Exhibit 10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of April
18, 1996 (subject to effectiveness pursuant to Section 15 hereof), between
Graphix Zone, Inc., a Delaware corporation (the "Company"), and Angela Aber
Cortright ("Employee").
RECITALS
WHEREAS, the parties acknowledge that Employee has abilities and expertise
that are unique and valuable to the Company;
WHEREAS, in view of such abilities and expertise, the Company desires to
retain Employee as Executive Vice President - Marketing and Secretary of the
Company; and
WHEREAS, the Company and Employee have determined that such engagement of
Employee is mutually beneficial and should be subject to a mutually acceptable
written agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the following
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, the parties hereto agree, intending to be legally
bound, as follows:
AGREEMENT
1. SERVICES.
(a) The Company hereby employs Employee as the Executive Vice
President - Marketing and Secretary of the Company and Employee hereby accepts
such employment on the terms and conditions set forth herein. In this regard,
Employee shall perform and discharge well and faithfully the duties and
responsibilities that shall be assigned to her from time to time by the Company
in connection with the conduct of its business, consistent with the duties
customarily performed by a corporate executive of similar stature, and shall
devote substantially all of her time, skill and effort to such duties and
responsibilities.
(b) Employee is not and shall not be engaged directly or indirectly
in any other business activity, or previously have contracted to perform such
activity at a future date which would prevent the performance of the obligations
hereunder or involve activities which would result in a breach of any provision
of this Agreement.
-1-
2. TERM.
(a) The term of this Agreement shall begin on the date hereof and
shall cease and terminate upon the earliest of (i) the close of business on
April 18, 1999 (the "Expiration Date"); (ii) the death of Employee; (iii)
termination by the Company for "cause" (as defined in Section 2(b)) or
otherwise; or (iv) termination by mutual agreement between the parties.
(b) As used in this Section 2, "cause" shall mean and be limited to
one or more of the following occurrences with respect to Employee:
(i) the willful and continued failure by Employee to
substantially perform her duties with the Company (other than any such
failure resulting from her incapacity due to physical or mental illness)
after a written demand for a substantial performance is delivered to
Employee by the Board of Directors of the Company which specifically
identifies the manner in which the Board of Directors believes that
Employee has not substantially performed her duties; or
(ii) gross negligence or willful misconduct of Employee in the
performance of her duties.
3. COMPENSATION.
(a) The Company shall pay to Employee a base salary of One Hundred
Twenty Thousand Dollars ($120,000) per year, payable in semi-monthly
installments.
(b) Employee shall receive bonus payments pursuant to a bonus plan to
be adopted by the Company which provides for the payment of cash and stock
bonuses based on the Company's achievement of specified target milestones and
profits. Such bonus plan (and amounts payable thereunder) shall be consistent
with plans typically adopted by companies in the Company's industry which are of
comparable size.
(c) If Employee's employment pursuant to this Agreement is terminated
by the Company other than for "cause" (as defined in Section 2 hereof), the
Company shall continue to pay Employee her base salary until the earlier of (i)
the one year anniversary of the termination date or (ii) the Expiration Date,
plus any amounts accrued through the termination date under the bonus plan
referred to in clause (b) above.
(d) During the term of her employment, Employee shall be entitled to
(i) four (4) weeks paid vacation each year, and (ii) participate in employee
benefit plans or programs of the Company, if any, to the extent her position,
tenure, salary, age, health and other qualifications makes her eligible to
participate, subject to the rules and regulations applicable thereto.
-2-
4. EXPENSES. The Company will reimburse Employee for direct out-of-
pocket expenses properly incurred by her in her performance of this Agreement
and provided that a written accounting is made to the Company by Employee.
5. CONFIDENTIALITY.
(a) Employee acknowledges that as a consequence of her relationship
with the Company, she has been and will continue to be given access to
confidential information which may include the following types of information:
financial statements and related financial information with respect to the
Company, trade secrets, computer programs, certain methods of operation,
procedures, improvements, systems, customer lists, supplier lists and
specifications and other private and confidential materials concerning the
Company's business (collectively, "Confidential Information"). Employee agrees
that she shall maintain any Confidential Information in strictest confidence and
shall not disclose any Confidential Information to third parties during the term
of this Agreement and after the termination hereof, however such termination
shall occur, unless previously approved by the Board of Directors of the Company
in writing.
(b) Notwithstanding the foregoing, nothing herein shall be construed
as prohibiting Employee from disclosing any Confidential Information (i) which,
at the time of disclosure, Employee can demonstrate either was in the public
domain and generally available to the public by publication or otherwise through
no act of Employee; (ii) which Employee can show was received by her after the
termination of this Agreement from a third party who did not acquire it directly
or indirectly from the Company under an obligation of confidence; (iii)to the
extent that Employee can reasonably demonstrate such disclosure is required by
law or in any legal proceeding, governmental investigation, or other similar
proceeding.
6. PREVIOUS EMPLOYMENT. Employee hereby represents that Employee's
execution of this Agreement, employment with the Company and performance of
Employee's proposed duties to the Company in the development of its business
will not violate any obligations Employee may have to any former employer,
including, but not limited to, any obligations to keep confidential any
proprietary or confidential information of any such employer. Employee has not
entered into, and Employee will not enter into, any agreement which conflicts
with or would, if performed by Employee, cause Employee to breach this
Agreement. Employee hereby represents, warrants and covenants to the Company,
that in the course of performing Employee's duties to the Company, Employee will
not utilize any proprietary or confidential information of any former employer.
7. NO WAIVER; AMENDMENTS, ETC.. The failure of any party to insist upon
the strict performance of any of the terms, conditions or provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No interpretation, amendment, changes, or other
modifications or waivers of any of the provisions of this Agreement shall be
binding upon the Company or Employee unless in writing and signed by the person
to be bound.
-3-
8. RIGHTS, OBLIGATIONS AND ASSIGNMENT. The rights and obligations of the
Company under this Agreement shall inure to the benefit of, and shall be binding
upon, its successors and assigns. The duties of Employee to any such successor
entity shall not be greater than the duties performed for the Company prior to
such succession. Employee is prohibited from making any assignment of this
Agreement.
9. ENTIRE AGREEMENT. This Agreement embodies the entire understanding
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the parties in connection
therewith.
10. SEVERABILITY. If any of the provisions of this Agreement shall for
any reason be adjudged by any court of competent jurisdiction to be invalid or
unenforceable, such judgment shall not affect, impair or invalidate the
remainder of this Agreement, but shall be confined in its operations to the
provision of this Agreement directly involved in the controversy in which such
judgment shall have been rendered.
11. NOTICES. Notices, other communications or deliveries required or
permitted under this Agreement shall be in writing directed as follows:
If to the Company, at: Graphix Zone, Inc.
42 Corporate Park, Suite 200
Irvine, California 92714
Attn: Chairman of the Board
If to Employee, at: Ms. Angela Aber Cortright
23 San Mateo Way
Corona del Mar, California 92625
The parties may designate by notice to each other any new address for
the purpose of this Agreement. Unless otherwise specified in this Agreement,
all notices shall be effective when mailed postage prepaid by registered or
certified mail, return receipt requested.
12. APPLICABLE LAW. This Agreement shall be interpreted, enforced and
construed in accordance with the laws of the State of California.
13. HEADINGS. The captions and headings contained in this Agreement are
for reference purposes only and shall not affect the interpretation or meaning
of this Agreement.
14. ATTORNEYS' FEES. In any dispute related to this Agreement, the
prevailing party shall, in addition to all damages, be entitled to recover
reasonable attorneys' fees and costs.
-4-
15. EFFECTIVENESS. This Agreement and the terms and provisions set forth
herein shall become operative and effective immediately upon the consummation of
the merger of GZ Merger Corp., a California corporation and wholly-owned
subsidiary of the Company, with and into Graphix Zone, Inc., a California
corporation.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date and year first above written.
COMPANY:
GRAPHIX ZONE, INC.
By: /s/ Ronald S. Posner
---------------------------------
Ronald S. Posner,
Chairman of the Board
EMPLOYEE:
/s/ Angela Aber Cortright
------------------------------------
Angela Aber Cortright
-5-