Exhibit 10.5
ON-CALL EMPLOYEE AGREEMENT
This On-Call Employee Agreement ("Agreement") is executed as of June 4, 2004 by
and between Playboy Enterprises, Inc. (the "Company") and Xxxxx Xxxxxxx
("English"), with reference to the following facts and circumstances:
A. WHEREAS, the Company is desirous of transitioning English's status as a
regular full-time employee to that of an on-call employee on the terms and
conditions hereinafter set forth; and
B. WHEREAS, English desires to perform services as an on-call employee upon
such terms and conditions.
NOW, THEREFORE, in consideration of the premises and of the mutual promises,
representations and covenants herein contained, the parties hereto agree as
follows:
1. Services
A. English will provide those services reasonably requested by the
Company in connection with the production and marketing of adult
television programming for domestic and international television
networks worldwide and worldwide DVD/home video products and the
associated production, programming and distribution activities
related thereto (collectively the "Services"). English will not be
required to supervise any Company staff.
B. English shall perform such additional duties consistent with the
Services as the Company may reasonably assign during the term of
this Agreement, including Services for any subsidiary or affiliated
entities.
C. English will be entitled to perform consulting services for third
parties during the Term hereof (as defined in paragraph 2.) without
violating the terms and conditions of this Agreement on the
condition that such third parties are not pay or free cable or
satellite broadcast adult networks as provided in paragraph 6.
hereof.
D. English's principal place of business in the performance of the
Services shall be at Company's Andrita
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Studios in California, but will engage in such travel and spend such
time in other places as may be necessary or appropriate in
furtherance of his duties under this Agreement at Company's expense
and in accordance with Company's travel and entertainment policies.
Company will provide English with an office at Andrita Studios in
addition to access to and use of a laptop computer and Playboy's
telephone and e-mail system for purposes of performing the Services.
2. Term
A. The initial term ("Term") of this Agreement will be one year,
commencing June 4, 2004, unless sooner terminated as hereinafter
provided.
B. The Term may be extended for two additional periods of six months
each with the mutual consent of the parties.
3. Compensation
A. The Company will pay English the sum of $650,000 within 10 days of
English's execution of this Agreement which specifically constitutes
payment relating to the termination of English's prior employment
agreement. English acknowledges and agrees that no other payments
are due or will be due him under such prior employment agreement
except for any travel and entertainment reimbursement to which he is
entitled under Company policy.
B. For all Services rendered and required to be rendered by, covenants
of and restrictions in respect to English under this Agreement,
Company will pay English for the Term at the rate of $650,000 per
annum, payable on a biweekly basis in accordance with Company's
standard payroll practices.
C. Company will reimburse English for all reasonable out-of-pocket
expenses approved in advance by the Company and in furtherance of
his duties under this Agreement in accordance with the Company's
policies.
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D. Company will pay English's costs of COBRA coverage for the Term.
E. All payments due to English hereunder shall be subject only to such
income tax withholding, payroll taxes and any other withholdings
required by law.
F. English will be entitled to continue to participate in Company's
401(k) plan consistent with ERISA rules and Company policies
relating to on-call employees.
4. Termination
A. Company shall have the right to terminate this Agreement at any time
only "for cause" immediately upon written notice to English. "For
cause" is defined as conviction of a crime involving dishonesty,
fraud or breach of trust, or intentionally engaging without
permission or direction from Company in conduct materially injurious
to Company.
B. English shall have the right to terminate this Agreement at any time
on not less than 60 days' prior written notice only to take a
full-time position with any company or concern that is not in the
pay or free cable or satellite broadcast adult network as provided
under paragraph 6. hereof.
5. Effect of Termination
If Company terminates this Agreement "for cause," English shall not be
entitled to any compensation that could have been earned after the
effective date of termination.
6. Non-Competition
For the Term, or for so long as English is receiving compensation under
paragraph 3. hereof, English shall not work for or provide services to any
other pay or free cable or satellite broadcast adult network (including,
but not limited to, New Frontier, Hustler or Private, or their successors,
but not including HBO or Showtime).
7. Indemnity
Although it is not intended and hopefully will never occur, Company
recognizes that the performance of the Services
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within the scope of English's employment creates the potential in some
jurisdictions of civil or even criminal actions being brought against
English. To the fullest extent permitted by law, Company shall indemnify,
defend, protect and hold English harmless from and against all claims,
demands, causes of action, actions, suits, costs, damages, penalties,
fines, liabilities, losses and expenses, whether civil or criminal,
including, without limitation, reasonable attorneys' and consultant's fees
and expenses arising out of or resulting from the performance of English's
duties within the scope of English's employment.
8. Confidentiality
A. All memoranda, notes, records and other materials made or compiled
by English, or made available to English, in connection with and
during the Term will remain the sole and exclusive property of
Company. English acknowledges and agrees that all nonpublic
information acquired about Company, and all material reflecting such
nonpublic information, is highly confidential and that disclosure of
such information or material could cause serious and irreparable
injury to Company, and that English will not hereafter disclose any
such information or make any such material available to anyone
without the written consent of Company, other than as required
pursuant to an order of a court, governmental agency or other
authorized tribunal. For purposes of this paragraph 8., the term
"Company" includes any of Company's subsidiaries and affiliated and
predecessor companies, and its and their officers, directors,
employees and agents.
B. English will not directly or indirectly disclose, discuss,
disseminate, be the source of or otherwise publish or communicate in
any manner to any person or entity any confidential information
concerning the personal, social or business activities of Company,
its affiliates or the executives and principals and the officers,
directors, agents and employees of all of the foregoing during or at
any time after the Term other than as required pursuant to an order
of a court, governmental agency or other authorized tribunal. In
addition, English agrees that without Company's express written
approval in each case, English will not:
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(i) write, be the source of or contribute to any articles,
stories, books, screenplays or any other communication or
publicity of any kind (written or otherwise) or deliver
lectures in any way regarding or concerning confidential
information of Company, or
(ii) grant any interviews regarding or concerning confidential
information of Company during or at any time after the Term.
C. Upon termination of this Agreement, or at any other time the Company
demands, English shall deliver promptly to the Company all material
and documentation relating to the Company, its parent, subsidiaries,
affiliates, predecessor companies, and its and their executives,
principals, officers, directors, agents, employees, clients, and
customers, including without limitation, all memoranda, notes,
records, reports, manuals, drawings, customer lists, referral source
lists, vendor service lists, software programs, and any other
documents, whether or not of a confidential nature, belonging to the
Company, including all copies of such materials which English may
then possess or have under English's control. English further agrees
that upon termination of the engagement, English shall not retain
any document containing or pertaining to any confidential
information.
9. Unfair Competitive Practices
A. English will not at any time during the Term solicit or take away,
directly or indirectly, any person, entity or business that is a
customer or prospective customer of the Company, its parent, or any
of its affiliates or subsidiaries.
B. During the Term, English agrees that he will not, directly or
indirectly, solicit, induce or influence any person employed or
engaged by the Company to terminate such employment or engagement.
C. During the Term, English will not do anything that could affect to
the Company's detriment any relationship of the Company with any
current, future or prospective customer, supplier or Company
em-
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ployee, or which could cause any current, future or prospective
client or customer to refrain from entrusting business or additional
business to the Company.
D. English and Company agree that during the Term and after termination
of this Agreement, neither Company nor English will make any public
statement, or engage in any conduct, that is disparaging to the
other party or, in the case of Company, any of its employees,
officers, directors or shareholders known to you, but not limited
to, any statement that disparages the products, services, finances,
financial condition, capabilities or other aspect of the business of
Company and English's capabilities. Notwithstanding any term to the
contrary herein, neither English nor Company shall be in breach of
this paragraph for the making of any truthful statements under oath.
E. English agrees that, where applicable, the provisions of this
paragraph 9. shall survive the termination of this Agreement.
F. English hereby acknowledges and agrees that, in the event he shall
violate any provisions of this paragraph 9., 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
other mandatory relief obtained in any action or proceeding, without
the necessity of proving damages or posting bond, and without
prejudice to any other remedies which it may have at law or in
equity.
G. During the Term and after termination of this Agreement, English
will make no use of Company's intellectual property without the
prior written consent of Company.
10. Releases
A. For and in consideration of English's promises made hereunder,
Company hereby agrees not to xxx or make any claim of any kind
against English or his assigns (the "English Releasees"), before any
agency, court of other forum, and Company releases and dis-
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charges the English Releasees, and each of them, from all manner of
action and actions, cause or causes of action in law or inequity,
administrative proceedings, suits, claims, debts, liens, sums of
money, accounts, reckonings, bonds, bills, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, whether known
or unknown, arising from acts or omissions of the English Releasees
in connection with English's employment through the effective date
of this Agreement (including the Employment Agreement dated October
8, 2003, as amended). In addition, for and in consideration of the
payments and other benefits provided to English hereunder, English
agrees not to xxx or make any claim of any kind against Company, its
subsidiaries and affiliated and predecessor companies, its and their
successors and assigns and all its and their past and present
directors, officers, employees and agents and attorneys, either
personally or in their capacity as directors, officers, employees
and agents (for purposes of this paragraph 10.A., the "Releasees"),
before any agency, court or other forum, and English releases and
discharges the Releasees, and each of them, from all manner of
action and actions, cause or causes of action in law or inequity,
administrative proceedings, suits, claims, debts, liens, sums of
money, accounts, reckonings, bonds, bills, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, whether now
known or unknown, arising from acts or omissions of the Releasees in
connection with English's employment through the effective date of
this Agreement (including the Employment Agreement dated October 8,
2003, as amended). English agrees that this release of claims
includes, but is not limited to, claims for breach of any implied or
express contract or covenant; claims for promissory estoppel; claims
of entitlement to any pay (other than the pay promised in paragraph
3.); claims of wrongful denial of insurance and employee benefits;
claims for wrongful termination, public policy violations,
defamation, invasion of privacy, fraud, misrepresentation, emotional
distress or other common law or tort matters; claims of harassment,
retaliation or
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discrimination based on lifestyle, age, race, color, religion, sex,
national origin, ancestry, physical or mental disability, medical
condition, marital status, sexual orientation, union activity or
veteran status; claims under California Labor and Government Codes;
claims based upon the California or Federal Constitutions; any
claims based on legal restrictions on the Company's right to
terminate, not to hire or promote employees, or to change an
employee's compensation; and claims based on any federal, state or
other governmental statute, regulation or ordinance, including,
without limitation: Title VII of the Civil Rights Act of 1964, as
amended; the California Fair Employment and Housing Act; the Equal
Pay Act, 29 U.S.C. Section 206(d)(1); the Age Discrimination in
Employment Act; the Older Worker Benefit Protection Act; the
Americans with Disabilities Act; the Labor Management Relations Act;
the Family Medical Leave Act; and the Employee Retirement Income
Security Act. It is expressly understood by English that among the
various rights and claims being waived by English in this release
are those arising under the Age Discrimination in Employment Act of
1967 (29 U.S.C. Section 621, et seq.), as amended.
B. THIS MEANS THAT, BY SIGNING THIS AGREEMENT, ENGLISH AND COMPANY EACH
WILL HAVE WAIVED ANY RIGHT ENGLISH OR COMPANY MAY HAVE HAD TO BRING
A LAWSUIT OR MAKE ANY CLAIM, AS SET FORTH IN PARAGRAPH 10.A. ABOVE,
AGAINST THE RELEASEES OR ENGLISH RELEASEES, RESPECTIVELY, BASED ON
ANY ACTS OR OMISSIONS OF THE RELEASEES OR ENGLISH RELEASEES,
RESPECTIVELY, UP TO THE DATE OF THE SIGNING OF THIS AGREEMENT.
11. For the purpose of implementing a full and complete release, the parties
hereto expressly acknowledge that the releases given in this Agreement are
intended to include in their effect, without limitation, claims that they
did not know or suspect at the time of execution hereof, regardless of
whether the knowledge of such claims, or the facts upon which they might
be based, would materially have affected the settlement of this matter,
and that the consideration given under this Agreement is also for the
release of those claims and contemplates the extinguish-
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ment of any such unknown claims. In furtherance of this settlement, the
parties waive any rights they may have under California Civil Code,
Section 1542, or other similar statutes. Section 1542 states:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
12. Miscellaneous
A. Upon the effective date of this Agreement, English will no longer be
entitled to life insurance or long-term disability insurance under
the Company's insurance plans. English may apply for the conversion
of such insurance, which must be completed within 31 days from the
effective date of this Agreement.
B. Any stock options issued to English by Company will cease vesting as
of the effective date of this Agreement. English will have ten days
after the end of the Term within which to exercise any stock options
that were exercisable as of the effective date of this Agreement.
Any options unexercised after such 10 day period will expire.
C. English will not receive or be entitled to receive any compensation
under Company's Executive Incentive Compensation Plan for 2004 or
subsequent years.
D. As of the effective date of this Agreement, any restricted stock
units granted to English will be null and void.
E. The Employment Agreement dated October 1, 2003, as amended, is
terminated effective as of the date of this Agreement.
F. Company shall directly pay to the firm of Xxxxxx & Xxxxxxxx,
English's attorneys, upon submission of a detailed invoice, up to
$10,000 to cover English's legal fees (at English's attorneys'
standard hourly rates) incurred in the negotiation of this
Agreement.
13. Entire Agreement
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This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, and no statement, representation,
warranty or covenant has been made by either party except as expressly set
forth herein. This Agreement supersedes and cancels all prior agreements
between the parties, whether written or oral, relating to the Services of
English.
14. Amendment or Alteration
No amendment or alteration of the terms of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
15. Assignment
This Agreement may not be transferred or assigned by either party without
the prior written consent of the other party.
16. Notices
All notices hereunder shall be in writing and sent postage prepaid,
registered mail, return receipt requested, or by overnight express
courier, or by facsimile, provided answer-back confirmation is requested
and received, to the parties at the addresses indicated below (or to such
changed address, addressee and/or facsimile as a party may subsequently
give such notice of) and shall be deemed effective when actually received
or refused by the addressee or upon notification of non-deliverability by
the postal authorities, the express courier or upon receipt of an
answer-back confirmation in the case of facsimile, as the case may be.
If to the Company: Playboy Enterprises, Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile 000 000 0000
If to the Executive: Xxxxx Xxxxxxx
000 Xxxxx Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile 000 000 0000
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With a copy to: Xxxxxxx X. Xxxxxx, Esquire
Xxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile 000 000 0000
17. Governing Law; Forum
This Agreement will be governed by, and construed in accordance with, the
laws of the State of California applicable to agreements made and to be
performed entirely in such state.
18. Successors and Assigns
All of the terms and provisions of the Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
personal representatives, successors and assigns of English and the
successors and assigns of the Company.
19. Severability
A. If, at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force
and effect, but the illegality or enforceability of such provision
shall have no effect upon and shall not impair the enforceability of
any other provision of this Agreement.
B. To the extent that any portion of this Agreement is deemed
unenforceable by virtue of its scope in terms of area, business
activity prohibited and/or length of time, but could be enforceable
by reducing the scope of area, business activity prohibited and/or
length of time, English and the Company agree that same shall be
enforced to the fullest extent permissible under the laws and public
policies applied in the jurisdiction in which enforcement is sought,
and that the Company shall have the right, in its sole discretion,
to modify such invalid or unenforceable provision to the extent
required to be valid and enforceable. English agrees to be bound by
any promise or cove-
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nant imposing the maximum duty permitted by law which is subsumed
within the terms of any provision hereof, as though it were
separately articulated in and made a part of this Agreement, that
may result from striking or modifying any of the provisions hereof.
20. Agreement Is Knowing And Voluntary
English understands and agrees that English:
A. has had a reasonable time within which to consider this Agreement
before executing it;
B. has carefully read and fully understands all of the provisions of
this Agreement;
C. knowingly and voluntarily agrees to all of the terms set forth in
this Agreement;
D. knowingly and voluntarily intends to be legally bound by the same;
E. was advised, and hereby is advised in writing, to consider the terms
of this Agreement and consult with an attorney of English's choice
prior to executing this Agreement;
F. has had sufficient time to consider this Agreement prior to signing
it, and has seven days after signing this Agreement to revoke his
signature. Revocation can be made by delivering a written notice of
revocation to the Company's General Counsel. For this revocation to
be effective, written notice must be received by the General Counsel
not later than the close of business on the seventh calendar day
after English signs this Agreement. If English revokes this
Agreement, it shall not be effective or enforceable and English will
not receive the benefits provided herein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date and year first written above.
PLAYBOY ENTERPRISES, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Its Exec. V.P.
---------------------------------
/s/ Xxxxx X. English
-------------------------------------
XXXXX XXXXXXX
Date of Signature June 4, 2004
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