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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
Agreement, made this 5th day of July, 2000, between Crown Media
Holdings, Inc., a Delaware corporation, with offices at 00000 Xxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 or its permitted assigns ("Employer") and Xxxxx
Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Employer desires to retain the services of Employee and
Employee desires to be employed by Employer upon the terms and conditions set
forth:
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereto agree as follows:
1. Employment and Duties.
(a) Effective July 16, 2000 (the "Effective Date"), Employer
hereby employs Employee and Employee hereby agrees to serve as
Executive Vice President -- Worldwide Marketing of Employer.
Additionally, Employee agrees to serve in such other capacities as
shall be designated from time to time by Employer, which are consistent
with her position and responsibilities. Employee shall report to the
President and Chief Executive Officer of Employer. Employee shall use
her best efforts to promote the interests of Employer and shall devote
her full business time, energy and skill exclusively to the business
and affairs of Employer during the "Term" (as "Term" is defined in
Paragraph 2 below).
(b) Employee's specific duties and authority will be as
follows:
(i) Employee's primary duties shall be to oversee the
development and implementation of the overall marketing
strategy for all networks owned and operated by the Employer
worldwide, including the Odyssey network, The Hallmark
Entertainment Network and the Xxxxxx Network (collectively,
the "Networks"). In this capacity, the senior marketing
personnel at the Networks will report directly and in a solid
line manner to the Employee (functionally) and
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also in a solid line manner (operationally) to either the CEOs
of the Networks or the senior executives of the Networks to
whom the senior marketing personnel have previously reported.
(ii) Employee shall be responsible for the
development of branding, packaging and identity elements for
the Networks; integration of these elements across the
Networks, and coordination of the advertising, promotional and
research groups within the Networks.
(iii) Employee shall have the authority over
promotion of all Networks' programming across all platforms
and will specifically oversee the creative and the media buys
in television, print, radio, outdoor, internet, trade and
other media. In addition, Employee shall have authority over
consumer promotions (e.g., sweepstakes, product tie-ins),
promotional merchandise and other brand enhancements or
extensions designed to cross promote the Networks.
(iv) Employee shall be responsible for directing the
Networks' marketing of their products to Affiliates, providing
creative and background materials to distributors that carry
the Networks' programming so they can promote the brands
locally. Employee shall also oversee synergy for Crown Media,
Inc. properties with Hallmark tie-ins to Hallmark products and
stores. Finally, Employee will be responsible for producing
event presentations to advertisers and affiliates and consumer
press.
(c) During the course of Employee's employment hereunder,
Employer may be incorporating subsidiary production companies for the
development of specific programming, properties or projects. Employer
shall have the right to loan or make available, without additional
compensation to Employee, Employee's services as an officer or director
of any subsidiary of Employer or to perform services for any
programming, property or project owned or controlled by Employer or any
such subsidiary, provided, that Employee's services for and status with
any such subsidiary shall be consistent with her duties hereunder.
Employee further agrees that all the terms
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of this Employment Agreement shall be applicable to Employee's services
for each such subsidiary.
(d) Employee shall pass a drug test (restricted to illegal
substances) to Employer's reasonable satisfaction, by a testing service
approved by Employer in its reasonable judgment. Such drug test shall
be completed prior to the Effective Date or as soon as practicable
thereafter. Employee's failure to pass such a test by July 31, 2000
shall constitute grounds for termination for cause pursuant to
Paragraph 8(a)(iii) of this Agreement.
2. Term of Employment. The term of Employee's employment ("Term") with
Employer shall commence on the Effective Date and shall end on July 15, 2003
unless terminated earlier as is provided in Paragraph 8 of this Agreement or
extended by mutual agreement of the parties. Employer shall inform Employee in
writing at least six (6) months prior to the end of the Term if Employer wishes
to extend the Term and if so upon what terms. If Employee wishes to extend the
Term the parties shall negotiate such extension in good faith, such negotiations
to be completed at least three (3) months prior to the end of the Term.
3. Compensation.
(a) Salary. As compensation for Employee's services hereunder,
Employer shall pay to Employee a salary at the rate of $500,000 per
year during the first year of the Term, $550,000 per year during the
second year of the Term and $600,000 per year during the third year of
the Term. Such salary shall be paid biweekly, in arrears.
(b) Yearly Bonuses. At the end of each calendar year during
the Term and upon completion of the Term, Employee will be paid such
bonus as Employer in its discretion determines, provided that Employer
shall pay Employee an annual bonus of no less than 20%, of Employee's
then annual salary rate for such year (pro rated for partial years,
except for the first bonus payable for the calendar year 2000, which
shall be calculated based on a full years salary of $500,000). A
maximum bonus of 50% may be paid, in Employer's discretion, for
superior performance by Employee and the operations for which she is
responsible. Bonus payments shall be made no later than 30 days after
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end of calendar year and end of the Term. Employer may, in its sole and
absolute discretion, pay Executive additional bonuses.
(c) Signing Bonus. Employee will receive a one time signing
bonus of $100,000, payable within 30 days of the Effective Date.
(d) Withholding. All payments of salary shall be made in
appropriate installments to conform with the regular payroll dates for
salaried personnel of Employer. Employer shall be entitled to deduct
from each payment of compensation (including salary and bonus) to
Employee such items as are required under applicable law.
(e) Expenses. During the Term, Employer shall pay or reimburse
Employee on an accountable basis for all reasonable and necessary
out-of-pocket expenses for entertainment, travel (including first class
commercial air travel, or if first class air travel is not available,
on a best available commercial basis), meals, hotel accommodations and
other expenditures incurred by Employee in connection with Employee's
services to Employer in accordance with Employer's expense account
policies for its senior executive personnel or with the approval of the
Chief Executive Officer of Employer.
(f) Fringe Benefits. During the Term, Employee shall be
entitled to receive the following fringe benefits: (i) group medical,
dental, life and disability insurance as per Employer policy from time
to time for comparable executives of Employer, (ii) an allowance of
$950.00 per month for an automobile and (iii) any other fringe benefits
on terms that are or may become available generally to comparable
executives of Employer, including five weeks paid vacation. Employee's
level of participation in any Employee plan will be subject to
Employer's discretion, but at least at a level consistent with other
comparable executives of Employer. Upon presentation of documentation
of the expenses, Employer will also reimburse Employee for her
expenses, up to an amount of $10,000, to move her personal effects from
the New York City area to the Los Angeles area.
(g) Stock Options. Employee will be granted, effective on the
Effective Date, options to purchase 100,000 shares of Employer's common
stock (the "Options") pursuant to Employer's stock option plan (the
"Plan"). Such Options shall vest in four
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equal annual installments (or such shorter vesting period as Employer
may determine) commencing on the first anniversary of the Effective
Date and annually thereafter, and shall be subject to the terms of the
Plan and the stock option agreement to be entered into in connection
therewith, provided that if Employee is terminated pursuant to
Paragraph 8(b), all unvested Options shall vest at the date of
termination. Additional stock options may be granted in the sole
discretion of the Board of Directors of Employer.
4. Place of Employment; Personal Assistant. During the Term, Employee
shall be required to perform Employee's duties at the offices of Employer in the
Los Angeles area (or such other location as may be mutually agreeable to
Employer and Employee), and Employee shall undertake all reasonable travel
required by Employer in connection with the performance of Employee's duties
hereunder.
5. Confidentiality, Intellectual Property; Name and Likeness.
(a) Employee agrees that Employee will not during the Term or
thereafter divulge to anyone (other than Employer (and its executives,
representatives and employees who need to know such information) or any
persons designated by Employer) any knowledge or information of any
type whatsoever designated or treated as confidential by Employer
relating to the business of Employer or any of its subsidiaries or
affiliates, including, without limitation, all types of trade secrets,
business strategies, marketing and distribution plans as well as
concrete proposals, plans, scripts, treatments and formats described in
subparagraph (b) below. Employee further agrees that Employee will not
disclose, publish or make use of any such knowledge or information of a
confidential nature (other than in the performance of Employee's duties
hereunder) without the prior written consent of Employer. This
provision does not apply to information which becomes available
publicly without the fault of Employee or information which Employee
discloses in confidence to her own privileged representatives or is
required to disclose in legal proceedings, provided Employee gives
advance notice to the Chief Executive Officer of Employer and an
opportunity to Employer to resist such disclosure in legal proceedings.
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(b) During the Term, Employee will disclose to Employer all
concrete proposals, plans, scripts, treatments, and formats invented or
developed by Employee during the Term which relate directly or
indirectly to the business of Employer or any of its subsidiaries or
affiliates including, without limitation, any proposals and plans which
may be copyrightable, trademarkable, patentable or otherwise
exploitable. Employee agrees that all such proposals, plans, scripts,
treatments, and formats are and will be the property of Employer.
Employee further agrees, at Employer's request, to do whatever is
necessary or desirable to secure for the Employer the rights to said
proposals, plans, scripts, treatments, and formats, whether by
copyright, trademark, patent or otherwise and to assign, transfer and
convey the rights thereto to Employer at Employer's expense.
(c) Employer shall have the right in perpetuity to use
Employee's name reasonably in connection with credits for programming,
properties and projects for which Employee performs any services.
6. Employee's Representations. Employee represents and warrants that:
(a) Employee has the right to enter into this Agreement and is
not subject to any contract, commitment, agreement, arrangement or
restriction of any kind which would prevent Employee from performing
Employee's duties and obligations hereunder;
(b) To the best of Employee's knowledge. Employee is not
subject to any undisclosed medical condition which might have a
material effect on Employee's ability to perform satisfactorily
Employee's services hereunder.
7. Non-Competition; No Raid.
(a) During the Term, Employee shall not engage directly or
indirectly, whether as an employee, independent contractor, consultant,
partner, shareholder or otherwise, in a business or other endeavor
which interferes with any of her duties or obligations hereunder or
which is directly competitive with the business of the Employer or its
subsidiaries, including but not limited to the production, distribution
or any other exploitation of audiovisual television material (the
"Other Business").
(b) Employee further agrees that during the Term and for a
period of one year thereafter, Employee will not employ, or knowingly
attempt to employ or assist
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anyone else to employ, any person who Employee knows or reasonably
should know is, at the date of termination of Employee's employment,
working as an officer, policymaker or in high-level creative
development or distribution (including without limitation executive
employees) for or rendering substantially full-time services as such to
Employer or its affiliates.
8. Termination.
(a) This Agreement may be terminated and the Term ended on
five (5) business days' written notice for any one of the following
reasons (except (i) in which case termination shall occur on the date
of death):
(i) The death of Employee;
(ii) The physical or mental disability of Employee to
such an extent that Employee is unable to render services to
Employer for a period exceeding an aggregate of ninety (90)
business days during any twelve month period of the Term. For
purposes of counting the aggregate of ninety (90) business
days, days properly designated by Employee as vacation days
shall not be counted;
(iii) For "cause," which for purposes of this
Agreement shall be defined as:
(A) the continuing use, after Employer's
warnings, of drugs and/or alcohol which interfere
materially with Employee's performance of Employee's
services under this Agreement;
(B) Employee's conviction of any act which
constitutes a felony under federal, state or local
laws or the law of any foreign country;
(C) Employee's persistent failure after
written notice to perform, or Employee's persistent
refusal to perform after written notice, any of
Employee's duties and responsibilities pursuant to
this Agreement; or
(D) Employee's dishonesty in non-trivial
financial dealings with or on behalf of Employer, its
subsidiaries, affiliates and parent corporation or in
connection with performance of her duties hereunder.
(b) Employer shall also have the right to terminate Employee
prior to the expiration of the Term in addition to pursuant to
Paragraph 8(a) above by providing
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Employee with not less than ninety (90) days' advance notice in
writing. In the event of a termination pursuant to this Paragraph 8(b),
the Employer shall pay to the Employee in a lump sum (but subject to
Paragraph 3(d)), the remaining salary and minimum bonus amounts
described in Paragraph 3(a) and (b) above for the balance of the Term,
discounted at "prime" rates to present value at the time of payment. If
Employer terminates Employee under this Paragraph 8(b), Paragraph 7
shall not apply from the date of termination. Employee shall have no
obligation for "mitigation" of or offset against the amounts payable
under this Paragraph 8(b).
(c) In the event that Employer terminates this Agreement due
to any of the reasons set forth in Paragraphs 8(a)(i), 8(a)(ii) or
8(a)(iii)(A-D) above, Employee shall be paid Employee's salary through
the later of the expiration of the five (5) business days period
referred to in Paragraph 8(a) or the end of the month in which the
termination event occurs, after which Employer's obligation to pay
salary to Employee shall terminate. After making the payments provided
for in this sub-paragraph (c), Employer shall have no further
obligations to Employee pursuant to this Agreement.
(d) Upon termination of this Agreement, Employee shall
promptly return all of Employer's property to Employer.
(e) Upon termination of Employee's employment for any reason,
Employee shall tender Employee's resignation from the Board of
Directors of any of Employer's subsidiaries or affiliates on which
Employee is serving, and Employer shall accept such resignation
forthwith.
9. Breach; Remedies. Both parties recognize that the services to be
rendered under this Agreement by Employee are special, unique and extraordinary
in character, and that in the event of the breach by Employee of the terms and
conditions of this Agreement, Employer shall be entitled, inter alia, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, and to seek to enforce the specific performance thereof by
Employee, and/or to seek to enjoin Employee from performing services for any
other person, firm or corporation. The parties further stipulate that the law of
Colorado shall apply to any dispute of action regarding this Agreement.
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10. Assignment. This Agreement is a personal contract and, except as
specifically set forth herein, the rights, interests and obligations of Employee
herein may not be sold, transferred, assigned, pledged or hypothecated, although
he may assign or use as security payments due hereunder from Employer. The
rights and obligations of Employer hereunder shall bind in their entirety the
successors and assigns of Employer, although Employer shall remain fully liable
hereunder. As used in this Agreement, the term "successor" shall include any
person. firm, corporation or other business entity which at the time, whether by
merger, purchase or otherwise, acquires all or substantially all of the assets
or business of Employer.
11. Amendment; Captions. This Agreement contains the entire agreement
between the parties. It may not be changed orally, but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought. Paragraph headings are for convenience of
reference only and shall not be considered a part of this Agreement. If any
clause in this Agreement is found to be unenforceable, illegal or contrary to
public policy, the parties agree that this Agreement shall remain in full force
and effect except for such clause.
12. Prior Agreements. This Agreement supersedes and terminates all
prior agreements between the parties relating to the subject matter herein
addressed, and sets out the full agreement between the parties concerning its
subject matter.
13. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed effective when delivered in
person or. if mailed, by registered or certified mail, return receipt requested,
in which case the notice shall be deemed effective on the date of deposit in the
mails, postage prepaid, addressed to Employee at the address for Employee
appearing in Employer's records, with a copy to Xxxxx XxXxxxx, Esq., Frankfurt,
Xxxxxx, Xxxxx & Xxxx, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000. Notices
to Employer shall be addressed to its Chief Executive Officer at the address
first written above, with a copy to the Senior Vice President of Legal and
Business Affairs, 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000. Either party may change the address to which notices are to be addressed
by notice in writing given to the other in accordance with the terms hereof.
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14. Periods of Time. Whenever in this Agreement there is a period of
time specified for the giving of notices or the taking of action, the period
shall be calculated excluding the day on which the giver sends notice and
excluding the day on which action to be taken is actually taken.
15. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute one instrument.
IN WITNESS WHEREOF, Employer has by its appropriate officer signed this
Agreement and Employee has signed this Agreement as of the day and year first
above written.
CROWN MEDIA HOLDINGS, INC.
By /s/ XXXXX XXXXX
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Xxxxx Xxxxx
Title President & CEO
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EMPLOYEE
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
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