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Exhibit 10.8
Execution Copy
Employment Agreement
This Employment Agreement (the
“ Agreement
”), entered into on August 23,
2006 and effective as of the Effective Date (as defined in Section
2(b)), is made by and between RHI Entertainment, LLC (together with
any predecessor or successor thereto, the “
Company ”) and William J. Aliber (the “
Executive ”).
RECITALS
A. The Company desires to assure
itself of the services of the Executive by engaging the Executive
to perform services under the terms hereof.
B. The Executive desires to provide
services to the Company on the terms herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing and of the respective covenants and agreements set
forth below the parties hereto agree as follows:
1. Certain Definitions
(a) “ Annual Base Salary ” shall have the meaning set forth in
Section 3(a).
(b) “ Board ” shall mean the Board of Directors of the
Company.
(c) The Company shall have
“ Cause
” to terminate the
Executive’s employment hereunder upon: (i) the
Executive’s conviction of, or plea of nolo contendere to, any felony (or any other crime having a
material adverse effect on the Company); (ii) the Executive’s
unlawful use (including being under the influence) or possession of
illegal drugs on the Company’s premises or while performing
the Executive’s duties and responsibilities under this
Agreement; or (iii) the Executive’s commission of an act of
fraud, embezzlement, misappropriation, willful misconduct, or
breach of fiduciary duty against the Company.
(d) “ Company ” shall, except as otherwise provided by
Section 6(h), have the meaning set forth in the preamble
hereto.
(e) “ Date of Termination ” shall mean (i) if the Executive’s
employment is terminated by his death, the date of his death; (ii)
if the Executive’s employment is terminated due to his
Disability, the date determined pursuant to Section 4(a)(ii); or
(iii) if the Executive’s employment is terminated pursuant to
Section 4(a)(iii)-(vi) either the date indicated in the Notice of
Termination or the date specified by the Company pursuant to
Section 4(b), whichever is earlier.
(f) “ Disability ” shall mean the Executive’s
incapacity due to reasonably documented physical or mental illness
that shall have prevented the Executive from performing his duties
for the Company on a full-time basis for more man six
months.
(g) “ Effective Date ” shall have the meaning set forth in
Section 2(b).
(h) “ Executive ” shall have the meaning set forth in the
preamble hereto.
(i) The Executive shall have
“ Good
Reason ” to resign
his employment upon the occurrence (without the Executive’s
prior written consent) of any of the following: (i) failure of the
Company to make any payment under this Agreement; (ii) the
Company’s material breach of this Agreement; or (iii)
relocation of the Company’s principal office from the New
York metropolitan area; provided, however, that the Executive may not resign his employment
for Good Reason unless: (A) the Executive has provided the Company
with at least 30 days prior written notice of his intent to resign
for Good Reason (which notice must be provided within three months
following the occurrence of the event(s) purported to constitute
Good Reason); and (B) the Company has not remedied the alleged
violation(s) within the 30-day period.
(j) “ Notice of Termination ” shall have the meaning set forth in
Section 4(b).
(k) “ Section 409A ” shall have the meaning set forth in
Section 20.
(l) “ 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 enter the employ of the Company, for the period set
forth in Section 2(b), in the position set forth in Section 2(c),
and upon the other terms and conditions herein provided.
(b) Term of Employment . The initial term of employment under this
Agreement (the “ Initial Term ”) shall be for
the period beginning on October 1, 2006 (the “
Effective Date
”) and ending on the third
anniversary thereof, unless earlier terminated as provided in
Section 4. The employment term hereunder shall automatically be
extended for successive one-year periods (“
Extension Terms
” and, collectively with the
Initial Term, the “ Term ”) unless either party gives notice of
non-extension to the other no later than 30 days prior to the
expiration of the then-applicable Term.
(c) Position and Duties . During the Term, the Executive: (i) shall serve
as Chief Financial Officer of the RHI Entertainment Holdings, LLC,
with responsibilities, duties and authority customary for such
position, subject to direction by the Chief Executive Officer and
the Board; (ii) shall report directly to the Chief Executive
Officer; (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.
(d) Place of Performance . In connection with his employment during the
Term, the Executive shall be based at the Company’s offices
in New York, New York and Kansas City, Missouri, except for
necessary travel on the Company’s business.
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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 $750,000 per annum, which
amount shall be reviewed for increase not less frequently than
annually. The Annual Base Salary shall be payable in accordance
with the customary payroll practices of the Company.
(b) Signing Bonus . As soon as reasonably practicable following the
date of the execution of this Agreement, the Company shall pay the
Executive a one-time lump sum cash payment in the amount of
$250,000.
(c) Benefits .
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.
(d) Vacation .
During the Term, the Executive shall be entitled to not less than
four weeks paid vacation in accordance with the Company’s
applicable policies and procedures.
(e) 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 Company in accordance with the Company’s
applicable expense reimbursement policies and procedures and
consistent with past practices as applied to the
Executive.
(f) Profits Interest Award . As of the Effective Date, the Executive shall be
awarded profits interests and other rights with respect thereto of
the Company pursuant to the terms and conditions described
on Exhibit A
hereto.
(g) Discretionary Bonuses . The Board, in its sole discretion, may award the
Executive additional annual or other bonuses during the
Term.
4. Termination . The
Executive’s employment hereunder may be terminated by the
Company or the Executive, as applicable, without any breach of this
Agreement only under the following circumstances:
(a) Circumstances
(i) Death .
The Executive’s employment hereunder shall terminate upon his
death.
(ii) Disability . If the Executive incurs a Disability, the
Company may give the Executive written notice of its intention to
terminate the Executive’s employment. In that event, the
Executive’s employment with the Company shall terminate
effective on the later of the 30 th day after receipt of
such notice by the Executive or the date specified in such
notice, provided
that within the 30 days after such
receipt, the Executive shall not have returned to full-time
performance of his duties.
(iii) Termination by the Company for Cause
. The Company may terminate the
Executive’s employment for Cause.
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(iv) Termination by the Company without
Cause . The Company may
terminate the Executive’s employment without
Cause.
(v) Resignation by the Executive for Good
Reason . The Executive may
resign his employment with the Company for Good Reason.
(vi) Resignation by the Executive without Good
Reason . The Executive may
resign his employment with the Company without Good
Reason.
(b) Notice of Termination . Any termination of the Executive’s
employment by the Company or by the Executive under this Section 4
(other than termination pursuant to paragraph (a)(i)) shall be
communicated by a written notice to the other party hereto
indicating (i) the specific termination provision in this Agreement
relied upon, (ii) except with respect to a termination pursuant to
Section 4(a)(iv) or 4(a)(vi), setting forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated, and (iii) specifying a Date of Termination which, if
submitted by the Executive (or, in the case of a termination
described in Section 4(a)(ii), by the Company), shall be at least
30 days following the date of such notice (a “
Notice of Termination
”); provided, however, that a Notice of Termination delivered by the
Company pursuant to Section 4(a)(ii) shall not be required to
specify a Date of Termination, in which case the Date of
Termination shall be determined pursuant to Section 4(a)(ii);
and provided,
further, that in the event
that the Executive delivers a Notice of Termination to the Company,
the Company may, in its sole discretion, change the Date of
Termination to any date that occurs during the period beginning on
the date of Company’s receipt of such Notice of Termination
and ending on the date specified in such Notice of Termination. A
Notice of Termination submitted by the Company may provide for a
Date of Termination on the date the Executive receives the Notice
of Termination, or any date within 45 days thereafter. The failure
by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing
of Cause or Good Reason shall not waive any right of the Executive
or the Company hereunder or preclude the Executive or the Company
from asserting such fact or circumstance in enforcing the
Executive’s or the Company’s rights
hereunder.
5. Company Obligations Upon Termination of
Employment
(a) In General . Upon a termination of the Executive’s
employment for any reason, the Executive (or the Executive’s
estate) shall be entitled to receive the sum of the
Executive’s Annual Base Salary through the Date of
Termination not theretofore paid; any expenses owed to the
Executive under Section 3(e); any accrued vacation pay owed to the
Executive pursuant to Section 3(d); and any
amount arising from the Executive’s participation in, or
benefits under, any employee benefit plans, programs or
arrangements under Section 3(c), which amounts shall be payable in
accordance with the terms and conditions of such employee benefit
plans, programs or arrangements.
(b) Termination without Cause or due to Resignation
for Good Reason . If the
Executive’s employment shall be terminated by the Company
without Cause or by the Executive for Good Reason (but not by
reason of the Executive’s death, Disability, termination by
the
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Company for Cause or termination by
the Executive without Good Reason), then, in addition to the
payments described in Section 5(a), the Company shall:
(i) Continue to pay to the Executive,
in accordance with the Company’s regular payroll practice
following the Date of Termination, the Executive’s Annual
Base Salary until the earlier of (A) the second anniversary of the
Date of Termination or (B) the date the Executive first violates
any of the restrictive covenants set forth in Section 6;
and
(ii) Continue coverage for the
Executive and any eligible dependents under all Company group
health benefit plans in which the Executive and any dependents were
entitled to participate immediately prior to the Date of
Termination, to the extent permitted thereunder and subject to any
cost-sharing or similar provisions in effect thereunder as of the
Date of Termination, until earlier of (A) the second anniversary of
the Date of Termination or (B) the date the Executive first
violates any of the restrictive covenants set forth in Section 6.
As of the date that the Executive ceases to receive coverage under
any group health plan pursuant to this Section 5(b)(ii), the
Executive shall be eligible to elect to receive “COBRA”
continuation coverage to the extent permitted by Section 601
et seq, of the Executive Retirement Income Security Act of
1974, as amended. If such b
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