Exhibit 10(ee)
UNITEL VIDEO, INC.
555 WEST 57TH STREET
NEW YORK, NEW YORK 10019
December 8, 1997
Mr. Albert Walton
1040 S. Longwood Avenue
Los Angeles, CA 90019
Dear Mr. Walton:
In recognition of the value of your services to Unitel Video, Inc.
(the "COMPANY"), the Board of Directors of the Company has determined that,
subject to the terms and conditions of this agreement (the "AGREEMENT"), you
shall be entitled to receive the severance benefits set forth below in this
Agreement in the event your employment terminates under certain circumstances in
connection with a "Change in Control" (as defined below) of the Company.
This Agreement shall commence on the date hereof and, subject to the
next succeeding sentence of this paragraph, shall continue through December 31,
1998; PROVIDED, HOWEVER, that commencing on January 1, 1999 and on each January
1 thereafter, the term of this Agreement shall automatically be extended for one
additional year unless, not later than the October 1 immediately preceding any
such January 1, the Company shall have given notice to you that it does not wish
to extend this Agreement; and FURTHER, PROVIDED, that if a Change of Control
shall have occurred during the original or extended term of this Agreement, this
Agreement shall continue in effect for a period through the day immediately
preceding the one-year anniversary date of the occurrence of such Change of
Control, but shall not thereafter be further extended. Notwithstanding the
foregoing, in the event that at any time either (i) you shall terminate your
employment with the Company for any reason whatsoever, or (ii) the Company shall
terminate your employment for any reason whatsoever, in each case other than in
the circumstances set forth in the next succeeding paragraph, this Agreement
shall terminate and shall be of no further force or effect (other than with
respect to those provisions that, by their terms, expressly survive the
termination of this Agreement).
If, during the period beginning upon the occurrence of a Change in
Control and ending on the day immediately preceding the one-year anniversary
date thereof, your employment is terminated (i) by the Company without "Cause"
(as defined below), or (ii) by you as a result of a substantial diminution of
your duties or responsibilities in effect prior to such Change of Control, or a
reduction in the base salary compensation theretofore provided to you by the
Company, then the Company shall pay to you, without regard to any applicable
principles of mitigation of damages or set off (except as expressly hereinafter
provided), an amount equal to one-half of your annual base salary as in effect
immediately prior to your termination (or, if greater, immediately prior to the
Change in Control). Such amount shall be paid to you in six monthly
installments, each as nearly equal in amount as possible, commencing on the
first day of the month immediately subsequent to the date on which your
employment shall be so terminated and ending on the first day of the sixth month
thereafter (the "LAST PAYMENT DATE") (the period commencing on the date of such
termination of employment and ending on the Last Payment Date is
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hereinafter referred to as the "SEVERANCE PERIOD").
You acknowledge that, as a result of your employment, you are in a
confidential relationship with the Company and have access to confidential
information and trade secrets of the Company, its subsidiaries and affiliates
(collectively, the "CONFIDENTIAL INFORMATION"). Accordingly, during your
employment and thereafter, you agree to maintain in the strictest confidence all
Confidential Information and shall not use or permit the use of, or disclose,
discuss, communicate or transmit or permit the disclosure, discussion,
communication or transmission of, any Confidential Information. This paragraph
shall not apply to (i) information that, by means other than your deliberate or
inadvertent disclosure, becomes generally known to the public, or (ii)
information the disclosure of which is compelled by law (including judicial or
administrative proceedings and legal process). In that connection, if you are
requested or required (by oral question, interrogatories, requests for
information or documents, subpoenas, civil investigative demand or other legal
process) to disclose any Confidential Information, you agree to provide the
Company with prompt written notice of such request or requirement so that the
Company may seek an appropriate protective order or relief therefrom or may
waive the requirements of this paragraph. If, failing the entry of a protective
order or the receipt of a waiver hereunder, you are compelled to disclose
Confidential Information under penalty of liability for contempt or other
censure or penalty, you may disclose such Confidential Information to the extent
so required. For purposes hereof, "Confidential Information" includes, but is
not limited to, customer and client lists, financial information, price lists,
marketing and sales strategies and procedures, computer programs, databases and
software, supplier, vendor and service information, personnel information,
operating procedures and techniques, business plans and systems, and all other
records, files, and information in respect of the Company. The provisions of
this paragraph shall survive the termination of this Agreement.
In addition, during the Severance Period you will not directly or
indirectly (i) solicit, induce or entice for employment, retention or
affiliation, or recommend to any corporation, entity or other person the
solicitation, inducement or enticement for employment, retention or affiliation
of, any employee of the Company, or any of its subsidiaries or affiliates, or
(ii) engage in any activity intended to terminate, disrupt or interfere with the
Company's or any of its subsidiaries' relationship with any customer, supplier,
lessor or other person.
In the event of the breach or a threatened breach by you of any of two
immediately preceding paragraphs, the Company's obligation to make the payments
described in this Agreement shall automatically terminate. In addition, the
Company shall be entitled to an injunction to be issued by any court or tribunal
of competent jurisdiction to restrain you from committing or continuing any such
violation without posting a bond or other security. In any proceeding for an
injunction, you agree that your ability to answer in damages shall not be a bar
or be interposed as a defense to the granting of a temporary or permanent
injunction against you. You acknowledge that the Company will not have an
adequate remedy at law in the event of any breach by you as aforesaid and that
the Company may suffer irreparable damage and injury in the event of such a
breach by you. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedy or remedies available to the Company in
respect of such breach or threatened breach. The provisions of this paragraph
shall survive the termination of this Agreement.
If any term or provision of this Agreement shall be held invalid or
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unenforceable because of its duration, geographic scope, or for any other
reason, the Company and you agree that the court making such determination shall
have the power to modify such provision, whether by limiting the geographic
scope, reducing the duration, or otherwise, to the minimum extent necessary to
make such term or provision valid and enforceable, and such term or provision
shall be enforceable in such modified form. The provisions of this paragraph
shall survive the termination of this Agreement.
For purposes of this Agreement:
(a) "Change in Control" shall mean the occurrence of any of the
following: (i) the direct or indirect sale, lease, exchange or other transfer of
all or substantially all of the assets of the Company to any "person" or "group"
(as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Securities and
Exchange Act of 1934, as amended (the "EXCHANGE ACT")); (ii) the merger or
consolidation of the Company with or into another corporation with the effect
that the then existing stockholders of the Company hold less than 80% of the
combined voting power of the then outstanding securities of the surviving
corporation of such merger or the corporation resulting from such consolidation
having the right to vote in the election of directors; (iii) the replacement of
a majority of the Board of Directors of the Company (the "BOARD OF DIRECTORS")
over a two-year period from the directors who constituted the Board of Directors
at the beginning of such period, and such replacement shall not have been
approved by the Board of Directors as constituted at the beginning of such
period; (iv) a "person" or "group" (as defined above), other than an employee
stock ownership plan of the Company, as a result of a tender or exchange offer,
open market purchases, privately negotiated purchases or otherwise, shall have
become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange
Act) of securities of the Company representing 30% or more of the combined
voting power of the then outstanding securities of the Company having the right
to vote in the election of directors; or (v) the adoption by the Board of
Directors and approval by the Company's shareholders of a plan of liquidation or
dissolution of the Company.
(b) "Cause" shall mean (i) your conviction of a felony involving
moral turpitude or your conviction of any crime involving dishonesty, theft,
fraud or unethical business conduct with respect to the Company or any of its
subsidiaries; (ii) substantial and repeated failure, which is not cured within
15 days after written notice thereof to you, to perform duties and
responsibilities as reasonably and lawfully directed in good faith by the Board
of Directors; PROVIDED, that such duties and responsibilities are consistent
with your duties and responsibilities with the Company immediately prior to such
Change of Control; or (iii) any breach of the provisions of any employment
agreement, non-competition or confidentiality agreement applicable to you which
is not remedied within any cure period that may be set forth in any such
agreement (or, if no such cure period shall be set forth in any such agreement,
within 15 days after written notice thereof to you), in each case as determined
in the good faith judgment of the Board of Directors.
This Agreement is not, and shall not be construed, as an employment
agreement or arrangement between the Company, or any other entity or person, and
you, and nothing herein shall confer on you any right to continue in the employ
of the Company, or any other entity or person, or interfere in any way with the
right of the Company, or any other entity or person, to terminate your
employment for any reason whatsoever without liability therefor except as
expressly provided in this Agreement.
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This Agreement shall be binding upon and shall inure to the benefit of
the Company and its successors and assigns (including, without limitation, any
entity or person who shall acquire all or substantially all of the businesses or
assets of the Company and its subsidiaries, whether by purchase, merger,
consolidation or otherwise) and you and your heirs, legal representatives,
executors and assigns; PROVIDED, that you may not assign this Agreement without
the prior written consent of the Company.
This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. Nothing in this Agreement shall limit your rights under
that certain Amended and Restated Agreement dated as of March 20, 1997 between
the Company and you.
This Agreement may be amended, modified, superseded, canceled, renewed
or extended, and the terms or covenants hereof may be waived, only by a written
instrument executed by both parties hereto. The failure of either party at any
time or times to require performance of any provision hereof shall in no manner
affect such party's right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as a further or continuing waiver of any such breach or
waiver of the breach of any term or covenant contained in this Agreement.
This Agreement will be governed by, and construed and enforced in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
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Please signify your agreement to the foregoing by signing this
Agreement below and returning it to the Company.
Very truly yours,
UNITEL VIDEO, INC.
By: /s/ Barry Knepper
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Name: Barry Knepper
Title: Chief Executive Officer
AGREED:
/s/ Albert Walton
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Albert Walton
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