VIDEO PRODUCTION AND DISTRIBUTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 18th day of
January, 1995, by and between On Ice, Inc. a Delaware corporation (hereinafter
referred to as "OII") and NBC Sports Ventures, Inc., a Delaware corporation
(hereinafter referred to as "NBC"):
Preamble
OII owns the home videocassette distribution rights to the 1994 figure skating
event entitled "Nutcracker on Ice". (the "Event").
NBC is experienced in the production, marketing, distribution and sale of home
video products.
NBC and OII desire to develop a home videocassette featuring highlights from the
television broadcast of the Event (the "Program").
Accordingly, OII and NBC agree to the following:
Terms and Conditions
1. Term. The term ("Term") of this Agreement shall commence as of December
11, 1994 and expire on December 31, 2004. At the end of the Term all rights to
the Program revert to OII. Following the end of the Term, NBC shall have the
right for six months (the "sell-off period") to advertise, sell and distribute
and otherwise market, all remaining copies of the Program. NBC shall not
distribute any Programs following the end of the sell-off period.
2. Responsibilities of the Parties. The parties agree to the following
terms relative to production and distribution of the Program:
A. NBC Obligations. NBC shall be responsible for editing the Event
television program into a home videocassette of a length to be agreed
upon by the parties and creating the packaging for the Program ("Program
Production"). In addition, NBC shall be responsible for the distribution
and marketing of the Program and make all fulfillment arrangements
("Program Distributions"). In connection with the Program Distribution
NBC agrees to run direct response promotional spots for the video, the
frequency and positioning of which shall be determined by NBC in its
sole discretion based upon NBC's projected sales resulting from the
spots.
B. OII Obligations. OII shall secure the home videocassette rights to
all elements of the Program including music and Event participants.
3. Rights to Distribute Program. NBC in consultation with OII shall have
the right to distribute and sell the Program in any and all home video media in
the world. All sums received by NBC or credited to NBC's account in connection
with such distribution and sales shall be accounted for and distributed in
accordance with Section 5 below.
Page 2
4. Production Expense Obligations and Budget. NBC agrees that it will be solely
responsible for all production expenses associated with the Program, including
the royalty buy-out payment to the Program director, set designer, and lighting
designer, which are currently budgeted at Four Thousand Dollars ($4,000) (see
itemized breakdown on Exhibit B) and royalties to Xxxxxx Xxxxxxxx, Xxxxxx Xxxxx
and Xxxxxxxx Xxxxxxxx (the "Artists") pursuant to the performance agreements
between the Artists, OII and NBC (collectively referred to herein as "Costs").
NBC agrees to notify OII and obtain its approval if it desires to exceed the
budget.
5. Distribution of Revenues. All monies received from the sale, lease or other
exploitation of the Program ("Revenue") shall be distributed between the parties
as follows:
A. Revenues shall first be applied to the recoupment by NBC of all Costs.
B. Fifty-five percent (55%) of all remaining Revenue shall be paid by NBC to
OII and NBC shall retain the remaining Forty-five percent (45%) (the
"Profits").
NBC shall distribute the Profits, if any, to OII within thirty (30) days of
NBC's receipt of such.
6. Reporting Requirements. NBC agrees to account to OII on a quarterly basis
regarding Costs and Revenue.
7. Books and Records. NBC agrees to keep accurate and complete books and records
of account showing all costs incurred and all monies received by it in
connection with the Program. OII or its representative shall have the right at
all reasonable times (prior to the expiration of one (1) year following the
expiration of the Term) to inspect and make copies of the books and records of
NBC insofar as they shall relate to the costs or receipt of monies in connection
with the Program.
8. Termination. If either party fails to perform its duties under this
Agreement, the other party may at its option give written notice to the
defaulting party, specifying the nature of the alleged default and demanding
that the default be cured. Upon receipt of the notice, the party claimed to be
in default shall have thirty (30) days within which to cure any default that may
exist. If the default is not cured within the time allowed, the non-defaulting
party may terminate this Agreement by written notice, in addition to any other
remedies available at law or in equity.
9. Section Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning of
interpretation of the Agreement.
Page 3
10. Counterparts. This Agreement may be executed in any number of counterparts,
and all of these counterparts together shall constitute one and the same
Agreement.
11. No Assignment. This Agreement and any rights herein granted are personal
to the parties hereto and shall not be assigned, sublicensed, encumbered or
otherwise transferred by either party without the prior written consent of the
other party, and any attempt at violative assignment sublicense, encumbrance or
other transfer, whether voluntary or by operation of law, shall be void and of
no force and effect.
12. No Waiver. Failure of either party to complain of any act or omission on the
part of the other party, no matter how long the same may continue, shall not be
deemed to be a waiver by either party of its rights under this Agreement.
13. Relationship of Parties. This Agreement shall not constitute or be
considered a partnership, employer-employee relationship, joint venture, or
agency between the parties hereto nor by or between any of their employees or
agents.
14. Governing Law. This Agreement shall be governed and construed and the
legal relations shall be determined in accordance with the laws of the State of
New York, United States of America.
15. Binding Effect. Subject to the provisions of this Agreement governing
assignment, the Agreement shall be binding upon and inure to the benefit of the
successors of the parties hereto.
16. Severance. If any term, covenant, condition or provision of this Agreement
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable the remainder of this Agreement or application of such
term or provision to any person or circumstance other than those as to which it
is held invalid or unenforceable, shall not be affected thereby, and each term,
covenant, condition, or provision of this Agreement shall be valid and shall be
enforced to the fullest extent provided by law.
17. Notice. Notice by either party is deemed given when mailed, postage paid,
certified or registered, return receipt requested, addressed to the other party
at the address appearing below:
OII
ON ICE, INCORPORATED
000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Page 4
cc: Xxxx Xxxxxxxxx, Esq.
Myman, Abell, Fineman, Xxxxxxxxx & Xxxxx
00000 Xxx Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
NBC
NBC SPORTS VENTURES, INC.
00 Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Vice President
Either party may, by written notice to the other, change the address to
which any such communications shall be sent. After notice of such change has
been received, any communications shall be sent directly to such party at such
changed address.
18. Authority. Each of the parties hereby represents and warrants to the other
party that it has the right, power and legal authority to enter into and fully
perform the Agreement in accordance with its terms and that this Agreement when
executed and delivered by the parties will be a legal, valid and binding
obligation enforceable against the parties in accordance with its terms.
19. Representation and Warranty; Indemnification. OII represents and warrants to
NBC that it has secured the home videocassette rights to the Event and has
received all necessary releases and authorization to include all elements of the
Event in the Program. Each of the parties hereby agree to indemnify and hold the
other party (and its respective officers, directors, employees, agents, members
and affiliates) harmless from and against any and all costs, damages, claims and
expenses (including, without limitation, all attorneys' fees and expenses, even
if incident to any appeals) incurred by the indemnitee as a result of or
relating to a breach of any provision of this agreement, including any
representation or warranty made herein by the indemnitor.
20. Modification. No modification or waiver of any provision of this Agreement
shall be effective unless in writing and signed by both parties.
21. Attachments. All attachments to this Agreement are hereby incorporated
within and made a part hereof.
22. No Prior Agreements. This Agreement shall be deemed to supercede all prior
agreements between the parties in respect to the subject matter addressed in
this Agreement.
23. Entire Agreement. This Agreement embodies the whole agreement of the parties
and there are no promises, terms, conditions, or obligations other than those
herein contained.
Page 5
24. Bankruptcy or Insolvency. Either party reserves the right to terminate this
Agreement, effective upon ten (10) days prior written notice to the other party,
if such other party shall file in any court pursuant to any statute of either
the United States or any state, a petition of bankruptcy or insolvency, or for
reorganization, or for the appointment of a receiver or trustee of all or a
substantial portion of such party's property or if such party makes an
arrangement for the benefit of creditors, or a petition in bankruptcy is filed
against such party.
IN AGREEMENT to the foregoing terms and conditions, the parties hereto set
their hands below this 18 day of January, 1995.
ON ICE, INC. NBC SPORTS VENTURES, SAC
By: /s/ XXXXX XXXXXXXXXX By: /s/ XXXX XXXXXX
__________________________ ___________________________
Xxxxx Xxxxxxxxxx Xxxx Xxxxxx
Presdent Vice President
