Exhibit 10(A)
EXECUTION COPY
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, dated as of March 20, 1997, by and
between UNITEL VIDEO, INC., a Delaware corporation (herein "Employer") and
ALBERT WALTON, an individual residing at 1040 S. Longwood Ave., Los Angeles,
CA 90019 (hereinafter "Employee").
W I T N E S S E T H :
WHEREAS, Editel Los Angeles, a division of Employer, and Employee have
executed an Agreement dated as of December 1, 1996 (the "Original Agreement")
relating to the terms of Employee's employment with Employer; and
WHEREAS, it is currently contemplated that Editel Los Angeles and
Unitel/ Hollywood, also a division of Employer, shall be merged (the new
entity consisting of the merged divisions of Editel Los Angeles and Unitel/
Hollywood being hereinafter referred to as the "Merged Division"); and
WHEREAS, Employer desires that Employee perform certain duties and have
certain responsibilities for both Editel Los Angeles and the Merged Division
and Employee accepts such duties and responsibilities in accordance with the
terms of this Agreement; and
WHEREAS, this Agreement amends and restates the Original Agreement in
its entirety and the Original Agreement is of no further force and effect;
NOW THEREFORE, in consideration of the premises and the agreements
herein contained, Employer and Employee agree as follows:
Section 1. Employment.
A. Employee shall perform such duties and exercise such powers on
behalf of Employer and have such responsibilities as are consistent with the
position of (1) for so long as Editel Los Angeles is in existence, "President
- - Editel Los Angeles" and (2) upon the establishment of the Merged Division,
"President and Chief Executive Officer of the Merged Division," together with
any other function as might reasonably be deemed required and necessary for
the advancement of the interests of Employer.
B. Employee shall devote his best efforts and his time, knowledge,
skill, attention and energy exclusively to the business of Employer in the
advancement of the interests of Employer. Employee will not engage in any
activities that would interfere with his ability to discharge his
responsibilities as an employee of Employer.
C. Employer shall have the right at any time, and from time to time,
to modify the duties to be performed by Employee, or the powers exercised by
him, consistent with the discharge of his responsibilities as either
President of Editel Los Angeles or President and Chief Executive Officer of
the Merged Division, as applicable; provided, however, that Employer may not
modify the duties of Employee such that the modification(s) creates a
substantial change or alteration in Employee's duties without first obtaining
Employee's written consent.
Section 2. Term of Employment.
A. Employee's employment under this Agreement shall be for a period
commencing on March 20, 1997, and ending on August 31, 1998 (the "Employment
Period").
B. Notwithstanding the terms of paragraph A of this section,
Employee's employment is subject to termination by Employer in accordance
with the provisions of Section 5 of this Agreement.
Section 3. Compensation.
A. In consideration for the services to be rendered by Employee
hereunder and in consideration of the covenants herein given by Employee,
Employer shall pay to Employee an annual salary of One Hundred Ninety
Thousand Dollars ($190,000.00) during the Employment Period.
B. Employee shall be paid bonus compensation in respect of each fiscal
year of Employer during the Employment Period (commencing with Employer's
fiscal year ending August 31, 1997) equal to five (5%) percent of the pre-tax
net income of Editel Los Angeles and its successor the Merged Division
(calculated in accordance with Employer's accounting practices currently in
force; provided that the corporate charge used in calculating such amount
shall be whatever was agreed to in the budget for Editel Los Angeles for such
fiscal year (whether the actual number for such charge in such fiscal year
increases or decreases from such budgeted amount) and the depreciation
expense used in such calculation shall be the lesser of the budgeted amount
or the actual amount for Editel Los Angeles for such fiscal year unless
actual exceeds budgeted due to an increase in Editel Los Angeles' capital
budget for such fiscal year in which case the actual amount will be used in
such calculation) for such fiscal year. Bonus compensation payable pursuant
to this Section 3B shall be paid within 90 days after the end of the
applicable fiscal year. Bonus compensation shall be pro rated in respect of
any period during the Employment Period which is shorter than a full fiscal
year of Employer.
C. Employee shall be paid bonus compensation equal to Forty Thousand
Dollars ($40,000) for services related to the merger of Unitel Hollywood and
Editel Los Angeles divisions. This bonus is payable on a one time basis,
within 90 days after the end of the fiscal year ended August 31, 1997.
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D. All compensation provided for in this paragraph 3, shall be subject
to withholding as required by law or by the terms of any applicable benefit
plan(s) and shall be paid in accordance with Employer's customary practices.
E. Employee shall receive options to purchase 10,000 shares of the
common stock of Unitel Video, Inc., at the option price of $5.25, each, in
accordance with Employer's stock option plan, a copy of which is attached
hereto marked Exhibit "A". Employee acknowledges that he has received such
options.
Section 4. Benefits.
A. During the Employment Period, Employee shall be eligible to
participate in such pension, insurance, medical, disability and other
employee benefit plans of Employer which may be in effect from time to time,
to the extent he is eligible under the terms of those plans on the same basis
as other similarly situated employees of Employer.
B. Employee shall receive vacation during each annual period during
the Employment Period calculated in accordance with Employer policy.
C. Employer will pay for (i) lease payments on one automobile leased
and utilized for business purposes not to exceed a maximum of $600 per month
(including sales taxes) and (ii) the cost of insurance and maintenance for
such automobile.
Section 5. Termination.
A. Employee's employment and his rights hereunder shall terminate on
the first to occur of the following dates:
(i) the expiration of the Employment Period;
(ii) the date on which Employer gives Employee written notice of
termination for cause pursuant to subsection (b) hereof;
(iii) upon Employee's death; or
(iv) at the option of Employer, at the expiration of the maximum
period or leave pursuant to the federal Family Medical Leave Act (if applicable
to Employee) or 60 days after the onset of Employee's disability, whichever is
later.
B. Should Employee (in the reasonable opinion of Employer) (i) fail,
neglect or refuse (other than by reason of mental or physical disability) to
perform or observe any or all of his obligations hereunder at the time and in
the manner herein provided; (ii) commit an act of dishonesty, gross
negligence or willful misconduct, including, without limitation, fraud or
embezzlement; (iii) make or be found to have made any false representation or
warranty herein; (iv) be in breach of any material covenant or other
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obligation contained in this Agreement; (v) be convicted of a felony or any
crime involving moral turpitude; or (vi) be found to be in possession or
under the influence of illegal drugs, Employer may upon written notice, at
its option, terminate this Agreement, and thereupon be released and
discharged from the obligation to pay salary accruing after the date of
Employee's discharge, and from all other obligations provided for herein, but
such termination shall not affect any liability of Employee to Employer for
any loss or damages to Employer caused by, or arising out of, the conduct of
Employee resulting in his termination under this subsection (B).
Section 6. Non-Disclosure Covenant; Ownership of Proceeds Employment.
A. Employee shall not, at any time during the term of this Agreement
or thereafter, except in the performance of his duties hereunder, communicate
or disclose to any person, or use for his own account, without the prior
written consent of Employer, any knowledge or information concerning any
patents, inventions or equipment used in, or any secret or confidential
information (including, without limitation, any customer lists or trade
secrets) acquired by Employee by reason of his employment hereunder
concerning the business and affairs of Employer or any of its affiliates.
Employee shall retain all such proprietary and confidential information in
trust for the sole benefit of Employer and its successors and assigns.
B. Employer shall be the sole owner of all the fruits and proceeds of
Employee's services hereunder all of which Employee will promptly disclose to
Employer, including, but not limited to, all formats, suggestions,
developments, arrangements, designs, packages, programs, promotions and other
intellectual properties which Employee may create in connection with and
during the Employment Period, free and clear of any claims by Employee (or
anyone claiming through or under him) of any kind or character (other than
his right to compensation hereunder). All copyrightable works created by
Employee and covered by this paragraph shall be deemed to be Works for Hire.
Employee shall, at the request of Employer, execute such assignments,
certificates or other instruments as Employer may from time to time deem
necessary or desirable to evidence, establish, maintain, perfect, protect,
enforce or defend its rights, title or interest in or to any such properties.
If Employee is unable or unwilling to perform such acts, Employee hereby
appoints Employer his attorney-in-fact with full power and authority to
execute any and all documents and take such other action as is necessary to
accomplish the foregoing.
C. All memoranda, notes, records, and other documents made or compiled
by Employee, or made available to him during his employment by Employer,
concerning the business of Employer, shall be Employer's property and shall
be delivered to Employer on the termination of this Agreement or at any other
time on request.
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Section 7. Covenants not to Compete; Non-Interference.
A. Except in the course of his employment or upon the prior written
consent of Employer, Employee shall not at any time during the Employment
Period (i) render services or advice, for compensation or otherwise, to any
other person or entity as an employee, consultant or independent contractor
or otherwise; or (iii) enter into any other business affiliation, including,
without limitation, the establishment of a proprietorship or the
participation in a partnership or joint venture.
B. Employee shall not, at any time during the Employment Period and
for six (6) months after termination pursuant to Section 5, for compensation
or otherwise, acting alone or in conjunction with others, directly or
indirectly, as a stockholder, investor, officer or director of a corporation
in which he possesses, directly or indirectly, the power to direct or cause
the direction of management or policies (including without limitation a 5% or
more holder of the voting securities of a corporation), or as sole proprietor
or member of a partnership in all cases.
(i) for his own account or for the account of any other person,
engage, hire, employ or solicit the employment of any person who is then or
has been, within three (3) months prior thereto, an officer, manager or
employee of Employer, whether or not such person would commit a breach of his
or her contract of employment by reason of leaving the services of Employer or
(ii) take advantage of any corporate opportunity of Employer.
C. The restrictions contained in this section are considered
reasonable by the parties and it is the intent of the parties that such
restrictions and the other provisions of this Section be enforced to the
fullest extent permissible under the laws and the public policies applied in
each jurisdiction in which enforcement is ought.
Section 8. Compliance With Other Agreements.
Employee represents and warrants to Employer that (i) he is legally
free to make and perform this Agreement; and (ii) he has no obligation to any
other person or entity that would or will affect or conflict with any of his
obligations hereunder.
Section 9. Full and Complete Agreement; Amendment.
This Agreement constitutes the full and complete understanding and
agreement of the parties and supersedes all prior understandings and
agreements regarding Employee's employment by Employer. This Agreement may
be modified only by a written instrument executed by both parties.
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Section 10. Waiver.
No waiver by either party of any failure or refusal to comply with
its or his obligation shall be deemed a waiver of any other or subsequent
failure or refusal to so comply.
Section 11. Partial Invalidity.
If any term or provision of this Agreement or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such
term or provision to persons or circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Section 12. Successors and Assigns.
This Agreement shall inure to the benefit of, and shall be binding
upon the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any person or entity with which Employer may
merge or consolidate or to which it may transfer all or substantially all of
its assets. With respect to Employee, this Agreement, being personal, cannot
be assigned.
Section 13. Authorization.
Employer warrants and represents that the person executing this
Agreement on behalf of Employer has full right and authority to bind Employer
corporation, and was and is authorized in every manner and respect to enter
into this Agreement.
Section 14. Notices.
All notices and other communications which are required or may be
given under this agreement shall be in writing and shall be deemed to have
been duly given when delivered in person or transmitted by facsimile, or five
(5) days after being mailed by registered or certified first class mail,
postage prepaid, return receipt requested, in the case of Employer, to its
Chief Executive Officer at 555 West 57th Street, New York, NY 10019, and, in
the case of Employee, to 1040 S. Longwood Ave., Los Angeles, CA 90019, or to
such other address as such party shall have specified by notice to the other
party hereto.
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Section 15. Jurisdiction.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York (without regard to the principles of
conflicts of laws), the principal place of business of Employer. The parties
agree that the courts of the State of California shall have exclusive
jurisdiction over all matters of this Agreement and either party may bring
suit in such jurisdiction. The venue of such action shall be in Los Angeles
County.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first set forth above.
UNITEL VIDEO, INC. ALBERT WALTON
By: /s/ Barry Knepper By: /s/ Albert Walton
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Title: Chief Executive Officer Title: President
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