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EXHIBIT 10.33
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement"), dated as of May 31, 1996,
by and between Xxxxxxx X. Xxxxxxx (the "Executive") on the one hand, and Dove
Audio, Inc. ("Dove") and Dove International, Inc. (a/k/a Dove Pictures, Inc.)
("DI") on the other hand, (collectively the "Company");
WHEREAS, the Executive and DI are parties to an employment agreement and
the Executive and Dove are parties to a stock option agreement, each dated as of
July 1, 1995 (the "Employment Agreement" and the Option Agreement",
respectively); and
WHEREAS, on the terms and conditions hereof, the Executive and the
Company wish to terminate the Employment Agreement subject to certain exceptions
hereinbelow expressly set forth and to terminate all unexercised stock options
(whether vested or unvested) granted under the Stock Option Agreement as
hereinbelow provided except as set forth below;
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained, and wishing to be legally bound hereby, the Executive and the
Company hereby agree as follows:
1. Termination of Employment; Termination of Employment Agreement;
Exceptions
a. The Executive and the Company agree that as of the close of
business on May 31, 1996 (the "Separation Date") the employment of the Executive
by the Company will end and except as expressly provided herein, all
responsibilities of the Executive to the Company and of Company to the Executive
under the Employment Agreement shall be terminated. Likewise, to the extent
Executive served or had the right to serve as a director, officer or employee of
the Company or any of the Company's subsidiaries or divisions (including but not
limited to Dove Pictures, Inc. (f/k/a Dove International, Inc.) as of or prior
to the Separation Date all such positions and rights shall end and are waived
and except as expressly provided herein, all responsibilities of the Executive
to the Company and of the Company to the Executive as a result thereof will
terminate.
b. The Executive and the Company agree that as of the Separation
Date, the Employment Agreement will be terminated and that, except as expressly
provided herein, the Executive and the Company (including its subsidiaries and
divisions) shall have no liability or obligations to each other arising under,
or which could have arisen under, the Employment Agreement or the Option
Agreement.
c. The provisions of Section 6 ("Covenant Not to Interfere") of
the Employment Agreement shall remain in full force and effect, and for purposes
of the application of such provisions the Term shall be deemed to end on the
Separation Date. The provisions of Section 7 ("Confidential Information") of the
Employment Agreement shall remain in full force and effect, and for purposes of
the application of
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the third sentence of such provisions the Term and Initial Term shall be deemed
to end on the Separation Date. Executive agrees in order to implement the
provisions of Section 7, but without expanding the scope thereof, not to remove
any documents or writings from Company's office without Company's written
consent, which will not be unreasonably withheld.
d. It is expressly understood and agreed that all work performed
by Executive for Company, as well as all rights acquired by Executive and all
contracts entered into by Executive including all proceeds therefrom, for or on
behalf of Company are the sole and exclusive property of Company only, and
Executive agrees that he has no rights or interest thereto or therein.
2. Payment Obligations of the Company
a. Concurrent with the full execution of this Agreement, the
Company shall pay to the Executive an amount equal to all amounts due under
Section 5(e)(I) of the Employment Agreement, less an amount representing
applicable withholding for income taxes, FICA and Medicare.
b. Upon full execution of this Agreement and within 3 days of the
submission of a written expense report, the Company shall pay to the Executive
an amount equal to reimbursement of actual and approved expenses advanced by the
Executive and not theretofore reimbursed, currently estimated not to exceed
$2,000.
3. Termination of Stock Options
The Company and the Executive agree that all unexercised options
(whether vested or unvested) granted to Executive under the Stock Option
Agreement to acquire common stock of the Company shall lapse and be terminated
as of the Separation Date, except that Executive's options to purchase 37,500
shares of Dove Common Stock which vested on July 1, 1995 shall not terminate but
shall be exercisable pursuant to the terms of the Corporation's 1994 Stock
Incentive Plan, or may be sold through the contemplated offering of Dove. If
Executive elects to sell such shares through the contemplated offering, and such
contemplated offering is not consummated, then Executive shall have three months
from the cancellation of such offering within which to exercise such options,
but if they are not exercised within such period, then they shall automatically
and forever terminate. If Executive elects not to sell through the contemplated
offering, Executive shall offer to Company the exclusive right to purchase such
shares at the non-weighted average market price on the day of offer, on a net
exercise basis. Company shall have four (4) business days from receipt of
Executive's written offer to sell such shares to Company within which to elect
to purchase and pay for Executive's shares. If Company does not notify Executive
in writing of its election to purchase such shares within such four day period,
than Executive may sell such shares as he sees fit.
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4. Releases
As of the date hereof, the Company is executing and delivering to the
Executive a release in the form of Exhibit 1 hereto and the Executive is
executing and delivering to the Company and to Xxxxxxx Xxxxx releases in the
form of Exhibits 2 and 3 hereto and Xxxxxxx Xxxxx is executing and delivering to
the Executive a release in the form of Exhibit 4 hereto (the "Releases").
5. Cooperation
a. At all times hereafter, the Executive shall provide reasonable
cooperation to the Company's counsel in connection with any litigation or other
legal proceedings involving Company.
6. General
a. This Agreement and the Releases constitute the entire agreement
with respect to the subject matter hereof, and supersede all other prior
agreements and undertakings, both written and oral, between the parties hereto
with respect to the subject matter hereof and thereof. This is an integrated
Agreement, which cannot be altered or amended except by a written agreement
executed by all of the parties hereto. The captions in this Agreement are for
convenience of reference only and shall not affect the interpretation of the
provisions hereof. If any provision hereof shall be found by the court of
competent jurisdiction to be unenforceable, the balance of the provisions hereof
shall remain in effect and shall be applied in such a manner as to give effect
as nearly as possible to the intentions of the parties as manifested hereby.
b. Each of the parties hereto warrants, represents and agrees
that in executing this Agreement and the related documents:
(1) It or he has received independent legal advice from
its or his attorneys with respect to each aspect of
this Agreement and the Releases;
(2) It or he is not relying upon any representation of
statement made by or on behalf of any of the
entities and persons released by such party with
respect to any aspect of this Agreement and the
Releases;
(3) It or he assumes the risk of any mistake of fact
with regard to any aspect of this Agreement and the
Releases; and
(4) It or he carefully has read and considered this
Agreement and the Releases in their entirety and
fully understands their contents and the
significance of each of their aspects.
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c. Each of the parties hereto understands, acknowledges and
agrees that nothing contained in this Agreement and/or the related Releases, or
any performance thereunder shall be construed as an admission or acknowledgment
of any wrongful conduct or fault by any party.
d. This Agreement is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder and shall not be
assigned by any party by operation of law or otherwise, except that it shall be
binding upon and inure to the benefit of Executive and his heirs as well as
Company, Company's subsidiaries, corporate affiliates, divisions, employees and
any successor to the business of the Company, whether by sale, merger, sale of
stock, sale of assets or otherwise.
e. The individuals signing this Agreement represent, warrant and
agree that they have the full right, power and authority to enter into this
Agreement on behalf of the entities for whom they are executing it. The parties
hereto further represent, warrant and agree that they have not assigned or
encumbered any of the claims released by them hereunder or in the Releases, that
their respective claims belong to no others than themselves, and that they will
hold harmless and defend all parties from and against all costs, losses or
damages, including reasonable attorney's fees, arising out a breach of the
warranties and representations set forth herein.
f. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of California
(without regard to principles of conflicts of law). In interpreting and
construing this Agreement, it shall be deemed that it was drafted jointly by
counsel for Executive and Company.
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g. This Agreement may be executed in counterparts each of which
shall constitute an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
DOVE AUDIO, INC.
Xxxxxx Xxxxxxx
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Name:
Title:
DOVE INTERNATIONAL, INC.
/s/ Xxxxxx Xxxxxxx
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Name:
Title:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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EXHIBIT 1
R E L E A S E
DOVE AUDIO, INC. and DOVE INTERNATIONAL, INC., corporations organized under the
laws of the State of California, for themselves and their subsidiaries
(RELEASOR), in consideration of the mutual promises set forth in the Separation
Agreement of even date herewith between RELEASOR and Xxxxxxx X. Xxxxxxx, the
sufficiency of which is hereby acknowledged, releases and discharges Xxxxxxx X.
Xxxxxxx (RELEASEE), RELEASEE'S heirs, executors, administrators, successors and
assigns, from all actions, causes of actions, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialities, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extent, executions, claims, and demands whatsoever, in law, admiralty or equity,
which against the RELEASEE, the RELEASOR, RELEASOR'S successors and assigns ever
had, now have or hereafter can, shall or may have, for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this Release, including without limitation, all claims concerning
RELEASEE'S employment with RELEASOR, the Employment Agreement and/or the Option
Agreement (as those terms are defined in the Separation Agreement), provided,
however, that nothing herein shall be deemed to constitute a release of the
RELEASEE with respect to the obligations of the RELEASEE under the Separation
Agreement of even date herewith between RELEASOR and RELEASEE or with respect to
any matter that is not known to the RELEASOR as of the date hereof (and for such
purposes, a matter shall only be deemed known to RELEASOR if it is known to any
of the individuals set forth in Exhibit A hereto) or which is based on an
intentional or knowing misrepresentation or fraud of RELEASSEE.
This Release shall be governed by and interpreted and enforced in
accordance with the laws of the State of California, without regard to
principles of conflicts of law.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this Release.
This Release may not be changed orally.
By [SIG]
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EXHIBIT 2
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R E L E A S E
Xxxxxxx X. Xxxxxxx, for himself and his heirs and assigns (RELEASOR), in
consideration of the mutual promises set forth in the Separation Agreement of
even date herewith between RELEASOR and DOVE AUDIO, INC., the sufficiency of
which is hereby acknowledged, releases and discharges, DOVE AUDIO, INC., its
subsidiaries, directors, officers and employees, (collectively, "RELEASEES") and
RELEASEE'S successors and assigns from all actions, causes of actions, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialities,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extent, executions, claims, and demands
whatsoever, in law, admiralty or equity, which against the RELEASEE, the
RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release, including without limitation, all claims concerning RELEASOR's
employment with RELEASEE, the Employment Agreement and/or the Option Agreement
(as those terms are defined in the Separation Agreement), provided, however,
that nothing herein shall be deemed to constitute a release of the RELEASEE with
respect to the obligations of the RELEASEE under the Separation Agreement of
even date herewith between RELEASOR and RELEASEE or with respect to any matter
that is not known to the RELEASOR as of the date hereof or based on an
intentional or knowing misrepresentation or fraud of RELEASEE.
This Release shall be governed by and interpreted and enforced in
accordance with the laws of the State of California, without regard to
principles of conflicts of law.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this Release.
This Release may not be changed orally.
By ____________________________
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EXHIBIT 3
R E L E A S E
Xxxxxxx X. Xxxxxxx, for himself and his heirs and assigns (RELEASOR), in
consideration of the mutual promises set forth in the Separation Agreement of
even date herewith between RELEASOR and Dove Audio, Inc., the sufficiency of
which is hereby acknowledged, releases and discharges Xxxxxxx Xxxxx (RELEASEE),
and RELEASEE'S heirs, executors, administrators, successors and assigns, from
all actions, causes of actions, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extent,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the RELEASEE, the RELEASOR, RELEASOR'S successors and assigns ever had,
now have or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day of
the date of this Release, including without limitation, all claims concerning
RELEASOR'S employment with RELEASEE, the Employment Agreement and/or the Option
Agreement (as those terms are defined in the Separation Agreement), provided,
however, that nothing herein shall be deemed to constitute a release of the
RELEASEE with respect to the obligations of the RELEASEE under the Separation
Agreement of even date herewith between RELEASOR and RELEASEE or with respect to
any matter that is not known to the RELEASOR as of the date hereof or based on
an intentional or knowing misrepresentation or fraud of RELEASEE.
This Release shall be governed by and interpreted and enforced in
accordance with the laws of the State of California, without regard to
principles of conflicts of law.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this Release.
This Release may not be changed orally.
By ____________________________
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EXHIBIT 4
R E L E A S E
Xxxxxxx Xxxxx, for himself and his heirs and assigns (RELEASOR), in
consideration of the mutual promises set forth in the Separation Agreement of
even date herewith between Xxxxxxx X. Xxxxxxx and XXXX AUDIO, INC., the
sufficiency of which is hereby acknowledged, releases and discharges Xxxxxxx X.
Xxxxxxx ("RELEASEE") and RELEASEE'S successors, heirs, executors, administrators
and assigns from all actions, causes of actions, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialities, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extent, executions, claims, and demands whatsoever, in law, admiralty or equity,
which against the RELEASEE, the RELEASOR, RELEASOR'S successors and assigns ever
had, now have or hereafter can, shall or may have, for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this Release, including without limitation, all claims concerning
RELEASEE'S employment with Company, the Employment Agreement and/or the Option
Agreement (as those terms are defined in the Separation Agreement), provided,
however, that nothing herein shall be deemed to constitute a release of the
RELEASEE with respect to the obligations of the RELEASEE under the Separation
Agreement of even date herewith between RELEASOR and RELEASEE or with respect to
any matter that is not known to the RELEASOR as of the date hereof or based on
an intentional or knowing misrepresentation or fraud of RELEASEE.
This Release shall be governed by and interpreted and enforced in
accordance with the laws of the State of California, without regard to
principles of conflicts of law.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this Release.
This Release may not be changed orally.
By [SIG]
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