Exhibit 10.1
EXECUTIVE SERVICE
AGREEMENT
This Agreement is made on
October 1, 2005
Between
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(1)
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Blockbuster
Entertainment Limited (“Blockbuster”), a company
incorporated in England and Wales under registration number
2111417, the registered office of which is Harefield Place, The
Drive, Uxbridge, Middlesex, UB10 8AQ, a subsidiary of Blockbuster
Inc.; and
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(2)
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Christopher
Wyatt (“you”).
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In this Agreement the words set out
below shall have the following meanings:
The “Board” means the
board of directors from time to time of Blockbuster or a duly
authorised committee of it;
The “Group” means Blockbuster, any
subsidiary of Blockbuster, any holding company of Blockbuster, any
subsidiary of such holding company and any company designated by
the Board as an associated company from time to time.
1. Appointment (a) Blockbuster
will employ you, and you will [continue to] serve Blockbuster as
Executive Vice President and President International
(b) This Agreement will be effective
as of October 1 st 2005 and will continue thereafter
until terminated by either party in accordance with Paragraph 9
below. Your continuous period of employment with Blockbuster
commenced on 15 July 1996.
2. Duties (a) You agree
to devote your entire business time, attention and energies to the
business of Blockbuster and the Group during your employment. You
will be Executive Vice President and President, International of
Blockbuster, and you agree to perform all duties reasonable and
consistent with that (or such comparable office) or other
individual designated by the Chief Executive Officer (the
“CEO”) of Blockbuster Inc. may assign to you from time
to time.
(b) Your normal place of work will
be at Harefield Place. However, you will attend and work at any
premises of the Blockbuster Group company, and travel and work both
in the United Kingdom and abroad, as may be required for the proper
fulfilment of your duties.
(c) You will, whenever so required
for the proper fulfilment of your duties, work without further
remuneration in excess of normal hours of work of Blockbuster which
are [9.00am to 5.30pm Monday to Friday]. You agree that for the
purposes of the Working Time Regulations 1988 (and any amendment or
re-enactment thereof) any legislative provisions imposing a maximum
number of average weekly hours shall not apply to your employment.
The Executive may withdraw consent by giving Blockbuster not less
than three month’s notice in writing.
3. Compensation.
(a) Salary. For all the
services rendered by you in any capacity under this Agreement,
Blockbuster agrees to pay you a basic salary at the rate of
£346,000 per annum accruing from day to day
(“Salary”), less deductions for tax and National
Insurance, which is payable by equal monthly instalments in arrears
on or before the 23 rd day of each calendar month, in
accordance with Blockbuster’s payroll practices as they may
exist from time to time and includes any directors fees payable in
relation to your acting as officer of Blockbuster or any affiliated
company.
(b) Bonus Compensation. You
also will receive bonus compensation (“Bonus”) in
accordance with Blockbuster’s Short-Term Incentive Plan or,
if applicable, Blockbuster’s Senior Executive Short-Term
Incentive Plan, each as may be amended from time to time (either of
such plans, as applicable, to be hereinafter referred to as the
“STIP”) and as follows:
(i) Your target bonus (“Target
Bonus”) for each calendar year will be 60% of your Salary on
November 1 st of the calendar year; provided
that, for any years in which you are a participant in
Blockbuster’s Senior Executive Short-Term Incentive Plan, for
purposes of this Section 3(b)(i), your Target Bonus will be
based on your Salary as defined in such plan. Your Bonus may be
prorated for any portion of the calendar year that you were
employed under this Agreement.
(ii) Your Bonus for any calendar
year will be payable, less applicable deductions and withholding
taxes, by the end of the first quarter of the following
year.
(a)You will be entitled, with full
remuneration, to the usual public and statutory holidays and a
further 25 working days’ holiday in each full holiday year,
to be taken at such times as will be agreed between you and the
Board or, failing agreement, as the Board may determine. Holidays
must be requested as far in advance as is practicable and in any
event not less than one week prior to the start of the
holiday.
(b)Your holiday entitlement will be
deemed to accrue from day to day and may not be carried over from
one holiday year to the next. No payment will be made to you in
lieu of holiday accrued but not taken by you save on the
termination of your employment. However, where you are dismissed
pursuant to Clause 9 any such payment will be limited to that
required by law. If on termination of your employment you have
exceeded your accrued holiday entitlement, the appropriate
deduction will be made from your final salary payment.
(c) Blockbuster’s holiday year
runs fro 1 April to 31 March.
(a) You are eligible to participate
in such medical, life insurance, permanent health insurance,
long-term incentive and other plans as Blockbuster may have or
establish from time to time and in which you would be entitled to
participate under the terms of the plan. This provision, however,
will not be construed to either require Blockbuster to establish
any welfare, compensation or long-term incentive plans, or to
prevent the modification or termination of any plan once
established, and no action or inaction with respect to any plan
will affect this Agreement. It is agreed that Blockbuster will not
be liable to you for any default, act, error, omission or otherwise
of any third party, insurer or provider of any of these
plans.
(b) You are entitled to be a member
of Blockbuster’s pension scheme subject to the rules and
regulations of the scheme from time to time. Blockbuster will make
a contribution of up to 15% of your Salary per year into the
scheme. Blockbuster reserves the right to amend or substitute the
terms, or wholly replace the scheme. There is not a contracting out
certificate in respect of the pension scheme.
(c) If you are prevented by illness
or accident from working you must provide a statement of your
disability signed by a medical practitioner covering absence after
the seventh day. Blockbuster will pay your salary in full for five
days per annum and additionally at the discretion of the Board.
Such remuneration will be inclusive of statutory sick
pay.
(d) Blockbuster provides access to
permanent health insurance (PHI) which is operated by a third party
insurer. Information regarding this scheme is available from Human
Resources. For the periods that you receive compensation and
benefits under the PHI scheme, such compensation and benefits and
the bonus compensation provided by the PHI are in lieu of Salary
and Bonus under paragraphs 3(a) and (b). It is agreed that
Blockbuster will not be liable to you for any default, act, error
or omission or otherwise of the insurer or provider of the PHI
scheme.
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6.
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Business
Expenses; Car Allowance and Insurance.
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(a) During your employment under
this Agreement, Blockbuster will reimburse you for such reasonable
travel and other expenses incurred in the performance of your
duties consistent with Blockbuster’s then applicable expense
reimbursement policies for Blockbuster executives at comparable
position levels.
(b) Subject to your holding a
current full driving licence, Blockbuster will provide you with a
motorcar of a make, model and specification commensurate with your
status (in the reasonable opinion of Blockbuster) for your sole
business use, together with appropriate insurance and a fuel card
and in accordance with Blockbuster’s policies, as may be
amended from time to time. On the termination of your employment,
you shall have no entitlement to compensation for loss of use of
the motorcar and related insurance and fuel card, and shall return
the motorcar forthwith in good condition, together with all keys,
documents, fuel card, mobile phone and other property relating to
it, to Blockbuster or as directed by Blockbuster.
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7.
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Non-Competition, Confidential Information,
Etc.
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(a) Non-Competition. You
agree that your employment with Blockbuster is on an exclusive
basis and that, while you are employed by Blockbuster, you will not
engage in any other business activity which is in conflict with
your duties and obligations (including your commitment of time)
under this Agreement. You agree that after the date of termination
of your employment (“the Termination Date”) you will
not, without the prior written approval of Blockbuster, directly or
indirectly as an owner, partner, stockholder, officer, employee,
director, agent of or consultant whether for your own benefit or
that of others during the Non-Compete Period (as defined
below):
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(i)
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engage in or
participate in any Blockbuster Competitor;
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(ii)
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render or
attempt to render any Restricted Services within a Restricted Area
for any Blockbuster Competitor;
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(iii)
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solicit, entice
or induce any Key Employee to become employed or engaged by any
Blockbuster Competitor or by you or by any other person, firm,
company or association.
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You acknowledge that the restrictions in this
Clause are independent and severable and that they are fair and
necessary to protect the legitimate business interests of
Blockbuster. You undertake to inform any prospective new employer
of these restrictions.
(1) Unless otherwise set forth
herein, the “Non-Compete Period” is the period of six
(6) months immediately following the Termination
Date.
(2) A “Blockbuster
Competitor” is any business entity which at the Termination
Date engages in the acquisition, aggregation, or delivery of audio
or video entertainment, including but not limited to the rental,
purchase, trading or sale of video, DVD, or other movie product,
equipment, or video games, either (i) in electronic, digital,
or internet commerce, or (ii) within a Restricted Area;
provided that such acquisition, aggregation, or delivery of audio
or video entertainment constituted at least twenty percent
(20%) of the business entity’s total revenue in the
twelve (12) months preceding the termination date or in the
business entity’s most recent fiscal year.
(3) A “Restricted Area”
is the United Kingdom and any country where in the 12 months
preceding the Termination Date you have performed your duties for
Blockbuster and where Blockbuster has its operations (or is engaged
in real estate site selection or has taken other steps toward the
commencement of operations), either alone or in association with
another entity
(4) “Restricted
Services” means services of a type provided by Blockbuster at
any time during the 12 months preceding the Termination Date
(specifically including the acquisition, aggregation, or delivery
of audio or video entertainment which includes but is not limited
to the rental, purchase, trading or sale of video, DVD, or other
movie product, equipment, or video games) and in connection with
which you have been materially involved in that period;
(5) “Key Employee” means
any person who at any time during the 12 months immediately
preceding the Termination Date was and remains an employee of
Blockbuster in the following capacities: managerial, marketing, or
director and with whom you had direct dealings in the 12 months
prior to the Termination Date.
You agree that this non-compete covenant is
ancillary to an otherwise enforceable agreement, including but not
limited to the confidentiality covenant and the payment provisions
in Paragraph 3.
(b) Confidential Information
. You agree that, during your employment and at any time
thereafter, (i) you will not (a) use for any purpose
other than the duly authorized business of Blockbuster conducted in
the course of your employment at Blockbuster or, (b) disclose
to any third party, any business information, technological
information, intellectual property, trade secrets and other
information belonging to Blockbuster or any of its affiliated
companies or relating to Blockbuster’s business, technology,
or customers (“Confidential Information”), including,
without limitation, any written (including in any electronic form)
or oral communication incorporating Confidential Information in any
way; and (ii) you will comply with any and all confidentiality
obligations of Blockbuster to a third party, whether arising under
a written agreement or otherwise. Information will not be deemed
Confidential Information which (x) is or becomes generally
available to the public other than as a result of a disclosure by
you or at your direction or by any other person who directly or
indirectly receives such information from you, or (y) is or
becomes available to you on a non-confidential basis from a source
which is entitled to disclose it to you.
(c) Intellectual Property
Rights.
(i) You will promptly disclose and
deliver to the Company for the exclusive use and benefit of the
Group full details of any Inventions upon the making, devising or
discovering of the same during your employment, irrespective of
whether they were so made, devised or discovered during normal
working hours or using the facilities of the Company. You will,
irrespective of the termination of the your employment, give all
information and data in your possession as to the exact mode of
working, producing and using the same and will also at the expense
of the Company give all such explanations, demonstrations and
instructions to the Company as the Board may deem appropriate to
enable the full and effectual working, production or use of the
same.
(ii) You will, without additional
payment to you (except to the extent provided in Section 40,
Patents Act 1977 or any similar provision of applicable law),
whether or not during the continuance of your employment, at the
expense of the Company, promptly execute and do all acts, matters,
documents and things necessary to enable the Company or its nominee
to apply for and obtain any or all applicable Intellectual Property
Rights in any or all countries relating to any Inventions or other
materials produced by you during the employment.
(iii) You:
(a) will do anything necessary to
confirm vesting of title to any or all applicable Intellectual
Property Rights (except only to the extent that such Intellectual
Property Rights fail to vest in the Company) in any or all
countries relating to any Inventions or other materials produced by
you during your employment in the Company or its nominee
absolutely;
(b) with full title
guarantee