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Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and among THE PRODUCERS ENTERTAINMENT GROUP LTD.
(the "Company"), a Delaware corporation, and XXXXXXX XXXXX (the "Executive"),
dated as of the 1st day of January, 1996.
W I T N E S S E T H
WHEREAS, the Company presently employs the Executive; and
WHEREAS, the Company wishes to continue to employ the Executive for
the period provided in this Agreement, and the Executive is willing to continue
to serve in the employ of the Company on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties agree as follows:
1. Employment. The Company hereby agrees to continue to employ
the Executive, and the Executive hereby agrees to continue his employment with
the Company, on the terms and subject to the conditions set forth herein.
2. Term of Employment. The term of the Executive's employment
under this Agreement (the "Employment Period") shall commence as of January 1,
1996, and shall end on June 30, 1998, unless extended or terminated earlier in
accordance with Section 5.
3. Titles and Responsibilities.
(a) Titles. During the Employment Period, the Executive
shall serve as the Chief Operating Officer of the Company. The Executive shall
report and be responsible to the Chief Executive Officer ("CEO") of the
Company. The Executive was elected as Chairman of the Board of Directors of
the Company until the next election by the shareholders of the Company.
(b) Responsibilities. Company hereby engages Executive
to provide his exclusive services as Chief Operating Officer, to manage the
financial services of the Company, including but not limited to, any public
financing which is undertaken by the Company. Executive's duties shall also
include the supervision of the preparation and filing of all necessary
Securities & Exchange Commission documents, and advising the Company on certain
other financial matters, including investor relations. Pursuant to the terms
and conditions hereof, Executive hereby accepts such engagement. Executive
shall render all services usually and customarily rendered by and required of
executives similarly employed in the entertainment industry. Executive shall
report only to the CEO of the Company.
(c) Place of Performance. During the Employment Period,
the Executive's office shall be located at the principal executive offices of
the Company, which shall be in the Los Angeles metropolitan area, except for
required business travel consistent with the Executive's position. The Company
shall provide the Executive with an office, an executive secretary reasonably
acceptable to him, and other support reasonably appropriate to his duties.
(d) Business Time. During the Employment Period, the
Executive agrees to devote his full business time during normal business hours
to the business and affairs of the Company and to use his best efforts to
perform faithfully, diligently and competently the responsibilities assigned to
him hereunder, to the extent necessary to discharge such responsibilities,
except for (i) time spent serving on corporate, civic or
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charitable boards or committees only if and to the extent not substantially
interfering with the performance of such responsibilities, (ii) periods of
vacation, disability and sick leave to which he is entitled, and (iii)
reasonable activities having a charitable, educational or other public interest
purpose.
4. Compensation.
(a) Base Salary. During the Employment Period, the
Executive shall receive a minimum annual base salary ("Base Salary") equal to
$250,000, payable in accordance with the customary payroll as in effect from
time to time for senior executives of the Company. The Board shall review the
Executive's Base Salary no less frequently than annually commencing no later
than January 1, 1996, for possible increases of such Base Salary in
relationship to the goals and performance of the Company and prevailing
competitive conditions.
(b) Bonus. During the Employment Period, the Executive
shall participate in the Company's bonus plans to the extent that one exists or
unless otherwise granted by the Board of Directors of the Company.
(c) Vacation. During the Employment Period, the
Executive shall be entitled to four (4) weeks paid vacation per year.
(d) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
business-related expenses incurred by the Executive in accordance with the
policies and procedures of the Company as applicable to its senior executives.
(e) Automobile Reimbursement. During the
Employment Period, the Executive shall be entitled to receive a monthly
automobile reimbursement in the amount of $1,000, payable monthly on the first
day of each month.
(f) Other Executive Benefits. Without limiting the
foregoing provisions of this Section 4, during the Employment Period the
Executive shall be entitled to participate in or be covered under all
compensation, bonus, pension, retirement and welfare and fringe benefit plans,
programs and policies of the Company applicable to senior executives of the
Company.
5. Termination.
(a) Death or Disability. The Executive's employment
pursuant to this Agreement shall terminate automatically upon the Executive's
death. The Company may terminate the Executive's employment for Disability by
giving to the Executive notice of its intention in accordance with Section 5(e)
unless Executive returns to the performance of the essential functions of his
employment within 30 days after receipt of such notice. For purposes of this
Agreement, "Disability" means any physical or mental condition that renders the
Executive unable to perform the essential functions of his employment for 90
consecutive days or for a total of 180 days in any period of 360 consecutive
days.
(b) Voluntary Termination After Change in Control.
Notwithstanding anything in this Agreement to the contrary, the Executive may
voluntarily terminate his employment at any time, after a Change in Control,
(i) for any reason upon six months' written notice to the Company, or (ii) if
termination is for Good Reason or on account of the Executive's serious
illness, upon written notice pursuant to Section 5(e) but without any notice
period. In the event of any termination pursuant to this Section 5(b), the
Executive shall have no further obligation to the Company under this Agreement,
except as provided in Section 9.
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(c) Cause. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement, "Cause" means:
Executive's engaging in gross misconduct materially and demonstrably injurious
to the Company; failure to perform the services required hereunder; or
conviction by final judgment of a felony constituting fraud, theft,
embezzlement or homicide.
(d) Good Reason. The Executive may terminate his
employment for Good Reason. For purposes of this Agreement, "Good Reason"
means (i) a material reduction in the nature or scope of the Executive's
position, title, status, authority, duties, powers or functions on the date of
this Agreement; (ii) the assignment to the Executive of any material duties
which are not commensurate with or at least as prestigious as the Executive's
duties and responsibilities as contemplated by this Agreement; (iii) a material
breach by the Company of any of the provisions of this Agreement; (iv) the
relocation of the Company's principal executive offices to a location outside
the Los Angeles metropolitan area; or (v) the failure by the Company to obtain
an agreement, reasonably satisfactory to the Executive, from any successor to
assume and agree to perform this Agreement, as contemplated by Section 12(b).
After a Change in Control, in addition to items (i) through (v), "Good Reason"
shall include (vi) a determination by the Executive, in his sole discretion,
during the 30-day period commencing 180 days following a Change in Control,
that due to the Change in Control he can no longer effectively perform his
duties.
(e) Notice of Termination. Any termination by the
Company for Cause or Disability or by the Executive for Good Reason shall be
communicated by a written notice (a "Notice of Termination") to the other party
hereto given in accordance with Section 13(d). A "Notice of Termination" shall
set forth in reasonable detail the events giving rise to such termination.
(f) Date of Termination. For purposes of this Agreement,
the term "Date of Termination" means (i) in the case of termination for
Disability, 30 days after Notice of Termination is given (provided that the
Executive shall not have returned to the full-time performance of his duties
during such 30-day period); (ii) in the case of termination for Cause, a date
specified in the Notice of Termination (which shall not be less than 30 days
nor more than 60 days from the date such Notice of Termination is given); (iii)
in the case of any other termination for which a Notice of Termination is
required, the date of receipt of such Notice of Termination or, if later, the
date specified therein, as the case may be; and (iv) in all other cases, the
actual date on which the Executive's employment terminates during the
Employment Period.
6. Obligations of the Company Upon Termination.
(a) Death, Disability, Cause and Voluntary Termination.
If at any time before or after a Change in Control the Executive's employment
is terminated by the Company during the Employment Period by reason of the
Executive's death, Disability or for Cause, or is voluntarily terminated by the
Executive (other than for Good Reason), the Company shall have no further
obligation to the Executive or the Executive's legal representatives other than
(i) those obligations earned for Base Salary and payments under any Company
bonus plan that have accrued at the Date of Termination (the "Accrued
Obligations"), (ii) those obligations expressly provided under any of the plans
referred to in Section 4(e) (the "Benefit Rights") and (iii) upon a termination
of the Executive's employment by reason of his death, the payment provided in
Section 6(a)(iii), if applicable, shall be paid to the Executive or the
Executive's estate, as the case may be, in a lump sum in cash within 15 days of
the Date of Termination.
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(b) Prior to Change in Control, Termination by the
Company other than for Cause or Disability and Termination by the Executive
for Good Reason.
(i) Lump Sum Payments. If during the Employment Period
and prior to a Change in Control, the Company terminates the Executive's
employment other than for Cause or Disability, or the Executive terminates his
employment for Good Reason, the Company shall provide the Benefit Rights and
shall pay to the Executive in a lump sum in cash within 15 days of the Date of
Termination the sum of the following amounts: (A) the Accrued Obligations; plus
(B) an amount equal to the product of (1) one-twelfth times (2) the sum of the
Executive's Base Salary plus the Executive's average bonus for the three years
ended before the Date of Termination, times (3) the number full or partial of
months remaining in the unexpired term of the Employment Period, but in no
event less than twelve months (such period being the "Severance Period").
(ii) Welfare Benefits. The Company shall provide or cause
to be provided to the Executive and his family for the Severance Period
continued life, medical and dental and disability insurance benefits at least
equal to those which the Executive was receiving or entitled to receive
immediately prior to the termination of employment described in Section
6(b)(i).
(iii) Office. For the Severance Period, the Company shall
provide the Executive with an office and an executive secretary reasonably
acceptable to him.
(iv) Discharge of the Company's Obligations. The Company
shall have no further obligations to the Executive in respect of any
termination described in this Section 6(b).
(c) Following Change in Control, Termination by the Company other
than for Cause or Disability and Termination by the Executive for Good Reason.
(i) Lump Sum Payments. If during the Employment Period
and following a Change in Control, the Company terminates the Executive's
employment other than for Cause or Disability, or the Executive terminates his
employment for Good Reason, the Company shall provide the Benefits Rights and
shall pay to the Executive in a lump sum in cash within 15 days of the Date of
Termination the sum of the following amounts: (a) the Accrued Obligations; and
(B) an amount equal to 2.99 times the sum of the amounts described in clause
(2) of Section 6(b)(i)(B).
(ii) Welfare Benefits. The Company shall provide or cause
to be provided to the Executive and his family for a period of 36 months
following such termination continued life, medical and dental and disability
insurance benefits at least equal to those which the Executive was receiving or
entitled to receive immediately prior to the termination of employment
described in Section 6(c)(i).
(iii) Office. For a period of 36 months following such
termination, the Company shall provide the Executive with an office and an
executive secretary reasonably acceptable to him and other support services
reasonably appropriate to an executive of a public corporation.
(iv) Discharge of the Company's Obligations. The Company
shall have no further obligations to the Executive in respect of any
termination described in this Section 6(c).
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(d) Change in Control. A Change in Control shall be deemed to
have occurred:
(1) the shareholders of the Company shall approve (i) any merger,
consolidation or recapitalization of the Company (or, if the
capital stock of the Company is affected, any subsidiary of
the Company) or any sale, lease, or other transfer (in one
transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or
substantially all of the assets of the Company (each of the
foregoing being an "Acquisition Transaction") where (x) the
shareholders of the Company immediately prior to such
Acquisition Transaction would not immediately after such
Acquisition Transaction beneficially own, directly or
indirectly, shares representing in the aggregate more than 65%
of (A) the then outstanding common stock of the corporation
surviving or resulting from such merger, consolidation or
recapitalization or acquiring such assets of the Company, as
the case may be (the "Surviving Corporation") (or of its
ultimate parent corporation, if any) and (B) the Combined
Voting Power (as defined below) of the then outstanding Voting
Securities (as defined below) of the Surviving Corporation (or
of its ultimate parent corporation, if any) or (y) the
Incumbent Directors at the time of the initial approval of
such Acquisition Transaction would not immediately after such
Acquisition Transaction constitute a majority of the Board of
Directors of the Surviving Corporation (or of its ultimate
parent corporation, if any) or (ii) any plan or proposal for
the liquidation or dissolution of the Company; or
(2) any Person (as defined below) shall become the beneficial
owner (as defined in Rule 13d-3 and 13-d-5 under the Exchange
Act), directly or indirectly, of securities of the Company
representing in the aggregate 20% or more of either (i) the
then outstanding shares of Stock, or (ii) the Combined Voting
Power of all then outstanding Voting Securities of the
Company; provided; however that notwithstanding the foregoing,
a Change in Control of the Company shall not be deemed to have
occurred for purposes of this subsection (2) solely as the
result of:
(i) an acquisition of securities by the Company which, by
reducing the number of shares of Stock or other
Voting Securities outstanding, increases (i) the
proportionate number of shares of Stock beneficially
owned by any Person to 20% or more of the shares of
Stock then outstanding or (ii) the proportionate
voting power represented by the Voting Securities
beneficially owned by any Person to 20% or more of
the Combined Voting Power of all then outstanding
Voting Securities; or
(ii) an acquisition of securities directly from the
Company except that this subsection (ii) shall not
apply to:
(A) any conversion of a security that was not
acquired directly from the Company; or
(B) any acquisition of securities if the
Incumbent Directors at the time of the
initial approval of such acquisition would
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not immediately after (or otherwise as a
result of) such acquisition constitute a
majority of the Board;
provided, however, that if any Person referred to in
subsections (i) or (ii) of this clause (2) shall
thereafter become the beneficial owner of any
additional shares of Stock or other Voting Securities
of the Company (other than pursuant to a stock split,
stock dividend or similar transaction or an
acquisition exempt under such subsection (ii), then a
Change in Control shall be deemed to have occurred
for purposes of this clause (2).
For purposes of this Agreement:
(A) "Person" shall mean any individual, entity
(including, without limitation, any
corporation, partnership, trust, joint
venture, association or governmental body and
any successor to any such entity) or group
(as defined in Sections 13(d)(3) or 14(d)(2)
of the Exchange Act and the rules and
regulations thereunder); provided, however,
that Person shall not include Executive, the
Company, any of its majority-owned
subsidiaries, any executive benefit plan of
the Company or any of its majority-owned
subsidiaries or any entity organized,
appointed or established by Executive, the
Company or any of its majority-owned
subsidiaries for or pursuant to the terms of
any such plan, or any of their affiliates;
(B) "Voting Securities" shall mean all securities
of a corporation having the right under
ordinary circumstances to vote in an election
of the board of directors of such
corporation; and
(C) "Combined Voting Power" shall mean the
aggregate votes entitled to be cast generally
in the election of directors of a corporation
by holders of then outstanding Voting
Securities of such corporation.
Notwithstanding anything contained in this Paragraph 6, no change in control
shall have occurred as a result of the pending merger between Greenlight
Communications, Inc. and the Company.
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7. No Mitigation: No Offset. In no event shall the Executive be
obligated to seek other employment by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. Any amounts
that may be earned by the Executive other than from the Company after the Date
of Termination shall not reduce the Company's obligation to make any payments
hereunder. The amounts payable by the Company hereunder shall not be subject
to any right of set-off that the Company may assert against the Executive.
8. Noncompetition.
(a) Scope. In the case of the Executive's termination of
employment, including due to the expiration of the Employment Period, the
Executive shall not, for one year following the Date of Termination, (a) divert
to any competitor of the Company in the business conducted by the Company (the
"Designated Industry") any active project of the Company; or (b) solicit or
encourage any officer, employee or consultant of the Company to leave their
employ for employment by or with any competitor of the Company in the
Designated Industry. If at any time the provisions of this Section 8 shall be
determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 9 shall be
considered divisible and shall become and be immediately amended to apply only
to such area, duration and scope of activity as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction over
the matter; and the Executive agrees that this Section 8 as so amended shall be
valid and binding as though any invalid or unenforceable provision had not been
included herein. Nothing in this Section 8 shall prevent or restrict the
Executive from engaging in any business or industry other than the Designated
Industry in any capacity.
(b) Irreparable Harm. The Executive agrees that the
remedy at law for any breach of this Section 8 shall be inadequate and that the
Company shall be entitled to injunctive relief.
9. Indemnification. The Company shall indemnify and hold
harmless the Executive, his heirs and personal representatives to the fullest
extent permitted by applicable law, as now or hereafter in effect, with respect
to any acts, omissions or events that occurred while the Executive is or was an
employee of the Company or serves or served the Company or any other
corporation or other enterprise of any kind in any capacity at the request of
the Company (an "Enterprise"). Without limiting the generality of the
foregoing, the Company shall promptly pay, or reimburse the Executive for, or
advance to the Executive amounts for the payment of (a) all of the Executive's
reasonable expenses, including attorneys' fees and court costs, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding, including any suit seeking recovery under any Company director's
and officer's liability policy, or in connection with any appeal thereof, to
which the Executive may be a party by reason of any action taken or failure to
act under or in connection with his service for the Company or an Enterprise;
and (b) all amounts required to be paid in settlement of or in satisfaction of
a judgment in connection with any such action, suit or proceeding; provided,
however, that the Company shall not be required to indemnify or hold harmless
the Executive, his heirs or personal representatives in any manner whatsoever
in the event and to the extent there is a final and nonappealable judgment by a
court of competent jurisdiction that the liability incurred by the Executive
resulted from his gross negligence, fraud or willful malfeasance.
10. Arbitration. If a dispute arises between the parties
respecting the terms of this Agreement or Executive's employment with the
Company, including, without limitation, any dispute with respect to the
validity of this Agreement or this arbitration clause, such dispute shall be
finally resolved by binding arbitration as follows. Any party may require that
the dispute be submitted to binding arbitration, and in such event the dispute
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. If a matter is submitted to
arbitration, each of the parties shall choose one arbitrator. The arbitrators
selected by the two parties shall choose a third arbitrator who shall act as
chairman and shall be
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an attorney and a member of the panel of the American Arbitration Association.
Each party shall agree to a speedy hearing upon the matter in dispute and the
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The place of arbitration shall be Los Angeles,
California. Notwithstanding anything to the contrary contained herein, no
discovery shall be permitted in the arbitration proceeding.
11. Successors.
(a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. The Company shall require any
successor to all or substantially all of the business and/or assets of the
Company, whether direct or indirect, by an agreement in form and substance
reasonably satisfactory to the Executive, expressly to assume and agree to
perform this Agreement.
12. Xxxxx Communications, Inc. The Company and Xxxxx
Communications, Inc. ("WCI"), a company controlled by Employee agree to enter
into a good faith negotiation with the respect to the Company acquiring,
controlling, merging or consolidating its business with WCI. Notwithstanding,
nothing contained herein shall be affected in the event that the parties are
unable conclude such negotiation.
13. Miscellaneous.
(a) Withholding. Any payments provided for hereunder
shall be paid net of any applicable withholding required under federal, state
or local law and any additional withholding to which the Executive has agreed.
(b) Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of California, applied without
reference to principles of conflict of laws.
(c) Amendments. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
(d) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered or mailed to the other party by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mr. Xxxxxxx Xxxxx
000 X. Xxxxxxxxx Xxx
Xxx Xxxxxxx, XX 00000
If to the Company:
The Producers Entertainment Group Ltd.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only when actually received by the addressee.
(e) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
(f) Waiver. Waiver by any party hereto of any breach or
default by any other party of any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived.
(g) Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
referred to herein other than the Stock Purchase Agreement between the
Executive and the Company dated as of the date hereof (the "Stock Purchase
Agreement"), and no other agreement, verbal or otherwise, shall be binding as
between the parties unless it is in writing and signed by the party against
whom enforcement is sought. All prior and contemporaneous agreements and
understandings between the parties with respect to the subject matter of this
Agreement other than the Stock Purchase Agreement are superseded by this
Agreement.
(h) Survival. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
(i) Captions and References. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. References in this Agreement to a section number are references to
sections of the Agreement unless otherwise specified.
(j) Consent to Jurisdiction. Each of the parties to this
Agreement hereby submits to the exclusive jurisdiction of the courts of the
State of California and the Federal courts of the United States of America
located in such state solely in respect of the interpretation and enforcement
of the provisions of this Agreement, and hereby waives, and agrees not to
assert, as a defense in any action, suit or proceeding for the interpretation
and enforcement of this Agreement, that it is not subject thereto; that such
action, suit or proceeding may not be brought or is not maintainable in said
courts; that this Agreement may not be enforced in or by said courts; that its
property is exempt or immune from execution; that the suit, action or
proceeding is brought in an inconvenient forum; or that the venue of the suit,
action or proceeding is improper. Each of the parties agrees that service of
process in any such action, suit or proceeding shall be deemed in every respect
effective service of process upon it if given in the manner set forth in
Section 13(d).
(k) Legal Fees. The Executive shall be entitled to
reimbursement by the Company for all reasonable legal fees and expenses
incurred by him in connection with the initial review of this Agreement. Such
payments, which shall be made on an ongoing basis after the Executive submits
an invoice or other reasonably appropriate documentation relating thereto to
the Company.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand
and the Company has caused this Agreement to be executed in its name on its
behalf all as of the day and year first above written.
THE PRODUCERS ENTERTAINMENT GROUP LTD.
By: _________________________________
Its: ________________________________
XXXXXXX XXXXX
_____________________________________
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