THIS AGREEMENT (the "Agreement") is made as of this 1st day of June 2008 BETWEEN WHEREAS, NOW, THEREFORE, IT IS HEREBY AGREED as follows:
THIS AGREEMENT (the "Agreement") is
made as of this 1st day of
June 2008
BETWEEN
|
(1)
|
XXXXXXX XXXXXXX
("Employee”); and
|
|
(2)
|
SEVEN ARTS PICTURES PLC
an English public limited company (the "Company") which for purposes of
this Agreement shall mean the Company and its Affiliates (as defined
below).
|
WHEREAS,
|
(A)
|
Company
desires to engage Employee as its President and Managing Director and a
member of its Board of Directors and Employee desires to accept such
engagement.
|
|
(B)
|
To
secure Employee's services, the parties hereto desire to enter
into this Agreement.
|
NOW, THEREFORE, IT IS HEREBY AGREED as
follows:
1.
Services.
1.1. Employment. During
the Term (as defined below), the Company engages Employee to perform such
services as the
Company may from time to time reasonably request on behalf of itself or its
Affiliate consistent with Employee's stature and experience in the motion
picture industry, at such locations as the Company shall reasonably request
consistent with its reasonable business needs (the "Services"), it being agreed
that Employee's principal residence shall be and remain in New York, New
York. For purposes of this Agreement, "Affiliates" shall mean, as to
any person,
any other person controlled by, controlling or under common control with,
directly or indirectly, such person. “Person" shall mean any individual,
corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof, or
any other entity.
1.2. Ownership of
Properties. The Company shall exclusively own all rights (including,
without limitation, all copyrights therein and all renewals and extensions
thereof) throughout the universe, in perpetuity, now known or hereafter devised,
in and to any material and/or ideas written, suggested or submitted by Employee
during the Term and all other results and proceeds of the Services (the
"Properties"). All of such services and the results and proceeds thereof,
including without limitation, the Properties and rights referenced herein (all
such material, services and the results and proceeds thereof being referred
collectively herein as the “Material”), rendered by Employee hereunder were
and/or will be created by Employee as a “work-made-for-hire” specially ordered
or
Exhibit 17, Page 1
commissioned
by Company, with Company being deemed the sole author of the Material and the
sole and exclusive owner of all rights in and to the Material. To the
extent, if at all, the Material may be determined not to be a
“work-made-for-hire”, all of the above-referenced rights in it shall be deemed
transferred and assigned to Company by this Agreement. Without
limiting the generality of the foregoing, these rights shall include all motion
picture, television, radio, dramatic, musical, publication and other rights in
and to the Properties, including the sole and exclusive right to photograph and
record the same with or without dialogue, music and other sounds
synchronously recorded, and to perform, exhibit, distribute, reproduce,
transmit, broadcast or otherwise communicate the same and/or motion picture,
dramatic or other versions or adaptations thereof, theatrically,
non-theatrically and/or by means of television, radio, the legitimate stage
and/or any other means now known Or hereafter devised and to manufacture,
publish and vend printed and/or recorded versions or adaptations thereof, either
publicly or privately and for profit or otherwise. The Company and its licensees
and assigns shall have the right to adapt, change, revise, delete from, and to
and/or rearrange the Properties or any part thereof written or submitted by
Employee, to combine the same with other works to any extent and to change or
substitute the title thereof, and in this connection employee hereby waives any
rights commonly referred to “moral rights" of authors. Employee agrees to
execute and deliver to the Company such assignments or other, instruments as the
Company may require from time to time to evidence its ownership of the results
and proceed as of Employee's services; provided, however, that nothing in this
Agreement shall be deemed in any manner to restrict or qualify Employee's
ownership of or right to exploit Employee's personal memoirs or the rights of
Employee under any separate screenwriting agreement between Company or its
predecessors and Employee.
|
1.3
|
Term. The term
of this Agreement (the "Term”) shall commence as of the date hereof and
shall end on May 31, 2011 unless extended
or sooner terminated in accordance with the provisions of this
Agreement, or unless terminated by Company on or before May 31, 2009
by notice of Employee.
|
1.4. Exclusivity.
|
1.4.1
|
The
Services shall be rendered on a full-time basis during normal working
hours. All Services of Employee shall be exclusive to the Company,
except as provided below. The parties hereto acknowledge that Employee's
performance and Services hereunder are of a special, unique, unusual,
extraordinary and intellectual character, which gives them peculiar value,
the loss of which cannot be reasonably or adequately compensated in
an action at law for damages, and that a breach by
Employee of the terms hereof (including without limitation this Paragraph
and Paragraph 1.7 hereof) will cause the Company irreparable injury.
Employee agrees that the Company is entitled to injunctive and other
equitable relief to prevent a breach or threatened breach of this
Agreement, which shall be in addition to any other rights or remedies to
which the Company may be entitled. Notwithstanding the foregoing, nothing in this
Agreement shall be deemed in any manner to restrict or qualify Employee's
rights under Paragraph 2.3
hereof.
|
Exhibit 17, Page 2
|
|
1.4.2. Notwithstanding
anything to the contrary stated in this Agreement, Employee may
acquire and/or retain, solely as an investment, and take customary
actions to maintain and preserve Employee's ownership
of:
|
|
|
(1)
securities of any corporation that are registered under Sections 12(b) or
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and that are publicly traded as long as Employee is not part of any
control group of such
corporation;
|
|
|
(2)
any securities of a partnership, trust, corporation or other person so
long as Employee remains a passive investor in that entity and does not
become part of any control group thereof and so long as such entity
is not, directly or indirectly, in competition with the
Company;
|
|
|
(3)
any corporations now owned or controlled by Employee directly or
indirectly including without limitation Transferors;
and
|
(4)
securities of the Company.
1.5. Power and
Authority.
|
|
1.5.1.
Employee shall be President and a Managing Director of the Company and a
member of the Executive or comparable committee (the "Supervisory
Committee”) of the Board of Directors of the Company (the "Board").
Employee shall report only to the
Board.
|
|
1.5.2.
|
The
Company may from time to time appoint Employee to one or more offices of
the Company. Employee agrees to accept such offices if consistent with his
stature and experience and with the type of one or more of its offices
with the Company previously held by
Employee.
|
|
1.5.3.
|
In
the event that, after the Effective Date, Company is a party to any
merger or combination involving an Affiliate, Employee shall be the
President of the surviving entity in such transaction or, in the event of
a consolidation or similar transaction with an Affiliate, the ultimate
parent of Company.
|
1.6. Confidentiality.
Employee acknowledges that in furnishing his Services to the Company, he will,
through the Term, come into close contact with many confidential affairs of the
Company, including information about costs, profits, markets, sales,
products, key personnel, pricing policies, operational methods, technical
processes, other business affairs and methods, plans for future development and
other information not readily available to the public. Employee further
acknowledges that the business of the Company is international in scope,
that its products are marketed throughout the world, that the Company
competes in nearly all of its business activities with other organization; that
are or could he located in nearly any part of the world and that the nature of
Employee's Services, position and expertise are such that he is capable of
competing with
Exhibit 17, Page 3
the
Company from nearly any location in the world. In recognition of the foregoing,
Employee and agrees that he will:
A. keep
secret all material confidential matters of the Company that are not otherwise
in the public domain and will not intentionally disclose them to anyone outside
of the Company, either during or after the Term, except (i) with the Company’s
written consent,(ii) any disclosure required in a legal or administrative
proceeding or otherwise required by law, with which, absent a protective order,
Employee believes, in good faith, he is legally obligated to comply; and (iii)
any disclosure made by Employee in connection with any legal proceedings between
the Company and him. With respect to the disclosure described in
clause (ii) of the immediately preceding sentence, Employee agrees to give
notice of the request for disclosure to the Company in order for the Company, at
its expense, to seek an appropriate protective order against such disclosure;
and
B. deliver
promptly to the Company, on termination of the Term or at any other terms the
Company may so request, at the Company's expense, all memoranda, notes, records,
reports and other documents (and all copies thereof) (collectively, "Company
Materials") relating to the Company's business that Employee obtained while
employed by, or otherwise serving or acting on behalf of, the Company that
Employee may then possess or have under his control other than (i) any Company
Materials which Employee has received in his capacity as a shareholder of the
Company, (ii) any Company Materials or portions thereof that consist exclusively
of information which is in the public domain, and (iii) any Company Materials
which consist of names, addresses, telephone numbers and other contact
information for any Persons involved in the entertainment industry.
|
|
1.7.
|
Indemnification.
Employee shall be entitled through the Term to the benefit of the
indemnification provisions contained on the date hereof in the bylaws of
the Company and any applicable Bylaws of any Affiliate, notwithstanding
any future changes therein, to extent permitted by applicable law at the
time of the assertion of any liability against the Company or any
Affiliate, as the case may be.
|
2. Compensation.
As
compensation and consideration for all Services provided by Employee during the
Term pursuant to this Agreement, the Company agrees to pay to Employee the
compensation set forth below.
2.1. Fixed Annual
Compensation. In consideration for Employee's Services hereunder, the
Company shall pay to Employee a salary ("Fixed Annual Compensation") at the rate
of $200,000 per year, payable $10,000 on the first day of each calendar month
during the Term plus $80,000 from the first bonus declared from the Bonus Pool
(defined below) but in no event later than December 3 of each year during the
term.
Exhibit 17, Page 4
2.2. Bonus Pool
Participation. The Company agrees that Employee shall be
entitled to participate in a bonus pool on the same basis as the Chief Executive
and Chief Financial officer (or Finance Director) of the Company. which the
Company agrees to establish (the "Bonus Pool") immediately upon entering into of
this Agreement. The operation of and Employee's participation in the
Bonus Pool shall be in accordance with the bonus arrangements currently in
effect as approved by the Company's Board of Directors, and any sums payable
pursuant to Paragraph 2 shall not be credited against Employee's bonus pool
participation.
2.3 Options. In addition
to the Fixed Annual Compensation and Bonus, Employee shall be entitled to
receive stock options ("Additional Compensation") as are approved by the Board
pursuant to the terms hereof. Promptly after execution of this
Agreement and under and pursuant to the terms of a Stock Option Plan (the
"Plan") to be adopted by the Company promptly following the execution of this
Agreement, the Company and Employee will execute a stock option agreement (the
"Option Agreement") reflecting a discretionary option grant by the Board,
pursuant to which Employee will be granted stock options (“Options”) to purchase
shares of common stock at a price per share approved by the Board. The Plan will
provide that options exercisable for shares of Common Stock of the Company (the
"Common Stock") equal to no less than 500,000 of the outstanding Common Stock
shall be granted pursuant to the Plan to Employee.
2.4. Employee Business Expense
Reimbursement. Employee shall be entitled to reimbursement of all
reasonable and customary business travel and entertainment expenses for which
Employee makes an adequate accounting to the Company. The determination of the
adequacy of the accounting and reasonableness of the expenses shall be
within the reasonable discretion of the Company's independent certified
accountants taking into consideration the substantiation requirements of the
Internal Revenue Code of 1986, as amended (the "Code"). If verification is
provided, the non-deductibility of such expenses for tax purposes shall not
affect Employee's right to reimbursement.
2.5. Registration Rights.
Employee may be issued on exercise of Options unregistered shares of common
stock of the Company that are subject to the resale provisions of Rule 145 under
the Securities Act of 1933, as amended (the "Securities Act"). The Company
agrees to use its best efforts to register under the Securities Act any such
shares upon Employee's demand, if Company’s common stock is then trading on
any exchange in the United States. The Company may satisfy this obligation by
causing such shares to be registered in connection with any registration
statement for the common stock or other securities of the Company. All of the
costs of such registration (except any underwriting discounts should Employee
determine to seek an underwriter for such shares in connection with such
registration) shall be paid by the Company and the parties shall negotiate cross
indemnifications, standstill agreements and other provisions as are
typically negotiated in registration agreements of similar
kind.
2.6. Directors and Officers
Liability, Errors and Omissions, General Comprehensive Liability and Worker’s
Compensation Insurance. Employee and Employee shall be entitled to the
protection of any insurance policies the Company may elect to
maintain
Exhibit 17, Page 5
generally
for the benefit of its directors and officers against all costs, charges and
expenses whatsoever incurred or sustained by Employee or his legal
representatives in connection with any action, suit or proceeding to which
Employee (or his legal representatives or other successors) may be made a party
by reason of Employee being or having been a director or officer of Company or
Employee serving or having served any other enterprise as a director, officer or
employee at the request of the Company, provided that the Company shall use its
best efforts to cause to be maintained in effect for the period commencing
on the date hereof and including not less than three years from the date the
term ends policies of director and officers' liability insurance of at least the
same coverage as those maintained by the Company as of the date hereof and
containing terms and conditions that are no less advantageous than such
policies. Notwithstanding the foregoing, the Company shall not be obligated to
pay any premium on such insurance policies in excess of the premium the Company
pays as of the date of execution of this Agreement. Employee shall be added as
an additional insured to the errors and omissions, general comprehensive
liability and worker's compensation insurance policies for each Seven Arts
Picture to the extent that Company obtains and maintains such
policies.
2.7. General. Employee
shall be entitled to participate in any health, vacation, insurance or
other plans, benefits or policies available to the employees of the Company on
the terms generally applicable to such employees.
3. Termination.
If any of
the events described in this Paragraph 3 shall occur, Employee shall be
entitled to the benefits provided in Paragraph 4 hereof upon the subsequent
termination of Employee's employment during the Term. As used in this Agreement,
"Date of Termination" means (i) if employment is terminated for Disability (as
defined in Paragraph 3.1 below), thirty (30) days after Notice of Termination is
given (provided that Employee shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period), and (ii) if
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of termination “For Cause" pursuant to
Paragraph 3.3 shall not be less than thirty (30) days, and in the case of a
termination for "Good Reason" pursuant to Paragraph 3.4 shall not be more than
sixty (60) days, respectively, from the date such Notice of Termination is
given); provided that, if within thirty (30) days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
all other parties that a dispute exists concerning the termination (a "Notice of
Dispute”), the Date of Termination for purposes of determining Employee's
continued right to compensation under Paragraph 2.1 hereof shall be the
date on which the dispute is finally determined either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefore having expired and no appeal having been perfected); and
provided further that the Date of Termination shall be extended by a Notice of
Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence. In
addition, if the Company acknowledges that it has terminated Employee other
than “For Cause" (as hereinafter defined), the Date of Termination shall be the
date upon
Exhibit 17, Page 6
which
Employee receives payments due to him under Paragraph 4.4 hereof. "Notice of
Termination" means a written notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated. The sole bases for
termination of the Term shall be:
3.1. Disability. If, as a
result of Employee's incapacity because of physical or mental illness, Employee
shall have been absent from his duties with the Company on a full-time basis for
six consecutive months, and within 30 days after written Notice of
Termination is given he shall not have returned to the fulltime
performance of his duties, the Company may terminate Employee's employment for
"Disability”
3.2. Retirement.
Termination by the Company or Employee of Employee's employment based on
"Retirement” shall mean termination in accordance with the Company's retirement
policy or policies, including early retirement, generally applicable to its
salaried employees or in accordance with any retirement arrangement established
with Employee's consent, and in the event of termination of Employee's
employment based upon Retirement, Employee shall be compensated in accordance
with such policies and arrangements.
3.3. Termination by the Company
"For Cause” Termination by the Company of Employee's employment “For
Cause”, shall mean termination upon (i) the willful and continued failure by
Employee substantially to perform his duties with the Company in good faith
(other than any such failure resulting from his incapacity because of physical
or mental illness or any such actual or anticipated failure resulting from
his termination for “Good Reason”), after a demand for substantial performance
is delivered to him by the Board that specifically identifies the manner in
which the Board believes that Employee has not substantially performed his
duties in good faith, or (ii) the willful engaging by Employee in
conduct that is demonstrably and materially injurious to the Company, monetarily
or otherwise. For purposes of this Paragraph 3.3, no act, or failure to act, on
Employee's act shall be considered "willful" unless done, or omitted to be done,
by Employee not in good faith and without reasonable belief that his action or
omission was in the best interest of
the Company. Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated For Cause unless and until there shall have been delivered to
Employee written Notice of Termination and a copy of resolutions duly adopted by
a majority of the members of the Board at a meeting called and held for such
purpose (after reasonable notice to Employee and an opportunity for Employee,
together with his counsel, to be heard before the Board) finding that in the
good faith opinion of the Board, Employee was guilty of conduct set forth above
in clause (i) or (ii) of the first sentence of this Paragraph 3.3 and specifying
the particulars thereof in detail.
3.4. Employee's Termination for
Good Reason. Employee shall be entitled to terminate Employee’s
employment for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean the commission or omission of the following actions at any time after
Employee no longer controls, directly or indirectly, the voting rights
with
Exhibit 17, Page 7
respect
to that number of shares of the voting securities of the Company necessary to
elect a majority of the directors of the Company:
A. The
assignment to Employee of any duties inconsistent in
any material respect with his status set forth in
Paragraphs 1.1 and 1.6 hereof, the assignment of any duties or rights of
Employee hereunder to any other person, or a change in Employee’s reporting
duties, as set forth herein..
B. A
reduction by the Company of the Fixed Annual
Compensation or the Bonus Pool.
C. The
failure by the Company to continue in effect any compensation
plan in which Employee participates, or any substitute plans hereafter adopted
(other than in connection with an “across the board” modification to a plan generally available to
the Company's employees), unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan
or the failure by the Company to continue Employee’s participation
therein.
D. Any
purported termination of Employee's employment that is not effected pursuant to
a Notice of Termination; and for purposes of this Agreement, no such purported
termination shall be effective.
E. A
Change in Control of the Company (as defined below).
3.5. Change in
Control. For purposes of this Agreement, “Change in Control of
the Company” shall be deemed to have occurred if any “person” (as such term is
used in Sections 13 (d) and 14 (d) of the Exchange Act and the Regulations
promulgated there under), acquires, directly or indirectly, 20% or more of the
Full Voting Power of the Company. “Full Voting Power” shall mean the
right to vote in the election of one or more directors through proxy or by the
beneficial ownership of the common stock or other securities then entitled to
vote in the election of one or more directors. For purposes of
calculating the percentage ownership of Full Voting Power of a person, all
warrants, option or rights held by all persons with respect to the Company shall
be deemed to have been exercised and all convertible or exchangeable securities
shall be deemed to have been converted or exchanged, as the case may be
disregarding for such purposes any restrictions on conversion, voting (such as
proxies), exchange or exercise, in each case for the maximum number of shares of
the common stock or other securities entitled to then vote in the election of
one or more directors.
3.6 Notice of
Termination. Any purported termination of employment by Employee
pursuant to Paragraph 3.4 thereof shall be made, in addition to any other
requirements that may be set forth herein, by giving Notice of Termination
within six months of the action set forth above giving rise to the right to
terminate for Good Reason. The failure of Employee to give Notice of Termination
within such period shall not be construed to prevent the giving of
Notice of Termination upon the next occurrence of such action
or
Exhibit 17, Page 8
upon the
occurrence of another action set forth in Paragraph 3.4 hereof. The Company
shall have 30 days after receipt of the Notice of Termination to cure the event
giving rise to Employee's right to terminate for Good Reason. Employee's right
to terminate his employment pursuant to Paragraph 3.4 hereof shall not be
affected by his incapacity due to physical or mental illness. Any purported
termination by the Company or by Employee shall be communicated by written
Notice of Termination to the other party hereto.
3.7 Remedies.
Notwithstanding anything contained in this Agreement to the contrary, in the
event of a failure or omission by Company constituting a breach of its
obligations hereunder, the damage, if any, caused or Employee by such breach
shall not be considered as irreparable or sufficient to entitle Employee to
injunctive or other equitable relief. Consequently, Employee’s rights and
remedies hereunder shall be limited to the right, if any, to obtain damages at
law and Employee shall have no right in such event to enjoin or restrain the
distribution or exhibition of any Seven Arts Pictures.
4. Compensation upon
Termination
4.1. Death of Employee.
Upon the death of Employee ("Death"), the Company shall pay to Employee (i)
the Fixed Annual Compensation that would otherwise be payable to Employee
hereunder up to the end of the month in which such Death occurs, (ii) Bonus
which may become due and payable to Employee from time to time in the ordinary
course of business pursuant to the terms of this Agreement, and (iii) all
Options and Additional Compensation vested up to the end of the month of the
date of death. Upon such payments, the Company shall have no further liability
or obligation hereunder to the deceased Employee's estate, his executors or
administrators, his heirs or assigns or any other person claiming under or through
him.
4.2. Disability of Employee.
Upon the termination of Employee's employment as a result of his
Disability, Employee shall be entitled to receive (i) 100% of Employee's Fixed
Annual Compensation for an additional six months (“Disability Date”), (ii)
whatever Bonus which may become due and payable to Employee from time to time in
the ordinary course of business pursuant to the terms of this Agreement; and
(iii) all Options and Additional Compensation vested through the Disability
Date.
4.3. Termination For Cause.
If Employee’s employment shall be terminated For Cause, the Company
shall pay Employee the full Fixed Annual Compensation, whatever Bonus that has
become due and payable to Employee on or prior to the Date of Termination and
other benefits to which Employee is entitled through the Date of Termination at
the rate in effect at the time Notice of Termination is
given.
4.4. Termination Other Than For
Cause, Retirement, Death or Disability or For Good Reason. If Employee's employment
by the Company shall be terminated (i) by the Company other than For Cause,
Retirement, Death or Disability or (ii) by Employee for Good Reason, then
Employee shall he entitled to the benefits provided below:
Exhibit 17, Page 9
A. The
Company shall pay Employee, no later than the fifth day following the Date of
Termination, a lump sum equal to 299% of the aggregate of all Fixed Annual
Compensation payments arising under Paragraph 2.1 hereof discounted (to the then
present value) at a discount rate of 5% per annum applied to each future payment
from the time it would have become payable up to the Date of
Termination.
B. All
Options granted to Employee shall fully vest and be exercisable at any time by
Employee and Employee shall receive such other Additional Compensation to which
it would be entitled for the balance of the Term as if such termination had not
occurred. Employee shall have all his rights under Paragraphs 1.9 and 1.10 with
respect to all motion pictures therein referred to.
C. Employee
and the Company will review a list of all projects in development during
the Term (regardless of whether or not such projects previously have been set
for production or such projects previously have been abandoned or deemed
abandoned) (the "Listed Properties") and all such Listed Projects originated by
Employee or in existence on commencement of Term shall be assigned to Employee
who will assume all Company’s obligations therefore under a customary
“turnaround” agreement and pay to Company on commencement of principal
photography of a motion picture based on a Listed Property all out-of-pocket
costs incurred by Company and not previously reimbursed for such Listed
Property.
4.5. No Mitigation.
Employee shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by Employee as the result of employment
by another employer or by retirement benefits after the Date of Termination. The
Company shall not be entitled to any rights to offset, mitigate or otherwise
reduce the amounts owing to Employee by virtue of this Section 4 with respect to any
rights, claims or damages that the Company may have
against Employee.
4.6. Potential Taxes.
Should any payments hereunder or contemplated hereby be subject to excise
tax pursuant to section 4999 of the Code or any successor or similar
provision thereto,
or comparable state or local tax laws, the Company shall pay
to Employee such additional compensation as is
necessary (after taking into account all Federal, state and local income taxes
payable by Employee as a result of receipt of such compensation) to place
Employee in the same after-tax position that he would have been in had no such
excise tax (or any interest or penalties thereon) been paid or incurred.
The Company shall pay such additional compensation upon the earlier of (i) the
time at which the Company is required to withhold such excise tax for any
payments to Employee or (ii) 30 days after Employee notifies the Company that
Employee has filed a tax return that takes the position that such excise tax is
due and payable in reliance on a written opinion of Employee's tax counsel that
it is more likely than not that such excise tax is due and payable. If Employee
makes any payment with respect to, any such excise tax as
Exhibit 17, Page 10
a result
of an adjustment to Employees tax liability by any Federal, state or local
authority, the Company will pay such additional compensation within 30 days
after Employee notifies the Company of such payment. Without limiting the
obligation of the Company hereunder, Employee agrees, in the event Employee
makes any payment pursuant to the preceding sentence, to negotiate with the
Company in good faith with respect to procedures reasonably requested by
the Company that would afford the Company the ability to contest the imposition
of such excise tax; provided, however,
that Employee will not he required to afford the Company any right to contest
the applicability of any such excise tax to the extent that Employee reasonably
determines that such contest is inconsistent with the overall tax interests of
Employee. The Company agrees to hold in confidence and not to disclose,
without Employee's prior written consents, any information with regard to
Employee's tax position that the Company obtains pursuant to this Paragraph
4.6.
5. General.
5.1. Applicable Law
Controls. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law and wherever there is any
conflict between any provisions of this Agreement and any material statute, law,
ordinance or regulation contrary to which the parties have no legal right to
contract, then the latter shall prevail; provide however, that in any such event
the provisions of this Agreement so affected shall be curtailed and limited
to the extent necessary to bring them within applicable legal requirements, and
provided further that if any obligation to pay the Fixed Annual Compensation,
bonuses or any other amount due Employee hereunder is so curtailed, then such
compensation or amount shall be paid as soon thereafter, either during or
subsequent to the Term, as permissible.
5.2. Waiver. Any party
hereto may waive the benefit of any term, condition or covenant in this
Agreement or any right or remedy at law or in equity to which any party may be
entitled, but only by an instrument in writing signed by the parties to be
charged. No estoppel or waiver may be raised against any party except to the
extent the other party relies on an instrument in writing, signed by the
party to be charged, specifically reciting that the other party may rely
thereon. The parties' rights and remedies under and pursuant to this Agreement
or at law or in equity shall be cumulative and the exercise of any rights or
remedies under one provision hereof or rights or remedies at law or in
equity shall not be deemed an election of remedies; and any waiver or
forbearance of any breach of this Agreement or remedy granted hereunder or at
law or in equity shall not be deemed a waiver of any preceding or succeeding
breach of the same or any other provision hereof or of the opportunity to
exercise such right or remedy or any other right or remedy, whether or not
similar, at any preceding or subsequent time.
5.3. Attorneys' Fee and
Costs. In any action, suit or proceeding brought by any party hereto
with respect
to this Agreement, its subject matter or the actions, statements or conduct of
any or each of the parties in the negotiation, execution or performance of this
Agreement, the prevailing party shall be entitled to recover from the other
parties all costs
Exhibit 17, Page 11
and
expenses incurred in connection therewith, including but riot limited to
attorneys, fees, attorneys' costs and court costs.
5.4. Notice. All notices
and other communications hereunder shall be in writing and may be deemed
given if delivered personally or sent by certified mail return receipt
requested, telex, telegraph or facsimile, at the address set forth below, or
such substitute address as may from time to time be designated by like
notice.
Company:
00 Xxxxxxxx
Xxxxxx
Xxxxxx X0X
0XX XX
Employee:
XXXXXXX
XXXXXXX
0 Xxxxxx
Xxxxx Xxxxx
Xxx.
00X
Xxx Xxxx, XX
00000
5.5 Governing Law. This
Agreement shall be governed by, construed and enforced and the legality and
validity of each term and condition shall be determined in accordance with the
laws of the California.
5.6. Captions. The
paragraph headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
5.7. No Joint Venture.
Nothing herein contained shall constitute a partnership between or joint venture
by the parties hereto or appoint any party the agent of any other party. No
party shall hold itself out contrary to the terms of this Paragraph 5.7 and,
except an otherwise specifically provided herein, no party shall become
liable for the representation, act or omission or any other party. This
Agreement is not for the benefit of any third party who is not referred to
herein and shall not be deemed to give any right or remedy to any such third
party.
5.8.
Assignment. Employee may assign all or any portion of his
rights to receive compensation hereunder to any corporation at least 50% of the
capital stock of which is owned or controlled by Employee or trusts for the
benefit of the children or family of Employee. The Company may assign this
Agreement or all or any portion of its rights hereunder to any corporation at
least 50% of the capital stock of which is owned or controlled by the
Company. Notwithstanding the foregoing provisions of this Paragraph
5.8 no such assignment shall
relieve the assignor from any of its obligations hereunder or change any of the terms and provisions of
Employee's employment hereunder. This Agreement shall be fully effective and
binding upon the successors in interest, predecessors in interest, assigns
and Affiliates of the Company.
Exhibit 17, Page 12
5.9. Modification/Entire
Agreement. This Agreement may not he altered, modified or amended
except by an instrument in writing signed by all of the parties hereto. No
person, whether or not an officer, agent, employee or representative of any
party, has made any authority to make for or on behalf of that party any
agreement, representation, warranty, statement, promise, arrangement or
understanding not expressly set forth in this Agreement or in any other document
executed by the parties concurrently herewith ("Parole Agreements'). This
Agreement and all other documents executed by the parties concurrently herewith
constitute the entire agreement between the parties and supersede all express or
implied, prior or
concurrent, Parole Agreements and prior written agreements with respect to the
subject matter hereof. The parties acknowledge that in entering into this
Agreement, they have not relied and will not in any way rely upon any
Parole Agreements.
5.10. Jurisdiction /Venue
/Service. Employee, Employee and the Company and their respective
successors in interest and assigns, each as to and for the benefit of the other:
(a) hereby irrevocably submit to the exclusive jurisdiction of the English
Courts (the "Applicable Court") for the purpose of any action, suit or
proceeding arising out of or based upon the subject matter of, or transactions
contemplated by, this Agreement (each an "Applicable Action"); (b) hereby
irrevocably waive and agree not to assert (by way, of motion, as a defense or
otherwise) in any Applicable Action brought in the Applicable Court any claim
(i) that it or he is not subject personally to the jurisdiction of the
Applicable Court; (ii) that the Applicable Action is brought in an inconvenient
forum; (iii) that the venue of the Applicable Action is improper; or (iv) that
this Agreement or its subject matter may not for any other reason be enforced in
the Applicable Court; (c) hereby irrevocably consent to service of process of
the Applicable Court in the same manner as any other notice is served on the
Company or Employee (as the case may be) pursuant to Paragraph 5.4 hereof; and
(d) irrevocably agree that final judgment (including the exhaustion of all
rights to appellate review) in any Applicable Action ("Judgment") shall be
conclusive and may be enforced in any other jurisdiction (i) by action, suit or
proceeding on the Judgment, a certified and true copy of which shall be absolutely
conclusive evidence of the fact and of the amount of any liability under or
pursuant to the Judgment; or (ii) in any other manner not prevented by any
applicable law.
5.11. Contractual
Nomenclature. A11 references herein to "Dollars" or shall mean Dollars of
the United States of America, its legal tender for all debts public and private.
Wherever used herein and to the extent appropriate, the masculine, feminine or
other gender shall include the other two genders, the singular shall include the
plural, and the plural shall include the singular.
Exhibit 17, Page 13
IN
WITNESS WHEREOF, the parties have executed the Agreement as of the date first
above written.
“COMPANY”
By:__/s/ Xxxxx Hoffman__
“EMPLOYEE”
_/s/
Xxxxxxx Garstin__
XXXXXXX
XXXXXXX
