Exhibit 4.3
CONTRACTOR AGREEMENT
This Agreement is entered into as of December 31, 2001 between Odyssey Pictures
Corporation, a Nevada corporation ("Odyssey"), with offices at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and Xxxxxxxxx Xxxxxxx, residing at:
00000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxxx, 00000 XXX
1. Term. The term of this Agreement shall commence on January 1,
2002 and end on December 31, 2005(the "Term"), unless this
Agreement is earlier terminated pursuant to the provisions of
Paragraph 11.
2. Services.
(a) Odyssey hereby enters into this agreement with
Contractor as Vice President of Production of Odyssey
with powers and duties consistent therewith and as
may be delegated or assigned by the Board of
Directors of Odyssey or its Chief Executive Officer
and/or President from time to time, and Contractor
hereby agrees to accept such engagement on the terms
and conditions herein set forth.
(b) Contractor's services shall be performed at
Contractor's own facilities. Contractor understands
and agrees that Contractor's duties may require
extensive temporary travel both in the U.S. and
abroad. Contractor's travel and accommodations will
be in accordance with Odyssey's company policy for
executive travel and accommodations as it is or may
change from time to time; provided, however, in the
event that it is necessary for Contractor to travel
in connection with his duties hereunder, with a major
director or star who travels first class, Contractor
shall be entitled to also travel first class. If
Contractor is required to stay overnight in a hotel
in connection with his duties hereunder, Contractor
shall be entitled to stay at a hotel of his choice in
at reasonable room rates. Contractor shall be
entitled to a per diem of no less than $150.00 per
day.
(c) During the term of this Agreement, Contractor shall
devote his full business time and energies to the
performance of his duties hereunder in an honest
manner and under the direction of the Board of
Directors of Odyssey and/or its Chief Executive
Officer and/or President.
3. Fixed Compensation. Odyssey shall pay Contractor a contract
rateof $60,000 per year during the Term, payable in
semi-monthly installments on the first and sixteenth of every
month. An annual review between Odyssey and Contractor shall
occur no later than one (1) week prior to the anniversary date
of thecontract. During such review, Odyssey and Contractor
shall determine whether an increase in base rate and bonuses
and participations, including travel and accommodations, per
diem, and their related terms and conditions shall be
recommended to the Board of Directors for approval.
4. Stock Options. Odyssey hereby grants Contractor qualified
stock options to purchase shares of Odyssey's Common Stock,
pursuant to r any plan subsequently adopted and approved by
the Board of Directors or the stockholders or both
(individually and collectively, the "Plan") at an exercise
price equal to the fair market value of Common Stock, as
quoted on NASDAQ on the date prior to the date hereof (the
"Exercise Price"). The Options are exercisable in whole or in
part or in parts at any time up to the end of the Term,
subject to earlier termination pursuant to the Plan or as
herein provided. Options granted under this Paragraph 4 shall
not be transferable by Contractor.
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5. Use of Odyssey's Staff. Contractor shall be entitled to use
the assistance of the staff of Odyssey or that of other
secretaries employed by Odyssey for the purpose of performing
Contractor's necessary duties.
6. Bonus. Contractor shall be entitled to receive a cash bonus
for each motion picture for which Odyssey has "Concluded
Negotiations" (defined as a contract signed by all parties and
without any remaining contingencies) during the Term with
respect to the right to distribute said motion picture in the
Foreign Territory (the world, other than the United States,
Canada, their territories and possessions, military and
diplomatic installations wherever situated and common carriers
flying the United States or Canadian flag) or Domestic
Territory (the United States and Canada and their territories
and possessions, military and diplomatic installations
wherever situated and common carriers flying the United States
or Canadian flag), or both the Foreign and Domestic
Territories.
a) Payment Structure. Odyssey shall pay the following
Bonuses, based on the completions status as described
below, to Contractor for up to a maximum of eight (8)
pictures:
(i) $50,000 for each finished motion picture
acquired pursuant to a signed binding
contact brought to Odyssey by Contractor;
(ii) $75,000 for each motion picture for which
Odyssey has Concluded Negotiations, whose
direct cost budget is $7,000,000 or less,;
(iii) $150,000 for each motion picture for which
Odyssey has Concluded Negotiations, , whose
direct cost budget is between $7,000,000 and
$15,000,000;
(iv) $250,000 for each motion picture for which
Odyssey has Concluded Negotiations, whose
direct cost budget is more than $15,000,000.
b) When Paid. Each bonus shall be paid no later than
five (5) business days following the later of the
start of: a) principal photography according to such
motion picture's approved draw schedule; or b)
funding for the producer's line item per the approved
draw schedule.
7. Other Services. Contractor may be, during the Term, required
to or assigned to the position of Director of certain motion
pictures and television (mini) series or motion pictures that
Odyssey shall undertake (Other Services). In this case, a
separate agreement shall refer and outline the detail of the
Other Services and Odyssey may grant a leave during the time
that Contractor's services are used on an exclusive basis for
a particular project.
8. Vacation. Contractor shall be entitled to two (2) weeks of
paid leave from his duties per year during the Term.
Contractor shall request such leave thirty days prior to the
date of leave and keep the Chairman of the Board and/or
President of Odyssey fully advised of Contractor's location
and telephone numbers where Contractor can be contacted during
such paid leave and will maintain reasonable contact with the
offices of Odyssey during such vacations.
9. Benefit Plans. Contractor shall be entitled to participate in
such medical insurance, disability insurance and pension and
other Contractor plans as Odyssey shall from time to time make
available to the senior executives of Odyssey.
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10. Reimbursable Expenses. Contractor shall be reimbursed for all
reasonable business expenses incurred by Contractor on
Odyssey's behalf in the performance of his duties hereunder
against presentation of itemized accounts of such
expenditures, prepared in accordance with Odyssey's practices
consistently applied. Reimbursements shall be made only after
written request therefore. Such request shall generally be
submitted not less frequently than every thirty (30) days.
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11. Termination. This Agreement (subject to any cure periods
provided for hereunder) may be terminated by Odyssey prior to
the end of the Term for the following reasons by written
notice to Contractor:
(a) upon permanent physical or mental disability of
Contractor (for purposes of this Agreement, permanent
physical or mental disability shall be deemed to have
occurred when, as a result of physical or mental
illness, Contractor has been unable to materially
perform Contractor's duties as set forth in Paragraph
1 hereof for a period of one (1) calendar month); or
(b) notwithstanding any requirement of written notice,
immediately upon the death of Contractor; or
(c) Upon:
(i) refusal by Contractor to follow a lawful and
reasonable order or direction of the Board
of Directors of Odyssey or its Chief
Executive Officer or President.
(ii) the occurrence of any material breach by
Contractor of Contractor's obligations under
this Agreement;
(iii) conduct by Contractor that is determined by
a court to constitute a felony of moral
turpitude under any federal or state law,
except for a violation of any obscenity law
with respect to the production or
acquisition of motion pictures; or (iv)
Contractor shall commit any act or omit to
take any action in bad faith and to the
detriment of Odyssey or any of its
subsidiaries.
With respect to items (c)(i) and (c)(ii) there shall
be a cure period of seven (7) days after the written
notice of the refusal or material breach from Odyssey
to Contractor.
(d) Upon ninty days written notice if Odyssey determines
that it no longer desires to pursue lines of buisness
contemplated by this agreement or for financial
reasons at Odyssey's sole discretion.
12. Effect of Termination or Resignation. In the event that this
Agreement is terminated pursuant to Paragraph 11 above, or
Contractor shall resign Contractor's position prior to the end
of the Term, Odyssey shall have no further duties or
obligations under this Agreement, except:
(a) (i) in the event of a termination by Odyssey
under Paragraphs 11(b) or 11(c) hereof,
Odyssey shall be obligated to continue to
pay Contractor the compensation and benefits
pursuant to the terms of Paragraph 3 up to
the date of such termination; or
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(a) (ii) in the event of termination pursuant to
Paragraph 11(a), Odyssey shall continue to
pay Contractor the compensation payable
pursuant to Paragraph 3 for a period of one
(1) month after the date of such
termination; or
(a) (iii) in the event of a termination under
Paragraph 11 (d) Odyssey shall continue to
pay the compensation and benfits pursuant to
the terms of Paragraph 3 up through the end
of the ninty day period; or
(b) in the event of a termination by Odyssey
pursuant to Paragraphs 11(b) or 11(c) or
Contractor's resignation, the unexercised
portion of any options granted herein shall
terminate; or
(c) In the event of a termination of Contractor
for a reason other than as specified in
Paragraph 11, Odyssey shall be obligated to
continue to pay to Contractor all the
compensation and fringe benefits pursuant to
the terms of Paragraph 3 hereof up to and
including the last day of the Term (the
"Severance Period") in accordance with the
payment provisions set forth herein unless
and until Contractor commences employment or
contracts with another party. If during the
Severance Period Contractor materially
breaches his obligations under Paragraphs ,
13 or 14, Odyssey may terminate the
Severance Period and cease to make any
further payments or to provide to fringe
benefits.
13. Obligation to Mitigate Damages. Contractor shall be required
to mitigate the amount of any payment provided for in
Paragraph 10 by seeking other employment in the entertainment
industry, but subject to Paragraph 14, the amount of any
payment provided for in Paragraph 10(c) shall be reduced (but
not below zero) by any compensation and benefits earned by
Contractor from such subsequent employment.
14. Confidentiality. Except with respect to the
disclosure of the terms of this Agreement to agents
of Contractor, during the Term and at all times
thereafter, Contractor shall hold in confidence for
Odyssey and shall not publish, disclose or make
accessible to any other person or entity any
confidential information relating to the business and
affairs of Odyssey or its subsidiaries that may come
to Contractor's knowledge or has come to his
knowledge, including but not limited to, trade
secrets, "know-how," research projects, and matters
of a business nature, such as information about
costs, profits, markets, sales, customers and
suppliers, and other information of a similar
confidential nature, and plans for future development
of Odyssey and its subsidiaries ("Confidential
Information"). Except as required in the performance
of Contractor's duties to Odyssey under this
Agreement, Contractor shall not use for his own
benefit or disclose to any person, directly or
indirectly, any such information unless such use or
disclosure has been specifically authorized by
Odyssey in advance. This provision shall not apply to
court-ordered disclosure, deposition or other such
procedures. In the event Contractor is requested or
required (by oral questions, interrogatories,
requests for information or documents, subpoena,
Civil Investigative Demand or other process) to
disclose Confidential Information, Contractor will
provide Odyssey with prompt notice of any such
request or requirement so that Odyssey may seek an
appropriate protective order or waive Contractor's
compliance with this Paragraph 12. If, failing the
entry of a protective order or the receipt of a
waiver hereunder, Contractor is compelled to disclose
Confidential Information, Contractor may disclose
that portion of the Confidential Information which
Contractor's counsel advises you that you are
compelled to disclose.
15. Return of Documents and Property. Upon the
termination of the Contractor's employment by
Odyssey, or at any time upon the request of Odyssey,
Contractor (or Contractor's heir or personal
representative) shall deliver to Odyssey (i) all
documents and materials containing confidential
information relating to the business and affairs of
Odyssey or its subsidiaries, and (ii) all other
documents, materials and other property belonging to
Odyssey or its subsidiaries that are in the
possession or under the control of Contractor.
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16. Exclusivity; Non-Competition. Contractor agrees that he will
not:
(a) during the period that Contractor is employed by
Odyssey under this Agreement engage in, or otherwise,
directly or indirectly, be employed by, or act as a
consultant, advisor or lender to, or be a director,
officer, Contractor, owner, or partner of (other than
Contractor's currently operating corporation Pioneer
Pictures, Inc./Horus Worldwide Pictures), any other
business or organization, whether or not such
business or organization now is or shall then be
competing with the Odyssey or any of its subsidiaries
(provided, however, nothing herein shall prevent
Contractor from receiving credit or compensation of
any kind with respect to services provided to other
parties pursuant to contracts or otherwise, for
services rendered prior to the commencement of the
Term; and where Contractor provides services as a
Motion Picture and/or Television Producer and/or
Director and/or Screenwriter during the Term) and
(b) for a period of three (3) months after Contractor
ceases to be under contract by Odyssey in accordance
with Paragraph 11 or Contractor resigns before the
end of the Term, directly or indirectly, to engage in
or compete with Odyssey or its subsidiaries in the
business of international film distribution or film
finance (other than as a Motion Picture and/or
Television producer and/or director and/or
screenwriter), or be employed by, or act as
consultant, advisor or lender to, or be a officer,
Contractor, owner, or partner of, any business or
organization which, at the time of such cessation,
directly or in indirectly engages in or competes with
Odyssey or its subsidiaries in the business of
international film distribution or film finance; or
(c) for a period of six (6) months after Contractor
ceases to be under contract with Odyssey in
accordance with Paragraph 11 or Contractor resigns
prior to the end of the Term, whether for his own
account or for the account of any other individual,
partnership, firm, corporation or other business
organization (other than Odyssey and/or Contractor's
currently operating corporation, Pioneer Pictures,
Inc./Horus Worldwide Pictures), intentionally,
endeavor to entice away from Odyssey, or any of its
subsidiaries or otherwise interfere with the
relationship of Odyssey or any of its subsidiaries
with, any person who is employed by or otherwise
engaged to perform services for Odyssey or any of its
subsidiaries (including, but not limited to, any
independent sales representatives or organizations or
any suppliers of Odyssey or any of its subsidiaries)
or any person or entity who is, or was within the
then most recent twelve (12) month period a customer,
supplier or client of Odyssey or any of its
subsidiaries.
17. Other Project Exception. Notwithstanding all the foregoing,
Odyssey recognizes that Contractor is obligated to supply
non-exclusive services to his currently operating motion
picture and television company Pioneer Pictures, Inc./Horus
Worldwide Pictures and its related motion picture and
television projects, including all producing and/or directing
and/or screenwriting services. Such services may include, but
not limited to, telephone conferences, occasional conferences
in person and review of material. Said services to the extent
so required, may not, however, interfere with Contractor's
services hereunder in any material way except as Contractor is
required to produce and/or direct and/or write Motion Picture
and Television Projects.
18. Arbitration\Attorney's Fees. Any disputes arising under this
Memorandum of Agreement shall be resolved by arbitration in
Dallas, Texas in accordance with the rules of the American
Arbitration Association in Texas. Both parties shall be
entitled to engage in all forms of discovery as permitted by
the Civil Code. The party found to be liable pursuant to such
arbitration shall indemnify the other party for its costs
shall bear all costs of arbitration and its reasonable
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attorneys' fees. The arbitrator shall be familiar with the
motion picture industry.
19. Press Release. The parties agree to announce Contractor's
engagement hereunder with a press release mutually approved by
Odyssey and Contractor.
20. Miscellaneous. Texas law governs this Agreement without giving
effect to conflicts of law. Any waiver by a party hereto of
the breach of a right granted to such party hereunder shall
not operate as or be construed as a waiver of any other breach
of such provision or any breach of any other provision of this
Agreement. The failure of any party to insist on strict
adherence to any term of this Agreement on one or more
occasions shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. No waiver of
one provision hereof shall constitute a waiver of any other
provisions.
21. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof
and supersedes all prior oral and written agreements,
understandings and commitments between the parties. No
amendment to this Agreement may be made except in writing
signed by all parties hereto
22. Notices. Any notice, request, demand or other communication
required or permitted to be given under this Agreement shall
be in writing and shall be deemed properly given upon the
personal delivery thereof if delivered, or if mailed, three
(3) business days after having been mailed by registered mail
addressed to the party to which the notice is given:
If to the Odyssey:
Odyssey Pictures Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to the Contractor:
Xxxxxxxxx Xxxxxxx
00000 Xxxxxxxx Xx., Xxxxx 000
Xxxxxx Xxxx, XX. 00000
XXX
Any party may change the address to which such notices are to be
addressed by giving the other parties notice in the manner herein set forth,
provided that any notice of changed address shall be effective only upon
receipt. Any party may, in writing, designate its or his counsel to receive or
give any or all communications required or permitted to be given hereunder
IN WITNESS WHEREOF, the Odyssey has caused this Agreement to be
executed by its duly authorized office, and Contractor has executed this
Agreement, as of the date first above written.
ODYSSEY PICTURES CORPORATION
By:
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Xxxx Xxxxxx
AGREED AND ACCEPTED BY:
----------------------
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Xxxxxxxxx Xxxxxxx
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