EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of July 1, 1997 (as it may be amended
in accordance with its terms, this "Agreement") between xxxx xxxxx productions,
inc., a Delaware corporation (the "Company"), and Xx. Xxxxxxx X. Xx Xxxxx (the
"Executive").
The Executive is currently the President and Chief Operating Officer
of the Company and is employed pursuant to an Employment Agreement dated as of
March 1, 1995 (the "Existing Employment Agreement"). The term of the Existing
Employment Agreement expires on June 30, 2000. In light of the Executive's
experience with the Company and his exemplary services on behalf of the Company,
the Company desires to secure the services of, and continue the employment the
Executive for the period ending June 30, 2002, and to do so at this time; and
the Executive desires to continue in the employ of the Company through that
date. Therefore, the Company shall continue to employ the Executive and the
Executive shall continue his employment with the Company, upon the terms,
provisions and conditions set forth herein.
Accordingly, the Company and the Executive hereby agree as follows:
1. Employment.
(a) The Company shall employ the Executive, and the
Executive shall serve the Company during the term hereof, as President and Chief
Operating Officer of the Company, with such duties and responsibilities normally
associated with those positions. The Executive shall devote his best efforts and
a major portion of his business time to the performance of his duties under this
Agreement and shall perform them faithfully, diligently and competently. The
Executive shall report only to the Chairman and Chief Executive Officer of the
Company and the Board of Directors of the Company; and all other executives of
the Company (other than the Chairman and Chief Executive Officer and the Vice
President-Administration, so long as the position of Vice
President-Administration is held by Xx. Xxxxx Xxxxx) shall report to the
Executive. The Executive's services shall be performed in Burbank, California
(or such other location as the Executive and the Company may agree upon) subject
to travel reasonably and customarily required by the Company in connection with
the Executive's services hereunder.
(b) Notwithstanding anything to the contrary contained in
this Agreement, the Executive may devote a significant portion of his business
time to other business activities, including, without limitation, serving as an
officer of companies a majority of whose equity is owned by Xx. Xxxxxxx X. Xxxxx
("Xx. Xxxxx") and/or Xx. Xxxxx and the Executive on or after the date of this
Agreement; provided such companies do not compete with the business conducted by
the Company and its subsidiaries ("Affiliated Companies"), providing financial
and consulting services to Xx. Xxxxx in connection with any activities that Xx.
Xxxxx is permitted to engage in accordance with his then current employment
agreement with the Company and serving as a director of any Affiliated Company;
provided, that engaging in such activities do not materially interfere with the
Executive's performance of his duties under this Agreement.
2. Term of Employment.
The term of Executive's employment by the Company under
this Agreement shall commence on and as of July 1, 1997 and, subject to earlier
termination pursuant to Section 5 or 7 hereof, shall terminate on June 30, 2002
(the "Term"). Notwithstanding the foregoing, unless the Company gives written
notice to the Executive prior to April 1 in any year during the Term of this
Agreement that it does not intend to have the Term of this Agreement extended,
the Term of this Agreement shall automatically extend for an additional year
from its then current expiratory date. For purposes of this Agreement, the term
"Term" shall include any extension of the then applicable Term as provided in
this Section 2. An example of the operation of this Section 2 is as follows: if
by April 1, 1998 the Company does not furnish a notice to the Executive that the
Company does not desire the Term to be extended, then the Term shall
automatically be extended until June 30, 2003.
3. Compensation.
(a) As full compensation for all services rendered by the
Executive to the Company under this Agreement, the Company shall pay to the
Executive (i) a base salary at the initial annual rate of $539,379, payable in
equal installments (once every two weeks) in accordance with the Company's
customary payroll practice for its executives, and (ii) a bonus determined in
accordance with Section 3(b) hereof. On each July 1, during the term of the
Executive's employment hereunder, commencing with July 1, 1998, the base salary
payable to the
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Executive pursuant to Section 3(a)(i) shall be increased by an amount, if any,
equal to the percentage increase in the consumer price index (the "CPI") for Los
Angeles, California for the twelve (12) month period ended on the June 30, as
next preceding such July 1, as published by the Federal Bureau of Labor
Statistics (the "Bureau") or any successor entity to the Bureau multiplied by
the then current base salary pursuant to Section 3(a)(i); provided that if the
Bureau no longer publishes the CPI, then a comparable index reasonably
acceptable to the Company and the Executive shall be substituted therefore.
(b) With respect to each fiscal year of the Company during
the term of the Executive's employment under this Agreement, commencing with the
fiscal year ending on June 30, 1998, the Company shall pay to the Executive a
bonus equal to the following amounts with respect to the Pre-tax Profits of the
Company, if any, during that fiscal year:
If Pretax Profits are:
Over But Not Over Payment
---- ------------ -------
0 - $ 7,000,000 0
$ 7,000,000 - $10,000,000 $260,000 + 3% of Pre-tax
Profits over $7,000,000
$10,000,000 - $15,000,000 $350,000 + 2% of Pre-tax
Profits over $10,000,000
$15,000,000 - $450,000 + 1% of Pre-Tax
Profits over $15,000,000
The bonus, if any, payable to the Executive pursuant to this Section 3(b) hereof
with respect to any fiscal year shall be paid not later than fifteen (15) days
after the receipt by the Company from its independent public accountants of the
audited financial statements of the Company with respect to the applicable
fiscal year. Nothing herein shall alter, modify, or amend the obligation of the
Company pursuant to Section 3(b) of the Existing Employment Agreement to make a
payment to the Executive pursuant to said Section 3(b) for the fiscal year ended
June 30, 1997, which obligation shall remain in full force and effect,
notwithstanding the execution and delivery of this Agreement.
(c) As used in this Agreement the term "Pre-tax Profits"
of the-Company during a fiscal year shall mean the income before taxes of the
Company as shown on the audited
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consolidated statement of profit and loss of the Company and its subsidiaries,
but without giving effect to accruals for the bonus payable to the Executive for
that fiscal year pursuant to Section 3(b) hereof and any similar bonus payable
to Xx. Xxxxx for that fiscal year pursuant to Xx. Xxxxx'x then current
employment agreement with the Company.
(d) If the Executive's employment is terminated prior to
the end of a fiscal year due to his death or by the Company as a result of his
disability, the bonus payable pursuant to Section 3(b) hereof in respect of that
fiscal year shall be calculated (i) if such termination shall occur during the
first quarter of the Company's fiscal year, by multiplying the amount determined
pursuant to Section 3(b) for that entire fiscal year by a fraction, the
numerator of which is the number of days in that fiscal year prior to the date
of termination and the denominator of which is the number of days in that fiscal
year; and (ii) if such termination shall occur subsequent to the first quarter
of the Company's fiscal year, as if the Executive had been employed for that
entire fiscal year. If the Executive's employment is terminated prior to the end
of a fiscal year for "Cause" (as hereinafter defined), no bonus shall be payable
to the Executive pursuant to Section 3(b) in respect of that fiscal year.
(e) For purposes of Sections 3(b) and 3(c) hereof, if the
Company's fiscal year shall change (the fiscal year presently being July 1
through June 30), resulting in a fiscal year which shall be less than twelve
(12) months, the bonus payable pursuant to Section 3(b) in respect of that short
fiscal year shall be calculated (i) by multiplying the amount of the Pre-tax
Profits determined pursuant to Section 3(c) for that entire short fiscal year by
a fraction of which the numerator is twelve (12) and the denominator is the
number of months in that short fiscal year; (ii) by determining the bonus in
accordance with Section 3(b) based on the amount resulting from the calculations
in clause (i) above; and (iii) by multiplying such bonus amount resulting from
the calculation in clause (ii) above by a fraction of which the numerator is the
number of months in that shortened fiscal year and the denominator is twelve
(12).
4. Fringe Benefits; Expenses.
(a) The Executive shall be entitled to receive all health
(other than disability) and pension benefits provided by the Company to any of
its executives and to all other fringe benefits provided by the Company to its
executives as a group and shall also be entitled to
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participate in all benefit plans provided by the Company to its executives as a
group. The Executive shall also be entitled to a term life insurance policy,
naming such beneficiaries as the Executive shall specify from time to time, in
an amount equal to $3,000,000.
(b) The Company shall reimburse the Executive for all
reasonable expenses (including, without limitation, entertainment expenses)
incurred by the Executive in connection with the performance of his services for
the Company (it being agreed that first-class travel and accommodations are
reasonable expenses), upon submission of receipts and/or vouchers in accordance
with the Company's customary policy.
(c) The Executive shall be entitled to six (6) weeks
vacation time annually, to be taken at times selected by him, with the
reasonable concurrence of the Chief Executive Officer of the Company, which are
consistent with the proper performance of the Executive's duties under this
Agreement. The Executive may accrue up to two (2) weeks unused vacation time
annually.
5. Disability or Death.
(a) If, as the result of any physical or mental
disability, the Executive shall have failed or been unable to perform his duties
to the Company hereunder for a period of one hundred eighty (180) consecutive
days, the Company may, by notice to the Executive subsequent thereto, terminate
the Executive's employment under this Agreement prior to the end of the Term,
effective as of the date of the notice. If the Executive's employment is
terminated pursuant to this Section 5(a), the Company shall pay to the Executive
(in equal installments every two (2) weeks) (i) for the period from the date of
termination through the June 30 next succeeding such date of termination, an
amount equal to his base salary for such period at the date of termination; (ii)
for the next succeeding twelve (12) month period, an amount equal to 80% of his
base salary at the date of termination; (iii) for the next succeeding twelve
(12) month period, an amount equal to 60% of his base salary at the date of
termination; and (iv) for the twenty-four (24) month period commencing on the
date of the last payment required to be made pursuant to clauses (i), (ii) and
(iii) above, an amount equal to 50% of his base salary at the date of
termination.
(b) The period of the Executive's employment under this
Agreement shall automatically terminate prior to the end of the Term upon his
death. In the event of such termination upon death, the Company shall pay to the
beneficiary or beneficiaries of the Executive
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as designated in writing by the Executive to the Company (or if the Executive
fails to so designate a beneficiary, to his estate), an amount at an annual rate
equal to his base salary in effect on the date of his death for a period of two
(2) years from the date of his death, payable in equal installments on the first
day of the month next succeeding the date of death and the first day of every
third month thereafter.
6. Non-Competition; Confidential Information.
(a) (i) During the period of the Executive's employment
under this Agreement or (ii) through the end of the then current Term of this
Agreement, if the Executive voluntarily terminates his employment (other than
because of a Change of Control (as such term is defined in Section 8 hereof) or
a termination by the Executive in accordance with Section 7(c) hereof) or if the
Executive's employment is terminated by the Company for Cause (as such term is
hereinafter defined) as provided for hereunder, the Executive shall not,
directly or indirectly, engage or be interested (as a stockholder, director,
officer, agent, broker, partner, individual proprietor, lender or otherwise) in
any other business which is competitive with the business of the Company and its
subsidiaries, except that the Executive may (i) engage in the activities
otherwise permitted pursuant to Section l(b) hereof, whether or not competitive
with the Company or any of its subsidiaries and (ii) hold not more than 5% of
the outstanding securities of any class of any publicly held company; provided
that this Section 6 shall not prohibit the Executive from holding more than 5%
of the outstanding securities of any class of capital stock of the Company.
(b) The Executive shall not, directly or indirectly,
either during the period of the Executive's employment under this Agreement or
thereafter, disclose to anyone (except in the regular course of the Company's
business or as required by applicable law or subpoena), or use in competition
with the Company, any information acquired by the Executive during his
employment by the Company with respect to any confidential or secret aspect of
the Company's operations, business, affairs, plans, prospects, strategies or
condition (financial or otherwise) unless such information has become public
knowledge other than by reason of actions (direct or indirect) of the Executive.
(c) The Executive shall not, directly or indirectly,
either during the period of the Executive's employment under this Agreement or
for a period of one (1) year thereafter,
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solicit the services of any person who was a full-time employee of the Company
(other than employees employed for limited periods of time in connection with
the production of particular television or motion picture programming) during
the last year of the term of the Executive's employment under this Agreement.
(d) The Executive acknowledges that the remedy at law
(including, without limitation, a remedy calculated as monetary damages) for
breach of his covenants under this Section 6 will be inadequate and,
accordingly, in the event of any breach or threatened breach by the Executive of
the provisions of this Section 6, the Company shall be entitled, in addition to
all other remedies, whether at law, in equity or otherwise, to an injunction
and/or other appropriate equitable relief restraining any such breach (without
posting any bond or other security or being required to prove actual damages).
7. Termination.
(a) The Company shall have the right to terminate and the
Executive's employment with the Company under this Agreement (i) for Cause or
(ii) Without Cause. For purposes of this Agreement, the term "Cause, shall mean
any material breach of the Executive's obligations under Section 6 of this
Agreement which is not cured within thirty (30) days after written notice of any
such breach is furnished to the Executive, the conviction of the Executive of a
felony, gross misconduct related to the Executive's position or duties with the
Company which is likely to materially adversely affect the Company's financial
condition, the chronic addiction of the Executive to drugs or alcohol which
materially adversely affects the Executive's performance of his duties under
this Agreement, or the Executive's willful failure to perform his material
duties within a reasonable period under the circumstances after written notice
(specifically identifying the manner in which the Board of Directors believes
that the Executive has failed) from the Board of Directors of the Company;
(provided that such duties are consistent, in the reasonable opinion of the
Executive after obtaining an opinion of counsel, with this Agreement and
applicable law.
(b) If the employment of the Executive is terminated for
Cause, the Company shall not be obligated to make any further payment to the
Executive (other than accrued and unpaid salary and expenses to the date of
termination), or continue to provide any benefit (other than benefits which have
accrued pursuant to any plan or by applicable law) to the Executive
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under this Agreement. If the employment of the Executive is terminated Without
Cause, then (except as otherwise provided in the Section 11 hereof) the Company
shall pay to the Executive, in equal monthly installments, all of his
compensation (base salary and bonuses) pursuant to Section 3 hereof as if this
Agreement had not been terminated for the greater of (x) the remainder of the
then current Term and (y) three (3) years after termination, all regardless of
the amount of compensation the Executive may earn or be able to earn with
respect to any other employment that the Executive may obtain or be able to
obtain (i.e. the Executive shall have no duty to mitigate and the Company shall
have no right to offset). For purposes hereof, the term "Without Cause" shall
mean a termination of the Executive's employment hereunder for a reason other
than pursuant to Section 7(a) hereof.
(c) The Executive shall have the right to terminate his
employment with the Company under this Agreement prior to the end of the Term,
upon thirty (30) days' prior notice to the Company given within sixty (60) days
following the occurrence of any of the following events:
(i) the Executive is not retained as President
and Chief Operating Officer of the Company even if the
Executive is allowed to continue in the employ of the
Company, or
(ii) the Company materially reduces the
Executive's duties and responsibilities hereunder and the
Executive objects within thirty (30) days of any such
reduction and the Company does not restore such duties and
responsibilities within forty-five (45) days thereafter.
Without limiting the provisions of Section 8 hereof, the
Executive's duties and responsibilities shall not be
deemed materially reduced for purposes hereof solely by
virtue of the fact that the Company is (or substantially
all of its assets are) sold to, or is combined with,
another entity; provided that the Executive shall continue
to have the same duties and responsibilities with respect
to the Company's business following such sale or
combination.
If this Agreement is terminated by the Executive as set forth in this Section
7(c), such termination shall be deemed to be a termination by the Company
Without Cause, with the same effect as
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otherwise provided in this Agreement.
8. Change of Control. Notwithstanding anything in this
Agreement to the contrary (but without limiting Section 11 hereof), if the
Executive shall voluntarily terminate his employment with the Company within one
hundred twenty (120) days after a Change of Control (as such term is hereinafter
defined), the Company shall pay to the Executive an amount at an annual rate
(payable in equal monthly installments) equal to his base salary in effect on
the date of termination of employment for a period from the date of such
termination and ending three (3) years thereafter, regardless of the amount of
compensation the Executive may earn or be able to earn with respect to any other
employment that the Executive may obtain (i.e., the Executive shall have not
duty to mitigate and the Company shall have no duty to mitigate. For purposes of
this Agreement the term "Change of Control" shall mean Xx. Xxxxx and/or the
Executive not controlling, either through direct or beneficial ownership or by
contract or otherwise, in the aggregate, shares of capital stock of the Company
sufficient to elect a majority of the Board of Directors of the Company, unless
the reason that neither Xx. Xxxxx and/or the Executive is unable to control such
number of shares is due to the sale of stock by the Company to the public during
such periods of time when Xx. Xxxxx and/or the Executive are serving in their
present positions with the Company.
9. "Piggyback" Registration. Unless the Executive's
employment with the Company is terminated for Cause prior to June 30, 2000, if
at any time the Company proposes to file a registration statement under the
Securities Act of 1933, as amended (the "Act") on Form S-1, Form S-2 or Form S-3
(or any successors to those Forms) covering an offering of the Company's Common
Stock by the Company in which any of its shareholders participates, it shall
include in the registration statement such number of the Executive's shares of
the Company's Common Stock as the Executive may designate in his request. If any
registration of which the Executive is given notice pursuant to the preceding
sentence shall be, in whole or in part, in connection with an underwritten
offering of the Company's Common Stock, any request by the Executive pursuant to
this Section 9 to register the distribution of the Executive's shares of the
Company's Common Stock may, but need not, specify that those shares are to be
included in the underwriting on the same terms and conditions as the shares of
the Company's Common Stock, if any, otherwise being
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sold through underwriters. However, if the managing underwriter or underwriters
determine and advise the Company in writing that the inclusion in the
registration of all or a portion of the Executive's shares of the Company's
Common Stock would interfere with the successful marketing of the other shares
of the Company's Common Stock being sold, the Company shall not be obligated to
include the Executive's shares which would interfere with the successful
marketing of the other shares being sold; provided, that the Executive's shares
are excluded pro rata with the shares of the other shareholders whose shares are
to be included in the registration. If there is an underwritten offering of the
shares of the Company's Common Stock and the Executive has the opportunity but
does not sell his shares of Common Stock to the underwriter or underwriters, the
Executive shall not sell those shares (i) during the period of distribution of
the shares of the Company's Common Stock by the underwriter or underwriters and
(ii) during any further period that participants in the offering agree not to
sell their shares of the Company's Common Stock at the request of the
underwriter or underwriters. Notwithstanding the foregoing, the Company shall
not be obligated to include the Executive's shares of Common Stock in a
registration statement if, the sale of the Executive's shares of Common Stock
would be exempt from the registration requirements of the Act and, if requested,
the Company has delivered to the Executive an opinion of counsel to the Company
that such Common Stock is so exempting connection with any registration of all
or a portion of the Executive's shares of the Company's Common Stock as
contemplated by this Section 9, the Executive shall pay such of the expenses of
such registration as the other shareholders included in such registration, in
the proportion that the Executive's shares subject to the registration bear to
the total number of shares of all shareholders whose shares are subject to the
registration.
The Company shall indemnify the Executive and his heirs, estate and
personal representatives and hold each of them harmless against any damage,
loss, cost or expense (including, without limitation, reasonable attorneys' fees
and expenses) arising out of any untrue statement or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
required to be stated in any registration statement or prospectus relating to
the distribution of the Executive's shares of the Company's Common Stock, except
to the extent the damage, loss, cost or expense arises out of a statement or
omission that was based upon
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information furnished in writing to the Company by the Executive for use in the
registration statement or prospectus. The Executive shall indemnify the Company,
its directors, officers, employees, agents and affiliates and their respective
successors and assigns and hold each of them harmless against any damage, loss,
cost or expense (including, without limitation, reasonable attorneys' fees and
expenses) arising out of any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact required
to be stated in any registration statement or prospectus relating to the
distribution of his shares of the Company's Common Stock to the extent the
damage, loss, cost or expense arises out of a statement or omission that was
based upon information furnished in writing to the Company by the Executive for
use in the registration statement or prospectus. Promptly after receipt by an
indemnified party of notice of the commencement of any action, suit or other
proceeding for which such indemnified party is entitled to indemnification
hereunder, the indemnified party shall notify the indemnifying party of the
commencement of any such action, suit or other proceeding. Failure to give such
a notice shall not affect any liability the indemnifying party may have to the
indemnified party otherwise than under this paragraph, except to the extent that
the failure to notify shall have a material adverse affect on the indemnifying
party's ability to defend the action, suit or other proceeding. The indemnifying
party may participate in the action or may assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party. After giving
notice of such an assumption of the defense, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense other than the reasonable costs
of investigation. Unless the indemnifying party shall fail to assume the defense
of an action for which the indemnifying party is obligated to provide
indemnification hereunder, the indemnified party shall not settle any claim or
action without the consent of the indemnifying party.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the law of California applicable to agreements made and to be
performed in California, and without regard to its principles of conflicts of
law.
(b) This Agreement sets forth the entire understanding and
agreement between
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the Company and the Executive with respect to its subject matter, supersedes all
previous agreements between them relating to such subject matter (whether
written or oral), all of which are merged herein (including, without limitation,
the Existing Agreement). Notwithstanding the immediately preceding sentence, it
is the intention of the Executive and the Company that nothing in this Agreement
affect the options granted to the Executive by the Existing Employment Agreement
under the Company's Stock Option Plan. There are no representations, warranties
or promises between the parties with respect to the subject matter hereof, other
than those set forth herein.
(c) Any notice or other communication under or relating to
this Agreement shall be in writing and shall be considered given when actually
received by the intended recipient and shall be delivered personally or mailed
by certified mail, return receipt requested (postage paid), or by telecopy if
sent before 4:00 p.m. (California time) on a business day, to the parties at
their respective addresses or facsimile numbers, as the case may be, set forth
below (or at such other address, or facsimile number, as a party may specify by
notice to the other):
If to the Company, to it at:
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Chairman
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxx Xxxxxxxx, Esq.
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
If to the Executive, to him at:
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
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with a copy to:
Xxxx X. Xxxxxxxxxx, Esq.
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
(d) The failure of a party to insist upon strict adherence
to any term or provision of this Agreement on any one occasion shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or provision on any other occasion or any other
term or provision of this Agreement. Any waiver shall be limited to the specific
instance for which it is given. This Agreement may not be waived, amended,
modified or altered, except by an instrument in writing duly executed by each of
the Company and the Executive.
(e) The invalidity or unenforceability of any term or
provision of this Agreement shall not affect the validity or enforceability of
the remaining terms or provisions of this Agreement which shall remain in full
force and effect and any such invalid or unenforceable term or provision shall
be given full effect as is far as possible under applicable law. If any term or
provision of this agreement is invalid or unenforceable in any one jurisdiction,
it shall not affect the validity or enforceability of that term or provision in
any other jurisdiction.
(f) This Agreement is not assignable by either party,
except that it shall inure to the benefit of and be binding upon any person or
entity which is a successor to the Company by merger or consolidation or which
acquires all or substantially all of the Company's assets; provided such
successor assumes all of the obligations of the Company; and the Agreement shall
inure to the benefit of the heirs, estate and legal representatives of the
Executive.
11. No Parachute Payments. Notwithstanding anything in this
Agreement to the contrary, if, at any time after the date hereof, the Company
obtains a written opinion of tax counsel to the Company ("Tax Counsel") to the
effect that there exists a substantial likelihood that any payment to which the
Executive would (but for the application of this Section 11) be entitled under
this Agreement would (but for such application) then be treated as an excess
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parachute payment (as such term is defined in Section 280G of the internal
Revenue Code of 1986, as amended, and the Treasury Regulations promulgated
thereunder), then this Agreement shall be amended by adjusting the amounts,
timing and manner of determination of the payments to which the Executive is
entitled hereunder to the extent and in the manner necessary so that, in the
opinion of Tax Counsel, there does not exist a substantial likelihood that any
payment that the Executive is entitled to under this Agreement (as so amended)
will be treated as an excess parachute payment, and otherwise in an equitable
fashion.
12. Headings. Section headings are inserted herein for
convenience of reference only, shall have no substantive aspect and shall not be
taken into account in connection with the interpretation or construction of this
Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
xxxx xxxxx productions, inc.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title:Chairman and Chief
Executive Officer
/s/ Xxxxxxx X. Xx Xxxxx
---------------------------
Xxxxxxx X. Xx Xxxxx
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