EXHIBIT 10.48
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT (this "Agreement") is made as of the 1st day of August,
1997, by and between FILM ROMAN, INC., a California corporation, 00000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Company") and XXX X. VEIN, c/o Xxxxx
Xxxxxx, Esq., Nelson, Guggenheim, Xxxxxx & Xxxxxx, 00000 Xxxxxxxx Xxxx., Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 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 shall employ Executive and Executive accepts such
employment with the Company upon the terms and conditions set forth in this
Agreement.
1.2 During the Term (defined below), Executive shall serve as Senior
Vice President, performing (i) services as supervisor of the business affairs,
internal legal areas, features and all interactive and information technology
areas of the Company and (ii) services involved in exploring and developing
areas of activity in which the Company might be involved including additional
feature length motion pictures, and (iii) any other duties, including all
activities incidental thereto, customarily associated with Executive's title and
job description in businesses with operations similar to that of Company, and
such other duties which are consistent with Executive's title as may be assigned
to him by the Company's Board of Directors (the "Board") or its successors or
assigns. Nothing herein shall be construed as limiting a review of Executive's
title during the Term.
1.3 Executive shall devote Executive's best efforts and Executive's
exclusive full business time and attention (as required by the President or the
Board) to the business and affairs of Company and its subsidiaries, if any. In
connection with the foregoing, Executive shall be expected to render services at
such times (including full business hours) and at such places as the Board may
from time to time designate; provided, however, that if Company 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/her
consent.
1.4 Executive shall only report to the Chairman and the Chief
Executive Officer of the Company.
1.5 Executive shall perform Executive's duties and responsibility to
the best of Executive's abilities in a diligent, trustworthy, business-like and
efficient manner and shall comply with Company's reasonable instructions and
regulations in all matters, including, if applicable, artistic taste.
1.6 Reference is made to Company's "Employee Handbook" as the same
may be currently in effect or hereafter modified (modifications, if any, which
are inconsistent with specific provisions of this Agreement shall not be deemed
incorporated herein). Executive acknowledges that Executive has reviewed and is
aware of the contents of such Handbook. Said Employee Handbook shall be deemed
a part of this Agreement. Notwithstanding the foregoing, termination of
Executive's employment shall be governed by Section 3 of this Agreement.
1.7 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; provided,
however, that failure to qualify for such life insurance shall not be deemed a
breach of this Agreement.
2. Term:
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2.1 The term (herein "Term") of this Agreement shall commence as of
August 4, 1997, and shall continue, unless sooner terminated as elsewhere
provided, for one (1) "contract year," as defined below.
2.2 The term "contract year" as used above means a period of fifty-
two (52) consecutive weeks.
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) commission of
a felony or a crime involving moral turpitude or the commission of any
other act involving willful malfeasance with respect to Company, (b)
conduct tending to bring Company into substantial public disgrace or
disrepute, (c) gross negligence or willful misconduct with respect to
Company or (d) any other material breach of this Agreement. Company shall
be entitled to terminate this Agreement pursuant to clauses (c) and (d)
herein only if Executive fails to cure such defect within three (3)
business days following Executive's receipt of written notice of
Executive's failure to satisfy Executive's obligations under this
Agreement; and
(iii) without cause (it being understood that termination of the
Term pursuant to Section 7 and 8 of this Agreement are considered
terminations without cause).
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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 salary payments
(other than accrued but unpaid salary, vacation, expense reimbursement, if any,
and retirement benefits, if any) and no further obligation to pay any bonuses
other than those theretofore earned, but unpaid, it being understood that the
bonus referred to in paragraph 4.3(a) below is fully earned.
(b) Other: If Company terminates this Agreement for death,
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disability or without cause Company shall have the obligation to pay accrued
bonus, if any, for Company's fiscal year (the "fiscal year") when such
termination occurs (pro-rated to reflect the number of days worked in such year
prior to termination), vacation, unpaid expense reimbursement, and accrued but
unpaid retirement benefits, if any. If termination is because of death or
disability, base salary shall be prorated to time of termination; if termination
is without cause, Company shall pay all remaining salary for the remainder of
the then current term, provided however that such salary payments shall be
mitigated and reduced by any payments which Executive may receive during such
period for services rendered whether as an Executive, an independent contractor,
or as a self-employed person.
3.3 Termination by Executive:
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Executive may terminate this Agreement within ninety (90) days
after September 15, 1997. In such event, the Company shall have the obligation
to pay all accrued but unpaid salary, bonus, if any, for the Company's 1997
fiscal year (pro-rated to reflect the number of days worked in such year prior
to termination), vacation, expense reimbursement, if any, and retirement
benefits, if any.
4. Salary and Bonuses: Provided Executive fully and faithfully renders
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all services required hereunder and is not otherwise in material, uncured
(within 30 days) breach hereof, Company will pay salary (in equal weekly or by-
weekly installments) and bonuses as follows:
4.1 Base Salary:
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$225,000.00 for the Term, payable in weekly or bi-weekly
installments, as Company elects.
4.2 Signing Bonus:
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Additionally, upon execution hereof, Company shall pay Executive
a one-time signing bonus of Twenty-Five Thousand ($25,000.00) Dollars.
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4.3. Feature Film Bonuses:
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(a) Executive shall receive bonuses with respect to the project
currently entitled, "There Goes The Neighborhood," which is the subject of a
development-production agreement (the "DP Agreement") between Company and
Universal Pictures dated as of March 4, 1996. Such bonuses shall equal
(i) five (5%) percent of all fees including producing fee
(limited to $1.0 million) and the animation production fee (of $1.5 million
to $2 million) which are referred to in paragraphs 6.(a)(ii) and 6(b),
respectively, of the DP Agreement; and
(ii) seven (7%) percent of the contingent payments of all
types (including advances thereon) from all sources referred to in
paragraphs 7, 10(g), 10(h) and 10(j) of the DP Agreement.
Said bonuses shall be payable only to the extent Company actually receives
revenues upon which bonuses are based and at the time when the same are so
received by Company, or within sixty (60) days thereafter, whether such revenues
are received during or after the Term. If Company becomes obligated to return
any portion of a payment, Executive shall likewise return his share of the same.
The bonuses referred in this subparagraph (a) are fully vested.
(b) Executive shall be eligible to receive bonuses with respect
to any additional feature length film projects intended for initial theatrical
release ("feature length films") which Executive initiates or sets up during the
Term and which results in commencement of principal photography or animation
(i.e. both storyboard and subsequent animation activities) within three (3)
years of the date when a firm commitment is entered into for such project it
being understood that "setting up" as used herein means the securing of a firm
commitment for development of the project, with the understanding that such
commitment may be on a "step" basis whereby the contracting party has an option
(as opposed to an obligation) to proceed with principal photography or
animation.
Notwithstanding the foregoing the maximum number of feature
length film projects as to which Executive will be entitled to receive bonuses
under this subparagraph (b) shall be five (5), (in addition to "There Goes The
Neighborhood"); however if Executive were to secure a multiple picture agreement
during the Term, Company will give good faith consideration as to whether or not
to consider all of the feature length films covered under that multiple picture
commitment as one (1) picture commitment for purposes of determining the
limitation of five (5) films referred to above, but the decision of Company,
acting reasonably, shall be final. If Company becomes involved in any feature
films submitted by or through Xxxxx Xxxxxxxxx and/or Xxxxxxxxx/Ecclesine
Productions, Inc. which are in development as of the date of this Agreement, the
same shall not be treated as a feature length film hereunder.
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The bonuses as to which Executive shall be eligible with
respect to such additional feature length films are as follows:
(i) five (5%) percent of any fixed executive producer fees,
animation production fees, or corporate production fees of the types
referred to in paragraphs 6.(a) and 6.(b) of the DP Agreement, no matter
how characterized; and
(ii) seven (7%) percent of any contingent payments of
adjusted gross receipts, net profits or the like (however denominated) from
all sources including but not limited to revenues which are actually
received by Company from distribution and exploitation of any such feature
length film and from ancillary, subsidiary and/or merchandising rights
relative thereto.
Said bonuses shall be payable only to the extent Company actually receives
revenues upon which such bonuses are based and at the time when the same are so
received by Company, or within sixty (60) days thereafter, whether such revenues
are received during or after the Term. If Company becomes obligated to return
any portion of a payment, Executive shall likewise return his share of the same.
(c) If for any reason there is a dispute as to who has initiated
or set up a feature length film project the determination shall be made by an
arbitrator or arbitrators pursuant to paragraph 15 of this Agreement, with the
understanding that the arbitrator(s) will be instructed that his/her/their
decision need not be an "all or nothing at all" decision, i.e. the arbitrator(s)
can award all or a portion of or none of the bonus to Executive depending upon
the determination as to Executive's involvement in a particular project.
4.4 Company's obligation for payment of compensation hereunder shall
be subject to all present and future laws, rules, regulations and Executive
orders affecting such obligation. No withholding, deduction, reduction or
limitation of payments hereunder by reason of any such law, rule, regulation or
order shall be deemed a breach of this Agreement or relieve Executive from
Executive's obligations hereunder or give Executive any right to terminate this
Agreement. If Company is unable to make full payments hereunder because of any
wage control law or regulation, Company shall pay Executive any portion of such
payment (which is not paid when due) at such time when such law or regulation no
longer prohibits such payment (unless such law or regulation prohibits such
retroactive payments).
5. Expenses:
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5.1. (a) 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 within 30 days of the presentation by Executive 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
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Company may reasonably require, together with such receipts showing payments as
Executive has been able to obtain; provided, however, that Executive shall not
be required to obtain approval of reasonable expenses incurred in connection
with business lunches.
(b) Further, Executive shall be entitled to a Company telephone
and corporate credit card. Executive shall also be entitled to a car allowance
in the amount of Five Hundred Dollars ($500.00) per month, which amount shall be
reported on Executive's W-2 or Form 1099 (as Company may determine) 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). Executive shall also be reimbursed
for the monthly "base rate" on one cellular phone and for all reasonable
cellular phone charges related to Executive's duties under this Agreement.
Additionally, Company will reimburse Executive for California State Bar
membership fees as well as local Bar association membership fees, American Bar
Association membership fees and reasonable fees associated with legal seminars
in Los Angeles County attended by Executive in order to obtain MCLE credit
required by the California State Bar; reimbursement for any other organizational
membership fees shall be subject to Company's prior reasonable approval. The
Company shall furnish Executive with air travel and ground travel, as required.
Air travel shall be business class if three classes of travel are furnished on
any flight (unless any other employees, clients or business associates are in
first class on such flight) and shall be first class if only two classes of
travel are furnished on such flight.
(c) Executive shall be entitled to a full-time secretary.
6. Benefits:
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6.1 Medical Plans, etc.
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(a) During the Term, Executive shall also be entitled to and
shall be accorded all rights and benefits under any life insurance, health and
major medical insurance policy or policies, and any other plans or benefits,
pension plans which Company may provide for Executives generally during the
Term. The Company agrees that it shall provide Executive with such rights and
benefits under such life insurance, health and major medical insurance policy or
policies that are comparable to the rights and benefits afforded to any other
Senior Vice President or Executive Vice President of the Company.
(b) During each contract year Executive shall also be entitled to
(i) three (3) weeks of paid vacation at times to be mutually agreed to and (ii)
sick leave, both in accordance with Company's policy. In the event Executive's
employment is terminated during any contract year pursuant to Section 3 of this
Agreement, Executive shall be paid for his accrued but unused vacation time
(pro-rated based on the number of days for which Executive was employed during
any contract year).
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6.2 Employee Stock Options:
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(a) Executive is currently entitled to participate in the
Company's Stock Option Plan in accordance with the Stock Option Agreement
heretofore entered into between Company and Executive. There shall be no change
in Executive's rights under said Agreement; provided, however, that if, during
the Term, the Company should reduce the exercise price of all or a portion of
the options granted to any employee of the Company who was an employee prior to
August 22, 1997 (other than Xxxx Xxxxx) (the "Existing Employees") to a per
share exercise price less than the per share exercise price of the options
granted to Executive in January 1996 and/or if the Company should issue
additional stock options, stock or stock appreciation rights to any Existing
Employee, Executive shall be entitled to have that portion of his options re-
priced to equal such lower exercise price (in the same portion as the portion of
the options that were re-priced to such Existing Employee) and shall be entitled
to receive such additional options, stock or stock appreciation rights, as the
case may be, upon the same terms as the additional options, stock or stock
appreciation rights issued to such Existing Employee; it being understood that
this "most favored nations" provision will not apply to stock options granted to
Xxxx Xxxxx or any employee that is not an Existing Employee.
7. Incapacity:
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7.1 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 sixty (60) days or more during
any contract year of the Term of this Agreement, Company may, at its option,
terminate and cancel Executive's employment hereunder 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 reason whatsoever to devote full time to the
business of the Company, as determined by the Board.
7.2 If Company determines that Executive is permanently disabled and
if Executive does not agree, 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 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 even all doctor costs shall be borne by Company).
8. Force Majeure; Discontinuance of Business:
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8.1. 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 Employees are also suspended. Executive's
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services and 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 eight (8) 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.
9. Company's Rights:
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9.1 Executive acknowledges that Company, as employer of Executive,
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 Executive's employment. 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, Company is the "employer for hire" of Executive and
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.
9.2. Without limiting the foregoing, Executive agrees that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports, and all similar or related information which relates to
Company's or any of its subsidiaries' actual or anticipated business, research
and development or existing or future products or services and which are
conceived, developed or made by Executive within the scope of Executive's
employment while employed by Company or its predecessor belong to Company or
such subsidiary. Executive will promptly disclose to the Board and perform all
actions reasonably requested by the Board (whether during or after the Term) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
9.3. Company shall have the right to use, disseminate, reproduce,
print and publish Executive's name, approved likeness, voice and approved
biographical material concerning Executive as news or informative matter in
connection with Company's business. Executive has the right to approve, which
approval shall not be unreasonably withheld, any trade announcement concerning
Executive.
9.4. Executive's services and rights herein granted are unique in
character and value such that the loss thereof could not be reasonably
compensable in damages in an action at law. Accordingly, Company shall be
entitled to seek equitable relief by way of injunction or otherwise to prevent
the breach or continued breach of this Agreement. The sole right of
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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.
10. 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.
11. Confidential Information:
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Executive acknowledges that the information, observations, work
product, trade secrets and data obtained by Executive while employed 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, or (iv) are within the scope of Executive's duties.
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; provided, however, that Executive shall be permitted to
retain his rolodex and legal form files.
12. Non-Compete, Non-Solicitation:
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12.1 Executive acknowledges that in the course of Executive's
employment with Company, Executive has and will become familiar with
Confidential Information concerning Company and its subsidiaries and that
Executive's services have been and will be of special, unique and extraordinary
value to Company and its subsidiaries. Therefore, during
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the Term, Executive will not be an Executive, consultant, advisor, director,
shareholder or partner of any other person, firm or corporation; provided that
Executive may, in any event, own up to five (5%) percent of the stock of a
publicly-held corporation whose stock is traded on a national securities
exchange or in an over-the-counter market.
12.2 During Executive's employment and for two (2) years after the end
of the Term Executive will not attempt to hire or to solicit (for Executive's
own purposes or for any other company) any Employee of or independent contractor
rendering exclusive services to Company at the time of such attempt or
solicitation. Further, during Executive's employment and for two (2) 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.
13. Notices: All notices required to be given hereunder shall be in
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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 0000; a copy of any notice to
Executive shall also be given to Executive, 0000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxx,
XX 00000 and to Nelson, Guggenheim, Xxxxxx & Xxxxxx LLP, 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000; Attention: Xxxxx X.
Xxxxxx, Esq.
14. 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. The Company acknowledges that
Executive has provided such proof, authorization or information required
pursuant to this Section 14.
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15. 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); provided, that any arbitrator(s) selected shall have
experience in or knowledge of the business(es) in which Company is engaged. Any
such arbitration shall be conducted in Los Angeles, California. The arbitration
of such issues, including the determination of the amount of any damages
suffered by any party hereof by reason of the acts or omissions of another shall
be to the exclusion of any court of law except as set forth below. The decision
of the arbitrators or a majority of them shall be final and binding on all
parties and their respective heirs, executors, administrators, successors and
assigns. Any action to secure a judicial confirmation of the arbitration award
may be brought in any state or federal court of competent jurisdiction. If the
parties or the arbitrators appointed by them are unable to agree upon the
selection of a neutral arbitrator then either party may, at its election,
require that the arbitration shall be conducted under the auspices and rules of
the American Arbitration Association (AAA) and that the neutral arbitrator shall
be selected by the AAA. Arbitration hereunder shall not, in any event, (i)
prevent any party from seeking and obtaining 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 joining any other party as defendant in any action
brought by or against a third party, 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 said case, nor (iv) prevent a party from filing
legal action to compel arbitration under the arbitration provisions hereof.
16. General Provisions:
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16.1 Warranties: Executive warrants that he[she] is free to enter
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into this Agreement and will not knowingly do or permit any act which will
interfere with or derogate from the full performance of his services or
Company's exercise of the rights herein granted.
16.2 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 or in connection
with or arising out of the performance of his duties pursuant to this Agreement.
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.
16.3 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,
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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.
16.4 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.
16.5 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.
16.6 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.
16.7 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.
16.8 Paragraph Titles: The titles of the paragraphs of this Agreement
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are for convenience only and shall not in any way affect the interpretation of
any paragraphs of this Agreement or of the agreement itself.
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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/ Xxxx Xxxxx
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Its Chairman
/s/ Xxx X. Vein
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XXX X. VEIN, "Executive"
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