EXHIBIT 10.1b
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 18th day of June, 2001, by and
between FILM ROMAN, INC., a California Corporation, 00000 Xxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Company") and XXXX X. XXXX, Fairlea Ranch, P. 0.
Xxx 0, Xxxxxx, XX 00000 ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment:
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1.1 Company hereby employs Executive and Executive accept such
employment with the Company upon the terms and conditions set forth in this
agreement.
1.2 During the Term (defined below) Executive shall furnish
Executive's services to serve as President and Chief Executive Officer of
Company and its parent (Film Roman, Inc., a Delaware corporation) and such
subsidiaries as may be designated by Company. Executive's obligations (and
rights) while serving as President and Chief Executive Officer shall be
commensurate with those normally performed by a President and Chief Executive
Officer. In rendering services hereunder Executive shall report only to the
Board of Directors of Company's parent company (the "Board").
Executive shall serve as a Member of the Board during the Term hereof,
but not otherwise.
1.3 Executive shall devote Executive's best efforts and Executive's
business time and attention to the business of Company, subject to his
obligations to Producers Sales Organization ("PSO"), but Company shall always
have first priority of Employee's services. In connection with the foregoing,
Executive shall be expected to render services at such times and at such places
as the Board may from time to time designate; provided, however, that if Board
were to designate or to determine that Executive is to render services outside
of the Metropolitan Los Angeles Area, Executive shall not be required to render
such services for any continuous period of more than thirty (30) days without
his consent. Executive may perform services to PSO pursuant to any agreement
between that company and him, subject to Company's rights to require services
hereunder on a first priority basis as aforesaid.
1.4 Executive shall cooperate with Company to enable Company to
obtain, at its expense, life insurance on the life of Executive for the benefit
of Company in such amounts as Company may from time to time determine.
2. Term:
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(a) The Term ("Term") of this Agreement shall commence as of June 1,
2001 and shall continue unless sooner terminated as elsewhere provided for three
(3) consecutive "contract years" of twelve (12) successive months each.
(b) Company shall have the right, at its election, to extend the Term
hereof for an additional period of two (2) consecutive contract years commencing
upon expiration of the third contract year, by giving Executive written notice
to such effect no later than four (4) months prior to expiration of the third
contract year.
3. Termination:
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3.1 Company's Right to Terminate: Company shall have the right to
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terminate the Term of this agreement prior to the expiration date specified
herein:
(i) Upon the death of Executive;
(ii) For cause. "Cause" as used herein means (a) conviction of a
felony or a crime involving moral turpitude or the commission of any other
act involving willful malfeasance with respect to Company, (b) gross
negligence or willful misconduct with respect to Company, (c) Executive's
failure to adhere to Board policies or the Board-approved business plan
which is not cured within five (5) business days after notice of the same
from Company, or (d) any other material breach of this agreement not
covered above which is not cured within five (5) business days after notice
of the same from Company;
(iii) As provided in paragraphs 8 and 9 below; and
(iv) Without cause.
3.2 Effect of Termination:
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(a) With Cause: If Company terminates this agreement for cause
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Company shall have no further obligation to pay Executive any compensation
(other than accrued but unpaid compensation or expense reimbursement and accrued
but unpaid vacation days, if any).
(b) Death, Disability: If Company terminates this agreement because of
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Executive's death or disability (as defined below) Company shall have the
obligation to pay Executive Executive's compensation hereunder up to the time of
such termination (including that attributable to vacation time allowed to
Executive which has accrued but not been taken), and any unpaid expense
reimbursement.
(c) Without Cause: If termination hereunder is without cause Company
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shall pay all remaining compensation for the remainder of the Term, and
Executive shall have no obligation to seek other employment and Company shall
have no rights to mitigate such payments if Executive were to be otherwise
employed or engaged.
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(d) Change of Control: Executive shall have the right to terminate
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the Term hereof in the event of a change in control or duties (jointly "Change
of Control") by giving Company written notice to such effect within 30 days
after the happening of such event, in which event such termination shall be
treated as a termination without cause hereunder. For this purpose, "Change of
Control" shall mean:
(i) a merger, consolidation or other business reorganization in
which the shareholders of Company, immediately prior to the merger,
consolidation or business reorganization, would not, immediately after the
consolidation or merger, beneficially own, directly or indirectly, shares
representing in the aggregate more than 50% of all combined voting power of
the voting securities of Company or the surviving entity;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets in related transactions or the complete
liquidation of Company;
(iii) the sale of shares of voting stock in Company to any
"person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other
than Company, any trustee or other fiduciary holding securities under any
Company employee benefit plan), together with all "affiliates" and
"associates (as such terms are defined in Rule 12b-2 under the Exchange
Act) such that such person becomes the "beneficial owner" (as defined in
Rule 13d-3 and 13d-5 under the Exchange Act, or any successor rule or
regulation thereto as in effect from time to time), directly or indirectly,
of the Company's securities representing in the aggregate 50% or more of
either (a) the then outstanding shares of common stock of Company, or (b)
the combined voting power of all then outstanding securities of the Company
having the right under ordinary circumstances to vote in an election of the
Board of Directors of Company;
(iv) a change in the composition of the Board of Directors of
Company such that individuals who will constitute the entire Board of
Directors immediately preceding the commencement of the Term hereof,
("Incumbent Directors") cease for any reason to constitute at least a
majority of the Board of Directors, except that an individual who becomes a
member of the Board of Directors subsequent to the date of this Agreement
shall not be taken into account if such director's election, or nomination
for election by the Company's shareholders, was approved by a vote of at
least a majority of the then Incumbent Directors (other than an election or
nomination of an individual whose assumption of office is the result of an
actual or threatened election contest relating to the election of directors
of Company, as such terms are used in Rule 14a-11 under the Exchange Act);
(v) a tender offer (for which a filing has been made with the SEC
which purports to comply with the requirements of Section 14(d) of the
Exchange Act and the rules thereunder) is made for the stock of the
Company, upon the first to occur of (a) any time during the offer when the
"person" (as defined in (iii) above) making the offer owns or has accepted
for payment securities of the Company
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representing 50% or more of the combined voting power of the Company's then
outstanding securities or (b) three (3) business days before the offer is
to terminate unless the offer is withdrawn first, if the person making the
offer would own, by the terms of the offer plus any voting securities owned
by such person, if such tender offer were successful, securities
representing 50% or more of the combined voting power of the Company's
outstanding securities when the offer terminates;
(e) Constructive Termination: Executive shall have the right to
terminate the Term hereof in the event of a Constructive Termination (which
shall be treaded as termination without cause) by giving Company written notice
to such effect within 30 days after the happening of such event, in which event
such termination shall be treated as a termination without cause hereunder. For
this purpose, "Constructive Termination" shall mean:
(i) a reduction in the specified compensation, or the uncured
failure by the Company to fulfill its obligations under this Agreement
after written notice from Executive to Company;
(ii) any material diminution or adverse change in the duties,
authority, responsibilities, or position of the Executive, including, but
not limited to, a change to require that the Executive report to someone
other than the Board;
(iii) the assignment to Executive of duties or responsibilities
which are materially inconsistent or different from those customarily
performed by a person holding the management positions to be held by the
Executive pursuant to Section 1.2;
(iv) the relocation of the Company's corporate offices and/or
studio at which Executive is principally engaged to a location more than
(30) miles from the Company's current location.
4. Compensation:
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Company shall pay Executive the following compensation for its
furnishing of Executive's services hereunder:
4.1 Twenty-five Thousand ($25,000.00) Dollars payable prior to or
upon commencement of the Term, as a bonus for services rendered during term of
the prior agreement between PSO and Company dated December 9, 1999 (the "Prior
Agreement"), receipt of which amount is hereby acknowledge.
4.2 Payments aggregating One Hundred and Twenty Thousand
($120,000.00) Dollars per annum, for the first contract year;
4.3 Payments aggregating One Hundred and Thirty Thousand
($130,000.00) Dollars per annum for the second contract year;
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4.4 Payments aggregating One Hundred and Forty Thousand ($140,000.00)
Dollars per annum for the third contract year;
4.5 If Company exercises its option for the fourth and fifth contract
years, payments aggregating One Hundred and Fifty Thousand ($150,000.00) Dollars
per annum for the fourth contract year; and payments aggregating One Hundred and
Sixty Thousand ($160,000.00) Dollars per annum for the fifth contract year.
It is understood that payments shall be prorated if this Agreement is
terminated during any contract year, except as provided elsewhere with respect
to termination without cause. Executive shall not be entitled to any payments as
a Board Member. Additionally Executive shall not be entitled to any stock
options granted to Board Members as Non-Employee Directors it being understood
that the stock options granted to Executive shall be only those heretofore
granted and granted as provided for in paragraph 7 below.
5. Expenses:
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5.1 Executive is authorized to incur reasonable expenses in
connection with Company's business in such amounts as may be from time to time
approved by the Company. Company agrees to pay or to reimburse Executive for
such expenses which are reasonably incurred by Executive on behalf of or for the
benefit of Company upon the presentation by Executive from time to time of an
itemized account of such expenditures setting forth the date, the purposes for
which incurred, and the amounts thereof, and such other information as Company
may reasonably require, together with such receipts showing payments, as
Executive has been able to obtain. If Executive is required to travel, he shall
receive business class airfare (first class if business class not available)
except on flights within California, and first class accommodations.
5.2 Executive shall be entitled to a car allowance in the amount of
Five Hundred Dollars ($500.00) per month, which amount shall be reported as
income to Executive and shall cover all normal work-related automobile expenses
and shall be payable in accordance with Company's then-existing policies
(currently, payment to be made at the beginning of each applicable month).
6. Benefits:
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6.1 Executive shall be entitled to participate in Company's health
and benefit plans to the same extent as any other top management employee.
6.2 Company will accord Executive four (4) weeks paid vacation per
year; Executive shall be entitled to such vacation time, consistent with the
reasonable time requirements of Company without reduction of compensation to
Executive.
6.3 Executive shall be entitled to designate the person to act as his
assistant, provided that such assistant's salary is consistent with those
generally paid by Company for assistants to members of top management. Company
shall employ such assistant directly, on at-will basis.
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7. Stock, Options:
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7.1 In consideration for furnishing of Executive's services as
aforesaid Executive will be entitled to participate in the Company's parent's
Employee Stock Option Plan. Said Plan includes usual provisions included in a
non-qualified stock option plan including the right to satisfy the exercise
price with cash, promissory notes (if secured to the reasonable satisfaction of
Company's parent) or, with Company's parent's agreement, stock in the parent.
Executive acknowledges that such Plan is not intended to be an "incentive stock
option" within the meaning of Section 422A of the Internal Revenue Code of 1986
as amended and is to be considered in all respects as "non-qualified."
Executive has been furnished with a copy of Company's parent's 2000 Stock Option
Plan ("Plan") and a copy of Company's parent's standard form Non-Qualified Stock
Option Agreement.
7.2 Subject to Executive's execution of Company's parent's standard
form of Non-Qualified Stock Option Agreement (as modified by this Agreement)
effective as of the date hereof Company shall cause said parent to grant to
Executive the right and option to purchase from said parent all or any part of
an aggregate of 200,000 shares of Company's parent's common stock upon the terms
and conditions set forth in the Company's parent's standard Non-Qualified Stock
Option Agreement, subject to the Plan, except as hereby modified.
7.3 Specific terms applying to such options are as follows:
(a) Price: the exercise price for the 200,000 shares shall be the
market value as of the close of market on the date immediately preceding
the date of the grant, i.e., $.92 per share.
(b) Term: the options shall expire on the 10th anniversary of the
grant date unless terminated earlier per the Plan.
(c) Vesting:
(i) Options with respect to 100,000 shares shall vest in equal
quarterly increments over a three (3) year period commencing at the end of
the calendar quarter during which the Term hereof commences; the first
quarterly increment shall vest on the last day of such quarter, and each
subsequent quarterly increment shall vest at the expiration of each
calendar quarter thereafter.
(ii) Options with respect to the remaining 100,000 shares shall
vest, if at all, on a date which is six years subsequent to the date of the
grant if Executive is then employed, but vesting of such options shall be
accelerated as follows: options for 50,000 shares shall vest at the time
when the market value for Company's stock shall have maintained a $3.00
level for thirty consecutive days, if Executive is employed at such time;
all unvested options shall vest at the time when the market value for
Company's stock shall have maintained a $5.00 level for thirty consecutive
days, if Executive is employed at that time. If quotes for Company's stock
are available on a national exchange, the bulletin Board or otherwise, the
"market value" shall be the
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adjusted closing price for the stock as of the close of the market on the
date preceding the date of the grant.
(d) Termination for Cause: In the event for termination for
cause, all options granted shall terminate effective as of the date of such
termination;
(e) Termination for Death or Disability: In the event of
termination for death or disability, all unvested options shall terminate
effective as of the date of such termination;
(f) Termination Without Cause: In the event of termination
without cause, the options granted hereunder, to the extent not
theretofore vested, shall vest effective as of such termination;
provided that options provided for in paragraph 7.3(c)(ii) shall not
accelerate except as specifically therein provided or as provided in
the Plan, except that in event of Change of Control, the market value
of the shares must be at $3.00 (with respect to options exercisable at
that market value) or $5.00 (as to remaining options) at such time,
failing which there shall be no acceleration as to those that do not
meet those requirements; and
(g) Exercise in the Event of Termination: Except for termination
of the agreement for cause (in which event all options shall terminate
on the date of termination) all options to the extent exercisable at
the time of termination shall be exercisable for a period of twenty
four (24) months immediately following the month of termination,
unless they expire sooner because of any other conditions specified in
the Plan.
Executive's rights will otherwise be identical to those generally
accorded the other participants in the Plan for whom exceptions are
not extended and Executive will be subject to the such generally
applied arrangements, terms and conditions.
8. Incapacity:
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8.1 If Executive is physically or mentally incapacitated from
rendering services hereunder, and if Executive's incapacity or disability
shall continue for a period or aggregate of periods of eight (8)
consecutive weeks or more during any contract period of the Term of this
Agreement, Company may, at its option, terminate and cancel this Agreement
by notice mailed or delivered to Executive at any time prior to Executive's
return to work hereunder. Executive shall be deemed to be physically or
mentally incapacitated if Executive is unable for any physical or mental
reason whatsoever to devote adequate time to the business of the Company,
as determined by the Board.
8.2 If Company determines that Executive is permanently disabled and
if Executive does not agree, the determination shall be made by a panel of
three (3) doctors, the first to be chosen by Company, the second to be
chosen by Executive and the third to be chosen by the first two. Any doctor
selected by a party will not be affiliated, associated or related to the
party selecting that doctor in any manner whatsoever. The
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opinion of a majority of the panel of doctors shall be binding on the
parties hereto. Each party shall bear its own cost for their own doctor,
and the parties shall split the cost of the third doctor (unless it is
determined that Executive is not permanently incapacitated, in which event
all doctor costs shall be borne by Company).
9. Force Majeure; Discontinuance of Business:
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If Company is prevented from or materially hampered or interrupted in
conducting its business by reason of any present or future statute, law,
ordinance, regulation, order, judgment or decree, or by reason of any act of
God, or by reason of any contingency beyond the control of Company, then, if all
other top management Employees are also suspended, Executive's services and
Executive's compensation hereunder may be suspended as often as any such event
occurs and during such period of time as any such event continues while all such
other Employees' salaries continue to be suspended. The term of this agreement
shall automatically be extended by the period of any suspension hereunder. If
such suspension continues for sixteen (16) consecutive weeks or more either
party may terminate the Term while such suspension is still in effect, except
that Company may negate Executive's termination by then terminating such
suspension with the understanding that the Term may not again be suspended for
the same cause.
10. Company's Rights:
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10.1 Executive acknowledges that Company, shall own all right, title
and interest in and to the results of Executive's services hereunder, including
all material developed or conceived by Executive within the scope of his
engagement. Company shall have the right to use all such materials and the
elements thereof and the programs or other productions in which the material is
contained worldwide and in perpetuity, without limitation or restriction
whatsoever and Company may distribute, broadcast and otherwise exhibit, use
and/or exploit, in whole or in part, worldwide, in perpetuity, same in any
manner and through any media, whether presently in existence or subsequently
devised, as Company may elect. Executive hereby waives the so-called "moral
rights" of an author. Executive agrees and acknowledges that for purposes of
Section 201 of the United States Copyright Act and for ownership purposes, all
materials and the results and proceeds of Executive's services shall be
considered "works for hire" and Company shall have all ownership rights in the
material and services of Executive hereunder as the author thereof. Company
shall have no obligation to use the product of Executive's services.
If for any reason any materials and/or the results and proceeds of
Executive's services hereunder are not considered works for hire which are owned
by Company then Executive shall, and does hereby, assign to Company, in
perpetuity, all right (including but not limited to rights of copyright), title
and interest in and to such materials and/or the results and proceeds of
Executive's services, without any restriction or reservation whatsoever.
10.2 Company shall have the right to use, disseminate, reproduce,
print and publish Executive's name, likeness, voice and biographical material
concerning Executive as non-defamatory news or non-defamatory informative matter
in connection with Company's business.
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10.3 Executive's services and rights herein granted are unique in
character and value such that the loss thereof could not be reasonably
compensated for in damages in an action at law. Accordingly, Company shall be
entitled to equitable relief by way of injunction or otherwise to prevent the
breach or continued breach of this Agreement. The sole right of Executive as to
any breach or alleged breach hereof by Company shall be the recovery of money
damages, and the rights herein granted by Executive shall not be terminated by
reason of such breach. The waiver by either party of any breach hereof shall not
be deemed a waiver of any prior or subsequent breach hereof. All remedies of
either party shall be cumulative and the pursuit of one remedy shall not be
deemed a waiver of any other remedy.
11. Federal Communications Act:
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Reference is hereby made to Section 507 of the Federal Communications
Act, making it a criminal offense for any person, in connection with the
production or preparation of any program intended for broadcasting, to accept or
pay any money, service or other valuable consideration for the inclusion of any
matter as part of any such program or program matter without disclosing in
advance the same to the employer of the person to whom such payment is made or
to the person for whom such program is being produced, or to the station over
which such program is broadcast. Executive understands that it is the policy of
Company not to permit any Employee of Company to accept or pay any such
consideration, and Executive represents and agrees that Executive has not
accepted and will not accept, and has not paid and will not pay, any money,
services, or other valuable consideration for the inclusion of any "plug,"
reference or product identification, or any other matter in the programs
produced hereunder.
12. Confidential Information:
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Executive acknowledges that the information, observations, work product,
trade secrets and data obtained by Executive while engaged by Company and its
subsidiaries concerning the business or affairs of the Company or any subsidiary
thereof ("Confidential Information") are the property of Company or such
subsidiary. Therefore, Executive agrees that Executive shall not disclose to any
unauthorized person or use for Executive's own account any Confidential
Information without the prior written consent of the Board, unless and to the
extent that the aforementioned matters (i) become generally known to and
available for use by the public other than as a result of Executive's acts or
omissions to act or (ii) must be disclosed under a subpoena or other
governmental order or (iii) was possessed by Executive prior to Executive's
employment by the Company. Executive shall deliver to Company at the
termination of the employment period, or at any other time Company may request,
all memoranda, notes, plans, records, reports, computer tapes and software and
other documents and data (and copies thereof) relating to the Confidential
Information, work product or the business of Company or any subsidiary which
Executive may then possess or have under Executive's control.
13. Non-Compete, Non-Solicitation:
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During Executive's engagement and for two (2) years after the end of the
Term Executive will not attempt to hire or to solicit (for his own purposes or
for any other company) any regular employee (other than Executive's assistant or
Xxxxx Xxxxx) of or independent Executive rendering artistic or production
services to Company other than freelance actors or others who render
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services to Company on a non-exclusive basis. Further, during Executive's
engagement and for three (3) years after the end of the Term Executive will not
(i) transfer or attempt to transfer any projects in which Company is involved
(whether in negotiation, development or production) from Company to Executive or
to any other company and/or (ii) encourage any company or business with whom
Company is doing business (e.g. a network or other exhibitor) from ceasing to do
business with Company with respect to any project which is then in negotiation,
development or production.
14. Notices:
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All notices required to be given hereunder shall be in writing and shall be
delivered personally, electronically, or by express, certified or registered
mail to the respective addresses of the parties hereto set forth elsewhere in
this Agreement, or at such other addresses as may be designated by written
notice. Delivery of any notice shall be deemed conclusively made (i) if
personally delivered at the time of delivery, (ii) if delivered by transmittal
over electronic or telephonic transmitting devices (such as telex or telecopy)
to the addressee's telecopy or telex number, at the time of transmittal,
provided that the party to whom the notice is delivered has a compatible device,
(iii) if delivered by any private overnight express mail service, twenty-four
(24) hours after deposit with such service (this period shall be seventy-two
(72) hours if addressed to or from a party outside the United States), (iv) if
mailed, properly addressed and postage prepaid, three (3) business days from
date of mailing (seven (7) business days if mailed to or from a country other
than U.S.). A copy of any notice hereunder to Company shall also be given to the
Law Offices of Xxxxx X. Xxxx, P.C., 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000; a copy of any notice to Company shall also be given
to Xxxxxxx Xxxxxxx, Esq. Alschuler, Grossman, Xxxxx & Xxxxx, 0000 Xxxxxxx Xxxx
Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000.
15. Immigration:
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Company's engagement of Executive is subject to Executive's compliance with
the terms and provisions of the Federal Immigration and Naturalization Act. In
that regard concurrently with the execution of this agreement Executive shall
provide Company with such proof of Company's United States Citizenship or
authorization to work in the United States as may be required by the Immigration
and Naturalization Service and shall also complete and return to Company an I-9
Form or such other forms as may be required.
16. Arbitration:
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Any controversy or claim arising out of or relating to this agreement the
breach thereof or the coverage of this arbitration provision shall be settled by
arbitration pursuant to the provisions of Section 1280 et seq. of the California
Code of Civil Procedure, or such substitute provisions therefor then in effect.
Any arbitrators selected shall have experience in or knowledge of the business
in which the parties are primarily engaged. Any such arbitration shall be
conducted in Los Angeles, California before a single arbitrator or, if the
parties are unable to agree upon a single arbitrator, then before three
arbitrators, one selected by each party and the third (i.e. neutral) arbitrator
to be selected by the other two arbitrators. If the parties or the arbitrator(s)
appointed by the parties are unable to agree upon the selection of a neutral
arbitrator then any
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party may at its election require that the neutral arbitrator shall be selected
by the American Arbitration Association, Los Angeles, California. The
arbitration of all issues including the determination of the amount of any
damages suffered by any party hereto by reason of the acts or omissions of
another shall be to the exclusion of any court of law (except for court actions
permitted as provided below). The parties each acknowledge that they are giving
up the right to a trial by jury or by the court. The arbitrator(s) shall have
the full authority to award legal or equitable relief, such as but not limited
to specific performance, as the arbitrator(s) deem appropriate. However, the
arbitrator(s) shall not have authority or jurisdiction to award punitive
damages, the same being waived. There shall be no discovery except as authorized
by the arbitrator(s). The decision of the arbitrator or a majority of the
arbitrators shall be final and binding on all parties and their respective
heirs, executors, administrators, successors and assigns. Any action to secure
judicial confirmation of the arbitration award may be brought in any state or
federal court of competent jurisdiction. The prevailing party in any proceeding
brought under this paragraph or in any proceeding brought to enforce an
arbitration award hereunder shall be entitled to its costs and to its reasonable
attorneys fees incurred in connection with the preparation and conduct of any
such arbitration and/or any other proceeding hereunder. Arbitration hereunder
shall not in any event (i) prevent any party from seeking and obtaining interim
equitable relief including but not limited to prohibitory or mandatory
injunctions, specific performance or extraordinary writs in any court of law or
equity having jurisdiction nor (ii) prevent any party from enjoining any other
party in any action brought by or against a third party with respect to the
subject matter of the arbitration nor (iii) prevent any party from filing legal
action hereunder to effectuate any attachment or garnishment, provided that such
party stipulates in such action, at any other party's request, to arbitration on
the merits of the case, nor (iv) prevent a party from filing legal action to
compel arbitration under the arbitration provisions hereof.
17. General Provisions:
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17.1 Warranties: Executive warrants that he is free to enter into
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this Agreement and will not do or permit any act which will interfere with or
derogate from the full performance of Executive's services or Company's exercise
of the rights herein granted.
17.2 Indemnity: Executive shall hold Company, its licensees and
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assigns, and the directors, officers, employees and agents of the foregoing,
harmless from all claims, liabilities, damages, costs and legal fees arising
from any breach by Executive of any warranty or agreement made by Executive
hereunder. Company will hold Executive harmless from all claims, liabilities,
damages, costs and legal fees arising from the use of any material supplied
Executive by Company or incorporated at Company's discretion. The party
receiving notice of any claim or action subject to indemnity hereunder shall
promptly notify the other party. This indemnity shall survive any termination or
expiration of this Agreement.
17.3 Waiver: A waiver by either party of any of the terms or
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conditions of this agreement in any one instance shall not be construed to be a
waiver of such term or condition for the future, or any subsequent breach
thereof; all remedies, rights, undertakings, obligations and agreements
contained in this agreement shall be cumulative, and none of them shall be in
limitation of any other remedy, right, undertaking, obligation or agreement of
either party.
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17.4 Construction: This agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
entered into and fully to be performed therein. In view of the fact that this
agreement was in whole or in part negotiated and entered into in California, the
parties consent to and agree to submit to the jurisdiction of the courts of the
State of California (and/or the federal courts within California), and each
party agrees that service of process may be effected by mail (certified or
registered mail, return receipt requested), to or by personal service upon such
party (or any officer of a corporate party) at such party's address as set forth
in this agreement or such other address as such party may specify in writing.
Wherever the context of this agreement requires it, each gender shall
be deemed to embrace and include the others, and the singular shall be deemed to
embrace and include the plural.
17.5 Severability of Provisions: If any provision hereof as applied
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to either party or to any circumstance shall be adjudged by a court to be void
or unenforceable, the same shall in no way affect any other provisions hereof,
the application of such provision in any other circumstances or the validity or
enforceability hereof.
17.6 Entire Understanding: This agreement contains the entire
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understanding of the parties hereto relating to the subject matter herein
contained and supersedes any and all prior negotiations, understanding and
agreements between the parties (whether oral or in writing); this agreement
cannot be changed, rescinded or terminated except by a writing signed by the
Company.
17.7 Successors and Assigns: Except where expressly provided to the
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contrary, this agreement, and all provisions hereof, shall inure to the benefit
of and be binding upon the parties hereto, their successors in interest,
assigns, administrators, executors, heirs and devisees.
17.8 Paragraph Titles: The titles of the paragraphs of this agreement
----------------
are for convenience only and shall not in any way affect the interpretation of
any paragraphs of this agreement or of the agreement itself.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first above written.
FILM ROMAN, INC.
"Company"
By: /s/ Xxxxx X. Xxxx /s/ Xxxx X. Xxxx
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Its: Secretary XXXX X. Xxxx, "Executive"
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