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EXHIBIT 10.41
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
The Employment Agreement entered into on June 18, 1998, by and between
Xxxxxx Xxxxxxx (hereinafter the "Employee") and CinemaStar Luxury Theaters,
Inc., a Delaware corporation (the "Company") (the "Employment Agreement"), is
hereby amended (the Employment Agreement as amended, the "First Amendment") as
follows (all capitalized terms not otherwise defined herein are as defined in
the Employment Agreement):
WHEREAS, the Company, by and through its Board of Directors, and Employee
believe it to be in the best interests of the Company and Employee to modify the
Employment Agreement;
NOW THEREFORE, in consideration of those premises and the promises made by
the parties to the Employment Agreement, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The first paragraph of Paragraph 1 of the Employment Agreement shall be
deleted in its entirety and replaced with the following paragraph:
CinemaStar shall employ Employee and Employee agrees to be employed
and perform his exclusive services for CinemaStar or one of its
subsidiaries or related companies upon the terms and conditions
hereinafter set forth. Employee will serve hereunder as Vice
President, Chief Financial Officer and Secretary of CinemaStar. In
his capacity as Vice President, Chief Financial Officer and
Secretary of CinemaStar, Employee shall do and perform all services,
acts or things necessary, advisable or customary to manage and
conduct the business of CinemaStar, and also will perform such
services as requested, from time to time, by the Board of Directors
of CinemaStar (the "Board") or the Chief Operating Officer of
CinemaStar (the "Chief Operating Officer").
2. The Employment Period as set forth in the first paragraph of Paragraph
2 of the Employment Agreement shall be extended for one (1) additional year.
3. Employee's Base Salary pursuant to Paragraph 3.1 of the Employment
Agreement shall be increased from One Hundred Five Thousand Dollars ($105,000)
to One Hundred Twenty Thousand Dollars ($120,000), effective as of February 19,
1999.
4. Paragraph 5 of the Employment Agreement shall be deleted in its
entirety and replaced with the following paragraph:
Subject to Paragraphs 5.2 and 5.4 below, the Employment Period may
be terminated by CinemaStar at any time, with or without cause. No
amounts shall be paid or benefits provided upon any termination of
the Employment Period, whether as liquidated damages, or otherwise,
except as specifically provided in Paragraphs 5.2 and 5.4 below or
under any benefit plan or agreement in which
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Employee participates or to which Employee is a party. Employee
shall not be entitled to participate in any severance plan of
CinemaStar, except as required by law.
5. Paragraph 5.2 of the Employment Agreement shall be deleted in its
entirety and replaced with the following paragraph:
If the Employment Period is terminated by CinemaStar without cause
(as "cause" is defined in Paragraph 5.1 above), CinemaStar shall pay
to Employee the Base Salary for a period of one (1) year. Any
payment to Employee by CinemaStar pursuant to this Paragraph 5.2
shall be as a lump sum payment, payable upon Employee's termination
without cause. Employee will be considered terminated without cause
by CinemaStar if CinemaStar demotes Employee to a position below
that of Chief Financial Officer and Vice President of CinemaStar and
Employee resigns within ninety (90) days thereof.
6. A new Paragraph 5.4, entitled Termination as a Result of Change in
Control, shall be added to the Employment Agreement and shall read as follows:
For purposes of this Agreement, "change in control" shall mean any
event whereby SCP Private Equity Partners, L.P. (indirectly through
CinemaStar Acquisition, L.L.C.) and its affiliates sell more than
fifty percent (50%) of their current holdings of CinemaStar.
Employee shall be obligated to make a reasonable effort to assist
with such change in control and provide for an orderly transition of
management, if any such transition is contemplated, to the extent
such assistance does not interfere with his subsequent employment,
for a period of three (3) months from the effective date of the
change in control (the "Transition Period").
In the event of a change in control of CinemaStar and the occurrence
of either (i) the resignation by Employee within thirty (30) days of
such change in control (including Employee's resignation as a result
of having to relocate outside of the San Diego area), or (ii) the
termination of Employee by CinemaStar, CinemaStar shall pay to
Employee the Base Salary for a period of one (1) year, subject to
the conditions of the following sentence. Any payment to Employee by
CinemaStar pursuant to this Paragraph 5.4 shall be as a lump sum
payment for the equivalent of nine (9) months of the Base Salary,
payable upon the effective date of such change in control, with the
balance to be paid to Employee in equal monthly installments during
the Transition Period, with each installment to be conditioned on
Employee's reasonable assistance to CinemaStar during the Transition
Period. CinemaStar shall have no obligation to pay Employee the Base
Salary for the one (1) year period described in the first sentence
of this paragraph and shall be entitled to a refund of any such
payments made, on a pro rata basis, if Employee enters into any new
employment or consulting agreement with CinemaStar or its affiliates
at any time during the Employment Period.
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7. Except for the modifications specified in this First Amendment, all
of the remaining terms and conditions of the Employment Agreement,
shall remain in full force and effect for the term of the Employment
Agreement.
8. This First Amendment to the Employment Agreement shall be effective
as of the date written below.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment on
this 18th day of February, 1999.
"Company" "Employee"
CinemaStar Luxury Theaters, Inc.
a Delaware corporation
By:
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Xxxx Xxxxxx Xxxxxx Xxxxxxx
Chairman of the Board of Directors
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