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CONSULTING AGREEMENT
THIS AGREEMENT ("Agreement") is made by and between HOLLYWOOD XXXXXXXX.XXX,
INC., a Delaware Corporation ("Company") and XXXX XXXXXXX, an individual
("Consultant"), as of October 1, 2000 (the "Effective Date"), who agree as
follows:
1. Recitals. This Agreement is made with reference to the following material
facts:
1.1 Company desires to engage Consultant and Consultant desires to be
engaged by the Company pursuant to the written agreement set forth herein.
2. Engagement.
2.1 Company hereby engages Consultant in the capacity of Chairman of the
Board of Directors as of the Effective Date (the "Engagement"). The Company's
Board of Directors (the "Board") may also provide such additional designations
of title to Consultant as the Board, in its discretion, may deem appropriate.
Consultant agrees to perform the executive duties and functions customarily
associated with the position of Chairman and as specified from time to time by
the Board.
2.2 Except for legal holidays, vacations and absences due to temporary
illness or as otherwise permitted pursuant to company policy, Consultant shall
devote his time, attention and energies to the business of the Company on a
full-time basis. Consultant represents and warrants to the Company that he is
under no restriction, limitation or other prohibition to perform his duties as
described herein.
3. Term. The term of this Agreement (the "Term") shall commence on the
Effective Date hereof and shall continue for a period of three (3) years
thereafter unless terminated earlier as provided hereinafter, with a two (2)
year renewable option at the election of the Consultant.
4. Compensation.
4.1. Base Compensation. Consultant's initial compensation shall be $185,000
per annum effective October 1, 2000. This compensation level will be reviewed at
least annually by the Board, but will not be reduced without Consultant's prior
written consent.
4.2. Bonus. Any and all bonus payments shall be in the discretion of the
Board. If the Company establishes a written bonus plan applicable to Consultant,
he shall be entitled to receive bonus payments in accordance therewith. Such
plan, if adopted, shall be affixed to each original of this Agreement as Exhibit
A.
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4.3 Incentive Stock Options. Any and all grants of Incentive Stock Options
or other options shall be in the discretion of the Board. If the Board
establishes a written option plan applicable to Consultant, he shall be entitled
to receive Incentive Stock Options in accordance therewith. Such plan, if
adopted, shall be affixed to each original of this Agreement as Exhibit B.
4.4 Retirement Benefits. Company shall provide Consultant with the
opportunity to participate in all of Company's qualified defined benefit and
defined contribution retirement plans, subject to the eligibility and
participation requirements of such plans.
4.5 Benefits.
(a) The Company shall, at its expense, provide Consultant and his
immediate family with comprehensive medical insurance coverage at least
comparable to the coverage provided to the Company's executive officers. The
Company shall also maintain Directors and Officers (D&O) insurance which shall
cover Consultant with reasonable coverages and policy limits. The Company shall
further provide, at its expense, "key-man" Accidental Death Insurance with a
face value of Two Million Dollars ($2,000,000) to be divided equally between the
Company, on the one hand, and Consultant's designated beneficiary or estate, on
the other hand. Consultant represents and warrants that, for purposes of
securing such "key-man insurance", he is not aware of any medical condition that
would cause the insurance premiums to be materially higher than for a normal
male of his age.
(b) During the term of this Agreement, and as otherwise provided
within the provisions of each of the respective plans, Company shall provide
Consultant all benefits to which executives of Company are generally entitled to
receive, as commensurate with Consultant's position. Such benefits shall
include, but not be limited to, group term life insurance, travel insurance,
dental insurance, vision insurance, and short-term and long-term disability
coverage. Consultant shall likewise participate in any additional benefits as
may be established during the term of this Agreement, by standard written policy
of Company.
4.6 Paid Time Off. Consultant shall receive six (6) weeks paid time off
each year which shall be taken in accordance with the Company's paid time off
policy. Consultant shall also receive all the paid holidays observed by the
Company, and any other paid absence days established by Company policy.
4.7 Perquisites. Company shall provide Consultant, at Company's cost, all
perquisites to which executives of Company are entitled to receive in accordance
with Company policy. Such perquisites, if established, shall include, but not be
limited to, coverage of cost for auto allowance, cellular telephone, and pager,
provided that pursuant to this Agreement it is agreed that Consultant shall
receive a monthly auto allowance of not less than $1,350.00 to defray the cost
of business automobile expense.
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4.8 Expenses. Company shall pay, or reimburse Consultant, for all ordinary
and necessary expenses, in reasonable amounts, which Consultant incurs in
performing his duties under this Agreement, including, but not limited to,
travel, entertainment, professional dues and subscriptions, health club
membership, and all dues, fees and expenses associated with membership in
various professional business and civic associations and societies of which
Consultant's participation is in the best interests of Company, subject,
however, to any limitations, rules and procedures adopted by Company and which
are applicable to executives generally, and subject to Board of Director
approval.
4.9 Indemnification. The Company shall indemnify Consultant, to the
maximum extent then permitted by applicable law, from and against any and all
claims, actions, suits, losses, fines, judgments, interest, costs and expenses
(including without limitation actual attorney's fees and disbursements) arising
out of or relating to Consultant's actions or omissions as a director of the
Company and/or any affiliate of the Company and/or as a trustee or fiduciary of
any plan, trust or other program established by the Company. This Section 4.9
shall survive termination or expiration of this Agreement.
5. Termination and Compensation Upon Termination.
5.1 Notice and Date of Termination
(a) Any termination of Consultant's Engagement by Company or
Consultant shall be communicated by a written notice to the other party (the
"Notice of Termination"). The Notice of Termination shall indicate the specific
termination provision in this Agreement that is applicable and is being relied
upon, and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Engagement under the provision so
indicated.
(b) "Date of Termination" shall mean:
(i) In the case of termination under sections 5.2 (retirement)
or 5.3 (death), the date of retirement or death, as may be applicable.
(ii) In the case of termination initiated by the Consultant under
section 5.5 (voluntary resignation) or 5.8 (termination for Good
Reason), the date specified in the applicable Notice of Termination,
or such earlier date, if any, determined by the Company.
(iii) In all other situations, the date specified in the
applicable Notice of Termination.
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5.2. Termination Due to Retirement.
(a) In the event Consultant's engagement is terminated while this
Agreement is in force by reason of Normal Retirement (as defined under the then
established rules of Company's tax-qualified retirement plan), Consultant's
benefits shall be determined in accordance with Company's retirement, survivor's
benefits, insurance and other applicable programs then in effect.
(b) Upon the effective date of such termination, Company shall pay to
Consultant his full Base Compensation, at the rate then in effect as provided in
section 4.1 herein, through the effective date of termination, and Consultant
shall receive all other benefits to which he has a vested right at that time,
including, but not limited to, the retirement benefits as described in section
4.4 herein. Company's obligation to pay and provide to Consultant the Base
Compensation as provided for in section 4.1 shall immediately thereafter expire
and, with the exception of the any covenants which by their terms survive
termination, Company and Consultant thereafter shall have no further obligations
under this Agreement.
5.3 Termination Due to Death. In the event of Consultant's death during the
term of this Agreement, or during any period of Disability (as defined herein)
during which Consultant is receiving compensation pursuant to section 5.4
herein, Company shall pay to Consultant's beneficiary as so designated by
Consultant during his lifetime, or to his estate, as appropriate, all benefits
to which Consultant had a vested right pursuant to this Agreement, including,
but not limited to, the retirement benefits described in section 4.4 above.
Company's obligation to pay and provide to Consultant Base Compensation as
provided for in section 4.1 shall immediately thereafter expire and, with the
exception of the any covenants which by their terms survive termination, Company
and Consultant thereafter shall have no further obligations under this
Agreement.
5.4 Termination Due to Disability.
(a) In the event Consultant becomes Disabled during the term of this
Agreement and is, therefore, unable to perform his duties under this Agreement
for a period of more than 60 calendar days in the aggregate, during any period
of 120 consecutive days, or in the event of the Board's reasonable, good faith
determination that Consultant's Disability is likely to last for more than a
period of 60 consecutive calendar days, Company shall have the right to
terminate Consultant's active Engagement upon the delivery to Consultant of a
Notice of Termination stating Company's intent to terminate for Disability at
least 30 calendar days prior to the effective date of such termination.
(b) Upon the Date of Termination (as defined by section 5.1), Company
shall pay to Consultant his full Base Compensation, at the rate then in effect,
as
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provided in section 4.1 herein, through the effective date of termination.
Company's obligation to pay and provide to Consultant Base Compensation shall
immediately thereafter expire, however, Consultant shall receive all rights and
benefits in which he is vested, including, but not limited to, short and
long-term disability benefits, retirement benefits and options as described
herein.
(c) The term "Disability" shall mean, for all purposes of this
Agreement, the incapacity of Consultant due to injury, illness, disease, or
bodily or mental infirmity, to engage in the performance of substantially all of
the usual duties of engagement with Company as contemplated by section 2 herein,
such Disability to be determined by the Board of Directors of Company upon
receipt of and reliance on competent medical advice from one or more
individuals, selected by the Board, who are qualified to give such professional
medical advice.
5.5 Voluntary Termination by Consultant.
(a) This section is applicable only to the voluntary resignation by
Consultant, as opposed to resignation arising in the context of "Termination for
Good Reason," which is governed by section 5.8, below.
(b) Consultant may terminate this Agreement at any time by giving the
Board of Directors of Company a Notice of Termination. The termination shall
automatically become effective upon the expiration of the period of notice
specified, or at anytime sooner at the discretion of Company. During such notice
period Company shall make no changes adverse to Consultant with respect to his
compensation, benefits and perquisites in effect as of the time such notice was
given, and upon such termination, Company shall pay to Consultant all
compensation due through the date of termination. Thereafter, Consultant shall
retain all benefits which vested prior to termination in accordance with the
rules and procedures then in effect with respect to vesting, including, without
limitation all vested retirement benefits, insurance, options, warrants and
deferred compensation benefits. Otherwise, with the exception of the any
covenants which by their terms survive termination, Consultant and Company shall
thereafter have no further obligations under this Agreement.
5.6 Involuntary Termination by Company.
(a) Company may terminate Consultant's Engagement at any time for any
reason other than death, Disability, Retirement, or for Cause (as defined in
section 5.7), by giving Consultant a Notice of Termination.
(b) Upon the Date of Termination, Company shall pay to Consultant his
Base Compensation through the effective date of termination, plus all other
benefits to which Consultant has a vested right at the time.
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(c) In the event of termination pursuant to this section 5.6,
Consultant shall be entitled to the "Severance Payment" (as defined in section
6.5) and "Additional Benefits" provided for in section 6.6.
(d) With the exception of the payments and benefits described in this
section 5.6, and any covenants which by their terms survive termination, Company
and Consultant thereafter shall have no further obligations under this
Agreement.
5.7 Termination for Cause.
(a) The Company may, at any time, discharge Consultant "for Cause",
whereupon his engagement shall terminate in accordance with the Company's Notice
of Termination. As used in this Agreement, the term "Cause" shall mean, (i) the
conviction of any crime involving dishonesty or resulting in imprisonment
without the option of a fine, (ii) the continuing material non-observance or the
material breach by Consultant of any of the material provisions of this
Agreement after due written notice to Consultant from the Board specifying with
particularity the nature of such non-observance or breach, or (iii) the
continuing neglect, failure or refusal of Consultant to carry out the duties
properly assigned to him after due written notice to Consultant from the Board
specifying with particularity the nature of such neglect, failure or refusal.
(b) In the event of termination for Cause, Company shall pay
Consultant his full Base Compensation and accrued vacation time though the Date
of Termination, plus all other benefits to which Consultant has a vested right
at the time. With the exception of any covenants which by their terms survive
termination, Company and Consultant shall thereafter have no further obligations
under this Agreement.
5.8 Termination for Good Reason.
(a) Consultant may terminate this Agreement at any time for "Good
Reason," by giving the Board a Notice of Termination stating such intent to
terminate. "Good Reason" shall mean, without Consultant's prior written consent,
the occurrence of any one or more of the following:
(i) Failure by the Company to honor any of its material
obligations under this Agreement; or
(ii) Any purported termination by the Company of Consultant's
Engagement that is not effected pursuant to a Notice of Termination as
required by 5.1 and, for purposes of this Agreement, no such purported
termination shall be effective; or
(iii) Failure to elect or reelect or otherwise to maintain
Consultant to or in the position in the Company that Consultant held
as of the date hereof; or
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(iv) Consultant's overall compensation or perquisites are reduced
or adversely modified in any material respect, or Consultant's
authority or duties are materially changed, in either case without the
prior and voluntary written consent of Consultant, which change is not
fully remedied within ten (10) calendar days after receipt by the
Company of written notice from Consultant identifying such change(s).
For purposes of this Agreement, Consultant's authority or duties shall
be conclusively considered to have been "materially changed" if,
without Consultant's express and voluntary written consent, there is
any substantial diminution or adverse modification in Consultant's
title, status, overall position, responsibilities, reporting
relationship, general working environment (including without
limitation secretarial and staff support, offices, and frequency and
mode of travel); or
(v) A change in circumstances significantly affecting
Consultant's position, including without limitation a change in the
scope of the business or other activities for which he was responsible
as of the Effective Date of this Agreement, and, as a result thereof,
Consultant has been rendered substantially unable to carry out, has
been substantially hindered in the performance of, or has suffered a
substantial reduction in any of the authorities, powers, functions,
responsibilities or duties attached to the position held by Consultant
as of the date hereof, which situation is not fully remedied within
ten (10) calendar days after written notice to the Company from
Consultant of such determination, or
(vi) Company's requiring Consultant to be based more than 100
miles from the location of his principal office at that time.
(c) In the event of termination pursuant to this section 5.8,
Consultant shall be entitled to the "Severance Payment" (as defined in section
6.5) and "Additional Benefits" provided for in section 6.6.
(d) With the exception of the payments and benefits described in this
section 5.8, and any covenants which by their terms survive termination, Company
and Consultant thereafter shall have no further obligations under this
Agreement.
6. Change of Control
6.1 Survival. The provisions of this Section 6 shall (i) survive this
Agreement and shall continue one (1) day past termination of Consultant's
engagement, and (ii) only become effective upon a "Change in Control," as
defined below. No termination or expiration of this Agreement shall limit, alter
or otherwise affect Consultant's continuing rights hereunder with respect to the
benefits and rights afforded to him as provided herein.
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6.2 Background.
(a) The Company believes that because of its position in the industry,
financial resources and historical operating results there is a possibility that
the Company may become the subject of a Change in Control (as defined below),
either now or at some time in the future.
(b) The Company believes that it is in the best interest of the
Company and its shareholders to xxxxxx Consultant's objectivity in making
decisions with respect to any pending or threatened Change in Control of the
Company and to assure that the Company will have the continued dedication and
availability of Consultant, notwithstanding the possibility, threat or
occurrence of a Change in Control. The Company believes that these goals can
best be accomplished by alleviating certain of the risks and uncertainties with
regard to Consultant's financial and professional security that would be created
by a pending or threatened Change in Control and that inevitably would distract
Consultant and could impair his ability to objectively perform his duties for
and on behalf of the Company.
(c) Accordingly, the Company believes that it is appropriate and in
the best interest of the Company and its shareholders to provide to Consultant
compensation arrangements upon a Change in Control that lessen Consultant's
financial risks and uncertainties and that are reasonably competitive with those
of other corporations. With these and other considerations in mind, the Board
has authorized the Company to enter into these arrangements with Consultant to
provide the protections set forth herein following a Change in Control.
6.3 Change in Control. As used in this Agreement, the phrase "Change in
Control" shall mean:
(a) Except as provided by Paragraph (c) hereof, the acquisition by any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act"), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of forty percent (40%) or more of the combined voting power of the then
outstanding securities entitled to vote generally in the election of directors
of the Company; or
(b) Individuals who, as of the Effective Date hereof, constitute the
Board of Directors of the Company (as of the Effective Date hereof the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board of Directors of the Company, provided that any person becoming a director
subsequent to the Effective Date hereof whose election, or nomination for
election by the Company's shareholders, is or was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company, as such terms are used in Rule 14a-11
of
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Regulation 14A promulgated under the Exchange Act) shall be, for purposes of
this Agreement, considered as though such person were a member of the Incumbent
Board; or
(c) Approval by the stockholders of the Company of a reorganization,
merger or consolidation of the Company with any other person, entity or
corporation, other than:
(i) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of another entity) more than sixty
percent (60%) of the combined voting power of the securities entitled
to vote generally in the election of directors of the Company or such
other entity outstanding immediately after such merger or
consolidation, or
(ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person, entity or group (other than any benefit plan of any of the
Company) acquires beneficial ownership of forty percent (40%) or more
of the combined voting power of the securities entitled to vote
generally in the election of directors of the Company outstanding
immediately after such merger or consolidation; or
(d) Approval by the stockholders of the Company of a plan of complete
liquidation of the Company or an agreement for the sale or other disposition by
the Company of all or substantially all of such Company's assets.
6.4 Qualifying Termination. If Consultant's Engagement is terminated
within 6 months following a Change of Control for any reason other than
retirement, death, disability or for Cause, such termination shall constitute a
"Qualifying Termination." In the event of a Qualifying Termination, the Company
shall be obligated to make the "Severance Payment" to Consultant provided for in
section 6.5 and provide the "Additional Benefits" described in section 6.6
6.5 Severance Payment.
(a) For purposes of this Agreement, the "Severance Payment" shall
equal one hundred fifty percent (150%) of Consultant's "Compensation" (as
defined below). Consultant shall be entitled to receive the Severance Payment in
a cash lump sum within five (5) calendar days after the later of Consultant's
Date of Termination or the date of the Change in Control.
(b) For purposes of this Agreement, Consultant's "Compensation" shall
equal the sum of (1) Consultant's highest annual compensation rate with the
Company within the three-year period ending on Consultant's Date of Termination,
plus
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(2) the "Bonus Increment." The Bonus Increment shall equal the annualized
average of all bonuses and incentive compensation payments other than stock
options paid or payable to Consultant during the three-year period immediately
before Consultant's Date of Termination under all of the Company's bonus and
incentive compensation plans or arrangements, if any.
(c) In lieu of a cash lump sum, Consultant may, in his sole
discretion, elect to receive the Severance Payment in equal annual installments
over three (3) years (or such lesser number of years as Consultant may elect).
Such installments shall be paid to Consultant on each anniversary of
Consultant's Date of Termination, beginning with the first such anniversary and
continuing on each such anniversary thereafter until fully paid. Such election
to receive the Severance Payment in installments may be made and/or revoked by
Consultant at any time prior to the termination of his engagement by providing
written notice to the Board of such election. Any such election by Consultant to
receive the Severance Payment in installments that has been made and not revoked
prior to Consultant's termination shall, effective the date of such termination,
be irrevocable and binding on all parties hereto.
(d) In the event that at the time of Consultant's Qualifying
Termination there is not in effect an election by Consultant to receive the
Severance Payment in installments, such Severance Payment shall be paid to
Consultant in a single cash lump sum. In the event that Consultant has made an
appropriate election to receive the Severance Payment in annual installments,
and Consultant becomes entitled to such Severance Payment as provided in this
Agreement, then such Severance Payment, to the extent at any time unpaid and/or
deferred, shall be deemed to bear interest at the base or prime rate in effect
from time to time as publicly announced by Bank of America NT&SA (the "Prime
Rate"). Accrued interest shall be due and payable together with each annual
installment of the Severance Payment.
6.6 Additional Benefits.
(a) In the event of a Qualifying Termination, the Company agrees and
covenants that Consultant and his dependents shall be entitled to continue to
participate in all benefit programs which had been made available to Consultant
before the Qualifying Termination including without limitation, any and all
medical insurance, dental insurance, vision insurance, life insurance,
disability insurance, retirement and/or pension plans and other benefit programs
of the Company and/or its affiliates. These programs shall be continued at no
cost to Consultant, except to the extent of Consultant's income tax payable
thereon because tax rules require the inclusion of the value of such benefits in
Consultant's income. The programs shall be continued in the same way and at the
same level as immediately prior to the Qualifying Termination, and shall
continue for the benefit of Consultant for twelve (12) months (the "Benefit
Period"). In the event that participation in any such plan or program is barred
or unavailable for any reason, the Company shall arrange to provide Consultant,
at the expense of the Company, with benefits substantially comparable to those
which he was entitled to receive under such
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plans and programs as were in effect immediately prior to the time of the
Qualifying Termination. The continuation of benefits provided for herein shall
extend to the dependents of Consultant as permitted by the applicable plans,
provided that Consultant shall continue to be responsible for the cost of any
and all dependant coverage.
(b) In the event of a Qualifying Termination, Consultant or his
successors may, at the expense of the Company, utilize the reasonable services
of accountants and attorneys of his or their choice for assistance in
interpreting and enforcing this Agreement as well as for preparation of his tax
returns for the year of the Qualifying Termination and for each other year all
or any portion of which is included within the Benefit Period.
(c) In the event of a Qualifying Termination, Consultant shall be
entitled, at the expense of the Company, to "Automobile Benefits" during the
entire term of the Benefit Period. For purposes hereof, "Automobile Benefits"
shall include a $1,350 per month allowance to defray automobile expenses and
costs.
(d) In the event any perquisite or benefit enjoyed by Consultant or
his dependents is reduced or eliminated within six (6) months before a
Qualifying Termination, then for all purposes of this Agreement, the perquisite
or benefit as was in effect prior to such reduction or elimination shall be
deemed to have been in place immediately prior to the Date of Termination.
(e) In the event of a Qualifying Termination, any and all of
Consultant's unvested stock options and equity-based incentives shall
immediately vest and be fully exerciseable.
7. Other Covenants of the Parties.
7.1 Indemnification for Golden Parachute Excise Tax.
(a) In the event that it shall be determined that any payment, benefit
or distribution provided, or to be provided, by the Company (or by any person
whose actions result in a Change in Control or any person affiliated with the
Company or such person) to or for the benefit of Consultant under the terms of
this Agreement, or under any other agreement, plan or arrangement with the
Company (or with any person whose actions result in a Change in Control or any
person affiliated with the Company or such person), would be subject to any
excise tax imposed pursuant to Section 4999 of the Internal Revenue Code of
1976, as amended, or any comparable provision of state law (an "Excise Tax"),
the Company agrees that it will promptly pay or cause to be paid to Consultant,
in addition to any other payments made or required to be made pursuant to the
terms of this Agreement, an additional amount in cash (a "Gross-Up Payment")
equal to the sum of (i) the amount of such Excise Tax plus (ii) all Attributable
Taxes and Penalties. For purposes of this Agreement, "Attributable Taxes and
Penalties" means all taxes, interest and penalties, including, without
limitation, any federal, state and local
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income taxes and any Excise Taxes, which become payable by Consultant as a
result of the receipt of the Gross-Up Payment or the assessment of any Excise
Tax against Consultant. It is intended that under this provision the Company
will indemnify Consultant in such a manner that Consultant shall not suffer any
loss or expense by reason of the assessment of any Excise Tax or the
reimbursement of Consultant for payment of any such Excise Tax.
(b) In determining the amount of any Gross-Up Payment payable pursuant
to Paragraph (i) above, Consultant shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made, and state and local taxes at the
highest marginal rates of taxation for such year in the state and locality of
Consultant's residence. For such purposes, federal income taxes shall be
determined net of the maximum reduction in such federal income taxes that could
be obtained from the deduction of such state and local taxes.
(c) Within 30 days after Consultant's Date of Termination, a mutually
agreed upon nationally recognized accounting firm (the "Accounting Firm"), shall
make a determination as to whether any Excise Tax should be reported and paid by
Consultant for any period or periods by reason of any payment, benefit or
distribution under this Agreement or under any other agreement, plan or
arrangement with the Company (or with any person whose actions result in a
Change in Control or any person affiliated with the Company or such person). If
the Accounting Firm determines that any Excise Tax should be reported and paid
by Consultant, the Accounting Firm shall also determine the amount of such
Excise Tax and the amount of the Gross-Up Payment required to be paid to
Consultant by the Company with respect to such Excise Tax. In such event, the
Company shall, within five (5) business days after such determination, pay or
cause to be paid to Consultant the amount of the Gross-Up Payment with respect
to the Excise Tax as determined by the Accounting Firm, and Consultant shall
report and pay the Excise Tax as so determined. If the Accounting Firm
determines that no Excise Tax should be reported and paid by Consultant, it
shall furnish Consultant with its opinion that there is substantial authority
not to report any Excise Tax, and Consultant shall prepare and file his tax
returns in accordance with such advice until such time as the Internal Revenue
Service (the "IRS") or any applicable state taxing authority shall notify
Consultant that such manner of reporting is improper. The Company shall be
responsible for all fees and expenses connected with the determinations by the
Accounting Firm pursuant to this Paragraph 7.1.
(d) In the event that Consultant is at any time required to pay any
Excise Tax (or any interest or penalties with respect to any Excise Tax) in
addition to any amount determined pursuant to Paragraph 7.1 (c) by reason of any
payment, benefit or distribution under this Agreement or under any other
agreement, plan or arrangement with the Company (or with any person whose
actions result in a Change in Control or any person affiliated with the Company
or such person), within five (5) business days after Consultant notifies the
Company of such required additional Excise Tax (or additional
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interest or penalties) the Company shall pay or cause to be paid to Consultant a
Gross-Up Payment determined with respect to such additional Excise Tax (and any
such additional interest and penalties). In the event that Consultant receives
any refund of any Excise Tax with respect to which Consultant has previously
received a Gross-Up Payment hereunder, Consultant shall promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto).
(e) Consultant agrees to notify the Company in a timely manner in the
event of any audit or other proceeding by the IRS or any state taxing authority
in which the IRS or the state taxing authority asserts that any Excise Tax
should be assessed against Consultant and to cooperate with the Company (at the
Company's sole cost and expense) in contesting any such proposed assessment with
respect to such Excise Tax (a "Proposed Assessment"). Consultant agrees not to
settle any Proposed Assessment without the consent of the Company. If, however,
Consultant's tax liability for any year cannot be finally resolved principally
by reason of a failure to settle a Proposed Assessment, Consultant may demand
that the Company settle the Proposed Assessment. If the Company does not settle
the Proposed Assessment, or does not consent to allow Consultant to settle the
Proposed Assessment, within ten (10) days following such demand, the Company
shall indemnify and hold harmless Consultant (i) with respect to any additional
interest and/or penalties that Consultant is required to pay by reason of the
delay in finally resolving Consultant's tax liability and (ii) with respect to
any taxes, interest and penalties that Consultant is required to pay by reason
of any indemnification payment under this Paragraph.
7.2 Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Consultant's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company or any of its
affiliated companies. Amounts which are vested benefits or which Consultant is
otherwise entitled to receive under any plan or program of the Company or any of
its affiliated companies at or subsequent to the date of any termination shall
be payable in accordance with such plan or program except as otherwise provided
herein.
7.3. Intellectual Property Rights.
(a) Consultant shall promptly and fully inform Company of, and
disclose to Company, any and all ideas, concepts, themes, inventions, designs,
creations, improvements and discoveries that he makes during the term of this
Agreement, whether individually or jointly in collaboration with others, which
are, at the time any such item is conceived or reduced to practice, related to
Company's business or to actual or demonstrably anticipated research or
development of Company, or which result from any work performed by Consultant
for Company.
(b) Consultant agrees that any and all ideas, concepts, themes,
inventions, designs, creations, improvements or discoveries conceived, developed
or written by Consultant either individually, or jointly in collaboration with
others, which
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are related to Company's business, whether patentable or unpatentable or
copyrightable or uncopyrightable, shall belong to and be the sole and exclusive
property of Company.
(c) Consultant shall assist Company in obtaining patents or copyright
registration on such intellectual properties an execute all documents and do all
things necessary to enable Company to obtain and enforce full an exclusive title
to such properties which are related to Company's business.
8. General Provisions.
8.1 No Assignment. Neither party may assign this Agreement without the
prior written consent of the other.
8.2 Complete Agreement. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all previous
oral and written agreements and all contemporaneous oral negotiations,
commitments, writings and understandings.
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California.
8.5 Modifications and Waivers. No waiver or modification of this Agreement
shall be binding unless it is in a writing signed by both parties hereto.
8.6 Severability. In the event any provision or provisions of this
Agreement is or are to be held invalid, the remaining provisions of this
Agreement shall not be affected thereby.
8.7 Legal Fees. If any legal action, arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of any alleged
dispute, breach or default in connection with this Agreement, the successful or
prevailing party shall be entitled to recover all of its costs incurred in such
action or proceeding, including without limitation its actual attorneys' fees
and disbursements, in addition to any other relief to which it may be entitled.
8.8 Notices. All notices and other communications required or permitted
under this Agreement shall be in writing, served personally on, or mailed by
certified or registered United States mail to, the party to be charged with
receipt hereof. Notices and other communications served by mail shall be deemed
given hereunder seventy-two (72) hours after deposit of such notice or
communication in the United States Post Office as certified or registered mail
with postage prepaid and duly addressed to the receiving
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party as follows, or at such other address as such party has designated in a
written notice given as provided herein:
To Company:
Hollywood Xxxxxxxx.xxx, Inc.
Attention: Xxxxxxx X. Xxxxxxxxx,
Corporate Secretary
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
To Consultant:
Xxxx Xxxxxxx
000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
8.9 Construction. The language of this Agreement shall be construed simply
and according to its fair meaning, and shall not be construed for or against any
party hereto as a result of the source of its draftsmanship.
8.10 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or an alleged breach of this Agreement, shall be settled by
arbitration administered by JAMS/ENDispute, and judgment on the award rendered
by the arbitrator(s) may be entered in the Superior Court in and for the County
of Los Angeles, California. In case of a dispute, any party may commence
arbitration by giving written notice to the others of its desire to do so. Each
party hereto agrees that service of process for an arbitration proceeding will
be deemed completed when a notice of another party's desire to arbitrate is
received by such party. Each party hereby agrees that any such arbitration shall
be held in the County of Los Angeles, California and consents to the
jurisdiction of the Superior Court in and for the County of Los Angeles for
entering of any judgment. The arbitrator shall have authority equal to that of a
Superior Court Judge to grant equitable relief in an action pending in Los
Angeles County Superior Court in which all parties have appeared. Judgment upon
the Arbitrator's award may be entered as if after trial in accordance with
California law. Should any party fail to pay fees as required, any other party
may advance the same and shall be entitled to a judgment from the arbitrator in
the amount of such fees plus interest. Any award issued by the arbitrator shall
bear interest at the judgment rate in effect in the State of California from the
date determined by the arbitrator.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, even though the parties
do not sign the same counterpart.
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IN WITNESS WHEREOF the parties hereto do hereby execute and make effective
this Agreement as of the Effective Date.
HOLLYWOOD XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Chief Executive Officer
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
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