As of January 10, 2008
EXHIBIT
10.1
As of
January 10, 2008
00000
Xxxx Xxxxxxx Xxxx.
00xx
Xxx.
Xxx
Xxxxxxx, XX 00000
ATTN: Xxxxx
Xxxxxxxxx
RE: "DEAD OF
NIGHT"
Gentlemen:
This will confirm the basic terms of
the agreement between Platinum Studios ("Platinum") and Hyde Park Entertainment,
Inc. ("HPE") with respect to the proposed theatrical motion picture presently
entitled "DEAD OF NIGHT" (the "Picture"), as follows:
1. The
Picture shall be based on the screenplay "Dead of Night" (the "Screenplay"),
written by Xxxxxx Xxxx Xxxxxxxx and Xxxxxx Xxxxxxxxxxx ("Xxxxxxxx/Xxxxxxxxxxx"),
which Screenplay is based on the comic book series entitled "Dylan Dog" (the
"Comic Book Series") created by Tiziano Sclavi ("Sclavi"). The
Screenplay (as the same may be revised) and all the characters, settings,
worlds, designs, illustrations and storylines contained within the Screenplay
are sometimes collectively referred to herein as the "Property". It
is understood and agreed that the Property shall not include any characters,
settings, worlds, designs, illustrations and/or storylines in the Comic Book
Series except to the extent also included in the Screenplay, provided if a
character, setting or world is described in the Screenplay, then the design or
illustration thereof contained in the Comic Book Series shall also constitute
part of the Property. Notwithstanding the foregoing, the generic use of
creatures such as: zombies, werewolves, ghouls, ghosts and vampires and other
dead and undead characters and the crimes committed between them or between them
and humans and all of the generic human characteristics of their personalities
and human activities in which they engage are not exclusive.
2. Platinum
represents and warrants that it owns the Rights (as defined in Paragraph 7
below) in and to the Property, subject only to reimbursing Disney for certain
costs incurred by Disney in connection with the Screenplay in the amount of
$225,000 (plus interest from 2001). This amount is to be budgeted and is not due
or payable to Platinum and is not to be deducted from any amounts due Platinum.
Platinum shall deliver the chain of title documentation relating to the Property
to HPE concurrently with the execution of this Agreement. Platinum
represents and warrants that any prior agreements entered into by Platinum with
respect to the Property, including the prior agreement with Arclight, have
terminated, and Platinum shall indemnify HPE from any claim in respect
thereof.
3. HPE
shall arrange for the financing of the Picture, subject to HPE approving the
final screenplay, chain of title, budget, principal cast, key crew, director and
principal locations. The principal cast, director, budget and
screenplay shall be subject to the mutual approval of HPE and Platinum, with HPE
having the tie break. For purposes of determining the budget for the
Picture, the budget shall include customary, arms-length third party costs, bond
fee, contingency, third party banking costs, a producer's fee to Xxxxx Xxxxxxxx
Xxxxxxxxx Productions, Inc. (SMRP) of $250,000 (of which 50% is
allocated to Xxxxx Xxxxxxxxxx, subject to any advances or
adjustments paid by Xxxxxxxxx and/or Platinum to Rustemagic), a
$500,000 producer's fee to HPE, and a rights fee to Platinum and third parties
unaffiliated with Platinum ("Rights Holders") of $500,000 (of which seventy-five
percent (75%) is payable to Platinum and twenty-five percent (25%) is allocated
to SAF B.V.). The budget shall be approximately $15 million,
including bond, contingency and financing costs. The Rights Holders
shall be entitled to a deferred rights fee of $750,000 payable as provided for
in Paragraph 6(c)(v) below (of which seventy-five percent (75%) is payable to
Platinum and twenty-five percent (25%) is allocated to SAF
B.V.). Platinum represents that no more than
seventy-five percent (75%) of the rights fee or seventy-five percent
(75%) of the deferred rights fee shall be paid directly or indirectly to, or on
account of, Platinum or any of its affiliates or any individuals having an
interest in Platinum. SMRP shall be entitled to a deferred producers fee of
$250,000 payable as provided for in Paragraph 6(c)(iv) below (of which fifty
percent (50%) is payable to SMRP and fifty percent (50%) is allocated to Xxxxx
Xxxxxxxxxx, subject to any advances or adjustments paid by Xxxxxxxxx and/or
Platinum to Rustemagic). SMRP represents that no more than
fifty percent (50%) of the producer fee or fifty percent (50%) of the
deferred producers fee shall be paid directly or indirectly to, or on account
of, SMRP, or any of its affiliates or any individuals having an interest in SMRP
(which deal will be negotiated separately from this agreement).
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4. HPE
will begin production of the Picture on or before September 30, 2008 (the
"Outside Date"), subject to the production lender approving the chain of title
to the Picture on or before January 31, 2008, and if the chain of title is not
so approved by such date, the Outside Date shall be extended by the amount of
time between January 31, 2008 and the date upon which the chain of title is
approved. If the production of the Picture does not begin prior to
the Outside Date, then all Rights in the Property shall revert back to Platinum,
provided that if production has not started by the Outside Date and Platinum has
received written confirmation from the production lender that the financing is
in the process of being completed, then the Outside Date shall be extended for
an additional ninety (90) days to accommodate the closing of said
financing. If such Rights revert back to Platinum and Platinum enters
into an agreement with Oceana to finance “DEAD OF NIGHT” within one (1) year
after said reversion, then the terms of this Agreement shall be
reinstated.
5. With
respect to distribution of the Picture, the following shall apply:
(a) Foreign. HPE
(or its affiliate) shall be the exclusive foreign sales agent for the Picture
for which it shall receive a ten percent (10%) sales fee (inclusive of any fees
to subagents as opposed to fees to actual distributors), a marketing fee (to
cover film markets) of $75,000 and direct accountable sales expenses not to
exceed $250,000 (the marketing fee and sales expenses being part of the budget
for the Picture). A sales agency agreement in HPE's customary form
(as approved by the production lender and financier) shall be entered into with
respect to the Picture. It is agreed that HPE shall not make any
sales to affiliated buyers without Platinum's approval, and representatives of
Platinum shall have access to HPE's sales offices/booths at markets at which the
Picture is being sold.
(b) Domestic. The
Picture shall be released by a major studio or a distribution affiliate or
division thereof (e.g., Fox Searchlight, Focus Features) or mini-major (e.g.,
Lions Gate). HPE shall use good faith efforts to arrange for the
domestic distribution deal. HPE shall receive a five percent (5%)
override fee on the domestic distribution deal.
6. The
revenues from the exploitation of the Picture actually received by HPE (in a
separate account for the Production at a mutually approved collection agent with
Fintage House being pre-approved, it being understood that until the collection
account agreement has been executed with the collection agent, all revenues
received in respect of the Picture shall be deposited in a segregated HPE
account) shall be allocated as follows (parties acknowledge that HPE will take
no sales fee from any and all revenues associated with tax subsidies or
government incentives):
(a) Foreign
Revenues. HPE shall receive its sales fee and recoup its
foreign sales expenses and costs referred to in Paragraph 5(a) above to the
extent not included in the budget, provided that any additional expenses in
excess of $250,000 have been approved by Platinum not to be unreasonably
withheld, with the balance going into the "pot".
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(b) Domestic
Revenues. HPE shall recoup its five percent (5%) override fee,
with the balance going into the "pot".
(c) The
"pot" shall be allocated as follows:
(i) First,
to HPE until it has recouped the direct-out-of-pocket production costs of the
Picture, plus any incurred unaffiliated third party interest, financing costs
and other costs (bank charges, legal fees, etc.) paid to HPE's lenders, equity
investors and other unaffiliated third party financiers.
(ii) Second,
to HPE in payment of an overhead fee to HPE and Platinum equal to ten percent
(10%) of the direct cost budget of the Picture, which shall be allocated fifty
percent (50%) to HPE and fifty percent (50%) to Platinum.
(iii) Third,
in payment of any residuals payable by HPE or its affiliates (including any
reserves for said residuals) and any third party participations payable prior to
"breakeven"
(iv) Fourth,
the next $2 million shall be allocated thirty-seven and one-half percent (37
1/2%) to the Rights Holders (in payment of their deferred rights fee), twelve
and one-half percent (12 1/2%) to SMRP (in payment of its deferred producer's
fee) and fifty percent (50%) to HPE.
(v) The
balance shall be allocated seventy percent (70%) to HPE and thirty percent (30%)
to Rights Holders; provided, however, that third party creative participations
payable after "breakeven" shall reduce Rights Holders' participation to a floor
of twenty percent (20%). HPE shall bear all third party financial
participations from its share. Third party creative participations
shall be approved by Platinum, said approval not to be unreasonably withheld;
provided, however, any participations payable to the principal cast and
director, which are consistent with their prior deals, are deemed
pre-approved.
7. HPE
shall acquire all Rights in the Property in all languages and media (now known
or hereafter developed), including, without limitation, all live-action and/or
animated motion picture, live-action and/or animated television ["free, pay,
basic cable, satellite, etc."], radio, video cassette and disc, internet, rental
and lending, and all allied, ancillary and subsidiary rights, including, without
limitation, pay-per-view, video-on-demand, music publishing, soundtrack
recording, prequel, sequel and remake rights, promotion and advertising rights
(the "Rights"), in perpetuity, throughout the universe excepting only the
Reserved Rights as defined and set forth in Exhibit "B"; provided that the
Rights acquired in the Property hereunder shall not be exclusive with respect to
those ancillary characters and settings identified in Exhibit "A" attached
hereto (collectively, the "Non-Exclusive Elements"). All the elements
of the Property not identified in Exhibit "A" shall be referred to as the
"Exclusive Elements." Platinum shall be entitled to exploit all
Rights in the Non-Exclusive Elements outside the parameters of this Agreement
and without any obligation to or restriction by HPE, provided that Platinum does
not use the name of the Non-Exclusive Elements in connection with its
exploitation thereof. By way of example, Platinum shall be entitled
to develop a motion picture based on any of the Non-Exclusive Elements without
the consent or participation by HPE.
8. The
copyright in the Picture shall be owned by HPE.
9. (a) If
the Picture is not made as a Canadian content picture, then the following shall
apply. Platinum shall designate one producer credit, one executive
producer credit and two co-producer credits. The co-producer credits
shall be on screen and not included in paid advertising. Platinum's
producer credit shall be in second position to the producer credit accorded to
Xxxxx Xxxxxxxx. Platinum shall be entitled to a production credit
which shall be shared with Xxxxx Xxxxxxxx'x production credit, with Platinum in
second position. If the financier does not receive a logo credit on
the screen, Platinum shall be entitled to an animated logo production credit
which will follow the animated logo credit accorded to HPE. If the
financier does receive a logo credit on the screen, then Platinum's right to
receive a logo credit on the screen shall be subject to the approval of the
domestic distributor. If Platinum is entitled to receive a logo
credit on the screen, Platinum will, subject to the approval of the domestic
distributor of the Picture, also be entitled to a “bug” or logo credit on all
printed material immediately to the right or left of the HPE “bug” or logo
credit. Except as provided, all credits are in the main title (if there are main
title credits) and paid ad credits and tied in all respects (i.e. with respect
to prominence, placement, excluded ads, etc.)
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(b) If
the Picture is made as a Canadian content picture, then the following shall
apply. Platinum shall designate one executive producer credit (Xxxxx
Xxxxxxxx Xxxxxxxxx). Platinum's executive producer credits shall be
in second position to the executive producer credit accorded to Xxxxx
Xxxxxxxx. If permitted by the Canadian content rules and regulations,
Platinum shall be entitled to share a production type credit with Xxxxx
Xxxxxxxx, with Platinum in second position, provided the form of such production
credit, if allowed, under Canadian content rules and regulations shall be in a
form permitted by such rules and regulations. If the financier does
not receive a logo credit on the screen, Platinum shall be entitled to an
animated logo production credit which will follow the animated logo credit
accorded to HPE, if allowed under Canadian content rules and regulations, and
shall be in a form permitted by such rules and regulations. If the financier
does receive a logo credit on the screen, then Platinum's right to receive a
logo credit on the screen shall be subject to the approval of the domestic
distributor. If Platinum is entitled to receive a logo credit on the
screen, Platinum will, subject to the approval of the domestic distributor of
the Picture, also be entitled to a “bug” or logo credit on all printed material
immediately to the right or left of the HPE “bug” or logo credit, if allowed
under Canadian content rules and regulations, and shall be in a form permitted
by such rules and regulations.. Except as provided, all credits are in the main
title (if there are main title credits) and paid ad credits and tied in all
respects (i.e. with respect to prominence, placement, excluded ads, etc.), if
allowed, under Canadian content rules and regulations shall be in a form
permitted by such rules and regulations.
(c) HPE
confirms that there will be no other production company credits or full Producer
credits (other than those accorded to a financier, a lead actor or the director)
without Platinum’s approval.
(d) All
other credits for the Picture shall be determined by HPE.
10. (a) If
HPE elects, in its sole discretion, to produce a theatrical prequel/sequel or
theatrical remake based on the Picture and/or the Property ("Subsequent
Production"), then Platinum shall be a producer of each Subsequent Production
(with the financial terms for the Subsequent Production that has a budget of at
least ninety percent (90%) of the budget of the Picture being no less favorable
to Platinum than the financial terms of this Agreement including the payment of
any rights fee, and if the budget of the Subsequent Production is less than
ninety percent (90%) of the budget for the Picture, then the floor of Platinum's
producer's fee [and the rights fee] shall be reduced prorate (based on the ratio
between the budget of the Subsequent Production to the budget of the Picture) to
a floor of no less than fifty percent (50%) of Platinum's producer fee and the
rights fee for the Picture). The right to produce Subsequent
Productions shall revert to Platinum if by the earlier of five (5) years after
commencement of principal photography of the Picture (or the commencement of
principal photography of any Subsequent Production) or four (4) years following
the initial release of the Picture (or the release of any Subsequent Production)
(the "End Date") HPE has not produced (i.e., starts principal photography) or
committed to produce (and starts principal photography within six (6) months
after the End Date) a Subsequent Production. For avoidance of doubt,
if HPE produces or commits to produce (and starts principal photography within
six (6) months after the End Date) a Subsequent Production within five (5) years
after release of the Picture or the release of any Subsequent Production, there
shall be no reversion hereunder, and if there is a reversion, Platinum shall
only have the right to base any further productions on the Property and not on
the Picture or any Subsequent Production or incorporate any characters,
materials or elements from the Picture or any Subsequent Production that are not
contained in the Property.
(b) With
respect to sequential television productions (series, MOW's or mini-series),
direct to video productions, internet productions, including websites and mobile
productions based upon the Picture and/or the Property ("Sequential
Productions"), if any Sequential Productions are produced or committed to be
produced prior to the End Date (as it may be extended), then HPE and Platinum
shall be 50/50 partners on such productions, with HPE and Platinum equally
sharing all fees and participations (with third party participations "off the
top"), it being understood that any rights fees in respect of such productions
shall be borne by Platinum's 50% share. With respect to financial and
creative matters with respect to any Sequential Productions, HPE and Platinum
shall have mutual approval thereof, except if any Sequential Production is based
upon or incorporates elements from the Picture or any Subsequent Production, HPE
shall have the final say in the event of any disagreement, and if any Sequential
Production is not based upon or does not incorporate any elements from the
Picture or any Subsequent Production, Platinum shall have the final say in the
event of any disagreement. It is understood and agreed, however, that
where Platinum may have the final say, (a) Platinum will not invoke such right
to proceed with a Sequential Production if HPE believes it will affect HPE's
opportunity to produce a Subsequent Production, and (b) Platinum will not invoke
such right to prevent a Sequential Production from occurring in order to delay
such Sequential Production until after the End Date (as it may be extended) so
as to deprive HPE of its participation therein.
11. Any
overbudget costs that are not advanced by the completion bond company shall be
subject to the mutual approval of HPE and Platinum, with HPE having the tie
breaker.
12. The
services of Platinum's representatives in connection with the Picture shall be
on a non-exclusive basis and two (2) of Platinum's representatives shall be
entitled to visit the set of the Picture for up to two (2) weeks and each of
such representatives shall receive a first-class roundtrip airfare plus hotel
accommodations and a reasonable per diem or three Platinum representatives shall
be entitled to visit the set of the Picture with one representative able to
visit the set for up to two (2) weeks and two (2) representatives able to visit
the set for one (1) week each with one (1) Platinum representative receiving
first-class roundtrip airfare plus hotel accommodations and a reasonable per
diem and two (2) Platinum representatives receiving business-class roundtrip
airfare plus hotel accommodations and a reasonable per diem. The
costs for the foregoing shall be subject to the budget of the Picture and the
approval of the bond company.
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13. Between
HPE and Platinum, and to the extent HPE has consultation rights with the U.S.
distributor of the Picture, HPE shall meaningfully consult with Platinum
regarding the initial U.S. marketing campaign and initial release pattern, with
HPE having the final say in this regard. Regarding the international release of
the Picture, to the extent HPE has consultation rights with the applicable
distributor, HPE shall meaningfully consult with Platinum regarding the
international release pattern and the international marketing strategy of the
Picture, with HPE having the final say in this regard.
14. This
Agreement shall not be assigned by either HPE or Platinum, except to an
affiliated entity, or by HPE for purposes of financing the Picture and entering
into distribution agreements relating thereto.
15. Platinum
and HPE intend to enter into a more formal agreement containing the terms set
forth herein as well as such other terms as are customary in agreements of this
nature. HPE also intends to enter into an agreement with SMRP for the
producing services of Xxxxx Xxxxxxxx Xxxxxxxxx in connection with the
Picture. Unless and until execution of such more formal agreement and
the agreement with SMRP, this will constitute a binding agreement between
Platinum and HPE.
If the foregoing accurately sets forth
our agreement, please so indicate by signing below.
Very truly yours,
| HYDE PARK ENTERTAINMENT, INC. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
| Chairman | |||
| AGREED TO AND ACCEPTED: | |||
| PLATINUM STUDIOS | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx Xxxxxxxxx | |
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EXHIBIT
"A"
NON-EXCLUSIVE
ELEMENTS
Corpus
House
Big Al
and Big Al's Body Shop
The
generic use of zombies, werewolves and vampires and the crimes committed between
them or between them and humans and all of the generic human characteristics of
their personalities and human activities in which they engage are not
exclusive.
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EXHIBIT
"B"
RESERVED
RIGHTS
The following rights are reserved to
Platinum (the "Reserved Rights") for Platinum's use and disposition, subject to
the provisions of this Agreement:
1. Publication
Rights. The right to publish and distribute the comic books
based on the Screenplay and the Comic Book Series and any "Subsequent Works"
("Comic Book Publication Rights"), and the right to copyright such publications
in the name of Platinum. In connection with such Comic Book
Publication Rights, HPE shall give good faith consideration to permitting
Platinum to utilize the HPE-created "key art" for the Picture and any subsequent
production in connection with Platinum's exercise of the Comic Book Publication
Rights, and if it agrees to do so, HPE and Platinum shall negotiate an
appropriate fee/royalty to the Picture in consideration for HPE granting such
permission, it being understood that the distributor of the Picture may have the
right to approve of Platinum's use of the key art. The Comic Book
Publication Rights shall include comic books (of all sizes and dimensions),
graphic novels, strips, pages, serializations, panels, art, books, posters,
prints, cards, portfolios and limited and alternate edition versions of all of
the above; such Comic Book Publication Rights shall be anywhere in the world, by
any publisher, in any printed or in electronic delivery format, including but
not limited to, comics on CD's or CD-ROM, internet, other electronic uses now
known or hereafter devised, provided that such uses contain: (i)
non-moving images, or (ii) so-called "comic book style" animation (but, for the
avoidance of doubt, such animation shall not be photorealistic, i.e., intended
to look like live action) produced initially for the internet or wireless with
each individual production not to exceed fifteen (15) minutes in
length. Notwithstanding the foregoing, HPE shall have the right, for
the advertising and exploitation purposes granted to HPE under this Agreement,
to use excerpts from the Screenplay, not to exceed the lesser of 5,000 words or
ten percent (10%) of the Work, in order to produce and publish stories,
synopses, excerpts and summaries of and from the Screenplay or any Motion
Pictures based on the Screenplay, as serials or otherwise, and with or without
illustrations by photographs, drawings or cartoons.
2. Platinum's Reserved
Merchandising Rights.
(a) Non-Picture Related Classic
Merchandise. The exclusive right to exploit, manufacture, sell
and/or distribute "Non-Picture Related Classic Merchandise" (as defined
below). For the purposes of this Agreement, "Non-Picture Related
Classic Merchandise" shall be defined as all forms of merchandise based on the
Screenplay or the Comic Book Series but which may not incorporate any element of
the Picture not already contained in the Screenplay or the Comic Book Series
and/or any element (including without limitation new characters) created by or
for HPE in connection therewith (the "Film Elements"). Platinum shall
be strictly prohibited from using any Film Elements in connection with, among
other things, the manufacturing, selling, advertising and/or distribution of the
Non-Picture Related Classic Merchandise without the express prior written
approval of HPE.
(b) Picture-Related
Merchandising Rights. The exclusive right to exploit,
manufacture, sell and/or distribute "Picture-Related Merchandise" (as defined
below). For purposes of this Agreement, "Picture-Related Merchandise"
shall be defined as all forms of merchandise based on any element of the Picture
(and/or any Subsequent Production and/or any Sequential Production) (which is
not already contained in the Screenplay or the Comic Book Series) and/or any
element, including without limitation, new characters created by or for HPE in
connection with the Picture, any Subsequent Production or any Sequential
Production.
(c) Interactive Software Game
Rights. Platinum's Reserved Merchandising Rights shall also
include "Interactive Software Game" rights (as defined below) in and to the
Screenplay, the Comic Book Series and/or the Picture, any Subsequent Production
and/or any Sequential Production, which Interactive Software Games based on the
Work may be manufactured, sold, distributed and exploited on any and all media
upon which Interactive Software Games are played, whether now known or hereafter
devised (including without limitation cartridge and disc based formats or
transmitted wirelessly or on-line by download or on mobile
devices). "Interactive" shall be defined as any device or component
that responds to the actions or input of a user. "Game" shall be
defined as any activity with a set of rules that govern interaction which is
designed for the purpose of entertainment, whether played individually or with
others. "Software" shall be defined as a series of encoded
instructions compiled in executable form in any programming language now
available or hereinafter devised throughout the universe and specifically
including instructions imbedded directly on silicon or other chipsets, which
define the interactive operability of an activity. "Interactive
Software Games" shall be deemed to include the following (provided each is an
"Interactive Software Game" as defined above): computer games, video and
electronic games (including but not limited to home video games, pay-to-play
standalone and multiplayer platform games), coin-operated games (but not slot
machines), cartridge based hand-held games, cellular telephone games, flash
games and shockwave games in any storage, delivery or transmission medium,
whether now existing or hereafter developed, including without limitation,
discs, tapes and other magnetic media, game cartridges and other read-only
memory and electronic storage devices, CD-ROM, DVD, Blue-Ray and other optical
storage devices, radio, television, videotext and other modes of direct or
network transmission, digital encoding and streaming, broadband applications and
web applications.
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