Exhibit 10 (A)(A)
EMPLOYMENT AND CONSULTING AGREEMENT
THIS AGREEMENT, made as of the 19th day of July 1995, by and between UNITEL
VIDEO, INC., a Delaware corporation, (hereinafter called "Company"), and XXXX
XXXXXXX, an individual (hereinafter called "Xxxxxxx").
W I T N E S S E T H
Xxxxxxx has been employed by the Company as an executive for many years
without a formal employment agreement. At the request of Xxxxxxx, the Board of
Directors of the Company, with Xxxxxxx abstaining, has authorized the Company to
enter into a formal employment and consulting agreement on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound hereby, the Company and
Xxxxxxx agree as follows:
1. EMPLOYMENT. The Company hereby engages the services of Xxxxxxx and
Xxxxxxx hereby accepts said engagement by the Company for the period and upon
the terms and conditions contained in this Agreement.
2. OFFICE AND DUTIES.
(a) During his employment hereunder Xxxxxxx shall serve the Company
in the position of consultant with respect to the daily business affairs of the
Company.
(b) The parties agree that there will be no fixed time commitment of
Xxxxxxx once he has become a consultant; he shall make himself available to the
officers and Board of Directors of the Company for consultation at such times as
may be mutually agreed upon by Xxxxxxx and the Company.
3. TERM. This Agreement shall be for a term of three (3) years and one
(1) month commencing as of May 3, 1995 and ending on June 4, 1998 (the "Term").
Xxxxxxx'x employment hereunder shall be for the period from May 3, 1995 through
November 3, 1995 (the "Employment Period"), with compensation as specified in
paragraph 4. On November 3, 1995 Xxxxxxx shall resign his employment with the
Company and during the balance of the Term Xxxxxxx shall serve as an outside
consultant to the Company, with compensation as specified in paragraph 7
4. COMPENSATION. During the Employment Period, Xxxxxxx shall receive,
for all of the services rendered by Xxxxxxx to the Company, a salary at the rate
of One Hundred Seventy-Eight Thousand Nine Hundred and Seventy-Five Dollars
($178,975.00) per annum, payable in accordance with the Company's usual payroll
practices, and subject to such withholdings as may be required by law.
5. AUTOMOBILE; BENEFITS DURING EMPLOYMENT PERIOD.
(a) The Company shall make all payments on the lease currently in effect
on Xxxxxxx'x automobile and shall pay all related expenses which the Company had
paid prior to the commencement of the Term, in each case through the end of the
lease term in July, 1996.
(b) Throughout the Employment Period, Xxxxxxx shall be entitled to
participate in and receive the benefits of any health, medical, dental, life,
accident and
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401(k) insurance plans or programs made generally available to executive
employees of the Company (but excluding the Company's disability plans and
programs); provided that Xxxxxxx shall pay the portion of the cost of such
benefits paid by full-time employees of the Company. Xxxxxxx shall not be
entitled to any sick leave or vacation benefits.
6. [RESERVED]
7. CONSULTING.
(a) On November 3, 1995 Xxxxxxx shall resign his employment with the
Company and on November 4, 1995 Xxxxxxx shall become an outside consultant to
the Company for the balance of the Term (such period being the "Consultancy
Period").
(b) The parties agree that there will be no fixed time commitment of
Xxxxxxx once he has become a consultant; he shall make himself available to the
officers and Board of Directors of the Company for consultation at such times as
may be mutually agreed upon by Xxxxxxx and the Company.
(c) During the Consultancy Period, Xxxxxxx shall be paid a consulting fee
at the annual rate of $44,743.75, payable on a bi-weekly basis.
8. BENEFITS DURING CONSULTANCY PERIOD.
During the Consultancy Period, Xxxxxxx shall be entitled to
participate in and receive the benefits of any health, medical, dental, life and
accident insurance plans or programs made generally available to executive
employees of the Company; provided that Xxxxxxx shall pay the portion of the
cost of such benefits paid by full-time employees of the Company. Xxxxxxx shall
not be entitled to any disability insurance, pension (including 401(k)), sick
leave or vacation benefits during the Consultancy Period.
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9. TERMINATION FOR CAUSE. The Company may terminate this Agreement at
any time during the Term if Xxxxxxx breaches any material obligation under this
Agreement, or is convicted of any fraud, embezzlement or dishonest action
against the Company, in which event the Company shall have no further obligation
or liability for any compensation, consulting fees or other payments otherwise
due or to become due to Xxxxxxx hereunder; provided, however, that the Company
shall not terminate this Agreement, and shall continue to make the payments
provided hereunder, in the event that Xxxxxxx becomes disabled for any reason.
10. NONCOMPETITION, TRADE SECRETS, ETC.
(a) During the Term Xxxxxxx shall not engage in (as principal,
partner, director, officer, agent, employee, consultant or otherwise), or be
financially interested in, any business operating within the United States which
has as a principal business activity any of the principal business activities
conducted by the Company. However, nothing contained in this paragraph 10 shall
prevent Xxxxxxx from holding for investment no more than one percent (1%) of any
class of equity securities of a company whose securities are traded on a
national securities exchange.
(b) During the Term and at all times thereafter, Xxxxxxx shall not use for
his personal benefit, or disclose, communicate or divulge to, or use for the
direct or indirect benefit of, any person, firm, association or company other
than the Company, any proprietary and confidential information of the Company
made known to Xxxxxxx or learned or acquired by Xxxxxxx while in the employ of
the Company, including without limitation, any proprietary data (financial or
otherwise) on or relating to past, present or prospective customers or clients
of the Company.
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(c) Xxxxxxx acknowledges that the restrictions contained in the foregoing
subparagraphs (a) and (b), in view of the nature of the business in which the
Company is engaged, are reasonable and necessary in order to protect the
legitimate interests of the Company, and that any violation thereof would result
in irreparable injuries to the Company, and Xxxxxxx therefore acknowledges that,
in the event of his violation of any of these restrictions, the Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled.
(d) If the period of time or the area specified in subparagraph (a) above
should be adjudged unreasonable in any proceeding, then the period of time shall
be reduced by such number of months or the area shall be reduced by the
elimination of such portion thereof or both so that such restrictions may be
enforced in such areas and for such time as is adjudged to be reasonable.
11. GENERAL RELEASE.
(a) Xxxxxxx waives and hereby releases and discharges Employer from any
and all claims, demands, causes of action, fees and liabilities of any kind
whatsoever, whether known or unknown, which Xxxxxxx ever had or now has against
Employer by reason of any actual or alleged act, omission, transaction,
practice, conduct, occurrence, or other matter up to and including the date of
this Agreement.
(b) Without limiting the generality of the foregoing, this Agreement is
intended to and shall release Employer from any and all claims, whether known or
unknown, which
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Xxxxxxx ever had or now has against Employer arising out of his employment with
Employer , including, but not limited to: (i) any claim under the Civil Rights
Act of 1964, as amended; (ii) any claim under the Age Discrimination in
Employment Act, as amended; (iii) any other claim of discrimination in
employment (whether based on federal, state or local law, statutory or
decisional); (iv) any claim arising out of the terms and conditions of his
employment with Employer; and (v) any claim for attorneys' fees, costs,
disbursements and/or the like.
12. MISCELLANEOUS.
(a) INDULGENCES, ETC. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of New York,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman. The courts of the State of
New York
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shall have exclusive jurisdiction over all matters of this Agreement. The venue
of such action shall be in New York County.
(c) NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when delivered
(personally, by courier service such as Federal Express, or by other messenger)
against receipt or upon actual receipt of registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
(i) If to Xxxxxxx:
Mr. Xxxx Xxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
(ii) If to Company:
Unitel Video, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Any party may change the address to which communications or copies are to
be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(d) BINDING NATURE OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns and shall be
binding upon Xxxxxxx, his heirs and legal representatives.
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(e) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) ENTIRE AGREEMENT. This Agreement contains the entire understanding
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(g) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
13. KNOWING AND VOLUNTARY AGREEMENT. Upon execution of this Agreement,
Xxxxxxx acknowledges that he has been afforded the time (at least 21 days) and
opportunity necessary to consider this agreement and seek independent advice and
counsel and that he understands his rights and obligations and that, with such
knowledge, he has entered into and executed this Agreement freely and
voluntarily.
14. REVOCATION. Xxxxxxx may, on or before the seventh (7th) day
following his execution of this Agreement, revoke this Agreement, by notifying
the Company in writing of his desire to revoke the Agreement, whereupon the
Agreement shall be rendered null and void.
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15. EFFECTIVENESS. Although this Agreement is dated as of the date set
forth above, it shall govern the relationship between the parties for the entire
Term.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
UNITEL VIDEO, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Senior VP - Finance &
Administration
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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