(vii) music
and
music-publishing rights, soundtrack-album and other soundtrack exploitation
rights, promotional and advertising rights in such Subject Property;
and
(viii) the
right
to distribute, to transmit, to
exhibit,
to broadcast and otherwise to exploit all works produced pursuant to the
rights
granted hereunder by means of any and all media and devices whether now known
or
hereafter devised, and in any and all markets whatsoever, as well as the
right
of Producer in its discretion to make any and all changes in, additions to,
and
deletions from the Subject Property to the extent required for any agreement
with a third party hereunder.
(b) All
of
the foregoing shall be sometimes collectively referred to herein as the
"Rights." The Rights granted by Owner to Producer hereunder are in addition
to
-- and this Agreement shall in no way limit -- any right with respect to
a
Subject Property or the subject matter thereof that Producer may now or
hereafter enjoy as a member of the general public.
(c) Owner
reserves the following rights (the "Reserved Rights") in and to each Subject
Property, subject to the terms and conditions set forth below.
(i) Publishing
Rights: Any and all publishing rights
in
and to such Subject Property (including, without limitation, the following
rights), except, if Producer shall have exercised the Option for a particular
Subject Property, Producer shall then have the right to publish excerpts
from
and summaries of such Subject Property, or any motion picture or other versions
thereof based upon that Subject Property, for advertising and/or publicizing
purposes only (not for sale or resale) of any work produced pursuant to the
Rights and the right to publish souvenir booklets (for release only at those
theaters exhibiting a Production based on that Subject Property and produced
pursuant to the Rights granted hereunder) and "making-of-the-movie" and
"coffee-table" type books relating to the Production, provided that no such
publication shall contain excerpts or summaries taken from such Subject Property
in excess of 7,500 words in the aggregate or ten percent (10%) of the text
of
the Subject Property in the aggregate, or ten percent (10%) of the illustrations
from the Subject Property in the aggregate (whichever
is less), but not to exceed fifteen (15) full comic- book pages or the
equivalent for the Subject Property for any particular Production (and subject
to Owner's right to approve any such publication). The foregoing limitation
is
not intended to and shall not preclude Producer's publication of advertising
and/or publicity materials in installments, subject to the foregoing
limitations. With respect to any "making-of-the-movie" type books, such book(s)
shall be titled differently than the Subject Property (but such title may
contain the title of the Subject Property such as "The Making of the Film"),
and
Owner's name will not appear on the cover, the title page of the spine thereof
other than as part of the billing block or credit list, if any, for the
underlying picture, but Owner shall be accorded such copyright and trademark
notices as Owner designates, as well as an "appears courtesy of Top Cow
Productions, Inc." credit in any such book or periodical:
(A) Print
Editions: The right to print, publish, sell, and otherwise distribute print
editions of any Subject Property in comic-book, graphic-novel, or other book
form, whether hardcover or softcover, and in magazines or other periodicals,
whether in installments or otherwise, including, without limitation, in
comic-book or comic-strip form, and on posters or trading cards or any other
print format.
(B) Recorded
Readings: The right to publish, sell, and otherwise distribute recorded readings
of any Subject Property in the form of audiocassettes, CDs, DVDs, or other
audiodiscs or similar audio devices.
(C)
Digital or other Electronically Read or Transmitted Editions: The right to
publish the text and/or illustrations of any Subject Property (or text and/or
illustrations based thereon [including, without limitation, novelizations
or
wallpapers]) in the form of, without limitation, CD-ROM, DVD, videocassette
tape, or similar electronically or optically read devices, and by means of
any
electronic, digital, or other transmission on-demand or over the Internet
or any
other network or system or on or by cell phones or other handheld devices.
Such
editions may contain moving (but not fully animated) or nonmoving illustrations
or effects and music and/or narration; but shall not be deemed AV
Productions(animated or otherwise) (it being agreed that Owner's use of moving
illustrations in any edition hereunder or of any flash or other web-site
animation for promotional or advertising purposes shall not -- taking into
account
duration,
quality, and extensiveness of the moving illustrations or animation -- conflict
with Producer's rights hereunder).
(ii) Property-Based
Merchandising: Property-Based Merchandising rights are reserved to Owner
throughout the universe and in perpetuity. "Property-Based Merchandising"
shall
mean any merchandising items, regardless of whether licensed or otherwise
exploited by Owner (or Owner's successor[s], licensee[s] and/or assignee[s]),
which are derived from and/or based upon a Subject Property; provided, however,
that it is understood and agreed that Property-Based Merchandising rights
do not
include the right to use any "Picture Elements" (defined as any element that
is
unique to a Production), but do extend to any other reserved right. Owner
shall
consider in good faith any third-party reasonable proposal to allow such
party
to share in increases in Owner's merchandising revenues for a particular
Subject
Property if such proposal is part of an overall acquisition of AV Production
rights to that Subject Property and if a game based on such Subject Property
shall have not been released during the relevant time period for calculating
such third party's share in increases in Owner's merchandising revenues for
that
Subject Property.
(iii) Reserved
Copyrights and Trademarks: To the extent of the other Reserved Rights hereunder,
Owner reserves all copyrights in each Subject Property. Also to the extent
of
the other Reserved Rights hereunder, Owner reserves any trademark rights
in each
Subject Property in Owner's own name which shall be limited solely to trademark
classes corresponding to the Reserved Rights.
(iv) Game
Rights: Owner reserves all game rights
(handheld,
interactive, internet, wireless, video, and otherwise) in and to each Subject
Property. The Rights for a particular Subject Property may, nonetheless,
if
necessary to close an agreement for an AV Production for a particular Subject
Property, include the right to produce and to exploit interactive games based
on
that AV Production (but not of the underlying Subject Property itself) subject
to any pre-existing agreement for the game rights to that Subject Property
(including, without limitation, Owner's current and/or planned agreements
with
Eido s Interactive, Union Entertainment, or any individual game company (or
any
successor thereto), and any successor or replacement agreements). In such
instance, Owner shall be willing to be subject to reasonable and customary
holdback periods governing Owner's exploitation of game rights to the Subject
Property in question.
(d) Owner
shall have no right to utilize any elements from any work produced hereunder
pursuant to the Rights or any new or changed material created by or for Producer
in the exercise of the Reserved Rights or otherwise (but nothing contained
herein shall in any way limit any rights Owner may now or hereafter enjoy
as a
member of the general public); provided that if Producer does not exercise
the
option for a particular Subject Property, Producer's use (if any) of such
new or
changed material shall be subject to Owner's rights therein and thereto).
Notwithstanding the foregoing, but subject to any bona fide third-party
agreements, any ideas, suggestions, or elements suggested, required, or added
by
Producer shall become Owner's property, which Owner shall be free to use
without
any obligation to Producer.
(e) In
connection with the exercise by Owner of any of the Reserved Rights hereunder,
Owner shall have the right (notwithstanding anything to the contrary contained
herein) to advertise and to publicize same in any and all media, now known
or
hereafter devised (including, without limitation, radio and television)
throughout the universe.
9. REACQUISITION:
(a) If
Producer exercises the Option for a Subject Property but
does
not commence principal photography of the First Production
based thereon within three (3) years after the date of
such
exercise (which three-year period may be extended by Producer for an additional
two [2] years by the payment to Owner of $100,000 at any time prior to the
expiration of the initial three-year period), such rights, as well as any
material developed by or for Producer in connection with the Property (and
any
and all rights in and to such material) shall automatically revert to and
be
assigned and transferred to Owner, subject to any third-party agreements
or
rights to such material (to the extent specifically and expressly approved by
Owner)and also subject, if applicable, to a lien in Producer's favor (which
lien
shall be extinguished not later than the date Owner enters into a Production
option, purchase, or license agreement with a third party with respect to
the
reverted Subject Property) for the following amounts:
(i) An
amount
equal to all amounts paid to Owner therefor hereunder; and
(ii) The
actual direct out-of-pocket cost paid to
third
parties of creating such material developed by or for Producer plus simple
interest on only those costs at the "prime rate" of Bank of America or at
Producer's standard interest rate,
whichever
is lower.
(b) In
the event of such a reacquisition by Owner, Producer shall
remain attached to the reverted Subject Property in accordance with and subject
to the terms hereof (including, without limitation, the applicable time periods
specified in paragraph 2 hereof). The provisions of this paragraph 9(b) are
not
assignable by Producer.
10.
ANNOTATION:
If a Subject Property is based in whole or in part on a true story, Owner
shall
annotate or cooperate with Producer in annotating the Subject Property following
Producer's customary and reasonable annotation guidelines and deliver the
annotation to Producer on a date to be reasonably designated by
Producer.
11. SECURITY
INTEREST: Producer hereby grants to Owner a first- position security interest
(subject only to prior existing liens as of the date hereof) in and to all
rights licensed or granted hereunder to secure Owner's rights hereunder,
including the right to receive income. Producer shall execute any documents
Owner reasonably requires, including Mortgages of Copyright and UCC- 1 Financing
Statements, to perfect Owner's security interest.
12. VIDEO
CASSETTE/DVD: Owner shall be entitled to
receive one
(1)
videocassette and one (1) DVD copy of each Production or other program produced
hereunder at such time, if ever, as they become commercially
available.
13. PREMIERES:
Silvestri and Hawkins and one guest apiece shall be invited to the first
United
States premiere of any Production.
14.
TERMINATION:
(a) Owner
shall have the right to terminate the Option
Period
and any rights granted hereunder that are not the subject of an agreement
with a
third party immediately upon notice to Producer, if Scott Rosenberg is no
longer
running the day-to-day affairs of Producer or otherwise is no longer affiliated
with Producer.
(b) The
Option Period and any rights granted hereunder that are
not
the subject of an agreement with a third party shall automatically and
immediately terminate in the event (i) Producer is bankrupt, insolvent, or
in
receivership, reorganizes, or consents to the appointment of a receiver,
liquidator, trustee, or assignee in bankruptcy, or any action or proceeding
under any bankruptcy or insolvency law is taken by, for, or against
Producer
(other than a claim filed by Producer as a creditor), or (ii) Producer makes
or
attempts to make an assignment for the benefit of creditors or a composition
with creditors.
15.
STANDARD TERMS AND CONDITIONS: The balance of the terms
of
this
Agreement consists of Producer's Standard Terms and Conditions ("Standard
Terms
and Conditions"), attached hereto and incorporated herein by
reference.
If
the
foregoing accurately reflects the agreement between the parties, please so
indicate by signing below.
AGREED
AND ACCEPTED: PLATINUM STUDIOS, LLC
Scott
Mitchell Rosenberg
Its:
TOP
COW
PRODUCTIONS, INC.
Matt
Hawkins
Its:
President
STANDARD
TERMS AND CONDITIONS
Following
are the Standard Terms and Conditions of the Agreement between Producer and
Owner in connection with the Subject Property. All defined terms set forth
in
these Standard Terms and Conditions shall be deemed to be defined as set
forth
in the Agreement. In the event of any conflict between the Standard Terms
and
Conditions and the main Agreement, the provisions of the main Agreement shall
control.
A. RENTAL
AND LENDING RIGHTS: To the extent required under any agreement with a
third-party distributor, financier, studio, or production company, Owner
hereby
waives the benefit of any provision of law known as "droit moral" or moral
rights of authors or any similar or analogous law or decision in any country
of
the world. Owner, on Owner's own behalf and on behalf of Owner's
successors-in-interest, heirs, executors,
administrators
and assigns hereby assign to Producer in perpetuity all rental and lending
rights under national laws
(whether
implemented pursuant to the EC Rental and Lending Rights Directive or otherwise)
to which Owner may now be or hereafter may become entitled therefrom. Owner
agrees, on Owner's own behalf and on behalf of Owner's successors-in-interest,
heirs, executors, administrators and assigns, not to institute, support,
maintain or permit directly or indirectly any litigation or proceedings
instituted or maintained on the ground that Producer's (or its designee's)
exercise of the rights granted to Producer in the First Production in any
way
constitutes an infringement or violation of any such rental or lending right
as
aforesaid. Owner hereby acknowledges that the consideration to which Owner
is
entitled pursuant to this Agreement includes consideration for the assignment
of
rental and lending rights provided for in this paragraph and that the said
consideration is an equitable and adequate part of the revenues derived or
to be
derived by Producer from the said rights.
B. AUTOMATIC
EXTENSION OF OPTION PERIOD: The Option Period for a particular Subject Property
shall be extended automatically with respect to that Subject Property as
follows
and as
applicable:
(1)
Force
Majeure: The Option Period shall be extended by a period of time equal to
the
period of time of any event of force maj eure which shall interrupt, delay
or
otherwise
materially
interfere with the development, pre-production or production of the First
Production (including, without
limitation,
any strikes, walkouts, lockouts or other labor unrest
in
the
entertainment industry) not to exceed six months, but only the Option Period
for
Productions directly affected by any such event.
(2)
Unresolved Claims: Without limiting any other rights Producer may have
hereunder, Owner agrees that if there is any claim, arbitration or litigation
(collectively "Claim") alleging
a
material breach of Owner's representations and warranties with respect to
the
First Production of the Subject Property in question, and by reason of which
Producer elects in its sole good-faith judgment to suspend development,
pre-production
and
production activities in connection with that First Production, the Option
Period for that Subject Property shall be extended for any period during
which
such Claim is outstanding (such suspension and extension shall not exceed
six
[6] months unless an action is commenced). At any time during the pendency
of
any such Claim, Producer may, in addition to all its other legal and equitable
remedies, rescind this Agreement and, in such event and if Owner is actually
in
material breach hereof, Owner shall pay Producer any and all monies received
from Producer in connection with the Subject Property. Each party's
representations, warranties and resultant obligation to indemnify the other
in
the event of any breach hereof shall survive rescission of this
Agreement.
Producer
shall give Owner written confirmation of any such extension promptly after
the
commencement thereof.
C. NO
OBLIGATION TO USE: Producer shall have no
obligation
actually
to exercise any of the rights granted to Producer hereunder, or to produce,
or
exploit a First Production, or to continue production, or exploitation, if
commenced.
D. BOOKS
AND
RECORDS; AUDIT RIGHTS:
Not
more
than once per year, Owner shall have the right, on not less than ten ( 10)
business days' prior notice to examine and to audit all books of account
and
records in Producer's possession or under its control relating to this agreement
(including any software or digital records). Such audits shall be conducted
by
an independent accounting firm at Producer's premises or where Producer keeps
such books and records (provided such location shall be within the State
of
California). Owner shall not audit the same records more than once; provided,
however, that an audit for one year may include an audit for any previous
year
for which no audit was conducted. Such audits shall be at Owner's cost and
expense, except that if an audit establishes
a deficiency of more than five percent (5%), all actual
and reasonable costs and expenses of and incurred by Owner in connection
with
such audit shall be paid by Producer, along with the amount of the deficiency
plus interest thereon.
Owner's
exercise, in whole or in part, of its right to inspect or to audit records
and
accounts (or of any other right herein granted), the receipt or acceptance
by
Owner of any statement, payment, and/or report or the deposit by Owner of
any
payment from Producer shall be without prejudice to any other rights or remedies
of Owner and, without limiting the foregoing, shall not stop or prevent Owner
from thereafter disputing the completeness, accuracy, and/or correctness
of any
such statement, report, or payment at any time and, in the event that any
inconsistencies or mistakes are discovered in any statements or payments,
Producer shall immediately rectify same and make the appropriate payments
in
accordance with this Agreement's terms.
Time
is of
the essence with respect to all payments to be made
hereunder to Owner. If Producer fails to make payment when due of any monies
owed hereunder, then, without limiting any of Owner's rights or remedies,
Owner
shall be entitled to interest on such overdue amount at a rate equal to seven
percent (7%) per annum, or such lower rate as may be the maximum rate permitted
under applicable law, during the period between the date the payment first
becomes due and the date such amount is actually paid.
E.
WARRANTIES: Owner represents and warrants as follows
(1) Owner
has
not and will not enter into any commitment which will conflict materially
in any
way with any of Owner's contractual obligations under any of the provisions
hereunder.
(2) Owner
has
not done or omitted to do and will not do or omit to do any act or thing
by
license, grant or otherwise, which will (or probably will) impair or encumber
materially any of the rights herein granted, or interfere with the full
enjoyment of said rights.
(3)
Except for any Excluded Material, Owner is the sole Owner of all rights herein
granted and has full power and authority to grant said rights to Producer
and
Owner has not granted, encumbered, or otherwise disposed of in any manner
to
any
person.
(4) Except
for any Excluded Material, Owner has not exploited any Subject Property (or
any
version or adaptation thereof), as an AV Production anywhere throughout the
world.
(5) Each
Subject Property is or shall be original with Owner (or Owner's licensors
or
predecessors in interest) or in the public domain. To the best of Owner's
knowledge, the Subject Properties do not and shall not violate the copyright
or
any other right of any third party; and are not presently the subject of
any
litigation or of any claim that is likely to give rise to
litigation.
F. INDEMNIFICATION/E&O:
Owner agrees to indemnify Producer against and to hold Producer harmless
from
any damages, liability, losses, costs, expenses, obligations or claims
(including
reasonable outside attorneys' fees) (collectively "Claims") arising out of
a
breach of Owner's obligations, representations and warranties hereunder that
are
reduced to an adverse judgment or settlement with Owner's consent (not to
be
withheld or delayed unreasonably).
Producer
agrees to defend and to indemnify Owner and to hold Owner harmless from any
Claims arising with respect to (i) material added to the Subject Property
by
Producer or at
Producer's
request and/or based on any information which is known to Producer which
conflicts with Owner's annotation; and (ii) the development, production,
exhibition, promotion, advertising, publicity, or exploitation of any Production
(except to the extent arising out of the breach of Owner's obligations,
representations, or warranties hereunder).
Owner
shall be an additional insured on any errors & omissions/media perils
insurance policy for each Production.
G. REMEDIES:
Owner's sole and exclusive remedy for any breach, termination or cancellation
by
Producer hereof or any term hereof (including any term pertaining to credit)
shall be an action for damages and Owner irrevocably waives any right to
rescission or equitable or injunctive relief.
H. ASSIGNMENT:
Each party hereto shall have the right to
assign
this Agreement and all or any part of its rights hereunder, provided that
no
such assignments shall relieve such party of its obligations
hereunder.
I. NOTICES:
Notices hereunder shall be in writing and shall be given
by
certified or express mail, courier, or personal delivery to
the
appropriate party, and the date of such personal delivery, or the date three
(3)
days after the date of such mailing or courier dispatch shall be the date
of the
giving of such notice.
All
approvals hereunder may be given by email. A copy of all notices to Owner
shall
be sent concurrently to Law Offices of Harris M. Miller II, P.C., 8424A Santa
Monica Boulevard, #127,
West Hollywood, CA
90069-4267. Owner shall be copied on any document,
instrument, draft, and/or correspondence Producer sends or receives concerning
any Subject Property or Production.
J. ADDITIONAL
DOCUMENTS: Each party shall execute any customary
documents and do any other acts consistent with the terms set forth herein
as
may be reasonably required by the other (or its or their assignees or licensees)
to further evidence
or to effectuate their rights as set forth in this Agreement. Upon either
party's failure promptly to do so after reasonable notice and opportunity
to
review any such document, such party hereby appoints the other party hereto
as
such party's attorney-in-fact for such purposes (it being acknowledged that
such
appointment is irrevocable and coupled with interest) with full power of
substitution and delegation. Each party shall promptly furnish the other
party
with a copy of any such document executed by such party hereunder. Upon exercise
of the option with respect to any Subject Property and subject to all of
the
other terms hereof, Producer shall complete the form Short-Form Assignment
attached hereto with respect to that Subject Property and Owner shall promptly
execute it.
K. CONFIDENTIALITY:
Neither party will disclose any material provision
of this Agreement to any third party unless reasonably necessary to do so.
Additionally, Owner shall not issue publicity for any Production without
Producer's prior consent, except that Owner may issue publicity which relates
primarily to a Subject Property in which any Production and/or Producer and/or
any personnel in connection therewith are mentioned incidentally, provided
that
such reference is not derogatory of any Production. Neither party shall disclose
to any third party (except on a confidential basis to their business
representatives) any proprietary information relating to any Production or
to
the other party (or their parent companies, subsidiaries and
affiliates)(including, without limitation, the budget of any Production,
the contents of any contingent compensation statement or the terms of any
agreements pertaining to any Production), without prior written consent of
the
other.
L. BREACH:
Neither party shall be deemed in breach hereunder unless the party has received
written notice setting for the alleged breach and then fails to cure the
alleged
breach within thirty (30) days of the date thereof(five [5] business days
for
any
payment or accounting obligation).
MISCELLANEOUS:
The Agreement, with the Standard Terms and Conditions, contains the full
and
complete understanding between the parties and supersede all prior agreements
and understandings pertaining hereto and cannot be modified except by a writing
signed by each party. This agreement is governed by the laws of the United
States and of the State of California, and both parties consent to the
jurisdiction of the state and federal courts residing in the County of Los
Angeles to adjudicate any disputes with respect hereto. If any action or
any
other proceeding is brought for the enforcement of this agreement, or if
a
dispute arises under this agreement, the successful or prevailing party shall
be
entitled to recover actual and reasonable outside attorneys' fees and other
costs incurred in that action or proceeding, in addition to any other relief
to
which it may be entitled. Any party in whose favor a judgment has been entered
shall also be entitled to recovery of its attorney's fees and costs in enforcing
such judgme