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EXHIBIT 10.43
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of the 31st day of January 2000, between INTERVISUAL BOOKS, INC., a California
corporation (the "Company"), located at 0000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxxx, XX
00000 and XXXXXX XXXXXX XXXXXXXX (the "Executive").
In consideration of the promises and covenants set forth below, the parties
hereto agree as follows:
1. Employment.
The Company hereby agrees to employ Executive, and Executive
hereby agrees to accept such employment with the Company, on the terms and
conditions set forth herein. This agreement replaces and supersedes any and all
previous employment agreements between the Executive and the Company and all
prior employment agreements are hereby terminated.
2. Term.
The employment of Executive by the Company as provided in
this Agreement will commence on February 1, 2000 (the "Start Date"), and end on
January 31, 2002, unless sooner terminated as hereinafter provided. As of the
effective date, The Company and Executive shall attempt to negotiate in good
faith between August 1, 2001, and January 31, 2002, the terms of employment of
Executive by the Company for a period following the expiration of this
Agreement.
3. Position and Duties.
Executive shall serve as President and Chief Operating
Officer of the Company, or such other position or positions as may be agreed
upon by Executive and the Board of Directors. Executive shall at all times
perform his duties and obligations faithfully and diligently and shall devote
all his business time and best efforts exclusively to the business of the
Company. Executive shall at all times industriously perform his duties under the
supervision of and report to the Board of Directors, the Chairman of the Board
and the Chief Executive Officer of the Company and shall accept and comply with
all directions from and all policies established from time to time by the
Chairman of the Board, Board of Directors and Chief Executive Officer of the
Company. Executive's primary duties shall include,
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without limitation, responsibility for the day-to-day management the Company and
such other duties as may from time to time be prescribed by the Board of
Directors and the Chief Executive Officer of the Company.
Executive shall promote the trade and business of the Company
to the best of his ability and shall not willingly do anything to the prejudice
of the Company's trade or business. Executive shall not at any time
intentionally make any untrue statement regarding the Company and shall not
after the termination of employment by the Company represent himself as being
employed or connected with the Company. Executive shall not directly or
indirectly render any services of a business, commercial or professional nature
to any other person, entity or organization, whether for compensation or
otherwise, without the prior written consent of the Company's Board of
Directors. Executive shall adhere to all of the Company's policies and
procedures applicable to Company's employees generally.
4. Place of Performance.
In connection with Executive's employment by the Company and
except for required travel on Company business, Executive shall be based at the
principal executive offices of the Company or such other place or places but no
further than 25 miles from the Company's current location, as the interests,
needs, business and opportunities of the Company require or deem advisable and
as reasonably agreed by Executive.
5. Compensation and Related Matters.
(a) Salary. During the term of Executive's employment
hereunder, the Company shall pay to Executive a salary of $275,000 per annum.
Such salary shall be paid in equal semi-monthly installments (or such shorter
intervals as the Company may elect) and shall accrue from day to day. Such
salary shall be subject to any withholding or taxes the Company is required by
law to make or pay.
(b) Vacations. During the term of Executive's employment
hereunder, Executive shall be entitled to four weeks of vacation in each
calendar year, and to compensation with respect to earned but unused vacation
days determined in accordance with the Company's vacation policy. Executive's
vacation shall be scheduled by mutual agreement between the Executive and the
Company's Chairman of the Board or the Chief Executive Officer.
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(c) Expenses. During the term of Executive's employment
hereunder, Executive shall be entitled to receive reimbursement for all
reasonable out-of-pocket travel and other expenses (excluding ordinary commuting
expenses) incurred by Executive in performing Executive's services hereunder,
provided that:
i) Each such expenditure is of a nature qualifying it as a
proper business expenditure of the Company and is approved by the
Company; and
ii) Executive furnishes to the Company adequate records
and other documentary evidence required by the Company for the
substantiation of such expenditures as proper business expenditures of
the Company, and Executive otherwise complies with general Company
policies with respect to expense reimbursement.
(d) Stock Options. Executive acknowledges that, as additional
compensation for Executive's employment hereunder, Executive was granted under a
pervious agreement two non-statutory stock options to acquire 200,000 and
100,000 shares, respectively, of the Company's common stock, pursuant to two
previously signed Stock Option Agreements. The terms of such stock options shall
be governed by the provisions of the Stock Option Agreements or amendments
thereto(including Executive's right to exercise such options upon termination.)
(e) Medical Insurance. During the term of Executive's
employment hereunder, Executive will be entitled to participate in any medical
insurance plans from time to time generally applicable to full-time employees of
the Company during the term of Executive's employment hereunder.
(f) 401(k). During the term of Executive's employment
hereunder, Executive will be entitled to participate in the Company's 401(k)
plan, or other similar plans established by the Company, generally applicable to
full-time employees of the Company.
(g) Life Insurance. During the term of Executive's employment
hereunder, the Company shall pay the premiums, in an amount not to exceed
$10,000 per annum, for term life insurance on the life of Executive. The
beneficiary or beneficiaries under such policy shall be designated by Executive,
and the death benefit payable under the policy shall equal $1,000,0000.
Executive shall pay the
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insurance premiums directly. Upon submission of proof of payment of the
insurance premiums by Executive, the Company agrees to pay to Executive a bonus
(limited to an annual maximum of $10,000) which shall equal the amount of the
insurance premiums paid and the tax consequences of the bonus. The parties agree
that the bonus shall be calculated by dividing the amount of the premiums paid
by the Executive by .67.
(h) Automobile Allowance. During Executive's employment
hereunder, the Company shall:
a) Pay Executive an automobile allowance in an amount equal
to Executive's monthly automobile lease payment, but not to exceed $600
per month, on or about the last day of each month, provided that
Executive maintains all necessary records as required by the Company and
the Internal Revenue Service;
b) Reimburse Executive, at standard rates and in accordance
with the Company's policies, for repair and maintenance expenses
(including gasoline and oil) regarding such automobile incurred by
Executive in performance of his responsibilities hereunder, provided
that Executive furnishes to the Company adequate records and other
documentary evidence required for the substantiation of such payments as
proper business expenses of the Company and not as deductible
compensation to Executive; and
c) Procure and maintain insurance coverage on such
automobile, provided the Company shall not pay any excess or increased
costs resulting from Executive's driving record.
Executive acknowledges that the personal use portion of such automobile
allowance will be accounted for by the Company as income paid to Executive,
based on the records maintained by Executive and standard IRS tables. Executive
shall conform to the Company's policies regarding the use of such automobile.
6. Termination.
(a) Cause. The Company may at any time upon written notice to
Executive terminate this Agreement and Executive's employment hereunder for
Cause pursuant to the provisions of this Section 6(a). Executive shall be given
written notice by the Board of Directors of its intention to
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terminate Executive for Cause, which notice shall state the acts or omissions
that constitute grounds on which the proposed termination for Cause is based. In
the Board of Director's reasonable business judgment, the Board shall permit
Executive an opportunity to address the Board or a committee of one or more
directors regarding the grounds on which the proposed termination for Cause is
based. In every case, the good faith judgment of the Board of Directors shall be
conclusive as to whether Cause for termination exists.
For purposes of this Agreement, the Company shall have
"Cause" to terminate Executive's employment hereunder upon:
(i) The breach by Executive of any material provision or
covenant of this Agreement, and if such breach is susceptible to cure by
Executive, the failure to effect such cure within twenty (20) days after written
notice of such breach is given to the Executive; or
(ii) The willful failure or neglect of Executive to perform
Executive's duties hereunder or the gross negligence of Executive in the
performance of such duties, and if such failure or gross negligence is
susceptible to cure by Executive, the failure to effect such cure by Executive
within twenty (20) days after written notice of such failure or gross negligence
is given to Executive; or
(iii) Except as permitted hereunder, Executive's unexplained and
regular absences from the Company; or
(iv) Executive's use of alcohol or illegal drugs, which use
interferes with the performance of Executive's duties hereunder; or
(v) Executive's indictment for a crime or for theft,
embezzlement, fraud, misappropriation of funds or any other alleged act of
dishonesty by Executive or Executive's indictment for any other felony or other
crime involving moral turpitude; or
(vi) Executive's violation of any law or ethical rule relating
to Executive's employment by the Company, including, but not limited to a
violation by Executive of Executive's fiduciary duty of loyalty to the Company
which Executive owes to the Company as an officer and/or director.
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For purposes of this Agreement, an action shall be considered
"willful" if it is done intentionally, purposely or knowingly.
(b) Death. This Agreement and Executive's employment
hereunder shall terminate automatically upon Executive's death.
(c) Incapacity. If Executive becomes incapacitated during
Executive's employment hereunder, this Agreement and Executive's employment
hereunder shall terminate on the date of determination by the Board of Directors
of the Company of such incapacity. As used herein, "incapacity" shall mean any
physical or mental illness or disability, or both, which renders Executive
incapable of performing substantially all of his managerial and executive
services hereunder for 120 days or more in the aggregate during any calendar
year, and which at any time after such 120 days the Company's Board of Directors
shall determine continues to render Executive incapable of performing
substantially all of his managerial and executive services hereunder. Any
determination made in good faith by the Company's Board of Directors shall be
conclusive and binding upon Executive.
(d) Without Cause. The Company shall be entitled to terminate
this Agreement and Executive's employment hereunder at any time without Cause.
(e) Resignation. Executive shall be entitled to terminate
this Agreement and Executive's employment hereunder at any time on thirty days
prior written notice delivered by Executive to the Company.
(f) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive (other than termination pursuant to
subsection 6(b) above) shall be communicated by a written Notice of Termination
to the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth the circumstances which
provide a basis for termination of Executive's employment under the provisions
so indicated, and (iii) if the termination date is other than the date of
receipt of such notice, specifies the termination date of this Agreement (which
date shall not be more than 30 days after the giving of such notice).
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(g) Date of Termination. "Date of Termination" shall mean the
date of death, the date of receipt of the Notice of Termination or the date
specified therein, as the case may be.
(h) Arbitration Rights. Nothing contained in this Section 6
shall contravene the Company and Executive's right and obligation to arbitrate
disputes as provided for in Section 11 of this Agreement.
7. Obligations of the Company Upon Termination.
(a) Termination for Cause. If this Agreement is terminated
pursuant to Section 6(a), the Company shall have no further obligation or
liability to Executive, except that Executive shall be entitled to receive only
(i) the portion of Executive's salary as set forth in Section 5(a) which has
been earned up to the Date of Termination, (ii) compensation for any accrued and
unused vacation up to the Date of Termination, and (iii) reimbursement, subject
to the requirements set forth in Section 5(c), for business expenses incurred up
to the Date of Termination (collectively, the "Minimum Payments").
(b) Termination for Death or Disability. If this Agreement is
terminated pursuant to Sections 6(b) or 6(c), the Company shall have no further
obligation or liability to Executive, except that Executive shall be entitled to
receive only the Minimum Payments.
(c) Termination Without Cause. If this Agreement is
terminated by the Company pursuant to Section 6(d), the Company shall have no
further obligation or liability to Executive, except that Executive shall be
entitled to receive only (i) the Minimum Payments, and (ii) an amount equal to
nine months of Executive's salary. Any amounts owed to Executive pursuant to
subsection (ii) above shall be paid at the rate of $22,917.00 per month
commencing one month from the Date of Termination until paid in full.
(d) Resignation. If this Agreement is terminated by Executive
pursuant to Section 6(e), the Company shall have no further obligation or
liability to Executive, except that Executive shall be entitled to receive only
the Minimum Payments.
(e) Exclusivity of Payments. Upon termination of Executive's
employment hereunder, Executive shall not be entitled to any severance payments
or severance benefits
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from the Company or any payments by the Company on account of any claim for
wrongful termination, including but not limited to claims under any federal,
state or local human and civil rights or labor laws, other than the payments
provided in this Section 7, except for any benefits which may be due to
Executive in the normal course under any employee benefit plan of the Company
which provides for benefits after termination of employment. Executive agrees
that any right to receive payments hereunder upon termination of employment will
cease if Executive breaches any provision of Sections 8 or 9 below.
8. Proprietary Information.
(a) Definition. Executive hereby acknowledges that Executive
possesses and may make use of, acquire, create, develop or add to certain
confidential and/or proprietary information regarding the Company and its
business (whether in existence prior to, as of or after the date hereof,
collectively, "Proprietary Information"), which Proprietary Information shall
include, without limitation, all of the following materials and information
(whether or not reduced to writing and whether or not patentable or protected by
copyright): trade secrets, inventions, processes, formulae, programs, technical
data, "know-how," procedures, manuals, confidential reports and communications,
marketing methods, product sales or cost information, new product ideas or
improvements, new packaging ideas or improvements, research and development
programs, identities or lists of suppliers, vendors or customers, financial
information and financial projections of the Company of any nature whatsoever,
or any other confidential or proprietary information relating to the Company
and/or its business. The term "Proprietary Information" does not include any
information that (i) at the time of disclosure is generally available to and
known by the public (other than as a result of its disclosure by Executive),
(ii) was available to Executive prior to disclosure by the Company, provided
that the person who was the source of such information was not known by
Executive to be subject to an obligation of confidentiality to the Company, or
(iii) becomes available to Executive on a non-confidential basis from a person
other than the Company or its representatives, provided that the source of such
information was not known by Executive to be subject to an obligation of
confidentiality to the Company.
(b) Nondisclosure. During the term of this Agreement and
thereafter, Executive will not, without the
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prior express written consent of the Board of Directors, disclose or make any
use of any Proprietary Information except as may be required in the course of
the performance of Executive's services under this Agreement.
(c) Ownership. Executive acknowledges and agrees that all
right, title and interest in and to any Proprietary Information shall be and
shall remain the exclusive property of the Company. Without limiting the
foregoing, Executive shall assign to the Company any and all right, title or
interest which Executive may have in all Proprietary Information made, developed
or conceived of in whole or in part by Executive during his employment
hereunder.
(d) Agreement Not to Solicit Customers. To protect the
Proprietary Information and trade secrets of the Company, Executive agrees,
during the term of this Agreement and for a period of one year after termination
of this Agreement, not to, directly or indirectly, either on Executive's own
behalf or on behalf of any other person or entity, attempt to intentionally
persuade any customer of the Company to cease to do business or to reduce the
amount of business which any customer of the Company has customarily done or
contemplates doing with the Company. Executive agrees that the covenants
contained in this paragraph are reasonable and desirable.
(e) Agreement Not to Solicit Employees. To protect the
Proprietary Information and trade secrets of the Company, Executive agrees,
during the term of this Agreement and for a period of one year after termination
of this Agreement, not to, directly or indirectly, either on Executive's own
behalf or on behalf of any other person or entity, solicit or employ any person
who is an employee of the Company. Executive agrees that the covenants contained
in this paragraph are reasonable and desirable.
(f) Proprietary Information Agreement. By execution of this
Agreement, Executive agrees and acknowledges that he shall be bound by all of
the terms of the Company's Proprietary Information Agreement attached hereto as
Exhibit C. Executive has reviewed such Proprietary Information Agreement and
agrees that any breach by Executive of any term or covenant contained therein
shall constitute a breach by Executive of this Agreement.
9. Protection of Property.
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All records, files, manuals, documents, specifications, lists
of customers, banks, forms, materials, supplies, computer programs and other
materials furnished to the Executive by the Company, used on its behalf or
generated or obtained during the course of the performance of the Executive's
services hereunder, shall be and remain the property of the Company. Executive
shall be a holder thereof for the sole use and benefit of the Company, and shall
safely keep and preserve such property, except as consumed in the normal
business operations of the Company. Executive acknowledges that this property is
not readily accessible to the Company's competitors. Upon termination of
Executive's employment with the Company for any reason, Executive shall
immediately deliver to the Company, or its authorized representative, all such
property, including all copies, remaining in Executive's possession or control.
10. Specific Performance.
In the event of the breach by Executive of any of the
provisions of Sections 8 or 9, the Company, in addition and supplementary to all
other rights and remedies existing in its favor and notwithstanding the
provisions of Section 11 hereof, may apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce or prevent any violations of the provisions thereof.
11. Arbitration.
The parties hereto acknowledge that it is in their best
interests to facilitate the informal resolution of any disputes arising out of
this Agreement or otherwise by mutual cooperation and without resorting to
litigation. As a result, if any party has a dispute arising hereunder or
otherwise, including but not limited to any claim for breach of any contract or
covenant (express or implied), tort claims, claims for discrimination
(including, but not limited to, race, sex, religion, national origin, age,
handicap or disability), claims for compensation or benefits (except where a
benefit plan or pension plan or insurance policy specifies a different claims
procedure) and claims for violation of any federal, state or other governmental
law, statute, regulation or ordinance (except for claims involving workers'
compensation benefits), and the parties are unable to reach agreement among
themselves, then a settlement conference must be held within thirty (30) days
upon receipt of a notice by the complaining party describing in detail the
complaint and setting forth a proposed
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solution to the complaint. The settlement conference will be held in any Los
Angeles office of the Judicial Arbitration and Mediation Services, Inc.
("JAMS"). The complaining party must contact JAMS to schedule the conference and
the parties must agree on a retired judge from the JAMS panel. If the parties
are unable to agree upon such a retired judge, JAMS shall provide a list of
three available judges and each party may strike one judge. The remaining judge
will serve as the mediator at the settlement conference.
If the dispute is not settled by the above-described format,
the parties agree to submit the dispute to JAMS for binding arbitration. A
three-judge panel will be selected to arbitrate the dispute. JAMS will provide
the names of five potential arbitrators, giving each party the opportunity to
strike one name. The remaining three arbitrators will serve as the arbitration
panel. The parties agree that the arbitration must be initiated within six
months after the claimed breach occurred and that failure to initiate
arbitration within the six-month period constitutes an absolute bar from the
institution of any new proceedings. Arbitration may be initiated by the
aggrieved party by sending written notice of an intent to arbitrate by
registered certified mail to all parties and to JAMS. The notice must contain a
description of the dispute, the amount involved and the remedies sought. If and
when a demand for arbitration is made by either party, the parties agree to
execute a Submission Agreement provided by JAMS, setting forth the rights of the
parties if the case is arbitrated and rules and procedures to be followed at the
arbitration hearing.
Nothing contained in this Section 11 shall prevent the
Company from seeking and obtaining equitable relief in a court to enforce any of
its rights under Sections 8 or 9 hereof.
12. Additional Covenants, Representations and Warranties of
Executive.
(a) Executive hereby represents and warrants that the
execution, delivery and performance of this Agreement by Executive does not (i)
breach, or result in a default under, any agreement to which Executive is a
party or by which Executive is bound, (ii) breach or otherwise violate any
order, writ, judgment, order or decree binding upon Executive, or (iii) violate
any applicable law or regulation.
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(b) Upon Executive's cessation of employment with the Company
for any reason whatsoever, Executive shall thereupon be deemed to have resigned
from the Board of Directors of the Company, every parent or subsidiary of the
Company on which he is then serving as a director, and any other company on
which Executive is then serving as a director at the request of the Company, in
each case effective as of the date of cessation of employment.
13. Representation by Counsel.
Executive acknowledges that he has the option to be been
represented by legal counsel in connection with this Agreement.
14. Successors.
This Agreement is personal to the Executive and is not
assignable by the Executive otherwise than by will or the laws of descent and
distribution without the prior written consent of the Company's Board of
Directors. This Agreement shall inure the benefit of and be enforceable by
Executive's legal representatives. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
15. Notice.
For purposes of this Agreement, notices, demands and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Executive: Executive's address as on file with the
Company
If to Company: Intervisual Books, Inc.
0000 Xxxxx Xxxx Xxxx., #0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt thereof.
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16. Entire Agreement.
This Agreement, together with the documents referenced
herein, contains the entire agreement of the parties hereto with respect to the
subject matter hereof. It supersedes any and all other agreements, either oral
or in writing, between the parties hereto with respect to the employment of
Employee by the Company. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, written, oral or
otherwise, have been made by any party, or anyone acting on behalf of any party,
which are not embodied herein, and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding.
17. Amendment; Waiver; Governing Law.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in a
writing signed by Executive and by such officer of the Company as may be
specifically designated by the Company's Board of Directors. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of California.
18. Validity.
The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
19. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
20. Attorneys' Fees.
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In the event of any dispute arising out of the subject matter
of this Agreement, the prevailing party shall be entitled to recover from the
nonprevailing party its costs and expenses (including reasonable attorneys'
fees) incurred in arbitrating or otherwise resolving such dispute.
21. Withholding of Taxes; Tax Reporting.
The Company may withhold from any amounts payable under this
Agreement all such Federal, state, city and other taxes, and may file with
appropriate governmental authorities all such information, returns or other
reports with respect to the tax consequences of any amounts payable under this
Agreement, as may, in its reasonable judgment, be required by law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INTERVISUAL BOOKS, INC.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Chairman of the Board
EXECUTIVE
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx Xxxxxx Xxxxxxxx
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