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EXHIBIT 10.4
"THE PRICE IS RIGHT"
NETWORK PRODUCTION AGREEMENT
1. IDENTIFICATION
This production agreement (the "Agreement") is dated as of the 6th day
of October, 1995 and is entered into between Interpublic Game Shows,
Inc., a wholly-owned subsidiary of The Interpublic Group of Companies,
Inc., whose address is 1271 Avenue of the Americas, New York, N.Y.
10020 ("Sub"), and TPIR LLC, a California limited liability company,
directly or indirectly controlled and majority-owned by the Estate of
Xxxx Xxxxxxx, whose address is 0000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX
00000 ("Producer"), with respect to the program entitled "The Price Is
Right" (the "The Price Is Right" or the "Program").
2. THE SERIES
"The Price Is Right" is a game show series currently produced by Xxxx
Xxxxxxx Productions, L.P. and aired on the CBS Network. Pursuant to
an Asset Purchase Agreement dated as of October 6, 1995 between Xxxx
Xxxxxxx Productions, L.P., The Child's Play Company, and the Estate of
Xxxx Xxxxxxx on the one hand, and Xxxx Xxxxxxx Productions, LLC (the
"LLC"), The Interpublic Group of Companies, Inc., and All American
Communications, Inc. on the other hand (the "Asset Purchase
Agreement") and certain license agreements, specifically the Main
License Agreement from the LLC to All American Xxxxxxx, Inc. ("AAG")
as licensee and the Sublicense from AAG to Sub as sublicensee (the
"Network License Agreement"), Sub has the right to produce and license
new episodes of the Program (together with replays as part of the
series commitment) to either the CBS, NBC, ABC or FOX Television
Networks (each a "Network") or to the UPN or WBN Television Network
(each a "Network Alternate"), in the United States, its territories
and possessions (and to license retransmission thereof in Canada in
the English language) during the Term. The Program is currently being
produced through the 1995/1996 broadcast season on the CBS Network
pursuant to a network license agreement (the "CBS License") the rights
and obligations under which have been assigned from the LLC to AAG to
Sub. Without limiting the generality of the foregoing AAG has
irrevocably assigned its
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right to collect receivables earned under the CBS License to Sub. It
is currently anticipated that Sub may from time to time enter into a
license agreement for the Program with one or more of the Networks or
Network Alternates for the period after the 1995/1996 broadcast season
and during the Earn-Out Period referenced in the Asset Purchase
Agreement whereby Sub shall be responsible for causing the production
of the Program in accordance with the content, approval and delivery
requirements set forth in the Network License Agreement. For so long
as this Agreement is in effect, without the Producer's prior written
consent, which shall not be unreasonably withheld or delayed, Sub shall
not amend, modify, terminate (other than expressly in accordance with
the Network License Agreement's terms as in effect on the date hereof
and as thereafter modified in accordance therewith) the Network License
Agreement or waive any rights or consent to the foregoing, under the
provisions of the Network License Agreement, which would have a
material adverse effect on Producer's rights under this Agreement.
3. PRODUCTION FEE
Pursuant to this Agreement, Producer shall receive a production fee
(the "Production Fee") equal to $1,000 per episode, payable weekly
during the Term, with respect to New Episodes of "The Price Is Right"
produced and delivered during such week provided that in no event shall
such fees in the aggregate exceed $6,000 per week in any given week
and; provided further that the Production Fee shall be due and payable
only if and when the Earn-Out Payments due and payable are in excess of
the Production Fee then due. The LLC or Sub shall credit against the
Earn-Out Payments (including the maximum Earn-Out Payments payable
under Section 3.8(a) of the Asset Purchase Agreement) any Production
Fees paid under this Agreement. Producer shall not receive any
Production Fees with respect to any week during which New Episodes are
not produced. No Production Fee will be paid with respect to replays.
4. PRODUCTION
Sub hereby engages Producer and Producer hereby agrees to produce the
Program as a work-for-hire within the definition of the United States
Copyright Act of 1976, as amended, for the LLC and exclusively for
Network or Network Alternate exploitation and retransmission in Canada
in the English language only. Sub derives its rights to "The Price Is
Right" from AAG pursuant to the Network License Agreement. AAG in turn
derives its rights in "The Price Is Right" from the LLC, which is the
sole and exclusive owner of the
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copyright, trademark and other intellectual property rights in and to
"The Price Is Right". Therefore, because the LLC commissions the work
made for hire by Licensee, the LLC shall directly own the New Episodes
of "The Price Is Right" as a "work made for hire". Producer shall
produce the Program consistent with past practices of Xxxx Xxxxxxx
Productions, L.P. and shall discharge all above-the-line and
below-the-line costs in connection therewith (as such terms are
generally understood in the entertainment industry and set forth in the
approved budget), in accordance with the content, approval and delivery
requirements (inclusive of number of episodes of the Program to be
produced) set forth in the Network License Agreement. For the 1995/1996
broadcast year, Producer will be responsible for paying any increases
in the prize budget or other "below the line" costs or host fees not
reimbursed by CBS in excess of the approved production budget amounts.
For subsequent broadcast years, if any, during the term hereof, any
increases in the prize budget or "below the line" costs or host fees
for which the Producer is responsible and not reimbursed by the Network
or Network Alternate would be considered increased production costs
which would reduce the Domestic Net Profits and the resulting
computation of Earn-Out Payments, if any, due to the Representative
under the Asset Purchase Agreement. Producer will comply with all
applicable requirements under the CBS License as then in effect or
other Network or Network Alternate license agreement relating to the
Program. NOTE: Each broadcast year must contain at least 130 new and
original episodes except as approved from time to time by the Network
or Network Alternate. Producer agrees to fully pay and discharge all
fees, expenses, costs and other obligations incurred in connection with
the production, distribution, licensing or other exploitation of the
Library Episodes and the New Episodes of the Program, including without
limitation, any and all obligations under any union, guild and/or
residual agreement.
5. PRODUCTION BUDGET
The 1995/1996 production budget of the Program, which is limited to
$3,229,000 for the balance of the 1995/1996 broadcast season after
the Escrow Closing Date referred to in the Asset Purchase Agreement,
is attached as Exhibit A hereto (the "1995/1996 Budget"). The
portion of the 1995/1996 Budget applicable following the Final
Closing shall be equal to $3,229,000 less 30% of all payments from
the CBS Network to the Partnership during the Interim Period ending
at the Final Closing. The 1996/1997 production
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budget for the Program (if renewed on a Network or Network Alternate
in accordance with the terms hereof) shall be limited to $5,000,000
for the entire broadcast season. Production budgets for subsequent
broadcast years, if any, of the Program shall have increases only to
the extent reasonably necessary based on increased out- of-pocket
costs but in any event no more than 5% in annual increases (on a
compounded basis) over the 1996/1997 Budget, exclusive of increases
in the Xxx Xxxxxx (or other to-be-selected host) host fees or
increases in the prize budget or "below the line" costs covered by
the first paragraph of Section 5 hereof. The production budget shall
contain no overhead reimbursement to the Producer, other than actual
direct overhead consistent in all material respects with the
1995/1996 Budget or as otherwise approved by Sub, and no contingency
amounts, unless approved in writing by Sub and AAG.
Except for Xxx Xxxxxx, whose fees shall be subject solely to Network
approval, the host (and the fees for the host) shall be subject to
the approval of Sub and the Network (which approval, in the case of
Sub, shall not be unreasonably withheld or delayed).
Producer shall invoice Sub weekly for Programs produced during that
week up to an aggregate amount in any broadcast year of the amount
of the approved production budget for that year (or portion thereof
in accordance herewith), incurred in connection with the production
of the Program plus any amounts incurred by Producer that are
reimbursable by the Network or Network Alternate apart from and in
addition to the Network or Network Alternate license fee
("Reimbursements"). With respect to the 1995/1996 broadcast year,
unless Sub shall reasonably adjust the payment procedure in light of
a change in circumstances, each payment from the CBS Network
(exclusive of Reimbursements) shall be divided by Sub as follows:
30% shall cover production costs, 52.5% shall be remitted as
Earn-Out Payments pursuant to Section 3.8(a)(i) of the Asset
Purchase Agreement (less Production Fees credited against such
payments) and 17.5% shall be retained by Sub, for remittance to AAG
in accordance with the terms of the Network License Agreement.
Nothing herein shall reduce or increase the total production costs
payable to Producer for the balance of the 1995/1996 broadcast year,
and the above payments shall be adjusted from time to time
accordingly. Producer shall provide Sub with appropriate
documentation (i.e., copies of receipts for
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out-of-pocket expenses if requested by Sub) in connection with such
out-of-pocket costs. Producer shall be responsible for all
production budget overages (except as expressly provided herein) and
Producer shall retain all production budget underages calculated for
the broadcast year.
Sub's obligation to reimburse Producer's production budget costs and
Reimbursements and to pay Producer its Production Fees shall be
subject to, and payable from, its receipt of license fee payments
and related Reimbursements from the Network or Network Alternate.
Within five Business Days of receipt of such license fee payments
and related Reimbursements from the Network or Network Alternate,
Sub shall reimburse Producer for its applicable production budget
cost and the Production Fees in accordance with paragraph 3. To the
extent that Producer's costs and expenses and Reimbursements exceed
the Network or Network Alternate license fee payments (and related
Reimbursements) to Sub, Producer shall not be reimbursed for such
excess.
Sub shall, on behalf of the LLC, make certain Earn-Out Payments to
Representative in accordance with, and subject to the terms of,
Section 3.8(a)(i) of the Asset Purchase Agreement to the extent
described in the Network License Agreement, but only to the extent
of receipts it receives from CBS or another Network or Network
Alternate net of any costs and expenses permitted to be incurred by
it under the Network License Agreement as in effect on the date
hereof and as thereafter modified in accordance herewith in
connection with the exploitation of the Program.
Representative and its authorized representatives shall, upon
request received by the Sub in writing, have reasonable access
during normal business hours to any books, records and documents
relevant to the calculation by the Sub (or, if in Sub's possession,
the LLC) of any Earn-Out Payment under Section 3.8(a)(i) of the
Asset Purchase Agreement with respect to Domestic Net Profits -
Price Is Right Network (as defined in the Asset Purchase Agreement).
All calculations of Domestic Net Profits - Price is Right Network
shall be made by the LLC or the Sub in accordance with the Asset
Purchase Agreement. Any disputes as to the calculation of the
Earn-Out Payments shall be subject to resolution pursuant to Article
10 of the Asset Purchase Agreement.
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6. TERM; NETWORK EXTENSIONS OR RENEWALS
a. The term (the "Term") of this agreement shall be for a period
coterminous with the Program remaining in continuous annual
(i.e., broadcast year) production (i.e., each broadcast year
must consist of at least 130 new and original episodes unless
otherwise approved from time to time by the Network or Network
Alternate), but not to exceed the Earn-Out Period, including
any extension thereof, as defined in and in accordance with the
Asset Purchase Agreement. In the event that the Program does
not remain in continuous annual Network or Network Alternate
production, this Agreement shall terminate.
b. Sub and AAG, as Licensor under the Network License Agreement,
shall have the right in their business judgment to mutually
agree or refuse to agree to any Network or Network Alternate
license, extension or renewal of the Program relating to the
Program remaining in continuous annual production, subject to
the following provisions:
Sub and AAG shall each agree to any extension or renewal
of the current CBS License or any license, extension or
renewal which ends on or before the last day of the
Earn-Out Period (including any extension thereof the
reasonable likelihood of which the parties will consider
in good faith at the relevant time of extension or
renewal) to be in effect during the term of this
Agreement so long as (x) the LLC will ultimately receive
at least $1.0 million, net of expenses (such expenses
shall include amounts payable by Sub pursuant hereto and
pursuant to the Network License Agreement) , including
Earn-Out Payments and the Production Fees, annually in
respect of such license during its term based on the
approved production budget (including host fees and
together with reasonably anticipated overages for
increased prize costs or other "below the line" costs
reimbursable to Producer in accordance herewith) and (y)
there are no other changes from the current CBS License
or any other Network or Network Alternate license then in
effect with respect to such Program that Sub or AAG
believes in good faith could have a material adverse
effect on Sub or AAG.
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Producer and Sub will jointly attend every meeting with
the CBS Network (unless the parties agree otherwise) with
respect to any extension or renewal of the current CBS
License and reasonably consult with each other prior to
and after such meeting (it being agreed that failure of
Producer to notify Sub of every meeting or to consult
with Sub following every meeting will not constitute a
material breach hereof except to the extent Sub, AAG or
the LLC is materially damaged thereby). In the event
that for any reason the CBS License is canceled or it is
determined that the Program will not be renewed or
extended (the "Non-Renewal Event"), Producer will have a
45-day period from such date (subject to extension in
accordance with the penultimate paragraph under this
paragraph 6), jointly with Sub, to negotiate with other
Networks or Network Alternates (provided that Sub shall
control any negotiations with UPN, subject to
consultation rights in favor of Producer). Sub shall
enter into a Network or Network Alternate license (or an
executed binding deal memorandum setting forth the
material terms of such license) to be in effect during
the term of this Agreement so long as (x) the LLC will
receive at least $1.0 million, net of expenses (such
expenses shall include amounts payable by Sub pursuant
hereto and pursuant to the Network License Agreement),
including Earn-Out Payments and the Production Fees,
annually in respect of such license during its term based
on the approved production budget (including host fees
and together with reasonably anticipated overages for
increased prize or other "below the line" costs
reimbursable to Producer in accordance herewith) and (y)
there are no other changes from the CBS License or any
other Network or Network Alternate license then in effect
with respect to such Program that Sub or AAG believes in
good faith could have a material adverse effect on Sub or
AAG.
If Producer's negotiations with CBS for an extension or
renewal of the CBS License shall terminate unsuccessfully
and Producer shall receive an offer from another Network
or Network Alternate with respect to the continuous
Network or Network Alternate broadcast of The Price Is
Right, which offer complies with the provisions of this
paragraph 6(b) or is otherwise acceptable to Producer,
Sub and AAG but is subject to a CBS
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first refusal, Producer shall have the right to transmit
such offer to the CBS Network, and if the CBS Network
does not accept such offer, to accept such Network or
Network Alternate offering within five business days
after the expiration of the CBS Network first refusal
(subject to Sub's right to control negotiations, if any,
with UPN). Anything herein to the contrary
notwithstanding, Producer's 45-day period within which to
secure a commitment for an extension of the Network or
Network Alternate broadcasts of "The Price Is Right"
shall be extended accordingly.
In the event that Sub does not enter into a new Network
or Network Alternate license (or any executed binding
deal memorandum setting forth the material terms of such
license) not expressly required by the terms hereof
within 45 days after the Non-Renewal Event, this
agreement shall terminate (and the Term shall expire) for
all periods after the then current broadcast year.
7. COPYRIGHT
The LLC shall own all right, title and interest in and to all
copyrights in all New Episodes, the Licensed Formats and any Modified
Format and shall also own all right, title and interest in and to the
New Copyrights. Sub shall assign or otherwise convey to the LLC any
intellectual property ownership rights to any New Episode of the
Program that it may have or hereafter acquire pursuant to the terms of
Network License Agreement.
8. TRADEMARKS
Producer agrees that the Licensed Trademark is the exclusive property
of the LLC. Any goodwill associated with Producer's use of the
Licensed Trademark shall inure to the exclusive benefit of the LLC.
Producer shall not take any actions inconsistent with LLC's ownership
of the Licensed Trademark, and shall promptly notify LLC, AAG and Sub
of any unauthorized use of the Licensed Trademark of which it becomes
aware.
9. NO LIENS
Producer shall not permit any claims, liens, security interests or
encumbrances to be placed upon any of Producer's rights in any New
Episode, Library Episode Modified Library Episode, Licensed Format
Modified Format,
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advertising and promotional material related thereto, or any New
Copyright or Licensed Trademark, except for any of the foregoing
approved by the LLC and the Sony Lien.
10. STORAGE
Producer shall properly store each master or original negative of each
new Episode or Library Episode in accordance with standards
customarily observed by major television producers in the United
States and, to the extent applicable, as required by the Sony
Agreement.
11. DELIVERY
Producer shall deliver the final master tapes of the Program in
accordance with the content, approval and delivery requirements to be
provided to Producer by the Network or Network Alternate. During the
term of the Sony Agreement, Producer shall deliver copies of such
tapes, at its expense, to the extent required by the Sony Agreement
and shall inform the LLC of the time, quantity and content of such
deliveries.
12. APPROVALS
Sub shall have a right of approval in regard to the principal
production elements of the Program (i.e., the producer, director and
host of the Program). Sub acknowledges that the principal production
elements used for the 1994/1995 broadcast season are approved by it
for the 1995/1996 and subsequent broadcast seasons, if any. Sub shall
have a right of mutual approval in regard to all key creative elements
of the Program but not the production budget to the extent it is in
conformity with paragraph 5. Sub shall have the right to have a
representative present during all phases of the production of the
Program and at all significant production meetings.
13. MUSIC
Producer shall cause all original music (compositions and master
tapes, collectively the "Original Music") used or embodied in the
Program to be composed and produced as a work-for-hire within the
definition of the United States Copyright Act of 1976, as amended, for
the LLC. The LLC shall have the right to approve all agreements
relating to the music. Sub shall own all right, title and interest in
the Original Music subject to the composer's (i.e., the so-called
writer's) share of performance rights in which Score
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Productions, Inc. or Kalehoff Productions, Inc. has an interest as set
forth in the Asset Purchase Agreement.
14. PROMOS
If requested by the Network or Network Alternate and either included
as part of the approved production budget or reimbursed by the Network
or Network Alternate, Producer shall be responsible for producing and
discharging the cost of a number (agreed upon with the Network or
Network Alternate) of on-air promos for the Program, consistent with
the Network's or Network Alternate's requirements.
15. RESIDUALS
Producer, as part of the production budget, shall be responsible for
all residual and replay fees arising in connection with the Network
License Agreement during the Term.
16. NO PARTNERSHIP OR JOINT VENTURE
This Agreement shall not be construed to create a partnership or joint
venture between Producer and Sub.
17. INSURANCE
Producer shall procure or cause to be procured and maintain the
customary insurance carried by producers of television programs,
including Errors and Omissions Insurance or Broadcasters Liability
Insurance covering the exploitation of the program naming Sub as an
additional insured and insuring Producer, and the network broadcasting
the Program, the limits of such insurance being $1,000,000 for a
single claim and $3,000,000 for all claims in the aggregate. Such
insurance policy (policies) shall not contain any unusual exclusions
or deductions. Producer may not cancel, terminate, amend, modify or
otherwise alter such policy (policies) without thirty days' prior
written notice to Sub and without Sub's prior written consent, which
consent shall not be unreasonably withheld. Producer shall supply
certificates of insurance evidencing the above coverage to Sub
promptly upon execution of this agreement.
18. WARRANTIES, REPRESENTATIONS AND COVENANTS
Producer represents, warrants and agrees (i) that it has the full
right and power to enter into this Agreement and to perform all its
obligations hereunder; (ii) that neither the Program nor any parts
thereof including the titles shall
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contain any materials which will violate any law or infringe on or
violate any right of any third party, including, without limitation,
any copyright, trademark or trade name, patent or any contract or
agreement, any civil, personal or property right; right of privacy or
any other right whatsoever belonging to or constituting a slander or
libel against any person, firm or corporation whatsoever; (iii) that
all payments and rights clearances required to be made or secured in
connection with the production and exhibition of the Program in
accordance with this Agreement will have been fully made by Producer
including but not limited to, residuals, clip rights and fees, and
music rights and fees; (iv) Producer has not and will not, while this
agreement is in effect, grant any rights with respect to Library
Episodes of the Program in contravention of the rights herein granted
except for those rights which have already been previously granted
pursuant to the Sony Agreement; (v) Producer will deliver each Episode
of the Program during the Term to the applicable Network free and
clear of any and all claims, liens or encumbrances other than those
created by a party other than Producer; (vi) all credits appearing on
the New Episodes, as delivered to the network, shall be correct and
consistent with all credit obligations to third parties; (vii)
Producer shall fully pay and discharge in a timely manner any and all
obligations under any union, guild, and residual agreement arising
during the Term in connection with the Network or Network Alternate
production, distribution, licensing or other exploitation of Library
Episodes or New Episodes of the Program; (viii) Producer shall
indemnify and hold harmless Sub, its officers and directors, from any
claim resulting from any breach by Producer of the representations,
warranties and covenants herein made.
In addition, Producer shall indemnify and hold harmless Sub from and
against any loss, liability, damage, obligation, cost or expense
(including reasonable legal fees and expenses and any amount paid in
settlement) resulting from a claim, demand, lawsuit, action or
proceeding, relating to or arising from or in connection with (i) the
current, former or prospective employment, retention or compensation
of any person (including, without limitation, any performer, actor,
musician, host, writer, director, producer or any person retained in
any capacity as an independent contractor) in connection with the
Network or Network Alternate production, distribution, licensing or
other exploitation of Library Episodes or New Episodes of the Program
during the Term, including, without limitation, any obligation under
any union, guild or residual agreement or (ii) any obligation or
liability of the LLC, AAG or Sub under the Sony Agreement
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except to the extent arising from the LLC's breach of the provisions of
Schedule 7.14 of the Asset Purchase Agreement to be performed by it.
Sub represents and warrants: that it has full right and power to enter
into this Agreement; that it shall pay all sums for which it is
expressly responsible hereunder; Sub is, and during the term of this
Agreement shall continue to be, a wholly owned subsidiary of
Interpublic; no consents are required for Sub to enter into the
transactions contemplated by this Agreement or the Network License
Agreement; and that it shall indemnify and hold harmless Producer from
any claim resulting from any breach by Sub of its representations and
warranties herein made.
Producer shall, to the fullest extent permitted by law, indemnify and
hold harmless the LLC, AAG and Sub from and against any loss,
liability, damage, obligation, cost or expense (including reasonable
legal fees and expenses and any amount paid in settlement) resulting
from a claim, demand, lawsuit, action or proceeding, relating to or
arising from or in connection with the Assumed Contracts or otherwise
in connection with the employment, retention or compensation of any
person (including, without limitation, any performer, actor, musician,
host, writer, director, producer or any person retained in any
capacity) in connection with The Price Is Right or the other
obligations of Producer arising during the Term hereof. For purposes
hereof, the term "Assumed Contracts" shall mean the agreements with
Xxx Xxxxxx (dated 4/9/91, as amended), Xxx Xxxxx (dated 6/1/94, as
amended, between Trior Entertainment f/so/o Xxx Xxxxx and the
Partnership, Xxxxx Xxxxxxxxx (dated 3/16/94, as amended) and Xxxxxx
Xxxxxxxxxx (dated 2/11/94, as amended), which contracts have been
assigned to the LLC.
19. MUSIC RIGHTS
Producer represents and warrants that it has secured or will secure
all necessary music rights, including without limitation, music
synchronization licenses in all musical compositions contained in the
Program and that all performing rights are: (a) controlled by American
Society of Composers, Authors and Publishers; SESAC, Inc., BMI; or (b)
in the public domain; or (c) controlled by Producer. Producer agrees
to indemnify and hold harmless Sub from and against any damages or
expenses which may arise out of the performance of any music in the
Program in connection with the exercise of its rights hereunder, the
performing rights of which come within category (c) above. Producer
agrees to furnish Sub with all information reasonably requested by Sub
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concerning the title, composer and publisher of all such music.
20. THIRD PARTY BENEFICIARIES
The parties hereto agree that AAG and LLC are intended third-party
beneficiaries of the provisions of this Agreement.
21. TERMINATION
Sub shall have the right to terminate this Agreement at any time in
the event that (i) Producer commits a material breach of any of its
obligations under this Agreement and fails to cure such breach within
60 days of receiving a written notice of default from Sub, (ii) a
petition is filed by or against Producer for voluntary or involuntary
bankruptcy or pursuant to any other insolvency law, or Producer makes
or seeks to make a general assignment for the benefit of its creditors
or applies for or consents to the appointment of a trustee, receiver
or custodian for it or a substantial part of its property, (iii)
subject to the provisions set forth in paragraph 6 hereof, the CBS
License terminates, or any other Network or Network Alternate license
terminates. In the case of termination of this Agreement pursuant to
the foregoing provision, AAG shall continue to have the right, through
the Main License Agreement and the Network License Agreement (if such
Network License Agreement is still in effect), to produce, record,
distribute, market, broadcast, transmit, exhibit or otherwise exploit
the Program for commercial purposes.
22. ASSIGNMENTS
This Agreement may not be assigned by either party without the other
party's prior written approval (which consent will not be unreasonably
withheld or delayed). The parties agree that any direct or indirect
change of control of Producer prior to the completion of the 1997/1998
broadcast season shall be deemed to constitute an assignment of
Producer's rights hereunder and shall require Sub's prior written
approval. The parties further agree that prior to any direct or
indirect change of control of Producer, whether or not prior to the
completion of the 1997/1998 broadcast season, the LLC and Sub shall be
given 30 days prior written notice of such proposed direct or indirect
change of control (disclosing the identity of the new controlling
party and the material terms of such proposed change of control) and
AACI shall have the right of first refusal to acquire control of the
Producer on the same terms proposed in such
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notice. In the event AACI does not exercise its right of first
refusal, but subject to any consent required in the second sentence of
this paragraph, Producer shall have the right to consummate such
direct or indirect change in control on terms no more favorable to the
transferee of such control than set forth in such notice within the 90
day period following non- exercise by AACI of such right of first
refusal. The parties acknowledge that a direct or indirect change of
control shall not be deemed to have occurred (x) as of a result of any
change in the identity of the Executors of the Estate in accordance
with the terms of the will of Xxxx Xxxxxxx or (y) so long as any of
Xxxxxxx Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx or
Royal X. Xxxxxxxx, or any combination of them, have direct or indirect
control of the Producer.
23. MISCELLANEOUS
This Agreement shall be governed by the laws of the State of New York
applicable to agreements executed and to be wholly performed therein
and shall not be modified except by a written document executed by
both parties hereto. This agreement expresses the entire
understanding of the parties hereto and replaces any and all former
agreements or understandings, written or oral, relating to the subject
matter hereof. Paragraph headings are for convenience of the parties
only and shall have no legal effect whatsoever. All notices
hereunder, unless specified otherwise shall be in writing and shall be
given at the addresses set forth in Paragraph 1 either by personal
delivery, telegram, telefax or telex (toll prepaid) or by registered
or certified mail (postage prepaid) and shall be deemed given on the
date delivered, telegraphed, telefaxed or telexed or the date mailed.
24. DEFINITIONS
Capitalized terms used in this Agreement without definition shall have
the meanings set forth in the Asset Purchase Agreement.
"Library Episodes" shall mean the audiovisual productions of the
Program constituting Assets acquired by the LLC at the Final Closing
of the Asset Purchase Agreement and licensed to Sub, directly or
indirectly by AAG through the Network License Agreement, including any
modifications thereof.
"Licensed Formats" shall mean the outlines, treatments or formats for
"The Price Is Right" shows in the Territory, including any
modifications thereof made by Sub.
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"Licensed Trademark" shall mean the trademark "The Price Is Right".
"Modified Format" shall mean the work resulting from any modification
by Sub of the Licensed Formats. Each Modified Format shall also be
deemed a Licensed Format.
"New Copyrights" shall have the meaning specified in paragraph 9(a) of
the Network License Agreement.
"New Episodes" shall mean any audiovisual production based on the
Licensed Formats (including any Modified Format) produced by Sub or
its sublicensees pursuant to this Agreement.
25. EFFECTIVENESS
This Agreement shall become effective at the Final Closing of the
Asset Purchase Agreement and shall be of no force or effect if the
Asset Purchase Agreement is terminated in accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this agreement as of
the date first written above.
INTERPUBLIC GAME SHOWS, INC. ("SUB")
By: /s/ XXXXXX XXXXX
----------------------------
Its: Chairman and President
Date: October 6, 1995
TPIR LLC ("PRODUCER")
By: /s/ XXXXXXX XXXXXXXXXX
----------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
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