EXHIBIT 10
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the ___ day of ___________,
2000, by and between PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware
corporation, hereinafter referred to as the "Company," and XXXXXXXXXXX X.
XXXXXX, hereinafter referred to as the "Employee."
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the monies to be paid hereunder, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. TERM OF EMPLOYMENT. Upon the effective date of the Company's Chapter
11 Plan of Reorganization, the Company hereby agrees to employ Employee and
Employee hereby accepts employment with the Company for a period of three (3)
years commencing on that date which Employee reports to work at the Company,
which date is anticipated to be within _______ (___) days from the date hereof.
Thereafter, this Agreement shall be renewed annually for additional one (1) year
periods unless one of the parties hereto expresses in writing to the other party
its unwillingness to renew by no later than ninety (90) days prior to the
expiration of the applicable term. Notwithstanding the foregoing, this Agreement
may be terminated earlier as hereinafter set forth.
2. DUTIES OF EMPLOYEE; EXCLUSIVITY. Employee is hereby hired and
employed by the Company as its President and Chief Financial Officer, to perform
the duties and accept the responsibilities as are assigned to him by the
Company's Chief Executive Officer and the Company's Board of Directors. The
Company's Chief Executive Officer shall nominate Employee for election to the
Company's Board of Directors subject to the approval of the Company's entire
Board of Directors, and if so confirmed by the entire Board of Directors
(subject to shareholder approval, as applicable), Employee agrees to serve on
the Company's Board of Directors. Employee shall devote substantially all of his
productive time, ability and attention to the business of the Company during the
term of this Agreement. During the term of this Agreement, Employee will not
engage in any other business activity during business hours without the written
consent of the Company.
3. COMPENSATION. As compensation for services rendered under this
Agreement, Employee shall be entitled to receive from the Company a base salary
of Three Hundred Fifty Thousand Dollars ($350,000.00) per year, payable in
accordance with the normal payroll practices of the Company. In addition to his
base salary, the Company may pay Employee bonuses from time to time as
determined by the Company's Board of Directors. Employee's compensation shall be
reviewed not less than annually by the Company's Board of Directors. In addition
to Employee's aforementioned base salary and discretionary bonuses, Employee and
the Company shall negotiate in good faith to define the terms of a separate
incentive cash and/or stock option bonus arrangement,
such arrangement to be finalized within ninety (90) days of the date hereof;
provided, that it is understood the incentive cash bonus arrangement will
provide Employee the opportunity to earn annual bonuses based upon Employee
receiving a bonus of fifty percent (50%) of Employee's base salary for the
applicable year if Employee meets certain performance targets (which will have
been determined annually in advance by the Company's Chief Executive Officer and
Employee), with the bonus to be adjusted up or down for greater or lesser
performance relative to the targets.
4. EMPLOYEE BENEFITS.
(a) Employee shall be entitled to receive all benefits generally
made available to the senior executives of the Company.
(b) Employee shall be entitled to participate in the Company's
stock option plan for its employees and executive officers. Pursuant to a
separate stock option agreement entered into after the Company's stock option
committee has had an opportunity to meet, but in no event later than ninety (90)
days of the date hereof, Employee shall be granted options to purchase three
hundred thousand (300,000) shares of the Company's common stock (the "Employee
Options"), it being understood that a portion of the Employee Options will be
issued pursuant to the Company's stock option plan, and a portion will be issued
outside of such plan. As more fully described in said separate stock option
agreement, the Employee Options shall be exercisable at a price equal to the
fair market value of the Company's common stock on the date of the granting of
the Employee Options. Except as otherwise expressly described herein, the
Employee Options shall "vest" to Employee, and therefore become non-forfeitable,
in accordance with the terms and provisions of the separate stock option
agreement.
(c) The Company shall reimburse Employee, on a grossed up basis
(taking into account the federal income tax liability resulting to Employee from
such payments), for his reasonable out-of-pocket moving expenses incurred in
relocating to the Orlando, Florida area. Such expenses shall include, but not be
limited to, (i) those relating to the relocation of Employee's family and
Employee's personal property, and (ii) in the event Employee opts to permanently
relocate to the Orlando, Florida area, any reasonable and actual real estate
commissions payable by Employee in connection with the sale of Employee's
current residence and any reasonable and actual closing costs (including title
fees, transfer taxes, etc.) payable by Employee in connection with his new
residence.
(d) During the transition of Employee's residence to the Orlando,
Florida area, the Company shall pay Employee's reasonable housing and other
living expenses incurred in connection therewith, for a period not to exceed two
(2) months. These monies shall be in addition to those moving expenses described
in Section 4(c) above.
(e) The Company will pay Employee a reasonable automobile
allowance for the use of Employee's automobile for business purposes of the
Company, in an amount equivalent to that paid to other senior executives of the
Company, but in no event less than One Thousand Dollars ($1,000.00) per month.
Employee agrees to keep his own automobile maintained and repaired in good
driving condition. Employee agrees to maintain insurance, at his own expense,
on his automobile in amounts acceptable to the Company. A certification of
Employee's insurance showing such coverage shall be filed with the Company.
5. VACATION. Employee shall be entitled to annual vacation at full pay
in accordance with the Company's vacation and leave policies for its senior
executives in effect from time to time. Subject to such policies, the time and
duration for such vacation shall be selected by Employee at his discretion. In
no event shall Employee's vacation entitlement be less than four (4) weeks per
twelve-month period.
6. REIMBURSEMENT OF EMPLOYEE EXPENSES. Employee shall be expected to
incur various business expenses customarily incurred by persons holding like
positions, including, but not limited to, traveling, entertainment and similar
expenses, all of which are to be incurred by Employee for the benefit of the
Company. Subject to the Company's policy regarding the reimbursement of such
expenses, the Company shall promptly reimburse Employee for such expenses at
Employee's request, and Employee shall account to Company for such expenses.
7. NON-DISCLOSURE OF INFORMATION CONCERNING BUSINESS; NON-INTERFERENCE.
(a) Unless otherwise necessary for Employee to properly perform his
job duties pursuant to this Agreement, Employee will not at any time, in any
fashion, form or manner, either directly or indirectly, divulge, disclose, or
communicate to any person, firm, or corporation, or other entity or utilize for
his own benefit, in any manner whatsoever, any trade secrets or any confidential
information of any kind, nature, or description concerning any matters affecting
or relating to the business of the Company and its affiliates or their manner of
operation, or their confidential plans, processes or other data of any kind,
nature or description.
(b) All tangible confidential information and other confidential
documentation, either directly or indirectly coming into the possession of
Employee in the course of his employment, including all copies thereof or
reproductions or drawings made therefrom, shall remain the property of the
Company and shall be returned immediately upon any termination of Employee's
employment. Thereafter, Employee shall not reduce to writing or otherwise record
any of the proprietary or confidential information disclosed to him during his
employment.
(c) Employee shall not purposefully interfere with the Company's
suppliers, customers or other business relations by using the Company's internal
data in a damaging or derogatory manner that would potentially damage the
Company's relationships with such parties.
(d) The Company and Employee hereby stipulate that, as between them,
the foregoing matters are important, material, and confidential, and gravely
affect the effectiveness and successful conduct of the business of the Company,
and its goodwill, and that any breach of the terms of this Section is a material
breach of this Agreement.
(e) The obligations of Employee pursuant to this Section shall
survive any termination of Employee's employment with the Company and shall
remain in effect for one (1) year following the date of termination.
8. NON-COMPETITION BY EMPLOYEE. During the term of this Agreement and
for one (1) year following the termination of this Agreement for any reason
other than pursuant to Section 11 or Section 12(a), Employee shall not, directly
or indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder (other than owning fewer than one percent (1%) of the
outstanding shares of a public corporation), corporate officer, director, or any
other individual or representative capacity, engage or participate in any
business that is in the business of owning, operating or franchising, either
directly or indirectly, a "Themed Establishment". For purposes of this Section,
a "Themed Establishment" shall mean any chain of themed (whether movie, sports,
music or otherwise) restaurants, bars, casinos, or lodging or entertainment
complexes that serve either food or beverages for onsite consumption) anywhere
in the world where, at the time of Employee's termination, the Company is
operating or has committed plans to operate, a Themed Establishment.
9. INJUNCTIVE RELIEF. It is acknowledged and agreed that, in the event
the provisions of this Agreement are breached by Employee, the extent of actual
damages sustained by the Company or its assignee will be difficult of
ascertainment, though great and irreparable, for which any remedy at law would
be inadequate. Therefore, the parties hereto expressly agree that the Company
shall have a right to seek injunctive relief for breach of any of the terms
hereof, plus damages for such breach to the maximum extent permitted by law.
10. TERMINATION BY THE COMPANY FOR CAUSE. The Company may, at its
option, without prejudice to any other remedy to which the Company may be
entitled either at law or in equity under this Agreement, terminate this
Agreement by giving written notice of termination to Employee in the event that:
(a) Employee is convicted of, pleads guilty to, or pleads NOLO
CONTENDRE to a felony crime involving moral turpitude;
(b) Employee is found guilty of or pleads no contest to fraud,
conversion, embezzlement, falsifying records or reports, or a similar crime
involving the Company's property;
(c) Employee willfully commits a material breach of this Agreement
and Employee has failed to cure or remedy such breach within thirty (30) days
following written notice of such breach from the Company; or
(d) The Board of Directors of the Company, after giving Employee an
opportunity to be heard, makes a good faith determination that Employee has
failed to perform in accordance with his duties and responsibilities in some
material respect or has engaged in some type of material wrongful conduct in
connection with his employment by the Company (including, but not limited to,
fraud, conversion, embezzlement, or falsifying records or reports), and Employee
has failed to cure or remedy such failure or conduct within thirty (30) days
following written notice of such failure or conduct from the Company.
In the event Employee's termination shall be effective under this
Section, Employee shall not be entitled to receive any further compensation or
benefits under the terms hereof, provided,
however, that Employee shall be entitled to all compensation and benefits earned
but unpaid as of the date of termination.
11. TERMINATION BY THE COMPANY WITHOUT CAUSE. If the Company terminates
Employee "without cause," which shall mean for any reason other than as set
forth in Section 10, Employee shall: (a) be paid an amount equal to his base
salary in effect at the time of termination for eighteen (18) months after the
date of termination, and (b) become fully "vested" under the terms of the stock
option agreement executed and delivered along with this Agreement.
12. TERMINATION BY EMPLOYEE.
(a) Employee may, at his option, after complying with this Section,
terminate this Agreement in the event of a material breach of the terms of this
Agreement by the Company. A "material breach" by the Company shall include, but
shall not be limited to: (i) a change in control of the Company (as hereinafter
defined), (ii) a material diminution of Employee's responsibilities or authority
contemplated by this Agreement, (iii) the failure of any successor or assignee
of the Company to assume and agree to perform this Agreement, (iv) an adverse
change in Employee's job title or a reduction in Employee's annual base salary
(unless otherwise agreed to by Employee), and (v) any requirement by the Company
that Employee be permanently based anywhere more than fifty (50) miles from the
office where Employee is based at Employee's commencement date. Employee shall
be required to give written notice to the Company, within thirty (30) days of
the occurrence of any such material breach, setting forth with PARTICULARITY the
nature of the material breach. The Company shall have thirty (30) days following
its receipt of Employee's written notice in which to cure its breach before
Employee's termination of this Agreement shall be effective. In the event
Employee's termination shall be effective under this Section 12(a), Employee
shall: (i) be entitled to receive his base salary in effect at the time of
termination for eighteen (18) months after the date of termination and (ii)
become fully "vested" under the terms of the stock option agreement executed and
delivered along with this Agreement.
(b) For purposes of this Section 12, a "change in control of the
Company" is defined as any one or more of the following:
(i) a single person or entity (other than existing shareholders,
employee benefit plans sponsored by the Company, and majority-owned subsidiaries
of the Company) through one or more transactions becomes the beneficial owner of
shares having at least thirty percent (30%) of the total number of votes that
may be cast for the election of directors,
(ii) a merger or other business combination, a sale of all or
substantially all of the Company's assets, or a combination of the foregoing;
provided, however, that the following will not constitute a change in control of
the Company: any transaction involving only the Company and one or more of its
subsidiaries, or any transaction where, immediately following the transaction,
the shareholders of the Company (determined immediately prior to the
transaction) continue to hold a majority of the voting power in the resulting
entity, or
(iii) within any eighteen (18) month period, persons who were
directors (or who were designated to become directors) of the Company at
Employee's commencement
of employment (the "Incumbent Directors") cease (for any reason other than
death) to constitute at least a majority of the Company's Board of Directors, or
the Board of Directors of any successor to the Company; provided, that any
director shall be deemed to be an Incumbent Director if said director was
elected to the Company's Board of Directors on the recommendation of, or with
the approval of, at least two-thirds of the Incumbent Directors.
(c) If Employee terminates this Agreement for any reason other
than a material breach, he shall not be entitled to receive any further
compensation or benefits under the terms hereof, provided, however, that
Employee shall be entitled to all compensation and benefits earned but unpaid as
of the date of termination.
13. INDEMNIFICATION. Subject to any limitations imposed by state or
federal law, and in addition to any rights of Employee under the organizational
documents of the Company, any applicable state law, or any other agreement, the
Company hereby agrees to hold harmless and indemnify Employee against any and
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Employee in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Company) to which Employee is, was or at any time becomes a party,
or is threatened to be made a party, by reason of the fact that Employee is, was
or at any time becomes a director, officer, employee, consultant, or agent of
the Company, or is or was serving or at any times serves at the request of the
Company, as a director, officer, employee, consultant, partner, trustee or agent
(regardless of his title) of another corporation, partnership, joint venture,
trust or other enterprise; provided, that Employee has acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Company. Notwithstanding the foregoing, the Company shall have no
obligation to indemnify Employee for any actions which constitute a breach of
this Agreement.
14. ATTORNEYS' FEES. In the event any litigation or controversy arises
out of or in connection with this Agreement between the parties hereto, the
prevailing party in such litigation or controversy shall be entitled to recover
from the other party or parties all reasonable attorneys' fees, expenses and
suit costs, including those associated with any appellate or post judgment
collection proceedings.
15. TIME OF ESSENCE. Time is of the essence of this Agreement and each
covenant and condition contained herein.
16. NOTICES AND DEMANDS. Any notice or demand which, by any provision
of this Agreement or any agreement, document, or instrument executed pursuant
hereto, except as otherwise provided therein, is required or provided to be
given shall be deemed to have been sufficiently given or served for all purposes
if sent by certified or registered mail, postage and charges prepaid, to the
following addresses: IF TO THE COMPANY, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: General Counsel, with a copy to yrd X. Xxxxxxxx, Xx., Esquire,
Gray, Harris & Xxxxxxxx, 000 X. Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
or at any other address designated by the Company to Employee in writing, and IF
TO EMPLOYEE, ________________, or at any other address designated by mployee to
the Company in writing.
17. SEVERABILITY. In case any covenant, condition, term or provision
contained in this Agreement shall be held to be invalid, illegal, or
unenforceable in any respect, in whole or in part, by judgment, order or decree
of any court or other judicial tribunal of competent jurisdiction, from which
judgment, order or decree no further appeal or petition for review is available,
the validity of the remaining covenants, conditions, terms and provisions
contained in this Agreement, and the validity of the remaining part of any term
or provision held to be partially invalid, illegal or unenforceable, shall in no
way be affected, prejudiced, or disturbed thereby.
18. WAIVER OR MODIFICATION. No waiver or modification of this Agreement
or of any covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration or litigation between the
parties arising out of or affecting this Agreement, or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing and
duly executed as aforesaid. The provisions of this Section may not be waived
except as herein set forth.
19. COMPLETE AGREEMENT. This Agreement and the agreements specifically
contemplated herein constitute the entire agreement of the parties hereto with
respect to the subject matter of this Agreement and supersede any and all
previous agreements between the parties, whether written or oral, with respect
to such subject matter.
20. APPLICABLE LAW, BINDING EFFECT AND VENUE. This Agreement shall be
construed and regulated under and by the laws of the State of Florida, and shall
inure to the benefit of and be binding upon the parties hereto and their heirs,
personal representatives, successors and assigns. Venue for any action related
to or arising out of this Agreement shall lie in Orange County, Florida.
21. SECTION AND PARAGRAPH HEADINGS. Section and paragraph headings used
throughout this Agreement are for reference and onvenience and in no way define,
limit or describe the scope or intent of this Agreement or affect its
provisions.
22. MULTIPLE COPIES OR COUNTERPARTS OF AGREEMENT. The original and one
or more copies of this Agreement may be executed by one or more of the parties
hereto. In such event, all of such executed copies shall have the same force and
effect as the executed original and all of such counterparts taken together
shall have the effect of a fully executed original.
23. NUMBER AND GENDER. Whenever used herein, singular numbers shall
include the plural, the plural the singular, and he use of any gender shall
include all genders.
23. FURTHER ASSURANCES. Each of the parties hereto agree that they
shall sign such additional and supplemental documents as may be necessary to
implement the transactions contemplated pursuant to this Agreement when
requested to do so by any party to this Agreement.
Signed as of the day first written above with the intent to be legally
bound.
COMPANY:
PLANET HOLLYWOOD INTERNATIONAL, INC.,
a Delaware corporation
By:____________________________________
Xxxxxx X. Xxxx, President
EMPLOYEE:
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Xxxxxxxxxxx X. Xxxxxx
