Employment Agreement - Media Arts Group Inc. and Craig Fleming
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into as of
OCTOBER 31, 1996 (the "EFFECTIVE DATE") by and between MEDIA ARTS GROUP, INC.
(the "COMPANY"), and CRAIG FLEMING ("EMPLOYEE").
RECITALS
A. The Company desires to engage Employee to perform certain services for the
Company on the terms and conditions set forth herein.
B. The Employee desires to perform certain services for the Company on the terms
and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Term of Employment:
1.1 Term: On the term and subject to the conditions set forth in this
Agreement, the Company hereby employs Employee, for a period which shall begin
on the Effective Date and shall end on OCTOBER 31, 1997 or such earlier date of
termination as provided in this Agreement, and Employee hereby accepts such
employment. As used herein, the phrase "Employment Term" refers to the entire
period of employment by the Company hereunder.
1.2 Extension of Term: The term set forth in Section 1.1 may be extended
by written amendment to this Agreement signed by both parties.
2. Title and Responsibilities:
2.1 Title: Subject to the provisions of this Agreement, Employee shall
serve the Company during the Employment Term as a Vice President of the Company
or such other position as the Company may from time to time determine.
2.2 Responsibilities: During the Employment Term, Employee shall:
(i) devote such of his business time, energy and skill to the affairs of
the Company as shall be necessary to perform the duties of such position and at
all times during the Employment Term shall have the powers and authority which
are necessary to enable him to discharge his duties in the office which he holds
and which are commonly incident to such office. Employee shall promptly and
faithfully observe, comply with and conform to the policies, instructions,
directions, and requests of applicable senior management and the policies, rules
and regulations of the Company; and
(ii) serve the Company on a full-time, exclusive basis during the
Employment Term.
The Company may from time to time change Employee's responsibilities.
3. Salary, Benefits and Bonus Compensation:
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During the Employment Term, as full compensation for all services to be
performed by Employee pursuant to this Agreement, the Company agrees to pay
Employee compensation and provide Employee with benefits as set forth in this
Section 3.
3.1 Base Compensation: The Company shall pay Employee base compensation
of $150,000 per annum (the "BASE COMPENSATION") during the Employment Term. The
Base Compensation will be paid in equal installments in conformity with the
Company's normal payroll period.
3.2 Bonus Based on Sales:
In any fiscal year during the term of this agreement in which the "Net Sales",
as hereinafter defined, of the Company, excluding sales of John Hine Limited,
company owned Thomas Kinkade Galleries, Channel Management, QVC and the first 90
days of Signature Galleries equal a minimum of 5% growth, the Employee shall
receive a bonus of 1%. In any fiscal year during the term of this agreement in
which the Net Sales equal less than a minimum growth of 5%, the Employee shall
receive a bonus less the "Applicable Percentage", as hereinafter defined. This
bonus shall be effective January 1, 1997 and shall be paid quarterly, but only
if the Employee's services hereunder have not terminated. As used herein the
term "Net Sales" shall mean actual gross sales for any fiscal year during the
term of this agreement less claims and returns to a maximum base of $50 million.
As used herein the term "Applicable Percentage" shall mean the difference
between the actual growth percentage and 5%.
3.3 Cash Bonus: The Company shall pay Employee a cash bonus of $10,000
upon execution of this employment agreement and an additional $10,000 at which
time Employee relocates to Bay Area.
3.4 Artwork Bonus: Employee shall receive from the Company an artwork
bonus of $10,000 at wholesale cost in which to purchase any of the Company's
products.
3.5 Additional Benefits: In addition to his Base Compensation and
Bonuses Employee shall receive:
(i) Medical, dental and vision insurance coverage for Employee and his
dependents under the Company's group medical insurance plan, at a cost as set
forth in the plan; and
(ii) Life insurance coverage under the Company's life insurance coverage
plan, at a cost as set forth in plan; and
(iii) Vacation, sick time and personal time off under the Company's
Flexible Time Off (FTO) plan at an accrual of 13.33 hours per full month of
service; and
(iv) Eligible to participate in the Employee Stock Option Plan and
subject to the Media Arts Group Compensation Committees' approval will be
granted options to purchase 25,000 shares at fair market value at time of grant;
and
(v) $2,000 per month for a period of eight (8) months or until Employee
relocates to Bay Area whichever occurs first; and
(vi) $500 per month auto allowance per full month of service; and
(vii) such additional benefits as the Company may from time to time in
its sole discretion determine.
4. Termination of Employment:
4.1 Death, Disability, Termination for Justifiable Cause: Employee's
employment pursuant to this Agreement may be terminated at any time upon thirty
(30) days written notice of the Company upon the occurrence of any of the
following events;
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(i) Death of employee;
(ii) Disability of Employee (as defined below). For purposes of this
Agreement, the term "Disability" shall mean physical or mental incapacity, to
perform his duties in a normal manner for a total of three (3) months (whether
or not consecutive) in any twelve (12) month period during the term of this
Agreement; or
(iii) Justifiable Cause (as define below) for such termination. For
purposes of this Agreement, the term "Justifiable Cause" shall mean any of the
following:
(a) If Employee shall fail to perform any of his material
obligations under this Agreement, which failure continues after the Company
gives Employee written notice of such failure and an opportunity for thirty (30)
days to remedy such failure;
(b) If Employee shall have been dishonest, or shall have engaged
in willful misconduct in any material matter affecting the Company or;
(c) If Employee shall be convicted of, or shall plead guilty or
nolo contendere to, a felony where such crime materially interferes with
Employee's ability to fulfill his duties under this Agreement or is otherwise
materially injurious to the Company.
4.2 Corporate Reorganization: Employee's employment pursuant to this
Agreement may be terminated at any time upon (90) days written notice of the
Company in the event that the Company is taken over by or merges with another
corporate entity, or in any manner experiences a change in management control.
4.3 Effect of Termination: Upon any termination of this Agreement by the
Company pursuant to Section 4.1 or 4.2, the Company shall pay Employee at the
end of applicable notice period the accrued and unpaid amount of the Base
Compensation and Additional Benefits payable pursuant to Section 3.1 and 3.3,
prorated through the date of such termination, and the Company shall have no
further liability to Employee or his estate pursuant to this Agreement,
including without limitation, severance compensation.
5. Right to Company Materials: Employee agrees that all styles, designs, lists,
materials, books, files, reports, correspondence, and other documents ("COMPANY
MATERIALS") used, prepared, or made available to the Employee, shall be and
shall remain the property of the Company. Upon termination of employment of the
expiration of this Agreement, all Company Materials shall be returned
immediately to the Company; provided, however, that Employee shall be entitled
to make and retain any copies thereof with respect to matters involving
Employee.
6. Antisolicitation: Employee promises and agrees that while this Agreement
continues in effect, he will not influence or attempt to influence customers or
suppliers of the Company or of any of its present or future affiliates, either
directly or indirectly, to divert their business to any individual, partnership,
firm, corporation, or other entity then in competition with the business of the
Company, or any affiliates of the Company.
7. Soliciting Employees: Employee promises and agrees that which this Agreement
continues in effect, he will not directly or indirectly solicit any of the
employees of the Company or its affiliates to work for or invest in, as the case
may be, any business, individual, partnership, firm, corporation, Company or any
of its affiliates.
8. Restriction on Use or Disclosure of Trade Secrets: It is expressly understood
that Employee may be dealing with trade secrets of the Company and its
affiliates, including but not limited to information, system(s), inventions and
processes, all of a confidential nature, that concern the operations of the
Company or its affiliates and that are the Company's property and are used in
the course of the Company's business or that of its affiliates. Employee
promises and agrees that he will not disclose to anyone, directly or indirectly,
either while this Agreement is in effect or at any time in the course of his
employment with the Company or its affiliated. Employee
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acknowledges that the Company may use all remedies. including injunctive relief,
in order to enforce the provisions of this paragraph 8.
9. Choice of Law and Jurisdiction: The validity, interpretation and effect of
this Agreement shall be governed by the laws of the State of California
applicable to agreements to be performed wholly within California by California
residents.
10. Reorganization: This Agreement shall not be terminated by reason of any
merger or consolidation or reorganization of the Company. In the event any such
merger, consolidation or reorganization shall be accomplished by transfer of
assets or otherwise, the provisions of this Agreement shall binding upon and
shall insure to the benefit of the surviving or resulting corporation or person.
Subject to the succeeding sentence, this Agreement shall insure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
11. Counterparts: This Agreement may be executed in counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same instrument.
12. Notices: Any notices, requests, demands and other communications under this
Agreement shall be in writing and shall be delivered to the person or sent
commercial courier service or postage prepaid, and addressed as follows:
The Company: MEDIA ARTS GROUP, INC.
Attention: Sue Edstrom
521 CHARCOT AVE.
SAN JOSE, CA 95131
To Employee: CRAIG FLEMING
Any party may from time to time change its address for the purposes of notices
to that party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until actually received by the party sought
to be charged with its contents. All notices and other communications required
or permitted under this Agreement which are addressed as provided in this
Section 12 if delivered personally, shall be effective upon delivery and if
delivered by mail or by commercial courier service, shall be effective five (5)
days after deposit in the United States mail, postage prepaid, registered or
certified, return receipt requested or upon receipt by such party from the
commercial courier service, as the case may be.
13. Representations of Employee: Employee represents and warrants that he is now
(and will continue to be during the entire term of this Agreement) legally free
to enter into this Agreement and to perform the duties required hereunder and
that neither the execution and delivery of this Agreement nor the performance of
his obligations hereunder will result in any breach or violation of any other
agreement or instrument to which he is a party.
14. Entire Agreement Amendments: This Agreement constitutes the entire agreement
and understanding of the parties with respect to the matters dealt with herein
(including the compensation and employment benefits to which Employee is
entitled for periods from and after the Effective Date), and supersedes all
negotiations, representations or agreements and supersedes all negotiations,
representations or agreement and all other oral, written and other communication
between them concerning the subject matter hereof, and all prior arrangements
with the Company concerning employment compensation and benefits for periods
from and after the Effective Date. This Agreement may be amended in whole or in
part only by an agreement in writing signed by all parties hereto.
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15. Waiver: The waiver by one party of a breach of any of the terms or
conditions of this Agreement shall not operate or be construed as a continuing
waiver or as a consent to or waiver of any other subsequent breach thereof.
16. Fees: Should an action be instructed by either of the parties hereto in any
court law or equity pertaining to the enforcement or interpretation of this
Agreement, the prevailing party shall be entitled to recover, in addition to any
judgment or decree rendered therein, all court costs and reasonable attorneys'
and experts' fees and expenses.
17. Further Assurances: From and after the date of this Agreement, the parties
hereto shall cooperate in good faith to accomplish the objectives of this
Agreement and to that end agree to execute and/or deliver from time to time such
further instruments and documents as may be necessary and convenient to the
fulfillment of these purposes.
18. Captions: The Section captions inserted in this Agreement are for
convenience of reference and are not intended to influence the interpretation of
this Agreement.
19. Severability: Should any part or portion of this Agreement or any provision
thereof be held invalid, illegal or void, the remained of such part or portion
of this Agreement of provision thereof shall continue in full force and effect
as it the void, illegal or invalid part, portion, or provision had been deleted
therefrom or never included herein. In the event that declared invalid, the
parties hereto agree to use their best efforts to reform this Agreement in a
manner consistent with their original intentions.
20. Gender: The use of the masculine pronoun hereunder shall not be restrictive
as to gender and shall be interpreted in as cases as the context may require.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
MEDIA ARTS GROUP, INC.
By: /s/ Kenneth E. Raasch
-----------------------------------
Name: Kenneth E. Raasch
-----------------------------------
Title: CEO
-----------------------------------
EMPLOYEE:
/s/ Craig Fleming
-----------------------------------
CRAIG FLEMING
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TERM SHEET
FOR THE
EMPLOYMENT AGREEMENT OF
CRAIG FLEMING
BASE COMPENSATION: $150,000
BONUS: 1% of NET SALES growth adjusted annually to a maximum base
of $50M.
Base forecast for fiscal year 1997 is $28M with minimum growth of
$7M;
Base for year two is actual year 1 net sales with additional minimum
growth of $10M;
Base for year three is actual year 2 net sales with additional
minimum growth of $10M;
Base for year four is actual year 3 net sales with maximum base of
$50M with additional minimum growth of $10M;
Base for year five is actual year 4 net sales with maximum base of
$50M with additional minimum growth of $10M;
BONUS EXCLUDES SALES OF John Hine Limited, Signature Gallery sales
for the first 90 days, Company Thomas Kinkade Stores sales, and Channel
Management Sales (including QVC)
CASH BONUS: $20,000 - $10,000 paid upon execution of this employment
agreement $10,000 paid upon family relocation to Bay Area
ARTWORK BONUS: $10,000 of artwork at wholesale cost
STOCK OPTION BONUS: $25,000 options with a three year vesting period
RELOCATION BONUS: $2,500 per month for a period of eight months or until
family relocates to Bay Area whichever occurs first.
AUTO ALLOWANCE: $500 per month auto allowance
EMPLOYEE BENEFITS: Standard package of employee benefits