DIMENSION
FILMS
375
Greenwich Street
Platinum
Studios, LLC
9744
Wilshire Boulevard, Suite 400
Attention:
Scott Mitchell Rosenberg
Re: "The
Darkness" / Title and Option
Dear
Scott:
This
letter confirms the agreement reached between Dimension Films, a division
of
Miramax Film Corp. ("Dimension")
and Platinum Studios, LLC ('Platinum") with regard to the comic book series
entitled "the Darkness" (the "Property") published by Top Cow
Productions, Inc. ("Top Cow"). The parties have agreed as follows:
1. Condition
Precedent: Dimension shall have no obligations hereunder unless and until
Dimension is able to "clear" the title "The Darkness" (the "Title") for use
as
the title of a motion picture pursuant to the title registration
and clearance procedures
of the Motion Picture Association of America ("MPAA") and this Agreement
is fully-executed by the parties.
2. Title
I Motion Picture Usage By
Dimension: Subject to
the satisfaction of the conditions precedent (as provided
in Paragraph 1,
above) ("Conditions Precedent"), Dimension shall pay to Platinum One
Hundred Twenty-Five
Thousand Dollars ($125,000) as full and complete consideration for an
exclusive, irrevocable
and
perpetual license to utilize the Title in connection with the development,
production, and distribution of Dimension's current film directed by Jaume
Balaguero and starring Anna Paquin (the "Original Picture") and any number
of
derivative motion pictures, in any and all languages and/or media (e.g.,
theatrical and
non-theatrical films, television series, movies-of-the-week, etc.), and in
connection with the marketing and publicity thereof, throughout the
universe. However, the granted license shall not allow Dimension to utilize
the
Title in connection with the exploitation of any rights that are ancillary
to the development,
production and distribution of motion pictures (e.g., merchandising,
soundtrack, publishing,
game and live stage productions, in any and all media now known or hereafter
devised) without Dimension
and Platinum reaching a separate agreement, if ever, with respect to any
such
use by Dimension in each instance. For the avoidance of doubt, Platinum
has retained the right to utilize the Title, in its sole discretion, for
everything other than motion pictures. Notwithstanding the foregoing, Platinum shall have the right
to
utilize the Title in connection with one or more motion pictures that
commence production
at
least thirty-three (33) months ("Holdback Period") following the initial
release
of the Original Picture,
unless Dimension releases a subsequent derivative production using the Title
("Subsequent Production") during the Holdback Period. If Dimension
does
timely release a Subsequent Production (i.e., before the expiration of the
Holdback Period), then Platinum will remain unable to use the title for another Holdback
Period
(i.e., thirty-three (33) months from the initial release of the Subsequent Production)
in the event
that the Subsequent Production is theatrically released or for a reduced holdback period
of twenty-five
months if the Subsequent Production is a direct-to-video release. Furthermore, upon
the commencement of
the related Holdback Period (or reduced holdback period), Platinum will be paid
an additional
license fee in connection with such Subsequent Production in the amount of either (a)
One Hundred
Thousand Dollars ($100,000) if such Subsequent Production is a theatrical
release or (b) Fifty Thousand Dollars ($50,000) if such Subsequent Production
is
a direct-to-
video
release. The foregoing procedure (and additional license payments) will apply
on
a rolling basis to each
Subsequent Production, if any, that Dimension releases prior to the expiration
of the then applicable holdback periods (i.e., either thirty-three or
twenty-five months, as applicable).
3. Option
of Property _byDimension:
Subject to the
satisfaction of the Conditions Precedent and the
payment
to Platinum of the option fee
(in accordance with the time frame provided in that certain [expired]
First Look Agreement (the "First Look Agreement"] dated as of December 15,
1998
between Dimension and Platinum), Dimension shall have an exclusive, irrevocable
twenty-four (24) month option, commencing as of the date the Conditions
Precedent are satisfied, for Dimension to purchase those rights in and
to the Property that Dimension has
been entitled to purchase in connection with other previously optioned
Platinum properties, which rights (the "Rights") are more fully described
and
set forth in
Paragraph
1 .A. of the First Look
Agreement. In addition to the Rights, the balance of the terms and provisions applicable
to Dimension's
option and possible purchase of the Rights shall be as provided and set
forth in Paragraphs 4 through 14 of the First Look Agreement, except as
follows:
a. Option
Fee: Non-precedentially, the option fee for the Property shall be One
Hundred Fifty Thousand Dollars ($150,000) in lieu of the higher option fees
set
forth in Paragraph 4.A. of the First Look Agreement.
b. Inactivity
/ Deemed Abandonment:
During the option
period, in the event that Dimension is not actively
developing
(e.g., working with or engaging a writer, interviewing potential directors,
etc.) the Property during any consecutive five (5) month period, then Platinum
may give written notice to Dimension of Dimension's deemed abandonment and
if
Dimension does not resume active development
of the Property
within thirty (30) days following receipt of such notice, then the rights
under option shall
revert
to Platinum, subject to Dimension's lien against the Property for the direct
costs (other than the
option fee) actually paid by Dimension during its development of the Property,
plus interest calculated thereon at the prime rate plus 1%. Subject to
the foregoing, Dimension, in its sole discretion shall determine when and
if a
writer will be engaged.
c. Scott
Mitchell-Rosenberg/Development Fee: Scott Mitchell Rosenberg (or his designee)
shall receive a development
fee
of Twenty Five Thousand Dollars ($25,000), payable concurrently with the
option fee. The development fee payable hereunder will be in lieu of any
development fee that otherwise might have been payable pursuant to Paragraph
6.B.(ii) of the First Look Agreement.
d. Marc
Silvestri / Executive Producer: In the event that Dimension exercises the
option and produces
a motion picture based on the
Property, then in connection with each such motion picture produced by
Dimension based on the Property, Marc Silvestri shall be (i) accorded credit
as
an additional executive producer, on-screen and in the billing block portion
of
paid advertising, and (ii) paid an
executive
producer fee of Three Hundred Thousand Dollars ($300,000) on a customary
20/60/10/10 payment schedule. Platinum shall advise Dimension (in writing)
of
the specific requirements for
according
such credit and paying such fee as provided in Platinum's previously executed
agreement with Top Cow in connection with the Property (the "Top Cow
Agreement").
e. Matt
Hawkins / Co-Producer: In the event that Dimension exercises the option
and produces a motion picture based on the Property, then Matt Hawkins shall
be
accorded credit as a co- producer, on-screen and in
the billing
block portion of paid advertising. Platinum shall advise Dimension (in
writing) of the specific requirements for according such credit as provided
in
the Top Cow Agreement.
f. Other
Platinum Obligations to To Cow: Platinum will advise Dimension, in writing,
of
any other obligations to Top Cow in connection with motion pictures based
on the
Property.
4. RepresentationslWarranties!Indemnities:
Platinum hereby represents, warrants and undertakes: (i) that it has
all
rights necessary to enter into and perform this Agreement (i.e., Top Cow
has
assigned all necessary rights to
Platinum pursuant to the Top Cow Agreement, which contains an express provision
allowing Platinum to sub-license or assign its rights under the Top
Cow
Agreement, without restriction); (ii) that none of the rights herein licensed
to
Dimension have heretofore been sold, assigned, licensed or otherwise transferred (other
than to
Platinum) to any other person, firm or corporation by any instrument or
agreement now valid or outstanding, nor have said rights been in any way
encumbered, limited or diminished
by any act or omission, and that said rights are free and clear of any and
all
liens or claims whatsoever; and (iii) that there are no contracts,
agreements, assignments or instruments to which Platinum is a party which
may affect
the subject matter of this Agreement and the license and transfer to
Dimension of the rights
hereunder. Platinum will indemnify, defend and hold Dimension harmless from
and against any and all claims and damages, including without limitation
reasonable legal fees and expenses, of whatsoever kind
and nature
in connection with the Title, the Property and!or any of the rights
licensed hereunder, arising out of any breach of any of
Platinum's representations and warranties under this Agreement and!or in
connection with any claims arising out of Platinum's exploitation of any
of its
reserved rights. Dimension represents and warrants that it has all rights
necessary to enter into and perform this Agreement. Dimension
will
indemnify, defend and hold Platinum harmless from and against any and all claims
and damages,
including without limitation reasonable outside legal fees and expenses,
of whatsoever kind
and
nature in connection with Dimension's exploitation of the rights granted
to it
hereunder, or arising out of any breach of any of Dimension's
representations and warranties under this Agreement.
5. Entire
Agreement: With respect to
the subject matter
hereof, this Agreement is the entire agreement between
the parties and may
only be amended by a written document signed by all the parties
hereto.
Please
indicate your acceptance of and agreement with the foregoing by signing this
Agreement in the space(s) provided hereinbelow.
Sincerely,
DIMENSION
FILMS, a division of
Miramax Film Corp.
| |
|
|
|
|
|
By:
/s/
Michael E. Marshall
|
|
|
|
|
Its:
Senior
Vice President
|
|
|
|
|
|
|
|
|
|
|
ACCEPTED
AND AGREED: PLATINUM STUDIOS, LLC
| |
|
|
|
|
|
By:
/s/
Scott Mitchell Rosenberg
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
By:
/s/
SCOTT MITCHELL ROSENBERG
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Top
Cow
acknowledges and consents to the foregoing agreement entered into between
Dimension and Platinum with
respect to the Title and the Property, accepts all of the terms and conditions
contained therein (including, without limitation, the license of the
Title and option and possible purchase of the Rights), and agrees to look
solely
to Platinum for any remuneration payable to Top Cow in connection
therewith.
ACKNOWLEDGED,
ACCEPTED AND AGREED:
TOP
COW
PRODUCTIONS, INC.
Authorized
signatory of Top Cow
The
Darkness / Platinum and Top Cow
Re-
Title
&
Option
v.2
