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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into
as of the 1st day of January, 1997, by and between Equity Marketing, Inc., a
Delaware corporation (the "COMPANY"), and Xxxxxxx X. Xxxxxx ("EXECUTIVE").
1. ENGAGEMENT AND DUTIES.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages and employs Executive as an officer of the
Company, with the title and designation "Chairman and Co-Chief Executive
Officer." Executive hereby accepts such engagement and employment.
(b) During the term of this Agreement, the Executive, as Chairman and
Co-Chief Executive Officer of the Company, shall report only to the Board, and
his powers and authority shall be and remain superior to those of any other
officer or employee of the Company except Xxxxxx X. Xxxx, the Company's
President and Co-Chief Executive Officer. The Company shall use its best efforts
to have the Executive elected as a Director of the Company and, if elected, the
Executive agrees to serve as a Director of the Company without additional
compensation. The Executive and Xxxxxx X. Xxxx shall, subject to the direction
and control of the Board, have general and active supervision and control of the
business and affairs of the Company and active direction over the conduct of its
business and shall perform all duties and enjoy all powers commonly incident to
the positions of Chairman, President and Co-Chief Executive Officer and
otherwise as may be delegated to him from time to time by the Board; provided,
however, that in
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no event shall the scope of the Executive's duties or the extent of the
Executive's responsibilities be substantially different from the Executive's
current duties and responsibilities. In the event Xxxxxx X. Xxxx is no longer
willing or able to remain employed by the Company, the Executive and the Company
agree to renegotiate in good faith the terms of this Agreement only; the
Consulting Agreement shall not be subject to renegotiation. In renegotiating
this Agreement, due regard shall be given to the additional responsibilities
associated with acting as sole Chief Executive Officer (and there shall be no
other Chairman or Chief Executive Officer appointed), and Executive agrees, at a
minimum, to remain employed by the Company through the end of the Term of the
Employment Agreement or for an additional 24 months, whichever is greater.
(c) Executive agrees to devote his full-time business time, energy and
efforts to the business of the Company and will use his best efforts and
abilities faithfully and diligently to promote the Company's business interests.
(d) For so long as Executive is employed by the Company or is receiving
severance under Section 5(a) or Section 5(c) of this Agreement, Executive shall
not, directly or indirectly, as owner, partner, joint venturer, shareholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever engage in, become financially interested
in, be employed by, render any consultation or business advice with respect to,
or have any connection with, any business engaged in the development, design,
manufacture, sale, marketing, utilization or exploitation of any products or
services which are designed for the same purpose as, are similar to, or are
otherwise competitive with, current, proposed or anticipated products or
services of the Company Group, in any geographic area where, prior to or at the
time of the termination of his employment, the business of the Company Group was
being
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conducted or was proposed to be conducted in any manner whatsoever; provided,
however, that the Executive may own any securities of any corporation which is
engaged in such business and is publicly owned and traded but in an amount not
to exceed at any one time one percent (1%) of any class of stock or securities
of such corporation. Subject to the foregoing prohibition and provided such
services or investments do not violate any applicable law, regulation or order,
or interfere in any way with the faithful and diligent performance by Executive
of the services to the Company otherwise required or contemplated by this
Agreement or duly requested by the Board, the Company expressly acknowledges
that Executive may:
(i) make and manage personal business investments of
Executive's choice without consulting the Board; (ii) serve in any capacity with
any civic, educational, charitable or trade organization; and
(iii) serve as a member of the board of directors of other
companies or businesses with the approval of the Board, which approval will not
be unreasonably withheld.
2. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
"BOARD" shall mean the Board of Directors of the Company, not including
Executive.
"COMPANY GROUP" shall mean the Company, including all parent,
subsidiary and affiliated entities, and each Person with respect to which the
Company directly or indirectly has Control.
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"COMPENSATION COMMITTEE" shall mean the members of the Board who have
been appointed by the Board to determine compensation issues relating to the
Company.
"CONSULTING PERIOD" shall mean that period of time following the
Employment Term during which Executive serves as a Consultant to the Company and
as specifically defined in the Consulting Agreement, which is attached hereto as
Exhibit "A."
"CONTROL" shall mean, with respect to any Person, (i) the beneficial
ownership of any of the outstanding voting securities of such Person, or (ii)
the power, directly or indirectly, by proxy, voting trust or otherwise, to elect
any of the outstanding directors, trustees or other managing persons of such
Person.
"EMPLOYMENT COMMENCEMENT DATE" shall mean January 1, 1997.
"EMPLOYMENT TERM" shall mean January 1, 1997 through December 31, 1998
and shall include one additional 12-month period provided the Executive does not
notify the Company in writing of his intention to terminate the Agreement at the
end of the then current Employment Term no less than 180 days before the
expiration of the Term. Upon the termination or expiration of this Agreement and
any renewal thereof or termination by reason of disability in circumstances in
which Executive remains able to consult, the Executive shall be retained by the
Company as a consultant to the Company for a period of three (3) years pursuant
to the terms and conditions of the Consulting Agreement that is attached to this
Agreement as Exhibit "A"; provided, however, that if the employment is
terminated Other Than For Cause pursuant to Section 4(d) Executive may elect
within 30 days of such termination not to be engaged as a Consultant for the
Company and in such event, the provisions of the Consulting Agreement shall
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not be binding upon either Executive or the Company.
"FOR CAUSE" shall mean, in the context of a basis for termination of
Executive's employment with the Company, that:
(a) Executive materially breaches any obligation, duty or
agreement under this Agreement, which breach is not cured or corrected within 15
days of written notice thereof from the Company (except for breaches of Sections
1(d), 6 or 7 of this Agreement, which cannot be cured and for which the
Executive shall have no opportunity to cure);
(b) Executive is grossly negligent in the course of providing
services to the Company, or commits any act of personal dishonesty, fraud or
breach of fiduciary duty or trust against the Company;
(c) Executive is convicted of, or pleads guilty or nolo
contendere with respect to, theft, fraud or felony under federal or applicable
state law;
(d) Executive commits any act or acts of personal conduct
that, following due investigation and determination by the Board of probable
cause, gives rise to a likelihood of liability under federal or applicable state
law for discrimination or sexual or other forms of harassment or other similar
liabilities with respect to subordinate employees; or
(e) Executive commits continued and repeated material
violations of specific directions of the Board, which directions are consistent
with past practices of the Board with respect to governance matters, with this
Agreement and with Executive's position as a chief executive officer, or
continued and repeated substantive failure to perform duties assigned by or
pursuant to this Agreement; provided that no termination shall be deemed For
Cause under this subsection (e) unless Executive first receives written notice
from the Company advising him of
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the specific acts or omissions alleged to constitute violations of written
directions or a material failure to perform his duties, and such violations or
material failure continue after he shall have had a reasonable opportunity to
correct the acts or omissions so complained of.
"PERSON" shall mean an individual or a partnership, corporation, trust,
association, limited liability company, governmental authority or other entity.
3. COMPENSATION; EXECUTIVE BENEFIT PLANS.
(a) Base Salary. The Company shall pay to Executive a base salary (the
"BASE SALARY") at an annual rate of $300,000 during the Employment Term. The
Base Salary shall be payable in installments throughout the year in the same
manner and at the same times the Company pays base salaries to other executive
officers of the Company and may, in the sole discretion of the Compensation
Committee, be subject to being adjusted upward.
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(b) Bonus.
(i) Annual Financial Performance Bonus. Executive shall be
eligible to receive an annual financial incentive bonus no later than 90 days
after the end of each year that is included within the Employment Term. Such
bonus shall be based upon the budgeted, pre-bonus, pre-tax earnings of the
Company as approved by the Board at the beginning of the calendar year and as
set forth in the Company's business or operating plan for such year prepared in
the ordinary course of business, exclusive of extraordinary or nonrecurring
items (as defined and approved by the Board) (the "Earnings Target"). Such bonus
shall be 50% of the Base Salary for the applicable year if the Company's
Operating Earnings equal or exceed 140% of the Earnings Target. Such bonus shall
be 25% of the Base Salary for the applicable year if the Company's Operating
Earnings are equal to 100% of the Earnings Target. If the Operating Earnings are
between 100% and 140% of the Earnings Target, such bonus shall be prorated
between 25% and 50% of the Base Salary. If the Operating Earnings are between
80% and 100% of the Earnings Target, such bonus shall be prorated between 0% and
25% of the Base Salary. Executive shall not receive such a bonus if the
Operating Earnings are equal to or less than 80% of the Earnings Target. For
purposes of this Agreement, "Operating Earnings" shall be defined as income from
operations before taxes, bonuses and extraordinary or nonrecurring items (as
approved and defined by the Board) in accordance with the Company's historic and
customary practice.
(ii) Annual Strategic Performance Bonus. Subject to the sole
discretion of the Compensation Committee of the Board, the Company may pay
Executive an annual strategic performance bonus, after taking into account the
Company's long-term prospects and position and the accomplishment of strategic
goals as devised by mutual agreement of the Board and
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Executive. Such annual bonus shall not exceed one-half of the Base Salary.
(iii) Stock Options. It shall be within the sole discretion of
the Compensation Committee of the Board whether to grant to Executive an option
or options to purchase shares of Common Stock of the Company under any Company
stock option plans and, if granted, the number of shares subject to such
option(s) and the terms and conditions of such option(s).
(c) Reimbursement. Executive shall be entitled to reimbursement from
the Company for the reasonable costs and expenses that he incurs in connection
with the performance of his duties and obligations under this Agreement in a
manner consistent with the Company's practices and policies for reimbursements
for chief executive officers.
(d) Additional Reimbursement. During the Term of this Agreement, the
Company shall reimburse Executive on a basis comparable to the current practice
of the Company, for an automobile, leasing garage space, telephone and home
office equipment for his use in performing his employment duties and obligations
under this Agreement.
(e) Group Benefit Plans. Executive shall be eligible to participate in
the Company's group health, dental, life, disability, retirement (including
401(k)) and pension benefit plans, subject to the terms, conditions and
limitations contained in the applicable plan documents and insurance policies.
(f) Vacation. Executive shall be entitled to four weeks of paid
vacation each year during the term of this Agreement. Any vacation time shall be
scheduled to minimize interference with the exercise of Executive's duties under
this Agreement.
(g) Insurance. During the term of this Agreement, the Company shall pay
the Executive such additional amounts on an after-tax basis as are required for
the Executive to
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maintain and pay all premiums on (i) supplemental disability insurance paying at
least $16,667 per month, and (ii) term life insurance having a face value
payable on death of no less than $3 million, net of all loans or encumbrances,
on the life of the Executive with the Executive (or his estate) as beneficiary
with a minimum 10-year term, constant annual premiums.
(h) Withholding. The Company may deduct from any compensation payable
to Executive the minimum amounts sufficient to cover applicable federal, state
and/or local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and payments.
4. TERMINATION OF EMPLOYMENT.
Executive's employment pursuant to this Agreement shall commence on the
Employment Commencement Date and shall terminate on the earliest to occur of the
following:
(a) upon the death of Executive;
(b) upon delivery to Executive of written notice of termination by the
Company if Executive shall suffer a physical or mental disability which renders
Executive unable to perform his duties and obligations under this Agreement for
at least 120 days, whether or not consecutive, in any 12-month period;
(c) upon delivery to Executive of written notice of termination by the
Company For Cause; or
(d) upon delivery to Executive of written notice of termination by the
Company Other Than For Cause.
5. SEVERANCE COMPENSATION.
(a) If Executive's employment is terminated pursuant to Section 4(a)
(death) or
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Section 4(b) (disability), the Company shall pay to the Executive or his estate
his full Base Salary through the end of the month of Executive's death or
disability, and Executive or his estate shall be entitled to a prorated share of
any bonus or benefits as provided under Section 3 hereof for the calendar year
during which his death or disability occurred. Notwithstanding the foregoing, if
(i) Executive's employment is terminated due to a disability, and (ii) Executive
is denied all or some disability benefits under the applicable disability
policy, then Executive shall be entitled to continue to receive his Base Salary
from the Company in accordance with Section 3(a) of this Agreement through the
end of the Employment Term, payable at the same time and in the same manner as
if Executive's employment had not terminated. Any disability benefits that
Executive does receive shall be offset against any amounts payable to Executive
pursuant to this Section. Executive agrees to cooperate fully with the Company
and the disability insurance carrier with respect to any claim for disability
benefits.
(b) If Executive's employment is terminated pursuant to Section 4(c)
(by the Company For Cause), Executive's Base Salary and all benefits under
Section 3 shall cease as of the date of termination, and Executive shall not be
entitled to any bonus for the calendar year during which his employment shall be
terminated or at any time thereafter. In the event of termination of Executive's
employment pursuant to Section 4(c) (by the Company For Cause), and subject to
applicable law and regulations, the Company shall be entitled to offset against
any payments due Executive the loss and damage, if any, which shall have been
suffered by the Company as a result of the acts or omissions of Executive giving
rise to termination under Section 4(c). The foregoing shall not be construed to
limit any cause of action, claim or other rights which the Company may have
against Executive in connection with such acts or
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omissions.
(c) If Executive's employment is terminated pursuant to Section 4(d)
(by the Company Other Than For Cause) prior to the end of the Employment Term,
Executive shall be entitled to continue to receive his Base Salary in accordance
with Section 3(a) of this Agreement and double the Annual Financial Performance
Bonus in accordance with Section 3(b)(i) of this Agreement through the end of
the Employment Term, payable at the same time and in the same manner as if
Executive's employment had not terminated. Executive shall have no duty to seek
other employment upon such termination, and if Executive does so, any income
therefrom, including any amounts payable under the Consulting Agreement, shall
not be credited against amounts due hereunder.
(d) If Executive terminates his employment in breach of this Agreement
prior to the end of the Employment Term, Executive shall as of the date of
termination cease to be entitled to Base Salary, benefits or bonuses. In
addition, the Company shall be entitled to seek any other available remedies
pursuant to this Agreement or otherwise for such breach, and to offset against
any amounts due Executive any damages suffered as a result of such breach.
(e) Executive acknowledges that the Company has the right to terminate
Executive's employment Other Than For Cause and that such termination shall not
be a breach of this Agreement or any other express or implied agreement between
the Company and Executive. Accordingly, in the event of such termination,
Executive shall be entitled only to the compensation and benefits specifically
provided for in this Agreement and the Consulting Agreement, if applicable, in
the event of such termination, and shall not have any other rights to any
compensation or damages from the Company for breach of contract.
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(f) Executive acknowledges that in the event of termination of his
employment for any reason, he shall not be entitled to any severance or other
compensation from the Company except as specifically provided in this Section 5
or in the Consulting Agreement. Without limitation on the generality of the
foregoing, this Section supersedes any plan or policy of the Company which
provides for severance to its officers or employees, and Executive shall not be
entitled to any benefits under any such plan or policy.
6. COVENANT NOT TO SOLICIT.
(a) During the Employment Term (and, subject to the last sentence of
this Section 6(a)), any Consulting Period thereafter and through the first
anniversary of the end of the Employment Term or the Consulting Period, if any,
Executive will not directly or indirectly, either alone or by action in concert
with others: (i) induce any employee of any member of the Company Group to
engage in any activity in which Executive is prohibited from engaging by Section
1(d) of this Agreement or to terminate his or her employment with any member of
the Company Group; or (ii) employ or offer employment or induce any Person to
employ or offer employment to anyone who is or was within the 12 months prior to
the date of the proscribed action employed by any member of the Company Group;
or (iii) induce or attempt to induce any customer, supplier, licensee or other
business relationship of any member of the Company Group to discontinue or
reduce its business with any member of the Company Group, or in any way
interfere with the relationship between any such customer, supplier, licensee or
business relationship and any member of the Company Group; or (iv) solicit or
accept any business whatsoever from any of the customers with which the Company
did business during the Executive's engagement or employment by the Company. The
Company's current chief
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executive officer shall have the authority to waive the provisions of Section
6(a)(ii) insofar as it relates to the personal assistant who was assigned to
Executive. (All of the provisions of this Section 6(a) shall continue to apply
through any Consulting Period following the Employment Term and through the
first anniversary of the end of the Employment Term or the Consulting Period, as
applicable (the "Post-Employment Period"), except that during the
Post-Employment Period, Executive may work with or for, or solicit or accept
business from customers of the Company so long as such business activity by the
Executive is not competitive with that of the Company Group and such actions do
not otherwise interfere with Executive's obligations under this Agreement or the
Consulting Agreement.)
(b) Executive acknowledges that the Company Group conducts business on
a world-wide basis, that its sales and marketing prospects are for continued
expansion into world markets and that, therefore, the territorial and time
limitations set forth in Section 1(d) and in this Section 6 are reasonable and
properly required for the adequate protection of the business of the Company
Group. In the event any such territorial or time limitation is deemed to be
unreasonable by a court of competent jurisdiction, Executive agrees to the
reduction of the territorial or time limitation to the area or period which such
court deems reasonable.
(c) If any portion of the restrictions set forth in Section 1(d) and in
this Section 6 should, for any reason whatsoever, be declared invalid by a court
of competent jurisdiction, the validity or enforceability of the remainder of
such restrictions shall not thereby be adversely affected.
(d) The existence of any claim or cause of action by Executive against
the Company shall not constitute a defense to the enforcement by the Company of
the restrictive covenants set
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forth in Section 1(d) and in this Section 6, but such claim or cause of action
shall be litigated separately.
7. CONFIDENTIALITY.
Executive will not at any time (whether during or after his employment
with the Company) disclose or use for his own benefit or purposes or the benefit
or purposes of any other Person, other than any member of the Company Group, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, financial methods, plans, or
the business and affairs of the Company Group generally. Executive agrees that
upon termination for any reason of this Agreement, he will immediately return to
the Company all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company Group; provided, however, that Executive may retain such
materials as in the reasonable discretion of the Board are required to fulfill
his duties under the Consulting Agreement or as a director of the Company
(retention being permitted by Executive until such time as the Board requests
the return of such materials). Executive further agrees that he will not retain
or use at any time any trade name, trademark or other proprietary business
designation used or owned in connection with the business of any member of the
Company Group.
8. COPYRIGHT AND TRADEMARKS.
(a) All right, title and interest, of every kind whatsoever, in the
United States and throughout the world, in (i) any work, including the copyright
thereof (for the full terms and extensions thereof in every jurisdiction),
created by the Executive at any time during the term of
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this Agreement or of the term of that certain Employment Agreement dated as of
October 1, 1993 and all material embodiments of the work subject to such rights;
and (ii) all inventions, ideas, discoveries, designs and improvements,
patentable or not, made or conceived by the Executive at any time during the
term of this Agreement or of the term of that certain Employment Agreement dated
as of October 1, 1993, shall be and remain the sole property of the Company
without payment of any further consideration to the Executive or any other
person than as set forth herein, and each such work shall, for purposes of
United States copyright law, be deemed created by the Executive pursuant to his
duties under this Agreement and within the scope of his employment and shall be
deemed a work made for hire; and Executive agrees to assign, at the Company's
expense, and the Executive does hereby assign, all of his right, title and
interest in and to all such works, copyrights, materials, inventions, ideas,
discoveries, designs and improvements, patentable or not, and any copyrights,
letters patent, trademarks, trade secrets, and similar rights, and the
applications therefor, which may exist or be issued with respect thereto. For
the purposes of this Section 8, "WORKS" shall include all materials created
during the term of this Agreement, whether or not ever used by or submitted to
the Company, including, without limitation, any work which may be the subject
matter of a copyright under the United States copyright law. In addition to its
other rights, the Company may copyright any such work in its name in the United
States in accordance with the requirements of the United States copyright law
and the Universal Copyright Convention and any other convention or treaty to
which the United States is or may become a party.
(b) Whenever the Company shall so request, whether during or after the
term of this Agreement, the Executive shall execute, acknowledge and deliver all
applications, assignments
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or other instruments; make or cause to be made all rightful oaths; testify in
all legal proceedings; communicate all known facts which relate to such works,
copyrights, inventions, ideas, discoveries, designs and improvements; perform
all lawful acts and otherwise render all such assistance as the Company may deem
necessary to apply for, obtain, register, enforce and maintain any copyrights,
letters patent and trademark registrations of the United States or any foreign
jurisdiction or under the Universal Copyright Convention (or any other
convention or treaty to which the United States is or may become a party), or
otherwise to protect the Company's interests therein, including any which the
Company shall deem necessary in connection with any proceeding or litigation
involving the same. The Company shall reimburse the Executive for all reasonable
out-of-pocket costs incurred by the Executive in testifying at the Company's
request or in rendering any other assistance requested by the Company pursuant
to this Section 8. All registration and filing fees and similar expenses shall
be paid by the Company.
9. SPECIFIC PERFORMANCE.
Executive acknowledges and agrees that the Company's remedies at law
for a breach or threatened breach of any of the provisions of Sections 1(d), 6
or 7 would be inadequate and, in recognition of this fact, Executive agrees
that, in the event of such a breach or threatened breach, in addition to any
remedies at law, the Company shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
In addition, the Executive recognizes that the services to be rendered by him
under this Agreement are of a special, unique, unusual, extraordinary and
intellectual character involving skill of the highest order and giving them
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peculiar value, the loss of which cannot be adequately compensated in damages.
Consequently, in the event of a breach of this Agreement by the Executive, the
Company shall be entitled to injunctive relief or any other legal or equitable
remedies. The Executive agrees that the Company also may recover by appropriate
action the amount of the actual damage caused the Company by any failure,
refusal or neglect of the Executive to perform his agreements, representations
and warranties contained in this Agreement. The remedies provided in this
Agreement shall be deemed cumulative and the exercise of one shall not preclude
the exercise of any other remedy at law or in equity for the same event or any
other event.
10. RESOLUTION OF DISPUTES.
(a) Except as provided in subsection (c) below, any controversy or
claim between or among the parties, relating to Executive's employment with the
Company, including but not limited to those arising out of or relating to this
Agreement or any agreements or instruments relating hereto or delivered in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The arbitration
shall be conducted in Los Angeles, California, in accordance with the United
States Arbitration Act (Title 9 of the United States Code), notwithstanding any
choice of law provision in this Agreement, and under the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
("AAA"). The parties shall have the right to review and approve a panel of
prospective arbitrators supplied by AAA, but the arbitration shall be conducted
by a single arbitrator selected from the approved panel by AAA or by stipulation
of the parties. The arbitrator shall give effect to statutes of limitation in
determining any claim. Any controversy concerning whether an issue is arbitrable
shall be determined by the arbitrator.
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The arbitrator shall be entitled to order specific performance of the
obligations imposed by this Agreement. Judgment upon the arbitration award may
be entered in any court having jurisdiction.
(b) All decisions of the arbitrator shall be final, conclusive and
binding on all parties and shall not be subject to judicial review. All costs of
the arbitration shall be borne by the party which is not the Prevailing Party
(as defined in Section 11(h) of this Agreement). If required, each party shall
advance 50% of any costs of the arbitration required to be advanced, subject to
the right of the non-Prevailing Party to reimbursement.
(c) Subsection (a) above does not prohibit a party from seeking and
obtaining injunctive relief from a court of competent jurisdiction pending the
outcome of arbitration. A party bringing an action for injunctive relief shall
not be deemed to have waived its right to demand arbitration of all disputes.
11. MISCELLANEOUS.
(a) Notices. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
(i) If to the Company, to:
Equity Marketing, Inc.
000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Senior Vice President, Business Affairs
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(ii) If to Executive, to:
Xxxxxxx X. Xxxxxx
00000 Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx & Xxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxxx or Xxxxxxxx Xxxxxxx
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails (or on
the seventh day if sent to or from an address outside the United States). Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) Entire Agreement. This Agreement and the concurrently executed
Consulting Agreement that is attached hereto as Exhibit "A" (collectively, the
"Agreements") contain the sole and entire agreement and understanding of the
parties with respect to the entire subject matter of the Agreements, and any and
all prior discussions, negotiations, commitments and understandings, whether
oral, written or implied, related to the subject matter of the Agreements,
including but not limited to that certain Employment Agreement and that certain
Consulting Agreement dated as of October 1, 1993, are hereby extinguished and
superseded. No representations, oral or otherwise, express or implied, other
than those contained in the Agreements have been relied upon by any party to the
Agreements.
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(c) Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
(d) Governing Law. This Agreement has been made and entered into in the
State of California and shall be construed in accordance with the laws of the
State of California.
(e) Captions. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Business Day. If the last day permissible for delivery of any
notice under any provision of this Agreement, or for the performance of any
obligation under this Agreement, shall be other than a business day, such last
day for such notice or performance shall be extended to the next following
business day (provided, however, under no circumstances shall this provision be
construed to extend the date of termination of this Agreement).
(h) Attorneys' Fees. If any action, proceeding or arbitration is
brought to enforce or interpret any provision of this Agreement, the Prevailing
Party shall be entitled to recover as an element of its costs, and not its
damages, its reasonable attorneys' fees, costs and expenses. The "PREVAILING
PARTY" is the party who would have been entitled to recover its costs under the
California Code of Civil Procedure had the action been maintained in the
Superior Court of California regardless of whether there is final judgment. A
party not entitled to recover its costs
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may not recover attorneys' fees. No sum for attorneys' fees shall be counted in
calculating the amount of a judgment for purposes of determining whether a party
is entitled to recover its costs or attorneys' fees.
(i) Advice from Independent Counsel. The parties hereto understand that
this Agreement is legally binding and may affect such party's rights. Each party
represents to the other that it has received legal advice from counsel of its
choice regarding the meaning and legal significance of this Agreement.
(j) Interpretation. Should any provision of this Agreement require
interpretation, it is agreed that any court or arbitrator interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any Person by reason of the rule of construction
that a document is to be construed more strictly against the Person who itself
or through its agent prepared the same, it being agreed that all Parties have
participated in the preparation of this Agreement.
(k) Survival. The termination of the Executive's employment hereunder
shall not affect the enforceability of Sections 1(d), 6, 7 and 8.
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(l) Waiver of Jury Trial. IF NOTWITHSTANDING THE AGREEMENT THAT ALL
DISPUTES BE SUBMITTED TO BINDING ARBITRATION, A DISPUTE IS SUBMITTED TO A COURT,
EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND
ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A TRIAL BY THE
COURT.
Company:
EQUITY MARKETING, INC.
By: /s/ Xxxxxx X. Xxxx
______________________________
Its: President, Co-CEO
______________________________
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
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