SHOW PRODUCTION AGREEMENT
THIS CONTRACT is made by and between ON STAGE ENTERTAINMENT, INC., with
offices at 0000 Xxxx Xxxxx, Xxxxx 0, Xxx Xxxxx, Xxxxxx 00000 (hereinafter
referred to as "On Stage") XXXX MANAGEMENT, with offices at
Xxxxxxxxxxxxxxxxxxxxxx 00, 00000, Xxxxxx (hereinafter referred to as "Xxxx")
this ___ day of May, 1997.
RECITALS
WHEREAS, On Stage is the creator, producer and federally registered
owner of the production show entitled "Legends in Concert" which is a tribute to
the superstars of yesterday and today through the use of impersonators who
perform live-recreations of those stars ("Legends" or the "Show"); and
WHEREAS, Xxxx has solicited the services of On Stage to present and
otherwise stage its Legends in Concert production at the Estrel Residence &
Congress Hotel in Berlin, Germany (the "Venue"); and
WHEREAS, On Stage and Xxxx have agreed upon certain terms and
conditions to govern the operation of the Show for the term of this Agreement;
and
WHEREAS, On Stage and Xxxx have agreed to reduce these terms and
conditions to writing and to enter into this Agreement with the terms
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS
ALONG WITH THE MUTUAL PROMISES AND UNDERSTANDINGS HEREIN CONTAINED AND FOR OTHER
GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
AGREEMENT
1. VENUE. The Estrel Residence & Congress Hotel in Berlin, Germany.
2. SHOW CONTENT. The Show shall be entitled "Legenden in Concert" (or such other
similar name as the parties shall mutually agree in writing) and will consist of
the following: five (5) Principal Acts, two (2) Singer/Dancers (one of which
will act as assistant choreographer); one (1) Musical Director/Production
Manager; one (1) Technician during the initial set-up of the Show; and three
additional (3) Musicians.
3. TERM. The Show will be performed at the Venue in accordance with the terms
contained herein from September 12, 1997 through and including December 31, 1997
(the "Initial Term"). Xxxx shall have the right to extend this Initial Term for
five (5) successive two (2) year periods (for a total extension period of ten
years), subject to an increase in compensation due On Stage hereunder in
accordance with the Consumer Price Index, so long as Xxxx is not in breach of
any term of this Agreement and notifies On Stage of its intention to exercise
such right no later than ninety (90) days prior to the termination of the
preceding term.
4. NUMBER OF PERFORMANCES. The Show will be performed on a maximum of six (6)
days per week for a maximum of eight (8) performances per week at the Venue.
Xxxx will determine the dates and times of each performance, but in no event
will the Show be presented more than two (2) times per day. Each Show will run
approximately ninety (90) minutes in length. The Show may be performed at
locations outside the Venue for promotional purposes only, provided Xxxx
receives the prior written consent from On Stage, which consent shall not be
unreasonably withheld. Any performances at locations outside of the Venue as
well as any additional performance days or shows will require additional
compensation, the amount of the which will be reasonably determined between the
parties.
5. ON STAGE'S RESPONSIBILITIES. On Stage shall maintain joint creative control
of the Show including the exclusive right to modify and/or alter any and all
aspects of the same at its reasonable discretion, except as provided for herein,
and shall retain all rights to the Show. However, On Stage shall give
appropriate consideration to any reasonable requests of Xxxx which may be caused
by the different environment for the Show at the Venue. The Show will be a
high-class impersonation show to be presented in a form, style, and format which
meets or exceeds the generally accepted quality and performance standards for
impersonation shows and reviews presented in the United States, in theaters of
similar size with similar equipment. On Stage hereby further agrees that it will
provide the following:
5.1 To provide the following performers: five (5) Principal Acts, two
(2) Singer/Dancers (one of which will act as assistant choreographer); one (1)
Musical Director/Production Manager (who will also play the keyboards); and one
(1) Technician during the initial set-up of the Show (hereinafter referred to as
the "Performers").
5.2 To co-produce and organize the Show together with Xxxx.
5.3 To supply all necessary costumes for the principal acts and two
singer/dancers. In the event that Xxxx decides to hire additional
singer/dancers, an additional rental fee will be charged for such extra costumes
required thereby and Xxxx will further be responsible for all costs related to
choreograph the same (i.e. the choreographer's travel, room, food and salary
costs).
5.4 All accompanying musical charts and background tracks needed for
the performance of the Show provided, however, that any conversion or
transcription costs incurred through translating those materials from English to
German shall be borne exclusively by Xxxx.
5.5 To provide Xxxx with a detailed list of the United States locations
from which each Performer will depart for Berlin.
5.6 All Performers shall arrive in Berlin and be prepared to rehearse
the Show from September 12 through 15, 1997 and to present the Show on September
16 and 17, 1997 for the purpose of pre-viewing the same the travel agents,
ticket offices, concierges, incentive agents, hotel staff and the like. Xxxx
shall remain responsible for those same amenities provided to On Stage's
Performers as is to be provided to them during the run of the Show (i.e.
housing, meals, etc.).
5.7 During the Term of this Agreement, On Stage shall grant to Xxxx the
right of first refusal to perform "Legends in Concert" for the countries of
Germany, Austria and Switzerland. In the event that On Stage is presented with
an opportunity to present "Legends in Concert" for another venue within the
territories listed above, On Stage shall submit the material terms of the offer
to Xxxx at which time Xxxx will have ten (10) days in which to either match the
offer or decline to match the offer. If Xxxx fails to accept any offer and/or
declines to match any such offer within the time frame specified above, On Stage
shall be free to perform the Show at that respective venue without being in
violation of any provision herein to the contrary.
5.8 On Stage hereby warrants that it is the original producer, creator
and registered trademark and copyright owner of the name and show concept
entitled "Legends in Concert" and further warrants that it will indemnify Xxxx
against all costs, claims or damages resulting from any breach of this covenant.
5.9 On Stage hereby warrants that its Performers will be made available
for all reasonable radio, television, film and photograph sessions held in
connection with promoting the Show and to allow Xxxx to utilize the Performers
names and images for public promotional materials.
6.0 RESPONSIBILITIES OF XXXX. Xxxx hereby agrees that it will provide the
following at its sole cost and expense:
6.1 Provide eleven (11) international round-trip airline tickets on a
regularly scheduled American flight carrier (USA/Berlin/USA) and domestic
transportation to the Venue and back.
6.2 Provide eight (8) hotel rooms at the Hotel Estrel and two (2) meals
per day per Performer in the Hotel's restaurant(s) during the Initial Term and
all subsequent terms thereof. Xxxx will further provide three (3) additional
hotel rooms and two (2) meals per day for additional technicians during load- in
(pre-production), maintenance and load-out (closing) periods.
6.3 Xxxx will pay for all cartage (i.e. shipping, handling and duties
of freight) for goods needed to be sent to the Venue by On Stage throughout the
term of this Agreement. Xxxx shall be further responsible for any import or
export taxes levied on any costumes, props, promotional material, etc.
provided by On Stage in accordance with its responsibilities hereunder.
6.4 Furnish a theater in good condition with contains therein such
sound and lighting equipment as is mutually agreed upon by the parties and
determined to be necessary to stage a first class production (See recommended
Equipment and Staging Rider). In the event that the parties agree that a
supplemental sound, lighting and/or equipment package needs to be brought into
the Hotel to effectively stage the Show, the parties shall mutually agree upon
what is needed and how to provide the same.
6.5 Procure and take financial responsibility for all required visa's
and handle the customs' formalities for On Stage and its Performers coming to
Berlin, Germany.
6.6 Xxxx will cause the Theater or other adequate rehearsal area to be
available for all rehearsals reasonably requested by On Stage during the term of
this Agreement.
6.7 To provide rehearsal pay for the Performers at one-half the weekly
fee set forth in Section 7, below ($12,500.00).
6.8 To provide On Stage with all necessary liability insurance.
a)
6.9 In addition to the above, Xxxx shall provide the following: (a) all
reasonably required technicians and stage hands; (b) all showroom personnel
(maitre' d, ushers, etc.); (c) general public liability, real property, and
personal property insurance(s) naming On Stage as an additional named insured
and specifically covering all On Stage personnel and property; (d) any and all
worker's compensation insurance, or the German equivalent thereof; (e)
maintenance on their own equipment, including service and the replacement of
disposables such as lamps and gels; (f) all technical support reasonably needed
to implement and otherwise install equipment; (g) all required music licensing
fees (BMI/ASCAP/SESAC or their equivalent such as XXXX); (h) all utilities,
license and organization fees, etc.; (i) all required staging, lighting and
sound equipment; (j) all other miscellaneous items needed to effectively
publicly stage the production not specifically mentioned herein including any
necessary permits to enable On Stage and Xxxx to publicly perform the Show; and
(k) an on site German/English translator, if necessary.
7. PAYMENT INFORMATION. Xxxx shall pay to On Stage TWENTY FIVE THOUSAND
DOLLARS ($25,000.00) per week in United States Currency in consideration for On
Stage's services contemplated hereunder. The schedule for the payment of said
monies will be as follows:
$12,500 To be received by On Stage by no later than September 12, 1997
(rehearsal pay); and
$25,000 To be receive by On Stage no later than September 24, 1997, and
every Wednesday thereafter for the duration of this Agreement.
In addition to the above, the parties hereto agree that all gross
receipts derived from the presentation of the Show above $50,000 USD per week
will be split between the parties as follows: 75% to Xxxx and 25% to On Stage.
All payments required by Xxxx hereunder shall be paid in United States
Currency by automatic wire transfer into an account specified by On Stage. All
costs associated with these automatic wire transfers shall be borne by Xxxx. All
payments required hereunder, shall be made via wire transfer directly into an
account specified by On Stage and shall be secured by an irrevocable stand-by
Letter of Credit issued by a German or United States bank approved by On Stage.
On Stage hereby pre-approves the Deutsche Bank for such transaction. Such
Letter of Credit to be issued no later than fifteen (15) business days of the
execution of this Agreement and must be in a form acceptable to both On Stage
and its bank.
8. MERCHANDISE. On Stage will make available its range of merchandise to Xxxx
for resale at the Hotel at wholesale prices. In the event that Xxxx intends to
market any merchandise related to the Show including, but not limited to
merchandise which features the name of the Show, name, image and likeness of the
impersonators, and general On Stage merchandise ("Show Merchandise") such Show
Merchandise will be subject to a separate agreement which will be mutually
agreed upon between the parties.
9. SOUVENIR PHOTO LOCATIONS. Xxxx or On Stage may set up, operate and manage up
to two (2) "legends talent/guest souvenir photo locations" in the Hotel
("Souvenir Photo Locations"). The parties will mutually agree upon the costs for
the construction and operation of these Souvenir Photo Locations and the
division of revenues generated therefrom.
10. MATERIALITY OF TIMELY PAYMENTS. The payments listed in Paragraph 7, above,
are a material term of this Agreement. The failure of Xxxx to make the payments
required hereunder in a timely manner shall release On Stage from its duty to
perform its responsibilities and obligations as required hereunder, but shall in
no event release Xxxx from its responsibilities and obligations required of them
by this Agreement, including, but not limited to paying On Stage for services
rendered as well as for services contracted for, but not yet performed.
11. NON-TAXABILITY OF PAYMENTS. On Stage hereby understands that all payments of
salaries paid for services rendered in Germany are subject to a twenty five
percent (25%) withholding tax by the German government. As such On Stage agrees
to provide Xxxx with a schedule of its Performers salaries once all act have
been confirmed. In addition, while Xxxx has affirmed the fact that it will take
all actions to keep the taxes as low as possible, On Stage hereby authorizes
Xxxx to withhold from any payment to On Stage, any sum required to be withheld
from said payment as is imposed by any law, statute or decree of the Federal
Republic of Germany. In the event On Stage is required to charge any value added
taxes of any description for the services provided under this Agreement, then
Xxxx hereby agrees to pay such taxes to On Stage in addition to the amounts due
to On Stage under this Agreement.
12. CLEANING AND WARDROBE. On Stage shall be responsible for providing all
necessary wardrobe for its Performers. However, Xxxx is responsible for the
cleaning and maintenance of all costumes which it shall provide at its sole cost
and expense.
13. REPRESENTATIONS AND WARRANTIES OF XXXX. Xxxx represents and warrants to On
Stage that it has full power and authority to execute and deliver this Agreement
and to carry out the transactions contemplated hereby. No consent, authorization
or approval of any third party is required to enable Xxxx to enter into and
perform any of its respective obligations under this Agreement, and neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated thereby will violate the rules that govern the Xxxx or
constitute a breach of any agreement to which the Xxxx is a party or by which it
is bound.
On Stage represents and warrants to Xxxx that it is the federally
registered trademark owner of "Legends in Concert" and therefore has the full
power and authority to publicly present the same under the laws of the United
States. On Stage further represents and warrants that it has the full power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. No consent, authorization or approval of any
third party is required to enable On Stage to enter into and perform any of its
respective obligations under this Agreement, and neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
thereby will violate the rules that govern the On Stage or constitute a breach
of any agreement to which On Stage is a party or by which it is bound.
14. ASSIGNABILITY. Xxxx shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of On Stage.
Notwithstanding the above, Xxxx may assign this Agreement to a new GmbH set up
for the exclusive purpose of running the Show in Berlin. However, Xxxx may not
name this new GmbH "Legends in Concert" or any derivative thereof as this is the
registered trademark and copywritten name of On Stage.
15. RELATIONSHIP OF PARTIES. It is understood between the parties that Xxxx and
On Stage are performing hereunder as independent contractors and that no other
relationship including, but not limited to, joint venture, employer-employee or
partnership, exists between them. In addition, both parties agree to comply with
all applicable provisions of the Internal Revenue Code and any other applicable
laws, rules and regulations relative to their respective performances hereunder.
Neither party shall be liable to the other for paying withholding taxes or the
payment of any other taxes imposed by any taxing authority, including Social
Security payments on the compensation agreed upon in Paragraph 7, hereof.
16. CONFIDENTIALITY. Xxxx agrees to keep confidential, except as On Stage may
otherwise consent to in writing, and not to disclose, or make use of except for
the specific purposes mentioned hereunder, at any time either during or
subsequent to the term of this Agreement, any trade secrets, confidential
information, knowledge, data or other information of On Stage relating to
products, know-how, customer lists, business plans, marketing plans and
strategies, songs, routines, costumes, arrangements, price and strategies or
other subject matter pertaining to any business of On Stage or any of its
respective clients, customers, agents, licensees or affiliates, Xxxx may
produce, obtain or
otherwise acquire during the term of this Agreement, except as herein provided.
Xxxx further agrees not to deliver, reproduce or in any way allow any such
confidential information or any documentation relating thereto, to be delivered
or used by any third parties without specific direction or consent in writing of
On Stage.
17. CONFLICTING EMPLOYMENT/RETURN OF CONFIDENTIAL MATERIAL. In the event of the
termination of this Agreement with On Stage for any reason whatsoever, Xxxx
agrees to promptly surrender and deliver to the On Stage, all records, documents
and data of any nature pertaining to any confidential information of the On
Stage or to this Agreement. Xxxx shall not take with him any description
containing or pertaining to any confidential information of On Stage which Xxxx
may produce or obtain during the course of this Agreement.
18. COVENANT NOT TO COMPETE. Xxxx acknowledges that its willingness to enter
into this Agreement constitutes a material inducement to On Stage to enter into
this written Agreement. Each party has carefully considered the nature and
extent of the restrictions upon him and the rights and revenues conferred upon
them under this Agreement. Each hereby acknowledges and agrees that: (1) the
same are reasonable in time and territory; (2) are designed to eliminate
competition which otherwise would be unfair to the other party; (3) do not
stifle the inherent skill and experience of such party; (4) would not operate as
a bar to such parties sole means of support; (5) are fully required to protect
the legitimate interest of such party; and (6) do not confer a benefit upon such
party disproportionate to the detriment to the other party.
Xxxx agrees that during the continuance of this Agreement and for a
period of five (5) years thereafter, it will not, on behalf of itself or on
behalf of any other person, company, corporation, partnership, or other entity
or enterprise, directly or indirectly, as an employee, proprietor, stockholder,
partner, promoter or otherwise, engage in any performance of a Show which
contains the use of more than two (2) impersonators, except as provided for in
Section 5.7.
19. VIOLATION OF COVENANTS. If any of the covenants or agreements contained in
Paragraph 16 through 18 hereof are violated, the violating party agrees and
acknowledges that such violation or threatened violation will cause irreparable
injury to the non-violating party and/or the Show and that the remedy at law for
any such violation or threatened violation would be inadequate, and that the
non-violating party will be entitled, in addition to any other remedies, to
injunctive relief without the necessity of proving actual damages. Both parties
agree that the provisions of this Paragraph shall survive the expiration or
termination of this Agreement or any part thereof, without regard to the reason
therefore. The non-violating party would be entitled to an injunction to be
issued by any court of competent jurisdiction, restraining the violating party
from committing or continuing any such violation of this Agreement.
20. FAILURE TO PERFORM. If Xxxx fails to perform as required under this contract
without just cause and fails to cure such non-performance within a reasonable
period of time, On Stage may
terminate this Agreement and/or the services of Xxxx immediately without notice
and without the payment of liquidated damages.
21. SEVERABILITY. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be illegal, inoperative,
unenforceable or invalid as applied to any particular case or in all cases, such
circumstances shall not have the effect of rendering such provision illegal,
inoperative, unenforceable or invalid in any other case or of rendering any
other provisions of the Agreement illegal, inoperative, unenforceable or
invalid.
22. GOVERNING LAW. This Agreement, and all questions relating to its validity,
interpretation, performance and enforcement (including, but not limited to;
provisions concerning limitations of action), shall be governed by and construed
in accordance with the laws of the State of Nevada.
23. ATTORNEY'S FEES. If any legal action, including an action for declaratory
relief, is brought to enforce the provisions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees in addition to any
other relief to which the prevailing party may be entitled.
24. NON-WAIVER. The waiver of failure of any party to enforce at any time any of
the provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce any such provision.
25. ENTIRE AGREEMENT: This Agreement constitutes a final written expression of
all the Agreements between the parties, and is the complete and exclusive
statement of those terms. It supersedes all understandings and negotiations
concerning the matters specified herein.
26. FORCE MAJEURE: The obligations of the parties hereto are subject to delays
and failure of performance due to Acts of Nature, strikes or other labor
disputes or troubles, unavailability of power or other utility or commodity,
civil disturbance, riot, war, armed combat (whether or not there has been an
official declaration of war), enactment of any law, issuance of any judicial
decree, announcement by any public official of a state of emergency, including
an action by the state in which this contract is to be performed or any other
occurrence beyond the parties control in the nature of force majeure which
interrupts or materially hampers or interferes with any performance of the Show.
If any of the aforementioned events should occur, neither party shall have any
obligation to the other with respect to such missed performance(s), including
but not limited to relieving On Stage of their duty to perform and relieving
Xxxx of its duty to pay the compensation related to said non-performance.
27. FRUSTRATION OF PURPOSE. If all or any portion of the venue in which the
terms of this Agreement are to be performed, is destroyed by fire, earthquake,
storm or any other natural cause which prevents presentation of the Shows, Xxxx
is excused from paying the contractual rates for
missed performances on a pro-rata basis. This shall also apply to strikes,
boycotts, epidemics or disturbances not exclusively under the control of Xxxx.
28. BINDING EFFECT: The contract shall be binding upon the heirs, executors,
administrators and assigns of Xxxx and any successors in interest of On Stage.
29. MODIFICATION: No change or modification of this Agreement shall be valid
unless the same be in writing and signed by all parties hereto.
30. CAPTIONS: The captions contained herein are not a part of this Agreement.
They are only for the convenience of the parties and do not in any way modify,
amplify or give full notice of any of the terms, covenants or conditions of this
Agreement.
31. CONSTRUCTION. For purposes of this Agreement, the language of the contract
shall be deemed to be the language of both parties and neither party shall be
construed as the drafter.
32. INDEMNIFICATION. Xxxx will defend, indemnify, save and hold On Stage
Entertainment, Inc., Legends in Concert, Inc., and any of its subsidiaries,
their officers, directors, agents, representatives, employees, heirs, and
assignees harmless from and against any and all actions, demands, causes of
action, judgments, liability, damages, penalties, losses, and expenses
(including attorneys' fees and costs) which may arise out of or by reason of the
negligent acts or omissions of Xxxx and/or their agents, employees, servants,
contractors, licensees, customers, or business invitees which may arise under
this Agreement.
33. INTELLECTUAL PROPERTY. Xxxx agrees that On Stage is only granting those
rights as are specifically mentioned herein and only for such period of time as
specifically stated herein. Upon the termination of this Agreement, whether
through the natural elapse of time or otherwise, all rights conferred by On
Stage hereunder will automatically revert back to On Stage without the necessity
of taking any affirmative action. The rights referred to herein shall include
all intellectual property of On Stage, including, but not limited to each of its
Show(s) as well as all aspects contained therein.
34. NOTICES. Any notice, consent, approval, request, demand or other
communication required or permitted hereunder must be in writing to be effective
and shall be deemed delivered and received when: (a) Personally delivered or if
delivered by facsimile, when electronic confirmation is actually received by the
party to whom notice was sent, or (b) If delivered by mail whether actually
received or not, at the close of business on the third (3rd) business day
following a day when placed in the United States Mail, postage prepaid,
certified or registered mail, return receipt requested, at the addresses set
forth below (or to such other address as any party shall specify by written
notice so given), and shall be deemed to have been delivered as of the date so
personally delivered or mailed. The address of On Stage for purposes of this
paragraph is as follows: Xxxxxxxxxxx X. Xxxxx, Esq., 0000 X. Xxxxx, Xxxxx 0, Xxx
Xxxxx, Xxxxxx 00000. Address for Xxxx shall be as follows:
----------------------------------------.
35. ORIGINALITY. Facsimile signatures hereon shall be deemed original for all
purposes. This Agreement may be executed in any number of counterparts.
IN WITNESS WHEREOF, the parties have executed this ____ day of May,
1997.
---------------------------- ---------------------------
Xxxx X. Xxxxxx Xxxxxxxx Xxxx
Chief Executive Officer President
Legends in Concert, Inc. Xxxx Management
Xxx Xxxxxx Xxxxxxxxx & Xxxxxxxx Xxxxx - Xxxxxx, Xxxxxxx
The Company will begin producing and presenting a [full]-scale Legends
production at the Estrel Residence & Congress Hotel in Berlin, Germany on
September 12, 1997. The Company has a _______-wall agreement with Xxxx
Management, the hotel's [owner?], which terminates on December 31, 1997, but may
be extended for five successive two year periods by Xxxx management upon ninety
days notice and subject to an increase in compensation to the Company under the
agreement. The agreement provides that the Legends show be performed a maximum
of six days per week or eight performances per week. The Estrel Residence &
Congress Hotel agreement is a "guaranteed" arrangement under which the Company
receives a guaranteed weekly fee.
