EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") made and entered into as
of December 11, 1996, by and between THE MARQUEE GROUP INC., a Delaware
corporation having a place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Employer"), and XXXXX X. XXXXXXXXX, an individual having a place
of business at 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
("Executive").
WHEREAS, Employer has been established to engage in the
business of providing management, licensing, sponsorship sales, marketing,
consulting and production services to sports related businesses and talent;
and
WHEREAS, Employer desires to employ Executive as its
Executive Vice President, and Executive is willing to be employed in such
capacity;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants contained herein, it is agreed as follows:
1. EMPLOYMENT; DUTIES.
(a) Employer hereby agrees to employ Executive,
and Executive hereby agrees to accept employment during the term hereof, as
Executive Vice President, and shall perform such services in accordance with
the standards observed by senior executives in comparable businesses, subject
at all times to the direction of the Board of Directors of Employer (the
"Board").
(b) During the term of this Agreement, Employer
agrees to cause Executive to be elected to the Board of Directors of Athletes
and Artists, Inc. ("A&A"), a wholly-owned subsidiary of Employer, and to use
its best efforts to cause Executive to be nominated to the Board. Executive
agrees to serve in such capacities upon appointment on the same terms and
conditions as the other executive officer/directors serving on the respective
Board of Directors.
(c) In addition to any obligations Executive
may have to vote his shares of Employer in the manner set forth in that
certain Shareholders' Agreement (the "Shareholders' Agreement"), dated as of
March 21, 1996, by and among The Sillerman Companies, Inc., Xxxxxx X.
Xxxxxxxxx, Xxxxxx Xxxxxxxx, Executive, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx and
Employer, Executive agrees that, during the Employment Term, as hereinafter
defined, he will vote his shares of Employer in the manner set forth in
Section 3.01(d) of the Shareholders' Agreement.
2. TERM OF EMPLOYMENT. Executive's employment
hereunder shall commence on the date of this Agreement and shall continue for
a period of five (5) years therefrom (the "Employment Term").
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3. COMPENSATION.
(a) As consideration for all of the services
performed by Executive under this Agreement, Employer shall pay Executive, as
an annual salary payable in accordance with Employer's ordinary payroll
practices, the sum of one hundred and seventy five thousand dollars
($175,000).
(b) Employer shall reimburse Executive for all
ordinary, reasonable and necessary expenses incurred by Executive in
connection with his duties hereunder upon presentation by Executive of the
details of and vouchers for such expenses. During the term of this Agreement,
Executive shall be entitled to participate in all pension, group insurance,
hospitalization, medical, health, accident and disability plans of Employer
and shall be eligible to be granted options and other benefits under stock
option and similar incentive plans maintained by Employer (it being understood
that the foregoing is not a guarantee that Executive will be granted options
or other benefits under such plans).
4. NON-COMPETITION.
(a) As used herein, the term "Competitive
Activities" means any attempt by Executive, without the prior written consent
of Employer, directly or indirectly, for his own account or as an employee,
officer, director, partner, joint venturer, shareholder, investor (except that
Executive may purchase up to five percent of the outstanding capital stock of
any publicly-traded corporation) or otherwise to engage or participate in the
business of providing management, licensing, sponsorship sales, marketing,
consulting and production services to sports related businesses and talent, in
any area. As used herein, the term "Client Solicitation" means any attempt by
Executive, without the prior written consent of Employer, directly or
indirectly, for his own account or as an employee, officer, director, partner,
joint venturer, shareholder, investor or otherwise to interfere with, disrupt,
or attempt to disrupt, any past, present or prospective relationship,
contractual or otherwise, between Employer and any client, customer, vendor or
supplier of Employer. As used herein, the term "Employee Solicitation" means
any attempt by Executive, without the prior written consent of Employer,
directly or indirectly, for his own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor or otherwise to
employ or solicit the employment or engagement by others of any employee of
Employer who was an employee as of the date of the termination of this
Agreement or within six (6) months prior thereto.
(b) (i) During the term of this Agreement,
Executive will not engage in any Competitive Activities,
Client Solicitation or Employee Solicitation.
(ii) If Executive voluntarily terminates
this Agreement during the first three (3) years hereof, he
will not engage in any Competitive Activities for a period
of one hundred and eighty (180) days after such termination
or engage in any Client Solicitation or Employee
Solicitation for a period of eighteen (18) months after such
termination.
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(iii) If Executive voluntarily terminates
this Agreement after the first three (3) years hereof, he
will not engage in any Competitive Activities for a period
of ninety (90) days after such termination or engage in any
Client Solicitation or Employee Solicitation for a period
one (1) year after such termination.
(iv) If Employer terminates this Agreement
for "Cause" (as hereinafter defined), Executive will not
engage in any Competitive Activities for a period of ninety
(90) days after such termination or engage in any Client
Solicitation or Employee Solicitation for a period of one
(1) year after such termination.
(v) If Employer terminates this Agreement
without Cause, Executive will not be subject to any
prohibitions (other than those, if any, provided under
applicable law) regarding Competitive Activities, Client
Solicitation or Employee Solicitation.
(vi) If, after the end of the Employment
Term, Executive refuses a good faith offer of Employer to
extend Executive's employment on terms substantially similar
to those set forth herein (other than those terms relating
to the length of employment), Executive will not for a
period of eighteen (18) months after the end of the
Employment Term, engage in any Client Solicitation or
Employee Solicitation.
(vii) If, after the end of the Employment
Term, Employer does not make a good faith offer to Executive
to extend Executive's employment on terms substantially
similar to those set forth herein (other than those terms
relating to the length of employment), Executive will not
(A) for a period of one (1) year after the end of the
Employment Term, engage in any Client Solicitation, or (B)
for a period of ninety (90) days after the end of Employment
Term, engage in any Employee Solicitation.
(viii) For purposes of paragraphs (vi) and
(vii) of this Section 4(b), "employment on terms
substantially similar to those set forth herein" shall
include employment with a salary at least as great as the
greater of (A) those set forth in Section 3(a) hereof or (B)
those then payable pursuant to an amendment (whether oral or
written) to the salary provisions set forth in Section 3(a)
hereof. Notwithstanding the foregoing, if, at the end of the
Employment Term, each of the other parties to the
Shareholders' Agreement who then has an employment agreement
with the Company (the "Other Employees") agrees, or has
previously agreed, to a reduction in the salary then payable
to him by Employer, then "employment or terms substantially
similar to those set forth herein" shall include employment
with a salary at least as great as the greater of clause (A)
or (B) above, reduced by the same percentage amount by which
the Other Employees agree, or have previously agreed, to a
reduction in their salary; provided, however, that such
salary will not be less than that specified in clause (A)
above.
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(ix) Nothing in paragraphs (ii) or (iii)
of this Section 4(b) is intended to confer upon Executive
any right to terminate this Agreement other than for the
reasons set forth in Section 7(c) hereof.
(c) In the event that Executive breaches any
provisions of this Section 4 or there is a threatened breach, then, in
addition to any other rights which Employer may have, Employer shall be
entitled to injunctive relief to enforce the restrictions contained herein. In
the event that an actual proceeding is brought in equity to enforce the
provisions of this paragraph, Executive shall not argue as a defense that
there is an adequate remedy at law nor shall Employer be prevented from
seeking any other remedies which may be available.
5. CONFIDENTIALITY. During the term of this Agreement
and thereafter, Executive agrees to hold in strictest confidence, and not to
use, except for the benefit of Employer, or to disclose to any person, firm or
corporation, without the prior written authorization of the Board, any trade
secrets, confidential knowledge, data or other proprietary information of
Employer.
6. VACATION; BENEFITS. Executive shall be entitled to
paid vacation time at the rate of not less than four (4) weeks per calendar
year during the term of his employment hereunder. In addition, Executive will
be permitted to observe religious holidays as personal days and such days off
will not be applied against Executive's vacation time. During the term of this
Agreement, Employer shall maintain medical and dental insurance plans similar
in scope and coverage to those maintained by comparable businesses and
Executive shall be entitled to participate in such plans.
7. TERMINATION.
(a) Anything to the contrary notwithstanding,
this Agreement shall terminate before the expiration of the term hereof in the
event of Executive's (i) death or (ii) at the discretion of Employer, upon
Executive's disability for a period of twenty six (26) consecutive weeks. For
the purposes of this Agreement, "disability" shall mean the incapacitation or
disablement by accident, sickness or otherwise so as to render Executive
mentally or physically incapable of performing the services required to be
performed by him under this Agreement. If, in the discretion of Employer,
Executive has recovered from a disability for which he was terminated and the
Employment Term has not expired, then Employer may, at its option, rehire
Executive on the terms of this Agreement for the period that ends with the
expiration of the Employment Term. If Executive declines such offer to rehire
him, he shall do so without any liability or obligation to Employer, except as
set forth in the next two (2) sentences. If Executive declines such offer to
rehire him, then, if such offer to rehire is extended on or prior to the third
(3rd) anniversary of the date of this Agreement, Executive will not engage in
any Competitive Activities for a period of one hundred and eighty (180) days
after such offer to rehire is extended or engage in any Client Solicitation or
Employee Solicitation for a period of eighteen (18) months after such offer to
rehire is extended. If Executive declines such offer to rehire him, then, if
such offer to rehire is extended after the third (3rd) anniversary of the date
of this Agreement, Executive will not engage in any Competitive Activities for
a period of ninety (90) days after such offer to rehire is extended or engage
in any
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Client Solicitation or Employee Solicitation for a period of one (1) year
after such offer to rehire is extended.
(b) Executive's employment hereunder may also
be terminated by Employer before the expiration of the Employee Term only for
Cause, as herein defined. "Cause" shall mean only one or more of the following
occurrences:
(i) Executive's conviction of a felony by
a court of competent jurisdiction (which conviction, through
lapse of time or otherwise, is not subject to appeal);
(ii) Executive's commission of an act of
fraud or embezzlement upon the Employer;
(iii) the material breach by Executive of
Section 4(b)(i) hereof; or
(iv) in the event of the wilful
malfeasance or gross negligence in the performance of
Executive's duties hereunder or the wilful failure of
Executive to perform his duties hereunder, which
malfeasance, negligence or failure has a material adverse
effect on the business of Employer and continues for a
period of fifteen (15) days after written notice is given to
Executive specifying such malfeasance, negligence or
failure.
(c) Executive may terminate his employment
hereunder only if:
(i) at two (2) consecutive annual meetings
of the stockholders of Employer, or in written consents in
lieu thereof, Executive fails to win election to the Board;
(ii) at two (2) consecutive annual
meetings of the stockholders of A&A, or in written consents
in lieu thereof, Executive fails to win election to the
Board of Directors of A&A;
(iii) Employer fails to pay Executive's
salary for a period of sixty (60) consecutive days; or
(iv) Employer materially breaches any
other covenant by Employer herein contained and such breach
continues for a period of fifteen (15) days following
written notice by Executive to Employer of such breach.
In the event of any termination by Executive of his
employment hereunder pursuant to this Section 7(c), all of Executive's
obligations to Employer set forth herein shall terminate; provided, however,
that Employer shall remain liable for all salary accrued hereunder up to the
date of such termination which shall be payable no later than thirty (30) days
after the date of such
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termination. The foregoing shall not be deemed to restrict Executive's rights
at law or in equity in the event of any breach of this Agreement by Employer.
8. NOTICES. All notices hereunder shall be in writing
and shall be delivered in person or given by registered or certified mail,
postage prepaid, and sent to the parties at the respective addresses above set
forth. Either party may designate any other address to which notice shall be
given by giving notice to the other of such change of address in the manner
herein provided.
9. SEVERABILITY OF PROVISIONS. If any provision of this
agreement shall be declared by a court of competent jurisdiction to be
invalid, illegal or incapable of being enforced in whole or in part, the
remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provision shall be deemed dependent upon any
other covenant or provision unless so expressed herein.
10. GOVERNING LAW. This Agreement shall be construed
and governed by the internal laws of the State of Delaware.
11. NON-WAIVER. The failure of either party to insist
upon the strict performance of any term or condition in this Agreement shall
not be considered a waiver or relinquishment of future compliance therewith.
12. ATTORNEY'S FEES. In the event of a dispute arising
hereunder, each party shall bear its own fees and expenses (including legal
fees and expenses).
13. ENTIRE AGREEMENT; MODIFICATION. This Agreement
contains the entire agreement between the parties relating to the subject
matter hereof. No modification of this Agreement shall be valid unless it is
made in writing and signed by the parties hereto and, if such modification
takes effect within one (1) year from the date hereof, the other Shareholders
(as such term is defined in the Shareholders' Agreement) who are employed by
Employer as of the date of such modification.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
THE MARQUEE GROUP INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
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