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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
Agreement, made this 1st day of March, 1999, between Hallmark
Entertainment Networks, Inc., a Delaware corporation with offices at 1325 Avenue
of the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000, or its permitted assigns
("Employer"), and Xxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 ("Employee").
WITNESSETH:
WHEREAS, Employer desires to retain the services of Employee and
Employee desires to be employed by Employer upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto agree as follows:
1. Employment and Duties.
(a) Effective March 1, 1999 (the "Effective Date"), Employer hereby
employs Employee and Employee hereby agrees to serve as President and Chief
Executive Officer reporting to the Board of Directors of Employer. Employee
agrees to perform such services consistent with Employee's position as shall,
from time to time, be assigned to Employee, including but not limited to
development of existing and new channels which Employer owns or in which
Employer invests. Employee shall use Employee's best efforts to promote the
interests of Employer and shall devote Employee's full business time, energy and
skill exclusively to the business and affairs of Employer during the "Term" (as
"Term" is defined in Paragraph 2 below). So long as it does not interfere with
Employee's performance of his duties hereunder, Employee will be permitted to
continue consulting work with TCI and its affiliates.
(b) Employee's primary duties shall be to act as the chief executive
officer and operating head of Employer responsible for administering the
approved annual budget and directing the overall development of Employer's
business subject to the guidance of the Board of Directors. Employee will be
responsible for such television programs and other audiovisual properties
(collectively, the "Properties" and individually, a "Property") as are assigned
to him. Employer shall use its reasonable best efforts during the Term to
procure Employee's appointment as non-executive Chairman of Odyssey Holdings,
LLC, in which Employer has an investment.
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(c) Employer and its owners may be incorporating subsidiary production
or distribution companies for the development or distribution of individual
Properties. Employer shall have the right to loan or make available, without
additional compensation to Employee, Employee's services as an officer or
director to any such subsidiary, provided, that his duties as an officer of any
such subsidiary shall be consistent with his duties hereunder. Employee further
agrees that all the terms of this Employment Agreement shall be applicable to
Employee's services for each such subsidiary.
2. Term of Employment. The term of Employee's employment ("Term") with
Employer shall commence on the Effective Date and shall end on the day before
the third anniversary of the Effective Date in 2002, unless terminated earlier
as is provided in Paragraph 8 of this Agreement or extended by mutual agreement
of the parties.
3. Compensation.
(a) Salary. As compensation for Employee's services hereunder, Employer
shall pay to Employee a salary at the annual rate of $675,000 per year from the
Effective Date through the end of the Term. Such salary shall be paid biweekly,
in arrears.
(b) Bonuses.
(i) Performance Bonus. As of the day before each anniversary
of the Effective Date through the end of the Term, Employee shall be
entitled to a performance bonus of up to 50% of his then annual rate of
salary if Employer has achieved 20% growth over the immediately
preceding twelve-month period in net revenues to its fully or partially
owned channels, as reasonably determined by Employer. If Employer does
not achieve 20% growth in such net revenues, then Employee shall
receive a pro rata portion of such 50% bonus based on the growth that
does occur, provided that no bonus shall be due if there is no growth
in net revenues. An example of how such performance bonus might be
calculated is attached as Schedule 1 hereto. Such bonus shall be due
within thirty days after it is earned. Subject to the provisions of
Paragraph 8, Employer shall guarantee to Employee a full performance
bonus for the twelve months ending the day before the first anniversary
of the Term. As used herein, "net revenues" shall be determined
according to Employer's normal accounting practices, consistently
applied throughout the Term in accordance with generally accepted
accounting principles, and shall include the
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consolidated net revenues of Employer and its subsidiaries, after
intercompany eliminations, with revenues of partially owned
subsidiaries being included in proportion to Employer's interest in
same. If during the Term, Employer sells or otherwise disposes of an
operation, or acquires part or all of an operation or increases its
interest in a partially owned operation, and as a result net revenues
are reduced or increased, equitable adjustment (as mutually agreed by
Employer and Employee) shall be made in the prior year's base for
purposes of determining Employee's performance bonus.
(ii) Discretionary Bonus. Employee may be paid such additional
bonus and at such times as Employer in its sole discretion determines.
(c) Withholding. All payments of salary shall be made in appropriate
installments to conform with the regular payroll dates for salaried personnel of
Employer. Employer shall be entitled to deduct from each payment of compensation
to Employee such items as federal, state and local income taxes, FICA, and such
other deductions as may be required by law.
(d) Expenses. During the Term, Employer shall pay or reimburse Employee
on an accountable basis for all reasonable and necessary out-of-pocket expenses
for entertainment, first-class travel and hotel accommodations, meals and other
expenditures incurred by Employee in connection with Employee's services to
Employer in accordance with Employer's expense account policies for its senior
executive personnel.
(e) Fringe Benefits. During the Term, Employee shall be entitled to
receive the following fringe benefits: (i) four weeks paid vacation, (ii)
participation in a Share Appreciation Rights ("SAR") Plan in the form attached
as Exhibit A, and (iii) any other fringe benefits, on terms that are or may
become available generally to senior executives of Employer or to any executive
of Employer more senior to Employee, whichever is more favorable to Employee. To
the extent permitted by any fringe benefit plan, all waiting periods applicable
to Employee shall be waived, and if it cannot be waived, Employer shall
reimburse Employee for COBRA and similar payments he may reasonably incur during
such waiting period.
Employee will be granted two million SARs, as of the Effective Date, in
the Share Appreciation Rights Plan, subject to approval of Employer's Board of
Directors.
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(f) SAR Plan Special Rule. Notwithstanding the provisos in the first
sentence of paragraph 4 of the SAR Plan, the limits on distributions shall not
apply to Employee if during the first three years of the Term and one year
thereafter, a "Market Event" occurs. A "Market Event" shall mean (i) a public
offering of equity securities of Employer commenced during the Term and
completed no later than one year after the Term or (ii) a sale of all of the
outstanding stock of Employer or the sale of all or substantially all of the
assets of Employer to an unrelated third party completed no later than one year
after the Term. Furthermore, the Board of Directors of Employer may waive such
limitations in its sole discretion.
4. Place of Employment; Personal Assistant. During the Term, Employee
shall be required to perform Employee's duties at the Los Angeles office of
Employer, and Employee shall undertake all reasonable travel required by
Employer in connection with the performance of Employee's duties hereunder.
Employee's current personal assistant will be employed by Employer as Employee's
personal assistant at the same compensation which such assistant received from
Employee's prior employer.
5. Confidentiality; Intellectual Property; Name and Likeness.
(a) Employee agrees that Employee will not during the Term or
thereafter divulge to anyone (other than Employer (and its principal owners,
executives, representatives and employees who need to know such information) or
any persons designated by Employer) any knowledge or information of any type
whatsoever designated or treated as confidential by Employer relating to the
business of Employer or any of its subsidiaries or affiliates, including,
without limitation, all types of trade secrets, business strategies, marketing
and distribution plans as well as concrete proposals, plans, scripts, treatments
and formats described in subparagraph (b) below. Employee further agrees that
Employee will not disclose, publish or make use of any such knowledge or
information of a confidential nature (other than in the performance of
Employee's duties hereunder) without the prior written consent of Employer. This
provision does not apply to information which becomes available publicly without
the fault of Employee or information which Employee discloses in confidence to
his own privileged representatives or is required to disclose in legal
proceedings, provided Employee gives advance notice to the
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President of Employer and an opportunity to Employer to resist such disclosure
in legal proceedings.
(b) During the Term, Employee will disclose to Employer all concrete
proposals, plans, scripts, treatments, and formats invented or developed by
Employee during the term which relate directly or indirectly to the business of
Employer or any of its subsidiaries or affiliates including, without limitation,
any proposals and plans which may be copyrightable, trademarkable, patentable or
otherwise exploitable. Employee agrees that all such proposals, plans, scripts,
treatments, and formats are and will be the property of Employer. Employee
further agrees, at Employer's request, to do whatever is necessary or desirable
to secure for the Employer the rights to said proposals, plans, scripts,
treatments, and formats, whether by copyright, trademark, patent or otherwise
and to assign, transfer and convey the rights thereto to Employer at Employer's
expense.
(c) Employer shall have the right in perpetuity to use Employee's name
reasonably in connection with credits for Properties for which Employee performs
any services.
6. Employee's Representations. Employee represents and warrants that:
(a) Employee has the right to enter into this Agreement and is not
subject to any contract, commitment, agreement, arrangement or restriction of
any kind which would prevent Employee from performing Employee's duties and
obligations hereunder;
(b) To the best of Employee's knowledge, Employee is not subject to any
undisclosed medical condition which might have a material effect on Employee's
ability to perform satisfactorily Employee's services hereunder.
7. Non-Competition: No Raid.
(a) During the Term, and except as permitted under Paragraph 1(a),
Employee shall not engage directly or indirectly, whether as an employee,
independent contractor, consultant, partner, shareholder or otherwise, in a
business or other endeavor which interferes with any of his duties or
obligations hereunder or which is directly competitive with the business of the
Employer or its subsidiaries, including but not limited to the production,
distribution or any other exploitation of audiovisual television material (the
"Other Business").
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(b) Employee further agrees that during the Term and for a period of
one year thereafter, Employee will not employ or knowingly attempt to employ or
assist anyone else to employ any person who is, at the date of termination of
Employee's employment, working as an officer, policymaker or in high-level
creative development or distribution (including without limitation executive
employees) for or rendering substantially full-time services as such to
Employer.
8. Termination.
(a) This Agreement may be terminated and the Term ended on five
business days written notice for any one of the following reasons (except (i) in
which case termination shall occur on the date of death):
(i) The death of Employee;
(ii) By Employer, on the physical or mental disability of
Employee to such an extent that Employee is unable to render services
to Employer for a period exceeding an aggregate of ninety business days
during any twelve-month period of the Term. For purposes of counting
the aggregate of ninety business days, days properly designated by
Employee as vacation days shall not be counted;
(iii) By Employer, for "cause," which for purposes of this
Agreement shall be defined as:
(A) the illegal use of a controlled substance, or the
immoderate use of alcohol which adversely and materially or
frequently affects Employee's performance of Employee's
services under this Agreement;
(B) Employee's conviction of any act which
constitutes a felony under federal, state or local laws or the
law of any foreign country;
(C) Employee's persistent failure after written
notice to perform, or Employee's persistent refusal to perform
after written notice, Employee's duties and responsibilities
pursuant to this Agreement; or
(D) Employee's dishonesty in non-trivial financial
dealings with or on behalf of Employer, its subsidiaries,
affiliates and parent corporation or in connection with
performance of his duties hereunder,
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(iv) By Employee, for "good reason" which phrase shall mean:
(a) a material breach by Employer of any of its material obligations to
Employee hereunder which Employer has failed to cure within ten
business days after written notice from Employee specifying such
breach; or (b) a public offering of equity securities is completed, if
at the time of such offering, such entity is the owner, directly or
indirectly, of a controlling interest in Employer, provided that this
clause (b) shall not apply to any public offering of equity securities
by Employer or any subsidiary of Employer.
(b) Employer shall also have the right to terminate Employee prior to
the expiration of the Term in addition to pursuant to Paragraph 8(a) above by
providing Employee with not less than thirty (30) days advance notice in
writing. In the event of a termination pursuant to this Paragraph 8(b), the
Employer shall pay to the Employee within thirty (30) days after such notice of
termination the remaining amounts described in Paragraph 3 above for the balance
of the Term (or if less than one hundred eighty (180) days are left in the Term
at the expiration of such thirty (30) days), for one hundred eighty (180) days
as if there had been no termination of this Agreement, discounted to the date of
payment at the Alternate Base Rate (as such term is defined in an October 16,
1998 Credit Agreement, as amended, between Hallmark Entertainment, Inc. and
Chase Manhattan Bank) on the date payment is made pursuant to this Paragraph
8(b), and except for any annual bonus and payments under the SAR Plan which
Employee is due hereunder (which shall be paid when due), Employer shall have no
further obligations to Employee hereunder. If Employer terminates Employee under
this Paragraph 8(b), Paragraph 7(a) shall not apply from the date of
termination.
(c) In the event that Employer terminates this Agreement due to any of
the reasons set forth in Paragraphs 8(a)(i) and 8(a)(iii)(A)-(D) above, Employee
shall be paid Employee's salary through the later of the expiration of the five
(5) business days period referred to in Paragraph 8(a) or the end of the month
in which the termination event occurs after which Employer's obligation to pay
salary to Employee shall terminate. Should Employer terminate this Agreement due
to Employee's disability as defined above in Paragraph 8(a)(ii), Employee shall
continue to receive six months of salary. After making the payments provided for
in this subparagraph (c), Employer shall have no further obligations to
Employee.
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(d) If Employee validly terminates this Agreement for good reason,
Employer shall pay to Employee within thirty (30) days after such notice of
termination the remaining amounts described in Paragraph 3 above for the balance
of the Term, discounted to the date of payment at the Alternate Base Rate on the
date payment is made pursuant to this Paragraph 8(d) and except for any annual
bonus and payments under the SAR Plan which Employee is due hereunder, Employer
shall have no further obligations to Employee hereunder. If Employee terminates
this Agreement under this Paragraph 8(d), Paragraph 7(a) shall not apply from
the date of termination.
(e) Upon termination of this Agreement, Employee shall promptly return
all of Employer's property to Employer.
(f) Upon termination of Employee's employment for any reason, Employee
shall tender Employee's resignation from the Board of Directors of any of
Employer's subsidiaries or affiliates on which Employee is serving, and Employer
shall accept such resignation forthwith.
9. Breach: Remedies. Both parties recognize that the services to be
rendered under this Agreement by Employee are special, unique and extraordinary
in character, and that in the event of the breach by Employee of the terms and
conditions of this Agreement, Employer shall be entitled inter alia, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, and to seek to enforce the specific performance thereof by
Employee, and/or to seek to enjoin Employee from performing services for any
other person, firm or corporation. The parties further stipulate that the law of
New York shall apply to any dispute or action regarding this agreement and
Employee agrees to submit to the jurisdiction of any court of competent
jurisdiction in New York in any such action and agrees to waive all objections
to such jurisdiction, including (but not limited to) any objections based upon
lack of personal jurisdiction or venue or forum non conveniens.
10. Assignment. This Agreement is a personal contract and, except as
specifically set forth herein, the rights, interests and obligations of Employee
herein may not be sold, transferred, assigned, pledged or hypothecated, although
she may assign or use as security payments due hereunder from Employer. The
rights and obligations of Employer hereunder shall bind in their
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entirety the successors and assigns of Employer, although Employer shall remain
fully liable hereunder. As used in this Agreement, the term "successor" shall
include any person, firm, corporation or other business entity which at the
time, whether by merger, purchase or otherwise, acquires all or substantially
all of the assets or business of Employer.
11. Amendment: Captions. This Agreement contains the entire agreement
between the parties. It may not be changed orally, but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Paragraph headings are for convenience of
reference only and shall not be considered a part of this Agreement. If any
clause in this Agreement is found to be unenforceable, illegal or contrary to
public policy, the parties agree that this Agreement shall remain in full force
and effect except for such clause.
12. Prior Agreements. This Agreement supersedes and terminates all
prior agreements between the parties relating to the subject matter herein
addressed, and sets out the full agreement between the parties concerning its
subject matter.
13. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed effective when delivered in
person or, if mailed, by registered or certified mail, return receipt requested,
in which case the notice shall be deemed effective on the date of deposit in the
mails, postage prepaid, addressed to Employee at Employee's address first
written above and, in the case of Employer, addressed to its President with a
copy to General Counsel, Hallmark Cards, Incorporated, 0000 XxXxx Xxxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000. Either party may change the address to which
notices are to be addressed by notice in writing given to the other in
accordance with the terms hereof.
14. Periods of Time. Whenever in this Agreement there is a period of
time specified for the giving of notices or the taking of action, the period
shall be calculated excluding the day on which the giver sends notice and
excluding the day on which action to be taken is actually taken.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute one instrument.
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IN WITNESS WHEREOF, Employer has by its appropriate officer signed this
Agreement and Employee has signed this Agreement as of the day and year first
above with.
HALLMARK ENTERTAINMENT NETWORKS,
/s/ XXXXXX X. XXXXX, XX.
By: Xxxxxx X. Xxxxx, Xx.
-----------------------------
Title: President
---------------------------
EMPLOYEE
/s/ XXXXX XXXXX
---------------------------------
Xxxxx Xxxxx
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SCHEDULE 1
Examples of Calculation of Performance Bonus
Assumption:
Annual Salary = $675,000.
Basis for measure: increase in net revenues to Employer's fully or
partially owned channels.
A. If net revenues increase by 20% or more, then performance
bonus equals $337,500, or 50% of salary.
B. If net revenues increase by 10%, then performance bonus equals
$168,750, or 25% of salary.
C. If net revenues increase by 5%, then performance bonus equals
$84,375, or 12.5% of salary.
D. If net revenues do not increase, there will be no performance
bonus.
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Exhibit A
HALLMARK ENTERTAINMENT NETWORKS, INC.
Share Appreciation Rights Plan
1. PURPOSE. To provide the chief executive officer and other key
officers of the Company with incentives linked to the increase in the Company's
market value.
2. ELIGIBILITY. The chief executive officer and other key officers of
the Company as approved by the Board of the Company.
3. SHARE APPRECIATION RIGHTS. The Board of Directors has authorized the
creation of 3,000,000 phantom share appreciation rights ("SARs"). The SARs will
be subject to restrictions herein described related to their exercise and
transferability and will provide plan participants with the right to benefit
from any increase in the value of SARs for a specified number of years. The SARs
will have none of the rights associated with common shares such as voting or
dividend rights and will have no value outside the context of this Plan.
4. UNIT VALUATION. Initially, the value of an SAR (the "Unit Value")
will be an amount equal to 3% of $450 million, i.e., $13.5 million, divided by
3,000,000. Subsequently the Unit Value will be the quotient of (i) an amount
equal to 3% of the Plan Value of the Company divided by (ii) 3,000,000;
provided, however, that the aggregate distribution pursuant to this Plan shall
not exceed $15 million and provided, further, that the aggregate distribution
pursuant to this Plan to any single person shall not exceed $10 million.
A. Except as set forth in subparagraphs 4C and D and 7B below,
during any period when the Company's stock is not publicly traded, the "Plan
Value of the Company" shall be the fair market value of the common stock of the
Company, determined as set forth below. The "fair market value of the Company"
means the price which could reasonably be expected to be obtained for the common
stock of the Company within six (6) months after the valuation if it were sold
in a single arms' length transaction wherein there would be a change of control,
using valuation techniques then prevailing in the industry that would maximize
after tax earnings to Hallmark and assuming a reasonable period for effecting
such sale. The Qualified Appraisers, hereinafter defined, shall consider, among
other factors they deem relevant and customarily considered in transactions of
this nature in determining the value of the Company, whether the business is
continuing as an ongoing concern and whether the then current management is
remaining in place and for what duration or, if known, the new management team.
B. Except as set forth in subparagraphs 4C and D and 7B below, and
unless less than 10% of the outstanding stock of the Company is publicly traded,
during any period when the Company's common stock is publicly traded, the "Plan
Value of the Company" shall be the market capitalization of the Company (i.e.,
the closing market value of a share of common stock of the Company as shown in
The Wall Street Journal on the valuation date or the next
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following date on which such trading occurred, times the number of outstanding
shares of stock of the Company).
C. In the event of the sale of all of the outstanding stock of the
Company, the Plan Value of the Company shall be the sale price of the common
stock of the Company.
D. In the event of the sale of all or substantially all of the
assets of the Company, the Plan Value of the Company shall be the sale price of
the assets, net of the amount of any debt assumed by the buyer or the amount of
any debt required to be paid by Seller.
5. SAR GRANTS. SARs shall be granted at the discretion of the Board of
Directors. At the date of a grant of SARs, the exercise price ("Base Value") of
an SAR will equal the most recently determined Unit Value. Thereafter the Base
Value of a granted SAR will be increased by an amount equal to the quotient of
3% of (i) any equity contribution by stockholders or members to the Company
divided by (ii) 3,000,000 and decreased by an amount equal to the quotient of
(i) 3% of any capital distributions of dividends to stockholders divided by (ii)
3,000,000.
6. SAR EXERCISE.
A. Term. The term of the Plan and of each SAR will end December 31,
2002. The SARs, vested or unvested, will have no rights or value after their
term has expired except as provided in Xxxxxxxxx 0X.
B. Vesting Provisions. SARs will vest in thirty-six (36) equal
installments commencing the date of grant and monthly thereafter.
C. Payment on Exercise. Upon exercise of a vested SAR the
participant will receive the Appreciation Value of the SAR. "Appreciation Value"
means an amount equal to the excess, if any, of the Unit Value determined as
herein provided over the Base Value of the SAR being exercised. Payment will be
made in cash unless the Company is prevented by law or the terms of any credit
agreement or otherwise from doing so in which event it will issue a negotiable
note in the amount due with interest at the prevailing prime rate as published
in The Wall Street Journal on the date of issuance. Payments on any such notes
will be subordinate to the payment of indebtedness of the Company for borrowed
money from external sources, to the extent that the terms of that borrowed money
prevent payment of such notes, and will be paid as soon as permitted.
7. REDEMPTIONS.
A. Any vested SARs outstanding on the day after the end of the Plan
term shall be bought by the Company at their Appreciation Value.
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B. In the event of the sale of a controlling interest of the Company
or of all or substantially all of its assets, the Company will have the right
(but not the obligation) to buy back any or all remaining SARs at their
Appreciation Value. In the event of a sale of a controlling interest in the
Company but not the entire Company, the Appreciation Value shall be calculated
as if it were a redemption at the end of the Plan term. In such event all SARs
shall be fully vested.
8. TERMINATION. In the event of a participant's involuntary termination
without cause or a participant's termination for "good reason" from the Company,
one-half of the participant's unvested SARs shall be vested. In the event of a
participant's voluntary termination without "good reason" or involuntary
termination with cause from the Company or its affiliates, all unvested SARs
shall be forfeited. "Termination Without Cause" as used herein shall mean what
such term is defined in a participant's employment agreement or it shall mean
(if such term is not otherwise defined in a participant's employment agreement)
termination which is not reasonably justifiable by participant's conduct,
failure to perform as directed, or behavior damaging to the reputation or image
of the Company or its business or which materially impairs the effectiveness of
the participant in his/her position. Any other involuntary termination shall be
deemed to be with cause. Termination by a participant for "good reason" shall be
as defined in his employment agreement (or if not defined in a current
employment agreement, due to a substantial breach by the Company of his written
employment agreement). The good faith determination of the Board of Directors as
to whether a termination is with or without cause or is voluntary shall be
binding on the participant.
Determination of the value of the vested SARs will be made as if SARs
were exercised at the end of the year preceding the year of the participant's
termination, except that on a termination "without cause" or for "good reason,"
a participant may elect, by written notice delivered to Company within 30 days
after such termination, to have his SARs valued under paragraph 7 as if there
had been no termination.
9. RETIREMENT, DEATH, OR PERMANENT DISABILITY. In the event of a
participant's retirement, death or permanent disability:
-- Unvested SARs shall be vested.
-- Vested SARs shall be valued at an amount equaling the
difference between the Base Value of the SARs being exercised
and the most recently determined Unit Value for such SARs
pursuant to 11E prior to the date of retirement, death or
permanent disability.
10. SALE OF A CONTROLLING INTEREST. In the event of the sale of
controlling interest of the Company or of all or substantially all of its assets
and the Company does not elect to mandatorily buy-back any and/or all SARs, the
Company shall require under the terms of the
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transaction that the third party transferee be bound by any and/or all Plan
obligations of the Company.
11. MISCELLANEOUS.
A. Funding. All benefits from this Plan shall be payable solely
from the general assets of the Company and no separate or special funds shall be
established and no segregation of assets shall be made to assure the payment of
benefits from this Plan. The participant shall have no right, title, or interest
in or to any investments which the Company may make to aid in meeting its
obligations under this Plan. Nothing contained in this document, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind or a fiduciary relationship between the Company and a participant or
any other person. To the extent that any person acquires a right to receive
payments from the Company pursuant to this Plan, such rights shall be not
greater than the right of an unsecured creditor of the Company.
B. Transfer. SARs may not be transferred other than to the Company,
or one of its shareholders with the consent of the Company, and by will or the
laws of descent and distribution. Each participant shall have the revocable
right to make a written designation of one or more beneficiaries and one or more
contingent beneficiaries. The designation of a beneficiary, and any revocation
and redesignation, shall be effective when received by the Company. No
participant may assign, transfer, alienate, or encumber in any manner his
interest under this Plan. No participant may borrow funds and grant a security
interest or otherwise pledge his rights under this Plan. No provision of this
Plan shall be construed to limit the right of the Company to discharge any
participant or to confer upon any participant the right to continued employment
or any other right not specifically granted in this document.
C. Taxes. The Company shall be entitled to withhold the amount of
any withholding tax or other amounts required by law or regulation to be
withheld with respect to any amount payable under this Plan.
D. Administration. This Plan shall be administered by the Board of
Directors of the Company. The Board shall have full power to construe and
interpret this Plan, to establish and amend rules for its administration, to
grant SARs under the Plan, to decide any dispute which may arise thereunder and
to correct any defect or omission or reconcile any inconsistency in this Plan
and any employment agreement. All actions taken and decisions made by the Board
pursuant to this Plan in good faith shall be binding and conclusive on all
persons interested in the Plan. No member of the Board shall be liable for any
action or determination made in good faith with respect to the Plan.
E. Determination of Plan Value of the Company. Except as set forth
in subparagraphs 4C, 4D and 7B, the Plan Value of the Company pursuant to
Sections 4 and 7 hereof, for the purpose of valuation and payment of SARs (other
than a redemption at the end of the term) shall be as agreed by the participant
(or his legal representatives in the event of his
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death) holding more than a majority of the vested SARs (the "Designated
Participant") and the Board of Directors or, failing to agree, as determined by
the independent appraiser which values Hallmark annually, based upon its most
recent appraisal but adjusted for the fair market value definition herein
including an assumed change in control and for the Equity Return and debts as
set forth in Paragraph 4A relating to Plan Value of the Company. For the purpose
of a redemption by the Company at the end of the term and except as set forth in
subparagraphs 4C, 4D and 7B, the Plan Value pursuant to Sections 4 and 7 hereof
shall be as agreed by the Designated Participant and the Board of Directors or,
failing to agree, the Board and the Designated Participant shall each designate
a Qualified Appraiser, which Qualified Appraisers shall be retained by the
Company to determine the Plan Value of the Company as of the applicable
Appraisal Date. Each Qualified Appraiser shall submit its written determination
of the Plan Value of the Company to the Company within 45 days after the date of
its retention. If the higher determination of the two Qualified Appraisers is
not greater than 110% of the lower determination, the Plan Value of the Company
shall be the average of such two determinations. If the higher determination is
greater than 110% of the lower determination then such two Qualified Appraisers
shall jointly select within ten (10) days after the date on which the later of
such two determinations was delivered a third Qualified Appraiser to be retained
by the Company. Such third Qualified Appraiser shall deliver its written
determination of the Plan Value of the Company as of the applicable Appraisal
Date within 30 days after its retention, and the Plan Value of the Company shall
be the average of the two closest determinations or, if there are not two
closest determinations, the average of all three determinations. "Qualified
Appraiser" shall mean a nationally recognized appraisal or investment banking
firm with substantial experience as of the applicable Appraisal Date in valuing
entertainment properties. The Company shall pay the expense of the appraiser
selected by it and, up to $100,000 for the second and third appraisers
collectively. The selling participant shall pay the balance of the cost of such
appraisers.
F. Amendments. This Plan may be amended by the Board of Directors
of the Company provided if any amendment would materially adversely affect the
rights of Plan participants to outstanding SARs, e.g., the issuance of
additional SARs which would dilute the value of outstanding SARs, it must be
approved by holders of 50% of the outstanding SARs.
G. Employment Agreements. The provisions hereof may be modified by
the employment agreements between a participant and the Company. In such event
the provision of the Employment Agreement shall control.
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