EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT, made the 11th day of May, 1999, by and between S.M.A. Video,
Inc., a New York corporation having an office at 000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx ("SMA") and Xxx Xxxxxxxx, residing at 0000 Xxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 ("Xxxxxxxx").
WITNESSETH:
WHEREAS, SMA is engaged in the business of film and videotape editing for
commercial use (the "business"); and
WHEREAS, Xxxxxxxx has extensive experience providing film-to-tape and
tape-to-tape color correction services; and
WHEREAS, SMA wishes to employ the services of Xxxxxxxx and Xxxxxxxx wishes
to provide such services for SMA upon the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of Ten ($10.00) Dollars and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. SERVICES TO BE SUPPLIED BY XXXXXXXX.
SMA hereby employs Xxxxxxxx to provide film-to-tape and tape-to-tape color
correction services. Xxxxxxxx shall devote his services to the business,
exclusively, on a full-time basis and shall not be otherwise employed during
the term of this agreement in providing film-to-tape and tape-to-tape color
correction services or in any other capacity without the express written
consent, in advance, of SMA. Such consent may be withheld for any reason or for
no reason in the sole discretion of SMA.
2. COMPENSATION; BENEFITS.
(a) Salary. SMA shall pay to Xxxxxxxx an annual minimum salary (the
"Salary") of $230,000.00, during the term of this Agreement. The Salary shall
be paid in bi-weekly installments, from which shall be deducted all Federal,
state and city withholding taxes and such other amounts as may be required by
law or agreed upon between the parties.
(b) Benefits. SMA will provide medical coverage for Xxxxxxxx to the extent
of medical coverage in effect for SMA employees in accordance with its health
plan (the benefits may change based upon a number of factors and no guarantee
is made as to the extent of the benefits or that the medical plan at any time
shall be the best coverage available). Xxxxxxxx shall also be entitled to paid
sick days and personal days in accordance with the policy of SMA's employment
manual, and six weeks of paid vacation per year, subject to scheduling with
SMA's personnel department.
(c) Commission. In addition to Salary, Xxxxxxxx shall be paid a commission
at the rate of ten (10%) percent of all Xxxxxxxx Xxxxxxxx (as hereinafter
defined), for the first $1,000,000.00 billed and twenty (20%) percent of all
Xxxxxxxx Xxxxxxxx in excess of $1,000,000.00 per year commencing October 1 and
ending September 30 of each year. "Xxxxxxxx Xxxxxxxx" shall mean all xxxxxxxx
(which shall be at the basic room rate less discounts to customers) by SMA, for
work performed by Xxxxxxxx. Commission payments shall be due and payable to
Xxxxxxxx within thirty (30) days after the end of each calendar quarter for the
three month period immediately preceding the end of the quarter. A computation
of the commission payments will be delivered to Xxxxxxxx, together with payment
of commissions then due to the extent that same have actually been received by
SMA. If Xxxxxxxx disputes any computation, a written objection must be
presented to SMA not later than thirty (30) days after the delivery of the
computation to
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Xxxxxxxx. Thereafter, Xxxxxxxx shall be deemed to have accepted the computation
and shall have no further right to dispute same. No commission shall be payable
to Xxxxxxxx unless and until the amount billed has been paid to SMA.
3. CONFIDENTIALITY; NON-COMPETITION.
(a) All information concerning SMA, including by way of illustration and
not limitation, its clients, its day-to-day operations, its assets and
liabilities and technological secrets, which Xxxxxxxx may become privy to by
virtue of his employment is strictly confidential and is not to be disclosed to
any person or entity.
(b) This agreement of confidentiality and non-competition is a material
and substantial inducement for SMA to enter into this Employment Agreement,
shall be enforceable in law and/or in equity and shall survive the termination
of this Agreement.
4. TERM.
The term of this agreement shall be three (3) years, commencing on the
date hereof.
5. TERMINATION.
a) SMA may terminate this agreement for cause:
i) in the event of the dishonesty, theft, disclosure of confidential
matters to others or other malfeasance of Xxxxxxxx; or
ii) in the event of Xxxxxxxx'x death or disability rendering him
unable to carry out his duties hereunder for a period of two (2) months or
longer; or
iii) in the event that Xxxxxxxx shall fail to carry out his duties
hereunder in a professional and competent manner, in the sole judgment of
Xxxxxxx Xxxxxxxxx and/or Xxxxx Satin.
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b) If this agreement shall be terminated for cause, Xxxxxxxx shall have no
rights whatsoever, under this agreement, or to the use of the offices of SMA or
any of the files, data or equipment contained in the office, except that,
within forty-eight (48) hours after termination, Xxxxxxxx shall be permitted to
remove any personal property belonging to him.
c) Within sixty (60) days after termination, SMA shall prepare and deliver
to Xxxxxxxx a list of commissions which are claimed to be due from SMA. If
Xxxxxxxx disputes the list, it shall prepare and deliver its list of
commissions to SMA. If the parties cannot thereafter resolve their differences,
same shall be submitted to arbitration in accordance with Article 7. In no
event shall commissions be payable to Xxxxxxxx unless and until the xxxxxxxx
upon which they are based have been paid.
6. TERMINOLOGY.
All pronouns and variations thereof shall be deemed to refer to the
masculine, feminine, singular or plural as the identity of the person or
persons may require. Titles of Articles are for convenience only, and neither
limit nor amplify the provisions of the agreement itself.
7. BINDING EFFECT; GOVERNING LAW.
This Agreement shall be binding upon and inure to the benefit of all of the
parties hereto and their successors and any permitted assigns. This agreement
shall be governed by the laws of the State of New York. Any controversy or
claim arising out of or relating to this agreement, or the breach thereof,
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Any such arbitration shall be conducted at the New York City offices
of the American Arbitration Association.
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8. INTEGRATED AGREEMENT; MODIFICATION.
This agreement reflects the full understanding of the parties with respect
to the subject matter hereof and all prior understandings and agreements are
merged herein. This agreement may be modified only by an agreement in writing
signed by each of the parties hereto or their respective successors in
interest.
9. NOTICES.
Any notice or demand which, under the provisions of this agreement or
otherwise, must or may be given or made by any party hereto, shall be in
writing, and may be given or made by personal delivery or by mailing the same
by certified mail, return receipt requested, addressed to the other party at
the address hereinabove set forth or such other address as such party may
designate in writing by notice given pursuant to the provisions hereof. Any
notice given hereunder by mail shall be deemed delivered five (5) days after
being deposited in a United States general or branch post office, enclosed in a
certified, prepaid wrapper, addressed as hereinabove provided.
IN WITNESS WHEREOF the parties have executed this agreement the day and
year first above written.
S.M.A. Video, Inc.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx, Pres.
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
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