[Material marked with an asterisk has been
omitted from this document pursuant to a
request for confidential treatment and has
been filed separately with the Securities and
Exchange Commission.]
CHARACTER COLLABORATION
AND COMIC BOOK PUBLISHING AGREEMENT
AGREEMENT entered into as of November 1997 (the "Effective date") by and among
AllStar Arena Entertainment Inc, A California Corporation, ("AllStar") having
its principal place of business at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx; Xxxx Xxxxxx, Xxxx Xxxxxx Properties, Inc., ("Player")
x/x XXX Xxxxxxxxx, 00000 Xxxxxxxxxx Xxxx. lndianapolis,.Indiana, 46256.
DEFINITIONS:
For the purpose of this contract, the term "Player" shall mean both Xxxx
Xxxxxx individually and Xxxx Xxxxxx Properties, Inc. For the purpose of this
contract, the term "AllStar" shall mean AllStar Arena Entertainment a
California Corporation. The terms "character" and "Xxxx" shall be held to
mean the actual animated superhero cartoon/ comic book character based on
Xxxx, "The Mailman Xxxxxx as jointly developed by AllStar Arena
Entertainment, Xxxx Xxxxxx and Xxxx Xxxxxx Properties, Inc., Xxxx Xxxxxx
Properties, Inc. will retain the right to Player's name, likeness, image,
nickname, trademarks etc. Xxxx Xxxxxx Properties, Inc., grants to AllStar the
right to use Player's name, likeness, image, nickname, for the purpose of
developing the Character and Xxxx XxXxxxx the term of this Agreement.
WITNESSETH.
Whereas the parties have and will collaborate on the creation and promotion
of a new comic book or series of comic books incorporating the character and
storyline of NBA player Xxxx Xxxxxx, and incorporating Xx. Xxxxxx'x likeness
and image.
Whereas, AllStar, in conjunction with Player, will write, illustrate,
produce, publish, and otherwise exploit the Comic Book subject to the terms
and the conditions of this Agreement, and;
Whereas, AllStar will arrange for the merchandising activities related to the
Xxxx Xxxxxx character subject to the terms and conditions of this Agreement.
For the purpose of this Agreement, "merchandising" shall include, but not be
limited to the sale of film, television, animation, interactive software and
any other medium currently in use or hereinafter devised, toys, trade
paperbacks, periodicals, clothing, theme park sales and other merchandising
related items encompassing the Character, Xxxx or logo and all normal forms
of merchandising.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties, the parties agree as
follows:
1. COMIC BOOK
AllStar will illustrate pictorial and graphic versions of the Player's
character depicting his exploits and superstar activities as one of the
leading players iii the National Basketball Association, accompanied by
dialogue and related literary text based upon the Xxxxxx character, in forms
suitable for publication in comic books. Each edition of the Comic Book shall
hereinafter be referred to as an "Issue" of the Comic Book.
2. APPROVALS/CONSULTATIONS
Except as set forth herein, AllStar, and Player, shall have joint control
over the content of the Comic Book. AllStar shall submit production budgets
on request. Player shall have approval of the use of his name and likeness
throughout the term of the Agreement, with such approval not to be
unreasonably withheld. Player must approve or reject each submission within
fifteen (15) business days after AllStar submits the same to him.
3. ALLSTAR'S REPRODUCTION AND DISTRIBUTION
3.1 Grant
(a) Subject to the terms and conditions of this Agreement, during the term of
this Agreement Player hereby grants to AllStar the worldwide, exclusive
irrevocable right to reproduce, publish, print, reprint, and distribute the
Comic Book and the Character, with his approval, in whole or in part in any
form, in any language and in any medium now known or hereafter developed and
to advertise and promote the Comic Book, the Character and the Xxxx in any
medium. Player shall have approval of the use of Xx. Xxxxxx'x name and
likeness, with such, approval not to be unreasonably withheld.
(b) The rights granted in Section 3.1 (a), above, include rights with respect
to film, video, or any other audio-visual work, relating to the Character or
(iii) promotional material or activity using or incorporating the Character
or the Xxxx.
(c) Except as specifically provided in this Agreement, Player shall not grant
to any third party the rights granted in Section 3.1 (a) or (b) with respect
to (i), a comic book, or (ii) film, video, or any other audio-visual work,
relating to the Character or (iii) promotional material or activity using or
incorporating the Character or the Xxxx.
3.2 AllStar's Responsibilities.
(a) Subject to the provisions of this Agreement and of Player with its
responsibilities hereunder, AllStar shall use its best efforts consistent
with industry norms to advertise, market, promote and sell copies of each
Issue of the Comic Book which Player has approved pursuant to Section 2 of
this Agreement.
(b) AllStar undertakes to maintain the high quality of the Comic Book
consistent with the quality which AllStar maintains for its other comic books.
3.3. Player's Responsibilities.
(a) Throughout the term, Player shall assist AllStar in the promotion of the
Comic Book as specified in this Agreement and as the parties may reasonably
agree from time to time, but in no event less than reasonable efforts. All
of Player's reasonable-out-of-pocket expenses directly related to such
assistance shall be promptly paid or reimbursed by Allstar. Player will be
reimbursed of all out-of-pocket expenses within fourteen (14) days after
AllStar receives the appropriate documentation of such expenses. Any single
expense in excess of $1,000 must be pre-approved by AllStar in writing.
(b) Upon fourteen ( 14) days written notice by Allstar, Player agrees to make
himself available for one (1) personal appearances per calendar year for
promotional events to publicize the Comic Books and Xxxx, so long as said
appearances do not conflict with any professionalcommitment or previously
scheduled engagements. At these appearances there will be no obligation for
Player to give autographs. Any situation involving autographs will be
negotiated separately.
(c) Player acknowledges that the Character is based on his likeness and that
the Comic book (regardless of medium including, print, film, video, and
computer) consuming public will and have come to associate him with the
Character to be developed over time under the terms of this Agreement.
Therefore, Player agrees that during the full term of this Agreement and
any later extensions thereof, it will not portray or represent any other
comic book character and will not make appearances for or on behalf of, and
will not lend any of his Collaborative data (as defined in section 4.3 of
this Agreement) for use in conjunction with any comic book, comic book
character, or comic book publisher without the prior written consent of
Allstar, with such approval to be granted in Allstar's sole and exclusive
discretion, which approval shall not be unreasonably withheld.
(d) Player warrants that it will not willfully or by gross negligence act to
impair the value of the Comic Book, the Character, or the Xxxx. In
particular, Player shall not comport himself in a way that would disparage
or diminish the value of the developed Character or knowingly bring
negative publicity to the Character, Comic Book, or Xxxx.
3.4 Credits. Each party hereto shall receive the following credits:
In connection with all issues of the Comic Book and all videos, television
productions, and films, all credits shall be attributed jointly and severally
to: Allstar Arena Entertainment, Inc., and Xxxx Xxxxxx, as "creators", Xx.
Xxxxxxx, and Xx. Xxxxxxx will be attributed the title of Executive Producers.
3.5 Late Shipment of the Comic Book. In the event that an issue of the Comic
Book cannot be shipped on schedule such that it can be shipped only on a
"returnable basis", (i.e., that copies may be returned for refund or credit)
with the prior consultation of Player, Allstar shall have the right whether to
ship same on such returnable basis. The parties hereto agree that additional
time will be allowed for the sale of, and revenue payments for, any Issues let
out on a consignment basis.
3.6 Allstar's Merchandising Rights
Subject to the terms and conditions of this Agreement, Player hereby grants
to Allstar during the term of this Agreement the worldwide, irrevocable right
to exploit and otherwise use the Character and the Xxxx (defined below) on or
in connection with any and all products or services whatsoever, including but
not limited to, directly and indirectly, (through agents, licensees,
sublicensees, distributors, etc. of Allstar's choosing) merchandising of all
of the foregoing. Xxxxxx Properties, Inc. c/o CMG, will also have the right
to exploit and otherwise use the Character and Xxxx on or in connection with
any and all products or services whatsoever, including but not limited to,
directly and indirectly, (through agents, licensees, sublicensees,
distributors, etc. of Its/their choosing) the merchandising of all the
foregoing, with the express proviso that after CMG takes its standard
percentage from merchandising/licensiing the Character and/or Xxxx, the
balance of any revenue will be split between Player and Allstar in strict
accordance with the terms of this Agreement. Player and Allstar both agree
that no use of Character and/or Xxxx will be made without the prior consent
of both parties, with such consent not ot be unreasonably withheld.
4. RIGHTS
4.1 Rights in the Character and the Xxxx.
(a) The (i) Character, and (ii) the Xxxx or any variations thereof in connection
with the Character (the "Xxxx") and all copyright and trademark rights shall be
owned 50% by Allstar and 50% by Player. All decisions affecting the use and
exploitation of the Character and Xxxx shall be jointly agreed upon by Allstar
and Player.
(b) The parties agree that the successful exploitation, merchandising and
licensing of the Character and the Xxxx will depend on the parties agreeing
upon the appropriate exploitation, merchandising and licensing of the
Character and the Xxxx. Therefore the parties agree that any use,
exploitation, merchandising or licensing related to the Character or the
Xxxx not specifically granted herein shall be upon the unanimous written
agreement of the parties. Further, Player agrees that he will not use,
exploit or license or grant to any third party the right to use, exploit or
license the Character or the Xxxx except as provided in the previous
sentence. Further, Allstar acknowledges tht Player retains the right to
approve/not approve any merchandising and/or licensing program presented
to him.
4.2 Rights in the Comic Book.
(a) As among the parties, the Comic Book and all copyright and trademark rights
to all original literary materials and characters therein which first
appear in the Comic Book shall be owned 50% by Allstar and 50% by Player.
The parties acknowledge that stock character profiles and standard scenes a
faire are excluded from claims of joint ownership. The term "Stock
Character Profiles" shall be held to mean any and all characters created by
Allstar that appear in the project but are specifically based on actual
persons, living or dead. The term "Standard Scenes A Faire" shall be held
to mean the background, foreground, and settings created by Allstar in
which the action takes place.
(b) The parties agree that Allstar, in its sole discretion, can elect to put
the logo of Allstar Arena Entertainment (or any such other distributor
approved by Player, not to be unreasonably withheld or delayed) on each
Issue of the Comic Book. Allstar shall have the right to have a copyright
notice and/or trademark in its name. In connection with Allstar's
exploitation of its rights hereunder, Player acknowledges that it will not
acquire any rights of any kind whatsoever in and to (i) the names or marks
of Allstar Arena Entertainment Inc. or any variation thereof, or (ii) any
other name or xxxx or other rights owned by Allstar, other than as
specifically set out in Section 4.1 (a) and 4.2 (a) hereof. However, Player
shall retain the right to use in any way it sees fit any pre-established
logos or marks on him which pre-date the existence of this Agreement.
4.3 Allstar's Exclusive License to Use the Character, Marks, and the
Collaborator Data Solely in Connection With the Distribution of the Comic Book .
Player hereby grants to Allstar the exclusive right to use (i) the Character,
(ii) the Marks, and (iii) his name, signature, biographic data and photograph or
likeness ("Collaborator Data") in advertising and promotional material in
connection with the Comic Book, including its promotion, sale and distribution.
Allstar shall submit to Player for its prior written approval, not to be
unreasonably withheld or delayed, all proposed materials which incorporate any
Collaborator Data.
[Material marked with an asterisk has been
omitted from this document pursuant to a
request for confidential treatment and has
been filed separately with the Securities and
Exchange Commission.]
4.4 Further Assistance.
Each party agrees that, at the request of another party, and without any further
consideration, it will, during the term of this Agreement and thereafter,
promptly execute and deliver to the other all instruments and documents (after
reasonable review by legal counsel) and do all things which may be reasonably
necessary to carry out the provisions of this Agreement.
4.5 Copyright and Trademark Notices.
The Comic Book, and where possible and appropriate, all other uses of the
Character and the Xxxx, shall bear a copyright and trademark notice in the names
of AllStar Arena Entertainment, and Player, i.e. TM/ Xxxx Xxxxxx license
authorized by XXX Xxxxxxxxx
4.6 Survival.
The provisions of this Section 4 shall survive any termination or expiration of
this Agreement.
5. ROYALTIES AND PAYMENT.
5.1 Comic Book (Section 3.1) Publishing Royalties.
(a) Provided that the Comic Book is published and distributed, (I) Player shall
receive * percent (*) of the gross i.e. the wholesale price of the comic
book, profits, if any, collected by Allstar in connection with the distribution
and sale of the Comic Book as to the first 15,000 units sold; * percent
(*) of the gross profits, if any, collected by Allstar as to the next 15,000
units sold, or units 15,001 through 30,000, * percent (*) of the gross
profits, if any, on the next 20,000 units sold, or units 30,001 through 50,000,
and * percent (*) of the gross profits, if any, on all units sold in
excess of the first fifty thousand as specified above.
(b) For purposes of this Section 5.1, "gross profits" is defined as the amount
of gross receipts (less all returns) collected by Lobito from the sale of the
Comic Book in all markets. No royalties shall be paid on copies furnished
without charge, and not for resale to the parties, or for review, advertising or
promotional purposes and furnished without charge.
(iv) As an additional accommodation, at Player's request, Allstar agrees to
produce up to five thousand (5,000) promotional quality comic books per Issue.
These promotional books will be delivered to various civic, charitable, youth,
church, benefit or community service organizations chosen by him, in connection
with any related personal appearances by Player.
(c) Other than for advances from licensee(s) as noted in Section 5.3 (b) below,
Player will receive his share of any and all monies due to him no later
than thirty (30) days after the close of every calendar quarter during the
term of this Agreement and any extension thereof, and thereafter so long as
any sales are made by Allstar. Player shall have a five (5) year audit
right regarding any monies due and owing it as noted above in this Section.
Allstar grants to Player the right to audit all statements issued by it for
a period of five (5) caledar years. Further, should an audit or an
examination by Player discover deficiency in royalties in excess of $
1,000, then said audit will be paid by Allstar.
[Material marked with an asterisk has been
omitted from this document pursuant to a
request for confidential treatment and has
been filed separately with the Securities and
Exchange Commission.]
5.2 Payment.
Allstar shall provide to Player a statement of account on a quarterly basis, in
accordance with the terms enunciated above in Section 5.1 (c).
5.3 Merchandising Royalties
(a) Player shall receive * percent (*) of the gross profits, if
any, collected by Allstar in connection with the merchandising rights
granted in Section 3(a) hereof during the term of this Agreement.
(b) Player will be entitled to receive his percentage of royalties on any and
all advances collected by Allstar from the licensee(s), and will be paid
within thirty (30) days of the receipt of each such advance. Due to
Player's prior contractual relationship with Apex or any other party
with whom player has an apparel deal, any merchandising proposal regarding
shoes and apparel will be submitted to CMG for Player's review, prior to
finalizing any transaction.
(c) For the purposes of this Section 5.3, "gross profits" is defined as the
amount of gross receipts (less all returns) collected by Allstar from
whatever source derived from the sale licensing, or use of all forms of
merchandising of the Character and/or Xxxx.
(d) Other than for advances from licensee(s) as noted in Section 5.3 (b) above,
Player will receive his share of any and all monies due to him no later
than thirty (30) days after the close of any calendar quarter during the
term of this Agreement and any extension thereof, and thereafter so long as
any sales are made by Allstar. Player shall have a five (5) year audit
right regarding any monies due and owing it as noted above in this Section.
Allstar grants to Player the right to audit all statements issued by it for
a period of five (5) caledar years. Further, should an audit or an
examination by Player discover deficiency in royalties in excess of
$1,000, then said audit will be paid by Allstar.
5.4 Film, Television, Multimedia, Interactive and Video.
(a) (i) Player shall receive * percent (*) of the gross profits, if
any, collected by Allstar in connection with the rights described in Section 3.1
(b) hereof during the term of this Agreement.
(b) For the purpose of this Section 5.4, "gross profits" is defined as the
amount of gross receipts received by Allstar from whatever source derived
through the sale, exploitation or licensing of the Character and/or Xxxx from
film, television, multimedia (including CD-ROM, internet, videocassette, laser
disc, digital video disc, CD and cable) interactive and video payors.
(i) For the purposes of this Section 5.3, gross receipts exclude reasonable
and customary fees in the industry for like services earned by Allstar for the
individual services provided by employees of Allstar in connection with the
rights described in Section 3.1 (b) hereof.
[Material marked with an asterisk has been
omitted from this document pursuant to a
request for confidential treatment and has
been filed separately with the Securities and
Exchange Commission.]
(c) Other than for advances from licensee(s) as noted in Section 5.3 (b) above,
Player will receive his share of any and all monies due to him no later than
thirty (30) days after the close of any calendar quarter during the term of this
Agreement and any extension thereof, and thereafter so long as any sales are
made by Allstar. Player shall have a five (5) year audit right regarding any
monies due and owing it as noted above in this Section. Allstar grants to Player
the right to audit all statements issued by it for a period of five (5) caledar
years. Further, should an audit or an examination by Player discover deficiency
in royalties in excess of $ 1,000, then said audit will be paid for by Allstar.
Player shall have a five (5) year audit right regarding any monies due and owing
it as noted above in this Section. Allstar grants Player the right to audit all
statements issued by it for a period of five (5) calendar years.
5.5 Comic Books Featuring Multiple Players.
(a) Regarding Sections 5.3 and 5.4 above only:
Player also grants to AllStar the sole and exclusive right to his name,
likeness and character in a comic book or books that will feature him as an
action hero figure in conjunction with other AllStar Arena Entertainment
player properties (hereinafter referred to as a "compilation book"). If such
a book or books are issued, his royalty percentage of gross sales will be
adjusted a follows:
If a compilation book is issued featuring two (2) players, each player shall
receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1 (b) of this Agreement.
If a compilation book is issued featuring three (3) players, each player
shall receive * percent of the gross profits, if any collected by AllStar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1 (b) of this Agreement.
If a compilation book is issued featuring four (4) players, each player shall
receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1 (b) of this Agreement.
If a compilation book is issued featuring five (5) players, each player shall
receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book-as described in Sections
3(a) and 3.1(b)of this Agreement.
If a compilation book is issued featuring six (6) players, each player shall
receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1(b) of this Agreement.
If a compilation book is issued featuring seven (7) players, each player
shall receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1(b) of this Agreement.
If a compilation book is issued featuring eight (8) players, each player
shall receive * percent of the gross profits, if any, collected by AllStar in
conjunction with the revenue generation of this book as described in Section
3 (a) and 3.1 (b) of this Agreement.
[Material marked with an asterisk has been
omitted from this document pursuant to a
request for confidential treatment and has
been filed separately with the Securities and
Exchange Commission.]
If a compilation book is issued featuring nine (9) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1(b) of this Agreement.
If a compilation book is issued featuring ten (10) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book as described in Sections
3(a) and 3.1(b) of this Agreement.
(b) Regarding Section 5.1 above only:
Player also grants to Allstar the sole and exclusive right to use his name,
likeness and character in a comic book or books that will feature him as an
action figure in conjunction with other Allstar Arena Entertainment Players,
(hereinafter referred to as a "compilation book"). If such a book or books are
issued, his royalty percentage of gross book unit sales will be as follows:
If a compilation book is issued featuring two (2) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring three (3) players, each player
shall receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring four (4) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring five (5) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring six (6) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring seven (7) players, each player
shall receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring eight (8) players, each player
shall receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring nine (9) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
If a compilation book is issued featuring ten (10) players, each player shall
receive * percent of the gross profits, if any, collected by Allstar in
conjunction with the revenue generation of this book through all unit sales
of same.
5.6 Records.
Allstar shall keep, maintain and preserve at its principal place of business for
two (2) years following its furnishing to Player of a statement to be submitted
by Allstar pursuant to Section 5.3 of this Agreement, true books of account
containing a complete and accurate record covering all transactions relating to
this Agreement and pertaining to the various items required to be shown on such
statement. Each such statement shall be binding on X. Xxxx and not subject to
any objection unless such objection is made in writing, stating in specific
detail the nature of the objection and delivered to Lobito within five (5) years
after the receipt by X. Xxxx of the applicable statement. Such records shall be
available for inspection and review (and copying at X. Xxxx'x expense) during
Lobito's normal business hours no earlier than five (5) days after Lobito
receives X. Xxxx'x written notice and shall be conducted in such a manner as to
least interfere with Lobito's normal business activities. If any such review
discloses a deficiency between the amounts reported as due X. Xxxx and the
amount actually found to be due to it, then Lobito shall pay X. Xxxx within
thirty (30) days following its receipt of X. Xxxx'x notification, (i) the
omitted amounts, (ii) interest on the omitted amounts from the date due at the
lesser of one and one half percent (1.5%) per month or the highest rate
permitted by law, and (iii) if any such deficiency exceeds five percent (5%)
plus the reasonable costs and fees of such review.
6. TERM AND TERMINATION
6.1 Term and Renewal. This Agreement shall have an initial term of three (3)
calendar years from the date of execution of same below. Allstar reserves the
right to enter into agreements that may exceed the term of this agreement, i.e.
film and television transaction.
In the event of the termination of the Agreement, the rights of ownership noted
above in Sections 4.1 and 4.2 will remain equally split at fifty percent (50%)
for Allstar and fifty percent (50%) for Player.
6.2 Termination. If at any time the Comic Book is not profitable to Allstar,
then Allstar may, at its sole election, elect not to produce, distribute,
publish, release, exploit or make use of the rights granted Allstar in this
Agreement. In such event, this Agreement will terminate.
6.3 Default. In the event any party shall be in material breach in the
performance of any provision of this Agreement, ("Default") and such Default is
not cured within thirty (30) days following written notice thereof from the
other party of such Default, then upon the expiration of said (30) day period,
the party not in Default, at its own election, shall have the right to terminate
this Agreement upon written notice delivered to the other party within ten (1O)
days after the end of said thirty (30) day period. Nothing herein shall limit a
party's ability to seek immediate equitable relief (including injunctive relief)
in such circumstances as it reasonably believes that its interests hereunder or
in its property may be compromised.
6.4 Effect of Termination of this Agreement. In the event of termination or
expiration of this Agreement:
(a) Allstar shall continue to enjoy all of the exclusive rights set out in
Section 3.1 of this Agreement with respect to each and every Issue of the Comic
Book, and each and every film, video or any other audio-visual work which was
produced during the term. Allstar's exclusive rights set out in Section 3.1 of
this Agreement with respect to Issues of the Comic Book, films, videos, and
other audio-visual works not already released shall immediately terminate.
(b) Allstar's payment obligations shall survive until fully discharged, and
Allstar's other rights and obligations under this Agreement shall not be
diminished in any way. However, in the event that Allstar is not up to date or
timely with its prescribed payments to Player, Allstar's rights hereunder will
be deemed suspended until such payments in arrears are made to him.
(c) The provisions of Section 4.1 hereof requiring the unanimous consent of the
parties shall survive any termination. Further, upon any termination or
expiration of this Agreement, all future uses, exploitation, merchandising, or
licensing related to the Character, the Xxxx or the Comic Book not specifically
granted herein shall be upon the unanimous written agreement of the parties and
each party agrees that it will not use, exploit or license or grant to any third
party the right to use, exploit or license the Character or the Xxxx except as
provided in this sentence.
(d)The ownership rights set out in Section 4.1 (a) and 4.2 (a) hereof shall not
be affected by any such termination or expiration.
(e) Upon termination of this Agreement, Player has the right for thirty (30)
days to purchase any existing issues of the comic book not yet distributed at
the standard wholesale distribution price. Following the above noted thirty (30)
day period, Player has the right of first refusal to match any offers to
purchase any undistributed comic books.
7. INDEMNIFICATION
7.1 Indemnification.
7
Allstar will defend, at its own expense, any action, lawsuit or claim brought
against Allstar in the United States and throughout the World that is based upon
an allegation that the Comic Book infringes any copyright or any trademark
rights cognizable under the laws of the United States or any state thereof
(hereinafter "Infringement"). Further, Allstar will also defend and indemnify
Player, at its own expense, against any action, lawsuit, cause of action or
claim regarding any contract and/or other transaction it negotiates involving
him. Allstar agrees that it will pay all settlement costs and all sums which by
judgment or decree may be assessed against Player as a result of such litigation
provided that Allstar shall be given (i) prompt written notice of all claims
against any such infringement and of any suits brought or threatened against
him, (ii) authority to assume the defense thereof through its own counsel and to
compromise or settle any such action, lawsuit or claim, and (iii) all available
information and reasonable assistance to do so. The foregoing states the entire
liability of Allstar with respect to indemnity. No costs or expenses shall be
incurred for the account of Allstar by the Player or its agents without the
prior written consent of Allstar.
7.2 Changes
Player acknowledges that in the comic book industry, claims of infringement are
often raised in connection with copyrights and or trademarks, whether or not
such claims have any merit. Player acknowledges and agrees that in the event the
Comic Book or any of its contents, including, but not limited to, any text,
artwork, designs, or characters which was contributed by it, or any of the
rights licensed by it to Allstar herein, including the use of the Character or
the Xxxx is the subject of a claim of infringement, Allstar, with appropriate
consultation from said player, may change any of these so as to render them
non-infringing.
8. CONFIDENTIALITY
Each party agrees not to disclose or use any materials or information of the
other party which is marked confidential, proprietary, or the like, or in the
case of orally conveyed information, which is confirmed as being confidential in
writing within thirty (30) days of conveyance, except as may be necessary to
further the performance of this Agreement.
9. GENERAL
9.1 Assignment.
This agreement and the rights, duties and obligations of the parties hereto
shall not be assignable, transferable or delegable by any party hereto without
the prior written consent of the others, not to be unreasonably withheld or
delayed, and any purported assignment without such consent shall be void, except
that Allstar may assign this Agreement to any affiliate of Allstar, or to any
company which acquires Allstar or with which Allstar is merged. Any such
assignment made must also have the prior written approval of the non-assigning
party.
9.2 Interim Contracts.
Any furhter contracts or agreements negotiated between AllStar and Player and
XXX Xxxxxxxxx, during the term of this Agreement may extend beyond the stated
term of this Agreement.
9.3 Miscellaneous
All notices specified to sent herein shall be sent by mail or overnight courier,
return receipt requested to the addresses first set out above. Notices shall be
deemed served when received. This Agreement is a binding agreement and
constitutes the complete, final and exclusive statements of the terms of the
agreement among the parties with respect to the subject matter herein and
supersedes any and all other agreements, written or oral, prior or
contemporaneous, with respect thereto. This Agreement cannot be modified except
by a written instrument signed by all of the parties. The parties are
independent contractors and this Agreement is not a partnership between or joint
venture by the parties and no party is the agent for another. If any one or more
of the provisions contained herein or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect and for
any reason, the validity, legality and enfocreability of any such provision in
every other respect and to the remaining provisions hereof shall not be affected
or impaired in any way, it being intended that all the parties rights and
privileges arising hereunder shall be enforceable to the fullest extent
permitted by law. Any party shall be excused from performance of its obligations
hereunder to the extent and for such period of time as such performance is
prevented by an act of God, fire, earthquake, flood, transportation disruption,
war, insurrection, or other cause beyond the reasonable control of such party.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their heirs, legal representatives, executors and administrators,
successors and permitted assigns.
9.4 Resolution of Controversy
Any controversy relating to this Agreement or the breach thereof shall be first
discussed at length by all the respective parties hereto. After such discussion,
if there has been no such resolution of the disputed points, the aggrieved party
or parties shall then have the right to pursue litigation in the judicial forum
of its/their choice as against the breaching party or parties to the Agreement.
Nothing contained in this Section 9.3 shall prohibit a party from seeking
equitable relief without first resorting to litigation under such circumstances
as that party's interests hereunder and in its property will be otherwise
compromised. In the event litigation is initiated, each contracting party
consents to California or Indiana as the situs of jurisdiction. In addition,
each party will have the opportunity to settle any disputes through the American
Arbitration Association.
IN THE WITNESS HEREOF, the parties hereto have caused this Agreement to be
signed on the day and year first written above.
/s/ Xxxx Xxxxx, Esq. /s/ Xxxx Xxxxxx
On behalf of AllStar On behalf of Xxxx Xxxxxx
Arena Entertainment, Inc., Properties, Inc.
A California corporation
/s/ Xxxxxx X. Xxxxxx
On behalf of AllStar
Arena Entertainment, Inc.,
A California corporation
