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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
AGREEMENT dated as of January 1, 1995, between DOVE AUDIO, INC., a
California corporation (the "Company"), and XXXXXXX XXXXXX (the "Employee").
The Company desires to employ the Employee as the Vice President of the
Company and the Employee is willing to accept such employment, in each case, for
the purposes and on the terms and conditions described in the Agreement.
Accordingly, the Company and the Employee hereby agree as follows:
I. TERM OF EMPLOYMENT
The term of the Employee's employment under this Agreement shall be for
a period of 7 years, commencing as of January 1, 1995, unless earlier
terminated as provided in Article IV hereof (the "Employment Period").
II. EMPLOYMENT; BOARD MEMBERSHIP; DUTIES AND ACCEPTANCE
SECTION 2.01. Employment. The Company hereby employs the Employee on a
non-exclusive basis to devote such time, energy, attention and skills as may be
necessary to faithfully and diligently carry out the affairs of the Company and
the promotion of its interests. The Employee shall be the Vice President of the
Company, and shall be responsible for such duties and series as may reasonably
assigned to her from time to time by the President and/or Board of Directors of
the Company, subject always to the direction of the Company's Board of
Directors. The Employee shall report to the President of the Company. It is
especially understood that this contract does not include the Employee services
as actor, producer or director. It is agreed that the Employee will be paid
comparable industry standards for such services if the Employee renders them for
the Company.
SECTION 2.02. Board Membership. The Company shall use its best efforts
to cause the election of the employee to the Board of Directors of the Company,
and to be a member of the Executive Committee of such Board, if there shall be
such a committee, for so long as the Employee is employed by the Company
hereunder.
SECTION 2.03. Acceptance of Employment by Employee. The Employee
accepts such employment and shall render the services required by this Agreement
to be rendered by her.
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III. EMPLOYEE'S COMPENSATION
SECTION 3.01. Base Compensation.
(a) Annual Salary. As compensation for all services to be rendered
by her pursuant to this Agreement, the Company shall pay the Employee and the
Employee shall accept, an annual salary in the sum of $115,000 (the "Annual
Salary"), payable in 24 level payments on the fifteenth and last day of each
month.
(b) Annual Review. Commencing with the first anniversary of the
Employee's employment, if any, of the term of this Agreement and annually
thereafter during the term of this Agreement, the Annual Salary shall be
reviewed by the Board of Directors of the Company and may be adjusted for the
then upcoming year but in no event shall the annual salary be less than
$115,000, if the Board of Directors of the Company, in its sole discretion,
determines that such adjustment is warranted.
SECTION 3.02. Bonus. In addition to the Annual Salary, the Employee
shall be entitled to an annual bonus (the "Bonus") in accordance with the terms
and provisions of the executive bonus program to be mutually agreed upon by the
Employee and the Company.
SECTION 3.03. Health Insurance. The Company shall furnish the Employee,
without cost to the Employee, full medical and dental insurance and, shall
reimburse the Employee's medical and dental expenses up to $25,000 per year for
any expenses not covered by the insurance.
SECTION 3.04. Automobile. The Company shall arrange for and pay all
costs (other than a $25 monthly payment for personal use for each such
automobile) of owning or leasing and operating an automobile or automobiles for
use by the Employee of the make and model authorized by the Company's policies.
SECTION 3.05. Participation in Other Employee Benefit Plans. The
Company shall make available to the Employee the Company benefit program
currently in effect or as may be established from time to time by the Company's
Board of Directors for senior executives, including without limitation, any
incentive compensation plans, pension or profit sharing plans, group benefit
plans, bonus plans or other benefit plans.
SECTION 3.06. Vacation and Sick Leave Provisions. The Employee shall
receive such number of working days' vacation each year, exclusive of legal
holidays, as mutually agreed upon by the Employee and the Company. The Employee
currently receives 4 weeks annually which can be accumulated if not used. In
addition, the Employee shall be entitled to sick leave benefits during the term
of this Agreement in accordance with the customary policies applied to senior
executives of the Company.
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SECTION 3.07. Reimbursement of Expenses. The Employee is authorized to
incur reasonable expenses in connection with the business of the Company,
including expenses for entertainment, travel and similar items. The Company
shall reimburse the Employee for all such expenses upon the presentation by the
Employee, from time to time, of an itemized account of and proper receipts for
such expenditures. In addition the Employee will also receive a $25,000 annual
non-accountable expense account to be used at the Employees' discretion.
SECTION 3.08. Withholding. All payments due to the Employee under any
provisions of this Agreement shall be reduced by any amounts required to be
withheld by the Company from time to time from such payments under applicable
federal, state or local law regulations then in effect.
IV. TERMINATION
SECTION 4.01. Termination by Employee Upon Notice. The Employee may
terminate this Agreement, with or without cause, effective upon delivery of
30 days' written notice of termination to the Company.
SECTION 4.02. Termination by Company for Cause. The Company may, at any
time, terminate this Agreement, in case of happening of any of the following
events:
(a) effective upon delivery of 30 days' written notice of
termination to the Employee, upon the occurrence of the breach by the Employee
of any of her obligations hereunder, if such breach continues for 30 days
after receipt by the Employee of notice defining such breach in reasonable
detail, unless such breach cannot with due diligence be cured within such 30-day
period, in which case such failure shall not be deemed to continue if the
Employee proceeds promptly and with due diligence to cure the failure and
diligently completes the curing thereof; or
(b) upon the date specified by notice from the Company to the
Employee of the termination of the Employee's employment for cause. For purposes
of this subsection, "cause" shall include, action by the Employee involving
conviction for violation of any criminal statute constituting a felony, gross
misconduct, theft or embezzlement, or repeated failure to render services as
contemplated by the terms of this Agreement after at least 30 days' notice
of same during which the Employee shall not have effected or begun diligently to
effect a cure.
Upon termination pursuant to the provisions of this Section, the Employee would
be entitled to receive only such compensation accrued and unpaid as of the
termination date.
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SECTION 4.03. Termination for Death and Disability.
(a) Death. This Agreement shall be terminated effective
immediately and automatically upon the death of the Employee. Upon death, the
Employee would be entitled to receive all accrued and unpaid compensation and
benefits.
(b) Permanent Disability. This Agreement shall be terminated
effective immediately and automatically upon the permanent disability of the
Employee. For purposes of this subsection, "permanent disability" shall be
deemed to have occurred if the Employee is unable by reason of illness or
physical or mental disability to perform the services required under this
Agreement for a period aggregating 6 months within any period of 12
consecutive months during the Employment Period. Upon termination pursuant to
the provisions of this subsection, the Employee would be entitled to receive all
accrued and unpaid compensation and benefits, less the amount, if any, the
Employee is entitled to receive under the terms of the Company's long-term
disability insurance policy as and if in effect at the time of termination. Any
payments made pursuant to this Section shall be reduced by such amounts as are
required by law to be withheld or deducted.
SECTION 4.04. Effect of Termination. Survival of Obligations.
Termination of this Agreement shall not release or discharge either party hereto
from any obligation, debt or liability which may previously have occurred and
remains to be performed upon the date of termination.
V. MISCELLANEOUS
SECTION 5.01. Notices. All notices, requests, demands and other
communications shall be in writing and shall be deemed to have been duly given
when delivered personally or three days following deposit in the United States
mail, first class, postage prepaid, duly addressed:
If to the Employee, addressed: Xxxxxxx Xxxxxx
0000 Xxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to the Company, addressed: Dove Audio, Inc.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention of Board of Directors
SECTION 5.02. Assignment. This Agreement shall not be assigned, pledged
or transferred in any way by either party hereto. Any attempted assignment,
pledge, transfer or other disposition of this Agreement or of any rights,
interests or benefits contrary to the foregoing provisions shall be null and
void.
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SECTION 5.03. Conflicting Agreements. The Employee hereby represents
and warrants to the Company that her entering into this Agreement, and the
obligations and duties undertaken by her hereunder, will not conflict with,
constitute a breach of or otherwise violate the terms of any employment or other
agreement to which she is a party and that she is not required to obtain the
consent of any person, firm, corporation or other entity in order to enter into
this Agreement.
SECTION 5.04. Indemnification. The Company shall indemnify the Employee
and hold the Employee harmless from any claims, actions, charges, expense,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding to which the Employee was or is a party or is
threatened to be made a party arising by reason of the fact that the Employee is
or was an employee of the Company.
SECTION 5.05. No Waiver. No term or condition of this Agreement shall
be deemed to have been waived, nor shall any party hereto be estopped from
enforcing any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. Any written waiver shall not be
deemed a continuing waiver unless specifically stated, shall operate only as to
the specific term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than the specifically
waived.
SECTION 5.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 5.07. Entire Agreement. This Agreement contains the entire
agreement of the parties hereto in regard to the subject matter hereof, and may
not be changed orally but only by a written document signed by the party against
whom enforcement of waiver, change, modification, extension or discharge is
sought.
SECTION 5.08. Headlines. Headlines contained herein are for convenient
reference only; they are not a part of this Agreement and are not to affect in
any way the substance or interpretation of the Agreement.
SECTION 5.09. Survival of Provisions. In case any one or more of the
provisions of any portion of any provision contained in this Agreement should be
found to be invalid, illegal or unenforceable in any respect, such provision or
portion thereof shall be modified or deleted in such manner so as to afford the
Company the fullest protection commensurate with making the Agreement, as
modified, legal and enforceable under applicable laws, and the validity,
legality and enforceability of any such provision shall not in any way be
affected or impaired thereby, such remaining provisions or portion of any such
provision construed as severable and independent thereof.
SECTION 5.10. Arbitration; Attorneys' Fees. Any dispute or conflict
which arises between the parties hereto shall be submitted to the American
Arbitration Association in
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accordance with its then current Commercial Rules in Los Angeles County,
California, for arbitration and the parties shall be bound by the results of
such arbitration in accordance with the California Code of Civil Procedure
Section 1283.05. If either party brings an action for judicial review or
enforcement of the arbitration proceedings, award or decision, the prevailing
party to any such action, trial or appeal shall be entitled to its reasonable
attorneys' fees to be paid by the nonprevailing party as fixed by the court.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, in the case of Company, by its duly authorized officer, all as of the
date first above written.
DOVE AUDIO, INC.
By: /s/ XXXXXXX XXXXX /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxx, President Xxxxxxx Xxxxxx
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