PANAVISION INC.
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
January 10, 2005
Xx. Xxxx Xxxxxx
000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Dear Xxxx:
This letter agreement and release (the "Agreement") confirms the agreement
entered into between you and Panavision Inc. (the "Company") regarding the
termination of your employment with the Company effective January 14, 2005 (the
"Effective Date") and explains the package of separation pay and benefits that
has been specially developed for you in full bargained for release and
settlement of any and all claims that you have presently, may have or have had
in the past arising from your employment with and termination of your
employment from the Company up to and including the Effective Date of this
Agreement. For purposes of this Agreement, the term the "Company" includes
Panavision Inc. and any of its past, present or future parent and subsidiary
corporations, affiliates, divisions, successors and assigns (whether or not
incorporated) and any of their past, present or future employees, agents,
assigns, officers, directors and shareholders whether acting in their
individual or representative capacity.
1. CONSIDERATION IN SETTLEMENT. If you execute (and do not revoke) this
Agreement and fully comply with its terms and conditions:
(a) SEVERANCE PAY. You will receive severance pay of $500,000, less all
applicable federal, state and local withholding taxes, for a total of eighteen
months beginning on January 1, 2005 (the "Severance Period"). $150,000 of this
payment will be made on the Effective Date and the remainder will be made in
equal installments on the Company's regularly scheduled pay dates commencing on
the Company's first regularly scheduled pay date after the Effective Date and
continuing through the Severance Period. The initial payment of $150,000 will
be made by wire transfer to an account designated by you and the remaining
payments under this Agreement will be made by check and sent to you at the
address listed above.
(b) CONTINUATION OF MEDICAL AND/OR DENTAL INSURANCE BENEFITS. You will be
permitted to continue participation in the Company's group medical and/or
dental insurance benefit plans as in effect and amended from time to time at
the contribution level in effect for your current employment until (i) the end
of the Severance Period, (ii) you become entitled to Medicare or (iii) you
become eligible for coverage under medical
and/or dental insurance benefit plans, as the case may be, of another employer
through your future employment, whichever occurs first. The period of
continuation of medical and/or dental insurance benefits under COBRA will
commence on the date following your termination and will run concurrently with
the Severance Period. You agree to elect continuation of benefits under COBRA if
requested by the Company, provided, however, that any premiums due for such
continuation of benefits shall be paid by the Company. You will immediately
notify the Company when you become eligible for coverage under medical and/or
dental insurance benefit plans of another employer through your future
employment.
(c) REFERENCE. You agree to refer all inquiries from prospective employers
to Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx and not to any other individual
employed by or affiliated with the Company and that you will not assert any
claim against the Company based upon, arising out of, related to or in any way
connected with its responses to inquiries from prospective employers.
(d) CONTINUATION OF LIFE INSURANCE AND AUTOMOBILE. Any basic or
supplemental life insurance coverage that may have been available to you and
that you elected, where necessary, to receive as of the Effective Date will be
continued during the Severance Period at the same cost structure as in effect
on that date. After the expiration of the Severance Period, you will be
permitted to exercise any option that may generally exist for departing
employees of the Company to convert your life insurance coverage to an
individual policy at your own expense and information regarding this conversion
option will be provided to you at that time. During the first 12 months of the
Severance Period, the Company will pay the cost of leasing and insuring a BMW
530i or other car at equal or lesser monthly cost; however, you shall be
responsible for all costs relating to maintenance and garaging.
2. RELEASE. By executing this Agreement, you release and hold harmless (on
behalf of yourself and your family, heirs, executors, successors and assigns)
now and forever, the Company, PX Holding Corporation, their respective parents,
subsidiaries and affiliates and the respective officers, directors, employees,
agents, shareholders, successors and assigns of each of the foregoing (each, a
"Released Party") from and waive any claim in any jurisdiction that you have
presently, may have or have had in the past, known or unknown, against any
released Party upon or by reason of any matter, cause or thing whatsoever, from
the beginning of the world to the date of this release, including, without
limitation, all claims arising from or relating to your employment with, or
termination of employment from, the Company, or otherwise, other than (i) any
claim you may have to the payment of vested benefits (if any) under the terms
of any qualified pension plan or 401(k) plan, each as amended from time to
time, that the Company may sponsor; (ii) any employee benefits to which you are
entitled by law (including continuation of medical benefits under COBRA); and
(iii) claims to enforce your rights under this Agreement.
3. EXTENT OF RELEASE. Without limiting the generality of the preceding
"RELEASE" Section, this Agreement is intended to and shall release the Company
from any and all claims or rights arising under or relating to either the
Amended and Restated Employment Agreement, dated May 9, 2003, between you and
the Company (the "Employment Agreement"), or any federal, state or local
statute (including, without limitation, Title VII of the Civil Rights
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Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as
amended, the Equal Pay Act, as amended, the Americans with Disabilities Act of
1990, as amended, the Employee Retirement Income Security Act of 1974, as
amended, the Family and Medical Leave Act of 1993, as amended, the Fair Labor
Standards Act, as amended, the California Fair Employment and Housing Act, as
amended, the Xxxxx Civil Rights Act, as amended, the California Family Rights
Act, as amended, the California Labor Code, as amended, and all other statutes
regulating the terms and conditions of your employment), regulation or
ordinance, under the common law or in equity (including any claim for wages,
wrongful discharge, discrimination or otherwise), or under any policy,
agreement, understanding or promise, written or oral, formal or informal,
between the Company and you, including, without limitation, any claim you might
have for severance, termination or severance pay in any legal jurisdiction,
under any agreement or understanding or pursuant to the Company's severance
policies or practices as from time to time in effect, or otherwise.
YOU EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS AFFORDED BY
SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, AND UNDERSTAND AND
ACKNOWLEDGE THE SIGNIFICANCE OF SUCH SPECIFIC WAIVER OF SECTION 1542. SECTION
1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA STATES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
THUS, NOTWITHSTANDING THE PROVISION OF SECTION 1542, AND FOR THE PURPOSE OF
IMPLEMENTING A FULL AND COMPLETE RELEASE AND DISCHARGE OF THE COMPANY, YOU
EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT IS INTENDED TO INCLUDE IN ITS EFFECT,
WITHOUT LIMITATION, ALL CLAIMS WHICH YOU DO NOT KNOW OF OR SUSPECT TO EXIST IN
YOUR FAVOR AT THE TIME OF SIGNING THIS AGREEMENT AND ARISING FROM YOUR
EMPLOYMENT WITH OR TERMINATION OF EMPLOYMENT FROM THE COMPANY, AND THAT THIS
AGREEMENT CONTEMPLATES THE RELEASE OF ANY SUCH CLAIM OR CLAIMS.
4. CONSULTANTCY. During the Severance Period you will be available to
consult with the Company, advising it from time to time on matters which were
within your area of responsibility or knowledge while an active employee of the
Company. You shall be required to devote such time to your services hereunder
as you and the Company may reasonably determine is necessary.
5. RIGHT TO COUNSEL. The Company hereby advises you that you should consult
with an attorney prior to execution of this Agreement. You acknowledge that you
understand it is in your best interest to have this document reviewed by an
attorney of your own choosing and at your own expense. You hereby acknowledge
that you have been afforded a period of at least twenty-one (21) days during
which to consider this Agreement and to have it reviewed by your attorney. To
the extent you take less than twenty-one (21) days to consider the Agreement
prior to execution, you acknowledge that you had sufficient time to consider
the Agreement with counsel and that you deliberately, knowingly and voluntarily
waive any additional time.
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6. FREE WILL. You are entering into this Agreement of your own free will
and without coercion, intimidation or threat of retaliation. You acknowledge
and agree that the Company has not exerted any undue pressure or influence on
you in this regard. You acknowledge that you have had reasonable time to
determine whether entering into this Agreement is in your best interest and you
have read and fully understand the terms set forth in this Agreement. You
understand that if you request additional time to review the provisions of this
Agreement, a reasonable extension of time will be granted.
7. CONSIDERATION. You acknowledge that the payments and other benefits
provided to you under this Agreement are good, valid and sufficient
consideration for your release and other obligations set forth herein, and you
agree that you shall not interpose any claim, defense or challenge to this
Agreement on the basis of lack or failure of consideration. You acknowledge
that no representation of any kind or character has been made by the Company to
induce your execution of this Agreement other than as set forth herein and that
the only representations made to you in order to obtain your consent to this
Agreement are as stated in this Agreement.
8. RESTRICTIONS. You agree, to the fullest extent permitted by law, that
you will not initiate or cause to be initiated on your behalf any lawsuit or
other legal action against the Company relating to any matter released herein,
including without limitation your employment or the termination thereof,
provided that nothing in this section shall preclude you from initiating legal
action solely to enforce your rights under this Agreement. You further
represent and warrant that neither you, nor any person, organization or entity
acting on your behalf, has filed or initiated any complaint, charge, claim or
proceeding against the Company before any local, state or federal agency, court
or other body relating to your employment or the termination thereof. You
understand that by entering into this Agreement, you will be limiting the
availability of certain remedies that you may have against the Company and
limiting also your ability to pursue certain claims against the Company. You
represent and agree that you will neither seek nor be entitled to any personal
recovery in any action or proceeding that may be commenced by you or on your
behalf arising out of the matters released hereby. You further agree, to the
extent permitted by law, not to instigate, encourage, or voluntarily assist or
voluntarily participate in an action or proceeding commenced by anyone else
against the Company.
9. PENALTIES. If you initiate or participate in any lawsuit or other legal
action, as described in the preceding "RESTRICTIONS" Section, or if you fail to
abide by any of the terms of this Agreement, the Company may, except as
otherwise prohibited by law, reclaim any amounts paid under this Agreement or
the Policy, without waiving the release granted herein, and terminate any
benefit or payments that are due under the Agreement or the Policy, in addition
to any other remedies it may have.
10. COOPERATION. Upon request, you agree to give your assistance and
cooperation willingly in any matter relating to your expertise or experience as
the Company may reasonably request with respect to any investigation or the
Company's defense or prosecution of any existing or future claims or
litigations relating to matters in which you were involved or potentially have
knowledge by virtue of your employment or consultancy with the Company,
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including (but not limited to) your attendance and truthful testimony where
deemed appropriate by the Company. The Company and you shall mutually agree on
reasonable compensation for such cooperation. The Company shall reimburse you
for reasonable out-of-pocket expenses incurred in connection with your
cooperation and approved in advance by an officer of the Company. You further
agree to execute the letters of resignation attached hereto as Attachment A and
to deliver such letters of resignation to Xxxxxx Xxxxxxxx by the Effective
Date.
11. NOTICE. Any notice to be given under this Agreement shall be given in
writing and delivered either personally or sent by certified mail to Xxxxxx
Xxxxxxxx at the above address and to you at your address in the Company's
records.
12. CONFIDENTIALITY. In addition to the provisions of the Employment
Agreement related to trade secrets, confidential information and/or work
product, which shall remain in full force and effect notwithstanding any other
provision of this Agreement to the contrary, you will not at any time divulge
to any other entity or person any confidential information acquired by you
concerning the Company's or its affiliates' financial affairs or business
processes or methods or their research, development or marketing programs or
plans, any other of its or their trade secrets, any information regarding
personal matters of any directors, officers, employees or agents of the Company
or their respective family members, any non-public information concerning this
Agreement or the terms thereof, or any information concerning the circumstances
of your employment with and the termination of your employment from the
Company, or any information regarding discussions related to any of the
foregoing or make, write, publish, produce or in any way participate in placing
into the public domain any statement, opinion or information with respect to
any of the foregoing or which reflects adversely upon or would reasonably
impair the reputation or best interests of the Company or any of its directors,
officers, employees or agents or their respective family members, except in
each case (i) information which is required to be disclosed by court order,
subpoena or other judicial process, (ii) information regarding your job
responsibilities during your employment with the Company to prospective
employers in connection with an application for employment, (iii) information
regarding the financial terms of this Agreement to your spouse or your tax
advisor for purposes of obtaining tax advice provided that such persons are
made aware of and agrees to comply with the confidentiality obligation, or (iv)
information which is necessary to be disclosed to your attorney to determine
whether you should enter into this Agreement. The foregoing prohibitions shall
include, without limitation, directly or indirectly publishing (or causing,
participating in, assisting or providing any statement, opinion or information
in connection with the publication of) any diary, memoir, letter, story,
photograph, interview, article, essay, account or description (whether
fictionalized or not) concerning any of the foregoing, publication being deemed
to include any presentation or reproduction of any written, verbal or visual
material in any communication medium, including any book, magazine, newspaper,
internet publication or discussion group, theatrical production or movie, or
television or radio programming or commercial. In addition to any and all other
remedies available to the Company for any violation of this Section, you agree
to immediately remit and disgorge to the Company any and all payments paid or
payable to you in connection with or as a result of engaging in any of the
above acts. In the event that you are required to make disclosure under any
court order, subpoena or other judicial process which in any way relates to
your employment with the Company, you will
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promptly notify the Company, take all steps reasonably requested by the Company
to defend against the compulsory disclosure and permit the Company to
participate with counsel of its choice in any proceeding relating to the
compulsory disclosure. You acknowledge that all information the disclosure of
which is prohibited by this section is of a confidential and proprietary
character and of great value to the Company.
13. RETURN OF COMPANY PROPERTY. You understand and agree that you are
obligated to return all Panavision property in your possession or control, as
required under the Employee Agreement as to Confidentiality and
Non-Competition, including, without limitation, computer disks or data
(including, data retained on any computer), any home-office equipment or
computers purchased or provided by Panavision, any records, documents, files or
other materials. By executing this Agreement, you represent and agree that you
(i) have returned all Panavision property in your possession or control to the
Company, (ii) have removed any and all computer data relating to Panavision
confidential information and trade secrets from any personal computer(s) in
your possession or control, and (iii) have not retained any such computer data
(or copies thereof) in any form. Notwithstanding the foregoing, you shall
retain as your personal property the following items: the cellular telephone,
laptop computer and Blackberry that you used during your employment with the
Company.
14. NON-ADMISSION. Nothing contained in this Agreement shall be deemed or
construed as an admission of wrongdoing or liability on the part of the
Company.
15. NON-DISPARAGEMENT. You shall not make or publish, or instigate, assist
or participate in making or publishing, whether orally, in writing or through
any other medium, any statement or communication that disparages, denigrates or
defames the Company (including without limitation any officer, director,
employee, agent or affiliate of Panavision Inc.).
16. SEVERABILITY CLAUSE. Should any provision or part of this Agreement be
found to be invalid or unenforceable, only that particular provision or part so
found and not the entire agreement shall be inoperative.
17. ASSIGNMENT. This Agreement may be assigned by the Company to (i) any
affiliate of the Company or (ii) any non-affiliate of the Company that shall
acquire all or the greater part of the business and assets of the Company. In
the event of any such assignment, the Company shall cause such affiliate or
non-affiliate, as the case may be, to assume the obligations of the Company
hereunder with the same effect as if such assignee were the "Company"
hereunder, and, in the case of such assignment to a non-affiliate, the Company
and its affiliates shall be released from all liability hereunder. This
Agreement is personal to you and you may not assign any rights or delegate any
responsibilities hereunder without the prior approval of the Company.
18. NON-ALIENATION. You shall not have any right to pledge, anticipate or
in any way create a lien upon any payment or benefit provided under this
Agreement or the Policy, and no such payment or benefit shall be assignable in
anticipation of payment, either by voluntary or involuntary acts or by
operation of law.
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19. OFFSET. The Company shall be entitled to offset any sums owed by you to
the Company against the severance pay payable to you.
20. INDEMNIFICATION. The Company shall indemnify you, to the maximum extent
permitted by applicable law, against all costs, charges, and expenses incurred
or sustained by you in connection with any action, suit or proceeding to which
you may be made a party by reason of your service as an officer, director, or
employee of the Company or its affiliates.
21. GOVERNING LAW AND CHOICE OF FORUM. This Agreement shall be governed by,
and construed pursuant to, the laws of the State of California applicable to
transactions negotiated, executed and to be wholly performed in such state
between residents of such state. The parties consent and agree to the exclusive
jurisdiction of the federal and state courts sitting in Los Angeles, California
for all purposes, and agree not to contest the jurisdiction or venue of such
courts.
22. ENTIRE AGREEMENT. This Agreement and the attachments hereto expressly
supersede any and all previous understandings and agreements between the
Company and you and constitute the sole and exclusive understanding between the
Company and you concerning the subjects set forth herein, other than any
agreements, including the relevant provisions of the Employment Agreement,
related to non-competition or trade secrets, confidential information and/or
work product previously executed by you, the terms of which remain in full
force and effect. This Agreement and the attachments may not be altered,
modified, changed or discharged except in a writing signed by you and agreed to
by the Company. You understand and agree that other than as set forth in this
Agreement and the attachments hereto, you will not receive any compensation,
payments or benefits of any kind from the Company and you expressly agree that
you are not entitled and have no right to any additional compensation, payments
or benefits other than the payment of vested benefits (if any) under the terms
of the Company's qualified pension plans, as amended from time to time.
If the foregoing correctly reflects our mutual agreements, please execute
and return to the undersigned the two originals of this Agreement.
Sincerely,
Panavision Inc.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
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AGREEMENT AND
ACKNOWLEDGMENT
I, Xxxx X. Xxxxxx, acknowledge receipt of the Letter Agreement and Release
and I agree to all the terms and conditions set forth in the Letter Agreement
and Release. I have read and fully understand the terms set forth in the Letter
Agreement and Release and enter into such agreement of my own free will and
without coercion, intimidation or threat of retaliation. I also acknowledge and
understand that I have been afforded twenty-one (21) days to consider the
Letter Agreement and Release and to have the agreement reviewed by my attorney
if I so choose.
Date: January 10, 2005
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Name: /s/ XXXX X. XXXXXX
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