's employment for any reason, Employee
shall tender Employee's resignation from the Board of Directors of any of
Employer's subsidiaries or affiliates on which Employee is serving, and Employer
shall accept such resignation forthwith.
9. Breach; Remedies. Both parties recognize that the services to be
rendered under this Agreement by Employee are special, unique and extraordinary
in character, and that in the event of the breach by Employee of the terms and
conditions of this Agreement, Employer shall be entitled, inter alia, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, and to seek to enforce the specific performance thereof by
Employee, and/or to seek to enjoin Employee from performing services for any
other person, firm or corporation. The parties further stipulate that the law of
California shall apply to any dispute of action regarding this Agreement.
10. Assignment. This Agreement is a personal contract and, except as
specifically set forth herein, the rights, interests and obligations of Employee
herein may not be sold, transferred, assigned, pledged or hypothecated, although
Employee may assign or use as security payments due hereunder from Employer. The
rights and obligations of Employer hereunder shall bind in their entirety the
successors and assigns of Employer, although Employer shall remain fully liable
hereunder. As used in this Agreement, the term "successor" shall include any
person, firm, corporation or other business entity which at the time, whether by
merger, purchase or otherwise, acquires all or substantially all of the assets
or business of Employer.
11. Amendment; Captions. This Agreement contains the entire agreement
between the parties. It may not be changed orally, but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Paragraph headings are for convenience of
reference only and shall not be considered a part of this Agreement. If any
clause in this Agreement is found to be unenforceable, illegal or contrary to
public policy, the parties agree that this Agreement shall remain in full force
and effect except for such clause.
12. Prior Agreements. This Agreement supersedes and terminates all prior
agreements between the parties relating to the subject matter herein addressed,
and sets out the full agreement between the parties concerning its subject
matter.
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13. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed effective when delivered in
person or if mailed, by registered or certified mail, return receipt requested,
in which case the notice shall be deemed effective on the date of deposit in the
mails, postage prepaid, addressed to Employee at the address for Employee
appearing in Employer's records and, in the case of Employer, addressed to its
Chief Executive Officer at the address first written above. Either party may
change the address to which notices are to be addressed by notice in writing
given to the other in accordance with the terms hereof.
14. Periods of Time. Whenever in this Agreement there is a period of time
specified for the giving of notices or the taking of action, the period shall be
calculated excluding the day on which the giver sends notice and excluding the
day on which action to be taken is actually taken.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute one instrument.
IN WITNESS WHEREOF, Employer has by its appropriate officer signed this
Agreement and Employee has signed this Agreement as of the day and year first
above written.
CROWN MEDIA HOLDINGS, INC.
By /s/ Xxxxx Xxxxx
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Title President and CEO
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XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
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Date 11/13/01
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Schedule A - Bonus
Employee's bonus will be divided into two categories - a discretionary bonus and
a performance based bonus. The benchmark for the total bonus amount will be 20%
of Employee's then-current salary, as set out in Paragraph 3(a) if the
Agreement.
30% of the bonus will be discretionary, i.e., whether this portion of the bonus
is awarded and the amount of the bonus will be in the sole discretion of
Employer and the Compensation Committee of the Board of Directors of Crown Media
Holdings, Inc. The maximum amount payable under this discretionary portion of
the bonus would be 6% of current salary.
The remaining 70% of the bonus will be awarded based on Crown Media Holdings,
Inc. achievement of "Revenue" and "EBITDA" "Targets" for the year for which the
bonus is paid - each will account for half of this portion of the bonus. The
benchmark for each of the Revenue and EBITDA portions is 7% of salary, although
a greater amount may be paid if Revenue and/or EBITDA Targets are exceeded. The
formula for payment of this bonus based on percentage achievement of Revenue and
EBITDA Targets is as follows:
Percentage of Revenue or EBITDA Target Achieved Percentage of Salary Payable as Bonus
----------------------------------------------- -------------------------------------
Below 85% No bonus
85% or more but less than 90% 5.6%
90% or more, but less than 95% 6.3%
95% or more, but less than 98% 6.65%
98% or more, but less than 102% 7%
102% or more, but less than 105% 7.77%
105% or more, but less than 110% 8.4%
110% or more 10.5%
By way of example, if 110% of the Revenue Target is achieved for the year and
only 90% of the EBITDA Target is achieved, the total performance based portion
of the bonus would equal
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16.8% of salary (i.e. 10.5% for exceeding the Revenue Target and 6.3% for
substantial achievement of the EBITDA Target.)
"Revenue" for this purpose will be the sum of gross subscriber revenues and
gross advertising sales revenues (less agency commissions) which are realized
for accounting purposes by Employer in each fiscal year. "EBITDA" will have the
meaning designated by Employer's outside auditors, consistent with GAAP. The
"targets" for each will be those designated in the Employer's financial "Plan"
for each fiscal year, as determined by the CEO of Employer and Board of
Directors of Crown Media Holdings, Inc. Bonus payments shall be made on the
dates designated by Employer for payment of bonuses to Crown employees in
general.
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