EXHIBIT 6.17
EMPLOYMENT AGREEMENT
1. Date and Parties
THIS EMPLOYMENT AGREEMENT ("Agreement") is dated as of September 15,
1999, by and between TOTAL FILM GROUP INC., a Delaware corporation, with its
principal place of business at 0000 Xxxxxxxx Xxxxxxxxx, #000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 ("Employer") and XXXXXX XXXXX, an individual ("Executive").
2. Recitals
2.1 Employer is engaged primarily in the business of financing,
producing and distributing theatrical motion pictures and related products
and activities in the United States, and/ or elsewhere.
2.2 Executive has extensive experience and expertise in this
area.
2.3 The services to be rendered by Executive to Employer on a
full-time basis under this Agreement are essential to the eventual success of
Employer.
3. Employment
Employer hereby employs Executive and Executive hereby accepts
employment upon the terms and conditions hereinafter set forth.
4. Term
The term of this Agreement shall begin as of September 15, 1999, and
shall expire on August 31, 2004.
5. Services
The services to be rendered by Executive shall be as Chief Executive
Officer of Employer, and in such capacity Executive shall be responsible for
the day-to-day operation and management of Employer, making sure that
Employer's business operates smoothly and according to the policies and plans
set forth by the Board of Directors of Employer. Executive shall also be
responsible for such other duties as may be designated by Employer's Board of
Directors consistent with the foregoing named office. Employer further
engages Executive to render services exclusively for and as directed by
Employer as an executive producer of theatrical motion pictures and in any
other capacities designated by Employer in all areas and fields throughout
the entertainment industry subject to the terms and conditions of this
agreement. Executive hereby accepts such employment and agrees to keep and
perform, diligently and conscientiously, all of the duties assumed by him
under this agreement.
6. Extent of Services
6.1 Executive shall devote substantially all of his business time,
attention andenergies to his services as an employee of Employer and to the
furtherance of its business interests. Executive shall not during the term of
this Agreement be engaged in any other business activities which shall
substantially affect Executive's obligations to devote his time, attention
and energies to the affairs of Executive, without the consent of the Board of
Directors.
6.2 Executive agrees to render services as the chief executive
officer of the Employer and as an executive producer in theatrical motion
pictures and such other services as Employer may reasonably designate, on an
exclusive basis, and to devote sufficient time, attention, skills and efforts
in connection with Employer's business and to comply with all instructions
issued by Employer; to perform services conscientiously to the full limit of
his ability at all times and whenever and wherever required and desired by
Employer and as instructed by Employer. These shall include artistic taste
and judgment, Executive's agreement to faithfully perform such duties and
exercise such powers from time to time as the Board of Directors may
prescribe. This agreement, however, shall not be interpreted to prevent
Executive from having investments and devoting time to such personal matters
that may require attention so long as such activities will not interfere with
their performance of services required under this agreement.
7. Compensation
Employer shall pay to Executive as compensation for Executive's
services, for the term of this Agreement the following:
7.1 An annual salary of $350,000, subject to increases as authorized
by the Board of Directors, payable in equal monthly amounts, subject to
standard withholding and other payroll deductions, payable semi-monthly at
the 15th and at the end of each month during the term of this Agreement.
Additionally, on or before June 15 of each year, Employer shall pay to
Executive the sum of $29,166.67 as a bonus.
7.2 An annual bonus equal to 10% of the net profits of Employer
before income tax determined in accordance with generally accepted accounting
principles, consistently applied, to be determined by Employer's outside
accountants and paid as soon as such figure has been determined, but in no
event later than September 15th of each year commencing with the fiscal year
ending June 30, 2000.
7.3 If Executive's employment ends before the end of a fiscal year
of Employer, Executive's bonus shall be calculated by multiplying Employer's
net profit before income tax for such fiscal year by a fraction, the
numerator of which is the number of months Executive was employed by Employer
during such fiscal year treating any partial month as an entire month, and
the denominator of which is twelve. Such bonus shall be paid as soon as
practicable after Employer has determined its net profit for such fiscal
year. Employer shall be entitled to reduce the amount payable to Executive by
the amount of any draws previously paid to Executive not
previously reimbursed to Executive. Net profits shall be determined using
generally accepted accounting principles, consistently applied;
7.4 An executive producer's fee to be negotiated for each project
prior to the commencement of principal photography for each such project.
7.5 Employer agrees to reimburse Executive for all reasonable
business expenses incurred by Executive in connection with Executive's
services under this agreement. Executive shall also render services at such
other places as Employer may designate from time to time. When and if
Executive is required to render such services away from the home of
Executive, Employer agrees to furnish or reimburse Executive for first class
transportation and living expenses for Executive and one other person as may
be reasonably required on account of the rendition of such services, or to
pay Executive a fixed weekly sum as reimbursement for such expenses.
Employer's obligations under this paragraph shall not be affected by any
suspension for any cause or by any right on Employer's part to withhold
compensation payable to Executive, but shall continue to and including the
time that this agreement expires or is otherwise terminated.
7.6 Employer agrees to review the services provided by Executive
under this agreement at least annually and, subject to the direction of the
Board of Directors, depending upon the financial condition of Employer and
Executive's performance during the period in question, to increase or
decrease such compensation and/or award bonuses either directly or by way of
contributions to deferred compensation plans, such amount to be determined by
corporation in its sole discretion.
7.7 Employee shall have the right to elect to defer any part of the
compensation to be paid Executive provided that Executive delivers written
notice to Corporation prior to the date Executive obtains an unqualified and
unconditional right to the compensation.
8. Other Allowances
Employer agrees to pay to or on behalf of Executive:
8.1 Up to $1,500 a month to lease an automobile and all related
insurance, maintenance, gasoline and oil expenses for such vehicle.
8.2 The premium for medical, hospital and major medical insurance
covering Executive, his spouse and children up to age 25 and the amount of
medical and hospital expenses paid or payable for such persons not covered by
such insurance.
8.3 Vacation pay for 3 weeks each year as well as pay for all the
legal holidays provided by Employer for its full-time employees. At
Executive's option, each or all of this vacation time may be accrued and
Executive may elect to take the vacation time or payment in place of taking
the time off in later years. Employer acknowledges that Executive is still
entitled to his full 3 week vacation for the 3 fiscal year ending June 30,
1997, 1998 and 1999.
9. Authority
Executive shall have such authority as is conferred by Employer's
bylaws upon the person holding the position to which Executive is hereby
appointed, along with all authority customarily exercised by the person
holding such position, and such other and additional authority as may be
conferred upon or delegated to him by Employer's Board of Directors.
10. Life or Other Insurance
Employer may, in its discretion, at any time after the date of this
agreement, apply for and procure as owner and for its own benefit, insurance
on Executive's life, or any other insurance, such as health or accident
insurance, in such amounts and in such form as Employer may choose. Employee
shall have no interest whatsoever in any such policy but shall, at the
request of corporation, submit to such medical examinations, supply such
information and execute such documents as may be required by the insurance
company to whom Employer has applied for such insurance. Executive shall have
the right to have assigned to him any then existing life insurance policies
on his life existing at the end of the term of this agreement.
11. Illness or Incapacity
Executive shall receive full compensation for any period of illness
or incapacity during the term of this agreement. However, if Executive
develops an illness or incapacity which will totally disable him from
rendering services to Employer for a period of more than twelve months,
Employer shall have the right to suspend its payment obligation or terminate
this agreement at its option. Such right to suspend or terminate shall be
exercisable by Employer by giving at least thirty days written notice of its
intention to suspend or terminate this agreement. If Executive is able to
resume his duties under this agreement within thirty days following receipt
of such notice and if Executive shall continue to perform such duties on a
regular basis for three consecutive months, thereafter, this agreement shall
continue in full force and Employer's notice of intention to suspend shall
have no further effect. For purposes of this clause, Executive shall be
considered to be totally disabled if, by reason of illness or incapacity,
physical and mental, Executive is unable to fully perform all services
required of him or comply with each of his obligations under this agreement.
In such event, Employer shall have the right to have medical examinations of
Executive made by such physician or physicians as Employer may reasonably
designate, provided that Executive may have present or participating in such
medical examinations any physician of his own choice at his own expense.
12. Credit
Employer agrees to consult with Executive in connection with any
screen and advertising credit and billing to be accorded Executive for
particular services rendered by him under this agreement.
13. Miscellaneous
13.1 Severability. If, in any judicial proceeding, a court shall
refuse to enforce any part or parts of the agreement, then such unenforceable
parts shall be deemed eliminated from these provisions for the purpose of
those proceedings to the extent necessary to permit the remaining parts to be
enforced
13.2 Assignment. Executive's rights and obligations pursuant to this
Employment Agreement may not be assigned by Employer without Executive
consent which Executive may give or withhold in the sole and arbitrary
exercise of its discretion.
13.3 Notices. Any notices to be given under this agreement by either
party to the other may be effected by personal delivery in writing or by
mail, registered or certified, postage prepaid, with return receipt requested
or by fax. Mailed notices shall be addressed to the parties at the addresses
appearing below, but each party may change his or its address by written
notice in accordance with this paragraph. Notices delivered personally shall
be deemed communicated as of actual receipt; mailed notices shall be deemed
communicated as two business days after mailing, first class postage affixed.
Notices delivered by fax shall be deemed communicated on the business day
they are sent or if sent on a non-business day, on the next business day.
13.4 Entirety Clause. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties with respect to
the employment of Executive by Employer and contains all of the covenants and
agreements between the parties with respect to such employment in any manner
whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise
have been made by any party, or anyone acting on behalf of any party, which
are not embodied in this Agreement. Any modification of this Agreement will
be effective only if it is in writing signed by the party to be charged.
13.5 Damages. In the event of a breach of this Agreement by either
Employer or Executive resulting in damages to the other party, that party may
recover from the party breaching the Agreement any and all damages including,
without limitation, reasonable attorneys' fees and court costs that may be
sustained.
13.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
The parties have executed this Agreement on the date first above
written.
TOTAL FILM GROUP INC.
By: /s/ Xxx Xxxxx
Address: 0000 Xxxxxxxx Xxxx., #000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxx Xxxxx, "Executive"
Address: 0000 Xxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
