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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of the 13th day of January, 1997, between INTERVISUAL BOOKS,
INC., a California corporation (the "Company"), and XXXX XXXXXX (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.
2. Term.
The employment of Executive by the Company as
provided in this Agreement will commence on January 27, 1997 (the "Start Date"),
and end on December 31, 1999, unless sooner terminated as hereinafter provided.
As a condition precedent to the effectiveness of this Agreement, Executive shall
report for work at the principal executive offices of the Company on the Start
Date and, if requested by the Company, Executive shall affirm in writing on the
Start Date that he has ceased employment with his current employer.
3. Position and Duties.
Executive shall serve as Executive Vice
President and Creative Director 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 President and
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, President, and Chief Executive Officer of the
Company. Executive's primary duties shall include, without limitation,
responsibility for the day-to-day operations of the creative department and such
other duties as may from time to time be prescribed by the Board of Directors,
President, and Chief Executive Officer of the Company.
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Executive shall promote the trade and busi-
ness 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 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.
Notwithstanding the foregoing, the parties
hereto agree that Executive shall be permitted to continue his current
consulting commitments until February 28, 1997, after which time no outside
consulting will be permitted. Executive shall be entitled to engage in the
permitted consulting set forth in the preceding sentence only if (a) such
activities shall not require Executive to be absent from the Company more than
five regularly scheduled Company work days per month (which days shall be
counted as vacation days and scheduled in advance with the agreement of the
President and Chief Executive Officer), (b) the Company shall not incur any
liability or obligation or any additional expenses or costs associated with such
activities by Executive, and (c) such activities do not detract from Executive's
fulfillment of his duties hereunder or cause Executive to compete in any manner
with the Company. Executive agrees to discontinue such activities if, in the
good faith judgment of the Company's Board of Directors, Executive has violated
or the continuance of such activities more likely than not will cause Executive
to violate any of the restrictions set forth in the preceding sentence or any
other provision of this Agreement.
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 place or
places as the interests, needs, business and opportunities of the Company
require or deem advisable.
5. Compensation and Related Matters.
(a) Salary. During the term of Executive's
employment hereunder, the Company shall pay to Executive a
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salary of $175,000 per annum from the Start Date through December 31,1997 and a
salary of $192,500 per annum from January 1, 1998 through December 31, 1999.
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 President.
(c) Expenses. During the term of Execu-
tive'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 reasonably 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
will be granted two nonstatutory stock options to acquire 75,000 and 50,000
shares, respectively, of the Company's common stock pursuant to the Stock Option
Agreements attached hereto as Exhibits A and B. The terms of such stock options
shall be governed by the provisions of the Stock Option Agreements.
(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.
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If any pre-existing condition of Executive's immediate family may effect
Executive's ability to be eligible to receive benefits commensurate with those
that Executive is eligible to receive immediately prior to the Start Date under
the Company's medical insurance plans, Executive may elect not to participate in
any of such insurance plans and the Company will pay the premiums for
continuation of Executive's medical insurance plan as in effect prior to the
Start Date or such other plan as Executive may choose, if permitted under such
plan and available at rates similar to the rates under the Company's plans.
Executive will be responsible for any premium costs in excess of the amount of
the premiums the Company would normally pay under the Company's medical
insurance policy.
(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; provided that Executive must pass any physical examination required
under such life insurance policy, and such life insurance policy must be
established by Executive on or before the one year anniversary of the Start
Date. The beneficiary or beneficiaries under such policy shall be designated by
Executive, and Executive shall be responsible for any taxes incurred by
Executive by reason of the Company's payment of premiums on such policy
hereunder.
(h) Moving Expenses. Executive shall be
entitled to reimbursement by the Company, in accordance with the Company's
policies, for reasonable and customary moving expenses actually and reasonably
incurred by Executive, but not to exceed $20,000, in connection with moving
Executive and Executive's immediate family, together with the personal
belongings of Executive and Executive's immediate family, from New York to the
Southern California area. Executive also shall be entitled to reimbursement for
any taxes incurred by Executive by reason of the Company's payment of moving
expenses hereunder.
(i) Automobile Allowance. During Execu-
tive's employment hereunder, the Company shall:
a) Pay Executive an automobile allowance in an
amount equal to Executive's monthly automobile lease
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payment, but not to exceed $500 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 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.
(j) Interim Living Expenses. From the Start
Date until the earlier to occur of (A) the securing of permanent housing in the
Southern California area for Executive and Executive's immediate family, or (B)
July 31, 1998, Executive shall be entitled to reimbursement by the Company, in
accordance with the Company's policies, for the following expenses actually and
reasonably incurred by Executive:
i) Apartment or housing rental expenses,
but not to exceed $1,250 per month;
ii) Furniture rental expenses, but not to
exceed $250 per month;
iii) Expenses for travel between Southern
California and New York for Executive and his immediate
family, but not to exceed $1,000 per month; and
iv) Reasonable living expenses for which
receipts are furnished by Executive, but not to exceed
$750 per month.
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In addition, the Company shall advance any deposits required by the lessor in
connection with the rental of an apartment, house or furniture under subsections
(i) and (ii) above. If Executive secures permanent housing in the Southern
California area for Executive and Executive's immediate family on or before
August 31, 1997, the Company shall pay Executive a relocation bonus in the
amount of $35,000, which amount shall be payable to Executive not later than the
last pay period of the 1997 calendar year; provided, that Executive must be
employed by the Company on the date of payment of such relocation bonus to be
eligible to receive such relocation bonus.
(k) Home Loan Guaranty. Upon request by
Executive, the Company shall provide a guaranty of a loan obtained by Executive
to purchase a permanent residence in Southern California for Executive and
Executive's immediate family, which guaranty shall not exceed the lesser of (A)
10% of the purchase price for such residence or (B) $75,000; provided, that the
Company will not make such guaranty unless and until it obtains shareholder
approval of such guaranty, the terms of such loan and guaranty and the documents
relating to such loan and guaranty must be reasonably acceptable to the Company
in form and substance, and the guaranty must be secured by deeds of trust on the
residence being purchased by Executive and on Executive's home in Mahopac, New
York. Executive agrees to sign documentation evidencing his and the Company's
obligations under the guaranty, and to obtain a release of such guaranty upon
the earliest to occur of (i) the termination of Executive's employment under
this Agreement, (ii) the sale of Executive's home in Mahopac, New York, or (iii)
the third anniversary of the date such guaranty is made. If Executive does not
promptly obtain the release required under the preceding sentence, the Company
may withhold any amounts owed to Executive under this Agreement up to the
outstanding amount of such guaranty.
6. Termination or Resignation.
(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
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
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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; or
(vii) Executive's failure to move his
immediate family's permanent residence to the Southern California area on or
before July 31, 1998.
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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).
(g) Date of Termination. "Date of Termina-
tion" shall mean the date of death, the date of receipt of
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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
or Resignation.
(a) Termination for Cause. If this Agree-
ment 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 (A) $180,000 if the Date of Termination is before the first
year anniversary of the Start Date, (B) $120,000 plus one week of Executive's
salary as set forth in Section 5(a) if the Date of Termination is on or after
the first year anniversary but before the second year anniversary of the Start
Date, or (C) $60,000 plus two weeks of Executive's salary as set forth in
Section 5(a) if the Date of Termination is on or after the second year
anniversary but before December 31, 1999. Any amounts owed to Executive pursuant
to subsection (ii) above shall be paid at the rate of $7,500 per month
commencing one month from the Date of Termination until paid in full. In
addition, Executive shall be entitled to reimbursement by the Company, in
accordance with the Company's policies, for reasonable and customary moving
expenses actually and reasonably incurred by Executive, but not to exceed
$20,000, in connection with moving Executive and Executive's immediate family,
together
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with the personal belongings of Executive and Executive's immediate family, out
of Southern California; provided, that Executive completes such move on or
before the date that is six months after the Date of Termination.
(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 (i) the Minimum Payments and (ii) if the Date of
Termination is on or before December 31, 1997, then an amount equal to two weeks
of Executive's salary as set forth in Section 5(a). In addition, if the Date of
Termination is on or before December 31, 1997, Executive shall be entitled to
reimbursement by the Company, in accordance with the Company's policies, for
reasonable and customary moving expenses actually and reasonably incurred by
Executive, but not to exceed $20,000, in connection with moving Executive and
Executive's immediate family, together with the personal belongings of Executive
and Executive's immediate family, out of Southern California; provided, that
Executive completes such move on or before the date that is six months after the
Date of Termination.
(e) Exclusivity of Payments. Upon termina-
tion of Executive's employment hereunder, Executive shall not be entitled to any
severance payments or severance benefits 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 any payments under this
Section 7 upon termination of employment will cease if Executive breaches any
provision of Sections 8 or 9 below.
8. Proprietary Information.
(a) Definition. Executive hereby acknowl-
edges 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,
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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 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 in
any manner to 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.
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(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.
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.
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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 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
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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 of the Company.
(a) The Company will allow Executive and
Executive's creative staff to spend a reasonable amount of time (in an amount
agreed to in advance by the Company) on pro xxxx work in connection with
planning and organizing each National Book Awards Dinner scheduled during the
term of this Agreement. The Company shall reimburse Executive, in accordance
with the Company's policies, for all necessary and reasonable out-of-pocket
expenses actually incurred by Executive in connection with his attendance at
each such dinner.
(b) The Company shall reimburse Executive,
in accordance with the Company's policies, for all reasonable costs and expenses
actually incurred by Executive in connection with a trip by Executive and
Executive's spouse from New York to Southern California for the purpose of
reviewing possible living accommodations.
13. 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.
(b) Executive shall undergo a physical
examination during January of each year during the term of this Agreement to be
performed by a reputable doctor chosen by Executive. The Company shall reimburse
Executive, in accordance with the Company's policies, for all reasonable costs
and expenses actually incurred by Executive in connection with each such
examination.
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14. Representation by Counsel.
Executive acknowledges that he has been
represented by legal counsel in connection with this Agreement and has consulted
with such legal counsel. The Company shall reimburse Executive for all
reasonable attorneys' fees and expenses actually incurred by Executive, but not
to exceed $2,500, in connection with such representation.
15. Reimbursement of Expenses.
Executive shall promptly furnish to the
Company adequate records and other documentary evidence as requested by the
Company to substantiate any costs or expenses for which reimbursement is sought
hereunder.
16. 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.
17. 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: President
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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18. 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.
19. Amendment; Waiver; Governing Law.
No provisions of this Agreement may be modi-
fied, 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.
20. 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.
21. 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.
22. Attorneys' Fees.
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'
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17
fees) incurred in arbitrating or otherwise resolving such dispute.
23. 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.
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
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman of the Board
EXECUTIVE
/s/ XXXX XXXXXX
-----------------------------------
Xxxx Xxxxxx
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