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Exhibit 10.72
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of August 26, 1997, by and between Video
Services Corporation, a Delaware corporation (formerly known as International
Post Limited), with its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), and Xxxxx X. Xxxxxxxxxx, with an address at 00 Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Employee").
INTRODUCTION
The parties hereto desire to provide for the employment of the
Employee with the Company. In order to accomplish such purpose, and in
consideration of the terms, covenants and conditions hereinafter set forth, the
parties hereby enter into this employment agreement.
ARTICLE I
EMPLOYMENT; TERM; DUTIES
1.01 Employment. Upon the terms and conditions hereinafter set
forth, the Company hereby employs the Employee, and the Employee hereby accepts
employment, as President and Chief Executive Officer of the Company.
1.02 Term. Unless sooner terminated as provided in Article IV
hereof, the Employee's employment hereunder shall be for a term commencing on
the date hereof and ending on the later of (i) the close of business on the
fourth anniversary of the date hereof; or (ii) the date which is twenty-four
months after either party hereto gives written notice to the other that it
desires to terminate this Agreement. The actual term of employment hereunder,
giving effect to any early termination of employment under Article IV hereof, is
referred to as the "Term".
1.03 Duties. During the Term, the Employee shall perform such
executive duties for the Company and for its subsidiaries, consistent with his
position hereunder, as may be assigned to him from time to time by the Board of
Directors of the Company. The Employee shall perform his duties hereunder on a
full time basis; provided, however, that he shall not be prohibited from
engaging in: (i) the activities specified on Schedule B hereto; (ii) volunteer
or charitable activities; or (iii) management or ownership of passive
investments so long as they do not interfere with the foregoing obligations.
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1.04 Exclusive Agreement. The Employee represents and warrants to
the Company that he is not a party to any agreement or arrangement, whether
written or oral, in effect which would prevent the Employee from rendering
service to the Company during the Term.
ARTICLE II
COMPENSATION
2.01 Base Salary. For all services rendered by the Employee
hereunder and all covenants and conditions undertaken by him pursuant to this
Agreement, the Company shall pay the Employee an annual base salary ("Base
Salary") during the Term or the Scheduled Term (as defined in Section 4.02), as
the case may be, in equal bi-weekly installments, of $200,000 per year. The Base
Salary payable to the Employee hereunder shall be reviewed annually, and may be
increased but not decreased, by the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee"). In the event of any
such increase, the salary so determined shall thereafter constitute the Base
Salary. In addition, the Compensation Committee shall consider, on an annual
basis, the payment of a discretionary bonus by the Company to the Employee, in
addition to the Incentive Compensation referred to in Section 2.02 hereof.
If the first or last month of the Term or the Scheduled Term, as the
case may be, is not a full calendar month, then any calculation of Base Salary
for such period shall be prorated for the number of days employed in such
months.
2.02 Incentive Compensation. The parties agree to the following
incentive compensation arrangements ("Incentive Compensation") which shall apply
during the Term.
(A) Annual Bonus. For each fiscal year (or portion thereof) during the
Term, the Employee shall be eligible to receive an annual bonus (the "Annual
Bonus"), payable by the Company, of up to 40% of the Base Salary for such period
(such bonus to be calculated as contemplated in the following table), 50% of
which will be based upon achievement of certain Cash Flow (as defined herein)
and 50% of which will be based upon the achievement of certain Net Income (as
defined herein) (such criteria being hereinafter collectively referred to as the
"Annual Targets"). The Annual Targets shall be agreed upon not less than 45 days
prior to the beginning of each fiscal year, by the Employee and the Compensation
Committee provided, however, that the Annual Targets for the period ending June
30, 1998, will be agreed upon within 45 days following the date hereof. The
parties acknowledge that it is their intention that the Annual
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Targets shall be set at levels that are reasonably achievable. In the event that
the Company does not achieve an Annual Target in any period during the Term, the
Compensation Committee may (but shall have no obligation to) award the Employee
a bonus with respect to such period and, if the Compensation Committee does so,
such bonus shall be in such amount as the Compensation Committee, in its sole,
absolute and unrestricted discretion, shall determine.
The Annual Bonus payable hereunder shall be payable in a single
installment within 30 days following the date (the "Delivery Date") of delivery
to the Board of Directors of the Company's audited financial statements for the
period to which such Annual Bonus relates.
Upon achievement of the percentage of any Annual Target specified below,
the Employee shall be entitled to receive as an Annual Bonus an amount equal to
the percentage, specified below, of his Base Salary (an aggregate of 40% of Base
Salary if both such Targets are fully achieved at the Maximum Annual
Percentage):
% of Annual % of Base Pay
Target Achieved to be Paid
--------------- -------------
Less than 90% -0-
90 to 94.9 5
94.9+ to 99.9 10
99.9+ to 109.9 15
over 109.9 (the 20
"Maximum Annual
Percentage")
(B) Long-Term Bonus. For the period (the "Period") beginning on July 1,
1997 and ending on June 30, 2001, the Employee shall be eligible to receive a
long-term bonus (the "Long-Term Bonus") payable by the Company, of up to 100% of
the aggregate of his entire Base Salary during the initial four (4) year Term of
this Agreement (the "Cumulative Base Salary") (such bonus to be calculated as
contemplated in the following table), 75% of which will be based upon the
achievement of certain
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cumulative Net Income for the Period and 25% of which will be based upon the
achievement of certain cumulative Cash Flow for the Period (such criteria being
hereinafter collectively referred to as the "Long-Term Targets"). The Long-Term
Targets shall be agreed upon not less than 90 days following the date hereof.
The parties acknowledge that it is their intention that the Long-Term Targets
shall be set at levels that are reasonably achievable. In the event that the
Company does not achieve a Long-Term Target during the Period, the Compensation
Committee may (but shall have no obligation to) award the Employee a bonus with
respect to such period and, if the Compensation Committee does so, such bonus
shall be in such amount as the Compensation Committee, in its sole, absolute and
unrestricted discretion, shall determine.
The Long-Term Bonus payable hereunder shall be payable in a single
installment within 30 days following the Delivery Date of the Company's audited
financial statements for the period ended June 30, 2001.
Any Long-Term Bonus otherwise payable hereunder shall be reduced by
amounts previously paid as Annual Bonus hereunder.
Upon the achievement of the percentage of any Long-Term Target specified
below during the Period, the Employee shall be entitled to receive a Long-Term
Bonus equal to the percentage specified below, of his Cumulative Base Salary (an
aggregate of 100% of Cumulative Base Salary if both such Long-Term Targets are
fully achieved at the Maximum Long-Term Percentage):
% of Long-Term % of Cumulative Base
Target Cumulative Salary for the
Net Income Achieved Period to be Paid
------------------- --------------------
Less than 90% 0%
90+ to 99.9 37.5
99.9+ to 109.9 56.25
over 109.9 (the 75
"Maximum Long-
Term Percentage")
5
% of Long-Term % of Cumulative
Target Cumulative Base Salary for the
Cash Flow Achieved period to be Paid
------------------ -------------------
Less than 90% 0%
90+ to 99.9 12.5
99.9+ to 109.9 18.75
over 109.9 (the 25
"Maximum Long-
Term Percentage")
(C) Adjustments. If the Company should engage in any acquisition,
disposition or other extraordinary transaction during the Term, the applicable
Targets and Long-Term Targets shall be appropriately and equitably adjusted,
such adjustments to be reflected in a writing signed by the Employee and the
Company prior to the occurrence of such event.
(D) Definitions. The following terms shall have the meanings set forth
below:
"Cash Flow" shall mean, with respect to any period, the
sum of
(i) the Company's consolidated Net Income, plus;
(ii) the Company's consolidated depreciation, amortization and
other non-cash charges for such period or periods, plus;
(iii) any taxes accrued but not paid by the Company for or in
respect of such period to the extent included in the
calculation of Net Income, plus;
(iv) decreases in working capital for the Company for such period
or periods, less;
(v) the Company's or its subsidiaries' Capital Expenditures for
such period or periods (but only to the extent of scheduled
payments
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maturing and required to be paid during the applicable
period), less;
(vi) increases in consolidated working capital for the Company
during such period, and less;
(vii) repayments by the Company or its subsidiaries of principal
under all Indebtedness (but only to the extent of scheduled
payments required to be made during the applicable period),
all as determined in accordance with generally accepted
accounting principles ("GAAP").
"Capital Expenditures" shall mean all payments for any fixed assets
or improvements or for replacements, substitutions or additions thereto, that
have a useful life of more than one year and which are required to be
capitalized under GAAP, including, without limitation, payments under capital
leases.
"Indebtedness" shall mean indebtedness of the Company or its
subsidiaries for borrowed money.
"Net Income" shall mean, for any period, an amount equal to the net
income of the Company and its subsidiaries determined on a consolidated basis in
accordance with GAAP for such period.
2.03 Deductions. The Company shall deduct from the compensation
described in Sections 2.01 and 2.02 any Federal, state or city 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 city
laws, rules or regulations.
2.04 Disability Adjustments. Any compensation otherwise payable to
the Employee pursuant to Section 2.01 in respect of any period during which the
Employee is disabled (as contemplated in Section 4.03) shall be reduced by any
amounts paid to the Employee for loss of earnings or the like under any
insurance plan or policy the premiums for which are paid for in their entirety
by the Company.
ARTICLE III
BENEFITS; EXPENSES
3.01 Benefits. During the Term, the Employee shall be entitled to
participate in and receive such benefits, services, equipment, compensation and
incentive plans and group life, health, accident, disability and hospitalization
insurance plans,
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pension plans and retirement plans as the Company may make available to its
executive employees. In addition, the Employee shall be entitled to participate
in, and the Company shall continue to maintain and pay for at its expense, upon
the same terms, the life insurance policies specified on Schedule A attached
hereto and the disability insurance policies currently provided to him by Video
Services Corporation.
3.02 Expenses. The Company agrees that the Employee is authorized to
incur reasonable expenses in the performance of his duties hereunder, and upon
presentation of a reasonably itemized account thereof, the Company shall
promptly pay or reimburse the Employee for such reasonable expenses so incurred
by the Employee.
3.03 Vacations. During each full year of the Term, the Employee
shall be entitled to four (4) weeks of paid vacation to be taken at times
determined by the Employee which do not unreasonably interfere with the
performance of his duties hereunder, provided, that any such vacation time not
taken during any year shall be forfeited and that no single vacation shall
exceed two (2) consecutive weeks.
3.04 Domicile. During the Term, the Employee (except for reasonable
business travel required by the Company) shall conduct his activities hereunder
at a Company office located in the New York metropolitan area.
ARTICLE IV
TERMINATION; DEATH; DISABILITY
4.01 Termination of Employment With Cause. In addition to any other
remedies available to it at law, in equity or as set forth in this Agreement,
the Company shall have the right, upon written notice to the Employee, to
immediately terminate his employment hereunder if the Employee (a) breaches in
any material respect any material provision of this Agreement and such breach is
not remedied within thirty (30) days after written notice thereof from the Board
of Directors of the Company setting forth in reasonable detail the matters
constituting such breach; or (b) willfully fails or refuses in any material
respect to perform such duties as may be reasonably assigned to him, consistent
with his title and general areas of responsibility, from time to time by the
Board of Directors of the Company and fails to cure such failure or refusal
within thirty (30) days after receipt of notice from the Board of Directors of
the Company stating with specificity the nature of such failure or refusal; or
(c) has been convicted of a felony; or (d) has committed any act of fraud,
misappropriation of funds or embezzlement in connection
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with his employment hereunder ((a) through (d) above to mean "Cause", and
termination as a result of (a) through (d) above to mean "Termination With
Cause"). The date of any termination of employment under this Section 4.01 or
under Section 4.02, 4.03 or 4.04 is referred to herein as the "Termination
Date". In the event of a Termination With Cause, the Company shall pay the
Employee as follows:
(a) within ten (10) days following the Termination Date, any
accrued but unpaid Base Salary as of the Termination Date;
(b) within ten (10) days following the Termination Date, the
Employee's Base Salary on a daily basis (computed on a 365-day year) in effect
on the Termination Date, multiplied by the number of accrued and unused vacation
days at the Termination Date;
(c) within ten (10) days following the Termination Date, any
accrued but unpaid expenses incurred by the Employee as of the Termination Date
in accordance with Section 3.02 hereof;
(d) within ten (10) days following the Termination Date, any
accrued and unpaid benefits to which the Employee may be entitled pursuant to
Section 3.01 hereof;
(e) within ten (10) days after the date of the Company's
receipt of its year end financial statements for the year in which the
Termination Date occurs, an amount equal to (x) the amount of Incentive
Compensation, if any, that would have been payable to the Employee with respect
to the fiscal year during which the Termination Date occurred had the
Termination Date not occurred multiplied by (y) a fraction, the numerator of
which is the number of days in such fiscal year which expired prior to the
Termination Date and the denominator of which is 365;
(f) within ten (10) days following the Termination Date, any
other accrued and unpaid compensation payable to the Employee as of the
Termination Date, the amount of which has already been calculated as of the
Termination Date in accordance with the terms hereof; and
(g) within ten (10) days following the date after the
Termination Date as of which it is calculated in accordance with the terms
hereof, any other accrued and unpaid compensation payable to the Employee as of
the Termination Date.
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4.02 Termination of Employment Without Cause. Notwithstanding any
provision to the contrary herein, the Company may at any time upon written
notice to the Employee, in its sole and absolute discretion and for any or no
reason, terminate the employment of the Employee hereunder without Cause;
provided, that if such termination is not a Termination With Cause, the Company
shall pay the Employee as follows:
(a) within ten (10) days following the Termination Date, any
accrued but unpaid Base Salary as of the Termination Date;
(b) the Employee's Base Salary until the end of the Scheduled
Term (as hereinafter defined) as and when such Base Salary would have been paid
had the termination of employment not taken place;
(c) the Employee's Incentive Compensation until the end of the
Scheduled Term (if any would have been due and payable to him under Section
2.02), as and when such Incentive Compensation would have been paid had the
termination of employment not taken place;
(d) within ten (10) days following the Termination Date, a
cash payment equal to the Employee's Base Salary on a daily basis (computed on a
365-day year) in effect on the Termination Date, multiplied by the number of
accrued and unused vacation days at the Termination Date;
(e) within ten (10) days following the Termination Date, any
accrued but unpaid expenses incurred by the Employee as of the Termination Date
in accordance with Section 3.02 hereof;
(f) within ten (10) days following the Termination Date, any
accrued and unpaid benefits to which the Employee may be entitled pursuant to
Section 3.01 hereof;
(g) within ten (10) days following the Termination Date, any
other accrued and unpaid compensation payable to the Employee as of the
Termination Date, the amount of which has already been calculated as of the
Termination Date in accordance with the terms hereof; and
(h) within ten (10) days following the date after the
Termination Date as of which it is calculated in accordance with the terms
hereof, any other accrued and unpaid compensation payable to the Employee as of
the Termination Date.
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For purposes of this Agreement, "Scheduled Term" shall mean (x) if
the employment of the Employee is terminated under any provision of Article IV
(other than Section 4.01) prior to the close of business on the fourth
anniversary of the date hereof, the period ending at the close of business on
the fourth anniversary of the date hereof and (y) if the employment of the
Employee is terminated under any provision of Article IV (other than Section
4.01) upon or after the close of business on the fourth anniversary of the date
hereof, the period ending at the close of business on the date which is
twenty-four (24) months after the date on which the employment of the Employee
is so terminated.
In the event that the Employee terminates his employment following
an uncured material breach of this Agreement by the Company, then such
termination by the Employee shall be deemed for all purposes (including, without
limitation, the Plan) to be a termination by the Company of the employment of
the Employee hereunder without Cause pursuant to this Section 4.02. The Company
shall have thirty (30) days following written notice by the Employee to the
Company of such breach, setting forth in reasonable detail the matters
constituting such breach, to cure such breach.
The Employee acknowledges that the payments referred to in Section
4.01 and this Section 4.02 constitute the only payments which the Employee shall
be entitled to receive from the Company under this Agreement in the event of any
termination of his employment pursuant to Section 4.01 and this Section 4.02,
and that except for such payments the Company shall have no further liability or
obligation to him under this Agreement.
4.03 Death; Disability. The Employee's employment hereunder shall
terminate upon his death or, at the election of the Company by written notice to
the Employee, if the Employee becomes Disabled (as such term is hereinafter
defined). In the event of a termination of the Employee's employment for death
or Disability, the Company shall pay the Employee (or his legal representatives,
as the case may be), as follows:
(a) within ten (10) days following death or such notice, any
accrued but unpaid Base Salary as of the Termination Date;
(b) the Employee's Base Salary until the expiration of 12
months from the date of death or termination for Disability (the "Extension
Period"), such Base Salary to be paid as and when such Base Salary would have
been paid had the
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employment of the Employee continued through the Extension Period;
(c) within ten (10) days after the next Financial Statement
Receipt Date to occur, an amount equal to (x) the amount of Incentive
Compensation, if any, that would have been payable to the Employee with respect
to the fiscal year during which the Termination Date occurred had the
Termination Date not occurred multiplied by (y) a fraction, the numerator of
which is the number of days in such fiscal year which expired prior to the
Termination Date and the denominator of which is 365;
(d) within ten (10) days following the Termination Date, a
cash payment equal to the Employee's Base Salary on a daily basis (computed on a
365-day year) in effect on the Termination Date, multiplied by the number of
accrued and unused vacation days at the Termination Date;
(e) within ten (10) days following the Termination Date, any
accrued but unpaid expenses incurred by the Employee as of the Termination Date
in accordance with Section 3.02 hereof;
(f) within ten (10) days following the Termination Date, any
accrued and unpaid benefits to which the Employee may be entitled pursuant to
Section 3.01 hereof;
(g) within ten (10) days following the Termination Date, any
other accrued and unpaid compensation payable to the Employee as of the
Termination Date, the amount of which has already been calculated as of the
Termination Date in accordance with the terms hereof; and
(h) within ten (10) days following the date after the
Termination Date as of which it is calculated in accordance with the terms
hereof, any other accrued and unpaid compensation payable to the Employee as of
the Termination Date.
For the purposes of this Agreement, the Employee shall be deemed to
be "Disabled" or have a "Disability" if as a result of the occurrence of mental
or physical disability during the Term he has been unable to perform his duties
hereunder for three (3) consecutive months or ninety (90) days in any twelve
(12) consecutive month period, as determined in good faith by the Board of
Directors of the Company.
The Employee acknowledges that the payments referred to in this
Section 4.03 constitute the only payments to which the Employee (or his legal
representatives, as the case may be) shall
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be entitled to receive from the Company under this Agreement 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) under this Agreement.
4.04 Change of Control. The Employee may, at any time during the six
(6) month period following a Change of Control (as defined in the International
Post Limited 1993 Long Term Incentive Plan), by delivery of written notice to
the Company, terminate his employment hereunder in the event that during such
period the compensation, benefits, authority, responsibilities, privileges,
duties and/or status or title of the Employee are materially diminished
(individually or in the aggregate). Any such permitted termination by the
Employee shall be deemed to constitute a termination without Cause by the
Company under Section 4.02 hereof for all purposes.
ARTICLE V
INVENTIONS; NON-DISCLOSURE; NON-COMPETITION
5.01 Inventions. All processes, technologies and inventions
(collectively, "Inventions"), including new contributions, improvements,
discoveries, trademarks and trade names, conceived, developed, invented, made or
found by the Employee, alone or with others, during his employment by the
Company or within six months after the termination thereof, whether or not
patentable and whether or not conceived, developed, invented, made or found on
the Company's time or with the use of the Company's facilities or materials and
which relate to the postproduction business, shall be the property of the
Company and shall be promptly and fully disclosed by the Employee to the
Company. The Employee shall perform all necessary acts (including, without
limitation, executing and delivering any confirmatory assignments, documents or
instruments requested by the Company) to vest title to any such Invention in the
Company and to enable the Company, at its expense, to secure and maintain
domestic and/or foreign patents or any other rights for such Inventions.
5.02 Non-Disclosure. The Employee shall not, at any time during the
Term or thereafter, directly or indirectly, disclose or furnish to any other
person, firm or corporation except in the course of the proper performance of
his duties hereunder (a) any information relating to any process, technique or
procedure used by the Company; or (b) any information relating to the operations
or financial status of the Company (including, without limitation, all financial
data), which information is not specifically a matter of public record; or (c)
any information of
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a confidential nature obtained as a result of his present or future relationship
with the Company, which information is not specifically a matter of public
record; or (d) the name, address or other information relating to any customer
or supplier of the Company; or (e) any other trade secrets of the Company,
except that the Employee shall not be liable under the terms of this Section
5.02 for disclosing or furnishing any of the foregoing which (1) are or become
generally available to the public other than as a result of a disclosure in
violation of this Agreement, or (2) are generally known in any industry in which
the Company is or may become involved or (3) is required to be disclosed by the
Employee pursuant to law or the order of a court of competent jurisdiction, or
other legal process or authority, it being understood, however, that the
Employee will provide the Company with prompt notice of the requirement for such
disclosure as soon as practical after the Employee is notified thereof and prior
to its disclosure thereof so as to enable the Company to challenge the order
compelling such disclosure if the Company so desires. Promptly upon the
expiration or termination of the Employee's employment hereunder for any reason,
the Employee 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 foregoing information.
5.03 Non-Competition. The Employee agrees that during the
Non-Competition Term (as hereinafter defined) he will not in any manner,
directly or indirectly, except where specifically contemplated by the terms of
his employment or this Employment Agreement, (a) be employed by, engaged in or
participate in 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 the terms Competing Entity and Territory are
hereinafter defined); provided, however, that notwithstanding the foregoing, the
Employee may make solely passive investments in any Competing Entity the common
stock of which is "publicly held" and of which the Employee shall not own or
control, directly or indirectly, in the aggregate securities which constitute 5%
or more of the voting rights or equity ownership of such Competing Entity; or
(b) 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 (c) 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 (d) hire or seek to hire any person who at the time so hired, or
within 12 months prior to such date, was an employee of the Company on the date
hereof or during such Non-Competition Term or assist any person, firm or
corporation in doing so or attempting to do so; provided, however, the foregoing
shall not prohibit the Employee from engaging in the activities and
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investments set forth on Schedule B hereto both during and after the Term.
For purposes of this Section 5.03, (i) the term "Non-Competition
Term" shall mean (x) the Term of this Agreement plus two (2) years, in the event
of a termination of employment pursuant to Section 4.01 and (y) the Scheduled
Term (as long as the Company is in compliance with its obligations under Article
IV), in the event of a termination of employment pursuant to any provision of
Article IV other than Section 4.01; (ii) the term "Competing Entity" shall mean
any entity which presently or hereafter during the Non-Competition Term engages
in any business activity in which the Company or its successor is engaged during
the Non-Competition Term; and (iii) the term "Territory" shall mean any greater
metropolitan area in which the Company is engaged in business while the Employee
is employed by the Company or within six months of the Termination Date.
5.04 Breach of Provisions. In the event that the Employee shall
breach any of the provisions of this Article V, or in the event that any such
breach is threatened by the Employee, 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, to restrain any such
breach or threatened breach and to enforce the provisions of this Article V. The
Employee 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, the Employee shall not use as a defense
thereto that there is an adequate remedy at law.
5.05 Reasonable Restrictions. The parties acknowledge that (a) the
agreements in this Article V are essential to protect the business and goodwill
of the Company, and (b) the foregoing restrictions are under all of the
circumstances reasonable and necessary for the protection of the Company and its
business.
5.06 Definitions. For purposes of this Agreement, the term "Company"
shall be deemed to include any subsidiary of the Company.
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ARTICLE VI
MISCELLANEOUS
6.01 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective legal representatives,
heirs, distributees and successors; provided, that the rights and obligations of
the Employee under this Agreement shall not be assignable by him.
6.02 Notices. All notices and other communications hereunder and all
legal process in regard hereto shall be validly given, made or served if in
writing, when delivered personally (by courier service or otherwise), or when
actually received when mailed by first-class certified or registered United
States mail, postage-prepaid and return receipt requested, to the address of the
party to receive such notice or other communication set forth below, or at such
other address as any party hereto may from time to time advise the other party
pursuant to this Section:
If to the Company:
Video Services Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Board of Directors
If to the Employee:
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
6.03 Severability. If any provision of this Agreement, or portion
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.
6.04 Waiver. No waiver by a party hereto of a breach or default
hereunder by the other party shall be considered
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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.
6.05 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 between the Company and the Employee,
whether written or oral, relating to any or all matters covered by and contained
or otherwise dealt with in this Agreement. No representation, warranty,
undertaking or covenant is made by either party hereto except as provided herein
and any representations, warranties, undertakings or covenants not set forth
herein are specifically disclaimed. This Agreement does not constitute a
commitment of the Company with regard to the Employee's employment, express or
implied, other than to the extent expressly provided for herein.
6.06 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.
6.07 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.
6.08 Titles. The titles of the Articles and Sections of this
Agreement are inserted merely for convenience and ease of reference and shall
not affect or modify the meaning of any of the terms, covenants or conditions of
this Agreement.
6.09 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
internal laws of the State of New York without giving effect to principles
relating to conflicts of law.
6.10 Directors' and Officers' Liability Coverage. The Company will
provide the Employee with appropriate directors and officers liability insurance
coverage throughout the Term. The Employee shall be entitled to indemnification
and advance of expenses by the Company to the fullest extent available under
Delaware law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
17
VIDEO SERVICES CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxxxxx
Name:
Title:
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
18
SCHEDULE A
LIFE INSURANCE POLICIES
Policy Number Issue Date
-------------- ----------
5390709 10/18/75
6099251 09/13/79
6197003 04/01/80
6256020 08/12/80
6433902 07/27/81
7216209 10/14/86
8602222 11/12/90
9754354 07/12/94
All of the above life insurance policies are with Massachusetts Mutual Life
Insurance Company.
19
SCHEDULE B
The direct or indirect ownership and disposition of investments in, and
the exercise, as a stockholder, of the rights of a stockholder with respect to:
Cassette Dub, Inc., a New Jersey corporation, VSC Post Production, Inc., a New
York corporation, Xxxxxx Audio/Video Corporation, a Delaware corporation, Nova
Manufacturing, Inc., a New Jersey corporation, Video Dub, Inc., a New Jersey
corporation, Videotape Distributors, Inc., a New Jersey corporation, VSC
Communications, Inc., a New Jersey corporation and E-Magine, a New York limited
liability company.
