Exhibit 10.21
Portions of this exhibit have been deleted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment. The redacted portions are identified by brackets with the character
"X" indicating deleted information.
Exhibit 10.21
MERCHANDISING RIGHTS ACQUISITION AGREEMENT
AGREEMENT dated as of July 1, 1990 ("Effective Date") between TWENTIETH CENTURY
FOX LICENSING AND MERCHANDISING a unit of FOX INC. ("Fox") and FOX CHILDREN'S
NETWORK, INC. ("Licensor").
1. DEFINITIONS: In addition to the following terms defined in this Paragraph
-----------
1., all initially capitalized words shall have the meaning set forth for such
words where they appear herein in initial quotation marks.
(a) "Literary Material": Written matter, whether published or unpublished
-------------------
in any form, including a novel, treatment, outline, screenplay, teleplay,
story, manuscript, play or otherwise, which may be included in a "Program"
(as defined in Paragraph 2. below) or upon which a Program may be based.
(b) "Literary Publishing Rights": The right to publish and distribute for
----------------------------
sale to the public hardcover or soft-cover printed publications (including
novelizations, screenplays and teleplays) of all or any part of the
Literary Material or other material (other than music and/or lyrics) used
in connection with a Program, including artwork, logos or photographic
stills (but solely to the extent that the right to make such use of such
other material has been separately obtained from the owner thereof), other
than the publications included within Merchandising Rights.
(c) "Merchandising Rights": The right to license, manufacture, distribute,
----------------------
and sell articles of merchandise and/or products (including toys, board and
video games, novelties, trinkets, souvenirs, wearing apparel, fabric,
foods, beverages and cosmetics) and the right to license, distribute, and
sell services, which embody on or in such merchandise, products or services
characters, designs, visual representations, names, likenesses and/or
characteristics of artists, physical properties or other materials
appearing or used in or in connection with a Program or all or any part of
the Literary Material and the right to publish, distribute, and sell
souvenir programs, picture books, comic books, post cards, photo novels,
illustration books, and activity books or booklets which embody on or in
the foregoing any or all of the characters, designs, visual
representations, names, likenesses and;or characteristics of artists,
physical properties or other materials papering or used in or in connection
with a Program or all or any part of the Literary Material.
2. SCOPE OF AGREEMENT: This Agreement covers the acquisition and exercise by
------------------
Fox of Merchandising Rights and Literary Publishing Rights (collectively
"Rights") in and to each Program which comprises a part of the programming ("FCN
Programming") that Licensor provides to its affiliated television stations ("FCN
Affiliated Stations") as part of its national program service. As used herein,
Program means each Television Motion Picture or Television Series currently
existing or hereinafter produced by or on behalf of Licensor for initial
exhibition in the United States as part of FCN Programming, including each of
the following Television
Series: "BOBBY'S WORLD", "ATTACK OF THE KILLER TOMATOES", "PIGGSBURG PIGS" and
"XXX'X XXXXX PAN AND THE PIRATES".
3. LICENSE: Licensor grants and licenses to Fox, for the Term and the
-------
Territory specified below, the sole and exclusive right and license under
copyright to exercise all Rights with respect to each Program to the extent that
such Rights are owned and/or controlled by Licensor.
4. TERM: The period during which Fox may exercise the Rights with respect to
----
each Program ("Term") shall commence on the date of this Agreement and shall
continue in perpetuity, unless limitations with respect to the Term of a Program
are set forth in writing by Licensor. Any such limitations shall take the form
of Exhibit "___" which shall be attached to and become a part of this Agreement.
To the extent that any Program created after the date hereof shall have less
than a perpetual Term, Licensor shall deliver to Fox a written notice specifying
the relevant Program and the duration of its Term. Upon receipt by Fox, such
notice shall constitute an amendment to Exhibit "B" and shall be deemed to be a
part of this Agreement for all purposes.
5. TERRITORY: The "Territory" in which Fox may exercise the Rights shall
---------
consist of the entire world.
6. LICENSOR'S RESERVED RIGHTS: Licensor reserves all rights in the Programs
--------------------------
and the literary, dramatic and musical material on which they are based which
are not specifically granted to Fox hereunder or under any other agreement
between Licensor and Fox.
7. PAYMENTS TO LICENSOR:
--------------------
(a) Licensor's Share of Net Profits: In consideration of the Rights, Fox
-------------------------------
shall pay to Licensor an amount equal to [XXXXXXXXXXXXXXXXX] ("Licensor's
Share of Net Profits").
(b) Terminology: As used herein, the term "Net Profits" means, with
-----------
respect to any particular Program, the amount, if any, remaining after Fox
has deducted and retained the aggregate of the following from the Gross
Receipts derived from Fox's exercise of Rights in respect of such Program
in the following order of priority:
(i) Fox's Distribution Fees:[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
-----------------------
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX] Fox
acknowledges and agrees that it shall bear responsibility for the
payment of any and all agent fees incurred in connection with the
exploitation of the Rights, as described in Paragraph 9. hereinbelow.
(ii) Distribution Expenses: With respect to any particular Program,
---------------------
the aggregate of Distribution Expenses, as defined in Exhibit "A,"
incurred in connection with Fox's exercise of Distribution Rights in
respect of such Program.
2
The computation of Gross Receipts shall be as set forth in Exhibit "A"
hereto. In connection therewith, the term "Participant's Percentage
Participation" as used in Exhibit "A" is synonymous with Licensor's Share
of Net Profits as defined in paragraph 7.(a) above.
8. OBLIGATIONS OF FOX: Fox agrees:
------------------
(a) to diligently and continuously promote and expand the licensing and
other exploitation of Rights derived from the Programs throughout the
Territory during the Term by soliciting and negotiating merchandising
license agreements and promotion license agreements (collectively "License
Agreements") with manufacturers and distributors of commercial products
and/or services ("Licensee Companies") in accordance with the terms and
conditions of this Agreement;
(b) to administer, supervise and service the License Agreements, including,
without limitation, by collecting all revenues earned and/or derived from
the License Agreements and/or other means of exploitation of the
Merchandising Rights and by accounting for all such revenues to Licensor as
provided herein;
(c) to protect and defend the property rights of Licensor in and to any
copyrights, trademarks, trade names, service marks and other related rights
in respect of the Programs by maintaining approval processes in connection
with the Merchandise manufactured and distributed pursuant to the License
Agreements; and
(d) to perform any and all other services reasonably required by Licensor
in connection with the exercise and exploitation of Rights arising out of
the Programs.
9. APPOINTMENT OF AGENTS: Fox shall be free, in its sole discretion, to
---------------------
appoint third parties to act as agents throughout the Territory either with
respect to a particular geographical region or with respect to a specialized
aspect for representation of the Rights. Fox shall enter into contractual
arrangements with all such agents pursuant to which Fox shall maintain full
control and supervision over the manner in which such agents represent the
Rights in and to the Programs. In no event shall any agents have the authority
to bind either Licensor or Fox in any manner whatsoever.
10. EXPLOITATION OF RIGHTS: Fox shall have complete, exclusive and unqualified
----------------------
discretion and control as to the time, manner and terms of the marketing, sales,
distribution, promotion and related activities in respect of its duties in
connection with the Rights in accordance with such policies, terms and
conditions and through such parties as Fox in its sole business judgment may
determine proper or expedient. Notwithstanding the foregoing, Fox agrees that
it shall transmit each and every merchandising proposal in the form of a deal
memo to Licensor's designee for Licensor's written approval. If such approval
is given, Fox shall prepare and issue from license agreements (or negotiate any
agreements issued by licensees) among Fox, Licensor and each licensee which Fox
is authorized to sign on behalf of Licensor. Such license agreements, whether
prepared by Fox or by a licensee, shall expressly require that samples of
merchandise and related materials, in all stages of development, both prior to
and
3
upon manufacture, be submitted to Licensor for its approval. License agreements
shall specify the correct copyright and trademark notices, as dictated to Fox by
Licensor, for inclusion on all merchandise and related materials derived from
each Program. Fox makes no representation or implied warranty or agreement as
to the manner or extent of any exercise or exploitation of any Rights in and to
a particular Program nor the amount of money to be derived from any such
exploitation or exercise. Fox does not guarantee the performance of any third
party who becomes a licensee of any Rights for any Program.
11. WARRANTIES AND INDEMNIFICATIONS:
-------------------------------
(a) Rights/Payments/Quality: Licensor warrants, represents and agrees as
-----------------------
follows:
(i) it has and shall continue to have during the Term,
exclusively, all rights necessary to enter into this Agreement free
and clear of any and all restrictions (other than any restrictions
upon the rights disclosed by Licensor to Fox upon execution of this
Agreement or upon acquisition or development of any new Programs
during the Term hereof), claims, litigation, encumbrances, impairments
or defects of any kind;
(ii) it has not and will not commit or omit to perform any act by
which any of the Rights could or will be encumbered, diminished or
impaired;
(iii) neither the execution by Fox of this Agreement nor anything
contained in any Program nor the exercise by Fox of any of the Rights
will violate or infringe upon any rights of any kind of any Party nor
require Fox, its parent company, Affiliates or any of their licensees
or agents to make any payment of any kind to any party for any reason
(such payments, if any, being the sole responsibility and obligation
of Licensor) other than as described in Paragraph 4.(b) of Exhibit "A"
hereto.
(iv) each of Fox, its parent company, Affiliates and each of its
and their licensees and agents will peacefully enjoy and possess each
and all of the rights and licenses granted or purported to be granted
herein throughout the Term without impairment and without hindrance on
the part of any third party.
(b) Copyright: Licensor warrants, represents and agrees as follows:
---------
(i) the copyright in each Program or any part thereof and in the
literary, dramatic and musical material upon which each Program or any
part thereof is based or which is contained therein will be valid and
subsisting during the Term throughout the Territory; and
(ii) it will secure, register, renew and extend all copyrights in
each Program and any part thereof and all related properties upon
eligibility for copyright registration, renewal and extension.
Licensor hereby irrevocably designates Fox as its attorney-in-fact to
do so if Licensor fails to do so, and also designates Fox
4
as its attorney-in-fact to take reasonable steps to defend said
copyrights against any and all infringements thereof. Licensor agrees
that the foregoing designations constitute powers coupled with an
interest, are irrevocable throughout the Term and may be exercised at
Fox's sole discretion. Fox shall not be liable to Licensor for any
action or failure to act on behalf of Licensor within the scope of
authority conferred on Fox under this Paragraph 11.(b) unless such
action or omission was performed or omitted fraudulently or in bad
faith or constituted wanton and willful misconduct or gross
negligence.
(c) Trademark Protection: Licensor warrants, represents and agrees that it
--------------------
will secure, register and maintain at Licensor's expense federal trademark
registrations and protection both in the United States and in those
countries in which Fox exploits the Rights and engages in licensing
activity in the classes and categories and to the extent to which the
parties hereto may mutually agree such protection is required.
(d) Indemnity: Licensor agrees to indemnify and hold Fox, its parent
---------
company, Subsidiaries and Affiliates and their respective officers, agents,
directors, employees and licensees harmless from and against any and all
claims, actions or proceedings of any kind and from any and all damages,
liabilities, costs and expenses (including reasonable attorneys' fees)
relating to or arising out of any violation of any of the warranties,
representations or agreements or any error or omission in any of the
material or information furnished to Fox in accordance with this Agreement.
If Licensor shall fail to do so promptly upon Fox's written request, Fox
shall have the right to adjust, settle, litigate and take any other action
Fox deems necessary or desirable for the disposition thereof. In any such
event, Licensor shall reimburse Fox on demand for all amounts paid or
incurred by Fox, including reasonable attorneys' fees, and Fox shall have
the right to deduct the amount thereof from sums accruing to Licensor under
this Agreement.
12. FOX'S DEFAULT: Licensor shall not have any right to terminate or rescind
-------------
this Agreement because of any default or breach of any kind by Fox, its parent
company, Affiliates or their licensees. Licensor shall not be entitled to seek
or obtain any injunctive relief with respect to the exercise of the Distribution
Rights granted hereunder by reason of any alleged default or breach by Fox or
its parent company, Affiliates or their licensees, it being agreed that the only
remedy of Licensor in any such event shall be an action for an accounting or for
damages.
13. CHOICE OF LAW/VENUE: This Agreement will be interpreted in accordance with
-------------------
the Laws of the State of California applicable to contracts made therein, but
without regard to any principles of conflict of laws. Licensor agrees that any
legal action or proceeding relating to this Agreement may be instituted in any
State or Federal court in the County of Los Angeles, State of California and
irrevocably submits to the jurisdiction of such courts.
14. NOTICES: All notices to Licensor or Fox shall be in writing and shall be
-------
sent by registered or certified mail to the respective address set forth below
or such other address as shall be designated by written notice. The address for
all notices to Fox shall be as follows:
5
Twentieth Century Fox Licensing and Merchandising
X.X. Xxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President
with an additional copy sent to the following person at the above address:
Attention: Counsel, Legal Affairs
The address for all notices to Licensor shall be as follows:
Fox Children's Network
X.X. Xxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President, Business Affairs
with an additional copy sent to the following person at the above address:
Attention: Legal Affairs
15. RELATIONSHIP OF PARTIES: Neither Fox nor Licensor is an agent or
-----------------------
representative of the other, and neither shall be liable for or bound by any
representation, act or omission whatever of the other. This Agreement shall in
no way create a joint venture or partnership nor be for the benefit of any third
party.
16. ENTIRE AGREEMENT: This Agreement and each of the Exhibits and Schedules
----------------
attached hereto embody the entire agreement between Fox and Licensor as to the
subject matter hereof, and expressly and unequivocally supersedes all previous
agreements, warranties or representations, oral or written, which may have been
made between Fox and Licensor as to the subject matter hereof. This Agreement
may only be amended by a written instrument duly signed by Fox and Licensor.
By signing in the spaces provided below, Fox and Licensor accept and agree to
all of the terms and conditions of this Agreement.
FOX CHILDREN'S NETWORK, INC. TWENTIETH CENTURY FOX LICENSING
("Licensor") AND MERCHANDISING, a unit of
FOX INC. ("Fox")
By/s/ X. Xxxxxxxx By /s/ Xxxxx Xxxxxx for Xx Xxxxxx
----------------------------------- --------------------------------
Its: Vice-President, Business Affairs Its: Sr. Vice President
6
EXHIBIT "A"
Exhibit "A" to the Merchandising Rights Acquisition Agreement dated as of July
1, 1990 ("Agreement") between TWENTIETH CENTURY FOX LICENSING AND MERCHANDISING
("Fox") and FOX CHILDREN'S NETWORK, INC. (referred to as "Licensor" in the
Agreement and as "Participant" herein).
1. DEFINED TERMS: All words appearing within the text of this Exhibit with
-------------
initial letters capitalized (except the first word of a sentence and proper
nouns) and all words appearing within underlined paragraph captions with initial
letters capitalized and within quotation marks are specifically defined terms
for purposes of this Exhibit, the definitions for which are set forth within the
text of this Exhibit. Words which appear within parentheses with initial
letters capitalized and within quotation marks are specifically defined terms
for purposes of this Exhibit defined by the text immediately preceding the
parentheses.
2. "PARTICIPANT'S PERCENTAGE PARTICIPATION": Participant's Percentage
----------------------------------------
Participation refers to the share of monies to which Participant is entitled
under the Agreement and which shall be accounted for and paid as provided in the
Agreement and this Exhibit.
3. "GROSS RECEIPTS": Gross Receipts means the aggregate of the following
----------------
received with respect to each Program:
(a) [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
(b) [XXXXXXXXXXXXXXX]
(i) [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
(ii) [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
4. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
1
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
(a) [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXX]
(b) [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
5. ACCOUNTING PRACTICES: Books of account which pertain to the exercise of
--------------------
Rights with respect to each Program shall be maintained by Fox or under its
supervision at such place or places as may from time to time be customary with
Fox pursuant to its ordinary business practices. All financial matters shall be
determined, accounted for and calculated in all respects pursuant to
participation accounting practices customarily used by Fox. Fox may establish
reasonable reserves for anticipated Distribution Expenses. If Fox incurs any
costs and/or receives any receipts pertaining to a Program together with other
matters, a portion of such costs and/or receipts shall be allocated to such
Program in accordance with the participation accounting practices customarily
used by Fox.
6. FOREIGN REMITTANCES: No monies shall be included in Gross Receipts unless
-------------------
and until such sums have been received in U.S. Dollars in the United States.
All Gross Receipts received in a foreign currency will be converted into United
States Dollars and remitted to Fox in the United States as promptly as
applicable laws will permit. As to funds received in a foreign country which
are not includable in Gross Receipts as a result of being in a Restricted
Currency ("Restricted Proceeds"), Fox shall notify Participant of the amount of
such funds on the appropriate Participation Statement. As and when
Participant's Percentage Participation becomes payable to Participant,
Participant may notify Fox in writing that Participant elects to require
settlement of Participant's share of the Restricted Proceeds remaining in any
country (not yet converted into United States Dollars and therefore not
includable in Gross Receipts) in the
2
currency of such country, by designating a bank or other representative in such
country, to whom payment may be made for Participant's account. Subject to
applicable laws affecting such transactions, such payment shall be made to such
bank or representative at Participant's expense and shall fully satisfy Fox's
obligations to Participant as to such funds and Participant's share thereof.
Any taxes or expenses incurred in connection with the making of such payments
shall be deducted from amounts paid, or otherwise charged to or paid by the
Participant, in advance, if so required. In no event shall Fox be obligated to
apply Gross Receipts not actually received by Fox in United States Dollars in
the United States to the recoupment of any costs deductible from Gross Receipts
hereunder.
7. STATEMENTS: Fox shall render to Participant periodic Participation
----------
Statements showing, in summary form, Gross Receipts for each Program during the
Term thereof and permitted deductions therefrom, accompanied by payment of the
amount, if any, shown thereon to be due Participant by check drawn to the order
of Participant. The initial Participation Statement shall be rendered for the
period ending as of the close of the calendar quarter during which the exercise
of any Rights with respect to a specific Program by Fox commences.
Participation Statements shall be rendered for periods of 3 months in length
following the end of the period covered by the first Participation Statement.
The period covered by a Participation Statement is referred to as a Statement
Period. No Participation Statements need be rendered for any Statement Period
during which no Gross Receipts are received. Each Participation Statement shall
be furnished 90 days after the close of the Statement Period for which the
Participation Statement is rendered. Any Participation Statement may be changed
from time to time to effectuate year-end adjustments made by Fox's Accounting
Department or its certified public accountants or to correct any errors or
omissions. Each Participation Statement will be mailed to Participant at
Participant's then current address for Notices under the Agreement.
8. WITHHOLDINGS: There shall be deducted from any payments to or for the
------------
account of Participant hereunder, the amount of any tax or other withholding
which, pursuant to applicable laws, is required to be made by Fox, based upon,
measured by, or resulting from payments to or for the account of Participant.
Such deduction shall be in accordance with the good faith interpretation by Fox
of such laws. Fox shall not be liable to Participant for the amount of such
deductions because of the payment of said amount to the Party involved.
Participant shall make and prosecute any and all claims which it may have as to
such tax deductions and/or withholdings directly with the Party involved.
9. OVERPAYMENT/OFFSET: If Fox makes an overpayment to Participant hereunder
------------------
for any reason or if Participant is indebted to Fox for any reason relating to
the Agreement, Participant shall pay Fox such overpayment or indebtedness on
demand, or at the election of Fox, Fox may deduct and retain for its own account
an amount equal to any such overpayment or indebtedness from any sums that may
become due or payable by Fox to Participant for the account of Participant, or
to any company owned by, owning, or under common ownership with Participant.
10. AUDIT: If Participant requests, Fox shall permit during the Term of a
-----
Program, at the sole cost and expense of Participant, a first class and
reputable firm of certified public accountants to examine Fox's books of account
which relate to the Participation Statements
3
rendered to Participant in respect to such Program which have not become
incontestable. Participant may make copies of or make excerpts from only such
part of Fox's books of account which relate to the matters subject to
examination as herein provided. Such examination shall be only at such place
where said books of account are maintained and during reasonable business hours
in such manner as not to interfere with Fox's normal business activities and not
more frequently than once each calendar year. No examination may last for more
than 30 days. A true copy of all reports made by Participant's representative
pursuant to the foregoing provisions shall be delivered to Fox at the same time
as delivered to Participant. Such right to examine is limited to the Programs
and under no circumstances shall Participant or its authorized representatives
have the right to examine records relating to Fox's business generally or with
respect to any other motion pictures for purposes of comparison or otherwise.
11. INCONTESTABILITY: All information on Participation Statements rendered to
----------------
Participant will be deemed conclusive and binding on Participant unless a
written statement specifying the transactions or items to which Participant
objects is delivered to Fox within 36 months after the date of the first
Participation Statement reflecting the transaction or item in question. If
Participant's objections are not resolved amicably, Participant may maintain or
institute an action with respect to an objection raised and not resolved
amicably if commenced within 6 months after the expiration of said 36-month
period or the expiration of the period for the applicable statute of limitations
established by law as to such transactions or items, whichever first occurs.
The Fox books of account and all supporting documentation need not be retained
and may be destroyed after the expiration of said 36-month period unless
Participant has duly objected prior thereto and instituted an action as herein
provided. Participant agrees that Participant's sole right to receive
accountings in connection with the Rights granted, to examine records, and/or to
object as to transactions or items of information and/or any other matter with
respect to Participant's Participation and/or to maintain or institute any
action or proceeding shall be only as provided in this Exhibit, and Participant
hereby waives the benefits of any applicable Law under which Participant
otherwise may be entitled to an accounting, rights of examination and/or rights
of objection and/or rights to maintain or institute any action or proceeding and
agrees that the accountings to Participant as provided in this Exhibit shall not
be deemed a book account or an open account between Fox and Participant and
shall not be viewed in any way so as to deny the applicability of the
incontestability provisions set forth in this Exhibit.
12. OTHER TERMS AND CONDITIONS:
--------------------------
(a) Creditor - Debtor Relationship: Participant expressly acknowledges the
------------------------------
relationship between Participant and Fox to be that of creditor and debtor
with respect to the payment of monies due Participant hereunder. Nothing
contained herein shall be construed to create a trust or specific fund as
to Gross Receipts of any Program or Participant's share thereof or any
other monies, or to prevent or preclude Fox from commingling Gross Receipts
or any monies due Participant with any other monies or to give Participant
a lien on any Program or an assignment of the proceeds thereof.
(b) Litigation: Participant waives any right which Participant may have at
----------
law or equity to revoke, terminate, diminish or enjoin any rights granted
or acquired by Fox
4
hereunder by reason of any claim which Participant may assert for non-
payment of any monies claimed due and payable hereunder, it being agreed
that Participant shall be limited to an action at law for recovery of any
such monies claimed and for damages (if any) as a result of non-payment.
(c) No Joint Venture or Partnership: Nothing contained herein shall be
-------------------------------
construed so as to create a joint venture or partnership between
Participant and Fox, or a third party beneficiary relationship as to any
third party.
(d) No Representations: Fox has not made any express or implied
------------------
representation, warranty, guarantee or agreement that any the exercise of
Rights with respect to any Program will earn any minimum amount of Gross
Receipts, Net Profits, or any minimum amount of monies will be expended in
connection therewith or that Participant's Percentage Participation will
equal or exceed any minimum amount or that the Rights in and to any Program
will be exploited in any particular manner.
(e) Assignment by Participant: Subject to all applicable laws and to the
-------------------------
rights of Fox hereunder, Participant may assign the rights to Participant's
Percentage Participation at any time during the Term provided that a Notice
of Irrevocable Authority and Acceptance in Fox's usual form shall be
executed by Participant and by the assignee and delivered to Fox. Fox
shall no be obligated to pay in accordance with any partial assignment if
the formula or basis of computation creates any doubt of interpretation
whereby Fox takes any risk whatsoever and/or it all the assignees fail to
execute and deliver an agreement in Fox's usual form appointing a single
person as a disbursing agent, to whom Fox may make all such payments
thereafter regardless of any further assignment(s). Fox's payment in
accordance with any such assignment or designation shall be deemed to be
equivalent of payment to Participant hereunder and shall discharge Fox from
any further liability or obligation to Participant for the payment of
monies hereunder. Participant's rights to inspect and audit Fox's books of
account shall not be assignable without Fox's prior written consent.
(f) Captions: Captions of paragraphs hereof are inserted for reference and
--------
convenience only and in no way define, limit or prescribe the scope or
intent of any provisions hereof.
5
