This Employment Agreement (“Agreement”) between Lions Gate Films Inc. and
all of its subsidiaries and parents (collectively, “Lions Gate” and/or
“Company”) and Xxxxx Xxxxx (“Employee”) is entered into and is effective as of
August 28, 2003 with respect to the following:
Reference is hereby made to that certain employment agreement, dated as of
May 1, 2001 between Lions Gate and its subsidiaries and parent companies and
Employee (“Prior Agreement”).
Lions Gate hereby agrees to employ Employee as General
and Executive Vice President and Employee hereby agrees to accept such
under the terms and conditions set forth below. Employee shall report to the
General Counsel and Executive Vice President.
3. TERM: Three
(3) years: May 1, 2004 until April 30, 2007 (the Term”).
4. OPTION: Intentionally Deleted.
5. BASE SALARY:
(a) Employee’s compensation for the first year
of the Term shall be
$350,000 per annum, subject to normal statutory deductions, payable semi-monthly or in
accordance with Lions Gate’s then existing payment policy. Employee’s
the second year of the Term shall be $375,000 per annum, with all compensation
payable semi-monthly or in accordance with Lions Gate’s then existing payment
Employee’s compensation for the third year of the Term shall be $400,000 per
all compensation being payable semi-monthly or in accordance with Lions Gate’s
existing payment policy.
(b) Employee shall receive a car allowance in the amount of $600 per month.
a. At the discretion of the CEO, but no less than $25,000 during the first
year of the Term.
b. Employee shall be entitled to participate in all management bonus
arrangements which are approved by Lions Gate’s board of directors or
senior management that
are applicable to Lions Gate employees of Employee’s level (“Bonus
7. BENEFITS: Employee shall be eligible for all employee benefits
(health insurance and vacation) and 401(k) per Lions Gate’s standard benefit
program, commencing immediately. Employee shall be entitled to accrue vacation at the rate of four weeks
per year up to a maximum
of four weeks at any given time. Employee shall not be entitled to accrue
vacation, nor be entitled to any paid vacation days. Employee, however, shall
be entitled to take time off,
(i) approval of Employee’s supervisor, and (ii) the demands and requirements of
Employee’s duties and responsibilities under the Agreement. Employee shall be entitled to all other
“perqs” that are applicable to Lions Gate employees of
Employee’s level. For as long as Lions Gate
continues the policy for all executives at Employee’s level, Employee shall be entitled to fly
business class for any flight in excess of four hours. Employee shall be entitled to be reimbursed
for all reasonable expenses incurred in the performance of Employee’s obligations hereunder.
Employee shall be reimbursed for all cell phone expenses incurred for business purposes, and the
pro-rata portion of all monthly charges pertaining thereto. Lions Gate shall pay for Employee’s
Blackberry E-mail device and the monthly charge thereof.
8. SERVICES: Employee’s services shall be exclusive to Lions Gate during the Term.
Employee shall render such services as are customarily rendered by persons in Employee’s
capacity in the motion picture industry and as may be reasonably requested by Lions Gate.
Employee hereby agrees to comply with all reasonable requirements, directions and requests, and
with all reasonable rules and regulations made by Lions Gate in connection with the regular
conduct of its business; to render services during Employee’s employment hereunder whenever
and wherever and as often as Lions Gate may reasonably require in a competent, conscientious
and professional manner, and as instructed by Lions Gate in all matters, including those
involving artistic taste and judgment, but there shall be no obligation on Lions Gate to cause
allow Employee to render any services, or to include all or any of Employee’s work or services
in any motion picture or other property or production.
INFORMATION; RESULTS AND PROCEEDS: Employee hereby
expressly agrees that Employee will not disclose any confidential matters of Lions Gate prior to,
during or after Employee’s employment. In addition, Employee agrees that Lions Gate shall
own all rights of every kind and character throughout the universe, in perpetuity to any material
and/or idea suggested or submitted by Employee or suggested or submitted to Employee by a
third party (provided that Lions Gate makes a deal with such third
party) that occurs during the
Term and are within the scope of Employee’s employment and responsibilities hereunder.
Employee agrees that during the Term, Lions Gate shall own all other results and proceeds of
Employee’s services that are related to Employee’s employment and responsibilities hereunder.
OPTIONS: (i) Lions Gate shall request that the Compensation Committee of
Lions Gate (“CCLG”) authorize and grant Employee the right (the “Option”) to purchase
an additional 125,000 common shares of Company in accordance with the terms and
conditions of the existing Employee Stock Option Plan, said grant to
vest over the Term. Lions Gate acknowledges that Employee is currently vested in 50,000 stock options and shall be
vested in an aggregate of 75,000 stock options as of
August 2003. Employee acknowledges that
this grant of stock is subject to the approval of the CCLG. If any
employee’s stock options that are issued under the Employee Stock Option Plan accelerate in vesting schedule as a result of a
change of control, Employee’s stock options issued hereunder shall likewise accelerate in vesting
(iii) In the event
that CCLG authorizes and grants Company employees the right to purchase
common shares of Company under a generalized plan (“Stock Plan”) other than under
the Employee Stock Option Plan, Employee shall be entitled to participate in such Stock Plan
in accordance with the terms of such Stock Plan.
the event that that the CCLG does not approve of the grant set forth in this
Paragraph 10, Employee shall be entitled to terminate this
11. NOTICES: All notices to be given pursuant to this agreement shall be effected
mail or personal delivery in writing as follows:
Lions Gate Entertainment
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Attention: General Counsel
c/o Lions Gate Entertainment
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
12. COMPLETE AGREEMENT;
MODIFICATIONS. Each party to this agreement
acknowledges that no representations, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not
embodied herein, and that no other agreement, statement, or promise
not contained in this
agreement shall be valid or binding. This agreement embodies the complete agreement and
understanding between the parties and supersedes all prior understandings, agreements or
representations by or between the parties, written or oral, which may have related to the subject
matter hereof. Any modification of this agreement will be effective only if it is in writing and
signed by the party to be charged.
13. LAWS. This agreement will be governed by the internal laws of the State of California
irrespective of rules pertaining to conflicts of laws. This Agreement may be executed via facsimile
and/or in counter-parts and all such counter-parts and/or facsimile copies shall be deemed one and
the same and an original of this Agreement.
14. WAIVERS. Failure to require compliance with any provision or condition provided for
under this agreement at any one time, or several times, shall not be deemed a waiver or
relinquishment of such provision or condition at any other time.
15. ASSIGNMENT. Employee shall not assign any of his
rights or delegate any of his duties under this agreement.
16. TERMINATION AND NON-RENEWAL.
This Agreement shall terminate upon the happening of any one or more of the
(a) The mutual written agreement between Lions Gate and Employee; or
(b) The death of Employee. In such event all of Employees Stock
Options issued hereunder shall be deemed to have vested; or
(c) Employee’s having become so physically or mentally disabled as
to be incapable, even with a reasonable accommodation, of satisfactorily
performing his duties
hereunder for a period of ninety (90) days or more, provided that Employee
has not cured
disability within ten days of written notice; in such event all of
Employee’s stock options shall
vest according to the vesting schedule set forth in the Employee Stock
Option Plan and be
granted to Employee upon such vestiture; or
(d) The determination on the part of Lions Gate that “cause” exists for termination
of this Agreement; “cause” being defined as any of the
following: 1) Employee’s conviction of a
felony or plea of nolo contendere to a felony except in connection
with a traffic violation; 2) commission, by act or omission, of any material act of dishonesty in the performance of Employee’s
duties hereunder; 3) material breach of this Agreement by
Employee; or 4) any act of misconduct by
Employee having a substantial adverse affect on the business or reputation of Lions Gate.
(e) Without Cause. In such case Employee shall be entitled to receive either (i) the Base
Salary and Bonuses set forth in paragraph 5, 6 and 7 through the conclusion of the Term, subject to
Employee’s obligation to mitigate in accordance with California
Law; or (ii) a severance amount
equal to 50% of the balance of the compensation, bonuses and benefits still owing to Employee under
paragraph 5, 6 and 7 hereof at the time of termination shall be
paid to Employee by Lions Gate in
one lump sum, which payment shall relieve Lions Gate of any and all obligations to Employee.
Employee shall elect either alternative (i) or (ii) within the first six months of the Term in
writing. In the event that Employee fails to so elect within such time period, then Lions Gate
shall have the right to elect either alternative (i) or (ii). Irrespective of Lions Gate’s or
Employee’s election of either (i) or (ii), as the case may be, Employee shall be entitled to 100% of
the following amounts: (i) any accrued vacation and/or other
benefits; (ii) any incurred business
expenses that have not been reimbursed as of the date of the
termination; and (iii) the pro rata
portion of any bonuses which are earned that Employee is entitled to receive as of the date of
the event that this Agreement is terminated pursuant to
sub-paragraphs (a)-(d) above
neither Lions Gate nor Employee shall have any remaining duties or obligations hereunder,
except that Lions Gate shall pay to Employee, only such compensation and benefits as is
earned under Paragraph 5, 6, and 7 as of the date of termination, as well as any accrued benefits
which remain unused through the date of termination. 100% of the following amounts: (i) any
accrued benefits; (ii) any incurred business expenses that have not been reimbursed as of the
date of the termination; and (iii) the pro rata portion of any
bonuses which are earned that
Employee is entitled to receive as of the date of termination.
SECRETS. The parties acknowledge and agree that during the
term of this
Agreement and in the course of the discharge of his duties hereunder, Employee shall have
access to and become acquainted with information concerning the operation of Lions Gate and
its affiliated entities, including without limitation, financial, personnel, sales, planning and
information that is owned by Lions Gate and regularly used in the operation of Lions Gate’s
business and that this information constitutes Lions Gate’s trade secrets. Employee agrees that
he shall not intentionally or through gross negligence disclose any such trade secrets, directly or
indirectly, to any other person or use them in any way, either during the term of this agreement
or at any other time thereafter, except as is required in the course of his employment for Lions
18. ARBITRATION. Employee and Lions Gate
agree that any and all claims or controversies
whatsoever brought by Employee or Lions Gate, arising out of or relating to this Agreement, his
employment with Lions Gate, or otherwise arising between Employee and Lions Gate, will be
settled by final and binding arbitration under the Federal Arbitration Act in accordance with the
Employment Dispute Resolution Rules of the American Arbitration Association. This includes
all claims whether arising in tort or contract and whether arising under statute or common law.
Such claims may include, but are not limited to, those relating to this Agreement, wrongful
termination, retaliation, harassment, or any statutory claims under Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Fair Employment and Housing Act, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, or similar Federal or
state statutes. In addition, any claims arising out of the public policy of California (and/or
arising out of the public policy of the state in which Employee is employed), any claims of
wrongful termination, employment discrimination, retaliation, or harassment of any kind, as well
as any claim related to the termination or non-renewal of this Agreement shall be arbitrated
under the terms of this Agreement. The obligation to arbitrate such claims will survive the
termination of this Agreement. The Company shall pay the administrative costs of such
The arbitration will be conducted before an arbitrator who is a member of the National Academy of Arbitrators and selected by the parties from the American Arbitration Association’s
Labor Panel. The arbitrator shall have a business office in or be a resident of Los Angeles
County, California. The arbitrator will have jurisdiction to determine the arbitrability of any
claim. The arbitrator will not have the right to add to, subtract from or modify any of the
terms of this Agreement, nor the power to reverse or modify any decision reserved to
Lions Gate’s discretion. The arbitrator shall have the authority to grant all monetary or equitable relief
(including, without limitation, injunctive relief and ancillary costs and fees) available
under state and Federal law. Judgment on any award rendered by the arbitrator may be entered and enforced
by any court having jurisdiction thereof. Discovery shall be in accordance with the
California Arbitration Act.
If the foregoing represents Employee’s and Lions Gate’s understanding and
agreement and Employee Lions Gate agree to be legally bound by the foregoing terms
and conditions, each so indicate in the place provided for below.
Lions Gate Films, Inc.
By /s/ Xxx
Agreed to and Accepted:
/s/ Xxxxx Xxxxx