EXHIBIT 10.16
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") between Lions Gate
Entertainment Corp. and its subsidiaries and parent companies
(collectively "Lions Gate") and Xxxxxx Keep ("Employee") is
entered into and is effective as of October 1, 2000 with
respect to the following:
1. EMPLOYMENT. Lions Gate hereby agrees to employ Employee as
a Senior Vice President. Employee hereby agrees to accept
such employment under the terms and conditions set forth
below. During the term, you shall be based at Lions Gate's
offices in Vancouver, British Columbia, but shall agree to
travel as reasonably required by your employment duties and
responsibilities hereunder.
2, TITLE: Senior Vice President reporting to the CEO of Lions
Gate, provided that it is understood and agreed that
Employee's title and reporting responsibility may be changed
by Lions Gate during the Term.
3. TERM: Commencing as of the effective date and ending
September 30, 2001. The foregoing notwithstanding, Lions Gate
shall have the right ("Option Right"), but not the obligation,
to extend the term of this Agreement for an additional one (1)
year period up to and including September 30, 2002. The Option
Right shall be deemed exercised if Lions Gate does not give
Employee written notice that Lions Gate is not exercising the
Option Right on or before July 31, 2001.
4. BASE SALARY: (a) Commencing October 1, 2000 until
September 30, 2001, Employee's s base salary shall be three
hundred twenty five thousand Canadian dollars ($325,000.00),
subject to normal statutory deductions; (b) in the event that
Lions Gate elects to continue your employment for an
additional one year period as set forth above, commencing
October 1, 2001 until September 30, 2002, Employee's s base
salary shall be three hundred fifty thousand Canadian dollars
($350,000.00), subject to normal statutory deductions.
5. BONUS: (a.) You shall receive a bonus payment in the
amount of US$25,000 upon the execution hereof, subject to
normal statutory deductions.
(b) You shall receive a bonus payment in the amount of
US$25,000 the first business day following January 1, 2001,
subject to normal statutory deductions.
(c) In addition, Employee shall be entitled to participate in
management bonus plans, schemes, or arrangements which are
approved by Lions Gate's board of directors or senior
management.
6. BENEFITS: (a) Employee shall be immediately eligible for
all Employee Benefits which shall include four weeks vacation,
accruable at the rate of four weeks per year per Lions Gate's
standard benefit program, life insurance with minimum coverage
of C$500,000.00, a medical plan, dental plan, and long term
disability insurance per Lions Gate standard benefit program.
(b) Employee shall be entitled to a cellular phone, paid
parking and residential fax machines for business use.
7. SERVICES: Except as set forth in this paragraph below,
Employee's services shall be exclusive to Lions Gate during
the Term on a full time basis. Employee shall render such
services as are customarily rendered by persons in Employee's
capacity in the motion picture industry and as may be
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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 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 or allow
Employee to render any services, or to include all or any of
your work or services in any motion picture or other property
or production.
The forgoing notwithstanding, Employee shall be permitted to
undertake the following activities and engagements provided
that such activities and engagements (i) do not interfere with
Employee's services hereunder, (ii) do not result in a breach
of Employee's fiduciary obligations to Lions Gate, and (iii)
do not give rise to competition or conflicts of interest with
Lions Gate's business and/or Lions Gate's business objectives:
a. Accept directorships for other third party companies
("Companies")) provided that Lions Gate's written
approval for directorships in Companies in the
entertainment, film production, and/or film distribution
business shall be required.
b. Engage in other administrative, management and
business pursuits.
8. CONFIDENTIAL INFORMATION; RESULTS AND PROCEEDS: Employee
hereby expressly agrees that while employed by Lions Gate
Employee will not disclose any confidential matters of Lions
Gate prior to, during or after your employment including the
specifics of this contract. 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 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
your services that are related to your employment and
responsibilities hereunder.
9. RENEWAL: In the event that Lions Gate exercises the
Option Right, Employee agrees that for the period commencing
ninety (90) days prior to the conclusion of the Term, Employee
will, for the following thirty (30) days, enter into exclusive
negotiations regarding the extension of your employment with
Lions Gate. If at the end of the Term, Employee and Lions
Gate are unable to reach an agreement regarding the extension
of Employee's employment with Lions Gate, Employee's
employment with Lions Gate shall continue on a month to month
basis at the same terms contained in this agreement unless
terminated by Lions Gate or Employee upon 30 days prior
written notice.
10. STOCK OPTIONS: In addition to Employee's current grant of
options to acquire 100,000 shares of Lions Gate at C$5.25 per
share (expiring November 12, 2002), Lions Gate has granted
Employee the right to acquire (the "Option") 75,000 shares of
Lions Gate stock at $2.55 per share (expiring August 15,
2005), said right to vest in accordance with the Memorandum
from Xxx Xxxxxxxxxx to Xxxxx Xxxxxxx, dated September 20,
2000, which Memorandum is attached hereto and incorporated by
this reference.
All stock options shall be subject to the provisions of the
Lions Gate's Employees' and Directors' Equity Incentive plan
In the event that Lions Gate does not exercise the Option
Right, the stock options set forth in paragraph 10 (c) shall
vest on September 30, 2001.
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In the event of a "Change of Control", all stock options shall
vest
Change of Control shall mean:
(a) After the conclusion of the pending merger between
Lions Gate and Trimark Holdings, Inc., any person
acquires or becomes the beneficial owner of, or a
combination of persons acting in concert acquires or
becomes the beneficial owner of, directly or indirectly,
more than 35% of the voting securities of the Lions
Gate, whether through the acquisition of previously
issued and outstanding voting securities that have
not been previously issued, or any combination thereof,
or any other transaction having a similar effect;
(b) Any resolution is passed or any action or proceeding is
taken with respect to the liquidation, dissolution or
winding-up of the Lions Gate;
(c) 35% or more of the issued and outstanding voting
securities of the Lions Gate become subject to a voting
trust not controlled by the Lions Gate's current senior
management;
(d) Lions Gate sells, leases or otherwise disposes of all or
substantially all of its assets and undertaking, whether
pursuant to one or more transactions;
(e) Lions Gate or any subsidiary or affiliate enters into any
transaction or arrangement which would have the same effect
as the transactions referred to in paragraphs (c) and (d);
(f) If Lions Gate amalgamates with a third party
entity and following such amalgamation Lions Gates
shareholders represent less than 50% of the voting
securities then outstanding
11. NOTICES: All notices to be given pursuant to this
agreement shall be effected either by personal delivery in
writing as follows:
LIONS GATE:
Lions Gate Entertainment Corp
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxxx and General Counsel
EMPLOYEE:
Xxxxxx Keep
x/x Xxxxx Xxxx Xxxxxxxxxxxxx Xxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
XX Xxx 00000
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
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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 shall be governed by the internal
laws of the Province of British Columbia. 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 following events:
a. The mutual written agreement between Lions Gate and
Employee; or
b. The death of Employee; 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 one hundred and twenty (120)
days or more, 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 a felony related to 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 material adverse effect on the business or
reputation of Lions Gate.
e. Lions Gate may terminate this Agreement without cause
upon written notice, whereupon you shall be entitled to
receive the greater of the following: (i) the balance of
your salary through the balance of the term plus the cash
value of the insurance benefits that you are entitled to
receive from the date of termination through the
expiration of the Term; and (ii) the amount that you are
reasonably entitled to receive under applicable law.
Lions Gate shall not be entitled to assert your failure
to mitigate as a defense to the payments that you are
entitled receive hereunder.
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In the event that this Agreement is terminated pursuant to
this Paragraph, neither Lions Gate nor Employee shall have any
remaining duties or obligations hereunder, except that Lions
Gate shall pay to Employee or his representatives, only such
compensation as is earned under Paragraph 4 or 16 (e) as of
the date of termination, as well as any accrued vacation
benefits which remain unused through the date of termination
except with respect to the following:
In the event of a termination under paragraph 16 (b) and (c)
hereunder, all stock options, whether vested or unvested,
shall be exercisable for a period of not less than 365 days
following the date of termination. In the event of a
termination under paragraph 16 (a) or (d) or (e) hereunder,
all vested stock options shall be exercisable for a period of
not less than 180 eighty days following the date of
termination.
17. TRADE 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
other 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 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 Gate. Employee further agrees that he
will execute the Lions Gate confidential information and
intellectual property assignment agreement not later than the
date on which he executes this Agreement.
18. OTHER OFFICERSHIPS: Upon termination hereof, as and when
requested by Lions Gate, Employee shall resign all
officerships and Directorships of any and all Lions Gate
related entities without any additional compensation of any
kind whatsoever.
19. ARBITRATION. Employee and Lions Gate agree that any and
all claims or controversies whatsoever brought by Employee,
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
pursuant to the rules of the Arbitration Act (British
Columbia) or other mutually agreeable authority. The
obligation to arbitrate such claims will survive the
termination of this Agreement. The arbitrator shall have the
authority to grant all monetary or equitable relief
(including, without limitation, injunctive relief and
ancillary costs and fees). Judgment on any award rendered by
the arbitrator may be entered and enforced by any court having
jurisdiction thereof.
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If the foregoing represents your understanding and agreement
and Employees agree to be legally bound by the foregoing terms
and conditions, kindly so indicate in the place provided for
your signature below.
Lions Gate Entertainment
Corp.
/s/ XXX XXXXXXXXXX
--------------------------
Xxx Feltheiner
Chief Executive Officer
Agreed to and Accepted:
/s/ XXXXXX KEEP
-------------------------
Xxxxxx Keep
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