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Exhibit 10.9
Amended and Restated Employment
Agreement
This Employment Agreement (the
“ Agreement
”), originally effective as of
the Effective Date (as defined in Section 2(b)) and amended and
restated in its entirety as of March 21, 2007, is made by and
between RHI Entertainment Limited whose registered address is
situated at College House, 272 Kings Road, London SW3 5AW (company
no. 03173996) (“the Company”), a limited company
registered under the laws of the United Kingdom (together with any
successor thereto, the “ Company ”), and Joel Denton whose address is Old
Essex House, Station Road, London SW 13 OLW (the “
Executive ”).
1. Definitions . In this Agreement unless the context otherwise
requires, the following expressions shall have the following
respective meanings:
(a) “ Annual Base Salary ” shall have the meaning set forth in
Section 3(a).
(b) “ Board ” shall mean the Board of Directors of RHI
Entertainment, LLC.
(c) “ Company ” shall have the meaning set forth in the
preamble hereto, except as otherwise provided in Section
6(g).
(d) “ Effective Date ” shall have the meaning set forth in
Section 2(b).
(e) “ Executive ” shall have the meaning set forth in the
preamble hereto.
(f) “ Term ” shall
have the meaning set forth in Section 2(b).
2. Employment
(a) In General . The Company shall employ the Executive and the
Executive shall be employed by the Company, for the period set
forth in Section 2(b), in the position set forth in Section 2(d),
and upon the other terms and conditions herein provided.
(b) Term of Employment . The term of employment under this Agreement (the
“ Term
”) shall be for the period
beginning on January 12, 2006 (the “ Effective Date ”) and ending on the third anniversary
thereof, (unless earlier terminated as provided in Section 4) and
this Agreement shall continue thereafter subject to either party
giving to the other not less than six months notice in
writing.
(c) Continuous Employment. The Executive’s period of continuous
employment with the Company (or a predecessor thereto) commenced on
September 30, 1995.
(d) Position and Duties. During the Term, the Executive: (i) shall serve as
President, Production and Distribution for RHI Entertainment
Distribution, LLC, and shall be responsible for worldwide
television productions, co-productions and acquisitions entered
into under the RHI Entertainment distribution umbrella and for the
maximization of sales, through the pro-active management of the
sales team to broadcast
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video and other media on a worldwide
basis for all new and library RHI Entertainment programming; (ii)
shall report directly to the COO and CEO; (iii) shall devote
substantially all his working time and efforts to the business and
affairs of the Company and its subsidiaries; and (iv) agrees to
observe and comply with the Company’s rules and policies as
adopted by the Board from time to time.
(e) Place of Work. The Executive’s place of work will be at the
Company’s office at RHI Entertainment Limited at College
House, 272 Kings Road, London SW3 5AW but the Company may
occasionally require the Executive to work at any place within the
United Kingdom or overseas on a temporary basis. The
Executive’s office base may change from time to time within
London, in accordance with the needs of the business. The Executive
will not be required to be absent from the United Kingdom for a
period exceeding one (1) month at any one time.
(f) Working Time Regulations. The parties agree that the Executive has
autonomous decision making powers and the duration of his working
time is not measured or pre-determined.
3. Compensation and Related
Matters
(a) Annual Base Salary . During the Term, the Executive shall receive a
base salary (the “ Annual Base Salary ”) at a rate of £525,000 per annum
with effect from January 12, 2006 increasing to a rate of
£550,000 per annum with effect from January 12, 2007 and a
rate of £580,000 per annum with effect from January 12, 2008.
The Annual Base Salary shall be payable by equal monthly
instalments in accordance with the customary payroll practices of
the Company and will be paid after deduction of all taxes and
national insurance contributions. For the purposes of the
Employment Rights Act 1996, sections 13-27, the Executive agrees
that the Company may deduct from the Executive’s remuneration
any sums due from the Executive to the Company including, without
limitation, any overpayments, loans or advances made by the
Executive to the Company.
(b) Benefits .
During the Term, the Executive shall be entitled to participate in
employee benefit plans, programs and arrangements of the Company
now (or, to the extent determined by the Board, hereafter) in
effect which are applicable to the senior officers of the
Company.
(c) Holiday .
During the Term, the Executive shall be entitled to not less than
four weeks paid holiday per calendar year (in addition to bank
holidays) in accordance with the Company’s applicable
policies and procedures. If the Executive’s employment begins
or ends part way through the holiday year the holiday entitlement
for that year will be assessed on a pro rata basis.. On termination
of the Executive’s employment, the Company may require the
Executive to take unused holiday during his notice period. Holiday
must be taken at times agreed by the Company.
(d) Expenses .
The Company shall reimburse the Executive for all reasonable travel
and other business expenses incurred by him in the performance of
his duties to the
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Company in accordance with the
Company’s applicable expense reimbursement policies and
procedures and consistent with past practices as applied to the
Executive.
(e) Discretionary Bonuses . The Board, in its sole discretion, may award the
Executive additional annual or other bonuses during the Term;
provided, however, that in no event shall any such additional
discretionary bonus be contingent or based on the profits of the
Company or any affiliate thereof. Instead, the factors considered
in connection with any such additional discretionary bonus shall be
based upon the personal performance of the Executive and may
include, but not be limited to: (i) achieving cash collection goals
by the end of year in major territories (including but not limited
to Germany, the United Kingdom, France, Italy, Spain, Australia and
Japan, together, the “ Major Territories ”); (ii) achieving sales goals, based on
both dollar (but not profitability) and volume, in the Major
Territories; and (iii) business development goals for expansion
into new and underserved markets.
(f) Automobile . During the Term, the Executive shall be entitled
to an automobile allowance of £9,500 per annum (the “
Allowance ”). The Company shall be entitled to make
such deductions from the Allowance as required or permitted by law
in respect of income tax, national insurance contributions and any
other relevant deductions. The Allowance shall be subject to
increase in the discretion of the Company.
(g) Pension .
During the Term, the Company shall contribute an amount equal to 7%
of the Executive’s Annual Base Salary to an approved personal
pension plan on the Executive’s behalf. A contracting-out
certificate under the Pension Schemes Act 1993 is not in force in
respect of the Executive’s employment.
(h) Permanent Health Insurance . Without prejudice to the Company’s rights
under Section 4, during the Term, after six consecutive months of
illness, the Executive shall be entitled to be covered by the
Company Permanent Health Insurance Scheme, which pays 75% of net
pay (subject to a maximum benefit set by the insurer of
£300,000 per year).
(i) Life Assurance . During the Term, the Executive shall be covered
under the Company’s Life Assurance Scheme.
(j) Private Medical Insurance . During the Term, the Executive and his wife and
children shall be entitled to participate in the Company’s
private health scheme upon request, pursuant to the Company’s
applicable policies and procedures.
(k) Sick Leave . During the Term, the Executive shall be entitled
to paid sick leave in accordance with the terms of the Sick Pay
Scheme set forth in the Schedule to this Agreement.
(l) Entitlement to Benefits. If the Executive is entitled to participate in any
benefit plan, or program, the entitlement to participate is in
accordance with the terms and conditions of the relevant benefit,
plan or program as they may exist from time to time. The Company
may vary or withdraw such benefit, plan or program in its
absolute
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discretion. If the Company withdraws
any benefit, plan or program it will be replaced with a broadly
equivalent benefit, plan or program unless the reason for the
withdrawal is because the medical condition of the Executive, his
wife or his children has made the cost of providing the benefit,
plan or program materially more expensive.
(m) Director’s and Officer’s
Policy . The Company shall
ensure it maintains cover for the Executive under an appropriate
Director’s and Officer’s policy for directors and
officers in respect of all directorships held by the Executive by
virtue of his employment including, without limitation, the
Company, RHL Films Productions Limited, and Beechmon Limited. The
Company shall ensure that the Executive is covered for all claims
arising in respect of the term of the Executive’s
employment/directorship on a “claims made”
basis.
4. Termination .
(a) The Executive’s employment
may be terminated at any time after January 12, 2009 by not less
than six month’s previous notice in writing to that effect
being given by either the Company or the Executive. Written notice
of termination may be given in advance of January 12, 2009, but in
no event shall a termination of employment by the Company pursuant
to this Section 4(a) be effective prior to January 12, 2009. The
Company shall be entitled in its sole discretion to terminate the
Executive’s employment with immediate effect by making
payment to the Executive in lieu of notice in an amount equal to
the amount the Executive would have received under this Agreement
had the Executive’s employment continued through the later of
January 12, 2009 or the end of any subsequent six month period. For
the avoidance of doubt, such amount shall include in addition to
Annual Base Salary, the pro rata Allowance pursuant to Section 3(f)
and pension contribution pursuant to Section 3(g), and
notwithstanding such termination, the Executive will remain
eligible during such six month period to participate in any Company
health and welfare benefits to the extent otherwise eligible under
the Agreement.
(b) Notwithstanding the foregoing, the
Company may terminate this Agreement with immediate effect by
written notice at any time, if, in the reasonable opinion of the
COO, (i) the Executive fails or neglects efficiently and diligently
to discharge his duties (the “Failure” ) (ii) is guilty of any serious or material
repeated breach of the Executive’s obligations under this
Agreement, or (iii) the Executive is guilty of serious misconduct
or any other conduct which materially affects, or is likely to
materially affect the interests of the Company or any of its
subsidiaries or affiliated companies or is convicted of an
arrestable offence (other than a road traffic offence for which a
non-custodial penalty is imposed). If the Company terminates this
Agreement under Section 4 (b) (i), the Executive will be paid
either the remainder of the salary and benefits due until the third
anniversary of the Effective Date (“ Third Anniversary ”) if the termination occurs before the
Third Anniversary or six months’ salary and benefits if the
termination occurs after the Third Anniversary. It is acknowledged
by the Company that the termination made under Section 4 (b) (i)
shall not be as a result of a breach of contract by the Company. If
the Company terminates this Agreement under Section 4 (b) (ii) or
(iii) the Executive will receive neither the remainder of the
salary due until the Third
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Anniversary (other than accrued salary
and benefits to the date of termination) nor a payment lieu of
notice.
(c) The Company has the right to
suspend any or all of the Executive’s duties and powers
during any period after notice of termination has been given by the
Company or the Executive. The Company may during the whole or any
part of any notice period require the Executive not to attend work
and/or require the Executive to perform such alternative duties at
such locations as the Company may require, provided that such
alternative duties are commensurate with the Executive’s
seniority and position in the Company. For the avoidance of doubt,
there is no obligation on the Company to provide the Executive with
any work during any period of notice and the Executive will not be
entitled to work on his own account or on account of any other
person, firm or company during that period. At any time during such
period, at the Company’s request, the Executive shall
immediately resign, without claim for compensation for loss of
office, as a director of the Company or any of its
affiliates.
(d) The Executive may terminate this
Agreement with immediate effect by written notice if the Company is
in material breach of any provision of this Agreement, in which
case, the Company shall make a payment to the Executive in lieu of
notice in an amount equal to the amount the Executive would have
received under this Agreement had the Executive’s employment
continued for the Term. For the avoidance of doubt, such amount
shall include in addition to Annual Base Salary pro rata, the pro
rata Allowance pursuant to Section 3(f) and pension contribution
pursuant to Section 3(g), and notwithstanding such termination, the
Executive will remain eligible during the remainder of the Term to
participate in any Company health and welfare benefits to the
extent otherwise eligible under the Agreement.
5. Change of control
(a) If at any time during the Term
there is a Change of Control and as a direct result of the Change
of Control and within twelve months following the Change of
Control, Robert Halmi, Jr. resigns or is terminated for no cause as
CEO of RHI Entertainment, LLC (the “ Resignation ”), the Executive shall, during the period
of ten business days after the Resignation, be entitled to resign
from the Company and receive a lump sum payment equal to (i) the
remainder of the salary due until the Third Anniversary if the
Change of Control occurs before the Third Anniversary (but the lump
sum payment will not be less than six months’ salary) or (ii)
six months’ salary if the Change of Control occurs after the
Third Anniversary. The lump sum payment will be paid by the Company
within twenty business days after the end of the Term and will be
paid net of all taxes and national i
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