CO-PUBLISHING AGREEMENT
AGREEMENT made as of the lst day of October, 1999, by and between
Antra Music Group, Inc. d/b/a Antraphil Music or such other publishing designee
as Antra Music Group, Inc. may designate, at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx XX
00000 (collectively the "Publisher", "we", "us", "our") and Xxxxxxx Xxxxx p/k/a
"Crush," x/x Xxxxx Xxxx, XX, Xxxxxxxx, Xxxxxx LLP, 0000 Xxxxxx Xx.,
Xxxxxxxxxxxx, XX 00000-0000 ("Writer", "you", "your").
For good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties, the parties, intending to be legally
bound, hereby agree as follows:
1. TERM
(a) The "Recording Agreement" is defined as the exclusive artist
recording agreement dated as of October 1, 1999, as same may be amended from
time to time, between Antra Music Group, Inc. ("Antra") and Xxxxxxx Xxxxx p/k/a
"Crush" ("Artist").
(b) The term of this Agreement (the "Term") shall commence on the date
hereof and shall continue (subject to the remaining provisions of this paragraph
1) for a first contract period (the "Initial Period") ending ninety (90) days
after delivery (as defined in the Recording Agreement) of all materials required
to be delivered with respect to the Recording Commitment for the First Renewal
Period under the Recording Agreement.
(c) Writer hereby grants Publisher seven (7) separate, irrevocable and
exclusive options to extend the Term for additional Contract Periods (each of
which additional Contract Periods may sometimes herein be referred to as "Option
Period(s)") on the same terms and conditions applicable to the Initial Period.
Each such option shall be deemed automatically exercised if Antra exercises the
option for the next succeeding Album of the Recording Commitment under the
Recording Agreement, unless Publisher notifies Writer in writing that Publisher
has elected not to exercise an option hereunder, which notice shall be sent on
or before ninety (90) days following the delivery (as defined in the Recording
Agreement) of all materials required to be delivered in connection with the next
succeeding Album of the Recording Commitment under the Recording Agreement (by
way of illustration but not by way of limitation, Publisher shall have the right
to decline to exercise its option to extend the Term for a second Option Period
hereunder on or before ninety (90) days after delivery of the Recording
Commitment for the Second Renewal Period under the Recording Agreement); if
Publisher exercises an option hereunder, the Term shall be deemed automatically
extended until ninety (90) days after
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delivery of all materials required to be delivered in connection with the next
succeeding Album of the Recording Commitment under the Recording Agreement.
Notwithstanding anything contained herein, the Term of this Co-Publishing
Agreement shall be coterminous with the Term of the Recording Agreement.
2. GRANT OF RIGHTS
(a) Subject to Publisher's exclusive administration rights and the
other rights herein granted to Publisher, Writer hereby irrevocably assigns,
conveys and sets over to Publisher, an undivided fifty percent (50%) interest in
the right, title and interest in all Compositions, including without limitation,
the copyrights and all renewals and extensions of such copyrights, all claims
and causes of action related to any Compositions accrued or accruing at any
time, the right to secure copyright and renewal rights therein and thereto, and
all other rights in the Compositions throughout the Universe (the "Territory"),
in perpetuity. The Compositions shall be registered for copyright by Publisher
in the names of Publisher and Writer in the Office of the Register of Copyrights
of the United States of America. The Compositions subject to this agreement are
(i) all musical compositions created by Writer, alone or in collaboration with
others, during the Term hereof; and (ii) all musical compositions created by
Writer, alone or in collaboration with others, prior to the commencement of the
Term hereof which are not subject to an existing songwriting or publishing
agreement (individually and collectively "Compositions").
(b) Without limiting the generality of paragraph 2 (a) above, Publisher
shall have the sole and exclusive rights throughout the Territory for the full
term of the copyright and all renewals and extensions thereof with respect to
each of the Compositions:
(i) to print, publish and sell printed copies of the
Compositions in any and all parts of the Territory;
(ii) to grant non-exclusive licenses to manufacture parts
for mechanical and electrical reproduction including phonographic records and
transcriptions; and to collect all royalties and fees payable by reason
thereof;
(iii) to grant the rights of public performance of the
Compositions, including broadcasting and television, and to license such
rights throughout the World; and to collect all royalties and fees payable by
reason thereof including any and all performance monies or royalties payable
to Publisher in respect of the Compositions by the American Society of
Composers, Authors and Publishers, Broadcast Music, Inc. or any other
performing rights organization, provided, however, that Writer shall be
entitled to
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collect the so-called Writer's share of such performance income from such
performing rights organization(s) which pay such share directly to Writer;
(iv) to grant licenses for synchronization, recording,
reproduction and use of the Compositions in and with motion pictures, television
films and commercial advertisements; to make copies of the recordings thereof;
and to import, distribute and exploit such copies into all countries of the
world;
(v) to collect any and all royalties, fees and other monies
earned with respect to the Compositions (including, without limitation, any
royalties, fees or other monies earned prior to the date hereof but not
collected as of the date hereof);
(vi) to grant to third parties all rights granted hereunder to
publisher;
(vii) to make any and all arrangements and adaptations of the
Compositions of any kind or nature, to produce any new lyric thereof or a
translation of the original lyrics thereof or of any new lyric thereof, to
change the title thereof, and to do every other act and thing in respect of the
Compositions to make the same suitable and proper for publication in the
Territory (and to publish, use and exploit the Compositions with or without any
such arrangement, adaptation, new lyric or translation thereof in the
Territory), which new matter shall be jointly owned by Writer and Publisher in
accordance with the provisions of this Agreement; and
(viii) to otherwise administer and grant rights in, to and
under the Compositions and the copyrights therein.
(c) Writer hereby authorizes and appoints Publisher as Writer's
attorney-in-fact, irrevocably, to secure and renew or extend, for Publisher's
benefit, the copyright in the Compositions and to execute in Writer's name any
and all documents and instruments necessary or desirable to accomplish the
foregoing or to evidence Publisher's and Writer's ownership of such copyrights
(including the Exhibits attached to this Agreement), such power being coupled
with an interest is irrevocable.
(d) During the Term hereof, any person with whom Writer may wish to
collaborate as author, composer, arranger or adaptor of any compositions or
related work shall agree in writing prior to the commencement of such
collaboration that such person will be bound by the terms and conditions hereof
respecting Writer with respect to all the results and proceeds of the
collaborative effort. Without limiting the generality of the foregoing,
Publisher shall be the publisher of such collaborative work(s), subject to the
terms and conditions hereof.
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3. NAME AND LIKENESS
Publisher shall have the irrevocable and perpetual right to use,
reproduce, print, publish and disseminate (and to allow others to do so) the
name and likeness of Writer, and biographical material pertaining to Writer and
any other writer(s) for the purposes of trade in exploiting the Compositions,
and in advertisements for Publisher.
4. ADVANCES
With respect to the Compositions embodied on the first Album of the
Recording Obligation pursuant to the Recording Agreement, Publisher shall pay to
Writer an advance of Ten Thousand Dollars ($10,000) in accordance with the
following schedule: $3,500 which Writer acknowledges having received already
(which payment, although made prior to the date hereof, shall be deemed to have
been made in connection with the first Album of the Recording Obligation),
$2,500 payable upon full execution of this Agreement and the Recording
Agreement, $2,500 on or before thirty (30) days after the full execution of this
Agreement and the Recording Agreement, and $1,500 on or before sixty (60) days
after the full execution of this Agreement and the Recording Agreement, all of
which shall be applied against and recouped from all sums payable by Publisher
to Writer pursuant to Article 5 below.
5. ROYALTIES
On condition that Writer is not now or hereafter during the Term in
material breach of the terms and conditions of this Agreement, Publisher agrees
to pay to Writer the royalties and fees set forth below, of all net amounts
actually received by Publisher in the United States in United States Dollars in
respect of its exploitation of the Compositions:
(a) Public Performance Income: Fifty percent (50%) of Publisher's Net
Income derived from publisher's share of public performance income collected by
Publisher with respect to the performance, broadcast or televising of the
Compositions. Publisher and its sub-publishers or licensees shall collect the
full publisher's share of performance fees arising from the performance,
broadcast or televising of the Compositions. It is understood and agreed that
Writer will receive his/her/their respective share of nondramatic public
performance income directly from his/her/their respective performing rights
societies. If Publisher licenses any public performance use directly, Publisher
shall pay Writer seventy-five percent (75%) of Publisher's Net Income derived
from those licenses.
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(b) Mechanical Income: Seventy-Five percent (75%) of Publisher's Net
Income derived from the licensing, sale or other disposition of mechanical,
electrical or electronic reproduction rights in such Compositions; provided,
however that such amount shall be Fifty percent (50%) in respect of "cover"
recordings of the Compositions.
(c) Synchronization Income: Fifty percent (50%) of Publisher's Net
Income derived from the exploitation of the Compositions used for sound
synchronization in motion pictures, television sound tracks and commercials
(including, without limitation, radio or television) or other audiovisual works.
(d) Other Income: Seventy-Five percent (75%) of Publisher's Net Income
derived from the licensing of any other rights in the Compositions not specified
in this paragraph 5 (other than sums paid to Publisher as a result of litigation
or settlement of claims of infringement or other recovery made by Publisher
against an infringer, which shall be divided equally between Publisher and
Writer after the costs and expenses (including legal fees) have been recouped
out of such recovery.
(e) "Publisher's Net Income" shall mean all monies actually earned and
received by Publisher in the United States from the exploitation of the
Compositions throughout the Territory, less an administration fee equal to ten
percent (10%) of all such monies, and less all reasonable and actual costs and
expenses attributable to the Compositions and exploitation thereof including,
without limitation, any costs actually advanced or incurred by Publisher in
connection with the administration and exploitation of the Compositions
including, without limitation, all costs of copyrighting the Compositions; fees
of a trustee or collecting agent for the licensing of recording or other rights
in the Compositions; the costs of creation and exploitation of the new material
described in paragraph 2 (b) (vii) above, and all costs and expenses incurred in
connection with the exploitation and protection of Publisher's rights hereunder
including, without limitation legal fees and accounting fees; the costs of any
phonograph records or tapes of the Compositions distributed for promotional
purposes and the out-of-pocket costs of such distribution; the costs of
printing, arranging, and transcribing lead sheets for the Compositions, and
advertising and promoting the Compositions, but not including any expenses
related to Publisher's general overhead.
(f) Any direct or indirect payments to Writer with respect to the
Compositions (other than the songwriter's share of nondramatic public
performance income) shall be immediately reported and turned over to Publisher
for accounting under paragraph 6.
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6. ACCOUNTING
(a) Publisher shall account to Writer within ninety (90) days following
the end of each semi-annual period ending June 30th and December 31st, and all
monies shown to be due under this Agreement shall be paid by Publisher to Writer
in United States Dollars at the applicable rate of exchange at which Publisher
is paid, upon the rendition of the respective semi-annual statements. Royalties
shall not be due and payable until monies have actually been received by
Publisher in the United States in United States Dollars. Publisher agrees that
Writer shall have the right, upon reasonable notice and during normal business
hours not more than once a year, and not more than once with respect to any
accounting statement, to examine or have its duly authorized representative or
accountant examine Publisher's books and records insofar as they pertain to the
computation of royalties payable to Writer hereunder in respect of the
Compositions. All statements hereunder shall be deemed final and not subject to
objection unless specific objection stating the basis thereof is made by written
notice to Publisher within two (2) years from the date the statement is
rendered, and suit is commenced within one (1) year thereafter. For the purpose
of computing the time periods set forth in this paragraph 6 (a), each accounting
statement hereunder shall be deemed conclusively to have been rendered to Writer
on the last date prescribed in this paragraph 6 (a) unless Writer has notified
Publisher otherwise in writing within thirty (30) days after such date.
(b) Writer hereby authorizes and directs Publisher to withhold from any
monies due Writer from Publisher any part thereof required by any governmental
authority to be withheld and to pay such monies to such authority.
7. ASSIGNMENT
Publisher may sell, transfer, license, sublicense or assign this
Agreement or any of its rights hereunder to any third party.
8. WARRANTIES AND REPRESENTATIONS
(a) With the exception of so-called "samples" (as such term is commonly
understood in the music industry) which have been made known to Publisher and
which have been legally cleared and licensed at Writer's sole cost and expense
(in the event any assignment of music publishing ownership, income participation
or administration rights in or to a Composition, or any other terms affecting
the rights granted hereunder, shall become necessary to obtain such licensing
clearances, Publisher must approve the terms of any such agreement), but fully
subject to the terms of Subparagraph 8 (a) (i) below, Writer warrants and
represents that each of the Compositions are and/or will be original and will
not infringe upon
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any rights of any person, firm or corporation, the creative contributions of
Writer to the Compositions are and will be new and original, and no such
creative contributions are or will be an imitation or copy of any other musical
composition, or do or will violate or infringe upon any common law, statutory or
other rights of any party. Writer further warrants and represents that Writer
has the full right to enter into this Agreement and grant to Publisher all of
the rights granted herein free and clear of any and all claims, rights and
Commitments whatsoever.
(i) notwithstanding anything contained herein, any portion of
music publishing ownership, income participation or
administration required to be assigned or conveyed to clear
the usage of a sample or to settle a claim in connection with
a sample shall be deducted only from the ownership or income
participation interest otherwise possessed by Writer
hereunder.
(b) Publisher shall not be required to make any payments of any nature
for, or in connection with, the acquisition, exercise or exploitation of rights
by Publisher pursuant to this agreement except as specifically provided in this
agreement;
(c) No Materials, as herein defined, or any use thereof, will violate
any law or infringe upon or violate the rights of any Person. "Materials," as
used in this paragraph, means: (1) all Compositions, (2) the name used by Writer
or any writer(s) of the Compositions, and (3) all other musical, dramatic,
artistic and literary materials, ideas, and other intellectual properties,
furnished or selected by the Writer, and contained in or used in connection with
any Compositions hereunder or the advertising, publicizing or other exploitation
thereof; and
(d) Writer agrees to and does hereby indemnify, save and hold Publisher
harmless from and against any and all loss and damage (including legal fees)
arising out of or in connection with any breach or alleged breach of this
Agreement or any claim which is inconsistent with any of the warranties or
representations made by Writer in this Agreement. Writer agrees to reimburse
Publisher on demand for any payment made or incurred by Publisher with respect
to any liability or claim to which the foregoing indemnity applies. Pending the
determination of any claim involving such alleged breach or failure, Publisher
may withhold sums due you hereunder in an amount reasonably consistent with the
amount of such claim.
9. UNIQUE SERVICES
It is specifically understood and agreed that the services of Writer to
be rendered under this Agreement in writing and composing are unique and
extraordinary and cannot be replaced, and that in
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the event of violation by Writer of any of the terms or conditions hereof,
Publisher and all other parties in interest shall be entitled to injunctive and
other equitable relief in addition to all other rights and remedies.
10. INDEPENDENT CONTRACTOR
Writer represent(s) and warrant(s) that all of his/her/their services
shall be rendered under this Agreement in the capacity of an independent
contractor and not as an employee or joint venturer of Publisher. Without
limitation, Writer shall make all appropriate withholdings and pay all estimated
and other taxes and contributions of any sort or nature which may be required as
a result of or based upon any compensation payable to Writer hereunder. Writer
acknowledges that the foregoing warranty and representation will be relied upon
by Publisher for the purpose of determining whether or not it is necessary to
make withholdings for U.S. Federal Taxes and other applicable taxes and
Commitments from monies being paid to or for the account of Writer hereunder.
11. JURISDICTION
It is the express intent of the parties that this Agreement shall be
governed by the laws of the Commonwealth of Pennsylvania, with the full force
and effect as though this Agreement had been executed in and fully performed in
said Commonwealth of Pennsylvania. In the event of any dispute hereunder, the
parties hereto expressly agree that the State Courts or the Federal Court
located in the County of Philadelphia shall have full jurisdiction over the
parties hereto, and the parties hereby bind themselves over fully and completely
to the jurisdiction of said courts. In the event that process must be served in
connection with any such dispute, the parties agree that such process may be
served by personal delivery within or without the Commonwealth of Pennsylvania
or by registered mail to the parties at their respective addresses set forth
herein.
12. NOTICES
All notices required to be given to Publisher shall be sent to
Publisher at its address first mentioned herein, and all royalties, royalty
statements and payments and any and all notices to Writer shall be sent to
Writer at his/her/their address first mentioned herein or such other address as
each party respectively may hereafter designate by notice in writing to the
other. All notices sent under this agreement shall be in writing and, except for
royalty statements shall be sent by registered or certified mail, return receipt
requested and the day of mailing of any such notice shall be deemed the date of
the giving thereof (except notices of change of address, the date of which shall
be the date of receipt
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by the receiving party). Writer shall send copies of all notices and
correspondence to Publisher to Law office of Xxxx X. Xxxxxx, LLC, 000 Xxxxx
00xx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
13. ENTIRE AGREEMENT
This agreement sets forth the entire agreement of the parties with
respect to the subject matter hereof, and no modification, amendment, waiver,
termination or discharge of this agreement shall be binding upon any party
unless confirmed by written instrument signed by the party against whom
enforcement is sought.
14. CURE
No breach of this Agreement on the part of Publisher shall be deemed
material, unless Writer shall have given Publisher notice of such breach and
Publisher shall fail to cure such breach within sixty (60) days after receipt of
such notice if such breach is reasonably capable of being fully cured within
such sixty (60) day period; or if such breach is not reasonably capable of being
fully cured within such sixty (60) day period, if Publisher shall fail to
commence to cure such breach within such sixty (60) day period and/or fail
thereafter to proceed with reasonable diligence to complete the curing of such
breach.
15. MISCELLANEOUS
(a) All copyrights and renewals and extensions thereof and all other
rights vested in Publisher during the Term hereof shall survive the termination
of this Agreement to the fullest extent permitted under the United States
Copyright Act of 1976.
(b) The title or headings of provisions herein are used for convenience
only, and do not constitute a part of this Agreement and are not to be used in
the construction hereof.
(c) If any part of this Agreement shall be determined to be invalid or
unenforceable by a court of competent jurisdiction or by any other legally
constituted body having jurisdiction to make such determination, the remainder
of this Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written;
ANTRA MUSIC GROUP, INC.("Publisher") ACCEPTED AND AGREED TO:
D/B/A ANTRAPHIL MUSIC ("Writer")
By:_________________________ By:/s/ Xxxxxxx Xxxxx
-----------------------
Xxxxxxx Xxxxx
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EXHIBIT "A"
ASSIGNMENT OF COPYRIGHT
For and in consideration of the sum of One Dollar ($1.00) and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the undersigned hereby irrevocably sells, assigns, transfers, sets over and
conveys to Antra Music Group, Inc: d/b/a Antraphil Music, its successors and
assigns (subject to the terms of that certain agreement between the undersigned
and Antra Music Group, Inc. dated as of the lst day of October, 1999), fifty
percent (50%) of the undersigned's undivided right, title and interest in the
entire worldwide copyright and any and all other rights, including any renewals,
extensions and reversions of copyright and any and all other rights in and to
the musical compositions set forth on Schedule 1 attached hereto and made a part
hereof, including the title, music and lyrics thereof and all arrangements
thereof and the right to arrange, adapt and create derivative works from such
musical compositions, together with all copyrights and proprietary rights
therein and in any and all versions of said musical compositions, and any
renewals, extensions and reversions thereof (whether presently available or
subsequently available as the result of intervening legislation) in the United
States of America and elsewhere throughout the world, and further including any
and all causes of action for infringement of the same, past, present and future,
and all proceeds from the foregoing accrued and paid hereafter accruing.
IN WITNESS THEREOF, the undersigned has caused this transfer
of copyright to be executed this 1st day of October, 1999.
/s/ Xxxxxxx Xxxxx
---------------------
Xxxxxxx Xxxxx
STATE OF PENNSYLVANIA )
) ss:
COUNTY 0F PHILADELPHIA )
On this 1st day of October, 1999, before me personally came Xxxxxxx Xxxxx, and
to me known, and known to me to be the person named in and who executed the
foregoing agreement, and who has acknowledged to me that he has executed same.
/s/ Rose Xxxxx Xxxxx
-----------------------
Notary Public
EXHIBIT "A"
Rose Xxxxx Xxxxx
Commissioner of Deeds
Commonwealth of Pennsylvania
My Commission Expires Dec. 8, 2000
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EXHIBIT "B"
October 1, 1999
Broadcast Music, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
Please be advised that the undersigned has entered into an agreement
with Antra Music Group, Inc. d/b/a Antraphil Music ("Antraphil"), of 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 pursuant to which Antraphil shall have
the sole and exclusive right to collect and receive all royalties otherwise
payable to the undersigned with respect to the musical compositions set forth
on Schedule 1, attached hereto and made a part hereof.
Accordingly, you are hereby authorized and directed to pay to
Antraphil all accrued and future royalties payable with respect to the said
musical compositions.
Very truly yours,
By: /s/ Xxxxxxx Xxxxx
-----------------------
Xxxxxxx Xxxxx
EXHIBIT "B"
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EXHIBIT "C"
October 1, 1999
ASCAP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Gentlemen:
Please be advised that the undersigned has entered into an agreement
with Antra Music Group, Inc. d/b/a Antraphil Music ("Antraphil"), of 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 pursuant to which Antraphil shall have
the sole and exclusive right to collect and receive all royalties otherwise
payable to the undersigned with respect to the musical compositions set forth
on Schedule 1, attached hereto and made a part hereof.
Accordingly, you are hereby authorized and directed to pay to
Antraphil all accrued and future royalties payable with respect to the said
musical compositions.
Very truly yours,
By: /s/ Xxxxxxx Xxxxx
--------------------
Xxxxxxx Xxxxx
EXHIBIT "C"
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SCHEDULE 1
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