EXHIBIT 10.31
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is entered
into effective as of March 1, 1998, (the "Commencement Date") by and between
Spelling Entertainment Group Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Executive"), and amends and restates in its entirety that
certain Employment Agreement dated May 1, 1996, as amended by that certain
Amendment No. 1 to Employment Agreement dated July 28, 1997 both between
Executive and Company. The parties agree to the following:
1. Term of Employment. Subject to the termination provisions of this
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Agreement, Company hereby employs Executive under the terms and conditions set
forth in this Agreement commencing on the Commencement Date and terminating on
April 30, 2000 (the "Term").
2. Duties and Responsibilities.
2.1. Officer and Director. During the Term, the Executive shall serve
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as Vice Chairman of the Board of the Company and as Chairman of the Board and
Chief Executive Officer of Spelling Television Inc. ("STI") and shall serve in
his discretion as Chairman of the Board and Chief Executive Officer of any of
the other subsidiaries of the Company which engage in substantial television
production, whether currently existing or hereafter formed or acquired
(collectively referred to herein as the "Production Subsidiaries"), and shall
serve as a member of the Board of Directors of the Company. Notwithstanding the
foregoing, the term "Production Subsidiaries" shall not include Worldvision
Enterprises, Inc. and its subsidiaries. The Company shall use its best efforts
to cause the Executive to be a member of the Board of Directors of the Company
throughout the Term and shall include him in the management slate for election
as a director of the Company at every stockholders' meeting at which his term as
a director would otherwise expire. During the Term, STI and the Production
Subsidiaries designated by Executive shall employ or engage no one other than
the Executive with the Executive's title or function under this Agreement
without the Executive's prior written approval. During the Term, all officers
and employees (who shall
include all persons traditionally employed by such entities prior to the date
hereof and the persons performing all of the principal functions of a stand-
alone production company, including but not limited to development, production
(including wardrobe, transportation, etc.), merchandising, business affairs,
legal affairs and the like) of STI and the designated Production Subsidiaries
shall report to the Executive (directly or through such channels as the
Executive shall designate in consultation with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the
appropriate board of directors) and not to any other individual or entity.
During the Term, the Company agrees it will not, without the prior written
consent of the Executive, cease to have the production of television programming
as one of its principal lines of business.
2.2. Executive Producer or Producer. In addition, the Executive shall
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be entitled to serve as executive producer on all television programs, and as
executive producer or producer (as the Executive may elect) on all theatrical
films, produced by the Company or the Production Subsidiaries (whether produced
alone or in conjunction with others) (the "Product") and (b) to approve for
production, to approve the general budget ranges for, and to decide which entity
among the Company and its majority-owned or controlled subsidiaries will be
primarily responsible for the production of, all substantial television or
theatrical film projects produced by the Company or any Production Subsidiary.
2.3. Extent of Services. The Executive shall devote substantially all
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of his business time, ability and energy to the performance of his duties
hereunder. The Executive shall not be required to accept without his approval
any duties with the Company inconsistent with his positions hereunder. No
action will be taken by the Company which, in form or substance, shall detract
from the authority, jurisdiction or responsibility of the Executive or render it
difficult or impossible for the Executive to carry on his duties, except that
nothing in this sentence shall negate or otherwise diminish the authority of the
Board of Directors of the Company to authorize or withhold corporate action with
respect to matters which, under Delaware law, the Company's Certificate of
Incorporation or the Bylaws, are within the exclusive province of the Board of
Directors. The Executive shall not be required to perform any duties under this
Agreement in a location other than in Los Angeles, nor shall he be required to
travel outside the Los Angeles area in the performance of his duties hereunder.
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3. Compensation.
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3.1. Base Salary. As compensation for the performance by the
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Executive of his obligations hereunder, the Company shall pay the Executive a
base salary ("Base Salary") as follows:
3.1.1. From the Commencement Date to April 30, 1998, the amount
of One Hundred Twenty Nine Thousand One Hundred Sixty Seven Dollars ($129,167)
per month.
3.1.2. From May 1, 1998 to April 30, 1999, the amount of One
Million Seven Hundred Thousand Dollars ($1,700,000).
3.1.3. From May 1, 1999 to April 30, 2000, the amount of One
Million Eight Hundred Fifty Thousand Dollars ($1,850,000).
3.1.4. All compensation under this section shall be payable in
accordance with Company's normal practices.
3.2. Executive Producer Fees and Other Compensation for Television
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Programming. Executive shall be entitled to receive executive producer fees and
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other compensation ("Executive Producer Fees") for television programming as
follows:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇: $55,000 for each episode produced
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during the eighth year of production (1997-98 television
season), $62,500 for each episode produced during the ninth
year of production (1998-99 television season) and $70,000
for each episode produced during the tenth year of production
(1999-2000 television season).
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇: $50,000 for each episode produced during the
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sixth year of production (1997-98 television season), $57,500
for each episode produced during the seventh year of
production (1998-99 television season) and $65,000 for each
episode produced during the eighth year of production (1999-
2000 television season).
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(c) 7th Heaven: $42,500 for each episode produced during the
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second year of production (1997-98 television season),
$52,500 for each episode produced during the third year of
production (1998-99 television season) and $62,500 for each
episode produced during the fourth year of production (1999-
2000 television season).
(d) Sunset Beach: $12,500 for each week of five (5) episodes
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produced during the first year of production (1997 television
season), $15,000 for each week of five (5) episodes produced
during the second year of production (1998 television
season), $17,500 for each week of five (5) episodes produced
during the third year of production (1999 television season),
in each case prorated for any partial week period.
(e) Love Boat: $35,000 for each episode produced during the
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first year of production (1998-99 television season) and
$42,500 for each episode produced during the second year of
production (1999-2000 television season).
(f) New Series: Except as provided for in Sections 3.2(a),
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3.2(b), 3.2(c), 3.2(d) and 3.2(e), Executive shall be
entitled to receive an Executive Producer Fee of $35,000 per
episode produced for any new television program series ("New
Series") during the first year of any New Series. Executive's
Executive Producer Fee shall be increased by $7,500 per
episode for each subsequent year the New Series is in
production.
(g) Mini-Series and Movies-of-the-Week ("MOW"): $60,000 for each
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hour of any television mini-series produced and $50,000 for
each hour of any MOW produced.
(h) Series Sales Bonus: Commencing in the seventh year of
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production of "▇▇▇▇▇▇▇ Hills, 90210"
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(1996-97 television season) and the fifth year of production
of "▇▇▇▇▇▇▇ ▇▇▇▇▇" (1996-97 television season), the Company
shall pay Executive an annual sales bonus of $250,000 for
each series and for every year after the 1996-97 television
season each series is in production.
Commencing in the first year of production of "Sunset Beach"
(1997 television season), the Company shall pay Executive an
annual sales bonus of $125,000 for each year the series is in
production.
Commencing in the third year of production of "7th Heaven"
(1998-99 television season), the Company shall pay Executive
an annual sales bonus of $150,000 for the 1998-99 television
season and each subsequent year the series is in production.
Commencing in the third year of production of any New
Series, including "Love Boat", the Company shall pay
Executive an annual sales bonus of $125,000 for each New
Series. For each production year after the third production
year of such New Series, the annual sales bonus shall
increase by $25,000.
(i) Other Programming: Executive Producer Fees and other
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compensation for additional programming not specifically
provided for in Sections 3.2(a)-(g) above shall be negotiated
in good faith and be commensurate with industry standards for
producers of Executive's stature.
(j) If E. ▇▇▇▇ ▇▇▇▇▇▇▇ retires from employment with Company,
Spelling Television Inc. or any of their respective
subsidiaries, and no longer receives episodic fees, the
Executive Producer Fees payable to Executive pursuant to this
Section 3.2 after ▇. ▇▇▇▇ Vincent's
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retirement shall be increased by forty percent (40%).
3.3. Theatrical Film Compensation. During the Term, Executive shall
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also be entitled to receive executive producer fees, participations, deferments
and other compensation, exclusive of reimbursement of Company's actual direct
out-of-pocket costs ("Theatrical Film Compensation") as agreed to by Executive,
the Company and the producer/studio of the following theatrical films which had
been in development with the Company, "No Ordinary ▇▇▇," "Mod Squad" and "Love
Boat" ("Theatrical Films"). At Executive's request, Company shall enter into
loan-out agreements lending Executive's executive producing services to such
producers/studios and shall pay Executive (i) one hundred percent (100%) of all
Theatrical Film Compensation from "Mod Squad", and (ii) fifty percent (50%) of
all Theatrical Film Compensation received by Company from any other Theatrical
Film. None of Executive's work on the theatrical films shall interfere with his
duties and responsibilities as set forth in Paragraph 2.
3.4. Year End Bonus. For the term year of May 1, 1998 to April 30,
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1999, and on or before February 29, 1999, Company shall pay Executive a year-end
bonus of One Hundred Seventy Five Thousand dollars ($175,000) and for the term
year of May 1, 1999 to April 30, 2000, and on or before February 28, 2000,
Company shall pay Executive a year-end bonus of Two Hundred Thousand dollars
($200,000). The bonus payments set forth in this Section 3.4 shall be payable
in accordance with Employer's normal practices.
3.5. Incentive Compensation. In addition to his Base Salary,
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Executive Producer Fees, Theatrical Film Compensation and Year-End Bonus, the
Executive shall also be entitled to participate on a basis consistent with his
position and the Company's past practice in all bonus and profit sharing plans
of the Company in effect from time to time which are applicable to executives of
the Company. Executive's participation in the Company's Short Term Incentive
Plan is as set forth in Section 3.4.
3.6. Expenses. Except to the extent that persons directly employed by
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Executive perform business functions for Executive, during the Term, the Company
shall pay or reimburse the Executive promptly for all reasonable business
expenses incurred by the Executive in the performance of his duties hereunder.
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3.7. Benefits. The Executive shall be entitled to participate in any
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group life, health, accident, disability or other insurance programs, 401(k)
programs, and any other fringe benefits in effect from time to time which are
applicable to executives of the Company.
3.8. Stock Options. Executive shall be granted 75,000 stock options
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to purchase common stock of the Company at a purchase price equal to the closing
price on December 22, 1997, in accordance with the terms of the Company's Stock
Option Plan. However, except as provided below, if the Company enters into a
"going private" transaction or if there is a Change in Control as defined in
Section 4.2.1 during the Term, any options held by Executive then remaining, to
the extent not already vested or exercised, shall immediately become exercisable
upon consummation of such "going private" transaction or Change in Control.
Vesting of stock options shall continue during the Term if Executive's
employment is terminated without cause. Otherwise, vesting of stock options
shall cease upon termination of Executive's employment in accordance with the
terms of the Company's Stock Option Plan, and Executive's right to exercise
stock options shall cease after termination of Executive's employment in
accordance with the terms of the Company's Stock Option Plan.
3.9. Vacations. Subject to the requirements of the Executive's
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office, the Executive shall be entitled to take vacations aggregating six (6)
weeks in length during each year of the Term.
3.10. Car Allowance. During the Employment Term, Executive shall
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receive a car allowance in the amount of $1,200 per month.
4. Termination.
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4.1. Termination by Company.
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4.1.1. Grounds. The Company shall have the right, at its
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election by giving written notice to the Executive, to terminate the Executive's
employment under this Agreement during the Term for any of the following
reasons:
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4.1.1.1. The Executive's (i) death, or (ii) disability
(by reason of accident, illness, mental or physical cause) which in fact
incapacitates the Executive from performing substantially the services
contemplated herein for a period of four (4) consecutive months, or (iii)
disability, the nature of which is that the Executive will be incapacitated from
performing such services for a period of four (4) consecutive months;
4.1.1.2. The Executive's willful and material failure
or refusal to perform the Executive's services as provided herein or the failure
by the Executive to cure or cease any other material breach of this Agreement by
the Executive within thirty (30) days after receiving a notice from the Company
reasonably specifying the nature of that breach;
4.1.1.3. The Executive's willful misappropriation of
any funds or property of the Company;
4.1.1.4. Conviction of the Executive of a felony; or
4.1.1.5. Any justifiable legal cause as determined by
appropriate arbitration.
4.1.2. Payment Upon Termination by the Company. In the event of the
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Executive's termination pursuant to Section 4.1.1 above, the Company shall be
obligated to pay Executive (i) any Base Salary due and owing to the Executive
for the period through the effective date of such termination, (ii) any
Executive Producer Fees and other compensation, payable pursuant to Section 3.2
due through the effective date of such termination, (iii) any Theatrical Film
Compensation payable pursuant to Section 3.3 due through the last day Executive
rendered services on such Theatrical Film, and thereafter any participation and
deferments already earned as of the last day of Executive's services on such
Theatrical Film, (iv) a pro rata portion of the year end bonus set forth in
Section 3.4 prorated on the basis of a 365 day year for that period from the
start of the term year through the effective date of such termination, (v)
benefits vested under any applicable pension or other employee benefit plans,
and (vi) all vested, accrued and unused vacation time existing as of the
effective date of such termination as reflected in the Company's personnel
records. Payment for such vacation time shall be at a rate equal
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to the Executive's Base Salary. Executive shall also be entitled by exercise any
outstanding vested and unexercised stock options in accordance with the terms of
the Company's Stock Option Plan.
4.2. Termination by Executive.
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4.2.1. Grounds. The Executive shall have the right to terminate
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his employment under this Agreement effective upon seven (7) days written notice
if, at any time during the Term, the Company shall be in material breach of its
material obligations under this Agreement (including, but not limited to, the
Executive not being elected or retained or otherwise not actually having the
authority contemplated in this Agreement as the Vice Chairman of the Board of
Directors of the Company and as the Chairman of the Board and Chief Executive
Officer of STI or the designated Production Subsidiaries or being obligated to
report to any person other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) or there occurs a "Change in
Control." For purposes of this Agreement, the term "Change in Control" means:
(a) the control by any person or "group," within the meaning of Section 13(d) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership (within the meaning of the Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of voting securities of the
Company representing 50% or more of the combined voting power of the Company's
then outstanding voting securities entitled to vote generally in the election of
directors; provided, however, that this clause shall not apply to any shares
held by Viacom Inc. or its affiliates; or (b) such time as a majority of the
Board of Directors of the Company (the "Board") shall be comprised of persons
who were not elected to such offices as part of the "Company nominated slate" of
directors (i.e. the slate of nominees proposed by the Board in office
immediately prior to the election; provided, however, that this clause shall not
apply in the event one or more directors voluntarily resigns from the Board and
such resignation or resignations would otherwise come within the provisions of
this Section 4.2.1(b).
4.2.2. Consequences of Termination by Executive. In the event of
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termination by the Executive pursuant to Section 4.2.1 above:
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4.2.2.1. The Executive shall have no further
obligations or liabilities to the Company whatsoever except for his obligations
under Section 6.2 and, if applicable, Section 4.2.5;
4.2.2.2. Except where the termination by Executive is
premised solely on a Change in Control, the Company shall pay the Executive
within thirty (30) days of the date of such termination, a cash payment equal to
the present value (based on an annual discount rate equal to the "applicable
Federal rate", based on the remaining length of the Term, within the meaning of
Section 1274(d) of the Internal Revenue Code of 1986, as amended (the "Code"),
in effect at the time of such termination) of (i) the Executive's Base Salary
hereunder for the remainder of the Term which would have been payable had such
termination not occurred, plus (ii) at the Executive's election, the amount of
Executive Producer Fees and other compensation which would have been payable to
the Executive pursuant to Section 3.2 and Theatrical Film Compensation which
would have been payable pursuant to Section 3.3 had the aggregate Executive
Producer Fees and other compensation and Theatrical Film Compensation paid to
the Executive by the Company and the Production Subsidiaries in the last full
fiscal year prior to the effective date of such termination been paid each year
(or portion thereof) for the remainder of the Term had such termination not
occurred, plus (iii) the amount of the year end bonuses for the remainder of the
Term payable pursuant to Section 3.4. In the event the Executive does not elect
to have some or all of his Executive Producer Fees and other compensation or
Theatrical Film Compensation accelerated under clause (ii), the Company and the
Production Subsidiaries, as applicable, shall continue to pay the Executive the
Executive Producer Fees and other compensation and Theatrical Film Compensation
which would have been payable during the remaining Term had such termination not
occurred, assuming that the Executive were to provide services on all projects
on which he would have been eligible. If termination by Executive is premised
solely on a Change in Control, then Company shall pay Executive only the amount
specified in clause (ii) or the penultimate sentence of this Section 4.2.2.2, as
applicable, at Executive's election.
4.2.2.3. Any termination pursuant to Section 4.2 shall
not affect any vested rights which the Executive may have had at the effective
date of such termination pursuant to any insurance or other death benefit plans
or arrangements of the
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Company or any Production Subsidiary or under any bonus, management incentive or
other plan of the Company or any Production Subsidiary maintained for its
executives, all of which rights shall remain in full force and effect.
4.2.3. Mitigation. In the event of a breach of this Agreement by
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the Company, the Executive shall not be required to mitigate his damages
hereunder, and there shall be no reduction in payments due hereunder if
Executive secures other employment.
4.2.4. Certain Additional Payments by the Company. Anything in
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this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company or any Production
Subsidiary to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax, imposed
upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
4.2.5. Services Following Term. In the event this Agreement is
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terminated for any reason, Executive, may at his election, continue to provide
executive producer services on "▇▇▇▇▇▇▇ Hills, ▇▇▇▇▇," "▇▇▇▇▇▇▇ ▇▇▇▇▇," "7th
Heaven", "Love Boat" and "Sunset Beach," or any other Product or Theatrical Film
for which Executive was rendering executive producer services at the time this
Agreement is terminated, and for any such series, Product or Theatrical Film for
which Executive so elects, the Company will continue to engage Executive to
provide such services and pay him the Executive Producer Fees and other
compensation as specified in Section 3.2 and the Theatrical Film Compensation as
specified in Section 3.3.
5. Services After the Term. At any time following the Term, the
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Executive shall be entitled to serve and receive appropriate
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fees pursuant to Sections 3.2(f) and (g) as executive producer on any Production
Subsidiary Product which is a television program if a script has been submitted
to a network prior to the end of the Term for either (i) that program or (ii) if
the program is part of a series (including a spin-off of or a sequel to a
series), for the pilot or original episode of the original series.
6. Covenants.
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6.1. Solicitation. The Executive will not, directly or indirectly,
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(a) (i) during the Term solicit, entice, persuade or induce (collectively,
"Solicit") any employee of the Company or any Production Subsidiary or any
performing artist or other person then under contract with or rendering services
to or making theatrical films, television programs or phonograph or other
recordings for the Company or any Production Subsidiary, to terminate his or her
employment by, or contractual relationship with, the Company or any Production
Subsidiary or to refrain from extending or renewing the same (upon the same or
new terms) or to refrain from rendering services to or making theatrical films,
television programs or phonograph or other recordings for Company or any
Production Subsidiary or (ii) during the Term Solicit any such person to become
employed by or to enter into contractual relations with or to make theatrical
films, television programs or phonograph or other recordings for persons or
entities other than Company or any Production Subsidiary: (b) approach any such
employee, performing artist, director, producer or other person or entity for
any of the foregoing purposes during the applicable period; or (c) authorize or
knowingly approve or assist in the taking of any such actions by any other
person or entity during the applicable period.
6.2. Confidentiality. During the term of his employment and
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thereafter, the Executive shall keep in confidence and shall not use for his
benefit or that of others, or divulge to others except as is appropriate in the
course of his duties hereunder, any secret or confidential information,
knowledge, data or plans of the Company or any Production Subsidiary gained in
his capacity as an employee, officer or director of the Company or any
Production Subsidiary, unless authorized by the Company. The preceding sentence
shall not apply to any such information, knowledge, data or plan which (a) is
now or becomes generally available to the public other than as a result of a
breach of this Section 6.2, (b) was in the Executive's possession on a non-
confidential basis prior
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to its being obtained by the Executive in his capacity as an employee, officer
or director of the Company or any Production Subsidiary, or (c) is now or
becomes available to the Executive on a non-confidential basis from a source
other than the Company or any Production Subsidiary provided the Executive does
not know (or have reason to know) of any breach by such source of any
confidentiality obligations it may have with respect thereto. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's or such Production Subsidiary's business, which the Executive shall
prepare, or use, or come into contact with shall be returned to the Company or
any such Production Subsidiary immediately upon the termination of the
Executive's employment hereunder.
6.3. Exclusive Employment. During the Term, the Executive shall not,
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without the consent of the Company:
6.3.1 Except as provided in Section 3.3, perform services for any
business other than the Company or the Production Subsidiaries without the prior
written consent of the Company;
6.3.2 Engage in any activity which would materially interfere with
the performance of his services hereunder; or
6.3.3 Become financially interested in or associated with, directly
or indirectly, any person or entity other than the Company, STI and the
Production Subsidiaries in connection with the production, distribution or
exhibition of motion pictures, television programs and visual recordings of any
kind, and/or in the broadcasting business; provided, however, that
notwithstanding the foregoing, the Executive may (a) serve as a manager,
officer, director, employee or consultant to any general or limited partnership,
joint venture, corporation or other entity which is not a competitor of the
Company, STI or the Production Subsidiaries in any of their major lines of
business (a "non-competing entity") or (b) hold a legal or beneficial interest
in any entity, provided, however, that Executive's legal or beneficial interest
in any entity which competes with the Company, STI or the Production
Subsidiaries in any of their major lines of business shall not exceed five
percent (5%) of the equity of such entity. The prohibitions of this 6.3.3 shall
not apply to the Executive's ownership of presently owned programming already
produced.
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7. Ownership of Proceeds of Employment. The Executive acknowledge's that
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the relationship between the parties hereto is exclusively that of employer and
employee, and that the Company's obligations to the Executive are exclusively
contractual in nature. The Company shall be the sole owner of all the results
and proceeds of the Executive's services hereunder including, but not limited
to, all ideas, concepts, formats, suggestions, developments, arrangements,
designs, packages, programs, promotions and other intellectual properties which
the Executive may create concerning the business of the Company and during the
Term, free and clear of any claims by the Executive (or anyone claiming under
him) of any kind or character whatsoever (other than the Executive's right to
compensation hereunder). The Executive shall, at the request of the Company,
execute such assignments, certificates or other instruments as the Company may
from time to time deem necessary or desirable to evidence, establish, maintain,
perfect, protect, enforce or defend its right, or title and interest in or to
any such properties.
8. Arbitration as the Exclusive Remedy. Any controversy or claim arising
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out of or relating to this Agreement including, but not limited to, any claim
relating to its validity, interpretation, enforceability or breach, and/or any
other claim or controversy arising out of the employment relationship or the
commencement or termination of that relationship, including, but not limited to,
claims for breach of covenant, breach of an implied covenant or intentional
infliction of emotional distress, which are not settled by agreement between the
parties, shall be settled by arbitration in Los Angeles, California before a
board of three arbitrators, one to be selected by the Company, one by the
Executive and the other by the two persons so selected, all in accordance with
the labor arbitration rules of the American Arbitration Association then in
effect. In the event that the arbitrator selected by the Company and the
arbitrator selected by the Executive are unable to agree upon a third
arbitrator, then the third arbitrator shall be selected from the list provided
by the American Arbitration Association, such list to contain an odd number of
names of potential arbitrators, with the parties' striking names in order and
the party striking first to be determined by the flip of a coin. In
consideration of each party's agreement to submit to arbitration all disputes
with regard to this Agreement and/or with regard to any alleged contract or tort
or other claim arising out of the employment relationship or the commencement or
termination
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of that employment relationship, and in consideration of the anticipated
expedition and the minimizing of expense of this arbitration remedy, each agrees
that the arbitration provisions of this Agreement shall provide it with its
exclusive remedy and each party expressly waives any right it might have to seek
redress in any other forum except as provided herein. The parties further agree
that the arbitrators acting hereunder shall be empowered to assess any remedy
including, but not limited to, injunctive orders (including temporary,
preliminary and permanent relief) when appropriate. It is specifically
contemplated and agreed by the parties hereto that discovery may be conducted by
any party pursuant to the provisions of Section 1283.05 of the California Code
of Civil Procedure which are hereby incorporated into, and made a part of, and
made applicable to this Agreement, and the arbitrators shall have the full power
of a Court of the State of California to issue and enforce subpoenas. The
expenses of the neutral arbitrator and of a transcript during any arbitration
proceeding shall be divided equally between the Company and the Executive.
Any decision and award or order of the majority of the arbitrators shall be
binding upon the parties hereto and judgment thereon may be entered in the
Superior Court of the State of California or any other court having
jurisdiction.
9. Miscellaneous.
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9.1. Notice. Notices authorized or required to be sent pursuant to
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this Agreement shall be in writing and shall be considered given when mailed, by
certified or registered mail, return receipt requested, to the parties at the
following addresses:
If to the Executive, to him at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company at:
Spelling Entertainment Group Inc.
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▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Copies of all notices should be sent to:
▇▇▇▇▇▇▇▇▇ Glusker Fields
Claman & Machtinger LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
9.2. Payment of Taxes. Except as provided in Section 4.6 above, to
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the extent that any taxes become payable by the Executive by virtue of any
payments made or benefits conferred by the Company, the Company shall not be
liable to pay or obligated to reimburse the Executive for any such taxes or to
make any adjustment under this Agreement.
9.3. Right of Offset. Any amounts payable by the Executive to the
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Company may be used by the Company, at its sole option, as an offset against any
of the Company's payment obligations under this Agreement.
9.4. Use of Executive's Name. Except with respect to (i) the use of
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the name "Spelling Entertainment Group Inc." and "Spelling Entertainment Inc."
as the corporate names of the Company and their wholly-owned subsidiaries, and
(ii) uses required by law, the Company and the Production Subsidiaries shall not
have the right to use, without the Executive's written consent, all or any
portion of the Executive's name, biography and likeness in connection with its
business, including in advertising its television programs and theatrical films.
Without the Executive's further written consent, the Company may not grant to
others any such right which it obtains from the Executive. Upon request of the
Executive after the Term, the Company and the Production Subsidiaries will
discontinue use of the Executive's name, biography and likeness other than in
connection with Product produced prior to the end of the Term, including any
reference to "▇▇▇▇▇ ▇▇▇▇▇▇▇▇" or "Spelling" in any production credit, and the
Production Subsidiaries (including ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Productions, Inc.) will as
early as practicable, amend their respective corporate charters to change their
respective corporate names so as to no longer use all or any portion of the
Executive's name,
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although the Company may use "Spelling Entertainment Group Inc." and "Spelling
Entertainment Inc." as its corporate name but not as a production credit on
programming, although the mere identification of a production company as a
Spelling Entertainment subsidiary shall not be a "production credit."
9.5. Life Insurance. The Company shall have the right to take out
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life insurance or other insurance on the life of the Executive at its sole cost
and expense and for its sole benefit, and the Executive acknowledges that he
shall have no right in or to such insurance or the proceeds thereof. The
Executive agrees to cooperate with the Company in obtaining such insurance and
to submit, at his reasonable convenience, to the usual medical and other
examinations required in connection therewith.
9.6. Construction and Assignment. This Agreement and the performance
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hereof shall be governed, interpreted, construed and regulated by the laws of
the State of California without giving effect to the conflicts of law provisions
thereof. This Agreement shall not be assignable by the Executive. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon any successor to the business of the Company.
9.7. Waivers.
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9.7.1 General. The waiver by either party of a breach of any
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provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of this Agreement.
9.7.2 Credits. In the event Executive waives his right to
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receive credit for any television program or theatrical film made by the Company
or the Production Subsidiaries including, without limitation, Executive's right
to receive credit as executive producer thereof, such waiver shall in no way
prejudice Executive's other rights under this Agreement.
9.8. Severability. If any term, covenant, condition or provision of
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this Agreement, or the application thereof to any person or circumstance, shall
at any time or 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, covenant, condition
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and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
9.9. Entire Agreement. This Agreement constitutes the entire
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agreement and understanding of the parties with respect to the transactions
contemplated herein, and supersedes all prior agreements, arrangements and
understandings related to the subject matter thereof. No representation,
promise, inducement or statement of intention has been made by any of the
parties not embodied in this Agreement or in the documents referred to herein,
and no party shall be bound by or liable for any alleged representation,
promise, inducement or statements of intention not set forth or referred to
herein.
9.10. Attorneys' Fees. In the event of any suit, arbitration or other
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proceeding between the parties hereto with respect to any of the transactions
contemplated hereby or the subject matter hereof, the prevailing party shall, in
addition to such other relief as the court or arbitrator(s) may award, be
entitled to recover reasonable attorneys' fees and expenses, all as actually
incurred.
9.11. Headings. The headings of the sections and paragraphs of this
--------
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first above written.
SPELLING ENTERTAINMENT GROUP INC.
(Company)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: Chairman
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Executive)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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