EXHIBIT 10.4
SERVICE AGREEMENT
AGREEMENT made this 5th day of May, 2000, by and between WOW Entertainment,
Inc. (hereinafter referred to as the "Company"), and Xxxxx XxXxxx Enterprises,
Inc. (hereinafter referred to as "DME").
WHEREAS, the Company desires to retain the services of DME to perform the
services as set forth herein; and
WHEREAS, DME agrees to perform these services for the Company under the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Description of Services. DME agrees to act as consultant to the Company
in its business operation. DME shall: a) act as executive producer of the
Company's television programs; b) produce internet programming; c) maintain and
develop the Company's talent; d) manage and market the Company's merchandising;
e) license the Company's programs; and f) perform such other duties as
reasonably directed by the Company's President.
DME agrees that it will, at all times, faithfully, industriously and to the
best of its ability, experience and talents perform all of the duties that may
be required of it pursuant to the terms of this Agreement. In addition, DME
shall use its best efforts to produce the Company's television programs in
compliance with: 1) all industry broadcast standards; 2) a production budget
mutually agreed upon by the Company and DME; and 3) a production timetable to be
agreed upon by DME
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and the distributor of the programs.
2. Compensation. As full and complete compensation for DME providing the
services described in Section One, the Company shall pay to DME a fee equal to
$169,000 per year, payable monthly in accordance with the production budget
attached hereto as Exhibit A, on or before the second day of each month. The
first monthly payment shall be made on or before August 1, 2000. The fee for
such services shall be reviewed annually and may be increased as appropriate to
reflect increases in the cost of living, the success and prospects for the
business, and the time and effort devoted by DME to the business of the Company.
In no event, however, shall the fees be increased by more than 7% per annum
without the approval of the majority of the Company's board of directors (or, if
Xxxxx XxXxxx is the only director, without the approval of at least two (2) of
the following individuals: Xxxxx XxXxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxxx).
3. Independent Contractor Relationship. DME is retained by the Company
only for the purposes and to the extent set forth in this Agreement. Its
relationship to the Company during the term of this contract shall be that of an
independent contractor. DME agrees to use its independent judgment and
discretion in performing its duties and it shall be free to determine its
methods of performance of services. DME is not an agent, servant or employee of
the Company and shall not hold itself out as such. It shall have no authority to
bind the Company for the performance of any services or to otherwise obligate
the Company, its authority and responsibility being specifically limited to
providing the advice requested of it under the provisions of this Agreement. DME
shall not be considered, under the provisions of this Agreement or otherwise, as
having employee status with the Company. It is the intent of the parties to
carry out this Agreement under the provisions of this section and, it is
mutually agreed, the parties will strive to maintain the integrity of that
relationship.
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4. Term. This Agreement shall commence May 5, 2000, and shall remain in
effect until it is terminated. Without the payment of any termination fee and
upon thirty (30) days prior written notice to DME, the Company may terminate
this Agreement if: 1) DME materially fails or willfully refuses to perform its
duties hereunder; 2) one of DME's officers commits a criminal, fraudulent or
willful tortuous act that relates to the services to be provided under this
Agreement or otherwise adversely impacts the Company; or 3) the Company decides
not to produce a television program. With the payment of a termination fee in an
amount equal to the greater of (i) $169,000; or (ii) the amount previously paid
to DME by the Company pursuant to the terms of this Agreement during the prior
fiscal year and upon ninety (90) days prior written notice to DME, the Company
may terminate this Agreement for any reason. Upon one hundred and eighty (180)
days prior written notice to the Company, DME may terminate this Agreement for
any reason.
5. Assignment. This Agreement is personal to the parties hereto and may not
be assigned by either party, in whole or in part, without prior written consent
of the other party.
6. Modification. This Agreement may only be modified by a written amendment
executed by each of the parties hereto.
7. Applicable Law. This Agreement and any amendments hereto shall be
governed by and construed in accordance with the laws of the State of Indiana.
8. Severability. The invalidity of any one or more covenants, phrases,
clauses, sentences or paragraphs of this Agreement shall not affect the
remaining portions of this Agreement, or any part thereof, and in case of any
such invalidity, this Agreement shall be construed as if such invalid covenants,
phrases, clauses, sentences or paragraphs had not been inserted.
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9. Entire Agreement. This Agreement contains the entire agreement of the
parties. All other agreements, representations and warranties of the parties
whether oral or written are merged herein and have no force or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
herein first written above.
WOW ENTERTAINMENT, INC.
By: /s/ Xxxxx X. XxXxxx
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XXXXX XXXXXX ENTERPRISES, INC.
By: /s/ Xxxxx X. XxXxxx
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