Agreement/
Page 1
CONSULTING AGREEMENT
This Memorandum of Agreement is made and entered into this 17th day of November,
1999 between MSH Entertainment Corporation, a public company incorporated in
Utah ("Company") and King/Fromkin Productions, Inc. ("CONSULTANT"), a private
company incorporated in New York, owned 50/50 by Xxxxxx Xxxx and Xxxxx Xxxxxxx
(collectively the "EXECUTIVES").
WITNESSETH:
WHEREAS, Consultant represents that he has expertise in the area of talent
contacts, literary experience, evaluating and packaging of entertainment and
literary properties, director, producer and writer relationships and the
intricacies of the entertainment business and is ready, willing and able to
provide consulting assistance to the Company on the terms and conditions set
forth herein; and
WHEREAS, Company, in reliance on Consultant's representations, is willing to
engage Consultant as an independent contractor, and not as an employee, on the
terms and conditions set forth herein with regards to motion films and videos of
all sorts;
NOW THEREFORE, in consideration of the obligations herein made and undertaken,
the parties, intending to be legally bound, covenant and agree as follows:
1. SERVICES: Consultant agrees to render services on a non-exclusive basis as a
Talent Packaging Consultant and Literary Consultant for Company and Consultant
accepts such engagement to provide consultation to Company regarding the
entertainment industry, relationships in The literary, theatrical, television
and music industry, the development, packaging, production and distribution of
motion pictures, Television movies and series.
2. TERMS: Consultant's services as a consultant shall commence The 17th day of
November, 1999 and shall continue for a period of One (1) year unless The term
is extended by both parties.
3. COMPENSATION: In consideration of the services rendered hereunder, Company
agrees to compensate Consultant for serving as a Consultant to the Company as
follows:
a. Executives shall receive One Hundred Thousand (100,000) shares of
Company common stock upon the execution of this Agreement. Said shares shall be
restricted under SEC Rule 144 and shall be divided equally between the
Executives.
b. One year from the date of signing of this Agreement, based upon
performance by Consultant, which shall be deemed to mean that Consultant was
directly responsible for arranging for packaging to the Company's acceptance,
two (2), or more of Company's projects and/or productions, Consultant shall
receive an additional One Hundred Thousand (100,000) shares of Common stock,
which shall be issued by Company to Consultant upon the date of renewal of this
Agreement.
Agreement/
Page 2
c. For each project Consultant packages to the Company's acceptance,
Consultant shall also serve as the co-producer(s) or co-executive producer(s) of
the project and receive a salary for same in accordance with the budget for the
project, be it a theatrical motion picture and/or a made-for-television movie
and/or made-for-home video project.
d. "Packaging" shall be defined to mean identifying the literary
property, attaching name stars and providing, if requested a director.
e. For each project accepted by the Company hereunder, individual deal
memos shall be negotiated with Consultant on a project-by-project basis
outlining salaries, expenses, draws, etc.
4. OTHER SERVICES: Other services to be provided by Consultant, if any, shall
be as mutually agreed upon by Company and Consultant and under a separate
addendum to this Agreement.
5. INDEPENDENT CONTRACTOR: It is agreed and understood that Consultant's
relationship to Company is that of an independent contractor. Accordingly,
Consultant shall be responsible for payment of all taxes and insurance to its
own employees applicable under existing laws, including but not limited to,
social security taxes, and federal, state and city income taxes. Consultant
warrants that Consultant will make all necessary payments due appropriate
governmental agencies to comply with the foregoing and to indemnify Company
against any claims, liabilities, costs or expenses that may arise out of breach
of the foregoing.
6. PROFESSIONAL AND WORKMANLIKE MANNER: Consultant agrees to render all
services generally and customarily performed in similar capacities in a
professional and workmanlike manner in accordance with specifications furnished
by Company. Consultant shall promptly comply with all instructions, directions,
requests, rules and regulations of Company in connection with Consultant's
services to be rendered under this Agreement.
7. OWNERSHIP AND COPYRIGHT: Unless Company and Consultant shall agree to the
contrary in a written instrument as described in Paragraph 3. e. above,
specifically a deal memo negotiated between the Parties on a project-by-project
basis, all right, title and interest in any and all projects including all
elements thereof will at all times belong solely and exclusively to Company for
use in any manner or media it may make or authorize throughout the world in
perpetuity. Similarly, any and all materials, ideas, or other creative or
literary property and Consultant's adaptations and arrangements thereof
furnished by Consultant hereunder will belong solely and completely to Company
for any use it may thereafter see fit and Consultant's services shall be deemed
those of an employee for hire for copyright purposes.
8. NON-USE BY COMPANY: Company shall not be obligated to use, develop,
implement or act upon any consultation given to Company by Consultant.
Agreement/
Page 3
9. DEATH OR DISABILITY OF CONSULTANT:
a. In the event of Consultant's death or disability while in the employ
of Company, this Agreement and the compensation due to Consultant pursuant to
Paragraph 3 hereof shall terminate upon the date of said death or disability and
Company shall thereafter be required to make payments only to Consultant or
Consultant's estate, as the case may be, for all amounts due to Consultant as
compensation for the services rendered hereunder through the date of death or
disability to the extent such amounts have accrued but have not been theretofore
paid.
b. Consultant shall be deemed disabled if, Consultant in the opinion of
Company, is unable to substantially perform the services required of Consultant
hereunder for a period in excess of 21 consecutive days or 21 days during any
90-day period. In such event, Consultant shall be deemed disabled as of such
21st day.
10. CONFIDENTIALITY: Consultant hereby acknowledges that during the term
thereof, Company may, from time to time, disclose to Contractor confidential
information pertaining to the business and affairs of Company and its clients,
including but not limited to, the customer lists and accounts and other similar
items indicating the source of income of Company. It is understood that
Consultant shall not, at any time during or after the term of this Agreement,
disclose to any third party or directly or indirectly make use of any such
confidential information, including but not limited to, the names, addresses and
telephone numbers of customers of Company other than in connection with, and in
furtherance of the business and affairs of Company. All documents and data
(whether written, printed or otherwise reproduced or recorded) containing or
relating to any such information, whether made or compiled by, or delivered or
made available to, or otherwise obtained by Company, shall be returned by
Consultant to Company at the time of the termination of this Agreement or upon
any earlier request by Company without Consultant retaining any copies, notes or
excerpts thereof.
11. ADDITIONAL INCENTIVE COMPENSATION: Company intends to implement an incentive
compensation program for its employees. The incentive compensation program shall
include the ability of Company's employees to receive additional shares of
Company stock through an ESOP, as well as incentive and non-qualified stock
options plans. To the degree possible Consultant may participate in these plans,
which shall be over and above the compensation proposed in Paragraph 3(b)
above, on the same basis as other employees is subject to the provisions
contained in Paragraph 17 hereunder.
12. SERVICES UNIQUE: It is agreed that the services to be rendered by Consultant
hereunder are of a special, unique, unusual, extraordinary and intellectual
character which gives them a peculiar value, the loss of which cannot be
reasonably adequately compensated in damages in an action at law and that a
breach by Consultant of any of the provisions contained herein shall cause the
Company irreparable injury and damage. Consultant expressly agrees that the
Company shall be entitled to injunctive or other equitable relief to prevent a
breach thereof. Resort to any such equitable relief shall not be construed as a
waiver of any of the rights or remedies which the company may have against
Consultant for damages or otherwise.
Agreement/
Page 4
13. APPLICABLE LAW AND SEVERABILITY: This document shall, in all respects, be
governed by the laws of the State wholly performed within the State of New York.
Nothing contained herein shall be construed so as to require the commission of
any act contrary to law, and wherever there is any conflict between any
provision contained herein and any present or future statute, law, ordinance or
regulation contrary to which the parties have no legal right to contract, the
latter shall prevail but the provision of this document which is affected shall
be curtailed and limited only to the extent necessary to bring it within the
requirements of the law.
14. ATTORNEY'S FEES: In the event any action be instituted by a party to enforce
any of the terms and provisions contained herein, the prevailing party in such
action shall be entitled to such reasonable attorney's fees, costs and expenses
as may be fixed by the Court.
15. MODIFICATIONS OF AMENDMENTS: No amendment, change or modification of this
document shall be valid unless in writing and signed by all of the parties
hereto.
16. SUCCESSORS AND ASSIGNS: All of the terms and provisions contained herein
shall inure to the benefit of and shall be binding upon the parties hereto and
their respective heirs, personal representatives, successors and assigns.
17. ADDITIONAL PROVISIONS: As an independent contractor, Consultant may consult
with Consultant's financial and legal experts concerning the tax ramifications
of Consultant receiving stock and options. Company is not responsible for any
tax consequences that may be created by Consultant receiving shares and
exercising of options. If because of Consultant's status as an independent
contractor, Executives cannot qualify for Company's incentive program, then
other arrangements shall be instituted whereby Consultant shall be granted
shares and options of equivalent value under a separate mutually agreed upon
arrangement.
18. ENTIRE AGREEMENT: This document constitutes the entire understanding and
agreement of the parties with respect to the subject matter of this Agreement,
and any and all prior agreements, understandings or representatives are hereby
terminated and canceled in their entirety and are of no further force or effect.
Agreement/
Page 5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AGREED AND ACCEPTED
By: /s/
--------------------------------
MSH Entertainment, Inc.
Its: President/CEO
--------------------------------
Today's Date: 11/30/99
-----------------------
AGREED AND ACCEPTED
By: /s/ Xxxxxx King
-----------------------------------------------------
Xxxxxx Xxxx, President King/Fromkin Productions, Inc.
Xxxxxx Xxxx, Consultant
Social Security Number 08 -1 -3914
-----------------------------------
Today's Date: 11/30/99
---------------------------------------------
AGREED AND ACCEPTED:
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, Executives
Social Security Number ###-##-####
----------------------
Today's Date: November 29, 1999
-------------------------------
