Exhibit 10.26
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EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made and entered into this First
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day of December, 1999, by and between Xxxxxxxx Studio Equipment Group, a
California corporation (the "Company"), and Xxxx Xxxxxx, an individual
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("Employee").
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W I T N E S S E T H:
WHEREAS, the Company desires to be assured of the association and services
of Employee; and
WHEREAS, Employee is willing and desires to be employed by the Company, and
the Company is willing to employ Employee, upon the terms, covenants and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. Employment. The Company hereby employs Employee in the initial capacities
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of President and Chief Financial Officer of the Company, reporting to the
Company's Chairman of the Board (the "Chairman").
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2. Location and Travel. Employee shall perform his duties for the Company from
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the Company's facilities located in Burbank, California. Employee shall travel
as is required or appropriate to carry out his duties.
3. Term. The period of employment hereunder shall be from December 1, 1999
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through November 30, 2000, subject to termination as hereinafter provided (the
"Term").
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4. Compensation.
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(a) For all services rendered by Employee under this Agreement, the Company
shall pay Employee a base salary of One Hundred Fifty Thousand Dollars
($150,000.00) per annum ("Base Salary"), payable weekly in equal
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installments. Any increase to the Base Salary shall be pursuant to the decision
of the Company's Board of Directors.
(b) In addition to the Base Salary, Employee shall be paid such bonus as is
provided for in Section 5 below.
(c) Employee shall be reimbursed for all reasonable "out-of-pocket"
business expenses for business travel and business entertainment incurred in
connection with the performance of his duties under this Agreement. Such
reimbursement shall be upon periodic presentation to the Company of valid
receipts and other appropriate documentation and upon approval by the Company of
such receipts and documentation; provided, however, any
individual expense greater than One Thousand Dollars ($1,000) shall not be
incurred without prior written approval of the Chairman.
(d) Employee shall be entitled to a car allowance in the amount of One
Thousand Five Hundred Dollars ($1,500.00) per month.
(e) Employee shall also be entitled to such other employee benefits (such
as vacation, and medical, disability and life insurance coverage, but excluding
car allowance) as the Company may generally make available to its executive
employees.
(f) Employee shall be entitled to options to purchase two hundred thousand
(200,000) restricted shares of the Company's common stock, at an exercise price
equal to the mean between the high "bid" and low "ask" prices for shares of the
Company's Common Stock on December 1, 1999, in the over-the-counter market, as
reported by the National Association of Securities Dealers Automated Quotation
System, and otherwise in accordance with the Stock Option Agreement dated the
same date herewith between Employee and the Company. Employee shall be entitled
to purchase an additional one hundred fifty thousand (150,000) restricted shares
of the Company's common stock on the same terms and conditions as set forth in
said Stock Option Agreement upon the surrender to the Company by ING Equity
Partners, L.P. I of one hundred fifty thousand (150,000) of its warrants to
purchase common stock of the Company represented by that certain Common Stock
Purchase Warrant, dated July 27, 1995, as amended.
5. Performance Bonus.
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(a) In addition to the Base Salary, the Company shall pay Employee a bonus
which may be up to forty percent (40%) of Employee's then applicable Base Salary
if the Company achieves specific performance goals for the applicable fiscal
year. Such goals shall be determined for each fiscal year by the Compensation
Committee of the Company's Board of Directors.
(b) Notwithstanding anything contained herein to the contrary, Employee
shall only be entitled to receive the bonus for a fiscal year if he remains
employed by the Company, and continues to render services on a full-time basis
to the Company, through the third month following the end of such fiscal year.
Payment of any such bonus earned by Employee shall be made by no later than the
one hundred eightieth (180th) day following the end of such fiscal year.
6. Scope of Duties.
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(a) Until otherwise instructed by the Chairman or the Board of Directors of
the Company, Employee shall have responsibility for the Company's business, day
to day operations, and financing and accounting matters.
(b) Employee shall have such other duties as may be assigned to him from
time to time by the Chairman or the Company's Board of Directors.
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(c) Employee shall perform his duties subject to the control and
supervision of the Company's Chairman and Board of Directors, and Employee shall
be subject to the Company's policies and procedures generally applicable to
executive employees of the Company.
(d) Employee hereby agrees to devote his full time, abilities and energy to
the faithful performance of duties assigned to him and to the promotion and
forwarding of the business affairs of the Company. Notwithstanding the
foregoing, during the period commencing from December 1, 1999 through February
29, 2000, Employee shall be entitled to provide Raleigh Enterprises with
reasonable assistance to facilitate the transition from Employee to Employee's
replacement at Raleigh Enterprises. Employee also agrees not to divert any
business opportunities from the Company to himself or to any other person or
business entity.
(e) Employee shall not, during the term of this Agreement, be engaged in
any other employment or business activity without the prior consent of the
Chairman and the Board of Directors of the Company; provided, however, that this
restriction shall not be construed as preventing Employee from investing his
personal assets in passive investments in business activities that are not in
competition with the Company or any "Affiliate" of the Company. The term
"Affiliate" means, with respect to any person or entity, any other person or
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entity which, directly or indirectly through one or more intermediaries, is in
control of, is controlled by or is under common control with, such person or
entity. "Control of", "controlled by" and "under common control with" means the
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possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a person or entity, whether through the
ownership of voting securities, by contract or credit arrangement, as trustee or
executor, or otherwise. The term "Affiliate" includes, but is not limited to,
each and every subsidiary of the Company.
(f) Employee hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company or any Affiliate of the Company, in general, in a
manner consistent with the best interests of the Company, or its Affiliates, as
applicable, and with his duties under this Agreement.
7. Term and Termination.
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(a) This Agreement shall automatically terminate on the death of Employee
and, subject to applicable law, this Agreement shall terminate in the event of
the continued "incapacity" of Employee for a period of one hundred eighty (180)
consecutive days. "Incapacity" shall mean the physical or mental
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incapacity or inability of Employee to fully discharge Employee's duties
hereunder.
(b) The Company shall have the right to terminate Employee's employment for
"cause" at any time without prior notice, if any of the following, which shall
constitute "cause", shall occur: (i) Employee is convicted of a felony or a
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crime of moral turpitude; (ii) Employee's act of dishonesty or fraud against the
interest of the Company; and (iii) Employee's breach of any provision of this
Agreement.
(c) Employee may terminate this Agreement if there shall be a breach by the
Company of a material obligation hereunder and, to the extent such breach can be
cured, such
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breach remains uncured for a period of ten (10) days following receipt by the
Company's Board of Directors of written notice thereof from Employee, if such
breach can be cured by the payment of money, or a period of thirty (30) days
following receipt by the Company's Board of Directors of written notice thereof
from Employee, if such breach can be cured by other than the payment of money.
(d) In the event of termination of Employee's employment for "cause",
commencing on the date of termination, Employee shall be entitled to no further
compensation or employee benefits, except for those salary amounts and employee
benefits accrued and unpaid as of the date of termination and except for any
bonus due under Section 5 above.
8. Insurance. Employee hereby acknowledges and agrees that the Company shall
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have the right to procure insurance to insure against the risk of death or
disability of Employee during the term of this Agreement. If the Company so
elects to purchase such insurance, such insurance shall name the Company as the
beneficiary in the event of Employee's death or disability. Employee hereby
agrees to cooperate with the Company in connection with the procurement and
maintenance of such insurance.
9. Arbitration.
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(a) Except as provided in this Agreement, any dispute, controversy or claim
arising out of or relating to this Agreement or breach thereof (including, but
not limited to, claims for wrongful discharge, breach of contract, wrongful
demotion, wrongful termination in violation of public policy, breach of the
covenant of good faith and fair dealing, discrimination, harassment, and any and
all claims under the California Fair Employment and Housing Act, as amended,
Government Code Sections 12900 et seq., Title VII of the Civil Rights Act of
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1964, as amended, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, or 42 USC Section 1981), shall be settled by binding arbitration
heard by one arbitrator, in accordance with the American Arbitration
Association's National Rules for the Resolution of Employment Disputes (the
"Rules"). The parties hereto agree that the venue of such arbitration shall be
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Los Angeles, California. The party intending to arbitrate shall serve a written
notice of intention to commence arbitration on the other party. The arbitrator
shall be appointed in accordance with the Rules.
(b) The arbitrator shall be bound by the terms and conditions of this
Agreement and shall have no power, in rendering the award, to alter or depart
from any express provision of this Agreement, and his failure to observe this
limitation shall constitute grounds for vacating the award. Any award of the
arbitrator shall be final and binding upon the parties and judgment may be
entered in any court of competent jurisdiction, including, without limitation,
the courts of the State of California or any Federal court in California or any
court of competent jurisdiction in the United States. The award and judgment
thereon shall include interest at the legal rate from the date that the sum
awarded to the prevailing party was originally due and payable.
(c) All provisional remedies shall be the exclusive jurisdiction of the
courts. The parties may seek and obtain provisional remedies prior to or
contemporaneously with arbitration.
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(d) If any legal action or dispute arises under this Agreement, arises by
reason of any asserted breach of it, or arises between the parties and is
related in any way to the subject matter of the Agreement, the prevailing party
shall be entitled to recover all costs and expenses, including reasonable
attorneys' fees, arbitration costs, investigative costs, reasonable accounting
fees and charges for experts. Attorneys' fees and expenses incurred in enforcing
any judgment are recoverable as a separate item and shall be severable from
other provisions of this Agreement, shall survive any judgment and shall not be
merged into such judgment.
(e) Except as otherwise provided in this Agreement, each of the parties
consents and submits to the exclusive jurisdiction and venue of the State of
California for the adjudication of any dispute between the parties pertaining to
this Agreement or the alleged breach of any provision hereof.
10. Severability. Nothing contained herein shall be construed to require the
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commission of any act contrary to law. Should there be any conflict between any
provision hereof and any present or future statute, law, ordinance, regulation,
or other pronouncement having the force of law, the latter shall prevail, but
the provision of this Agreement affected thereby shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the law, and
the remaining provisions of this Agreement shall remain in full force and
effect.
11. Governing Law. This Agreement is made under and shall be construed
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pursuant to the laws of the State of California.
12. Counterparts. This Agreement may be executed in counterparts and all
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documents so executed shall constitute one agreement, binding on all of the
parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
13. Entire Agreement. This Agreement constitutes the entire agreement and
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understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
14. Modification. This Agreement may be modified, amended, superseded, or
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canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto.
15. Waiver. The waiver by either of the parties, express or implied, of any
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right under this Agreement or any failure to perform under this Agreement by the
other party, shall not constitute or be deemed as a waiver of any other right
under this Agreement or of any other failure to perform under this Agreement by
the other party, whether of a similar or dissimilar nature.
16. Cumulative Remedies. Each and all of the several rights and remedies
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provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one or such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
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17. Headings. The section and other headings contained in this Agreement are
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for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
18. Notices. All notices, requests, demands and other communications required
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or permitted hereunder shall be in writing and shall be deemed to have been
given immediately when delivered by hand or by confirmed facsimile transmission,
or three (3) days after being mailed, certified or registered mail with postage
prepaid, to:
(a) if to Employee: 000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.:
(b) if to the Company: 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. XxXxxxxx
Facsimile No.: (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
XXXXXXXX STUDIO EQUIPMENT GROUP
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
Title: Chairman
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