EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of April
28, 1999 between Metro-Xxxxxxx-Xxxxx Inc., a Delaware corporation (the
"Company"), and Xxxx Xxxxxxxxxxx ("Executive").
The parties agree as follows:
1. Employment and Title. Effective as of April 26, 1999 (the "Effective
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Date"), the Company employs Executive as, and Executive accepts employment to
serve as, Chairman of the Board of Directors and Chief Executive Officer of the
Company (with such additional titles as may be designated by the Board of
Directors), all upon the terms and conditions set forth in this Agreement,
including the powers and authority set forth in Paragraph 2 below. The Company
shall use its best efforts to keep Executive as a member of the Board of
Directors throughout the Term (as defined in Paragraph 6 below), including
placing Executive on management's slate of nominees for election as director at
every shareholders' meeting at which his term would otherwise expire. During
the Term, Executive shall be a member of the Executive Committee of the Board of
Directors (or its equivalent).
2. Powers and Authority.
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(a) As Chairman and Chief Executive Officer of the Company, Executive
shall have such duties and responsibilities as are customarily associated with
such titles. If the Executive, in his discretion, establishes an Office of the
Chairman, Executive shall be a member of the Office of the Chairman. Except as
may be otherwise provided in employment agreements in effect as of the date
hereof (including the Employment Agreement dated as of April 28, 1999 between
the Company and Xxxxxxxxxxx X. XxXxxx (the "XxXxxx Agreement"), all employees of
the Company shall report to Executive. Executive shall have full access to all
employees of the Company (including such persons who report to Xx. XxXxxx
pursuant to the XxXxxx Agreement) and may deal with such persons directly.
(b) Except for the rendition of services to MGM Grand, Inc., Tracinda
Corporation, The Lincy Foundation, The United Armenian Fund and their respective
affiliates, Executive's services shall be exclusive to the Company and its
subsidiaries. Except as otherwise provided in this Paragraph 2(b), Executive
shall devote Executive's best efforts and Executive's full business time to the
services to be performed hereunder. In addition to the entities specified in
the first sentence of this Paragraph 2(b), with the permission of the Executive
Committee,
Executive may serve on the boards of directors (and committees thereof) of (but
in no other capacity for) other companies and non-profit organizations.
Executive may also manage the investment of Executive's personal assets, and may
make new investments of Executive's personal assets in other companies so long
as such activities do not materially interfere with Executive's duties hereunder
and (other than investments not to exceed one percent (1%) of the total
outstanding in publicly traded securities) such companies do not directly
compete with the Company.
(c) Executive agrees to comply with the Company's policies and
procedures as in effect from time to time (and which are not inconsistent with
this Agreement) to the extent that such policies are furnished to Executive in
writing.
3. Location. The location of Executive's principal place of employment
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shall be in the Company's principal executive offices in the greater Los
Angeles, California area; provided, however, that Executive shall perform such
occasional services outside of Los Angeles as are, in the reasonable
determination of the Executive or the Company's Board of Directors, reasonably
required for the proper performance of Executive's duties under this Agreement.
4. Reporting. Executive shall report solely to the Company's Board of
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Directors.
5. Availability. Each party represents and warrants to the other that he
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or it has the full power and authority to enter into and perform his or its
obligations under this Agreement and that his or its execution of and
performance under this Agreement shall not constitute a default under or breach
of the terms of any other agreement or order of any court or governmental
authority to which he or it is a party or under which he or it is bound. Each
party shall defend and hold harmless the other for any and all claims, demands,
losses or damages (including reasonable attorneys' fees) arising from any action
against any such party due to a breach of any representation and warranty
contained in this Paragraph or based upon any allegations of interference with
contractual obligations or the like relating to the negotiation or execution of
this Agreement.
6. Term. Subject to the provisions for earlier termination set forth in
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Paragraph 11, the term of Executive's employment hereunder shall commence on the
Effective Date and continue through April 30, 2004 (the "Term"). Neither the
Company nor Executive will have any obligation to renew or extend this Agreement
beyond the Term.
7. Compensation.
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(a) Salary and Bonus. In full consideration for the services to be
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rendered by Executive, and in full discharge of the Company's salary
obligations, Company shall pay to Executive and Executive shall accept:
(i) an annualized base salary of $2,500,000 for each year of the Term
(less tax
withholdings required by law and other voluntary deductions authorized by
Executive), payable bi-weekly in arrears commencing on the first regular
bi-weekly payment date.
(ii) subject to clause (1) below, an annual discretionary bonus (or
such applicable prorated portion thereof for any partial Company fiscal
year during the Term), less tax withholdings required by law and other
voluntary deductions authorized by Executive; such bonus shall be
determined in the sole discretion of the Compensation Committee of the
Board of Directors and shall be payable on the tenth business day following
the Company's public disclosure of its financial results for the applicable
fiscal year ending during the Term (and within forty-five days following
the end of the Term with respect to the last partial Company fiscal year).
(1) As soon as practicable, the Company, with the input of Executive,
shall develop and adopt a performance-based bonus program for
senior executives, including Executive, pursuant to which bonus
awards are determined by the Compensation Committee of the Board
of Directors based on the Company's attainment of defined goals
of pre-tax income, EBITDA or other indicia of profitability or
cash flow as reflected in the Company's business plan from time
to time; Executive's bonus shall be determined in accordance with
such program.
(b) Other Benefits. Executive shall be entitled to vacation time in
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accordance with Company policy applicable to employees of Executive's seniority,
salary and title and first-class air travel (where available) when traveling on
Company business.
(c) Business Expenses. During the Term, the Company shall pay or
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reimburse Executive promptly for all reasonable business expenses incurred by
Executive in the performance of Executive's duties under this Agreement if
properly substantiated and in accordance with the Company's policies and
procedures applicable to employees of Executive's seniority, salary and title.
(d) Insurance. During the Term, Executive shall be entitled to and
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shall be accorded all rights and benefits under any life insurance, disability
insurance, health and major medical insurance policy or policies which the
Company provides for its senior officers or employees generally. Nothing in
this paragraph shall require the Company to retain any particular policy or
plan, but a reasonable insurance benefit package shall be maintained.
(e) Employee Benefit Plans. Executive shall be entitled to
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participate in and/or receive all other employee benefits under any 401(k) plan,
savings plan, pension plan and other similar plan or program which the Company
provides for its senior officers or employees generally, all subject to the
terms and conditions of the various benefit plans; provided that Executive shall
not participate in the existing Senior Management Bonus Plan, and further
provided that nothing herein shall require the Company to adopt or maintain, or
limit the ability of the Company to amend or modify, any particular employee
benefit plan, program or policy.
(f) Relocation Expenses. Executive shall be reimbursed for relocation
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and other related expenses in accordance with Company policy applicable to
senior executives occasioned by the relocation of Executive and his family from
Las Vegas, Nevada to the Los Angeles area.
8. Compensation in the Event of Termination.
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(a) If the Agreement is terminated under Paragraph 11(a), Executive or
his estate shall receive the compensation provided in Paragraph 7(a)(i) and
7(a)(ii), if any, prorated to the date of termination, and all amounts accrued
under benefit plans in which Executive is a participant as of such termination
date.
(b) If the Agreement is terminated under Paragraph 11(b), Executive
shall receive the same compensation and benefits set forth in Paragraph 8(a),
except that the benefits provided in Paragraph 7(d) shall continue for what
would be the remainder of the Term but for such termination (the "Full Term") in
accordance with the terms of each respective policy or plan (provided, however,
that if prior to the expiration of the Full Term, Executive receives any of the
types of benefits specified in Paragraph 7(d) from a subsequent employer, the
Company shall immediately cease to provide such types of benefits received from
the subsequent employer).
(c) If the Agreement is terminated under Paragraph 11(c) or 11(e)
below, or expires pursuant to its terms, Executive shall receive: (i) the
compensation provided in Paragraph 7(a)(i) through the Full Term, payable as
provided in Paragraph 7(a)(i); and (ii) the benefits provided in Paragraph 7(d)
for the Full Term in accordance with the terms of each respective policy or plan
(provided, however, that if prior to the expiration of the Full Term, Executive
receives any of the types of benefits specified in Paragraph 7(d) from a
subsequent employer, the Company shall immediately cease to provide such types
of benefits received from the subsequent employer);
(d) If the Agreement is terminated under Paragraph 11(d), Executive
shall not be entitled to receive any payment or benefits following the date of
termination, except as may be accrued or vested to the date of termination.
9. Stock Options. Effective as of the date hereof (the "Date of Grant"),
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but subject to the approval of the Company's stockholders as provided below,
Executive shall receive non-qualified options to purchase all or any part of
10,000,000 shares of the Company's Common Stock, par value $.01 per share
("Common Stock") under the Company's Amended and Restated 1996 Stock Incentive
Plan (the "Plan") consisting of 5,000,000 options exercisable at $14.90 per
share ("$14.90 Options") and 5,000,000 options exercisable at $30.00 per share
("$30.00
Options"), upon the terms and conditions set forth below and in the
Plan:
(a) $14.90 Options
(i) Number of Shares of
Common Stock
Subject to $14.90 Options: 5,000,000
(ii) Exercise Price: $14.90 per share
(iii) Vesting Schedule:
April 30, 2000: 20%
April 30, 2001: 20%
April 30, 2002: 20%
April 30, 2003: 20%
April 30, 2004: 20%
(b) $30.00 Options
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(i) Number of Shares of
Common Stock
Subject to $30.00 Options: 5,000,000
(ii) Exercise Price: $30.00 per share
(iii) Vesting Schedule:
April 30, 2000: 20%
April 30, 2001: 20%
April 30, 2002: 20%
April 30, 2003: 20%
April 30, 2004: 20%
(c) In the event the Company terminates this Agreement pursuant to
Paragraph 11(c), Executive terminates this Agreement pursuant to Paragraph
11(e), or a Designated Change of Control (as defined in Exhibit A) occurs: (i)
all of the unvested $14.90 Options and $30.00 Options shall vest, and (ii) all
of the $14.90 Options and $30.00 Options shall be exercisable for a one (1) year
period following the date of Executive's termination (but not later than July
29, 2004).
(d) The option grant will be more fully reflected in a stock option
substantially in the form of Exhibit A hereto, with such changes as are
necessary to implement Paragraph 9 of this Agreement.
(e) Executive acknowledges that the Plan does not currently have
sufficient authorized shares to effectuate the stock options provided for
herein, and that accordingly, such stock options are subject to the approval of
the Company's stockholders. The Company agrees to submit to its stockholders
for approval at the next meeting of the Company's stockholders (or to seek the
written consent of the holders of a majority of the Company's Common Stock) of
an amendment to the Plan to increase the number of shares of Common Stock
subject to the Plan in order to effectuate the stock options provided for
herein.
10. Property Rights.
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(a) Executive agrees that all results and proceeds of his services,
including any ideas, programs, formats, plans and arrangements, composed,
conceived or created by him during the period of this employment, solely or in
collaboration with others (collectively, the "Creations'), whether or not same
is made at the request or suggestion of the Company, or during or outside
regular hours of work, shall at all times be and remain the sole and exclusive
property of the Company. Executive further agrees that he will, at the request
of the Company, execute and deliver to the Company, in form satisfactory to the
Company, documents evidencing the Company's ownership to the foregoing; but
notwithstanding that no such documents are executed, the Company, as Executive's
employer, shall be deemed the owner thereof immediately upon creation. Anything
in this Agreement to the contrary notwithstanding, the provisions of this
paragraph shall survive the termination, for any reason, of this Agreement.
(b) Notwithstanding Paragraph 10(a) above, the Company shall not own
any Creations created by Executive prior to the Term or solely during
Executive's leisure hours during the Term, which Creation is not related in any
manner to, or derived in any manner from, any projects, concepts and/or
intellectual property of any nature of the Company or any of its affiliates.
Notwithstanding the foregoing, Executive agrees to submit to the Company any
such Creation which Executive desires to commercially exploit, and the Company
will notify Executive within ten (10) business days of receipt if the Company
desires to start negotiations for rights thereto. If no agreement is reached
within thirty (30) days after the start of negotiations, then Executive will
make an offer to the Company for such rights and if the Company does not accept,
Executive may negotiate elsewhere the rights so offered.
11. Termination. Executive's employment shall terminate:
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(a) Upon the death of Executive.
(b) At the option of the Company, if Executive is disabled.
Disability shall mean Executive's inability to substantially perform his duties
hereunder due to a medically determinable physical or mental impairment that can
reasonably be expected to result in death within twelve (12) months or which has
lasted or can be expected to last for a continuous period of not less than
twelve (12) months.
(c) After thirty (30) days' written notice by the Company to
Executive without "Cause".
(d) Upon written notice by the Company to Executive for "Cause"
which shall include only:
(i) the continued failure of Executive to substantially perform his
duties with the Company or any subsidiary of the Company (other than any
such failure resulting from illness, temporary absence, legal incapacity
due to mental or physical condition or disability) for thirty (30) days
after a demand for substantial performance is delivered in writing to
Executive by the Company which specifically identifies the manner in which
Executive has not substantially performed his duties;
(ii) Executive's continued failure to follow reasonable and lawful
directives (consistent with the terms of this Agreement) of the Board of
Directors or the Executive Committee of the Company after a demand for
Executive to follow such directives is delivered in writing to Executive by
the Company that specifically identifies the manner in which Executive has
not followed such directives;
(iii) the engaging by Executive in willful, reckless or grossly
negligent misconduct in connection with his employment;
(iv) Executive's conviction (including a plea of guilty or nolo
contendere) of an offense involving moral turpitude or a felony;
(v) breach by Executive of this Agreement and failure to cure such
breach within thirty (30) days of delivery of a written notice to Executive
by the Company that specifically identifies the breach; or
(vi) failure of Executive to materially operate within the expense
parameters of the business plan approved by the Executive Committee, unless
such deviation has been approved in writing by the Executive Committee.
If the remedy, cure or cessation of an act or omission which is the
subject of a notice under this Paragraph 11(d) would reasonably require more
than thirty (30) days to complete and Executive commences such remedy, cure or
cessation within thirty (30) days after receipt of such notice and diligently
pursues the same to completion, said act or omission shall not constitute
"Cause", provided that "Cause" under clauses (iii) or (iv) above shall not be
subject to cure.
(e) Upon thirty (30) days' written notice by Executive to the
Company for "Good Reason" which shall include only:
(i) a substantial and adverse change in Executive's status or
position with the Company as the same existed on the commencement of the
Term hereof which is not cured within thirty (30) days after written notice
thereof to the Company from Executive;
(ii) a reduction (other than for Cause) by the Company of Executive's
aggregate compensation under Paragraph 7(a)(i) above, unless such reduction
is reinstated retroactively not later than thirty (30) days after written
notice thereof to the Company from Executive;
(iii) a relocation of Executive's principal place of employment to
any place outside the greater Los Angeles area, except for reasonable
amounts of required travel by the Executive on the Company's business; or
(iv) any material breach by the Company of any provision of this
Agreement which is not cured within thirty (30) days after written notice
thereof to the Company from Executive; or
(v) a Designated Change of Control (as defined in Exhibit A) occurs,
provided however if Executive does not terminate this Agreement pursuant to
this Paragraph 11(e) within six (6) months after the occurrence of the
Designated Change of Control, Executive may not terminate this Agreement
because of such Designated Change of Control.
(f) at the expiration of the Term.
12. No Mitigation; Consulting Services.
(a) Except as provided in Paragraphs 8(b) and 8(c) regarding
benefits provided by a subsequent employer, and without limiting any other
provision hereof, any income and any other employment benefits received by
Executive from any and all sources other than the Company before or after the
expiration or termination of this Agreement for any reason whatsoever shall in
no way reduce or otherwise affect the Company's obligation to make payments and
afford benefits hereunder. Executive shall have no duty to seek employment.
(b) For a one year period following termination for any reason
(other than pursuant to Paragraph 11(a) of this Agreement), Executive shall make
himself available to the Company on a non-exclusive basis consistent with his
other responsibilities to consult with the Company concerning transitional
matters. Executive shall be entitled to compensation at the rate of $500 per
hour for such services plus reimbursement of his reasonable and documented
expenses incurred in connection therewith.
13. Confidential Material.
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(a) Disclosure. Executive acknowledges that, in the performance of
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duties on behalf of the Company, Executive shall have access to, receive and be
entrusted with confidential information, Including but in no way limited to
development, marketing, organizational, financial, management, administrative,
production, distribution and sales information, data, specifications and
processes presently owned or at any time in the future developed by, the Company
or its agents or consultants, or used presently or at any time in the future in
the course of its business that is not otherwise part of the public domain
(collectively, the "Confidential Material"). All such Confidential Material is
considered secret and will be available to Executive in confidence. Except in
the performance of Executive's duties on behalf of the Company or as required by
law, Executive shall not, directly or indirectly for any reason whatsoever,
disclose or use any such Confidential Material, unless such Confidential
Material ceases (through no fault of Executive's) to be confidential because it
has become part of the public domain. All records, files, drawings, documents,
equipment and other tangible items, wherever located, relating in any way to the
Confidential Material or otherwise to the Company's business, which Executive
prepares, uses, or encounters, shall be and remain the Company's sole and
exclusive property and shall be included in the Confidential Material. Upon
termination of this Agreement by any means, or whenever requested by the
Company, Executive shall promptly deliver to the Company any and all of the
Confidential Material not previously delivered to the Company that may be or at
any previous time has been in Executive's possession or under Executive's
control; provided, however, Executive may keep Executive's rolodex or other
personal list of addresses and telephone numbers.
(b) Unfair Competition. Executive hereby acknowledges that the sale
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or unauthorized use or disclosure of any of the Company's Confidential Material
by Executive by any means whatsoever at any time before, during or after
Executive's employment with the Company shall constitute "Unfair Competition".
Executive agrees that Executive shall not engage in Unfair Competition either
during the time Executive is employed by the Company or at any time thereafter.
(c) Other. In the event of the termination of Executive's
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employment for any reason, Executive shall not for the longer of the period
during which Executive is receiving payments pursuant to Paragraph 8 or one (1)
year following termination:
(i) directly or indirectly, either alone or jointly with or on
behalf of any corporation or entity of which Executive is a director,
employee or greater than five percent (5%) shareholder solicit for
employment any employee of the Company or, any of its affiliates or
subsidiaries other than Executive's secretary or personal assistant; or
(ii) make any derogatory public statement concerning the Company, any
of its affiliates or subsidiaries, or Executive's employment unless
previously approved by the
Company, except as may be required by law.
14. Miscellaneous.
(a) Arbitration.
(i) Any and all disputes between Executive and the Company, however
significant, arising out of, relating in any way to or in connection with
this Agreement (including the validity, scope and enforceability of this
arbitration clause) shall be solely settled by an arbitration to be held in
Los Angeles, California and conducted in accordance with such rules of the
American Arbitration Association or any similar successor body as are not
inconsistent with the provisions of this Paragraph 14(a).
(ii) Any arbitration hereunder shall be held before a single
arbitrator mutually agreed to by the parties thereto, except that, if the
parties shall fail to agree to such an arbitrator within twenty (20) days
from the date on which the claimant's request for arbitration is delivered
to the other party to the arbitration, such arbitration shall be held
before an arbitrator appointed by the American Arbitration Association.
(iii) Discovery may be taken in the arbitration proceedings pursuant
to the provisions of California Code of Civil Procedure Section 1283.05,
which are incorporated herein by reference and made applicable to any
arbitration held pursuant to this Paragraph.
(iv) The award of the arbitrator shall be made within ninety (90)
days from the date on which the arbitrator is selected. The award of the
arbitrator shall be final, and the parties agree to waive their right to
any form of appeal, to the greatest extent allowed by law. The arbitrator
shall award costs and fees, including the fees of the arbitrator and
reasonable attorneys' fees, to the prevailing party. Judgment upon any
award of the arbitrator may be entered in any court having jurisdiction or
application may be made to such court for the judicial acceptance of the
award and for order of enforcement.
(b) Applicable Law and Venue. This Agreement and any disputes or
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claims arising hereunder shall be construed in accordance with, governed by and
enforced under the laws of the State of California without regard for any rules
of conflicts of law. The arbitrator appointed as described above located in Los
Angeles, California shall be the sole forum for any action for relief arising
out of or pursuant to, or to enforce or interpret, this Agreement. Each party
to this Agreement consents to the personal jurisdiction and arbitration in such
fora and courts and each party hereto covenants not to, and waives any right to,
seek a transfer of venue from such jurisdiction on any grounds.
(c) Interpretation. The provisions of this Agreement were
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negotiated by each of the parties hereto and this Agreement shall be deemed to
have been drafted by each party.
(d) Representations of the Company. The Company represents and
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warrants that this Agreement is validly binding on the Company and enforceable
in accordance with its terms and that the execution and performance hereof is
not in conflict with any agreement or understanding the Company has with any
third party; provided however, that notwithstanding the foregoing or any other
provision of this Agreement, to the extent the Company has any outstanding
obligations which may be inconsistent with its representations or obligations
contained in this Agreement, the Company shall not be in breach of this
Agreement if such inconsistencies are resolved not later than ninety (90) days
following the Effective Date.
(e) No Waivers. The failure of either party to enforce any provision
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of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement. Rights granted the parties hereto herein are
cumulative and the election of one shall not constitute a waiver of such party's
right to assert all other legal remedies available under the circumstances.
(f) Notices. Any notice to be given under the terms of this Agreement
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shall be in writing and may be delivered personally, by telecopy, telex or other
form of written electronic transmission, by overnight courier or by registered
or certified mail, postage prepaid, and shall be addressed as follows:
(a)
TO THE COMPANY:
Board of Directors
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Mr. Xxxxxx Xxxx
WITH A COPY TO:
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Legal Department
TO THE EXECUTIVE:
Xx. Xxxx Xxxxxxxxxxx
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Either party may hereafter notify the other in writing of any change in address.
Any notice hereunder shall be deemed duly given when received by the person to
whom it was sent.
(g) Severability. The provisions of this Agreement are severable and
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if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby unless as a result of
such severing the remaining provisions or enforceable parts do not substantially
reflect the intention of the parties in entering into this Agreement.
(h) Successors and Assigns. The rights and obligations of the parties
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under this Agreement shall inure to the benefit of and be binding upon their
successors, heirs and assigns, including the survivor upon any merger,
consolidation or combination of the Company with any other entity.
(i) Entire Agreement. This Agreement supersedes all prior agreements
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and understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination or attempted waiver
shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to he enforced.
(j) Survival. The provisions of Paragraphs 8, 9, 10, 11, 12, 13 and
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14 of this Agreement shall survive the Term, it being understood that the
foregoing shall not limit Executive's rights with respect to amounts due him and
unpaid at the expiration of the Term.
(k) Confidentiality and Publicity. This Agreement shall remain
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confidential and the terms shall not be divulged to any person (other than
Executive's professional advisors and family) except to the extent required by
law or legal process. Any press release or announcement of or relating to this
Agreement and the timing of any such announcement shall only be made with the
agreement of Executive and the Company.
(l) Attorneys. Each party may be represented by counsel of its choice
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even though such counsel may have represented the other party in matters related
to the business of the Company, and each party agrees to execute an appropriate
waiver to effectuate this clause.
(m) Non-Involvement of Tracinda. The parties acknowledge that neither
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Xxxx
Xxxxxxxxx nor Tracinda Corporation, individually or collectively, is a party to
this Agreement or any agreement provided for herein. Accordingly, the parties
hereby agree that in the event (i) there is any alleged breach or default by any
party under this Agreement or any agreement provided for herein, or (ii) any
party has any claim arising from or relating to any such agreement, no party,
nor any party claiming through such party shall commence any proceedings or
otherwise seek to impose any liability whatsoever against Xxxx Xxxxxxxxx or
Tracinda Corporation by reason of such alleged breach, default or claim.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
METRO-XXXXXXX-XXXXX INC.
BY: /s/ Xxxxxxx X. Xxxxx
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ITS: Senior Executive Vice President and Secretary
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/s/ Xxxx Xxxxxxxxxxx
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XXXX XXXXXXXXXXX
