EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement" ), is entered into and made
effective this 7th day of March 1999, by and between Spyglass Entertainment
Group, LP, a Delaware limited partnership (the "Company") and Xxxxxx Xxxxxx
("Xxxxxx").
WHEREAS, Xxxxxx desires to be employed by the Company;
WHEREAS, Xxxxxx and the Company desire to enter into this Agreement to
assure the Company of the services of Xxxxxx and to set forth the respective
rights and duties of the parties;
NOW, THEREFORE, the parties hereto agree as follows:
1. HIRING.
(a) The Company hereby hires Xxxxxx, and Xxxxxx hereby accepts and agrees
to such hiring on the terms and conditions set forth herein.
(b) Xxxxxx shall serve in the capacity of Executive Vice President.
Xxxxxx'x principal duties will be to perform all international, business and
other related affairs of the Company, as reasonably determined by the Company.
Xxxxxx will report directly and solely to Xxxx Xxxxxx ("Xxxxxx") and Xxxxx
Xxxxxxxx ("Xxxxxxxx"), the Co-Chairmen/Co-Chief Executive Officers. Xxxxxx shall
perform such other services and duties, consistent with Xxxxxx'x role as
Executive Vice President of the Company, as may from time to time be decided
upon by Xxxxxx and Xxxxxxxx. Xxxxxx agrees that, except during vacation periods
or in accordance with the Company's personnel policies, if any, covering leaves
and reasonable periods of illness or other incapacitation, Xxxxxx shall devote
all of his business time and services to the business and interest of the
Company. Xxxxxx shall perform the duties of his employment with fidelity, to the
best of his ability, and in the best interests of the Company. Xxxxxx may
participate in charitable, community, educational, civic, political and other
similar organizations to the extent that Xxxxxx'x participation does not
interfere, and is not inconsistent, with the performance of his duties and
responsibilities pursuant to this Agreement.
(c) No other employee of the Company involved with international, business
and legal affairs, and other business operations, will have a position that is
higher than or equal to Xxxxxx. No other employee of the Company primarily
involved with financial operations will have a position that is higher than
Xxxxxx. However, this provision shall not apply to: (i) Xxxx Xxxxxx; (ii) Xxxxx
Xxxxxxxx; or (iii) any individual who becomes an equity partner of the Company.
All employees in the Company's international, business affairs and legal
departments will be within Xxxxxx'x chain of command and will not directly
report to anyone who is in a higher position than Xxxxxx, except any employee
may be required to directly report to Xxxxxx and (i) Xxxx Xxxxxx; (ii) Xxxxx
Xxxxxxxx; and/or (iii) any individual who becomes an equity partner of the
Company.
2. TERM.
(a) Xxxxxx'x employment hereunder shall commence on April 26, 1999, and
subject to the termination provisions of this Agreement, shall continue until
October 19, 2003 (the "Term").
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(b) This Agreement does not constitute a commitment by the Company with
regard to Xxxxxx'x employment, express or implied, other than to the extent
expressly provided for herein or otherwise established by California law. Upon
termination of this Agreement, it is the contemplation of both parties that
Xxxxxx'x employment with the Company shall cease, and that neither the Company
nor Xxxxxx shall have any obligation to the other with respect to continued
employment except as provided in paragraphs 7, 8, 9 and 10 herein, and except
for the Company's obligation to pay any accrued but unpaid compensation or other
vested interests and benefits pursuant to the terms of this Agreement
(including, without limitation, Xxxxxx'x vested stock options). In the event
Xxxxxx'x employment continues for any period of time following the stated
expiration date of this Agreement, unless and until agreed to in a new
subscribed written document, such employment or any continuation thereof shall
be "at-will," and may be terminated without obligation at any time by either
party, with or without cause and/or notice, and Xxxxxx shall be employed upon
the same terms and conditions (including the then-applicable compensation) as
contained in this Agreement.
(c) The Company expressly agrees to satisfy any obligations it has pursuant
to California Labor Code sections 2800 and 2802, with respect to Xxxxxx'x
conduct within the course and scope of his employment during the term of this
Agreement, if any. The Company shall provide Xxxxxx with a defense in the event
of any claim arising out of the discharge of his duties as an employee of the
Company.
3. COMPENSATION.
(a) During the first year of Xxxxxx'x employment by the Company, Xxxxxx
shall be entitled to an annualized base salary of Two Hundred Twenty-Five
Thousand Dollars ($225,000.00), payable twice monthly in equal installments in
the gross sum of $9,375.00. During the second year of Xxxxxx'x employment by the
Company, Xxxxxx shall be entitled to an annualized salary of Two Hundred Fifty
Thousand Dollars ($250,000.00 ), payable twice monthly in equal installments in
the gross amount of $10,416.67. During the third year of Xxxxxx'x employment by
the Company, Xxxxxx shall be entitled to an annualized salary of Two Hundred
Seventy-Five Thousand Dollars ($275,000.00), payable twice monthly in equal
installments in the gross amount of $11,458.33. During the fourth year of
Xxxxxx'x employment by the Company, Xxxxxx shall be entitled to an annualized
salary of Three Hundred Ten Thousand Dollars ($310,000.00), payable twice
monthly in equal installments in the gross amount of $12,916.67. During the
fifth year of Xxxxxx'x employment by the Company, Xxxxxx shall be entitled to a
pro rated, annualized salary of Three Hundred Fifty Thousand Dollars
($350,000.00), payable twice monthly in equal installments in the gross amount
of $14,583.33. All salary paid to Xxxxxx by the Company shall be subject to
customary withholding and other required employment taxes. Xxxxxx shall receive
no commission payments or other fixed compensation in addition to that provided
in this Agreement, unless separately negotiated and agreed to in writing by Xxxx
Xxxxxx or Xxxxx Xxxxxxxx, the Co-Chairmen/Co-Chief Executive Officers.
(b) As additional compensation, Xxxxxx shall be eligible to receive an
annual bonus, in the sole discretion of Company, based upon any criteria that
the Company shall determine in its sole discretion to be relevant, if any.
Nothing contained in this provision shall be deemed or interpreted to entitle
Xxxxxx to receive any bonus during the term of his employment.
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(c) As additional compensation, while employed by the Company, Xxxxxx shall
receive options to acquire (in the aggregate) One and One Half Percent (1.5%) of
the Company's stock, said stock options to vest in pro rata shares over the
Term, on the terms and subject to the conditions set forth in this Agreement and
in the Option Agreement being entered into concurrently herewith by Xxxxxx and
the Company.
(d) As additional compensation, Xxxxxx shall be entitled to receive an
automobile allowance in the amount of Five Hundred Dollars ($500.00) per month,
less statutory withholdings.
(e) Subject to the terms of such plans, during the term of his employment,
Xxxxxx shall be entitled to participate in all current and future group plans
such as life, medical, dental, disability and other insurance plans, as well as
401(k) plans or other pension plans maintained or established by the Company.
(f) Subject to the terms of such plans, during the term of his employment,
Xxxxxx shall be entitled to participate in all benefits plans and programs which
are made available to executive employees of the Company.
4. BUSINESS EXPENSES. The Company shall promptly reimburse Xxxxxx for all
reasonable business expenses incurred by Xxxxxx in promoting the business of the
Company, including but not limited to expenditures for entertainment,
business-class travel and business-related cellular telephone and facsimile
charges. The Company also agrees to pay Xxxxxx'x State Bar Association dues.
Each such expenditure shall be reimbursable only if Xxxxxx furnishes the Company
with adequate records and other documentary evidence required by federal and
state statutes and regulations issued by the appropriate taxing authorities for
the substantiation of that expenditure as an income tax deduction.
5. PROVISIONS OF EMPLOYEE HANDBOOK. Except as modified by this Agreement,
all of the provisions of the Company's Employee Handbook shall apply to Xxxxxx.
Xxxxxx acknowledges having received a copy of the Employee Handbook.
6. MEDICAL INSURANCE. During Xxxxxx'x employment by the Company, Xxxxxx
shall be entitled to medical and dental insurance coverage under the applicable
policy maintained by the Company.
7. TRADE SECRETS.
(a) Xxxxxx specifically agrees that he will not at any time during his
employment by the Company, in any fashion, form, or manner, unless specifically
consented to in writing by the Company or required by a legal proceeding or
Court order, or if the information is known to the public, either directly or
indirectly use or divulge, disclose or communicate to any person, firm or
company, in any manner whatsoever any confidential information of any kind,
nature or description concerning any matter affecting or relating to the
business of the Company, including without limiting the generality of the
foregoing, the names, buying habits and procedures, and/or practices of any of
the Company's clients, its marketing methods and related data, the names of any
of its vendors or suppliers, costs of materials, the prices it obtains or has
obtained or which it sells or has sold its services, sales costs, lists or other
written records used in the Company's business, compensation paid to employees
and other terms of employment, or any other confidential
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information of, about, or concerning the business of the Company, its manner of
operation, or other confidential data of any kind, nature, or description, the
parties hereto stipulating that as between them, the same are important,
material, and confidential trade secrets and affect the successful conduct of
the Company's business, and its goodwill, and that any breach of any term of
this paragraph is a material breach of this Agreement.
(b) Xxxxxx specifically agrees that he will not at any time subsequent to
his employment by the Company, in any fashion, form, or manner, unless
specifically consented to in writing by the Company or required by a legal
proceeding or Court order, or if the information is known to the public, either
directly or indirectly use or divulge, disclose or communicate to any person,
firm or company, in any manner whatsoever any confidential information of any
kind, nature or description concerning any matter affecting or relating to the
business of the Company, of which he becomes aware during his employment by the
Company, including without limiting the generality of the foregoing, the names,
buying habits and procedures, and/or practices of any of the Company's clients,
its marketing methods and related data, the names of any of its vendors or
suppliers, costs of materials, the prices it obtains or has obtained or which it
sells or has sold its services, sales costs, lists or other written records used
in the Company's business, compensation paid to employees and other terms of
employment, or any other confidential information of, about, or concerning the
business of the Company, its manner of operation, or other confidential data of
any kind, nature, or description, the parties hereto stipulating that as between
them, the same are important, material, and confidential trade secrets and
affect the successful conduct of the Company's business, and its goodwill, and
that any breach of any term of this paragraph is a material breach of this
Agreement.
(c) All equipment, notebooks, documents, memoranda, reports, written and
computer files and data, samples, books, correspondence, lists, other written
and graphic records, and the like affecting or relating to the business of the
Company, which Xxxxxx shall prepare, use, construct, observe, possess or
control, other than Xxxxxx'x personal rolodex (provided that its contents are
limited to names and relevant contact information), shall be and remain the
Company's sole property.
8. COPYRIGHT AND TRADEMARKS.
(a) 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 Xxxxxx at any time during his employment and all material embodiments
of the work subject to such rights; and (ii) all inventions, ideas, discoveries,
designs and improvements, patentable or not, made or conceived by Xxxxxx at any
time during his employment shall be and remain the sole property of the Company
without payment of any further consideration to Xxxxxx or any other person than
as set forth herein, unless otherwise agreed to in writing between Xxxxxx and
either Xxxxxx or Xxxxxxxx, and each such work shall, for purposes of United
States copyright law, be deemed created by Xxxxxx pursuant to his duties under
this Agreement and within the scope of his employment and shall be deemed a work
made for hire; and Xxxxxx agrees to assign, at the Company's expense, and Xxxxxx
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 8,
"WORKS" shall include all materials created during the
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period of Xxxxxx'x employment, whether or not ever used by or submitted to the
Company, including, without limitation, any work which may be the subject matter
of a copyright under the 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) To the extent consistent with this Agreement, whenever the Company
shall so request, at no cost to Xxxxxx, whether during or after the term of this
Agreement, Xxxxxx shall execute, acknowledge and deliver all applications,
assignments or other instruments; make or cause to be made all rightful oaths;
testify in all legal proceedings; communicate all known facts which relate to
such works, copyrights, inventions, ideas, discoveries, designs and
improvements; perform all lawful acts and otherwise render all such assistance
as the Company may reasonably 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 reasonably deem
necessary in connection with any proceeding or litigation involving the same.
All registration and filing fees and similar expenses shall be paid by the
Company.
9. XXXXXX DUTIES UPON TERMINATION. Upon the termination of Xxxxxx'x
employment hereunder, Xxxxxx shall immediately deliver to the Company all
equipment not owned by Xxxxxx, notebooks, documents, memoranda, reports, files,
samples, books, correspondence, lists, or other written or graphic records, and
the like, relating to the Company's business, which are or have been in his
possession or under his control, other than Xxxxxx'x personal rolodex (provided
that the contents of the rolodex are limited to names and relevant contact
information). The Company shall not be deemed to have a property right in
Xxxxxx'x personal rolodex (which contains only names and relevant contact
information).
10. CONFLICTS OF INTEREST AND NON-SOLICITATION.
(a) During the term of this Agreement, Xxxxxx agrees that he will not,
directly or indirectly, own an interest in, operate, join, control, or
participate in, or be connected as an officer, employee, agent, independent
contractor, partner, shareholder, or principal of any company, partnership,
proprietorship, firm, association, person, or other entity producing, designing,
providing, soliciting orders for, selling, distributing, or marketing products,
goods, equipment, and/or services which directly or indirectly compete with the
Company's business. Nothing contained herein shall prevent Xxxxxx from owning
publicly traded minority stock interests not to exceed five percent (5%),
limited partnership interests or other passive investments in businesses
performing any of the aforesaid activities.
(b) During the term of this Agreement, Xxxxxx agrees that he will not,
directly or indirectly, either for himself or for any other person, firm, or
company, divert or take away or attempt to divert or take away any of the
Company's customers or clients, including but not limited to those upon whom he
called or whom he solicited or to whom he catered or with whom he became
acquainted while he was employed by the Company.
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(c) During the term of this Agreement, Xxxxxx agrees that he will not
undertake planning for or organization of any business activity competitive with
Company's business or combine or conspire with other employees or
representatives of the Company's business for the purpose of organizing any such
competitive business activity.
(d) During the term of this Agreement, Xxxxxx agrees that he will not,
directly or indirectly, or by action in concert with others, induce or influence
(or seek to induce or influence) any person who is engaged (as an employee,
agent, independent contractor or otherwise) by the Company to terminate his or
her employment.
(e) Nothing contained in this paragraph 10 shall be deemed a waiver of
Xxxxxx'x obligations under paragraph 7, and in the event of any conflict or
inconsistency between the provisions of this paragraph 10 and paragraph 7, the
provisions of paragraph 7 shall control. The covenants of this paragraph 10
shall be construed as separate covenants covering their subject matter in each
of the separate counties in the State of California in which the Company
transacts its business, the names of which are incorporated herein by this
reference, and each of the separate counties or similar political subdivisions
of each state in the United States in which the Company transacts its business;
to the extent that any covenant shall be judicially unenforceable in any one or
more of said counties or states, said covenant shall not be affected with
respect to each other county and state, each covenant with respect to each
county and state being construed as severable and independent.
11. TERMINATION.
(a) Xxxxxx'x employment hereunder may be terminated by the Company for
cause at any time, with or without notice. However, if the cause for Xxxxxx'x
termination is curable, and the "cause" for termination constitutes the first
incident, conduct, circumstance or condition constituting "cause" for
termination of Xxxxxx'x employment, as defined in this Agreement, the Company
will provide Xxxxxx with written notice of his termination and allow him five
(5) business days to cure the incident, conduct, circumstance or condition
constituting "cause" for termination. Nothing in this paragraph 11 shall be
construed to require the Company to provide Xxxxxx with written notice of any
incurable "cause" for termination or of any "cause" for termination after Xxxxxx
has received any prior written notice of termination. As used herein, the term
"cause" shall mean: (i) the habitual or willful neglect of Xxxxxx'x duties after
written notice from the Company to Xxxxxx of such conduct; (ii) Xxxxxx'x
suffering from a physical or mental incapacity of such magnitude that Xxxxxx is
unable to substantially perform his duties for a period of six (6) consecutive
weeks or more during the term of this Agreement, or for any periods equaling a
total of eight (8) weeks or more during any year of the term of this Agreement;
(iii) Xxxxxx' s conviction of a crime involving moral turpitude; (iv) any
intentional, grossly negligent, willful or reckless conduct by Xxxxxx toward,
involving or adversely affecting the Company or any of its employees or
affiliates; (v) gross, willful or reckless insubordination toward other officers
or employees of the Company or its affiliates; or (vi) Xxxxxx'x breach of any of
the material provisions of this Agreement. Any such termination shall not be in
limitation of any other right or remedy the Company may have under this
Agreement or in law or in equity. Any termination for cause shall be effective
immediately, unless otherwise specified by the Company, subject to the cure
period, if any.
(b) Xxxxxx'x employment hereunder may be terminated by the Company without
"cause," as defined in this paragraph 11, at any time, with or without notice.
However, if Xxxxxx'x
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employment is terminated without "cause," Xxxxxx shall be entitled to continue
to receive the compensation provided in paragraph 3 for the term of this
Agreement and Xxxxxx'x stock options shall be deemed fully vested. However, in
the event of any such termination without "cause," any and all of the Company's
obligations relating to the payment of compensation under this paragraph 11(b),
but specifically excluding any such obligations relating to Xxxxxx'x stock
options, shall be reduced by amounts actually earned by Xxxxxx during the period
commencing upon such termination and ending upon October 19, 2003. It is
specifically agreed that Xxxxxx shall have no affirmative obligation to seek
employment following any such termination.
(c) If during the term of this Agreement Xxxxxx terminates his employment
due to a material breach of this Agreement by the Company, Xxxxxx shall be
entitled to continue to receive the compensation provided in paragraph 3 for the
term of this Agreement and Xxxxxx'x stock options which are then unvested shall
be deemed vested at a rate of fifty percent (50%). However, in the event of any
such termination without "cause," any and all of the Company's obligations
relating to the payment of compensation under this paragraph 11(c), but
specifically excluding any such obligations relating Xxxxxx'x stock options,
shall be reduced by amounts actually earned by Xxxxxx during the period
commencing upon such termination and ending upon October 19, 2003. It is
specifically agreed that Xxxxxx shall have no affirmative obligation to seek
employment following any such termination.
12. DEATH OF XXXXXX. In the event of Xxxxxx'x death during the term of
Xxxxxx'x employment with the Company, the Company shall pay to Xxxxxx'x estate
the accrued and unpaid portion of Xxxxxx'x specified salary and additional
compensation (including without limitation, Xxxxxx'x vested stock options, car
allowance payments and expense reimbursements), if any.
13. NO CONFLICT WITH PRIOR AGREEMENTS. Xxxxxx represents to the Company
that neither his commencement of employment nor the performance of his duties
hereunder conflicts with any contractual commitment on Xxxxxx'x part to any
third party or violates or interferes with any rights of any third party, and
that he has been so advised by legal counsel.
14. SUSPENSION OF SALARY PAYMENTS UNDER CERTAIN CIRCUMSTANCES.
(a) The salary payments provided for hereunder may be suspended by the
Company, during any material interruption of the Company's business relating to
Xxxxxx'x duties which has been caused by strikes or other causes beyond the
Company's reasonable control; provided, however that (i) said option of the
Company to suspend salary payments may not be exercised unless and until the
above-mentioned material interruption of business has continued for a period of
at least ten (10) consecutive weeks, (ii) such right to suspend salary payments
hereunder shall not be exercised by the Company unless all executives of the
Company of comparable status and position to Xxxxxx, other than equity partners,
also are suspended and, (iii) if any such period of suspension hereunder shall
continue for a period of four (4) weeks or more, either Xxxxxx, on the one hand,
or the Company, on the other hand, shall have the right to elect to terminate
this Agreement by written notice to the other without further liability on the
part of either party, other than the Company's obligations under this Agreement
including, without limitation, to pay Xxxxxx'x salary, car allowance benefits
and business expenses that accrued and were payable to Xxxxxx prior to such
termination; provided, however, that, notwithstanding the foregoing, in the
event of any election by Xxxxxx to terminate this Agreement as provided above,
the Company shall have the right to resume payment of Xxxxxx'x salary within one
week after receipt of such notice of termination by
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Xxxxxx (such resumed payments of salary and benefits to commence retroactively
from and including the date on notice of termination shall have been received by
the Company), and in such case, Xxxxxx'x notice shall be deemed for all purposes
hereunder to be forthwith canceled and rescinded and this Agreement shall
continue in full force and effect as if such notice had not been given; and
provided further, that the Company may not suspend Xxxxxx for the same cause
during the further continuance of the same cause of suspension. If, after
termination of such cause, there is a new occurrence of the same or any other
cause of suspension, the Company may again exercise its rights hereunder. In the
event of any such suspension or suspensions hereunder, the term of this
Agreement shall be extended (unless earlier terminated as provided above) for an
additional period of time equal to the period of such suspension or suspensions
provided that any increase in salary provided for herein shall not be postponed.
All of the provisions of this Agreement not expressly affected by the foregoing
shall remain in full force and effect during any period of suspension hereunder.
Notwithstanding the foregoing, in the event of a suspension of Xxxxxx'x
services, the Company shall immediately: (i) reinstate Xxxxxx if any other
executive of the Company of comparable status and position to Xxxxxx is
reinstated, other than any equity partner; and (ii) recommence payment of
Xxxxxx'x salary and benefits if the Company recommences payment of the salary
and benefits of any other executive of the Company of comparable status and
position to Xxxxxx, other than any equity partner.
(b) During any suspension as provided in this paragraph 14, Xxxxxx may
perform services for other entities, provided that: (i) Xxxxxx shall, within 48
hours, return to his position with the Company if the Company recalls him; and
(ii) Xxxxxx shall not violate any provision in this Agreement, including, but
not limited to, paragraphs 7 and 8, and 10. Nothing in this paragraph 14 shall
be construed to require the Company to provide Xxxxxx with any compensation
during any suspension period.
15. RESOLUTION OF DISPUTES.
(a) Except as provided in subsection (c) below, any controversy or claim
between or among the parties, relating to Xxxxxx'x employment with 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 the obligations imposed by this Agreement. Judgment upon
the arbitration award may be entered in any court having jurisdiction. Xxxxxx
generally waives any rights, claims, demands, obligations, damages, losses and
causes of action against any shareholder, director, officer, agent or employee
of the Company arising from, in connection with or relating to the terms and
conditions of this Agreement or any breach thereof.
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(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. If
required, each party shall advance 50% of any costs of the arbitration required
to be advanced, subject to the right of the 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.
16. ATTORNEY'S FEES. If any legal action, proceeding or arbitration arises
under this Agreement or by reason of any asserted breach of it, the prevailing
party shall be entitled to recover all reasonable, direct, out-of-pocket,
substantiated costs and expenses, including reasonable outside attorney's fees,
incurred in enforcing or attempting to enforce any of the terms, covenants or
conditions, including costs incurred prior to commencement of legal action, and
all reasonable, direct, out-of-pocket, substantiated costs and expenses,
including reasonable outside attorney's fees, incurred in any appeal from an
action brought to enforce any of the terms, covenants or conditions hereof.
17. SEVERABLE PROVISIONS. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
18. COMPLIANCE WITH LAW. Nothing herein contained shall be construed so as
to require the commission of any act contrary to law and wherever there is any
conflict between any provision of this Agreement and any present or future
statute, law, ordinance or regulation, the latter shall prevail, but in such
event the provision of this Agreement affected shall be curtailed and limited
only to the extent necessary to bring it within legal requirements. Without
limiting the generality of the foregoing, in the event any compensation or other
monies payable hereunder shall be in excess of the amount permitted by any
statute, law, ordinance, regulation or wage guideline, which may be in effect at
any time or from time to time, payment of the minimum amount then allowed
thereby shall constitute full compliance by the Company with the payment
requirements of this Agreement, provided that the full unpaid compensation
otherwise due hereunder will be thereafter paid to Xxxxxx if, as, when, and to
the extent permitted by applicable law. The Company shall take any actions
reasonably necessary to facilitate the making of any withheld excess payment, as
permitted by law.
19. ASSIGNMENT. For administrative purposes, the Company may assign this
Agreement or all or any part of the Company's rights hereunder to any entity
that succeeds to a substantial portion of the Company's assets or that the
Company may own substantially, and this Agreement shall inure to the benefit of
such assignee, provided that such assignee shall also have assumed the Company's
obligations. In the event the Company assigns this Agreement to any entity, the
Company shall remain secondarily liable for the rights and benefits of Xxxxxx
under this Agreement, if the assignee fails to make such payments or to comply
with the obligations contained herein.
20. KEY MEN. In the event that both Xxxxxx and Xxxxxxxx leave the Company
and no longer perform services or duties in connection with the Company, in
substantially the same capacity that they currently render services, Xxxxxx
shall have the right to cancel this Agreement for 30 days
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after the identification of their replacement(s). However, if Xxxxxx cancels
this Agreement, as provided in this paragraph 20, he shall not be entitled to
receive any compensation or benefits from the Company, other than the accrued
and unpaid portion of his compensation at the time he cancels the Agreement
(including without limitation, Xxxxxx'x vested stock options, car allowance
payments and expense reimbursements), if any.
21. BASE OF OPERATION. Xxxxxx'x base of operation shall be the Greater Los
Angeles Area. The Company shall not require Xxxxxx to change his place of
residence without his consent.
22. NOTICES. Any notice to be given to the Company under the terms of this
Agreement shall be addressed to the Company at 000 Xxxxx Xxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Legal Department; and any notice to
be given to Xxxxxx shall be addressed to him at his address shown on the
signature page hereof (with a copy to Xxxxxxx Xxxxxxx at Ziffren, Brittenham,
Branca & Xxxxxxx LLP, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx
90067-6406), or at such other address as either party may hereafter designate in
writing to the other. Any such notice shall be deemed to have been duly given on
the date of delivery if personally delivered and two (2) days after mailing if
mailed in a properly sealed and addressed envelope, registered or certified,
return receipt requested, and deposited (postage prepaid) in a post office or
branch post office regularly maintained by the United States government.
23. WAIVER. Either party's failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, or prevent that party thereafter from enforcing each
and every other provision of this Agreement.
24. ENFORCEMENT. The Company and Xxxxxx recognize and acknowledge that
Xxxxxx is hereunder engaged in a position where Xxxxxx will be rendering
personal services of a special, unique, unusual and extraordinary character.
Xxxxxx agrees that the breach by him of this Agreement, including its covenants,
may not reasonably or adequately be compensated in damages in an action at law
and that the Company shall be entitled to seek injunctive relief, which may
include but shall not be limited to restraining Xxxxxx from rendering any
service that would breach this Agreement. However, no remedy conferred by any of
the specific provisions of this Agreement (including this paragraph 24) is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by the Company shall not constitute a
waiver of the right to pursue other available remedies.
25. TITLES AND HEADINGS. The titles and headings of the paragraphs in this
Agreement are for the purpose of reference only and shall in no way limit,
define or otherwise affect the provisions of it.
26. GOVERNING LAW. The parties hereto agree that it is their intention and
covenant that this Agreement and performance under it, and all suits and special
proceedings that may ensue from its breach, be construed in accordance with and
under the laws of the State of California, and that in any action, special
proceeding or other proceeding that may be brought arising out of, or in
connection with, or by reason of this Agreement, the laws of the State of
California shall be applicable and shall govern to the exclusion of the law of
any other forum, without regard to the jurisdiction in which any action or
special proceeding may be instituted.
Page 10
27. BINDING ON SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, personal representatives, permitted
successors and assigns. Provided, however, that Xxxxxx shall not assign this
Agreement or any interest herein, without the written consent of the Company.
28. INTEGRATED AGREEMENT. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements, negotiations and understandings of the parties in connection
therewith.
29. AMENDMENTS. This Agreement may only be amended in writing. No employee
or supervisor of the Company is authorized to alter or vary the terms of this
Agreement except by written agreement by Xxxx Xxxxxx or Xxxxx Xxxxxxxx, the
Co-Chairmen/Co-Chief Executive Officers. Any representations contrary to this
Agreement, express or implied, written or oral, are hereby disclaimed.
Page 11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement at Los
Angeles, California, on the day and year first above written.
COMPANY: XXXXXX:
SPYGLASS ENTERTAINMENT GROUP, L.P.
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- ----------------------------------
By: Xxxx Xxxxxx Xxxxxx Xxxxxx
Its: 000 Xxxxxx Xxxx
------------------------------ Xxxxxxxx, XX 00000
Page 12
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment") is made and
entered into this 1st day of February, 2001, by and between SPYGLASS
ENTERTAINMENT GROUP, L.P., a Delaware limited partnership (the "COMPANY") and
XXXXXX XXXXXX ("XXXXXX").
A. The Company and Xxxxxx are parties that certain Employment Agreement,
dated March 7, 1999, by and between the Company and Xxxxxx, as amended on April
26, 1999 (as amended, the "EMPLOYMENT AGREEMENT").
B. The parties desire to further amend the Employment Agreement as provided
herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. ADDITIONAL BONUS. The Employment Agreement is amended to add Section
3(g), which reads as follows:
"(g) As additional compensation, and subject to the terms of this
Section 3(g), on April 30, 2003 (the "Bonus Date") the Company shall pay
to Xxxxxx a longevity bonus (the "Longevity Bonus") in the amount of One
Million Four Hundred Twenty Five Thousand Dollars ($1,425,000).
Notwithstanding the immediately preceding sentence, if Xxxxxx
voluntarily terminates his employment with the Company at any time prior
to the Bonus Date, the Company shall have no obligation to pay the
Longevity Bonus to Xxxxxx. By way of clarification but not limitation,
if the Company terminates Xxxxxx'x employment, with or without cause, or
if Xxxxxx dies or becomes permanently disabled, at any time prior to the
Bonus Date, the Company's shall remain obligated to pay the Longevity
Bonus to Xxxxxx, or to his executors or administrators or any person or
persons entitled to such amount by bequest or inheritance, on the Bonus
Date, which obligation shall survive termination of Xxxxxx'x employment
and this Agreement."
2. MISCELLANEOUS.
(a) The parties hereto acknowledge and agree that the Employment Agreement,
as expressly amended by this Amendment, shall continue in full force and effect
in accordance with its terms.
(b) The parties hereto agree that it is their intention and covenant that
this Amendment and performance under it, and all suits and special proceedings
that may ensue from its breach, be construed in accordance with and under the
laws of the State of California, and that in any action, special proceeding or
other proceeding that may be brought arising out of, or in connection with, or
by reason of this Amendment, the laws of the State of California shall be
applicable and shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding may
be instituted.
Page 13
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in Los
Angeles, California, as of the day and year first above written.
COMPANY: XXXXXX:
SPYGLASS ENTERTAINMENT GROUP, L.P.
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
---------------------------------- -------------------------------
By: Xxxx Xxxxxx Xxxxxx Xxxxxx
Its:
------------------------------
Page 14
May 2, 2001
Xxxx Xxxxxx/Xxxxx Xxxxxxxx
Spyglass Entertainment Group, LP
Dear Xxxx and Xxxxx:
In conjunction with my relocation to Munich, I would like to confirm the
following:
1. Per Paragraph 21 of my Employment Agreement with Spyglass Entertainment
Group, LP ("Company") dated March 7, 1999, I consent to temporarily change my
base of operations from Greater Los Angeles to Munich.
2. I agree that by virtue of my absence in the Los Angeles office,
individuals in the international and business/legal affairs departments may not
be within my chain of command (as required per Paragraph l(c) of my Employment
Agreement) and that this variance from my Employment Agreement will persist
while my base of operations remains in Munich.
3. As consideration for my consent to the relocation, the Company agrees to
grant me 100,000 stock options priced pursuant to the pricing dictated by the
2001 Employee Stock Option Plan ("Plan") and subject to the terms of such Plan.
4. The Company agrees to indemnify me in the event of any adverse personal
tax consequences resulting from my relocation to Munich, provided that such
consequences are not a result of any extraordinary tax planning on my part, or
my failure to mitigate any such consequences if recommended by my personal tax
advisor.
5. The Company agrees to assume and/or reimburse me for any and all
reasonable travel and living expenses while I am rendering services on behalf of
the Company in Munich (e.g., apartment, car, cell phone, etc.).
6. The Company agrees that Xxxxxx Xxxxxx shall be entitled to round trip
economy class travel to Munich (at the Company's expense) 2 times per year of my
stay in Munich.
Except as modified herein, all provisions of my Employment Agreement shall
remain in full force and effect and may not be modified except by a writing
executed by the parties.
Sincerely,
/S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
ACCEPTED AND AGREED:
Spyglass Entertainment Group, LP
By /S/ XXXX XXXXXX
----------------------------
Xxxx Xxxxxx
Its:
----------------------------
