Exhibit 4.2
CONTRACTOR AGREEMENT
This Agreement is entered into as of February 10, 2004 between Odyssey Pictures
Corporation, a Nevada corporation ("Odyssey"), with offices at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 and Xxx Xxxxxx, residing at: 00000 Xxxxx
Xxxx Xxxx Xxxxxxx Xxxxxxxxx, XX 00000 (herein referred to as "Contractor") or as
both may be referred to herein from time to time as the Parties (the "Parties").
The term of this Agreement shall commence on February
15, 2004 and end on June 30, 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 International Consultant 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 non-exclusive 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
rate of $240,000 during the Term, payable in 16 monthly
installments of $15,000 (the "Installments") on or before the
last day of every month. A review between Odyssey and
Contractor shall occur no later than one (1) week prior to the
anniversary date of the contract. 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. During the first two months of the agreement the
installments shall be paid only in cash. Commencing on the
third month of the agreement the installments may be paid in
cash or stock. In the case of stock, Odyssey shall cause to
have registered such shares under the rules of "S-8" pursuant
to the Securities Act of 1933 ("S-8 Shares") and such issue
shall be based upon the price of trading on the particular day
that they are agreed to be issued.
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) $25,000 for each motion picture for which
Odyssey has Concluded Negotiations, whose
direct cost budget is $4,000,000 or less;
(ii) $50,000 for each motion picture for which
Odyssey has Concluded Negotiations, whose
direct cost budget is between $4,000,000 and
$10,000,000;
(iii) $75,000 for each motion picture for which
Odyssey has Concluded Negotiations, whose
direct cost budget is more than $10,000,000.
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 any compensation therefore.
8. 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.
9. 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.
10. Termination. This Agreement may be terminated by either party
prior to the end of the Term
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(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) If either party determines that it no longer desires to pursue
lines of business contemplated by this agreement.
11. Effect of Termination or Resignation. In the event that this
Agreement is terminated pursuant to Paragraph 11 above,
neither party shall have any further duties or obligations
under this Agreement.
12. 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
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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.
13. 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.
14. Arbitration\Attorney's Fees. Any disputes arising under this
Memorandum of Agreement shall be resolved by arbitration in
accordance with the rules of the AFMA Arbitration. 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 attorneys' fees. The arbitrator shall be familiar
with the motion picture industry.
15. Press Release. The parties agree to announce Contractor's
engagement hereunder with a press release mutually approved by
Odyssey and Contractor.
16. Miscellaneous. California 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.
17. 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.
18. 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:
Xxx Xxxxxx 00000 Xxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxxx,
XX 00000
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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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Xxx Xxxxxx
