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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
XXXXXX X. XXXXXXX
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into
as of January 1, 1997, by and between PANORAMA INTERNATIONAL PRODUCTIONS, INC.,
a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxx, an individual
("Employee"), with reference to the following:
A. The Company is in the business of producing and
distributing video tapes and publishing printed materials and color photography
books for sale to the tourist industry ("Business"). The Company's products
feature destination, historical and cultural topics such as national and state
parks, national monuments and historical sites.
B. Pursuant to that certain Employment Agreement, dated
as of September 25, 1995, between the Company and Employee ("Existing
Agreement"), Employee is employed as the Chairman of the Board and Secretary of
the Company.
C. Under the terms of the Existing Agreement, Employee's
employment by the Company has been on a month-to-month basis since September
25, 1996.
D. In order to provide greater stability to the
Company's management, the Company desires to enter into this Agreement in order
to replace and supersede the terms of the Existing Agreement.
E. Employee desires to remain in the employ of the
Company, and has agreed to continue his employment with the Company, subject to
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the various covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Employment; Duties; Exclusive Services.
1.1 Employment. Subject to the terms and
conditions hereof, the Company hereby employs Employee as the Chairman of the
Board of Directors and Chief Executive Officer of the Company and such other
position or title consistent with Employee's employment as the Chief Executive
Officer as may be designated by the Company's Board of Directors ("Board") from
time to time, and Employee hereby accepts such employment.
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1.2 Duties. Employee agrees that, as the
Chairman of the Board and Chief Executive Officer of the Company, he shall (a)
be responsible for the supervision and/or implementation of the Board's
policies and decisions in connection with the Business; (b) cooperate with the
Board and the Company's management in the formulation of the Company's programs
for strategic planning, operations, financing, services and marketing; and (c)
conduct such other executive level duties as may be assigned to him from time
to time by the Board.
1.3 Non-Exclusive Services. It is not intended
that Employee's employment hereunder be full time. Employee shall devote such
time and attention to the Company's Business as shall be necessary to perform
his duties hereunder, it being understood that Employee may and will engage in
other non-competitive business activities.
2. Effect on Existing Agreement. The parties hereby
acknowledge and agree that the Existing Agreement is hereby terminated and
superseded by this Agreement, and the Existing Agreement shall have no further
force or effect.
3. Term. Unless sooner terminated as hereinafter
provided, this Agreement shall be effective for a term ("Term") commencing as
of the date hereof and ending on December 31, 1999.
4. Compensation and Benefits. The Company shall pay the
following compensation and benefits to Employee during the Term hereof, and
Employee shall accept the same as payment in full for all services rendered by
Employee to or for the benefit of the Company:
4.1 Salary. A salary ("Base Salary") of $90,000
per annum, which shall accrue in equal monthly installments in arrears and
shall be payable in accordance with the payroll practices of the Company in
effect from time to time.
4.2 Bonus. In addition to the Base Salary, the
Company may grant to Employee a bonus or bonuses as further compensation and in
special recognition of his services to the Company. Any such bonus or bonuses
may be granted at the sole discretion of the Board and at such times and in
such manner as the Board may determine. It is currently anticipated that any
such bonus or bonuses shall be based, in part, upon the profitability of the
Company.
4.3 Fringe Benefits. Employee shall be entitled
to participate in health insurance and other benefits under the Company's
benefit plans and arrangements, including, without limitation, any employee
benefit plan or arrangement made available in the future by the Company to its
senior executives, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans
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and arrangements. The Company shall have the right to amend or delete any such
benefit plan or arrangement made available by the Company to its senior
executives and not otherwise specifically provided for herein.
4.4 Expenses. The Company shall reimburse
Employee for reasonable out-of-pocket expenses incurred in connection with the
Company Business and the performance of his duties hereunder, subject to (a)
such policies as the Board may from time to time establish, and (b) Employee
furnishing the Company with evidence in the form of receipts satisfactory to
the Company substantiating the claimed expenditures.
4.5 Vacation. Employee shall be entitled to the
number of paid vacation days in each calendar year determined by the Company
from time to time for its senior executive officers, but not less than fifteen
(15) days in any calendar year. Employee shall also be entitled to all paid
holidays given to the Company's senior executive officers.
4.6 Withholding and other Deductions. All
compensation payable to Employee hereunder shall be subject to such deductions
as the Company is from time to time required to make pursuant to law,
governmental regulation or order.
5. Representations and Warranties of Employee. Employee
represents and warrants to the Company that (a) he is under no contractual or
other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights of
the Company hereunder, and (b) he is under no physical or mental disability
that would hinder the performance of his duties under this Agreement.
6. Certain Covenants.
6.1 Noncompetition. The parties hereto
acknowledge that if Employee were to compete with the Company upon the
termination of his employment with the Company, Employee would necessarily use
Confidential Information (as defined below) in doing so. During the term of
this Agreement and for a period of two years thereafter, or, if Employee is
terminated for good cause or voluntarily terminates his employment hereunder,
then for the remainder of the term of this Agreement after such termination and
for a period of two years thereafter, ("Restricted Period") Employee shall not
have any ownership interest (of record or beneficial) in, or have any interest
as an employee, salesman, consultant, officer or director in, or otherwise aid
or assist in any manner, any firm, corporation, partnership, proprietorship or
other business that engages in any county or city in the United States and/or
any foreign country in a business which is similar to that in which the Company
is engaged in such county, city or part thereof at the commencement of the
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Restricted Period, so long as the Company, or any successor in interest of the
Company to the business and goodwill of the Company, remains engaged in such
business in such county or city to solicit customers or potential customers
therein; provided, however, that Employee may own, directly or indirectly,
solely as an investment, securities of any entity which are traded on any
national securities exchange or quoted on NASDAQ if Employee is not a
controlling shareholder of such entity.
6.2 Non-solicitation of Business, Employees, and
Consultants. During the Restricted Period, Employee shall not, directly or
indirectly:
(a) Solicit or assist any other person
to solicit any business (other than for the Company) from any present or past
customer of the Company; or request or advise any present or future customer of
the Company to withdraw, curtail or cancel its business dealings with the
Company; or commit any other act or assist others to commit any other act which
might injure the business of the Company;
(b) Hire, solicit or encourage any
employee of the Company to leave the employment of the Company or any of its
affiliates, or hire any such employee who has left the employment of the
Company or any of its affiliates within one (1) year of the termination of such
employee's employment with the Company or any of its affiliates; or
(c) Hire, solicit or encourage any
consultant then under contract with the Company or any of its affiliates to
cease work with the Company or any of its affiliates within one (1) year of the
termination of such consultant's engagement by the Company or any of its
affiliates.
6.3 Confidential Information and Trade Secrets.
Employee acknowledges that the nature of Employee's engagement by the Company
is such that Employee will have access to Confidential Information which has
great value to the Company and that except for Employee's engagement by the
Company, Employee would not otherwise have access to the Confidential
Information. Employee further agrees, during the term of this Agreement and at
all times thereafter, that he shall:
(a) Hold all Confidential Information in
strict confidence and not discuss, communicate or transmit to others, or make
any unauthorized copy of or use the Confidential Information in any capacity,
position or business as it directly relates to Employee's employment by the
Company;
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(b) Use the Confidential Information
only in furtherance of proper employment-related reasons of the Company to
further the interests and Business of the Company; and
(c) Take all reasonable actions that the
Board deems necessary or appropriate, to prevent unauthorized use or disclosure
of or to protect the interest of the Company in the Confidential Information.
6.4 Ownership and Return of Documents. Employee
agrees that all memoranda, notes, records, papers or other documents and all
copies thereof relating to Confidential Information, the operations of the
Company or the Business, some of which may be prepared by Employee, and all
objects associated therewith in any way obtained by Employee in connection with
his employment shall be the Company's sole and exclusive property. Employee
shall not, except for the Company's use, copy or duplicate any of the
aforementioned documents or objects, nor remove them from the Company's
facilities nor use any information concerning them except for the Company's
benefit, either during the Employee's employment or thereafter. Employee
agrees that he will deliver all of the aforementioned documents and objects
that may be in his possession to the Company upon termination of the Employee's
employment, or at any other time upon the Company's request, together with the
Employee's written certification of compliance with the provision of this
Section 6.4.
6.5 Rights and Remedies Upon Breach. If Employee
breaches or threatens to commit a breach of any of the provisions of Sections
6.1 through 6.4 hereof, inclusive (the "Restrictive Covenants"), the Company
shall have the following rights and remedies, each of which rights and remedies
shall be independent of the other and severally enforceable, and all of which
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company under law or in equity:
(a) Specific Performance. The right and
remedy to have the Restrictive Covenants specifically enforced by any court
having equity jurisdiction, all without the need to post a bond or any other
security or to prove any amount of actual damage or that money damages would
not provide an adequate remedy, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide adequate remedy to the Company; and
(b) Accounting and Indemnification. The
right and remedy to require Employee (i) to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits derived or received by Employee or any associated party deriving such
benefits as a result of any
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such breach of the Restrictive Covenants; and (ii) to indemnify the Company
against any other losses, damages (including special and consequential
damages), costs and expenses, including actual attorneys' fees and court costs,
which may be incurred by them and which result from or arise out of any such
breach or threatened breach of the Restrictive Covenants.
6.6 Severability of Covenants/Blue Pencilling.
If any court determines that any of the Restrictive Covenants, or any part
thereof, is invalid or unenforceable, the remainder of the Restrictive
Covenants shall not thereby be affected and shall be given full effect, without
regard to the invalid portions. If any court determines that any of the
Restrictive Covenants, or any part thereof, are unenforceable because of the
duration of such provision or the area covered thereby, such court shall have
the power to reduce the duration or area of such provision and, in its reduced
form, such provision shall then be enforceable and shall be enforced. Employee
hereby waives any and all right to attack the validity of the Restrictive
Covenants on the grounds of the breadth of their geographic scope or the length
of their term.
6.7 Enforceability in Jurisdictions. The Company
and Employee intend to and do hereby confer jurisdiction to enforce the
Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of the Company and
Employee that such determination not bar or in any way affect the right of the
Company to the relief provided above in the courts of any other jurisdiction
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
6.8 Certain Definitions. As used in this Section
6, the following terms shall have the meanings set forth below:
(a) The term "Company" shall mean (i)
Panorama International Productions, Inc., a Delaware corporation ("Panorama");
(ii) Tellurian Press, Inc., a California corporation d/b/a Sierra Press, Inc.
("Sierra"); and (iii) any company which either Panorama or Sierra may acquire
and into which either Panorama or Sierra may be merged and any present or
future subsidiary of either of them.
(b) The term "Confidential Information"
means all information or material not generally known by non- Company personnel
which (i) gives the Company some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the
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interests of the Company; (ii) which is owned by the Company or in which the
Company has an interest and (iii) which is either (A) marked "Confidential
Information," "Proprietary Information" or other similar marking, (B) known by
Employee to be considered confidential and proprietary by the Company or (C)
from all the relevant circumstances should reasonably be assumed by Employee to
be confidential and proprietary to the Company.
Confidential Information includes, but is not
limited to, the following types of information and other information of a
similar nature (whether or not reduced to writing): (1) financial information
(including, but not limited to, information relating to earnings, assets,
debts, prices, pricing structure, volume of purchases or sales or other
financial data whether related to the Company generally, or to particular
products, services, geographic areas, or time periods); (2) supply and service
information (including, but not limited to, information relating to goods and
services, suppliers' names or addresses, terms of supply or service contracts
or of particular transactions, or related information about potential
suppliers, and the extent that the combination of suppliers or use of a
particular supplier, though generally known or available, yields advantages to
the Company, details of which are not generally known); (3) marketing
information (including, but not limited to, information relating to details
about ongoing or proposed marketing programs or agreements by or on behalf of
the Company, sales forecasts, advertising formats and methods or results of
marketing efforts or information about impending transactions); (4) personnel
information (including, but not limited to, information relating to employees'
personal or medical histories, compensation or other terms of employment,
actual or proposed promotions, hirings, resignations, disciplinary actions,
terminations or reasons therefor, training methods, performance, or other
information pertaining to the Company's employees); and (5) customer
information (including, but not limited to, information relating to past,
existing or prospective customers, addresses or backgrounds, records of
agreements and prices, proposals or agreements between customers and the
Company, status of customers' accounts or credit, or related information about
actual or prospective customers as well as customer lists). Confidential
Information also includes any information described above which the Company
obtains from another party and which the Company treats as proprietary or
designates as Confidential Information, whether or not owned or developed by
the Company.
NOTWITHSTANDING THE FOREGOING, HOWEVER, NO
INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF (A) IT IS GENERIC
INFORMATION OR GENERAL KNOWLEDGE WHICH EMPLOYEE WOULD HAVE LEARNED IN THE
COURSE OF SIMILAR EMPLOYMENT ELSEWHERE IN THE TRADE; (B) IT IS INFORMATION THE
DISCLOSURE OF WHICH IS COMPELLED BY JUDICIAL OR ADMINISTRATIVE PROCEEDINGS
AFTER EMPLOYEE DILIGENTLY ATTEMPTS TO AVOID DISCLOSURE (WITHOUT EXPENDING HIS
OWN
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PERSONAL FUNDS) AND AFFORDS THE COMPANY THE OPPORTUNITY TO OBTAIN ASSURANCE
THAT SUCH DISCLOSURE WILL ATTEMPT CONFIDENTIAL TREATMENT; OR (C) IF IT IS
OTHERWISE PUBLICLY KNOWN OR IN THE PUBLIC DOMAIN.
7. Definitive Non-Competition Agreement. Upon
termination of this Agreement, Employee shall deliver to the Company a
definitive Non-Competition and Confidentiality Agreement to give effect to the
provisions of Section 6 hereof. However, neither the failure of Employee to
deliver either of such agreements nor the failure of the Company to require the
same shall otherwise affect the enforceability of the Restrictive Covenants.
8. Insurance. The Company shall have the right to take
out life, health, accident, "key-man" or other insurance covering Employee, in
the name of the Company and at the Company's expense in any amount deemed
appropriate by the Company. Employee shall assist the Company in obtaining
such insurance, including, without limitation, submitting to any required
examinations and providing information and data required by insurance
companies.
9. Termination.
9.1 Death or Total Disability of Employee. If
Employee dies or becomes totally disabled during the term of this Agreement,
Employee's employment hereunder shall automatically terminate. For these
purposes Employee shall be deemed totally disabled if Employee shall become
physically or mentally incapacitated or disabled or otherwise unable fully to
discharge Employee's duties hereunder for a period of 120 consecutive calendar
days or for 120 calendar days in any 270 calendar-day period. In making a
determination of disability, the Board shall utilize such medical and other
advice and consultation as the Board deems appropriate, but there is no
requirement of procedure or formality associated with the making of such
determination. During any period of disability in which Employee is unable to
perform his duties hereunder, Employee's Base Salary shall be payable to the
extent of, and subject to, the Company's policies and practices then in effect
with respect to sick leave and disability benefits.
9.2 Termination for Good Cause. Employee's
employment hereunder may be terminated by the Company for "good cause." The
term "good cause" is defined as any one or more of the following occurrences:
(a) Employee's breach of any of the
Restrictive Covenants contained in Section 6 hereof;
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(b) Employee's conviction by, or entry
of a plea of guilty or nolo contendere in, a court of competent and final
jurisdiction for any crime involving moral turpitude or punishable by
imprisonment in the jurisdiction involved;
(c) Employee's commission of an act of
fraud, whether prior to or subsequent to the date hereof upon the Company;
(d) Employee's continuing repeated
willful failure or refusal to perform Employee's duties as required by this
Agreement (including, without limitation, Employee's inability to perform
Employee's duties hereunder as a result of chronic alcoholism or drug addiction
and/or as a result of any failure to comply with any laws, rules or regulations
of any governmental entity with respect to Employee's employment by the
Company);
(e) Employee's material violation of any
duty of loyalty to the Company;
(f) Employee's commission of any act
which is detrimental to the Company's Business or goodwill; or
(g) Employee's breach of any other
provision of this Agreement, provided that termination of Employee's employment
pursuant to this subsection (g) shall not constitute valid termination for good
cause unless Employee shall have first received written notice from the Board
stating with specificity the nature of such breach and affording Employee at
least fifteen (15) days to correct the breach alleged.
9.3 Termination Without Cause. The Company may
terminate Employee's employment at any time and without cause at the sole
discretion of the Board, effective thirty (30) days after written notice to
Employee.
9.4 Severance Compensation. Upon the occurrence
of any of the events referred to in Sections 9.1 and 9.2 hereof, Employee (or
Employee's heirs or representatives) shall be entitled to receive only such
portion (if any) of the Base Salary as may theretofore have accrued but be
unpaid on the date on which the termination shall take effect. Upon the
termination of Employee's employment pursuant to Section 9.3 hereof, the
Company shall continue to pay to Employee, as severance pay, Employee's full
Base Salary as provided in Section 4.1 above for the remainder of the Term,
less any amounts Employee actually earns in respect of such period as a result
of his employment by any other employer. All payments required to be made by
the Company pursuant to this Section 9.4 shall be paid in the same manner and
at the times specified in Section 4 hereof.
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9.5 Return of the Company's Property. If this
Agreement is terminated for any of the foregoing reasons, the Company shall
have the right, at its option, to require Employee to vacate his offices prior
to the effective date of termination and to cease all activities on the
Company's behalf. Upon the termination of his employment in any manner,
Employee shall immediately surrender to the Company all lists, books and
records of, or in connection with, the Company's business, and all other
property belonging to the Company, it being distinctly understood that all such
lists, books and records, and other documents, are the property of the Company.
Notwithstanding the foregoing, however, the parties hereby agree that, upon the
termination of this Agreement, Employee shall have the right to keep his
personal laptop computer, docking platform and other peripheral equipment
attached or pertaining thereto.
10. Arbitration.
10.1 In General. Any claim, dispute or
controversy between the parties arising out of or relating to the employment of
Employee by the Company or the termination of Employee's employment by the
Company (including, without limitation, any claim relating to the purported
meaning, validity, interpretation, effect, enforceability, performance,
enforcement or breach of any provision of this Agreement, any wrongful
termination or discrimination claim, including state and federal statutory
claims), whether in contract or tort (collectively, "Dispute") shall be
resolved by final and binding arbitration conducted by the American Arbitration
Association ("AAA") in accordance with its commercial rules in Los Angeles,
California. The arbitrability of any such Dispute shall likewise be determined
in such arbitration. This agreement to arbitrate shall apply to any and all
claims asserted by Employee against the Company and/or any employee, officer,
alleged agent, director or affiliate of the Company, and any and all such
claims shall be deemed "Disputes" hereunder. Arbitration shall be conducted in
as expedited manner as is then permitted by AAA. The determinations, findings,
judgments and/or awards rendered through any such arbitration shall be final
and binding on the parties hereto and judgment thereon may be entered in any
court of competent jurisdiction.
10.2 Procedure. Any such arbitration proceeding
may be initiated by written notice from either party to the other which shall
be a compulsory and binding proceeding on each party. The arbitration shall be
conducted before one arbitrator selected in accordance with the rules
pertaining to expedited arbitration. The costs of said arbitrator and the
arbitration shall be borne equally by the parties hereto. Each party shall
bear separately the cost of their respective attorneys, witnesses and experts
in connection with such arbitration. Other costs of the arbitration, including
the cost of any record or transcripts of the arbitration, administrative fees,
and other fees and costs, shall be borne equally by the parties. Time is of
the essence of this arbitration procedure, and the arbitrator shall be
instructed and required to render his
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decision within ten (10) days following completion of the arbitration. The
arbitrator shall have the authority to grant any damages available under state
and federal law. The arbitrator shall not have the right to add to, subtract
from, or modify any of the terms of this Agreement, nor shall the arbitrator
have the power to decide the justice or propriety of any specific provision of
this Agreement or any matter reserved solely to the discretion of the Company.
10.3 Applicable Law, Etc. The arbitrator shall
follow any applicable federal law and California state law in rendering an
award. Any and all legal proceedings to enforce this Agreement, (including any
action to compel arbitration hereunder or to enforce any award or judgment
rendered thereby), shall be governed in accordance with Section 10.8 hereunder.
10.4 Exclusive Remedy; Survivability. This
agreement to arbitrate shall provide the exclusive remedy of the parties with
respect to any Dispute, and each party expressly waives any right he, she or it
may have to seek redress in any other forum. This agreement to arbitrate shall
survive the termination of this Agreement.
11. General Relationship. Employee shall be considered
an employee of the Company within the meaning of all federal, state and local
laws and regulations including, but not limited to, laws and regulations
governing unemployment insurance, workers' compensation, industrial accident,
labor and taxes.
12. Miscellaneous.
12.1 Modification; Prior Claims. This Agreement
sets forth the entire understanding of the parties with respect to the subject
matter hereof, supersedes all existing agreements between them concerning such
subject matter (including, but not limited to, the Existing Agreement), and may
be modified only by a written instrument duly executed by each party. Employee
hereby waives any claims that may exist on the date hereof arising from his
prior employment, if any, with the Company, other than for compensation payable
or reimbursement of reasonable expenses, all as incurred in the ordinary course
of business.
12.2 Assignment. The rights of the Company under
this Agreement may not be assigned by the Company without the prior written
consent of Employee. Further, this Agreement is an agreement for the personal
services of Employee and is not assignable or transferable by Employee. None
of the rights of Employee to receive any form of compensation payable pursuant
to this Agreement shall be assignable or transferable except through a
testamentary disposition or by the laws of descent and distribution upon the
death of Employee. Any attempted assignment, transfer, conveyance, or other
disposition (other than as aforesaid) of any
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interest in the rights of Employee to receive any form of compensation to be
made by the Company pursuant to this Agreement shall be void.
12.3 Survival. The covenants, agreements,
representations and warranties contained in or made pursuant to this Agreement
shall survive Employee's termination of employment.
12.4 Waiver. The failure of either party hereto
at any time to enforce performance by the other party of any provision of this
Agreement shall in no way affect such party's rights thereafter to enforce the
same, nor shall the waiver by either party of any breach of any provision
hereof be deemed to be a waiver by such party of any other breach of the same
or any other provision hereof.
12.5 Hiring At Will. Any continuance of
Employee's employment by the Company after the Term hereof shall be deemed a
hiring at will (unless such continuance is the subject of a new written
agreement) and shall be subject to termination with or without cause by either
party upon delivery of notice thereof.
12.6 Section Headings. The headings of the
several sections in this Agreement are inserted solely for the convenience of
the parties and are not a part of and are not intended to govern, limit or aid
in the construction of any term or provision hereof.
12.7 Notices. All notices, requests and other
communications hereunder shall be in writing and shall be delivered by courier
or other means of personal service (including by means of a nationally
recognized courier service or professional messenger service), or sent by telex
or telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, in all cases, addressed to:
Company:
Panorama International Productions, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Board of Directors
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With a copy to:
Loeb & Loeb, LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Employee:
Xxxxxx X. Xxxxxxx
0000 Xxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
All notices, requests and other communications shall be deemed given on the
date of actual receipt or delivery as evidenced by written receipt,
acknowledgement or other evidence of actual receipt or delivery to the address.
In case of service by telecopy, a copy of such notice shall be personally
delivered or sent by registered or certified mail, in the manner set forth
above, within three (3) business days thereafter. Any party hereto may from
time to time by notice in writing served as set forth above designate a
different address or a different or additional person to which all such notices
or communications thereafter are to be given.
12.8 Governing Law and Venue. This Agreement is
to be governed by and construed in accordance with the laws of the State of
California applicable to contracts made and to be performed wholly within such
State, and without regard to the conflicts of laws principles thereof. Subject
to the provisions of Section 10 hereof requiring arbitration of Disputes, any
and all legal proceedings to enforce this Agreement, including any action to
compel arbitration pursuant to Section 10 or to enforce or vacate any judgment
or award rendered therein, shall be brought in the state or federal courts
sitting in Los Angeles, California, the parties hereto hereby waiving any claim
or defense that such forum is not convenient or proper. Each party hereby
agrees that any such court shall have in personam jurisdiction over it and
consents to service of process by certified or registered mail, prepaid to the
address specified in Section 12.7 or in any manner authorized by California
law, and agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner specified by law.
12.9 Attorneys' Fees. Subject to the provisions
of Section 10 hereof with respect to arbitration, if any legal action,
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys' fees and
other
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costs it incurred in that action or proceeding, in addition to any other relief
to which it may be entitled.
12.10 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
12.11 Construction. The language in all parts of
this Agreement shall in all cases be construed simply, according to its fair
meaning, and not strictly for or against any of the parties hereto. Without
limitation, there shall be no presumption against any party on the ground that
such party was responsible for drafting this Agreement or any part thereof. As
used herein, the word "person" shall include any corporation, firm, limited
liability company, partnership or other form of association.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date hereinabove set forth.
"THE COMPANY":
PANORAMA INTERNATIONAL
PRODUCTIONS, INC., a Delaware
corporation
By:/s/Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, President
"EMPLOYEE":
/s/Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
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