Exhibit 10.08
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the ___ day of May, 1996, by
and between Clearview Cinema Group, Inc., a Delaware Corporation (the
"Company"), and A. Xxxx Xxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company wishes to employ the Employee as President, Chief
Executive Officer and Chairman of the Board of Directors of the Company for the
period provided in this Agreement, and the Employee is willing to serve in the
employ of the Company on a full-time basis for said period, upon the terms and
conditions set below; and
WHEREAS, the execution and delivery of this Employment Agreement is a
condition to closing under that certain Preferred Stock and Warrant Purchase
Agreement dated as of the date hereof between the Company and MidMark Capital,
L.P.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Employment. The Company agrees to employ the Employee, and the Employee
agrees to be employed by the Company, for the period stated in Paragraph 3
hereof and upon the other terms and conditions herein provided.
2. Position and Responsibilities. The Employee shall serve as President,
Chief Executive Office, and Chairman of the Board of Directors of the Company.
The Employee shall be responsible for such duties as are commensurate with his
office and as may from time to time be reasonably assigned to the Employee by
the Board, as the case may be.
3. Term. The term of this Agreement shall be seven years; provided,
however, that the Agreement shall thereafter be automatically extended for
successive one-year terms unless notice shall be given in writing by either of
the Company or Employee at least six months prior to the end of such term (as it
may be extended) that such party desires to terminate this Agreement.
4. Compensation, Reimbursement of Expenses and Vacation.
(a) Salary and Bonus. For all services rendered by the Employee in any
capacity during his employment under this Agreement, including, without
limitation, service as an executive, officer, director, or member of any
committee of the Company or of any subsidiary, affiliate, or division thereof,
the Company shall pay the Employee as compensation (i) a salary at the rate of
not less than $120,000 per year and (ii) a bonus each year of one percent of
gross revenue in excess of $7,000,000; provided, however, that such bonus
together with Employee's salary shall not exceed $750,000 in any given year.
Such salary shall be payable in accordance with the customary payroll practices
of the Company, but in no event less frequently than monthly, and any such bonus
shall be payable monthly based on estimated revenues and shall be adjusted at
the end of each year.
(b) Reimbursement of Expenses. The Company shall pay, or reimburse the
Employee for, all reasonable travel, entertainment and other expenses incurred
by the Employee in the performance of his obligations under this Agreement.
5. Participation in Benefit Plans. The payments provided in Paragraph 4
hereof are in addition to any benefits to which the Employee may be, or may
become, entitled under the terms of any present or future employee benefit plan
or program of the Company.
6. Termination. (a) The Company shall have the right to terminate this
Agreement prior to the expiration of the term set forth in Section 3 only the
conviction of Employee of theft or embezzlement of money or property, fraud,
unauthorized appropriation of any tangible or intangible assets or property or
any other felony involving dishonesty or moral turpitude. The Company shall have
no obligations to the Employee for any period subsequent to the effective date
of any termination of this Agreement pursuant to this paragraph 6, except for
the payment of salary and benefits earned prior to such termination.
(b) In the event that the Company terminates the Employee's employment for
reason(s) other than those set forth in Section 6(a) prior to expiration of this
Agreement under Paragraph 3 hereof, the Employee shall be entitled to continue
to receive his salary (including bonuses calculated as set forth in Section 4
hereof, until the expiration of this Agreement under Paragraph 3 hereof. During
such period, the Employee shall have a duty to seek other employment, but shall
not be required to accept any position other than a position (i) as a senior
executive officer with the same general responsibilites that the Employee
possessed at the Company at the time of the Employee's termination from the
Company and (ii) with a company equal or larger in earnings and tangible net
worth than the Company at the time of the Employee's termination. The Employee
may, however, accept any full-time position at any level and at any salary with
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any entity, profit or non-profit, and the Employee, by accepting such
employment, shall be conclusively deemed to have fulfilled his duty to seek
employment under this Section 6. The Company shall be entitled to reduce the
salary (including bonus) paid to the Employee during his employment by another
entity by an amount equal to the amount earned by the Employee from any such
Employment during such period. In the event that a dispute shall arise as to
this Section 6(b), (i) the Company shall continue to pay the Employee's salary
(including bonus) into an escrow account not under the control of the Company
and (ii) the Company shall pay the legal fees and expenses incurred by the
Employee in litigating any dispute under this Section 6 in the event that the
Employee prevails in such dispute.
7. Disability. If the Employee is completely disabled in the written
opinion of a physician mutually agreeable to the Employee (or his legal
representative) and the Company, or in the event that no such physician is
chosen, if the Employee is unable to perform his services on substantially a
full-time basis for a period in excess of six consecutive months or 180 days in
any one year period, the Company shall be entitled to reduce the salary
(including bonus) paid to the Employee by subtracting from such salary and bonus
(i) the salary of such person as is hired by the Company to perform the office
of President, Chief Executive Officer, and Chairman of the Board of Directors
and (ii) any amounts received by the Employee from any disability insurance
policy maintained by the Company in favor of the Employee; provided, however,
that in no event shall the salary (including bonus) paid to the Employee plus
any disability insurance proceeds actually paid to the Employee be less than
$120,000 per year.
8. Death. The Employee's employment shall be terminated upon the Employee's
death; provided, however, that in such event the Company shall pay to the
Employee's estate an amount equal to the Employee's salary (plus bonus based on
the performance of the Company during the six-month period immediately following
the Employee's death) for a six-month period immediately following the
Employee's death. Such payment may be made in a lump sum (based on an estimate
of the applicable bonus amount, to be adjusted, if necessary, following the end
of the six-month period) immediately following such termination or may be paid
over the six-month period in accordance with the normal payroll practices of the
Company.
9. Confidential Information; Non-Competition; Enforceability.
(a) The Employee shall not at any time, whether before or after the
termination of this Agreement, divulge, furnish or make accessible to anyone
(other than in the ordinary course of the business of the Company or any
subsidiary thereof) any
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knowledge or information with respect to confidential or secret designs,
processes, formulae, plans, devices, material, or research or development work
of the Company or any subsidiary thereof, or with respect to any other
confidential or secret aspect of the business of the Company or any subsidiary
thereof.
(b) For a period of three years after the termination of this Agreement,
the Employee shall not, directly or indirectly, engage or become interested in
(as owner, stockholder, partner or otherwise) the operation of any business
similar to or in competition (direct or indirect) with the Company within a 50
mile radius of any theater then owned and/or operated by the Company or any of
its subsidiaries. If any court construes the covenant in this Section 7 or any
part thereof, to be unenforceable because of its duration or the area covered
thereby, the court shall have the power to reduce the duration or area to the
extent necessary so that such provision is enforceable.
(c) The covenants set forth in this Section 9 shall be deemed separable and
the invalidity of any covenant shall not affect the validity or enforceability
of any other covenant. If any period of time or limitation of geographical area
stated in paragraph 9(b) is longer or greater than the maximum period or
geographical area permitted by law, then the period of time or geographical area
stated therein shall be deemed to be such maximum permissible period of time or
geographical area, as the case may be. All parties recognize that the foregoing
covenants are a prime consideration for the Company to enter into this Agreement
and that the Company's remedies at law for damages in the event of any breach
shall be inadequate. In the event that there is a breach of any of the foregoing
covenants, the Company, shall be entitled to institute and prosecute proceedings
in any court of competent jurisdiction to enforce specific performance of any
such covenants by the Employee or to enjoin the Employee from performing acts in
breach of any such covenant.
10. Tax Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, local or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
11. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the Company or any predecessor of the Company and the
Employee.
12. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee or his beneficiaries or legal
representatives without the
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Company's prior written consent; provided, however, that nothing in this
Paragraph 9(a) shall preclude (i) the Employee from designating a beneficiary to
receive any benefit payable hereunder following his death, or (ii) the
executors, administrators, or other legal representatives of the Employee or his
estate from assigning any rights hereunder to the person or persons entitled
thereto.
(b) No Attachment. Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
(c) Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the Employee and the Company and their respective permitted
successors and assigns.
13. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be modified or amended
except by an instrument in writing signed by the parties hereto, and approved by
a majority of the members of the Board of Directors who were not nominated by
Employee.
(b) Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
14. Severability. If, for any reason, any provision of this Agreement is
held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect
15. Headings. The headings of sections herein are included solely for
convenience of reference and shall not
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control the meaning or interpretation of any of the provisions of this
Agreement.
16. Governing Law. This Agreement has been executed and delivered in the
State of New Jersey, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of said State other than the conflict
of laws provisions of such laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its officers thereunto duly authorized, and the Employee has signed this
Agreement, all as of the day and year first above written.
ATTEST: CLEARVIEW CINEMA GROUP, INC.
_______________________________ By:_________________________
Title:_________________________ Title:______________________
WITNESS: Employee
_______________________________ ____________________________
A. Xxxx Xxxx
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