Pre-Effective Amendment to Registration of Securities of a Small-Business Issuer — Form SB-2 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: SB-2/A Platinum Studios LLC Formsb-2/A HTML 1.19M
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 91K
3: EX-5.1 Opinion re: Legality HTML 13K
12: EX-10.10 Material Contract HTML 47K
13: EX-10.11 Material Contract HTML 144K
14: EX-10.12 Material Contract HTML 20K
15: EX-10.13 Material Contract HTML 257K
16: EX-10.14 Material Contract HTML 589K
17: EX-10.15 Material Contract HTML 37K
18: EX-10.16 Material Contract HTML 97K
4: EX-10.2 Material Contract HTML 49K
5: EX-10.3 Material Contract HTML 35K
6: EX-10.4 Material Contract HTML 52K
7: EX-10.6 Material Contract HTML 96K
8: EX-10.7 Material Contract HTML 8K
9: EX-10.7 Exhibit 10.7 PDF Version -- ex107 PDF 3.03M
10: EX-10.8 Material Contract HTML 578K
11: EX-10.9 Material Contract HTML 179K
19: EX-23.1 Consent of Experts or Counsel HTML 9K
The
undersigned hereby confirms that Sergio Bonelli Editore is the publisher and
sole copyright owner of the comic strip* series
"Dylan Dog"
created by Tiziano Sclavi.
We
also
confirm that Mr. Ervin Rustemagic and his Dutch corporation SAF B.V. control
all
the motion picture, television, animation, multimedia, merchandising and all
other allied and ancillary rights in any and all media (now known or hereafter
devised) in and to the above series and their characters and other content
worldwide, and have the exclusive authorization to license and sublicense these
rights to third parties.
The
undersigned has read and understands the agreement attached hereto
('Agreement"), entered into between SAF B.V. ("SAF") and Platinum Studios,
LLC
("Platinum") with respect to the above-referenced comic book series
('Property"), and, as a material inducement to Plattinum. to enter into said
Agreement, hereby (1) confirms that the undersigned has granted to SAT
all rights granted by SAF to Platinum in the Agreement, (ii) joins in the grant
of rights to Platinum as provided for therein (to the extent any such
rights are still owned or controlled by the undersigned), and (iii)
makes the same representations, warranties, indemnification, wavers and
covenants to Platinum as are contained in paragraphs 11, 12 and 13 thereof.
In
fartherance of the foregoing, the undersigned shall execute a short-form
assignment in favor of SAP substantially in the form of Exhibit "A" attached
hereto.
The
undersigned further agrees to look solely to SAF for the payment of any
consideration or compensation that may be due to the undersigned in connection
with the Agreement and all rights granted by the undersigned in or to
the Property, SAF and the undersigned hereby agree that such compensation is
an
amount equal to ninety-nine percent (99%) of the compensation payable to SAF
under the Agreement.
Very
truly yours,
SERGIO
BONELLI EDITORE S.P.A.
By:
/s/ Giulio
Terzaghi
Managing
Director
ACKNOWLEDGED
AND AGREED;
PLATINUM
STUDIOS, LLC
By:
Scott
Mitchell Rosenberg
Its:
Chairman
SAF
B.V.
By:
Ervin
Rustemagic
Its:
__________________________
2
EXHIBIT
"A"
ASSIGNMENT
For
good
and valuable consideration, the receipt and adequacy of of which is hereby
acknowledged, the undersigned hereby sells, grants, assigns, and transfers
to
SAF B.V. ("SAF"), and its successors, licensees and assigns, all of the
undersigned's right, title and interest in and to the= certain published comic
book scrims "Dylan Deg" created by Tiziano Sclavi (the "Property") (excluding
only comic book print publication rights thereto in any format (including but
not limited to, comic books, graphic novels, serialization in strip
form such as in newspapers, magazines, almanacs and theg, without limitation,
all contents copyrights. moral rights, and all motion picture,
television, audio-visual device, dramatic stage and other live performance,
merchandising, sound recording and allied, ancillary and subsidiary rights
therein, whether now icaown or hereinafter devised, throughout the universe
in
perpetuity.
Not
withstanding the foregoing, the undersigned retains all copyright, trademarks
and goodwill with respect in and to the reserved rights set forth
above.
etc.
In
addition, should any court of competent jurisdiction determine that the
duration of any rights granted hereunder exceeds that which is permissible
under
applicable law, such duration shall be limited, but only to the extent necessary
to he consistent with the longest period permissible under applicable
law.
Author
represents and warrants that all literary, dramatic, musical and other material
and all ideas, designs and inventions of Author in connection with the Project
are or will be original with Author or in the public domain throughout the
world, and shall not infringe upon or violate any copyright of, or, to infringe
upon or violate the right of privacy or any other right of, any
person; that Author is free to grant all rights granted and make all agreements
made by Author herein. Author agrees to hold SBE and its successors, licensees
and assigns harmless from and against all damages, losses, costs, and expenses
(inclvidingreasonable attorneys' fees and costs) which SBE or any of its
successors, licensees or assigns may suffer or incur by reason of the breach
of
any of the warranties made in this paragraph.
Author
hereby covenants and agrees that Author shall not have or be deemed to have
any
lien, barge
or other encumbrance upon any of said rights conveyed to SBE herein
or proceeds derived therefrom, and that no act of or
omission by SBE, nor any other act, omission or event of any kind, shall
terminate or otherwise adversely affect SBE's ownership of the rights conveyed
herein. Author's sole remedy for any such breach or alleged breach shall be
an
action at law to recover such damages as may have been actually suffered by
Author as a result thereof.
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Tiziano Sclavi ("Author") hereby assigns to Sergio Bonelli Editore
S.p.A. ("SHE") all right, title and interest in and to the comic strip series
entitled "Dylan Dog" (including without limitation all contents thereof, all
present adaptations and versions thereof, and the themes, title and characters
thereof) (collectively the "Project"). The rights assigned hereunder include,
but shall not be limited to, the print publication, motion picture, television
(including without limitation free, basic and pay), animation, multimedia,
merchandising and all other allied and ancillary rights (including without
limitation sequel and remake rights). SHE is and shall be deemed the
exclusive owner of all of the foregoing, in perpetuity, for all purposes and
the
exclusive owner throughout the world of all of the rights camprised in the
copyright thereof (and all extensions thereof), and of any and all other rights
thereto, and that SBE shall have the right to exploit any or all of the
foregoing in any and all media, now known or hereafter devised, throughout
the
universe, in perpetuity, in all languages as SBE determines. Author will, upon
request, execute, acknowledge and deliver to SHE such additional documents
as
SBE may deem necessary to evidence and effectuate SBE's rights hereunder, and
hereby grants to SBE the right as attorney-in-fact to execute, acknowledge,
deliver and record any and all such documents if Author shall fail to execute
same within five (5) days after so requested by
SBE.
Author
hereby waives the benefits of any provisiOn of law known as "droit moral",
or
any similar laws, and agrees not to institute, support, maintain or
authorize any action or lawsuit on the ground that any motion pictures or sound
records, or other productions or items produced. hereunder in any way constitute
an infringement of any of Author's "droit moral" or a defamation ,or mutilation
of any part thereof, or contain unauthorized variations, alterations,
modifications, changes or translations. In addition, Author hereby waives the
exercise of Author's "droit moral" insofar as the items produced under or
pursuant to this Assignment do not harm Author's honor and reputation. Author
shall not have any right, title or interest whatsoever in or to any plot, story,
61R-racter, music, lyrics, dialogue, screenplay or other material of any kind
created by or for SBE(or any assignee of the SBE). Without the limiting the
generality of the foregoing, and without the following constituting (or
otherwise to be considered as) an exhaustive list, Author hereby acknowledges
and
agrees that any additions, subtractions or modifications in the
situations, story lines, dialogue, characters and/or "look and feel" of the
Project do not constitute an illegitimate breach of Author's honor and
reputation. The foregoing shall also apply to the use of any technical or
commercial process and means which are or will be considered as usual or
customary at any time during the production and exploitationof the items
produced (SBE and/or any assignee of SBE), including, without limitation,
advertising cuts, insertion of commercials and/or of third parties'
logos or credits, co orzation or de-colorization, "panning and
scanning,"
This
will
confirm the agreement between SAF B.V. ("you") and PLATINUM STUDIOS, LLC (the
"undersigned") with respect to the undersigned's purchase and acquisition of
the
"Rights" (as defined in paragraph 6 below) owned by you in and to that certain
published comic book series entitled "DYLAN DOG" (the "Property"), created
by
Tiziano Sclavi (the "Author") and published by Sergio Bonelli Editore S.p.A.
("Publisher"). The undersigned intends, without limitation, to develop and
produce one or more motion picture and/or television projects (individually
and
collectively, the "Picture") based on or suggested by the Property.
1.Conditions
Precedent. All of the undersigned's obligations hereunder shall be subject
to and conditioned upon the undersigned's (i) approval of the chain of title
with respect to the Property, including, without limitation, obtaining
satisfactory results to copyright searches, and (ii) receipt of a fully executed
original of this Agreement and of Exhibit "A" attached hereto.
2.Intentionally
Deleted.
3.Intentionally
Deleted.
4.Intentionally
Deleted.
5.
Contingent Compensation. Subject to the other provisions hereof, and on
condition that you fully perform all of your respective obligations hereunder
and are not otherwise in breach of or default hereof, and further provided
that
the undersigned produces the Picture, and the Picture is based on the Property,
you shall also be entitled to receive contingent compensation in an amount
equal
to twenty-five percent (25 %) of "Producer's
Adjusted Gross Revenues"
(as defined, accounted for and
paid in
accordance with
Exhibit "C" attached hereto
and incorporated herein by this reference), if any, derived from the
distribution and exploitation of the Picture (including sequels, remakes,
television series and other productions based thereon). Nothing herein shall
be
construed as vesting in you any right, title or interest whatsoever in any
Picture
or production, or the
gross
receipts thereof, or
any
lien or charge
thereon or assignment thereof.
6
6.
Rights
Granted.
In consideration of the undersigned's efforts to develop
the Picture, your entitlement to participation in Producer's Adjusted Gross
Receipts as set forth above, and other g9od and valuable consideration, the
receipt of which is hereby acknowledged by you, you hereby irrevocably grant
and
assign to the undersigned, solely and exclusively throughout the world in
perpetuity, all right, title and interest in and to the Property (except the
"Reserved Rights"as
defined in paragraph 7 below), including, without limitation, all
copyrights, moral rights, and all motion picture, television, audio-visual
device, dramatic stage and other live performance, merchandising (including,
without limitation, all interactive and game rights), sound recording and
allied, ancillary and subsidiary rights in any and all media now known or
hereafter devised (including the right to create certain printed publications),
necessary to make, produce, copyright, distribute and exploit in any and all
media (whether now known or hereinafter devised) throughout the universe in
perpetuity one or more motion pictures (theatrical, television or otherwise)
and
other productions and products based on or suggested by the Property. All of
the
rights granted to the undersigned under this Agreement are individually and
collectively referred to herein as
the "Rights" . Without limiting the generality of the foregoing,
the
Rights shall include and the undersigned shall own irrevocably, solely,
exclusively and in perpetuity throughout the universe, by any and all manner
and
means now known or hereafter devised, the following:
a. The
right
to produce an unlimited number of motion pictures based upon or adapted from
all
or any part of the Property, including, without limitation, musical, dramatic,
animated or live-action motion pictures, as well as remakes, prequels and
sequels thereof and thereto, all of which motion pictures may be fixed on film,
tape, disc, wire, audiovisual cartridge, cassette and/or on or by any other
technical process now known or hereafter devised in any and all sizes, gauges,
colors and types. For the avoidance of doubt, the term "Property" as used herein
and for all purposes hereof, shall mean all characters, story lines, concepts,
artwork, "look and feel," and all other intellectual property rights and their
exploitation whatsoever associated with the comic book series which are (or
become) the subject of this Agreement and the contents thereof, including,
without limitation, any author written sequels and remakes, any so-called
"spin-offs" (whether generic, "planted" or otherwise, and including, without
limitation, any evolutions of any characters which currently appear in such
comic book series and any new characters hereafter appearing in said comic
book
series, any continuity to any aspect of said comic book series, their respective
characters, universes, plots, and/or story lines, any other comic book series,
characters or properties which are launched, introduced, marketed and/or
promoted with reference to the existing comic book series, their respective
characters and/or the contents thereof (or with reference to any spin-offs
therefrom, or sequels and remakes thereof), and any other characters, story
lines, concepts or intellectual property rights and their exploitation which
can
reasonably be construed as being based on, derived or copied from the existing
comic book series (or any spin-offs therefrom, or sequels and remakes
thereof).
b. The
right
to produce sound recordings of all or any part of the Picture, specifically
including the exclusive motion picture synchronization rights in the music
commissioned or acquired by the undersigned for the Pictures and each and every
part thereof, and the exclusive right to use all or any part thereof upon the
parts of instruments serving to reproduce the same
mechanically.
7
c.
The
right to adapt, use, dramatize, arrange, change, vary, modify, alter, transpose
and make musical or non-musical versions of the Property and any parts thereof
(including, without limitation, live radio, live television and live stage
productions thereof); to add to, interpolate in and subtract or omit from the
Property, characters, language, plot, theme, scenes, incidents, situations,
action, titles, dialogue, designs, songs, music and lyrics; to translate any
of
the foregoing into all languages; to include in motion pictures, sound
recordings and other items provided for in this Agreement such language, speech,
songs, music, lyrics, dancing, choreography, sound, sound effects, action,
situations, scenes, plot, dialogue, incidents and characters, characterizations
and other material (whether or not based upon or taken from the Property) as
the
undersigned, in its uncontrolled discretion, may deem advisable, it being the
intention hereof that the undersigned shall have the exclusive, absolute and
unlimited right to use the Property, and each and every part thereof, for
motion picture and all other purposes granted hereunder in any manner it may,
in
its uncontrolled discretion, deem advisable with the same force and effect
as
though the undersigned were the sole author of the Property, specifically
including, without limitation, the right to produce motion pictures and other
productions as sequels, series, serials, or otherwise, whether or not the events
portrayed or the story, plot, outline or general nature of such motion pictures
(and/or other productions) are the same as, or similar to, those contained
in
the Property, all without in any way being accountable or liable to you or
Author for any use which the undersigned may make thereof. You hereby waive
(subject to paragraph 23.d below) the benefits of any provision of law known
as
"droit moral", or any similar laws, and agree not to institute, support,
maintain or authorize any law or lawsuit on the ground that any motion pictures
or sound records, or other productions or items produced hereunder in any way
constitute an infringement of any of your "droit moral" or a defamation or
mutilation of any part thereof, or contain unauthorized variations, alterations,
modifications, changes or translations. In any case, you hereby waive the
exercise of your "droit moral" insofar as the items produced under or pursuant
to this Agreement do not harm your honor and reputation. You shall not have
any
right, title or interest whatsoever in or to any plot, story, character, music,
lyrics, dialogue, screenplay or other material of any kind created by or for
the
undersigned (or any assignee of the undersigned) in the exercise of its rights
hereunder, or in or to any motion picture or other production produced
hereunder, or any remake and/or sequel to the Property or the Picture created
by
or for the undersigned (or any assignee of the undersigned).
d. The
right
to broadcast all or any part of the Property and all or any part of any motion
picture or sound record produced hereunder by radio and television, or
otherwise, whether by living actors, electrical transcription, film, tape or
otherwise, in any language.
e. The
right, for the purpose of advertising and exploiting purposes, to produce and
publish as serials or otherwise (with or without illustrations by photographs,
drawings or cartoons) stories, synopses, excerpts, summaries and/or resumes,
not
to exceed 7,500 words in length, of and from the Property or any motion pictures
produced hereunder based principally upon said Property and the right to (and
to
cause and/or license others to) write, publish and otherwise fully exploit
so-called "novelization,""making of" books and other publications (in any
form
or format, illustrated or otherwise) of any length in respect of all Pictures
and productions; it being agreed that any such publications shall include an
appropriate credit for Author (such as, by way of example only, "Based on the
comic book series "DYLAN DOG" created by Tiziano Sclavi.
8
f. The
right
to write and prepare screenplays, teleplays, librettos, treatments, outlines,
bibles, storyboards and all other plans, specifications and designs for motion
pictures, sound records and other productions produced hereunder, and to cause
musical compositions, including both words and music, utilizing or based upon
or
adapted from all or any part of the Property, or any title or titles thereof
to
be written and composed, and to include such musical compositions in motion
pictures, sound records and other productions produced hereunder.
g. The
right
to manufacture, sell, furnish, publish, supply and distribute products,
by-products, services, facilities, merchandise and commodities of every nature
and description, including, but not limited to, still photographs, drawings,
posters, illustrated and/or non-illustrated books, artwork, toys, games
(including video, computer and "on-line" games), software, theme park rides
and
attractions, items of wearing apparel, drawings and posters, sound recordings
in
any configuration, sheet music and music folios, foods, beverages and similar
items, which make reference to or are based upon or adapted from the Property
or
any part thereof or any motion picture produced hereunder, and the right to
make
trade deals and commercial tie-ups of all kinds involving the Property or any
part thereof.
h. The
right
to copyright motion pictures, sound records, musical compositions, screenplays,
teleplays, librettos, outlines, bibles, novelizations and all other items
provided for in this Agreement, and secure copyright and/or trademark
registration and protection thereof in all countries and territories where
such
protection is available, in the undersigned's own name, or otherwise, together
with the right to manufacture copies thereof, and to distribute, sell, vend,
lease, license, exhibit, transmit, broadcast, project, reproduce, publish,
use,
perform, advertise, publicize, market, exploit, turn to account and derive
revenue in any form or manner therefrom, without any territorial restriction
whatsoever, by any and all media, methods, systems and processes now or
hereafter known, invented, used or contemplated, specifically including
television, and the right to import or export such copies into or out of any
territory without restriction. It is further expressly understood and agreed
that motion pictures, sound records and all other productions and items produced
hereunder shall constitute independent derivative works, and the undersigned
and
its successors, assigns and licensees shall have the perpetual right to exercise
the rights granted in this subparagraph h. irrespective of the expiration,
termination, transfer, renewal or extension of any copyright owned or controlled
by you, or any heirs, executors, widow, widower, children, predecessors,
successors or assigns of you.
i. The
right
to use the title or titles by which the Property or any part thereof are now
known or may hereafter be known as the title or titles of motion pictures or
other productions or products (whether or not based upon or adapted from the
Property), it being acknowledged that the undersigned shall in no event have
any
less rights by reason of this Agreement than any member of the public may now
or
hereafter have, and the right to exploit, distribute and exhibit any motion
pictures produced hereunder under
any
other title or titles that the undersigned may deem proper in its uncontrolled
discretion.
9
j. The
right to use your name and
likeness in connection with the production, distribution and exploitation of
any
Picture or production; provided, however, that the undersigned will not use
or
authorize the use of your name and likeness as a direct endorsement of any
product or service (other than any Picture or production) without first
obtaining your written consent.
k. Intentionally
deleted.
1.
All
other
rights of every kind and character in and to the Property whatsoever, other
than
the Reserved Rights. You hereby acknowledge and agree that the exercise of
the
rights set forth in subparagraphs 6.a-j above is not able, as a matter of
principle, to harm your honor or reputation.
m. All
rights granted the
undersigned under this Agreement shall be cumulative, and the undersigned may
exercise or refrain from exercising any one or more of said rights separately
from, simultaneously, together or in connection with any other rights granted
to
the undersigned hereby or obtained by the undersigned from other sources, and
regardless of whether said rights are granted in the disjunctive or
conjunctive.
7.Reserved
Rights.
a.
Subject to the undersigned's right to exercise limited publication rights to
the
Property pursuant to paragraph 6.e. above and to the other terms and conditions
of this Agreement, you hereby reserve only the comic book print publication
rights to the Property in any format (including but not limited to, comic books,
graphic novels, serialization in strip form such as in newspapers, magazines,
almanacs and the like) and to any future episodes thereof (which future
episodes shall in no event be based on any Picture or other production produced
by or with the authority of the undersigned pursuant hereto) ("Reserved Rights")
without permission.
b. Intentionally
Deleted.
c. Sicne
the characters of the Property are inclueded in the exclusive grand of the
Rights to the undersigned hereunder, no rights in any media, other than comic
book print publication (as described in subparagraph a. above), in or to
such
characters may be exercised or granted to any third party by you, and you
shall
not authorize or permit the apperance of any characters with appear in Property,
or of any characters with similar names, personas and/or characteristics
as
those which appear in the Property, in any other media other than
comic book print publication 9as described in subparagraph a.
above).
d.
Nothing contained in this Agreement shall be construed to be or operate in
derogation of, or as prejudicial to, any rights or privileges which the
undersigned now or at anytime hereafter may enjoy or be entitled to as a member
of the public, whether or not this Agreement was in existence; and,
notwithstanding anything by Sergio Bonelli Editore. in association with PLATINUM
STUDIOS, LLC (or a division thereof as designated by the undersigned)). Such
credit shall in all events be subject to any applicable guild restrictions,
as
determined in the undersigned's sole discretion. Except as otherwise expressly
provided herein, all matters relating to credit, including but not limited
to
position and size and style of type, shall be determined by the undersigned
in
the undersigned's sole discretion. No casual or inadvertent failure by the
undersigned, or any failure by any third party, to comply with the provisions
of
this paragraph shall constitute a breach of this Agreement.
10
10. Reversion.
a.
If the
first Picture or any other production based on the Property has not commenced
principal photography (or, with respect to other productions, the substantial
equivalent of commencement of principal photography, or with respect to a live
performance, the first public performance thereof has not taken place) within
ten
(10) years of the date hereof, then, subject to the other provisions
hereof (including, without limitation, subparagraphs b. and c. below), provided
that you notify the undersigned in writing of your intent to exercise the
Reversion Right provided for below, and provided further, that principal
photography of the first Picture (or the substantial equivalent thereof with
respect to other productions) does not commence, or the first public performance
of a live production does not take place, as applicable, within one (1) year
of
the undersigned's receipt of such written notice from you, you shall have the
exclusive right ("Reversion Right") upon sixty (60) days prior written notice
to
the undersigned, to submit the Property for consideration by third parties
and
to acquire from the undersigned all of the undersigned's right, title and
interest therein, except for any Additional Material (subject to subparagraph
7.d above), by paying to the undersigned, not later • than the earlier to occur
of (i) the sale of such rights to a third party or (ii) the
commencement of principal photography of a motion picture based on the Property,
an amount equal to all of the direct, out-of-pocket costs and expenses incurred
by the undersigned in connection with the acquisition of rights in and to,
and
the development and the production of, the Property and/or any Picture or
production, and any underlying literary material, including, without limitation,
all compensation paid for writing services and for directing services, and
any
fees and costs incurred in connection with the regisiTation(s) of any
copyrights, trademarks and/or service marks, together with interest thereon
at
the prime rate charged by the undersigned's principal bank plus two percent
(2%). In addition, if a motion picture (or other production) based on the
Property is thereafter produced, you shall cause the undersigned to be paid
an
amount equal to five percent (5%) of 100% of the net profits of such picture
(or
other production) and each remake thereof and sequel thereto, defined, accounted
for and paid no less favorably than net profits are defined, accounted for
and
paid for any other net profit participant in the applicable
production.
b.
Upon
your exercise of the Reversion Right as provided above, the undersigned shall,
subject to the net profit participation provided for in subparagraph a. above,
quitclaim to you all of the undersigned's right, title and interest in and
to
the Property (except for any Additional Material and the undersigned's rights
and entitlements with respect to merchandising agreements entered into prior
to
your exercise of any such Reversion Right), and otherwise subject to
subparagraph c. below, shall warrant
only that the undersigned has not theretofore transferred, hypothecated or
otherwise disposed of any of its right, title or interest in or to the Property,
only upon: (i) payment to the undersigned of all amounts set forth in
subparagraph a. above; (II) delivery to the undersigned of executed guild and
other customary assumption agreements in form and substance reasonably
satisfactory to the undersigned assuming all of the undersigned's obligations
in
connection with the development, production and distribution of the Property
and/or any Picture (or other production) and releasing the undersigned from
all
such obligations; and (iii) the assumption of all the undersigned's obligations
in connection with the Property and any Picture (or other production) by a
reasonably financially responsible party pursuant to an assumption agreement
in
form and substance acceptable to the undersigned (which assumption agreement
shall include, without limitation, appropriate provisions for
indemnification).
11
c. To
the extent that the undersigned has exercised any merchandising rights in
accordance with this Agreement prior to your exercise of any Reversion Right
as
provided for above ("Reversion Exercise"), any agreements entered into by the
undersigned in connection therewith prior to such Reversion Exercise ("Existing
Agreements") shall remain in full force and effect, and any such reversion
of
rights shall be subject to the terms and conditions of such agreements. Promptly
after any such Reversion Exercise, the undersigned shall provide you with copies
of all Existing Agreements, together with written notice identifying any parties
with which the undersigned was negotiating prior to such Reversion Exercise
and
summarizing the principal terms of such negotiations ("Deals In Process").
After
such Reversion Exercise, you shall have the option of exercising any renewals
or
extensions to the Existing Agreements (to the extent that Platinum has such
rights under the applicable Existing Agreement) as well as negotiating
additional renewals and extensions thereto, provided that the terms of
subparagraph 15.b below shall continue to apply to the applicable Existing
Agreements as so renewed or extended, and provided further, that if you should
choose to forego any such renewal or extension ("Expired Agreement"), you shall
not enter into any agreement with respect to the merchandising of the Property
with the other party to such Expired Agreement for a period of two (2) years
from the date of the expiration of such Expired Agreement. With rospect to
Deals
in Process, you shall have the option of permitting the undersigned to conclude
an agreement substantially on the terms previously communicated to you, in
which
event the terms of subparagraph 15.b shall apply to any such agreements so
concluded (as well as to any extensions or renewals thereof), provided that
if
you opt not to have the undersigned conclude any such Deal in Process, you
shall
not enter into any agreement with respect to the merchandising of the Property
with the intended party (or parties) to such Deal in Process for a period of
two
(2) years from the date of such Reversion Exercise hereunder.
d. If
the first Picture or any other production based on the Property has commenced
principal photography (or, with respect to other productions, the substantial
equivalent of commencement of principal photography, or with respect to a live
performance, the first public performance thereof has taken place) within ten
(10) years of the date hereof, then the reversion rights provided for in this
paragraph 10 shall automatically terminate and have no further force or
effect.
12
10. Reversion.
a.
If
the
first production based on the Property ahs not commenced principal photography
(or, with respect to other productions, the substantial equivalent of
commencement of principal photography, or with respect to a live performance,
the first public performance thereof has not taken place) within ten (10) years
of the date hereof, the, subject to the ther provisions hereof (including,
without limitation, subparagraphs b. and c. below), provided that you have
the
right to enter into this Agreement and to grant all the rights herein granted,
free and clear of any liens, claims and encumbrances whatsoever; that you have
not granted or assigned or otherwise transferred such rights to any others
and
that you will not do so subsequent to the date hereof; that the Property is
wholly original with Author; that no incident therein or part thereof was taken
or copied from or based upon any other source unless in the public domain
(including but not limited to any motion picture or any other literary,
dramatic, or musical work); that the Property does not and will not infringe
any
copyright, right of privacy or other right of, or defame or libel, any person
or
company; that the use of the Property, in any form, adaptation or version will
not infringe any such copyright or other rights or defame any person or company;
and that there are no claims, litigation or other proceedings pending or
threatened which could in any way impair, limit or diminish the rights granted
to the undersigned hereunder; all material in the "Annotation" (as defined
below) furnished by you and/or Author pursuant to paragraph 19 below (if
applicable) shall be true and accurate in all respects. The foregoing
warranties do not apply to any material which the undersigned may add to the
Property in the development of the Picture. You hereby make the same
representations and warranties to the undersigned as are made in your favor
by
Author in any agreement between you and Author.
b.
Upon your exercie of the Reversion Right as provided above, the undersigned
shall, subject to the net profit participation provided for in subparagraph
a.
above, quitclaim to you all the under signed's right, title and interest in
an
to the Property except for Additional Material and the undersigned's rights
and
entitlements with respect to merchandising agreements entered into prior to
your
excercise of any such Reversion Right), and otherwise subject to suparagraph
c.
below, shall warrant only the undersigned has not theretofore transferred,
hypothecated or totherwise disposed of any of its right, title or interest
in or
to the Property, only upon: (i)payment to the undersigned of all amounts set
forth in subparagraph a. above; (ii) delivery to the undersigned of exceuted
guild and other customary assumption agreements in form and substance reasonably
satisfactory to the undersigned assuming all of the undersignd's obligations
in
connection with the development, production distribution of the Property and/or
any Picture (or other production) and releasing the undersigned from all such
obligations; and (iii) the assumption of all the undersigned's obgligations
in
connection with the Property and any Picture (or other production) by a
reasonably financially responsible party pursuant to an assumption agreement
shall include without limitation, apporpriate provisions for
indemnification).
c.
To
the extent that the undersigned has exercised any merhandising rights in
accordance with this Agreement prior to your exercise of any Reversion Right
as
provided of above ("Revision Exercise"), any agreements entered into by the
undersigned in connection therewith prior to such Reversion Exercise ("Existing
Agreement") shall remain in full force force and effect, and any such reversion
of rights shall be subject to the terms and coditions of such agreements.
Promptly after any such Reversion Exercise, the udersigned shall provide you
with copies of all Existing Agreements, together with written notice identifying
any parties with which the undersigned wat negotiating prior to such Reversion
Exercise and summarizing the principal terms of such negotiations ("Deals In
Process"). After such Reversion Exercise, you shall have the option of
exercising any renewals or extensions to the Existing Agreements (to the extent
that Platinum has such rights under the applicable Existing Agreement) as well
as negotiating additional renewals and extentions thereto, provided that the
terms of subparagraph 15.b below shall continue to apply to the applicable
choose to forego any such renewal or extension ('Expired Agreement"), you shall
not enter into any agreement with respect to the merchandising of the Property
with the other expiration of such Expried Agreement. With respect to Deals
in
Process, you shall have the option of permitting the undersigned to conclude
an
agreement substantially on the terms previosly communicated to you, in which
event the terms of subparagraph 15.b shall aplly to any such agreements so
concluded (as well as to any extentisons or renewals thereof), provided that
if
you opt no to have the undersigned conclude any such Deal in Process, you shall
not enter into any agreement with repect to the merchandising of the Property
with the intended party (or parties) to such Deal in Process for a period of
two
(2) years from the date of such Reversion Exercise hereunder.
d.
If
ther first Picture or any other production based on the Property has commenced
principal photography (or, with respect to other productions, the substantial
equivalent to commencement of principal photography, or witht he respect to
live
performance, the first public performance thereof has taken place) within ten
(10) years of the date hereof, then the reversion rights provided for in this
paragraph 10 shall automatically terminate and have no further force or
effect.
12. Indemnity.
You hereby agree to indemnify the undersigned, and its successors, assigns,
and licensees, and hold all such persons or companies harmless from and against
any and all liability, losses, damages, costs, expenses (including but not
limited to reasonable attorneys' fees), judgments and penalties arising out
of,
resulting from, based upon or incurred because of breach or alleged breach
of
any representation, warranty or agreement made by you hereunder.
13. Waiver
of Injunctive Relief. You hereby agree that the sole remedy in the event of
any default by the undersigned hereunder, including the failure by the
undersigned to pay you any consideration payable to you pursuant hereto, or
to
accord you credit (to the extent that the undersigned is obligated to accord
such credit) pursuant hereto, shall be an action against the undersigned for
such consideration or for damages, if any. Specifically, you agree, for the
benefit of the undersigned and any third-party involved in the production,
exhibition, distribution or exploitation of the Picture, that you shall have
no
right to enjoin the production, exhibition, distribution or exploitation of
the
Picture or to terminate or rescind any rights in the Property granted to the
undersigned hereunder. If any copyright (or similar) report obtained by the
undersigned hereafter indicates that you have heretofore entered into agreements
in conflict herewith or have granted to any others any of the rights granted
hereunder, the undersigned shall have the right to terminate this Agreement
by
written notice to you; and immediately upon receipt of such notice, you shall
remit to the undersigned an amount equal to the sum of all consideration
theretofore paid to you by the undersigned hereunder. At all times, the
undersigned shall have all rights and remedies which it has at law, in equity,
pursuant hereto or otherwise.
14. Assignment.
The undersigned may assign this Agreement, and/or any of the undersigned's
rights hereunder, to any person, firm or corporation. If such person, firm
or
corporation is (i) a major or mini-major (as such terms are customarily
understood in the motion picture industry), (ii) a television network, (iii)
or
a financially responsible party, and such person, firm or corporation assumes
and agrees in writing to keep and perform the undersigned's obligations
hereunder (or any of them), the undersigned shall be released and
discharged from the obligations so assumed. This Agreement shall be binding
upon
and shall inure to the benefit of the undersigned and its successors,
representatives and assigns.
13
15.Development/Merchandising
Activities.
a. The
undersigned shall have the right to prepare for the production of a motion
picture or other production based on or suggested by the Property. You agree
that the undersigned shall have the right to revise, change, adapt, modify,
interpolate in, transpose, add material to and/or remove material from (herein
collectively "revise") the Property as the undersigned shall in its sole
discretion deem appropriate. You hereby acknowledge that the exercise of the
foregoing rights is not able, as a matter of principle, to harm your honor
or
reputation.
b. Notwithstanding
anything to the contrary contained in this Agreement or the exhibits hereto,
the
undersigned shall have the right to merchandise the Property itself and any
elements thereof (in addition to any Picture or other production based thereon)
on the following terms and conditions:
(1) the
undersigned shall
not have the right to include
comic books (as described in 7a. above) in the items of merchandise to
be exploited.
(2) Intentionally
Deleted.
(3) subject
to subparagraph (4) below, with respect to any merchandising agreements for
the
Property (or any element thereof) concluded prior to the commencement of
principal photography of the first Picture (or of any other production) pursuant
hereto, if a third party exploits such merchandising rights, the undersigned
shall be paid a supervisory fee in amount equal to ten percent (10%) of the
gross receipts derived "at-source" by such third party from such exploitation,
or, if the undersigned exploits such merchandising rights (e.g., merchandising
rights have not been assigned or granted to a Major or other
financier/distributor in connection with a Picture or production), the
undersigned shall be paid a fee in an amount equal to thirty-five percent (35%)
of the gross revenues received by the undersigned from the exploitation of
such
merchandising rights; in either case, after the following deductions in the
following order "off-the-top" from the non-refundable, non-returnable revenues
received and retained by the undersigned from the exploitation of such
merchandising rights: (i) the applicable fee as set forth above, (ii) any
applicable third party participations and/or agency or consulting fees where
the
undersigned exploits the merchandising rights, and (iii) any "out-of-pocket"
costs and expenses incurred by the undersigned in connection with such
merchandising activities, the balance shall be divided equally between you
and
the undersigned;
(4) after
the commencement of principal photography of any Picture (or of any other
production), any and all non-refundable, non-returnable revenues received and
retained by the undersigned from merchandising agreements for the Property
(or
any element thereof) entered into by the undersigned pursuant hereto, whether
concluded prior to or after any such commencement, shall be accounted for and
paid as provided in Exhibit "C", retroactive to the first dollar of such
revenues (i.e., after such commencement, if monies were paid to you
under subparagraph (3) above, but would not have been payable as and when
accounted for in accordance with Exhibit "C", the undersigned may offset such
amounts} previously paid to you against other monies payable to you
hereunder).
14
16. Further
Documents/Actions.
a. You
shall, concurrently with the execution of this Agreement, execute, acknowledge
and deliver to the undersigned the short form Assignment in the form attached
hereto as Exhibit "A." You further agree that the undersigned may record
the executed short form Assignment with the United States Copyright Office
and
with the copyright office or comparable registry of any country.
b. In
addition, you shall duly execute, acknowledge and deliver to the undersigned,
or
cause to be executed, acknowledged and delivered to the undersigned, in form
reasonably approved by the undersigned, any and all further assignments or
instruments consistent with this Agreement which the undersigned may deem
necessary, expedient or proper to carry out and effectuate the purposes and
intent of this Agreement, including but not limited to, and in the event of
the
renewal or extension of the copyright in or to the Property, such assignments
or
other instruments as may be required by the undersigned to effectively vest
in
the undersigned, throughout the full period of such renewal or extension of
copyright, all of the rights, licenses, privileges and property herein granted
to the undersigned. In no way limiting the generality of the foregoing, you
shall take all steps reasonably necessary and proper to protect and preserve
the
copyright of the Property, including but not limited to, timely renewing the
copyright registration thereof (and if the Property has not been registered
for
copyright in the U.S. Copyright Office, you shall (at your expense) immediately
do all acts and things necessary to effect such registration of the Property
in
your and Author's name, as applicable). You hereby agree (at your expense)
to
cause any future publication of the Property, or any part thereof, in whatever
form, version, adaptation or translation in any part of the world to include
a
proper copyright notice and in such manner as shall afford to the Property
copyright protection in the United States and all countries of the world where
copyright or similar protection is available. If you shall fail to execute
or
deliver to the undersigned any further assignments or instruments under the
provisions hereof within seven (7) days after being requested to do so by the
undersigned, then to the extent that the undersigned shall be legally entitled
to execute, acknowledge and deliver such assignment or instruments, you hereby
appoint the undersigned your irrevocable attorneyin-fact, with the right,
but not the obligation, to do any and all acts and things necessary to execute,
acknowledge and deliver any and all such further assignments and other
instruments consistent with this Agreement, in your name and on your behalf,
which appointment shall be deemed to be a power coupled with an interest and
shall be irrevocable.
c.You
shall do all such acts and things as shall be necessary to prevent the
Property, and any part thereof and any future versions thereof, from falling
into the public domain in any country or territory of the
world.
15
17. Infringement
Actions. Also included in the rights hereby granted to the undersigned by
you are all actions and causes of action for the infringement by any other
person or company of any rights in the Property hereby granted to the
undersigned, and in this connection you hereby appoint the undersigned your
attorney-in-fact irrevocably, but for the sole benefit of the undersigned,
to initiate and prosecute such proceedings as the undersigned may deem expedient
to protect its rights herein granted and to effect its recovery of damages
and
penalties for any such infringement. The undersigned may sue in its own name
or
may use your name or at its sole option may join you as party plaintiff or
defendant in any suit or proceeding brought for such purposes. You shall
cooperate with the undersigned in connection with any suit or action threatened
or instituted by or against the undersigned relating to any rights granted
or to
be granted to the undersigned hereunder, or to the exercise thereof by the
undersigned, to the full extent of your ability.
18. Rental,
Lending and Home Taping Rights.
a. Without
limiting the foregoing, you hereby irrevocably assign, license and grant to
the
undersigned, throughout the universe in perpetuity any and all of your (and,
to
the extent the Author's rights have been assigned to you, the Author's) rights
to authorize, prohibit and/or control the renting, lending, fixation,
reproduction and/or other exploitation of the Picture by any media and means
now
known or hereafter devised as may be conferred upon you under
applicable laws, regulations or directives, including without limitation, any
so-called rental and lending rights pursuant to any European Economic Community
("EEC") directives and/or enabling or implementing legislation, laws or
regulations enacted by the member nations of the EEC as well as any so-called
home taping rights (all of the foregoing rights are herein collectively referred
to as the "Rental, Lending and Home Taping Rights").
b. You
hereby acknowledge and agree that the following sums are in consideration of,
and constitute adequate and equitable remuneration for the Rental, Lending
and
Home Taping Rights and constitute a complete buy-out of all Rental, Lending
and
Home Taping Rights in perpetuity: (i) an agreed allocation to the Rental,
Lending and Home Taping rights of 3.8% of the compensation provided for under
this Agreement; (ii) any sums payable to you with respect to the rental and
lending right under any applicable collective bargaining agreement or other
industry-wide agreement; and (iii) any residuals payable to you under any such
collective bargaining or other industry-wide agreement with respect to home
video exploitation in the territories or jurisdictions where the Rental, Lending
and Home Taping Rights are recognized. To the extent that the Author has not
been fully compensated for the Author's Rental, Lending and Home Taping Rights,
the undersigned shall be entitled to withhold and deduct from any compensation
payable to you hereunder any such amounts which the undersigned is obligated
to
pay to Author in connection therewith. In connection with the foregoing, you
hereby irrevocably grant to the undersigned throughout the universe in
perpetuity, to the extent not inconsistent with any applicable collective
bargaining agreement or other industry-wide agreement, the right to collect
and
retain for the undersigned's (or its designee's) own account the amounts payable
to you (or to Author to the extent Author has assigned same to you) in respect
of such Rental, Lending and Home Taping Rights and hereby irrevocably direct
any
collecting societies or other persons or entities receiving such amounts to
pay
such amounts to the undersigned. You shall also fully cooperate with the
undersigned in connection with the collection and payment to the undersigned
of
such amounts.
16
19.Annotation
Guide. To the extent any material (including, without limitation, characters
and characterizations) contained in the Property is based in whole or in part
on
any actual individual, whether living or dead, or any "real life" incident,
you
shall, and shall cause Author to, prepare and deliver to the undersigned, not
later than the date reasonably designated by the undersigned, a complete, true
and accurate written annotation of such material, in accordance with the
guidelines provided in the Annotation Guide attached hereto as Exhibit "B"
(an
"Annotation"). You shall also accurately provide such other information as
may
be reasonably required by the undersigned for the purpose of permitting the
undersigned to evaluate the risks involved in the utilization and exploitation
of the Rights.
20.Publicity/Non-Disclosure.
a. Neither
you nor the undersigned will disclose any material provision of this Agreement
to any third party unless reasonably necessary to do so.
b. You
shall
not issue publicity for the Picture at any time without the undersigned's prior
consent, except that you may issue publicity which relates primarily to the
comic book series "DYLAN DOG" and only incidentally to the Picture or the
aforementioned's connection thereto, provided that any publicity issued by
you
shall not derogate, disparage or defame the Picture or any person, firm or
corporation (including, without limitation, the undersigned, and its officers,
employees, parent companies, affiliates and subsidiaries) associated with the
Picture. You shall not disclose to any third party (except on a confidential
basis to your business representatives) any proprietary information relating
to
the Picture or the undersigned (or its parent companies, subsidiaries and
affiliates) (including, without limitation, the budget of the Picture, the
contents of any contingent compensation statement or the terms of any agreements
pertaining to the Picture), without the undersigned's prior written
consent.
21.Payment.
All monies money due and payable to you under this
Agreement
shall be paid to the address first set forth above.
17
22. Governing
Law; Forum. THIS AGREEMENT SHALL BESUBJECT TO AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA APPLICABLE
TO
AGREEMENTS EXECUTED AND TO BE PERFORMED WHOLLY THEREIN. YOU HEREBY AGREE THAT
ANY LEGAL ACTION OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER AGREEMENT, DOCUMENT OR OTHER INSTRUMENT EXECUTED IN CONNECTION
HEREWITH OR PURSUANT HERETO, OR ANY ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE
ENFORCE ANY JUDGMENT OBTAINED
AGAINST YOU OR ANY OF YOUR PROPERTIES MAY BE BROUGHT IN THE COURTS OF THE STATE
OF CALIFORNIA, OR IN THE FEDERAL COURTS OF THE UNITED STATES FOR THE CENTRAL
DISTRICT OF CALIFORNIA, AS THE UNDERSIGNED MAY ELECT, PROVIDED ALWAYS THAT
SUIT
ALSO MAY BE BROUGHT IN THE COURTS OF ANY COUNTRY OR PLACE WHERE YOU OR ANY
OF
YOUR ASSETS MAY BE FOUND, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
YOU
IRREVOCABLY WAIVE ANY OBJECTION WHICH YOU MAY NOW OR HEREAFTER HAVE TO THE
VENUE
OF ANY SUIT, ACTION OR PROCEEDING, ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR ANY OTHER AGREEMENT, DOCUMENT OR OTHER INSTRUMENT EXECUTED IN CONNECTION
HEREWITH OR PURSUANT HERETO, BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR
IN THE FEDERAL COURTS OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF
CALIFORNIA, AND HEREBY FURTHER IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. SERVICE OF ALL WRITS, PROCESSES AND SUMMONSES IN ANY ACTION,
SUIT OR PROCEEDING INSTITUTED BY THE UNDERSIGNED IN ANY OF THE COURTS OF THE
STATE OF CALIFORNIA OR OF THE UNITED STATES OF AMERICA MAY BE MADE UPON YOU
BY
ANY MEANS PERMITTED BY LAW, AND TO THE EXTENT PERMITTED BY LAW BY THE MAILING
OF COPIRS OF THE SAME TO YOU, ENCLOSED IN REGISTERED OR CER:111-1ED MAIL
COVER, AT THE ADDRESS DESIGNATED FOR YOU HEREINABOVE.
23.Miscellaneous.
a.
Any
and all notices desired or required to be given hereunder shall be in writing
and sent by registered or certified mail, postage fully prepaid, to the
respective party at the following addresses (or such other address as such
party
may designate in writing):
No
breach
of this Agreement by the undersigned shall be deemed to be material unless
you
shall have first served notice upon the undersigned of such alleged breach
and
the undersigned shall not have cured or remedied such breach within 30 days
after receiving such notice.
b. In
addition to any other rights and remedies of the undersigned (whether at law,
in
equity or otherwise), the undersigned shall be entitled to injunctive relief
to
enforce the provisions hereof (including, without limitation, its rights and
entitlements under paragraph 10 above), and, in the event that the undersigned
must institute any action or proceeding to enforce its rights hereunder, the
prevailing party in any such action or proceeding shall be entitled to payment
of its attorneys fees and costs incurred in connection with such action or
proceeding (including any fees and costs relating to the dispute in question
incurred prior to the commencement of such action or proceeding).
c. This
Agreement (and any Exhibits attached hereto) contains the entire
agreement between the parties hereto concerning the subject matter of this
Agreement and shall supersede any prior or contemporaneous agreements or
understandings. This Agreement may not be changed or modified, or any provision
hereof waived, except by an agreement in writing signed by the party against
whom enforcement of any waiver, change or modification is sought.
d.
Nothing herein contained shall be construed as requiring the commission of
any
act contrary to law, and wherever there is any conflict between any provision
of
this Agreement and any applicable statute, law or ordinance contrary to which
the parties have no legal right to contract, the latter shall prevail, but
in
such event the provision of this Agreement affected shall be curtailed and
limited only to the extent necessary to bring it within the applicable legal
requirements. In particular, should any court of competent jurisdiction
determine that any of the provisions of this Agreement are invalid insofar
as
they provide for an assignment or waiver of your moral rights, you hereby
nevertheless agree that such assignment and waiver shall be restricted as
and to the extent required by applicable law, but shall and remain
effective insofar as the items produced under or pursuant to this Agreement
do
not harm your honor and reputation. Without limiting the generality of the
foregoing, and without the following constituting (or otherwise to be considered
as) an exhaustive list, you hereby acknowledge and agree that any additions,
subtractions or modifications in the situations, story lines, dialogue,
characters and/or "look and feel" of the Property do not constitute an
illegitimate breach of your honor and reputation as long as the spirit of the
Property is not affected. The foregoing shall also apply to the use of any
technical or commercial process and means which are or will be considered as
usual or customary at any time during the production
19
Kindly
indicate your agreement to and acceptance of the foregoing by signing in the
space provided for your signature hereinbelow.
IN
CONSIDERATION of the payment of Ten Dollars ($10.00) and other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
sells, grants, assigns, and transfers to PLATINUM STUDIOS, LLC (the
"Purchaser"), and its successors, licensees and assigns, all of the
undersigned's right, title and interest in and to the property ("Property")
described below (excluding only the Reserved Rights), including, without
limitation, all copyrights, moral rights, and all motion picture, television,
audio-visual device, dramatic stage and other live performance, merchandising,
sound recording and allied, ancillary and subsidiary rights (including the
right
to create certain printed publications) therein, whether now known or
hereinafter devised (and including, without limitation, the rights set forth
on
Schedule "A" attached hereto and incorporated herein by this reference),
throughout the universe in perpetuity:
including
all contents of said Property. This agreement is subject to all terms,
conditions and provisions contained in that certain agreement ("Agreement")
dated as of July 2, 1997 entered into between Purchaser and the undersigned.
Any
capitalized terms used but not defined herein shall have the meanings set
forth in the Agreement.
On
_________________,_____________, before me , the undersigned, a Notary
Public in and for said
County
and State, personally appeared __________________,
known
to me (or proved to me
on the
basis of satisfactory evidence) to be the person whose name is subscribed to
the
within instrument and acknowledged that (s)he executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS
my hand and official
seal.
By:
Notary
Public in and for said
County and State
22
SCHEDULE
"A"
(Non-Exhaustive
List of Assigned Rights)
The
Adaptation Rights and Translation Rights, i.e., the right to make
changes to the Property and its characters, story elements, dialogues, scenes,
etc., the right to add new or altered parts, to edit out sections or to
rearrange the order or sequences in the plot, to commission co-authors to edit
the Property and the right to have the Property translated into all
languages.
The
Film Production Rights, i.e., to use the Property, or parts thereof,
for producing a motion picture (or pictures) in any language. The film
production rights also encompass the right to produce re-makes and
sequels.
The
Right to the Use of Title, i.e., to use the title of
the Property for designating the motion picture production(s).
The
Rights of (Expansion) Further Development, i.e., the right to use
elements of the plot, as developed by the author, or any characters and their
characteristics and features contained in the Property, as well as any other
ideas set forth therein, without restriction, for follow-up productions (e.g.,
sequels, remakes, series and for spin-offs from said series), or in connection
with other productions, even if the author is not called upon to participate
in
the writing of the screenplays for such other productions.
The
Transmission Rights, i.e., the right to render any production based on
the Property accessible to the public, in whole or in part, for an unlimited
number of times (runs) by way of broadcasts such as radio and television
broadcasting, wire broadcasting, Hertzian waves, laser, microwaves, or similar
technical devices. This applies to all possible transmission methods (for
example, terrestrial transmitters, cable television, cable retransmission,
satellite television, including direct broadcast satellite) irrespective of
the
legal form (public or private television) or of the method of financing employed
by the television station (commercial or non-commercial television) or of the
legal relationship between the broadcasting station and the viewer (Free TV,
Pay
TV, etc.). The foregoing includes the right to publicly communicate broadcasts
as well as
any claims to fees which may be exacted in respect of the private
recording of television broadcasts.
The
Theatrical Rights, i.e., the right to render any production publicly
perceptible by means of technical devices irrespective of the technical design
of the projection system and the visual and sound recordings. The theatrical
rights relate in particular to all film formats and narrow-gauge formats (70,
35, 16, 8 mm) as well as electromagnetic (video) systems and encompass
commercial and non-commercial film screenings. The foregoing includes the right
to make any production publicly perceptible at fairs, sales exhibitions,
festivals and similar events.
The
Videogram Rights, i.e., the right to reproduce and distribute (by means
of selling, hiring, lending,. etc.) any production on visual and sound
recordings of all types (videograms) for the purpose of non-public exhibition.
This right includes all audiovisual systems such as narrow-gauge film cassettes,
video cassettes, video tapes, video discs irrespective of the technical design
of the system concerned. The foregoing includes the right to make any such
production available to a limited number of viewers by closed circuit (e.g.,
in
hospitals, hotels, aircraft, ships, schools) as well as any claims for
remuneration under applicable copyright laws resulting from the hiring or
lending of recorded video cassettes and offering the possibility of making
private recordings.
23
The
Interactive Media Rights, i.e., the rights of exploitation in
picture/sound media other than those mentioned above that allow the active
influence of the recipient on the action depicted in any production. Included
herein are, for example, CD-Roms, CDI, laser discs and other picture/sound
media
(multi-media rights) that can be played on end-user devices (e.g., personal
computer(s)) designed therefor.
The
"Use-On-Demand" Rights, i.e., the right to make the work available, by
way of digital or alternate storage and transmission technology, to a
multiplicity of users for, respectively, individual demand or reception
by way of a television and/or other devices. Included in
the foregoing
is the right to store the work, in whole or in part, in electronic data banks,
data nets or telephonic data services (ems., Internet, World Wide Web) for
purposes of individual use on demand.
The
Reproduction and Distribution Rights, i.e., the right to reproduce and
distribute any production at the
user's discretion, within the scope of the modes of use granted hereunder,
on
visual and sound recordings other than the ones originally
employed.
The
Adaptation and Dubbing Rights, i.e., the right to abridge and
segment the Property and any production, as well as to combine the same with
other works, to interrupt any production with advertising spots, to change
the
title or to adapt the Property or any production in any other way and the
exclusive right to dub any production in other languages or to produce subtitled
or voice-over versions thereof.
The
Right to Advertise and to Use Excerpts, i.e., the authorization to use
excerpts from the Property or any production for advertising purposes or to
exploit the same within the framework of other productions. The foregoing
includes the right to advertise any production and its comprehensive
exploitation in a manner customary in the trade (Lg, on television, in movie
theatres, on videograms or in printed publications) while using the author's
name and likeness.
The
Merchandising Rights, i.e., the right to commercially exploit the
Property and any production by manufacturing and distributing products of any
description which are connected with the Property or the production, including
any representation of incidents, names, titles, characters, likenesses or other
contexts and to advertise products and services of any description by using
such
elements or adapted or unadapted excerpts from the Property or the production
(provided that the author shall not be represented as using, consuming or
endorsing any such product).
The
Publication Rights, i.e., the right to write and publish summaries and
synopses of the Property as well as the right to produce, reproduce and
distribute
illustrated
or non-illustrated books, booklets, eenae=sieips, etc. which are derived
from
the Property or any production either by ,repeating or narrating the contents
-
also in a modified or remodelled version - or in the form of photographic,
drawn
or painted visual representation, or the like.
The
Sound Recording Rights, i.e., the right to produce, reproduce
and distribute phonograph records, tape cassettes or other sound recordings
which are produced on the basis of the soundtrack of any production, or by
way
of narrating, rearranging or otherwise adapting the contents of the Property
or
any production as well as the right to broadcast or publicly communicate
any
such sound recordings.
24
EXHIBIT
"B"
ANNOTATION
GUIDE
Annotated
material should contain for each element, whether an event, setting or section
of dialogue within scene, notes in the margin which provide the following
information:
1.
Whether
the element presents or portrays:
(a)
Fact,
in which case the note should indicate whether the person's name
is real,
whether (s)he is alive and whether (s)he has signed a
release.
(b)
Fiction,
but a product of inference from fact;
or
(c)
Fiction,
not based on fact.
2.
Source
material for the element:
(a)
Book;
(b)
Newspaper
or magazine article;
(c)
Recorded
interview;
(d)
Trial
or deposition transcript;
(e)
Any
other source.
NOTE:
Source material identification should give the name of the source (i.e., New
York Times article), page reference (if any) and date. To the extent
possible, identify multiple sources for each element. Retain copies of all
materials, preferably cross-indexed by reference to page numbers. Coding may
be
useful to avoid repeated, lengthy references.
Descriptive
annotation notes are helpful (e.g., the setting is a hotel suite because
John/Jane Doe usually had business meetings in his/her hotel suite when visiting
Los Angeles - New
York Times; April 1, 1981, p.8).
25
EXHIBIT
"C"
PRODUCER'S
AEUUSTED GROSS REVENUES
To
Agreement between Platinum Studios 1.1.0 ('Company') and SAF B.V.
("Participant") in connection with a motion picture (including sequels. remakes.
television series and other productions based thereon) (collectively, the
"Picture') based upon the comic book series ("Property') entitled "Dylan
Dog.'
A Single
Worldwide Distributor:
I. General
Computations:
(a)
If the Picture is financed and
distributed by a single worldwide distributor. then Producer's Adjusted Gross
Revenues ("PAGR') shall mean 'Producer's Gross Receipts', as defined in
paragraph Ail, less (1) the items set forth in paragraph B.I.(aXi)-(v) below,
to
the extent paid or payable by Company. out of the Producer's Gross Receipts
received by Company or
otherwise (as opposed to such items paid by the Distributor and/or
Financier prior to remitting Producer's Gross Receipts to Company), and to
the
extent rot included in the budget of the Picture. and (2) themerchandising Distribution
Fee set forth in paragraph B.IV(x).
II.Producer's
Gross
Receipts:
(a) For
purpose of this section A, 'Producer's Gross Receipts" means all cash received
and retained (in US dollars in the United States or in freely remittable foreign
currency) by Company from any distributor, sutdistrilmor, financier, or other
licensee in consideration for the option, purchase, license or other disposition
of the Rights (as the term "Rights" is defined in the main agreement to which
this is attached. and as opposed to any consideration or compensation (whether
fixed or contingent) paid to Company, Scott Rosenberg or any other individual
for their respective producer and/or executive producer services). "Producer's
Gross Receipts' shall be net of any distribution fees, distribution expenses,
deferments and/or participations, production casts or any other deductions
made
by the Distributor /Financier of the Picture prior to remising Producer's Gross
Receipts to Company.
(b) If
merchandising, music, soundtrack, and/or other ancillary or allied and
subsidiary rights are sold or licensed separately from the distribution rights
in the Picture, then to the extent of such separate sale or license, such
Producer's Gross Receipts shall be treated as set forth in Section
B,
below.
BMultiple
Distributors:
I.General
Computation:
(a)
If
the Picture is not financed and distributed by a single worldwide distributor
(e.g., if the distribution rights to the Picture are licensed on a
territory-byterritory, region-by-region and/or media-by-media basis and/or
Company finarots the Picture though loans, equity iiIVCSCMCI0S,
bridge financing, cash contributions from multiple sources
or a
combination thereof), then PAGR shallmean 'Producer's Gross Receipt?, as defined
in paragraph B.R. less the following, deducted on a continuing basis in the
following order:
(i) 'Off
the
Tops," as defined in paragraph
B.III. below;
(ii) 'Distribution
Fees.' as defined in paragraph
B.IV;
(iii) 'DistributionExpenses." as
defined
in paragraph B.11;
(iv) All
deferments and/or participations whether fixed or contingent (if any) based
upon
or computed in respect of Producer's Gross Receipts to the extent not included
in "Production Cost";
(v)
'Production Cost,' as defined in paragraph B.VI, with interest on the
unrecouped portion thereof at the rate charged from time to time by Company's
bank or other financing entity; interest shall be deducted before
principal.
(b)
"Breakeven" means 'Producer's Gross Receipts' less the deductions set forth
in
clauses (), (i), (iii) and (v) of paragraph B.l(a) above; and the
deductions set forth in paragraph B.I(aXiv) which are paid or accrue prior
to
Breakeven.
H.Producer's
Gross Receipts:
(a) Producer's
Gross Receipts: For purposes of this Section B, "Producer's Gross Receipt?
means all cash received and retained (in US dollars in the United States or
in
freely remittable foreign currency) by Company from any distributor,
subdistributor, or other licensee for the right to distribute. exhibit, or
otherwise exploit the Picture and the ancillary, allied and subsidiary rights
therein in any media. 'Producer's Gross Receipts' shall be net of any
distribution fees, sales agency fees or commissions. distribution expenses
and
any other deductions made by the distributor(s)/ financiers of the Picture.
No
advance or security deposit paid to
Company by any entity shall
constitute Producer's Gross Receipts until non-refundable.
'Sale" means any license, grant, or sale. Producer's Gross Receipts are subject
to adjustments for refunds, rebates, credits, settlements, and
discount.
(b)
Outright Sale: If Company sells all or any part of Company's rights for
an amount that is not computed by reference to the purchaser's revenues, then
(subject to subparagraph IV(aXviii) below) Company shall cause Company's net
receipts from such sale to be included in Producer's Gross Receipts, aid
Participant shall have no further interest in the purchaser's revenues from
the
use of such rights.
III.
Off the Tops: 'Off the Top? means the aggregate of the following amounts
incurred by Company (determined on a continuing basis):
26
(i) Taxes
—
Taxes, excises and imposts of any kind (and payments and expenses in contesting,
compromising or settling any of them, together with any interest and penalties
with respect thereto imposed by any taxing authority) on or with respect to
the
Picture or the associated prints, physical properties. trailers, advertising
accessories or underlying literary properties, or any use or exhibition of
the
foregoing, or any of the Producer's Gross Receipts or the receipt, payment
or
remittance thereof, provided that no income or similar taxes paid by Company
shall be included hereunder.
(ii) Duties
—
All duties, tariffs, customs charges, import taxes and like charges paid or
incurred in cormection with the Picture.
(iii)Guild
Payments — All
costs incurred with respect to
payments required under
applicable collective bargaining agreements,
including, but not limited to, employer fringe benefits, residuals, royalties
and taxes payable with respect thereto, by reason of or as a condition to any
exhibition of the Picture, or any part thereof, or any use or reuse thereof
for
any purpose or in any media whatsoever.
(iv) Conversion
Costs — All
casts arxl expenses associated with the conversion of foreign currency into
United States dollars.
(v) Trade
Associations Dues
and Industry Assr.ssmeras
—
Dues,
fees and
contributions (to the extent reasonably allocated by Company to the Picture)
payable to the MPAA, AMPTP and MPEA or any similarly constituted or substitute
authorities or organizations, or their respective successors. and a reasonably
allocable portion of industry assessments, including, without limitation.
industry campaigns, contributions to legal fees and related overhead of counsel
retained to monitor and investigate copyright infringement, and awards,
settlements, judgments and legal fees and other costs incurred in connection
with antitrust or similar proceedings.
(vi)Collection
Costs — All
costs incurred
in connection with the collection of monies-includable
within the Producer's Gross Receipts, including reasonable fees of attorneys
and
auditors, and losses, damages or liabilities suffered or incurred by Company
(or
its affiliates) in the collection of such monies, whether by litigation or
otherwise.
(vii)Checking
Costs
— All costs
incurred
to check attendance and receipts at theaters in order to
determine the accuracy of box office reports and to investigate
unauthorized exhibition or distribution of the Picture and to determine full
utilization of rights granted, whether such cons are direct expenses or an
allocable portion of the aggregate general checking expenses incurred by Company
in connection with the production and distribution of motion
pictures.
IV.Distribution
Fees:
(a)
'Distribution Fees" arc the following percentages of the applicable Producer's
Gross Receipts (inclusive of the distribution fees payable to third party
subdistributors and licensees; provided that if the fees payable to such third
parties are higher than the following amounts, then such higher amounts shall
apply):
(i)Domestic
theatrical — 30%
(ii)Domestic
network television — 25%
(iii)DOmestic
television syndication includic Basic Cable —
35%
(iv)Domestic
pay television — 25%
(v)Domestic
Video — 30%
(vi)Foreign
Video — 25%
(vii)Foreign
outright sales described in subparagraph II(b) above —
15%
(viii)From
outright sales described
in
subparagraph I1(b)
above — 15%
(ix)Revenues
derived from music and publishing royalties and like sources
—50%
(x) If
a third party exploits the merchandising rights to the Picture and/or
Property (or any element thereof) 10%
calculated 'at source' (i.e., 10% of the gross receipts received
by such
third party as opposed to Producer's Gross Receipts);or
If
Company exploits such merchardisi.ng rights —
35%;
(xi)All
other revenue — 50%
Notwithstanding
the above distribution fee structure, if Company shall license the Picture
to a
subdistributor in any country or territory. Company, in its sole discretion,
shall have the right to receive, at any time and from time to time, a
distribution fee of 15% on the net proceeds actually received and retained
by
Company from such subdistributor in lieu of the distribution fees set forth
in
subparagraphs (i). (ii), (iii), (iv), (v), (vi). (vii), Cix) and (xi) above.
If
Company does not make such election, the fees set forth in said subparagraphs
shall be inclusive of any distribution fees which Company shall pay to any
third
parties with respect to the income concerned and shall be taken on the gross
receipts received by the subdistributor involved in lieu of the money received
by Company from such subdistributor (i.e., in lieu of Producer's Gross
Receipts). In addition, if Company also engages a sales agent to sell the
Picture, then any sales agency fee or commission payable to such sales agent
shall be deducted 'off-the-tor from Producer's Gross Receipts, and Company's
distribution fee with respect to the sales made by such sales agent only, shall
be reduced to an amount equal to 5% of Producer's Gross Receipts received and
retained by Company.
(b)
Notwithstanding subparagraph (a) above, if the first project produced based
on
the Property is a television series, the following percentages of the applicable
Producer's Gross Receipt shall constitute Company's
Distribution Fees:
(i)
For
a Series initially produced
for and telecast on U.S. network primetime
free television
— 10%
(ii)
For
the initial U.S. pay
television exhibition or for a U.S. network primetime free television
telecast (if not initially produced and telecast therefor) —
25%
(iii)
For
any U.S. free television sale other than the foregoing (including
syndication and basic cable) in the U.S. —
35%
(iv)
For
any sale outside of the U.S. —
40%
27
(v)
For
any free television sale in the United States other than on a national
network — 40%
(vi)
For
any outright sale specified in subparagraphs II(b)
— 15%
(vii)
Forany theatrical
or nontheatrical direct projection
sale — 40%
(xii)
If
a third party exploits the merchandising rights thereto —
10% calculated 'at source' (i.e., 10% of the gross receipts recceived
by
such third party as opposed to Producer's Gross Receipts); or If
Company
exploits such merchandising rights —
35%;
(viii)
For
soundtrack, publishing or any other sale or use not specified above
—
50%
V. Distribution
Expenses:
'Distribution Expenses' means all costs
and expenses incurred by Company and any other costs and expenses
incurred, advanced or paid by Company to or on behalf of any distributor.
s-ubdistributar, other licensee or sales agent of the Picture (individually
and
collectively. "Distributor') in connection with the distribution
and
exhibition of the Picture in all media, and all mariufacmring, distribution,
and
other costs incurred by Company in connection with the exploitation of
ancillary, allied and subsidiary rights, including but not limited
to:
Any
rerun, use, residual, royalty, or other payment with respect to any person
or
any right to the extent not included pursuant to paragraph and any payroll
tax
or union fringe benefit payment in connection therewith;
Any
cost in connection with the
preparation, making, duplication, editing, cutting, dubbing, subtitling,
possession, packing, inspection, repair, storage, protection, and shipment
(such
as to or from any laboratory. Distributor, or licensee, including the payment
of
any customs, fees, taxes, or imposts in connection therewith) or any negative
or
positive film materials, audio or video tape, still photograph, script,
continuity sheet, or cue sheet,
including but not limited
In, costs of facilities, laboratory work, raw
film or raw audio or video tape stock, reels, containers, and other materials
or
services;
(c) Advertising,
publicity.or promotion costs,
allowances or other expenses.
(d) Any
agency package fee or commis-stet;
(e)
Any
tax levied upon, payable with respect to, or arising in connection with the
exploitation, use, distribution, revenues, or materials of the Picture,
including, but not limited to, sales, Producer's Gross Receipts, turnover,
withholding, remittance, excise, use, and personal property or similar taxes,
to
the extent not included pursuant to paragraph B.111(i), but excluding any net
income, corporate, franchise or excess profits tax;
(f)
Any
cost of converting, transmitting, or remitting currency to the extent riot
included pursuant to paragraph B.1110v);
(g)
Any cost of collecting money from,
checking the receipts
or
costs of auditing any Distributor to the extent not included
pursuant to
paragraph 13.111(vi);
(h) Any
cost in connection with any claim brought by or against any Distributor or
licensee to the extent not included pursuant to paragraph B.E1(vi);
(i)
Any amount charged to Company by any
Distributor;
(j)
Any
governmental fee or the cost of any governmental license or permit, including,
but not limited to,
those required for import, export, licensing, exhibition, or censorship,
or the cost of contesting any of the same or any other regulation or law
affecting the Picture;
(k) Any cost of obtaining. maintaining, protecting, or registering
any intangible rights, including, but not limited DI
copyrights. trademarks, and trade names, in connection with the Picture.
Cost
of
protecting the Picture, or any materials in connection with the Picture,
physically or from legal encumbrance, by security
measures,
legal action, or
otherwise;
(m) Any
legal
and accounting fees or court costs
in
connection with the Picture;
(n) Any
cost
of errors-and-omissions insurance
or insurance covering physical materials; and
(o)
Trade association dues and assr'ssmenu, and
support payments to industry academies or institutions to the extent rot
included pursuant to paragraph B.B1(v).
(p)
Any fees, commissions, costs and expenses in connection with the marketing,
distribution, sale, license or manufacmre of merchandising and other ancillary,
allied and subsidiary rights.
VI.Production
Cost:
'Production Cost" means all
costs
and expenses in connection with 'Production' (which is
deemed to include the development, pre-prcdoation, production, and
post-production of the Picture), including, without limitation:
(a)
Any cost of a type listed in paragraph B.V if incurred in COODCal011 with
Production rather than distribution (it being understood that any particular
item included in Production Cost may not also be included a second time as
a
second time as a Distribution Expense);
(b)
Any
cost for the right to use or purchase facilities, equipment, materials or
services ('above the line,' 'below the line,' or other) intended to be used
in
connection with Production;
(c) Any
cost
of writing, or of rights to use underlying literary, artistic, musical, or
intellectual property or materials, intended to be used in connection with
the
Picture; together with all executive or creative royalties payable with respect
thereto;
(d) Any
financing costs find
fees;
(e)
Individual producer and/or executive producer fees (whether fixed or contingent)
payable to Company, Scott Rosenberg, or any other individual for their
distinguished from overhead; to determine all terms of each agreement, if any,
for the distribution of Picture, or the exploitation of subsidiary rights,
including, but not
limited to, all terms affecting time, place, medium, frequency of use,
and payment; to settle any claim with aspect
to any such agreement or
with respect to the Picture; to retain reasonable portions of PAGR as
reserves for contingent, uncomputed, or retroactive debts; and to
commingle funds applicable to payments hereunder with other funds
owned or held by Company. Company makes no representation or warranty with
respect to Company's efforts in connection with the distribution of the Picture
or exploitation of subsidiary rights, or that such distribution or exploitation
will result in any minimum amount of Producer's Gross Receipts or
PAGR.
28
VIDEO
DEVICES
Notwithstanding
anything to
the contrary in the foregoing, if Company retains the right to
manufacture and distribute the Picture on video cassettes, video tapes, video
discs and similar compact audiovisual devices, in any format, whether now known
or hereafter devised,
intended to be sold or leased to the public as a device intended
primarily for 'home use (as such term is commonly understood in the motion
picture industry) (collectively, 'Video Devices"),
Producer's
GrossReceipts shall include an amount
determined
as follows:
1.
An amount equivalent to twenty percent (20%) of the wholesale price (excluding
Federal Excise Taxes, or the equivalent thereof, local taxes, if any, and
standard container charges) actually received by Company for such Video Devices
manufactured and sold in the United
States, subject to customary proration and reductions (including, without
limitation, reductions for 'sell-through' distribution of Video
Devices).
2. As
to
Video Devices sold outside the United States, the amount included in Producer's
Gross Receipts shall be the amount referred to in subparagraph 1 above and
shall
be calculated, at Company's election, upon the wholesale price of such Video
Devices in the country of manufacture, the United States, England, or the
country of sale. The aforesaid amount shall be computed in the national currency
of the country to which the wholesale price so elected applies and shall be
paid
at the same rate of rirrhAnge
as
Company is paid;
provided, however, that such amounts on such Video Devices shall not be included
in Producer's Gross Receipts until payment therefore has actually been received
by Company in the United States (or in freely remittable foreign
currency).
3. In
respect of Video Devices sold through any 'clubs' or similar sales plans and
devices, the amount included in Producer's Gross Receipts shall be one-half
(1/2) of that referred to in subparagraphs 1 and 2 of this exhibit depending
upon where such Video Devices are sold; provided, that there shall be no amount
included in Producer's Gross Receipts with respect to Video Devices given to
members of such clubs as 'bonus' or 'free' Video Devices as a result of joining
the club and/or purchasing a required number of Video Devices. No amount
included in Producers Gross Receipts shall be computed with respect W Video
Devices given away or furnished on a no charge' basis to dealers or
others.
4.Company
shall have the right to deduct and
to
reserve for returns (such returns to be self-liquidgfing)
and credits of
any nature, including, without limitation, those on account of one hundred
percent (100%) or a lesser return privilege, defective merchandise, exchange
privilege. promotional credits, errors in billing, unusual overstock and errors
in shipping.