EMPLOYMENT AGREEMENT
This Agreement is made as of October 1, 1997, by and between Xxxx
Xxxxxxx Music, Inc. d/b/a Rave Music and Entertainment, a New York
corporation ("Corporation") having an office at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, X.X. 00000 and Xxxx Xxxxxxx ("Employee") residing at 000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, the Corporation, a subsidiary of Paradise Music & Entertainment,
Inc. ("Paradise"), is engaged in the commercial music production business; and
WHEREAS, Employee has been engaged in the commercial music production
business and wishes to provide his services to the Corporation in the operation
of the commercial music production business of the Corporation based in
California (the "Division")
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Employment. The Corporation agrees to employ Employee and
Employee agrees to accept employment on the terms described in this Agreement.
Section 2. Duties. Employee shall establish the Division utilizing the
business and contacts previously developed by Employee and involving duties and
responsibilities similar to those activities in which Employee is currently
engaged on his own behalf in the commercial music production business. Employee
shall have such duties as are customarily associated with such position and
shall serve in any other executive capacity that the Corporation deems
necessary.
Section 3. Extent of Services. The Employee shall devote the majority of
his working time, attention, and energies to the performance of his duties.
Employee may invest his personal assets in such form or manner as will not
require services on his part. Employee shall at all times faithfully and to the
best of his ability perform his duties under this Agreement. The duties shall be
rendered at an office of the Corporation established in California or at such
other place or places and at such times as the needs of the Corporation may from
time-to-time reasonably dictate.
Section 4. Term. The term of this Agreement shall begin on October 1, 1997
("Effective Date"), and shall continue for a period ending June 30, 2000 unless
sooner terminated pursuant to this Agreement.
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Section 5. Compensation.
5.1 (a) Employee shall receive compensation determined in accordance with
the following formula for each year (or partial year with respect to the first
fiscal year) under this Agreement:
(i) An amount equal to 75% of the first $350,000 ($262,500
for the first fiscal year) of gross margin of the
Division from which amount otherwise payable there shall
be deducted the gross salary of Employee=s secretary;
plus
(ii) An amount equal to 15% of annual gross margin of the
Division above $350,000 ($262,500 for the first fiscal
year).
(iii) Employee will be paid periodic draw amounts, with all
appropriate tax withheld, during each quarterly period
under the Agreement. The initial draw amount will be
calculated on the basis of $200,000 per annum. During
each year, the ongoing quarterly draw amounts shall be
reviewed on a cumulative basis against amounts actually
earned pursuant to Subsections (i) and (ii) above
through such period. In the event of a cumulative short
fall, the annual rate for draw amount shall be adjusted
to reflect such short fall on a going forward basis. Any
short fall existing at the end of a year under the
Agreement shall be repaid by deducting such amount from
the amounts otherwise payable to Employee in the next
year of the Agreement. Such deduction shall be made
ratably over said year. In addition, the salary draw
amount for the commencement of the next year shall be
the lesser of $200,000 per annum ($150,000 for the first
fiscal year) or the cumulative amount earned by Employee
for the prior year.
(iv) All amounts earned by Employee for a year in excess of
the gross draw amounts paid with respect to such year,
shall be paid as promptly as practicable after the end
of such year.
(v) Any amounts paid to Employee and not earned at the
termination of this Agreement shall be paid promptly by
Employee to the Corporation.
(b) For purposes of this Section 5.1, gross margin shall be
calculated by the Corporation in accordance with generally accepted
accounting principles.
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(c) At the end of Fiscal year 1 of this Agreement, Employee
shall reimburse the Division for overhead costs of the Division in excess
of $60,000, but in no event shall there be any allocation of overhead from
the Corporation or its parent. In years 2 and 3, respectively, Employee
shall reimburse overhead costs of the Division in excess of $83,200 and
$86,500, respectively. Any amount owed by Employee may be offset against
amounts otherwise payable to Employee under this Agreement.
5.2 Options. Employee shall be granted options to purchase 100,000 shares
of the Paradise's Common Stock at $4.75 per share. The Options will have a term
of 5 years and will be non-transferrable. The options will vest four and
one-half years after the date hereof with earlier vesting based on operations of
the Division, as defined herein, during the 1998, 1999 and 2000 Fiscal Years.
For each $3.00 of "operating income" of the Division, as defined herein, in any
Fiscal Year the option to purchase one share shall immediately vest. Any loss
incurred by the Division in a Fiscal Year will be carried over to the following
Fiscal Years until eliminated in computing operating income for such following
Fiscal Years (reducing operating income for such Fiscal, Year for vesting
purposes). Operating income shall be an amount equal to 25% of the first
$350,000 of the Division's gross margin ($262,500 for the first fiscal year) and
85% thereafter less overhead of up to $60,000 in year 1, $83,200 in year 2, and
$86,500, in year 3 but in all cases excluding depreciation.
5.3 Benefits. Employee shall have an automobile allowance of up to $250.00
per month.
5.4 Withholding. The Corporation shall withhold all amounts which are
required to be withheld from compensation otherwise payable to Employee pursuant
to applicable law.
5.5 Overhead Adjustments. The Corporation and Employee shall review the
amount of overhead not reimbursed by Employee under Section 5.1 and will
mutually agree to consider increases in said amount consistent with good
business practice.
5.6 Compensation Example. Attached as Exhibit 2 is an example which
illustrates the compensation arrangements described in all of Section 5. Such
example shall be used to assist the parties in interpreting the provisions of
Section 5.
Section 6. Allocation of Revenues and Expenses. In order to properly
reflect operations by Employee the parties agree as follows:
(a) All revenues received by Employee on or after October 1, 1997
for services performed by him, including royalties and residuals, shall be paid
over to the Division.
(b) All expenses of the Division, paid on or after October 1, 1997
shall be borne by the Division and Employee shall be reimbursed for any such
expenses previously
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paid by Employee. In addition, Employee shall be reimbursed for direct third
party expenses incurred and paid prior to October 1, 1997 as to which
reimbursement was received from clients after September 30, 1997, when received.
Section 7. Facilities. Employee shall lease space, in the name of the
Corporation and guaranteed by Employee, to be used by the Division in his own
name on terms acceptable to the Corporation. It is agreed that the Corporation
will bear up to $60,000 in the aggregate for the cost of renovation plus
security deposit. At the termination of the lease, the security deposit shall be
paid to the Corporation.
Section 8. Property Rights. Except as otherwise provided in this Section
all property rights created by or on behalf of a Division shall belong to the
Corporation. Employee agrees to execute any and all documents necessary to
transfer all such rights to the Corporation. Without limitation the forgoing of
all royalties and other residuals with respect to such property shall be owned
by, and be for the benefit of the Corporation. Set forth in Exhibit 1 annexed
hereto is a full and complete listing of all properties currently owned by
Employee which are subject to earning royalties and/or residuals.
Notwithstanding the foregoing, if the employment of Employee is not continued by
the Corporation after the end of the term of this Agreement, all vocal residuals
of the Division shall be transferred to Employee.
Section 9. Termination.
9.1 For Cause. The Corporation may terminate the Employee's employment at
any time "for cause" with immediate effect upon delivering written notice to the
Employee. For purposes of this Agreement, "for cause" shall include: (a)
embezzlement, theft, larceny, material fraud, or other comparable and material
acts of dishonesty; (b) failure to follow a specific directive within (30) days
after delivery to the Employee of a written notice to cure; or (c) conviction of
or entrance of a plea of guilty on nolo contendere to a felony or other crime
which has or may have a material adverse effect on the Employee's ability to
carry out his duties under this Agreement or upon the reputation of the
Corporation. Upon termination for cause, the Corporation's sole and exclusive
obligation will be to pay Employee the compensation to which he is entitled
through the date of termination, and the Employee shall not be entitled to any
compensation after the date of termination. Employee may terminate the Agreement
if the Corporation breaches a material provision of the Agreement and fails to
cure said breach within sixty days after written notice thereof from Employee.
9.2 Upon Death. In the event of the Employee's death during the term of
this Agreement, the Corporation's sole and exclusive obligation will be to pay
to Employee's estate, the Employee's compensation to which he is entitled and
the options which have vested through the date of death.
9.3 Upon Disability. The Corporation may terminate Employee's employment
upon
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Employee's total disability. Employee shall be deemed to be totally disabled if
he is unable to perform his duties under this Agreement by reason of mental or
physical illness or accident for a period of three consecutive months. Upon
termination by reason of Employee's disability, the Corporations's sole and
exclusive obligation will be to pay Employee the compensation to which he is
entitled and the options which have vested through the date of termination.
Section 10. Confidentiality. The Employee acknowledges that he will
develop and be exposed to information that is or will be confidential and
proprietary to the Corporation. Such information shall be deemed confidential to
the extent not generally known within the trade. Employee agrees to make use of
such information only in the performance of his duties under this Agreement, to
maintain such information in confidence and to disclose the information only to
persons with a need to know. Information generally known in the trade will not
be deemed confidential and proprietary information of the Corporation.
Notwithstanding any other provision of this Agreement to the contrary, the
obligations of Employee under this Section 9 shall survive termination of this
Agreement.
Section 11. Waiver. The waiver by the Corporation of the breach of any
provision of this Agreement by Employee shall not operate or be construed as a
waiver of any subsequent breach by the Employee.
Section 12. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to conflict of law principles.
Section 13. Further Action. The parties hereto shall execute and deliver
all documents, provide all information and take or for bear from all such action
as may be necessary or appropriate to achieve the purposes of the Agreement.
Section 14. Parties in Interest. Nothing herein shall be construed to be
to the benefit of any third party, nor is it intended that any provision shall
be for the benefit of any third party.
Section 15. Expenses of Litigation. In the event of any litigation
arising from disputes under this Agreement, the prevailing party shall be
entitled to reimbursement of all legal fees incurred in connection therewith.
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The parties hereto have executed this Agreement as of the date first above
written.
XXXX XXXXXXX MUSIC, INC.
d/b/a RAVE MUSIC AND ENTERTAINMENT
By: /s/ Xxxx Xxxxxxxx
------------------------------------
President
/s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, individually
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EXHIBIT 1
LISTING OF ALL PROPERTIES OWNED BY EMPLOYEE
WHICH ARE SUBJECT TO EARNING ROYALTIES AND/OR RESIDUALS
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LISTING OF ALL PROPERTIES OWNED BY EMPLOYEE
WHICH ARE SUBJECT TO EARNING ROYALTIES AND/OR RESIDUALS
The following is an active list of all properties subject to earnings by Xxxx
Xxxxxxx:
FORD: (Both Talent & partners and Ascap Writers)
Ranger Trucks:
F150 Trucks
Escort Z
Various Have You Driven a Ford Lately Ascap Stuff
Genuine Chevrolet:
Ascap writers
Talent and Partners if they run old spots.
Pontiac: (Talent & Partners, SAG, Ascap Writers)
Montana Mini Vans
Cadillac: (Talent & Partners, SAG)
Unchain My Heart Eldorado
Northwest Airlines: (Talent and Partners and Aftra)
Many various spots
Dominos Pizza Regional Dealers: (Talent and Partners, SAG, AFTRA)
Local market use.
Jeep Dealer Radio: (Talent and Partners, Aftra)
There may be a few more incidental things depending on whether or not old spots
are picked up.
Also included are any other like properties owned by Employee which have been
omitted from this Exhibit and appear on future revenue statements. A copy of all
statements received by Employee covering payments on properties will be
forwarded by Employee to the chief financial officer of the Corporation.
Exhibit 2
Illustration of Compnesation Arrangments
Revenues 700,000
Costs of Sales 245,000
-------
Gross Margin 455,000
S, G&A 105,000
Depreciation 5,000
-------
Profit before Xxxxxxx Salary 345,000
Xxxxxxx Salary 253,250
-------
Pretax income 91,750
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Options Vested 32,250
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Xxxxxxx'x Salary:
75% of $350,000 262,500
15% of $105,000 15,750
-------
278,250
Assistant Salary 25,000
-------
253,250
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Options Vested:
25% of $350,000 87,500
85% of $105,000 89,250
-------
176,750
Overhead 80,000
-------
96,750
-------
@33.3% 32,250
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