EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") shall be deemed dated as of January 1,
1999, and is entered into by and between Four Media Company, a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx ("Executive").
INTRODUCTION
A. The Company and its operating subsidiaries ("Affiliates") are engaged
in the business of providing technical and creative services to the
entertainment industry. The Company desires to employ Executive, and Executive
desires to accept such employment, under the terms and conditions set forth
herein.
B. The term "Stock Purchase Agreement" shall mean that certain stock
purchase agreement dated January 18, 1999 pursuant to which the Company has
agreed to sell and an investor has agreed to purchase 6,582,607 shares of the
Company's common stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
EMPLOYMENT; TERM; DUTIES
1.1 Employment. Upon the terms and conditions hereinafter set forth, the
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Company hereby employs Executive, and Executive hereby accepts employment, as
President and Chief Administrative Officer of the Company.
1.2 Term. Subject to Article IV below, Executive's employment hereunder
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shall be for a term of five (5) years commencing on the date hereof and expiring
at the close of business on the day prior to the fifth anniversary of the date
hereof (the "Term").
1.3 Duties. During the Term, Executive shall perform such executive
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duties for the Company and/or its Affiliates, consistent with his position
hereunder, as may be assigned to him from time to time by the Board of Directors
of the Company (the "Board"). Executive shall devote his entire productive
business time, attention and energies to the performance of his duties
hereunder. Executive shall use his best efforts to advance the interests and
business of the Company and its Affiliates. Executive shall abide by all rules,
regulations and policies of the Company, as may be in effect from time to time.
Notwithstanding the foregoing, Executive may act for his own account in passive-
type investments as provided in Section 5.3, or, with the
consent of the Board, as a member of other boards of directors, where the time
allocated for those activities does not materially interfere with or create a
conflict of interest with the discharge of his duties for the Company.
1.4 Reporting. Executive shall report directly to the Chief Executive
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Officer of the Company.
1.5 Exclusive Agreement. Executive represents and warrants to the Company
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that there are no agreements or arrangements, whether written or oral, in effect
which would prevent Executive from rendering his exclusive services to the
Company during the Term.
ARTICLE II
COMPENSATION
2.1 Compensation. For all services rendered by Executive hereunder and
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all covenants and conditions undertaken by him pursuant to this Agreement, the
Company shall pay, and Executive shall accept, as full compensation, the amounts
set forth in this Article II.
2.2 Base Salary. The base salary shall be an annual salary of $350,000
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("Base Salary"), payable by the Company in accordance with the Company's normal
payroll practices applicable to senior executives but no less frequently than
monthly. The Base Salary shall be reviewed no less frequently than annually
during the Term for increase in the discretion of the Board. The Base Salary
shall not be decreased at any time, or for any purpose, during the Term without
Executive's prior written consent.
2.3 Annual Incentive Bonus. In addition to the Base Salary, Executive
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shall participate in an incentive bonus plan to be established and administered
by the Compensation Committee of the Board. The criteria on which awards under
such plan are based shall be set by the Board or the Compensation Committee of
the Board.
2.4 Deductions. The Company shall deduct from the compensation described
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in Sections 2.2 and 2.3 any federal, state or local withholding taxes, social
security contributions and any other amounts which may be required to be
deducted or withheld by the Company pursuant to any federal, state or local
laws, rules or regulations.
2.5 Disability Adjustment. Any compensation otherwise payable to
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Executive pursuant to Sections 2.2 and 2.3 in respect of any period during which
Executive is disabled (as contemplated in Section 4.4) shall be reduced by any
amounts payable to Executive for loss of earnings or the like under any
insurance plan or policy sponsored by the Company.
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ARTICLE III
BENEFITS; EXPENSES
3.1 Benefits. During the Term, Executive shall be entitled to participate
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in such group life, health, accident, disability or hospitalization insurance
plans, pension plans and retirement plans as the Company may make available to
its other senior executive employees as a group, subject to the terms and
conditions of any such plans. Executive's participation in all such plans shall
be at a level, and on terms and conditions, that are commensurate with his
positions and responsibilities at the Company. During the Term, no perquisite
or special benefit made available to Executive as a senior executive of the
Company shall be materially reduced without his prior written consent.
3.2 Expenses. The Company agrees that Executive is authorized to incur
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reasonable expenses in the performance of his duties hereunder and in promoting
the business of the Company. The Company shall from time to time pay or
reimburse Executive for the reasonable and necessary expenses incurred by
Executive in connection with the performance of his duties hereunder if such
expenses have been previously approved by the Company or if reimbursement is
otherwise appropriate in accordance with the Company's established policies and
if the Company receives such verification thereof as the Company may require in
order to qualify such expenses as deductible business expenses.
3.3 Vacation. Executive shall accrue, on a daily basis, a total of four
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(4) work weeks of vacation per year following the date of this Agreement. If
Executive's earned but unused vacation time reaches six (6) work weeks,
Executive will not continue to accrue additional vacation time until he uses
enough vacation to fall below this maximum amount. Thereafter, Executive will
start earning vacation benefits again until the six (6) work week maximum is
again reached. Any accrued but unused vacation time will be paid to Executive
on a pro rata basis at termination of employment.
3.4 Key Man Insurance. The Company may secure in its own name or
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otherwise, and at its own expense, life, health, accident and other insurance
covering Executive alone or with others, and Executive shall not have any right,
title or interest in or to such insurance other than as expressly provided
herein. Executive agrees to assist the Company in procuring such insurance by
submitting to the usual and customary medical and other examinations to be
conducted by such physicians as the Company or such insurance company may
designate and by signing such applications and other written instruments as may
be required by the insurance companies to which application is made for such
insurance. Executive's failure to submit to such usual and customary medical and
other examinations shall be deemed a material breach of this Agreement.
3.5 Initial Stock Option Grant. Effective as of the date hereof, the
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Company shall grant Executive an option (the "Option") to purchase 500,000
shares of the Company's common stock, par value $.01 per share (the "Common
Stock"), at an exercise price of $8.00 per share
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pursuant to the Company's current stock option plan. To the extent not
inconsistent with the terms of this Agreement, the Option shall be subject to
the terms of a stock option agreement in substantially the form attached hereto
as Exhibit A (the "Option Agreement").
The Option shall become exercisable on a cumulative basis as follows,
provided that Executive continues in the employment of the Company through the
applicable vesting date(s):
(a) twenty percent (20%) of the shares covered by the Option shall
become exercisable on the first anniversary of the date of grant;
(b) twenty percent (20%) of the shares covered by the Option shall
become exercisable on the second anniversary of the date of grant;
(c) twenty percent (20%) of the shares covered by the Option shall
become exercisable on the third anniversary of the date of grant;
(d) twenty percent (20%) of the shares covered by the Option shall
become exercisable on the fourth anniversary of the date of grant; and
(e) twenty percent (20%) of the shares covered by the Option shall
become exercisable on the fifth anniversary of the date of grant.
Notwithstanding the foregoing, all shares covered by the Option shall vest
and become exercisable upon the occurrence of any of the following events: (i) a
Termination Without Cause (as defined below), (ii) a Termination With Good
Reason (as defined below), (iii) a Change in Control (as defined below) of the
Company, or (iv) a termination due to death or disability in accordance with
Section 4.4.
In the event that Executive incurs a termination of employment for any
reason other than a Termination With Cause or a resignation without Good Reason
prior to the expiration of the Term, any portion of the Option that has become
vested on or before the date of such termination (including without limitation,
any portion that becomes exercisable due to such termination) shall remain
exercisable for 365 days following the date of such termination. In the event
that Executive incurs a Termination With Cause or in the event Executive resigns
without Good Reason prior to the expiration of the Term, any portion of the
Option that has become vested on or before the date of such termination
(including without limitation, any portion that becomes exercisable due to such
termination) shall remain exercisable for ninety (90) days following the date of
such termination. Following the natural expiration of the Term of this
Agreement, Executive shall have 180 days following the last day of employment
with the Company to exercise the Options; provided, however, that
notwithstanding the foregoing, the Options shall terminate on December 31, 2008,
if not already expired.
For the purposes of this Agreement, a "Change in Control" of the Company
shall be deemed to have occurred upon the happening of any one of the following
events:
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(i) the acquisition by any Person (as defined below) of Beneficial
Ownership (as defined below) of fifty percent (50%) or more of
the combined voting power of the then outstanding voting
securities of the Company. For purpose of this Agreement, (A)
the term "Person" shall have the meaning set forth in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include (I) the
Company or any of its subsidiaries, (II) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its Affiliates (as defined in Rule 12b-2
promulgated under Section 12 of the Exchange Act), (III) an
underwriter temporarily holding securities pursuant to an
offering of such securities, (IV) a corporation owned, directly
or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company; or (V) any investment fund or other entity or
group of such funds or entities which control, are controlled
by, or are under common control with, X.X. Xxxxxxx, Xxxxxx &
Co., LLC (collectively "Warburg").
(ii) the consummation by the Company of a reorganization, merger,
consolidation, (in each case, with respect to which persons who
were the stockholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately
thereafter, own more than fifty percent (50%) of the combined
voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's
then outstanding voting securities) or a liquidation or
dissolution of the Company or the sale of all or substantially
all of the assets of the Company; or
(iii) the consummation by the Company of a Rule 13e-3 transaction (as
such term is defined under Rule 13c-3 of the Exchange Act) or a
transaction which otherwise results in the Company's Common
Stock ceasing to be required to be registered under the Exchange
Act;
provided, however, that, notwithstanding the foregoing, with respect to the
purchase by "Purchaser" (as such term is defined in the Stock Purchase
Agreement) of shares of the Company's Common Stock, pursuant to that certain
Securities Purchase Agreement by and between the Company and Purchaser, that
certain Stock Purchase Agreement by and between Purchaser, Technical Service
Partners, and Xxxxxx X. Xxxxxxx, and that certain Stock Purchase Agreement by
and between Purchaser and Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxxxx, and
the estate of Xxxx Xxxxx (collectively, the "Purchase Agreements"), the
following provisions shall apply: (a) the signing of the Purchase Agreements
shall not constitute a Change of Control for purposes of this Agreement, (b) the
approval by the Board or the Company's shareholders of the transactions
contemplated by the Purchase Agreements shall not constitute a Change in Control
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for purposes of this Agreement, and (c) the closing of the transactions
contemplated by the Purchase Agreements shall not constitute a Change of
Control. Notwithstanding anything to the contrary set forth in Section 3.5 so
long as Warburg is the single largest holder of the Company's outstanding voting
securities, no "Change of Control" shall be deemed to have occurred.
3.6 Other Long-Term Incentives. Executive shall be eligible for
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other or additional long-term incentives in the discretion of the Board,
including without limitation additional stock option grants. Such incentive
awards shall be at a level, and on terms and conditions, that are commensurate
with his positions and responsibilities at the Company and appropriate in light
of corresponding awards to other senior executives of the Company.
3.7 Perquisites. During the Term, Executive shall participate in all
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fringe benefits and perquisites available to senior executives of the Company at
levels, and on terms and conditions, that are commensurate with his positions
and responsibilities at the Company, including, without limitation, first-class
travel accommodations on all commercial carriers for travel related to the
business of the Company, and shall receive such additional fringe benefits and
perquisites as the Company may, in its discretion, from time-to-time provide.
ARTICLE IV
TERMINATION; DEATH; DISABILITY
4.1 Termination of Employment With Cause. In addition to any other
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remedies available to the Company at law, in equity or as set forth in this
Agreement, the Company shall have the right, upon written notice to Executive,
to terminate his employment hereunder without any further liability or
obligation to him in respect of his employment (other than its obligation to pay
Base Salary accrued but unpaid as of the date of termination) if Executive: (a)
breaches any material provision of this Agreement; or (b) has committed an act
of gross misconduct in connection with the performance of his duties hereunder,
as determined in good faith by the Board; or (c) demonstrates habitual
negligence in the performance of his duties, as determined by the Board; or (d)
is convicted of or pleads nolo contendere to any misdemeanor involving moral
turpitude or to any felony; or (e) has committed any act of fraud,
misappropriation of funds or embezzlement in connection with his employment
hereunder (a "Termination With Cause").
Notwithstanding the foregoing, no purported Termination With Cause
pursuant to (a), (b) or (c) of this Section 4.1 shall be effective unless all of
the following provisions shall have been complied with: (i) Executive shall be
given written notice by the Board of the intention to effect a Termination With
Cause, such notice (A) to state in detail the particular circumstances that
constitute the grounds on which the proposed Termination With Cause is based and
(B) to be given no later than 180 days after the Board first learns of such
circumstances; (ii) Executive shall have 15 days after receiving such notice in
which to cure such grounds, to the extent such cure is possible; (iii) if
Executive fails to cure such grounds, he shall then be entitled to a hearing
before the Board, such hearing to be held within 20 days of his receiving such
notice, provided that he requests such hearing within 15 days of receiving such
notice; and (iv) if, within five days
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following such hearing, the Board gives written notice to Executive confirming
that, in the judgment of at least a majority of the members of the Board,
grounds for the Termination With Cause set forth in the original notice exist,
he shall thereupon incur a Termination With Cause.
4.2 Termination of Employment Without Cause. During the Term, the
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Company may at any time, in its sole discretion, terminate the employment of
Executive hereunder for reasons other than those set forth in Section 4.1 (a
"Termination Without Cause") by written notice to him. In such event, the
Company shall pay Executive an amount equal to the sum of the following:
(a) any Base Salary accrued but unpaid as of the date of
termination;
(b) an amount equal to Executive's monthly Base Salary in effect
on the date of termination for the remainder of the Term, payable as
and when such amounts would have been due and payable hereunder had
such termination not occurred (the "Severance Period"); and
(c) any reimbursement for expenses incurred in accordance with
Section 3.2.
In addition, the Company shall use its best efforts to arrange for the
continuation, through the Severance Period, of such health and/or medical
benefits or plans as are in effect with respect to Executive as of the date of
termination, if and only if permissible under such plans, such benefits and
plans to be continued on the same terms and conditions as were in effect with
respect to Executive as of the date of termination. If not so permissible, the
Company shall pay to Executive an amount sufficient to enable Executive to
arrange for substantially equivalent health and/or medical coverage during the
Severance Period.
Executive acknowledges that the payments and benefits referred to in
this Section 4.2, together with any rights or benefits under any written plan or
agreement which have vested on or prior to the termination date of Executive's
employment under this Section 4.2, constitute the only payments to which
Executive shall be entitled to receive from the Company hereunder in the event
of any termination of his employment pursuant to this Section 4.2, and that
except for such payments or benefits the Company shall have no further liability
or obligation to him hereunder or otherwise in respect of his employment.
4.3 Termination of Employment With Good Reason. In addition to any
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other remedies available to Executive at law, in equity or as set forth in this
Agreement, Executive shall have the right, upon written notice to the Company,
to terminate his employment hereunder upon the occurrence of any of the
following events without the prior written consent of Executive, unless the
Company shall have fully cured all grounds for such termination within 15 days
after Executive gives notice thereof: (a) a material diminution in Executive's
duties or the assignment to Executive of duties that are materially inconsistent
with or materially impair his ability to perform the duties set forth herein; or
(b) a material reduction in Executive's then current Base Salary; or (c) the
relocation by the Company of Executive's principal place of
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employment to a location more than 50 miles from such principal place of
employment; or (d) a breach by the Company of any material provision of this
Agreement (a "Termination With Good Reason").
In the event that a Termination With Good Reason occurs, Executive
shall have the same entitlements to the amounts and benefits as provided under
Section 4.2 for a Termination Without Cause.
Executive acknowledges that the payments and benefits referred to in
this Section 4.3, together with any rights or benefits under any written plan or
agreement which have vested on or prior to the termination date of Executive's
employment under this Section 4.3, constitute the only payments to which
Executive shall be entitled to receive from the Company hereunder in the event
of any termination of his employment pursuant to this Section 4.3, and that
except for such payments or benefits the Company shall have no further liability
or obligation to him hereunder or otherwise in respect of his employment.
4.4 Death; Disability. In the event that Executive dies or becomes
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Disabled (as defined herein), Executive's employment shall terminate when such
death or Disability occurs and the Company shall pay Executive (or his legal
representative, as the case may be) as follows:
(a) any Base Salary accrued but unpaid as of the date of death or
termination for Disability;
(b) any reimbursement for expenses incurred in accordance with
Section 3.2.; and
(c) an amount equal to Executive's monthly Base Salary in effect
on such termination date for the lesser of (i) six (6) months or (ii)
the remainder of the Term, payable as and when such amounts would have
been due and payable hereunder had such termination not occurred. The
monthly Base Salary with respect to any period during which Executive
is Disabled shall be reduced by amounts payable to him under any
insurance plan sponsored by the Company, provided that Executive's
aggregate compensation during the period of Disability shall be equal
to 100% of his monthly Base Salary then in effect.
For the purposes of this Agreement, Executive shall be deemed to be
"Disabled" or have a "Disability" if, because of Executive's physical or mental
disability, (a) he has been substantially unable to perform his duties
hereunder for 180 consecutive days, and (b) he has utilized any and all benefits
available to him under state and federal laws and is either (i) unable to
reasonably and effectively carry out his duties with reasonable accommodations
by the Company or (ii) unable to reasonably and effectively carry out his duties
because any reasonable accommodation which may be required would cause the
Company undue hardship. In the event of a disagreement concerning Executive's
perceived Disability, Executive shall submit to such examinations as are deemed
appropriate by three practicing physicians specializing in the area of
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Executive's Disability, one selected by Executive, one selected by the Company,
and one selected by both such physicians. The majority decision of such three
physicians shall be final and binding on the parties. Nothing in this paragraph
is intended to limit the Company's right to invoke the provisions of this
paragraph with respect to any perceived Disability of Executive.
Executive acknowledges that the payments referred to in this Section
4.4, together with any rights or benefits under any written plan or agreement
which have vested on or prior to the termination date of Executive's employment
under this Section 4.4, constitute the only payments to which Executive (or his
legal representative, as the case may be) shall be entitled to receive from the
Company hereunder in the event of a termination of his employment for death or
Disability, and that except for such payments the Company shall have no further
liability or obligation to him (or his legal representatives, as the case may
be) hereunder or otherwise in respect of his employment.
4.5 No Mitigation by Executive; No Offset by Company. Except as
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otherwise expressly provided herein, Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for herein
be reduced by any compensation earned by Executive as the result of employment
by another employer; provided, however, that if Executive becomes employed with
another employer and is eligible to receive health and/or medical benefits under
such other employer's plans, Executive's continued benefits and/or plan coverage
as set forth in Section 4.2 or 4.3, as the case may be, shall be reduced to the
extent that comparable benefits and/or coverage is provided under such other
employer's plans.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others, provided that
nothing herein shall preclude the Company from separately pursuing recovery from
Executive based on any such claim.
4.6 Continued Compliance. Executive and the Company hereby
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acknowledge that the amounts or benefits payable by the Company under Sections
4.2(b), 4.3, and 4.4(c) are part of the consideration for Executive's
undertakings under Article V below. Such amounts and benefits are subject to
Executive's continued compliance with the provisions of Article V. If Executive
violates the provisions of Article V, then the Company will have no obligation
to make any of the payments that remain payable by the Company under Sections
4.2(b), 4.3, and 4.4(c) on or after the date of such violation.
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ARTICLE V
OWNERSHIP OF PROCEEDS OF EMPLOYMENT;
NON-DISCLOSURE; NON-COMPETITION
5.1 Ownership of Proceeds of Employment. The Company shall be the
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sole and exclusive owner throughout the universe in perpetuity of all of the
results and proceeds of Executive's services, work and labor during the Term in
connection with Executive's employment by the Company, free and clear of any and
all claims, liens or encumbrances. All results and proceeds of Executive's
services, work and labor during the Term shall be deemed to be works-made-for-
hire for the Company within the meaning of the copyright laws of the United
States and the Company shall be deemed to be the sole author thereof in all
territories and for all purposes.
5.2 Non-Disclosure of Confidential Information. As used herein,
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"Confidential Information" means any and all information affecting or relating
to the business of the Company and its Affiliates, including without limitation,
financial data, customer lists and data, licensing arrangements, business
strategies, pricing information, product development, intellectual, artistic,
literary, dramatic or musical rights, works, or other materials of any kind or
nature (whether or not entitled to protection under applicable copyright laws,
or reduced to or embodied in any medium or tangible form), including without
limitation, all copyrights, patents, trademarks, service marks, trade secrets,
contract rights, titles, themes, stories, treatments, ideas, concepts,
technologies, art work, logos, hardware, software, and may be embodied in any
and all computer programs, tapes, diskettes, disks, mailing lists, lists of
actual or prospective customers and/or suppliers, notebooks, documents,
memoranda, reports, files, correspondence, charts, lists and all other written,
printed or otherwise recorded material of any kind whatsoever and any other
information, whether or not reduced to writing, including "know-how", ideas,
concepts, research, processes, and plans. "Confidential Information" does not
include information that is in the public domain, information that is generally
known in the trade, or information that Executive can prove he acquired wholly
independently of his employment with the Company. Executive shall not, at any
time during the Term or thereafter, directly or indirectly, disclose or furnish
to any other person, firm or corporation any Confidential Information, except in
the course of the proper performance of his duties hereunder or as required by
law (in which event Executive shall give prior written notice to Company and
shall cooperate with Company and Company's counsel in complying with such legal
requirements). Promptly upon the expiration or termination of Executive's
employment hereunder for any reason or whenever the Company so requests,
Executive shall surrender to the Company all documents, drawings, work papers,
lists, memoranda, records and other data (including all copies) constituting or
pertaining in any way to any of the Confidential Information.
5.3 Non-Competition. For so long as he is entitled to compensation
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under or pursuant to this Agreement (whether or not he is actively employed by
the Company hereunder), Executive shall not, except with the prior written
consent of the Company, directly or indirectly: (a) compete with the Company; or
(b) be interested in, employed by, engaged in or participate in
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the ownership, management, operation or control of, or act in any advisory or
other capacity for, any Competing Entity which conducts its business within the
Territory (as such terms are hereinafter defined); provided, however, that
notwithstanding the foregoing, Executive may make solely passive investments in
any Competing Entity the common stock of which is "publicly held," and of which
Executive shall not own or control, directly or indirectly, in the aggregate
securities which constitute more than one (1%) percent of the voting rights or
equity ownership of such Competing Entity; or (c) solicit or divert any business
or any customer from the Company or assist any person, firm or corporation in
doing so or attempting to do so; or (d) cause or seek to cause any person, firm
or corporation to refrain from dealing or doing business with the Company or
assist any person, firm or corporation in doing so or attempting to do so.
For purposes of this Section 5.3, (i) the term "Competing Entity"
shall mean any entity which presently or during the period referred to above
engages in any business activity the Company is then engaged in or proposes to
be engaged in; and (ii) the term "Territory" shall mean any geographic area in
which the Company conducts business during such period.
5.4 Non-Solicitation. Executive shall not, for a period of two (2)
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years from the date of any termination or expiration of his employment
hereunder, directly or indirectly: (a) solicit or hire, or attempt to solicit
or hire, any employee of the Company, or assist any person, firm or corporation
in doing so or attempting to do so; or (b) plan for, acquire any financial
interest in or perform any services for himself or any other entity in
connection with a business in which Executive's interest, duties or activities
would inherently require Executive to reveal any Confidential Information; or
(c) solicit or cause to be solicited the disclosure of or disclose any
Confidential Information for any purpose whatsoever or for any other party.
5.5 Breach of Provisions. In the event that Executive shall breach
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any of the provisions of this Article V, or in the event that any such breach is
threatened by Executive, in addition to and without limiting or waiving any
other remedies available to the Company at law or in equity, the Company shall
be entitled to immediate injunctive relief in any court, domestic or foreign,
having the capacity to grant such relief, without the necessity of posting a
bond, to restrain any such breach or threatened breach and to enforce the
provisions of this Article V. Executive acknowledges and agrees that there is no
adequate remedy at law for any such breach or threatened breach and, in the
event that any action or proceeding is brought seeking injunctive relief,
Executive shall not use as a defense thereto that there is an adequate remedy at
law.
5.6 Reasonable Restrictions. The parties acknowledge that the
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foregoing restrictions, the duration and the territorial scope thereof as set
forth in this Article V, are under all of the circumstances reasonable and
necessary for the protection of the Company and its business.
5.7 Definition. For purposes of this Article V, the term "Company"
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shall be deemed to include any subsidiary of, affiliate of, predecessor to, or
successor of the Company.
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ARTICLE VI
MISCELLANEOUS
6.1 Binding Effect. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto and their respective legal representatives,
heirs, distributees, successors and assigns; provided that the rights and
obligations of Executive hereunder shall not be assignable by him.
6.2 Notices. Any notice provided for herein shall be in writing and
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shall be deemed to have been given or made when personally delivered or three
(3) days following deposit for mailing by first class registered or certified
mail, return receipt requested, or if delivered by facsimile transmission, upon
confirmation of receipt of the transmission, to the address of the other party
set forth below or to such other address as may be specified by notice given in
accordance with this Section 6.2:
(a) If to the Company:
Four Media Company
_______________________________
_______________________________
_______________________________
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
(b) If to Executive:
Xx. Xxxx Xxxxxxxxx
_______________________________
_______________________________
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With a copy to:
_______________________________
_______________________________
_______________________________
_______________________________
Fax No.:
6.3 Severability. If any provision of this Agreement, or portion
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thereof, shall be held invalid or unenforceable by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision or portion thereof, and shall not in any manner affect or render
invalid or unenforceable any other provision of this Agreement or portion
thereof, and this Agreement shall be carried out as if any such invalid or
unenforceable provision or portion thereof were not contained herein. In
addition, any such invalid or unenforceable provision or portion thereof shall
be deemed, without further action on the part of the parties hereto, modified,
amended or limited to the extent necessary to render the same valid and
enforceable.
6.4 Confidentiality. The parties hereto agree that they will not,
---------------
during the Term or thereafter, disclose to any other person or entity the terms
or conditions of this Agreement (excluding the financial terms hereof) without
the prior written consent of the other party or as required by law, regulatory
authority or as necessary for either party to obtain personal loans or
financing. Approval of the Company and of Executive shall be required with
respect to any press releases regarding this Agreement and the activities of
Executive contemplated hereunder.
6.5 Arbitration. Any controversy, claim or dispute arising out of or
-----------
in any way relating to this Agreement, the alleged breach thereof, and/or
Executive's employment with the Company or termination therefrom, including
without limitation, any and all claims for employment discrimination or
harassment, shall be determined by binding arbitration administered by the
American Arbitration Association under its National Rules for Resolution of
Employment Disputes ("Rules") which are in effect at the time of the arbitration
or the demand therefor. The Rules are hereby incorporated by reference.
California Code of Civil Procedure (S)1283.05, which provides for certain
discovery rights, shall apply to any such arbitration, and said code section is
also hereby incorporated by reference. In reaching a decision, the arbitrator
shall have no authority to change, extend, modify or suspend any of the terms of
this Agreement. The arbitration shall be commenced and heard in Los Angeles
County, California. The arbitrator(s) shall apply the substantive law (and the
law of remedies, if applicable) of California or federal law, or both, as
applicable to the claim(s) asserted. Judgment on the award may be entered in
any court of competent jurisdiction, even if a party who received notice under
the Rules fails to appear at the arbitration hearing(s). The parties may seek,
from a court of competent jurisdiction, provisional remedies or injunctive
relief in support of their respective rights and remedies hereunder without
waiving any right to arbitration. However, the merits of any action that
involves such provisional remedies or injunctive relief, including, without
limitation, the terms of any permanent injunction, shall be determined by
arbitration under this paragraph.
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6.6 Waiver. No waiver by a party hereto of a breach or default
------
hereunder by the other party shall be considered valid unless in writing signed
by such first party, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or any other nature.
6.7 Controlling Nature of Agreement. To the extent any terms of
-------------------------------
this Agreement are inconsistent with the terms or provisions of the Company's
Employee Manual or any other personnel policy statements or documents, the terms
of this Agreement shall control. To the extent that any terms and conditions of
Executive's employment are not covered in this Agreement, the terms and
conditions set forth in the Employee Manual or any similar document shall
control such terms.
6.8 Entire Agreement. This Agreement sets forth the entire
----------------
agreement between the parties with respect to the subject matter hereof, and
supersedes any and all prior agreements or understanding between the Company and
Executive, whether written or oral, fully or partially performed relating to any
or all matters covered by and contained or otherwise dealt with in this
Agreement. This Agreement does not constitute a commitment of the Company with
regard to Executive's employment, express or implied, other than to the extent
expressly provided for herein.
6.9 Amendment. No modification, change or amendment of this
---------
Agreement or any of its provisions shall be valid unless in writing and signed
by the party against whom such claimed modification, change or amendment is
sought to be enforced.
6.10 Authority. The parties each represent and warrant that they
---------
have the power, authority and right to enter into this Agreement and to carry
out and perform the terms, covenants and conditions hereof.
6.11 Applicable Law. This Agreement, and all of the rights and
--------------
obligations of the parties in connection with the employment relationship
established hereby, shall be governed by and construed in accordance with the
substantive laws of the State of California without giving effect to principles
relating to conflicts of law.
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6.12 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"COMPANY"
FOUR MEDIA COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CEO
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
15
