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EXHIBIT 10.3
EMPLOYMENT AGREEMENT dated
as of January 5, 1998 by
and between XXXXXXX
ENTERTAINMENT, INC., a New
York corporation (the
"Company"), and XXXXXXX
XXXXXX XXXXXX (the
"Executive").
The parties hereto desire to provide for the Executive's continued
employment by the Company in accordance with the terms and provisions set forth
below:
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT; TERM.
The Company will continue to employ the Executive, and the
Executive will continue to work for the Company, as Executive Vice President of
the Company until November 30, 1998 unless sooner terminated in accordance with
Section 7 hereof. Such period, together with the period of any extension or
renewal of such employment, is referred to herein as the "Employment Period."
2. DUTIES.
During the Employment Period, the Executive shall serve as the
Executive Vice President of the Company and of its subsidiaries and affiliated
companies, and perform such further duties as shall, from time to time, be
reasonably delegated or assigned to the Executive by the Board of Directors
consistent with her office.
3. DEVOTION OF TIME.
During the Employment Period, the Executive shall: (i) expend
all of her working time for not less then three days per work week for the
Company; (ii) devote her best efforts, energy and skill to the services of the
Company and the promotion of its interests; and (iii) not take part in
activities known by the Executive to be detrimental to the best interests of the
Company.
4. COMPENSATION.
4.1 In consideration for the services to be performed by the
Executive during the Employment Period hereunder, the
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Company shall compensate the Executive with a base salary of $165,000 per annum,
at the rate of $13,750.00 per month.
4.2 In addition to the annual base salary payable to the
Executive pursuant to the provisions of Section 4.1 hereof, the Executive is
also entitled to bonus compensation with respect to any fiscal year, in the
event that the Company achieves pre-tax earnings of $10,000,000 or more for any
such fiscal year, equal to a percentage of such pre-tax earnings, as determined
by the Compensation Committee of the Company's Board of Directors; provided that
the aggregate amount of bonus compensation payable to the Executive, Xxxxxxx X.
Xxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxx X. Xxxxxx (if Xx. Xxxxxx is
employed by the Company on a full-time basis during such fiscal year) for any
fiscal year shall not exceed five percent (5%) of the Company's pre-tax earnings
for such fiscal year. For the purposes of this Agreement, "pre-tax earnings"
shall be determined by the Company's independent certified public accountants in
accordance with generally accepted accounting principles consistently applied.
5. REIMBURSEMENT OF EXPENSES; ADDITIONAL BENEFITS.
5.1 The Company shall pay directly, or reimburse the Executive
for, all other reasonable and necessary expenses and disbursements incurred by
her for and on behalf of the Company in the performance of her duties under this
Agreement. For such purposes, the Executive shall submit to the Company itemized
reports of such expenses in accordance with the Company's policies.
5.2 The Executive shall be entitled to paid vacations during
the Employment Period in accordance with the Company's then prevalent practices
for executive employees; provided, however, that the Executive shall be entitled
to such paid vacations for not less than four (4) weeks per annum.
5.3 The Executive shall be entitled to participate in, and to
receive benefits under, any employee benefit plans of the Company (including,
without limitation, pension, profit sharing, group life insurance and group
medical insurance plans) as may exist from time to time for its executive
employees.
6. RESTRICTIVE COVENANT.
6.1 During the Employment Period and thereafter, the Executive shall
not reveal, divulge or make known to any person, firm, corporation or other
business organization, and shall not directly or indirectly use for her own
benefit, or for the benefit of anyone else, any secret or confidential
information used by the Company in its business, including, without
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limitation, (i) pricing information, (ii) the terms of the Company's existing
contracts with suppliers, service bureaus or vendors (iii) any information
pertaining to the Company's customers and their requirements and (iv) any other
of the Company's trade secrets, all of which shall be collectively referred to
hereafter as the "Confidential Information."
6.2 The services of the Executive are unique, extraordinary
and essential to the business of the Company, particularly in view of the
Executive's access to the Confidential Information. Accordingly, the Executive
agrees that she will not at any time during the Employment Period and for a
period of two (2) years thereafter, without the prior written approval of the
Board of Directors of the Company, directly or indirectly, engage in any
business activity competitive with the business of the Company. For the purposes
of this Agreement any business which provides telephone entertainment services
of the type provided by the Company or which the Company is considering or has
in the past twelve months considered to provide, or markets and operates
membership clubs pertaining to astrology, psychics, diet services, personals or
any other subject matter with which the Company is then actively engaged in or
had been engaged in during the preceding twelve months, will constitute a
business activity competitive with the business of the Company. Furthermore, the
Executive agrees that, during such period, she shall not solicit, directly or
indirectly, or affect to the Company's detriment any relationship of the Company
with any customer, supplier, service bureau, vendor or employee of the Company
or cause any customer, supplier, service bureau or vendor to refrain from
entrusting additional business to the Company.
6.3 In the event that any of the provisions of Sections 6.1
and 6.2 hereof shall be adjudicated to exceed the time, geographic or other
limitations permitted by applicable law in any jurisdiction, then such provision
shall be deemed reformed in any such jurisdiction to the maximum time,
geographic or other limitations permitted by applicable law.
6.4 As used in this Section 6, the term "Company" shall mean
and include any and all corporations affiliated with the Company, which either
now exist or which may hereafter be organized.
6.5 The Executive hereby acknowledges and agrees that, in the
event she shall violate any provisions of this Section 6 the Company will be
without an adequate remedy at law and accordingly, will be entitled to enforce
such restrictions by temporary or permanent injunctive or mandatory relief
obtained in any action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies which it may have at law or in equity.
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7. EARLIER TERMINATION.
7.1 The Executive's employment hereunder shall automatically
be terminated upon the death of the Executive or the Executive's voluntarily
leaving the employ of the Company and, in addition, may be terminated, at the
sole discretion of the Company, as follows:
(a) Upon thirty (30) days' prior written notice
by the Company, in the event of the Executive's disability as set
forth in Section 7.2 below; or
(b) Upon thirty (30) days' prior written notice
by the Company, in the event that the Company terminates the Executive's
employment hereunder for cause as set forth in Section 7.3 below.
7.2 The Executive shall be deemed disabled hereunder, if in
the opinion of the Board of Directors of the Company, as confirmed by competent
medical advice, she shall become physically or mentally unable to perform her
duties for the Company hereunder and such incapacity shall have continued for
any period of six (6) consecutive months.
7.3 For purposes hereof, "cause" shall include, but not be
limited to, the following: (a) the Executive's willful malfeasance or gross
negligence; (b) any material misrepresentation or concealment of a material fact
made by the Executive in connection with this Agreement; or (c) the material
breach of any covenant made by the Executive hereunder, and the Executive's
failure to cure such conduct or event constituting "cause" within 30 days after
written notice thereof.
7.4 In the event that this Agreement shall be terminated due
to the Executive's death or disability, then the Company shall pay to the
Executive or her personal representatives, as the case may be, severance pay in
a lump sum amount equal to her then current annual base salary, as set forth in
Section 4 hereof, for a period of twelve months from the date of such
termination. If, however, this Agreement shall be terminated for any other
reason whatsoever, then the Company shall not be obligated to make any severance
payments whatsoever to the Executive hereunder, except for the compensation set
forth in Section 4 hereof which shall have accrued but be unpaid at the
effective time of termination.
8. NO REQUIREMENT OF RELOCATION.
The Company expressly agrees that the Executive, as a
condition of her employment, need not relocate her residence from the community
in which she presently resides. Any demand or requirement by the Company that
the Executive principally perform
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her duties at a location or office that requires more than an additional hour of
one-way commutation time than the Executive currently experiences shall, in the
absence of the Executive's consent (which may be withheld for any reason),
constitute a termination without cause by the Company of the Executive's
employment hereunder.
9. SERVICE AS DIRECTOR.
During the Employment Period, the Executive shall, if elected
or appointed, serve as a Director of the Company and/or any subsidiary of the
Company upon such terms as shall be mutually agreed upon by the Executive and
the Company.
10. ASSIGNMENT.
This Agreement, as it relates to the employment of the
Executive, is a personal contract and the rights and interests of the Executive
hereunder may not be sold, transferred, assigned, pledged or hypothecated,
except as otherwise set forth herein. This Agreement shall inure to the benefit
of and be binding upon the Company and its successors and assigns, including
without limitation, any corporation or other entity into which the Company is
merged or which acquires all of the outstanding shares of the Company's capital
stock, or all or substantially all of the assets of the Company.
11. RIGHT TO PAYMENTS.
The Executive shall not under any circumstances have any
option or right to require payments hereunder otherwise than in accordance with
the terms hereof. To the extent permitted by law, the Executive shall not have
any power of anticipation, alienation or assignment of payments contemplated
hereunder, and all rights and benefits of the Executive shall be for the sole
personal benefit of the Executive, and no other person shall acquire any right,
title or interest hereunder by reason of any sale, assignment, transfer, claim
or judgment or bankruptcy proceedings against the Executive.
12. NOTICES.
Any notice required or permitted to be given pursuant to this
Agreement shall be deemed given one (1) business day after personally delivered
or delivered by a nationally recognized overnight courier or three (3) business
days after such notice is mailed by certified mail, return receipt requested,
addressed as follows: (i) if to Executive, at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx,
Xxx Xxxx 00000 and (ii) if to the Company, at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx,
Xxx Xxxx 00000, Attention: Chief Financial Officer or at such other address as
any such party shall designate by written notice to the other
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party. Copies of all notices shall also be provided to Feder, Kaszovitz,
Isaacson, Weber, Xxxxx & Bass LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000.
13. GOVERNING LAW.
This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of New York.
14. WAIVER.
The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and not in any way affect or render invalid or
unenforceable any other provisions of this Agreement, and this Agreement shall
be carried out as if such invalid or unenforceable provisions were not embodied
therein.
15. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and there are no
representations, warranties or commitments except as set forth herein. This
Agreement supersedes any other prior and contemporaneous agreements,
understandings, negotiations and discussions, whether written or oral, of the
parties hereto relating to the transactions contemplated by this Agreement;
provided, however, that it is the intention of the parties that this Agreement
shall be interpreted and applied in conjunction with the terms of any option,
warrant or other right now in existence or hereinafter granted to the Executive
to acquire shares of capital stock of the Company. In the event of any conflict,
however, the terms of this Agreement shall govern and prevail. This Agreement
may be amended only in a writing executed by the parties hereto affected by such
amendment.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
XXXXXXX ENTERTAINMENT, INC.
By:
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Xxxxxxx X. Xxxxxxxx
Chairman and CEO
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XXXXXXX XXXXXX XXXXXX
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