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EXHIBIT 10.3
TO
XXXXXXX.XXX CORPORATION
FORM SB-2
"[*]" = confidential information omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
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EXHIBIT 10.3
SUNHAWK CORPORATION
000 Xxxxx Xxx. Xxxxx, Xxxxxxx, XX 00000
DISTRIBUTION AGREEMENT
as of June 12, 1998
EMI Christian Music Publishing
XX Xxx 0000
Xxxxxxxxx, XX
00000
tel: (000)000-0000
fax:(000)000-0000
Gentlemen and ladies:
When signed by you ("EMI") and us ("Sunhawk"), the following will constitute
our agreement:
1. EMI hereby grants to Sunhawk the non-exclusive right to sell and
distribute digital editions of EMI's copyrighted musical composition(s) and
third party compositions for which EMI has obtained the rights (the
"Edition(s)"), solely via Sunhawk's Solero(TM) technology/format over the
Internet from Sunhawk's website, currently located at xxxx://xxx.xxxxxxx.xxx;
subject but not limited to the following:
o CONTENT: EMI will supply Sunhawk with compositions chosen by EMI for
distribution via the Sunhawk website. The downloadable file of each
such composition shall include a playback feature which incorporates
a midi file arrangement based solely on the musical content of the
Edition(s).
o FORMAT: Each edition(s) shall be formatted in such a way as to include
any and all appropriate copyright information supplied by EMI, and
Sunhawk shall insure that such copyright information is made part of
each download/sale.
o WEBSITE DISPLAY: Sunhawk shall display the edition(s) on Sunhawk's
web site which may display and use EMI's trademarks, service marks
and any and all appropriate artwork, all as selected by EMI. Links to
the edition(s) will be provided to EMI for use and display on EMI's
web site and/or any other web site of EMI's choosing. A link to EMI's
web site will be provided from the Sunhawk web site.
o FILE USAGE: Both EMI and Sunhawk may keep archival copies of the
Solero files. The usage of Solero files is restricted to the terms of
this contract. Sunhawk is sole distributor of the Solero file. EMI is
permitted to make paper copies for use in their own paper publishing.
EMI cannot distribute Solero files or file derived from a Solero
file without Sunhawk's written consent and similarly, Sunhawk cannot
extract midi components or sell the music without EMI's written
consent. Sunhawk will provide to EMI under separate non-disclosure
and license agreements a copy of the Solero Music Editor [*].
2. The territory applicable to this Agreement shall be the World (the
"Territory").
3. Sunhawk shall pay EMI a fee for music sold according to the following
formula:
Sums equal to [*] ([*]) based on the amount of Sunhawk's Gross Receipts
(hereinafter defined) [*]
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[*] Confidential Treatment Requested
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[*]
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[*]
[*]
As used herein, the term "Gross Receipts" means the gross amount of monies
actually received by Sunhawk, or credited to Sunhawk's account, in respect
of sales of the Edition(s), less any taxes, discounts, [*] credit card
transaction fees and/or credits. The foregoing sums include all payments to
be made to writer(s) and/or publisher(s) and/or arranger(s) (other than
arranger(s) engaged by Sunhawk) of the Edition(s) for which payments EMI
shall be responsible). EMI shall hold Sunhawk free and harmless from and
against any claim of the writer(s) and/or publisher(s) and/or arranger(s)
of the Edition(s) other than arrangers engaged by Sunhawk.
4. If the conversion or transcription of a composition should for any
reason, be considered an arrangement of that composition, Sunhawk will have the
arrangement made by a person connected with Sunhawk as Sunhawk's
employee-for-hire and Sunhawk shall, in each instance, assign to EMI (or the
third party that owns the compositions) all rights in the copyright in the
arrangement, together with the sole right of registering the copyright as a work
made for hire in EMI's name or the name of EMI's designee.
5. [*]
6. The rights hereunder granted shall continue for a term of five (5) years
commencing on the date hereof. Thereafter, the rights granted shall continue on
a yearly basis until such time as EMI, by written notice, notify Sunhawk that
such rights hereunder are terminated.
7. Sunhawk shall render monthly accountings to EMI within thirty (30) days
following the end of each calendar month, accompanied by appropriate remittances
for all sums shown to be due thereunder. EMI (and/or EMI's designated agent)
shall have the right, at EMI's sole cost and expense, upon thirty (30) days
prior written notice, and not more than once during each calendar year, to audit
at Sunhawk's office during normal business hours Sunhawk's books and records
with respect to the Edition(s). Each accounting statement shall be conclusive
and binding on EMI in all respects and EMI shall be barred from maintaining or
instituting any action or objection to such accounting statement unless EMI
shall give Sunhawk a detailed written objection, stating the basis thereof,
within the earlier of (i) thirty six (36) months following the end of the
accounting period which is subject to dispute, or (ii) twelve (12) months
following EMI's audit of such accounting period.
8. EMI warrants and represents that EMI has the full and unrestricted right
to enter this agreement and to grant all of the rights herein granted to
Sunhawk; and that the exercise of such distribution rights by Sunhawk in
accordance with this agreement will not infringe upon the copyright or violate
the property, contractual or other rights of any third party. EMI further grants
and assigns to Sunhawk the benefit of all warranties and representations made
for EMI's benefit by any third party with respect to the Edition(s). EMI shall
hold Sunhawk free and harmless and shall indemnify Sunhawk against any actual
loss or damages (including court costs and reasonable attorneys' fees) due to a
breach of this agreement which results in a final adverse judgment against
Sunhawk or which is settled with EMI's prior written consent (which shall not be
unreasonably withheld).
9. Sunhawk warrants and represents that Sunhawk has the full and
unrestricted right to enter this agreement and to grant all of the rights herein
granted to EMI.
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[*] Confidential Treatment Requested
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10. If a claim, whether oral or written, is presented against Sunhawk
which is inconsistent with any of EMI's warranties, representations or
covenants contained herein, Sunhawk shall thereupon serve notice upon EMI
containing the full details of such claims then known to Sunhawk, and EMI shall
assume the defense thereof (except to the extent that such claim involves
Sunhawk's alleged act of omission).
11. Noting contained herein is intended to constitute a partnership or
joint venture between the parties hereto, it being understood that the
relationship between EMI and Sunhawk shall be that of independent contractors
and Sunhawk shall have no authority to bind EMI in any way to Sunhawk or any
third party.
12. In addition to the copyright notices supplied by E-mail and/or fax
from EMI on a song-by-song basis, Sunhawk shall include EMI's Worship Together
trademark, other trademarks determined by EMI and the following special notice
on the cover page on each Edition(s):
NOTICE: This song may be prepared for congregation use under the terms of your
CCLI license. However, if you are not a CCLI license holder, any duplication,
adaptation, arranging and/or transmission of this copyrighted music file
requires the written consent of the Copyright owner(s) and EMI CHRISTIAN MUSIC
PUBLISHING. Unauthorized uses are an infringement of the Copyright Laws of the
United States and other countries.
13. This agreement shall be binding upon and shall inure to the benefit
of the parties hereto.
14. This is the entire agreement between Sunhawk and EMI and may only be
modified or terminated by an agreement in writing signed by Sunhawk and EMI.
This agreement shall be deemed to have been entered into, and shall be
interpreted in accordance with the laws of the State of Tennessee, and any
legal action concerning this agreement shall be heard in the State or Federal
Courts located in Nashville, Tennessee.
15. This agreement replaces and supersedes our prior Distribution
Agreement dated January 1, 199__. Any and all prior agreements, written and/or
oral, with the exc___ of the nondisclosure Agreement and the License Agreement
(Service Provider) dated January 1, 1998.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed and
of the date and year first written above.
SUNHAWK CORPORATION
/s/ XXXXX XXXXX
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By: Xxxxx Xxxxx
Its: CEO
AGREED TO AND ACCEPTED:
EMI Christian Music Group
/s/ [Signature Illegible]
--------------------------
By:
Its: Sr. Vice President
