EXHIBIT 10.105 (CONTINUED)
EXHIBIT 10.105
CONFIDENTIAL TREATMENT REQUESTED
The asterisked portions of this document have been omitted and are filed
separately with the Commission.
AGREEMENT
This Agreement (the "Agreement") is entered into by and between
xxxxxxxxx.xxx inc., a Delaware corporation ("xxxxxxxxx.xxx"), and Trimark
Pictures, Inc., a California corporation ("Pictures"), Trimark Holdings,
Inc., a Delaware corporation ("Holdings"), Trimark Television, Inc., a
Delaware corporation ("Television"), and Trimark Music ("Music")
(collectively, Pictures, Holdings, Television and Music will be referred to
as "Trimark" or "Parties") as of the date indicated on the signature pages.
The intent of the Agreement is for Trimark to provide certain video
product to xxxxxxxxx.xxx, and for xxxxxxxxx.xxx to act as the carrier of such
product and make it available to Internet users during the term hereof.
Xxxxxxxxx.xxx shall provide all digitizing, storing and transmission services
as needed to enable delivery on the Internet (subject to the restrictions in
this Agreement), and Trimark will provide acquisition, licensing and
programming by utilizing its currently owned and/or controlled video product
as well as video product over which it subsequently gains ownership or
control.
In consideration of the mutual covenants and agreements of the Parties
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS:
a. "ACCESS FEE" is a fee paid by a User in order to access a
transmission, display or performance of a Video on the System.
b. "ACCESS PAGE" is a Web page on the xxxxxxxxx.xxx Web site that is
designed by xxxxxxxxx.xxx in accordance with the "look and feel" of
the xxxxxxxxx.xxx site, subject to Trimark's reasonable approval and
through which the Videos will be accessible, and through which
consumers will be able to access, view, and/or order copies of the
Videos and Video-related Merchandise.
c. "BROADCAST INVENTORY" shall mean internal program breaks within the
transmission of the Videos to xxxxxxxxx.xxx Users, similar in
character to traditional broadcast
EXHIBIT 10.105 (CONTINUED)
television commercial breaks or theatrical film previews. The
term shall not include framing, messages, or any other material
visible or audible (at viewer's election) during the entire
length of the Video broadcast on any xxxxxxxxx.xxx Web site or to
any User.
d. "XXXXXXXXX.XXX LICENSEE" is an on-line distributor or retailer of hard
copies of the Videos in videocassettes, DVDs, videodisks, or similar
format, as designated by xxxxxxxxx.xxx.
e. "CONFIDENTIAL INFORMATION" is any information of a Disclosing Party
that the Receiving Party knows or reasonably should know to be
confidential or proprietary information of the Disclosing Party,
whether of a technical, business or other nature.
f. "DISCLOSING PARTY" is a party who discloses Confidential Information.
g. "MARKS" are a party's logos, trade names, trademarks and service
marks, collectively.
h. "MERCHANDISE" shall include selected merchandise, other than video
cassettes, video discs, DVD, and similar hard copies of the Videos,
that relates to the Videos to be offered for sale by Trimark through
an Order Now Button on the Access Page.
i. "ORDER NOW BUTTON" is a button or text link, directly to the Trimark
Web site, Web site designated by Trimark, or the Web site of a
xxxxxxxxx.xxx Licensee, that appears in close proximity to a
description or other reference to the Videos and/or Merchandise and
which contains the words "Order Now," "Buy It" or words of similar
import, and/or permits users to purchase, or facilitates the purchase
of, the applicable Videos and/or Merchandise by clicking on such
button or link.
j. "RECEIVING PARTY" is the party who receives Confidential Information
from a Disclosing Party.
k. "REGISTRATION DATABASE" is a database of viewers who register to
access the video channel on the xxxxxxxxx.xxx Web site.
1. "SYSTEM" is any wired network (including, without limitation, the
Internet, the Internet II, or any other online services network which
utilizes computer terminals, terminal servers, modems, cable modems,
HFC, coaxial cable, xDSL, routers, splitters, switches, multicasting
technology, power lines, or other high speed data connections and any
and all other wired networks) that distributes audio or video using
digital algorithms,
EXHIBIT 10.105 (CONTINUED)
one and/or two-way digital services, or any wireless network that
provides access to such wired network (except AM/FM radio
broadcast stations and television broadcast stations, direct
broadcast satellite, pay cable and basic cable).
m. "USER" is a xxxxxxxxx.xxx Access Page registered user.
n. "VIDEOS" are all motion pictures and other audiovisual works embodied
in videotapes, DVD and/or other video masters, including related
materials such as EPK, synopses, reviews and biographies of such
Videos, with respect to which Trimark holds or acquires Internet
broadcast/distribution rights and sales distribution, all of which are
listed on the attached EXHIBIT A. The Videos provided by Trimark may
be motion pictures owned by Trimark or licensed from third parties.
Videos will not include any video reasonably rejected by xxxxxxxxx.xxx
as inconsistent with xxxxxxxxx.xxx's general censorship standards
(e.g. pornographic material); provided that xxxxxxxxx.xxx will not
reject any materials rated by the MPAA as "R" or less restrictive.
2. TRIMARK COVENANTS:
a. RIGHTS. Trimark shall own all rights to masters, source material, and
promotional material related to the Videos supplied by Trimark,
whether stored by xxxxxxxxx.xxx or any other entity. Notwithstanding
the foregoing, Trimark hereby grants to xxxxxxxxx.xxx a fully paid up
right and license to encode, store, publicly distribute, perform,
display, copy, transmit, broadcast, and market the Videos on the
System as necessary for the Internet broadcast of the Videos pursuant
to this Agreement for the term of this Agreement. Such rights will be
subject to the territory and Internet transmission dates, and third
party restrictions specified on the most recently delivered EXHIBIT A.
In addition, xxxxxxxxx.xxx has the right to maintain a copy of the
Videos to be included and preserved in xxxxxxxxx.xxx's archives at
xxxxxxxxx.xxx's sole discretion and expense during the term of this
Agreement. After the expiration of this Agreement xxxxxxxxx.xxx will
either provide to Trimark any physical embodiment or electronic copy
of any stored images encoded by xxxxxxxxx.xxx under this Agreement for
a mutually agreed upon price, or destroy such archives at Trimark's
direction.
b. WEB SITE PROMOTION. Trimark hereby agrees to place the xxxxxxxxx.xxx
Marks on the Trimark Web site in accordance with xxxxxxxxx.xxx's
trademark usage guidelines, to provide a prominent hyperlink from the
Trimark Web site
EXHIBIT 10.105 (CONTINUED)
to the Access Page(s), and to promote the transmission,
distribution, performance and display of the Videos by
xxxxxxxxx.xxx on the Trimark Web site, in press materials and
publications, and in connection with the advertising and
packaging of the Videos, subject to Paragraph 4b. In addition,
Trimark will provide xxxxxxxxx.xxx with promotional placement
time on or embodied within VHS and DVD copies of Trimark Videos
that will be broadcast by xxxxxxxxx.xxx hereunder, and will use
good faith efforts to include xxxxxxxxx.xxx's logo and URL in
connection with all promotions of the Videos that will be
broadcast hereunder, including movie posters.
c. FORMAT. Trimark agrees to provide xxxxxxxxx.xxx with the Videos to be
encoded and transmitted on the System as provided herein, on or
embodied within 1/2 inch, VHS, DVD, or D2 or other mutually acceptable
format.
x. XXXXX. Subject to third party contractual restrictions provided by
Trimark, Trimark hereby grants to xxxxxxxxx.xxx the right to use
Trimark's Marks, and the marks, names, and likenesses of all third
parties associated with the Videos and merchandise, in print, audio,
on-line and other advertising for the promotion of the Videos, the
relationship of the Parties, and in other means in connection with
this Agreement, all consistent with xxxxxxxxx.xxx's covenants set
forth herein. Unless stated otherwise in writing, all artwork
provided by Trimark to xxxxxxxxx.xxx shall be deemed acceptable for
xxxxxxxxx.xxx's promotional purposes (e.g. video boxes, one sheets).
e. EXHIBIT A AND REPLACEMENT EXHIBITS. For each Video identified on
EXHIBIT A, Trimark will include a description of the nature of the
rights held by Trimark with respect to such Video, including sales
distribution rights and/or Internet transmission rights, and all
applicable geographic and transmission limitations with respect to
which Trimark is contractually bound. Trimark agrees that it will
provide xxxxxxxxx.xxx a replacement EXHIBIT A to update the Videos and
restrictions listed in the EXHIBIT A as such information may change
from time to time. All Videos supplied by Trimark shall be made
available by Trimark to xxxxxxxxx.xxx for unlimited broadcast, subject
only to the restrictions set forth on EXHIBIT A.
f. MERCHANDISE SALES. Xxxxxxxxx.xxx shall place Order Now Buttons on the
xxxxxxxxx.xxx Web site at such locations as determined by
xxxxxxxxx.xxx which shall link directly to the Trimark Web site to
enable Users to purchase Merchandise. As between xxxxxxxxx.xxx and
Trimark, Trimark shall be solely responsible for processing all
EXHIBIT 10.105 (CONTINUED)
orders for Merchandise through every aspect of each transaction,
including receiving, filling, shipping and handling, collecting
payment, tracking and transaction security ("Transaction
Responsibilities"). All orders for Merchandise shall be placed by
customers directly with Trimark. Trimark will pay xxxxxxxxx.xxx
[*] derived from the sale of Merchandise to Users that accessed
Trimark's Web site through an Order Now Button.
g. VIDEO SALES. Xxxxxxxxx.xxx shall place Order Now Buttons on the
xxxxxxxxx.xxx Web site at such locations as determined by
xxxxxxxxx.xxx which shall link directly to the Trimark Web site to
enable Users to purchase certain Videos. Trimark will be solely
responsible for processing all orders for the purchase of a hard copy
of the Videos hereunder and for all related Transaction
Responsibilities. Trimark will pay xxxxxxxxx.xxx [*] as a result of
sales of Videos to Users that accessed Trimark's Web site through an
Order Now Button.
h. SALES TRACKING. Under the direction of xxxxxxxxx.xxx, Trimark will
allow for the placement of a mechanism to track Users from the
xxxxxxxxx.xxx site who purchase Videos and Merchandise from Trimark.
Trimark shall provide to xxxxxxxxx.xxx on a quarterly basis an
accounting of all such revenue and costs, and shall pay all sums due
and owing to xxxxxxxxx.xxx within thirty (30) days of the end of each
quarter. Upon written approval of Trimark, xxxxxxxxx.xxx may make the
Videos available for sale on videocassette, videodisc, DVD, or similar
hard-copy media through a xxxxxxxxx.xxx Licensee. In such case, the
Order Now Button on the Access Page would then link to such
xxxxxxxxx.xxx Licensee's Web page, and the xxxxxxxxx.xxx Licensee
shall be solely responsible for the Transaction Responsibilities. In
such event, Trimark shall have no further Transaction Responsibilities
with respect to the transactions of the xxxxxxxxx.xxx Licensee.
3. XXXXXXXXX.XXX COVENANTS:
a. INFRASTRUCTURE. Xxxxxxxxx.xxx will provide the communications
infrastructure supporting the access, transmission, display and
performance of Videos on the System to Users. Additionally,
xxxxxxxxx.xxx will
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[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
maintain at its cost, any technical equipment necessary to
distribute the Videos over the System, along with providing the
audio and video streams licensing software for the System, which
audio/video streaming software, as may be upgraded from time to
time, shall at all times be and remain the exclusive property of
xxxxxxxxx.xxx.
b. ENCODING. Xxxxxxxxx.xxx will encode the Videos provided by Trimark
and shall make such Videos available on the xxxxxxxxx.xxx video
channel on the xxxxxxxxx.xxx Web site for on-demand access and viewing
by Users.
c. EMAIL AND TRANSMISSION PROBLEMS. Xxxxxxxxx.xxx agrees that it will
provide Trimark access to emails from Users relating to the Videos.
Xxxxxxxxx.xxx will also provide Trimark advance written notice of any
scheduled system maintenance that would preclude Users from accessing
the Videos.
d. REPORTING. Xxxxxxxxx.xxx will provide Trimark access to a password
protected Web page that will include the statistics relating to
viewership of the Videos. Such information will be updated on a
regular basis, but not less than once per week.
e. PAY-PER-VIEW. The parties may mutually agree to make the Videos
available on a pay-per-view basis, in which case xxxxxxxxx.xxx shall
require Users to pay an Access Fee in order to access the Videos. The
parties will mutually agree upon the prices to be charged for Access
Fees for each Video. [*]
f. DOWNLOADING PREVENTION. Xxxxxxxxx.xxx shall select the option on the
relevant streaming software intended to prevent downloading and
storage by the viewer. Xxxxxxxxx.xxx agrees to notify Trimark of any
unauthorized downloading of the Videos of which it becomes aware.
g. ACCESS PAGES. Xxxxxxxxx.xxx will host the Access Page(s) on the
xxxxxxxxx.xxx domain. The Videos will be accessible for viewing from
such locations on the System designated by xxxxxxxxx.xxx, including,
but not limited to, the Access Page. At Trimark's request,
xxxxxxxxx.xxx shall prepare separate Access Pages for each Video.
Xxxxxxxxx.xxx will allow Trimark to link directly to the Access Pages.
However, Trimark will not allow any third
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[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
party to link directly to the access page. [*]
h. BANNER PROMOTIONS. Xxxxxxxxx.xxx shall (i) actively promote the
Videos within the xxxxxxxxx.xxx Web site, (ii) promote any premiered
Trimark Videos on the xxxxxxxxx.xxx video homepage, (iii) provide
Trimark with a monthly listing within the xxxxxxxxx.xxx general
newsletter, (iv) designate Trimark as a preferred content provider,
(v) use its reasonable efforts to enable Trimark to work with
xxxxxxxxx.xxx partners, (vi) [*], (vii) provide a hyperlink to
Trimark's Web site from the Access Page. Xxxxxxxxx.xxx will also
promote the video channel in a manner consistent with the promotions
of its other channels, and (viii) [*].
i. BROADCAST INVENTORY. Trimark and xxxxxxxxx.xxx will have the right to
sell Broadcast Inventory of the Videos [*]. [*] Trimark
agrees that it will not select placement of Broadcast Inventory sold
by Trimark over that sold by xxxxxxxxx.xxx other than in cases in
which both parties have sold the same Broadcast Inventory at the same
time. Trimark will be solely responsible for inserting the Broadcast
Inventory advertising into the Videos prior to delivery to
xxxxxxxxx.xxx. Trimark acknowledges and agrees that the Broadcast
Inventory shall comprise no more than ten (10) minutes per hour of any
Video. Notwithstanding any other provision of this Agreement,
xxxxxxxxx.xxx shall have the right, in its sole discretion, to refuse
to display any portion of the Broadcast Inventory if it would conflict
with the exclusive advertising rights granted by xxxxxxxxx.xxx to any
third party, if it would violate the rights of any person, if it would
violate the laws of any jurisdiction, or would be likely to cause
commercial or reputational harm to xxxxxxxxx.xxx as determined by
xxxxxxxxx.xxx in its sole discretion; provided that xxxxxxxxx.xxx
notify Trimark in advance of its decision not to display such
Broadcast Inventory.
j. ADVERTISING. Notwithstanding any other provision of this Agreement,
Trimark acknowledges that xxxxxxxxx.xxx shall retain the exclusive
right to sell all advertising, and all revenue derived therefrom,
including sponsorships of the Videos and Access Pages, audio/video
gateway advertising, and all other advertising that appears on the
Access Pages, and shall accept or refuse any such
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[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
advertising in its sole discretion. However, xxxxxxxxx.xxx will
not run advertisements on the Access Pages for any video
specified by Trimark for alcohol, tobacco, gambling, pornography,
or political endorsements. Xxxxxxxxx.xxx further agrees that it
will remove any other advertising from the Access Pages with
respect to which Trimark provides written notice stating its
reasonable objections to such advertising.
k. REGISTRATION DATABASE. Xxxxxxxxx.xxx intends to maintain a
Registration Database. [*] Trimark acknowledges that
xxxxxxxxx.xxx does not make any representations or warranties
regarding the reliability or accuracy of the Registration Database for
these purposes. Trimark shall treat the Registration Database as
xxxxxxxxx.xxx's Confidential Information, and Trimark shall not have
the right to sell or license the contents of the Registration Database
or any portion thereof to any third parties, or to make any other use
thereof, without xxxxxxxxx.xxx's express, written consent.
l. NO REPRESENTATIONS. Trimark acknowledges that xxxxxxxxx.xxx does not
make any representations or warranties regarding the ability or
exposure of the System, amount of revenue to be realized from the
System or associated advertising, and that there are no guarantees
regarding same.
m. WEB SITE PROMOTION. Xxxxxxxxx.xxx hereby agrees to place the Trimark
Marks on the xxxxxxxxx.xxx Web site in accordance with Trimark's
trademark usage guidelines, to provide a prominent hyperlink from the
xxxxxxxxx.xxx web site to the Access Page(s), and to promote the
transmission, distribution, performance and display of the Videos by
xxxxxxxxx.xxx on the xxxxxxxxx.xxx web site, in press materials and
publications, and in connection with the advertising of the Videos,
subject to Paragraph 4(b).
n. NO MODIFICATIONS. Xxxxxxxxx.xxx agrees that it will not edit or
modify the Videos except as otherwise expressly provided herein.
x. XXXXX. Subject to third party contractual restrictions provided by
xxxxxxxxx.xxx, xxxxxxxxx.xxx hereby grants to Trimark the right to use
xxxxxxxxx.xxx's Marks in print, audio, on-line and other advertising
for the promotion of the Videos, the relationship of the Parties, and
in other means in connection with this Agreement, all consistent
---------------
[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
with Trimark's covenants set forth herein.
4. CONFIDENTIALITY:
a. Each party shall maintain in strict confidence, and not disclose or
distribute to any third person any Confidential Information of the
other party. Confidential Information does not include any
information that: (a) entered the public domain through no fault of
the Receiving Party; (b) is rightfully received by the Receiving Party
from a third party legally entitled to make such disclosure; (c) is
already known to the Receiving Party prior to Disclosure by the
Disclosing Party; (d) is required to be disclosed pursuant to
subpoena, applicable law, or rules or regulations; (e) is
independently developed by the Receiving Party without reference to
any confidential or proprietary information of the Disclosing Party;
or (f) the existence of this Agreement so long as the terms of the
Agreement are not disclosed.
b. Neither party shall issue a press release or make a public
announcement or any disclosure to any third party related to the
transactions contemplated by this Agreement without the prior approval
of such release by the other party.
c. This Agreement shall be deemed Confidential Information. The parties
agree that prior to the disclosure of this agreement or any of its
terms pursuant to the requirements of any applicable law or otherwise,
that they shall cooperate in good faith to seek confidential treatment
of the terms hereof and otherwise take such other reasonable steps to
safeguard the confidential nature of this Agreement.
5. SALE AND ISSUANCE OF STOCK:
a. SALE AND ISSUANCE OF XXXXXXXXX.XXX STOCK. Subject to the terms and
conditions set forth in this Agreement, on the Closing Date (as
defined in Paragraph 10(k)) xxxxxxxxx.xxx shall sell and issue to
Trimark, and Trimark shall purchase from xxxxxxxxx.xxx 45,858 shares
of xxxxxxxxx.xxx's common stock, par value $0.01 per share (the
"Xxxxxxxxx.xxx Stock"), in exchange for the number and kind of shares
described in Section 5b below and the license and other rights granted
to xxxxxxxxx.xxx under this Agreement. On the Closing Date,
xxxxxxxxx.xxx will acknowledge receipt of the consideration provided
in Section 5(b) below representing the purchase price for the
Xxxxxxxxx.xxx Stock and Trimark will acknowledge receipt of
xxxxxxxxx.xxx's stock certificate representing
EXHIBIT 10.105 (CONTINUED)
the Xxxxxxxxx.xxx Stock.
b. SALE AND ISSUANCE OF HOLDINGS STOCK. Subject to the terms and
conditions set forth in this Agreement on the Closing Date, Holdings
shall sell and issue to xxxxxxxxx.xxx, and xxxxxxxxx.xxx shall
purchase from Holdings 412,363 shares of Holding's common stock, par
value $0.01 per share (the "Trimark Stock"), in exchange for the
number and kind of shares described in Section 5a above. On the
Closing Date, Trimark will acknowledge receipt of the consideration
provided in Section 5a above representing payment in full for the
Trimark Stock and the license and other rights granted to
xxxxxxxxx.xxx under this Agreement and xxxxxxxxx.xxx will acknowledge
receipt of Holdings stock certificate representing the Trimark Stock.
c. REPRESENTATIONS AND WARRANTIES OF ISSUER.
(a) REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX.XXX AS ISSUER.
Xxxxxxxxx.xxx represents and warrants to Trimark in connection
with the sale and issuance of the Xxxxxxxxx.xxx Stock as follows:
i. ORGANIZATION AND STANDING. Xxxxxxxxx.xxx is a corporation
duly organized, validly existing under and by virtue of
the laws of the State of Delaware and is in good standing
under such laws.
ii. AUTHORIZATION. On the Closing Date, the shares of the
Broadcast Stock will be duly authorized and, when
delivered, will be duly and validly issued and
outstanding, fully paid and nonassessable, and are free to
the holders thereof of any liens, encumbrances and
restrictions. No person has any right of first refusal or
any preemptive rights in connection with the issuance of
the shares of the Broadcast Stock.
iii. COMPLIANCE WITH OTHER INSTRUMENTS. Xxxxxxxxx.xxx is not
in violation of any term of its Certificate of
Incorporation or Bylaws, or any material agreement,
mortgage, indenture, debenture, trust, instrument,
judgment, decree, order, statute, rule or governmental
regulation to which it is subject (the "Other
Instruments") except for such failures as individually or
in the aggregate would not have a material adverse effect
on the results of operations or financial condition (a
"Material
EXHIBIT 10.105 (CONTINUED)
Adverse Effect") of xxxxxxxxx.xxx. The execution, delivery
and performance of this Agreement and the issuance and sale
of the Broadcast Stock, or the taking of any other action
contemplated by this Agreement will not result in any
material violation of or be in conflict with or constitute
a material default (with or without notice, lapse of time
or both) under any of the Other Instruments, except for
such violations or conflicts which would not have a
Material Adverse Effect.
iv. SEC REPORTS. Xxxxxxxxx.xxx has delivered or made
available to Trimark copies of the following reports of
xxxxxxxxx.xxx (the "SEC REPORTS") heretofore filed with
the SEC: Registration Statement on Form S-1 (Reg.
No. 333.52877) in the form declared effective by the SEC,
Form 10-Q for the fiscal quarters ended September 30, 1998
and June 30, 1998. Except as disclosed therein, none of
the SEC Reports as of their respective dates of filing
contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements made therein, in light of the
circumstances under which they were made, not misleading.
The financial statements of xxxxxxxxx.xxx included in the
SEC Reports, with the notes thereto, are in accordance
with the books and records of xxxxxxxxx.xxx, have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be
stated in the notes to such statements and, in the case of
unaudited statements, as permitted by Form 10-Q)
throughout the periods covered by such statements and
present fairly (subject, in the case of unaudited
statements, to normal year-end adjustments) in all
material respects the financial condition of xxxxxxxxx.xxx
and the results of its operations and cash flows for the
periods indicated.
v. ABSENCE OF CHANGES. Since the December 31, 1997, there
has been no event or condition of any character
specifically relating to xxxxxxxxx.xxx which is likely to
have a Material Adverse Effect.
vi. LITIGATION. Except as set forth in the SEC Reports, there
are no litigation, claims, actions, proceedings or
investigations pending or, to the knowledge of the
xxxxxxxxx.xxx,
EXHIBIT 10.105 (CONTINUED)
threatened against xxxxxxxxx.xxx, which might have a
Material Adverse Effect.
vii. OFFERING. Subject to the accuracy of the Trimark's
representations in Section 5 c(b) and 5 d(b) of this
Agreement, the offer, issuance and sale of the
Xxxxxxxxx.xxx Stock constitute transactions exempt from
the registration and prospectus delivery requirements of
Section 5 of the Securities Act and xxxxxxxxx.xxx has
obtained (or is exempt from the requirement to obtain) all
qualifications, permits, and other consents required by
all applicable state laws governing the offer, sale or
issuance of securities.
viii. GOVERNMENTAL CONSENTS. On the Closing Date, no permit,
consent, approval or authorization of, or declaration to
or filing with, any governmental authority is required on
behalf of xxxxxxxxx.xxx in connection with the execution,
delivery or performance of this Agreement or the
consummation of any transaction contemplated hereby,
except as have been obtained or accomplished or as would
not have a Material Adverse Effect.
ix. COMPLIANCE WITH LAWS. Xxxxxxxxx.xxx is not in violation
of any law, regulation or requirement (including, but not
limited to, any law, regulation or requirement governing
the quality of the environment) which might have Material
Adverse Effect, and xxxxxxxxx.xxx has not received notice
of any such violation.
x. BROKERS. No finder, broker, agent, financial advisor or
other intermediary has acted on behalf of xxxxxxxxx.xxx in
connection with the offering of the Xxxxxxxxx.xxx Stock or
the negotiation or consummation of this Agreement or any
of the transactions contemplated hereby.
(b) REPRESENTATIONS AND WARRANTIES OF TRIMARK AS ISSUER. Trimark
represents and warrants to xxxxxxxxx.xxx in connection with the
sale and issuance of the Trimark Stock as follows:
i. ORGANIZATION AND STANDING. Holdings is a corporation duly
organized, validly existing under and by virtue of the
laws of the State of Delaware and is in good standing
under such laws.
EXHIBIT 10.105 (CONTINUED)
ii. AUTHORIZATION. On the Closing Date, the shares of the
Trimark Stock will be duly authorized and, when delivered,
will be duly and validly issued and outstanding, fully
paid and nonassessable, and are free to the holders
thereof of any liens, encumbrances and restrictions. No
person has any right of first refusal or any preemptive
rights in connection with the issuance of the shares of
the Trimark Stock.
iii. COMPLIANCE WITH OTHER INSTRUMENTS. Each of Pictures,
Holdings, Television, and Music are not in violation of
any term of their respective Charter, or any material
agreement, mortgage, indenture, debenture, trust,
instrument, judgment, decree, order, statute, rule or
governmental regulation to which each are subject (the
"Other Instruments") except for such failures as
individually or in the aggregate would not have a material
adverse effect on the results of operations or financial
condition (a "Material Adverse Effect") of each of
Pictures, Holdings, Television and Music. The execution,
delivery and performance of this Agreement and the
issuance and sale of the Trimark Stock, or the taking of
any other action contemplated by this Agreement will not
result in any material violation of or be in conflict with
or constitute a material default (with or without notice,
lapse of time or both) under any of the Other Instruments,
except for such violations or conflicts which would not
have a Material Adverse Effect.
iv. SEC REPORTS. Holdings has delivered or made available to
xxxxxxxxx.xxx copies of the following reports of
xxxxxxxxx.xxx (the "SEC REPORTS") heretofore filed with
the SEC: Form 10-K for the fiscal year ended June 30,
1998, and Form 10-Q for the fiscal quarter ending
September 30, 1998, and December 31, 1998. Except as
disclosed therein, none of the SEC Reports as of their
respective dates of filing contained any untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading. The financial statements of Holdings included
in the SEC Reports, with the notes thereto, are in
accordance with the books and records of
EXHIBIT 10.105 (CONTINUED)
Holdings have been prepared in accordance with generally
accepted accounting principles applied on a consistent
basis (except as may be stated in the notes to such
statements and, in the case of unaudited statements, as
permitted by Form 10-Q) throughout the periods covered by
such statements and present fairly (subject, in the case of
unaudited statements, to normal year-end adjustments) in
all material respects the financial condition of Trimark
and the results of its operations and cash flows for the
periods indicated.
v. ABSENCE OF CHANGES. Since June 30, 1998, there has been
no event or condition of any character specifically
relating to Pictures, Holdings, Television or Music which
is likely to have a Material Adverse Effect.
vi. LITIGATION. Except as set forth in the SEC Reports, there
are no litigation, claims, actions, proceedings or
investigations pending or, to the knowledge of Trimark,
threatened against Trimark which might have a Material
Adverse Effect.
vii. OFFERING. Subject to the accuracy of the xxxxxxxxx.xxx's
representations in Section 5 c(a) and 5 d(a) of this
Agreement, the offer, issuance and sale of the Trimark
Stock constitute transactions exempt from the registration
and prospectus delivery requirements of Section 5 of the
Securities Act and Holdings has obtained (or is exempt
from the requirement to obtain) all qualifications,
permits, and other consents required by all applicable
state laws governing the offer, sale or issuance of
securities.
viii. GOVERNMENTAL CONSENTS. On the Closing Date, no permit,
consent, approval or authorization of, or declaration to
or filing with, any governmental authority is required on
behalf of Trimark in connection with the execution,
delivery or performance of this Agreement or the
consummation of any transaction contemplated hereby,
except as have been obtained or accomplished or as would
not have a Material Adverse Effect.
ix. COMPLIANCE WITH LAWS. Trimark is not in violation of any
law, regulation or requirement (including, but not limited
to, any law,
EXHIBIT 10.105 (CONTINUED)
regulation or requirement governing the quality of the
environment) which might have Material Adverse Effect, and
Pictures, Holdings, Television or Music have not received
notice of any such violation.
x. BROKERS. Other than as specified on Exhibit B, no finder,
broker, agent, financial advisor or other intermediary has
acted on behalf of Pictures, Holdings, Television or Music
in connection with the offering of the Trimark Stock or
the negotiation or consummation of this Agreement or any
of the transactions contemplated hereby.
d. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX.XXX AS PURCHASER.
Xxxxxxxxx.xxx represents and warrants to Holdings in connection
with its purchase of the Trimark Stock as follows:
i. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with xxxxxxxxx.xxx in reliance upon its representation to
Holdings, which by xxxxxxxxx.xxx's execution of this
Agreement xxxxxxxxx.xxx hereby confirms, that the Trimark
Stock to be received by it will be acquired for investment
for xxxxxxxxx.xxx's own account, not as a nominee or
agent, and not with a view to the resale or distribution
of any part thereof, and that xxxxxxxxx.xxx has no
present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this
Agreement, xxxxxxxxx.xxx further represents that it does
not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with
respect to any of the Trimark Stock.
ii. DISCLOSURE OF INFORMATION. Xxxxxxxxx.xxx has received all
of the information it considers necessary or appropriate
for deciding whether to purchase the Trimark Stock.
Xxxxxxxxx.xxx has had an opportunity to ask questions and
receive answers from Holdings regarding the terms and
conditions of the offering of the Trimark Stock. The
foregoing, however, does not limit or modify the
representations and warranties of Trimark in Section 5
c(b) or 5 d(b) of this Agreement.
EXHIBIT 10.105 (CONTINUED)
iii. INVESTMENT EXPERIENCE. Xxxxxxxxx.xxx acknowledges that it
is able to fend for itself, can bear the economic risk of
its investment and has such knowledge and experience in
financial or business matters that it is capable of
evaluating the merits and risks of the investment in the
Trimark Stock.
iv. RESTRICTED SECURITIES. Xxxxxxxxx.xxx understands that the
Trimark Stock it is purchasing is characterized as
"restricted securities" under the federal securities laws
inasmuch as they are being acquired from Holdings in a
transaction not involving a public offering and that under
such laws and applicable regulations such securities may
be resold without registration under the Securities Act,
only in certain limited circumstances. In this
connection, xxxxxxxxx.xxx represents that it is familiar
with Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities
Act.
v. ACCREDITED INVESTOR. Xxxxxxxxx.xxx is an accredited
investor as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act.
(b) REPRESENTATIONS AND WARRANTIES OF PICTURES AS PURCHASER.
Pictures represents and warrants to xxxxxxxxx.xxx in connection
with its purchase of the Xxxxxxxxx.xxx Stock as follows:
i. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with Pictures in reliance upon its representation to
xxxxxxxxx.xxx, which by Pictures' execution of this
Agreement Pictures hereby confirms, that the Xxxxxxxxx.xxx
Stock to be received by it will be acquired for investment
for Picture's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part
thereof, and that Pictures has no present intention of
selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement,
Pictures further represents that it does not have any
contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the
Xxxxxxxxx.xxx Stock.
EXHIBIT 10.105 (CONTINUED)
ii. DISCLOSURE OF INFORMATION. Pictures has received all of
the information it considers necessary or appropriate for
deciding whether to purchase the Xxxxxxxxx.xxx Stock.
Pictures has had an opportunity to ask questions and
receive answers from xxxxxxxxx.xxx regarding the terms and
conditions of the offering of the Xxxxxxxxx.xxx Stock.
The foregoing, however, does not limit or modify the
representations and warranties of xxxxxxxxx.xxx in Section
5 c(a) or 5 d(a) of this Agreement.
iii. INVESTMENT EXPERIENCE. Pictures acknowledges that it is
able to fend for itself, can bear the economic risk of its
investment and has such knowledge and experience in
financial or business matters that it is capable of
evaluating the merits and risks of the investment in the
Xxxxxxxxx.xxx Stock.
iv. RESTRICTED SECURITIES. Pictures understands that the
Xxxxxxxxx.xxx Stock it is purchasing is characterized as
"restricted securities" under the federal securities laws
inasmuch as they are being acquired from xxxxxxxxx.xxx in
a transaction not involving a public offering and that
under such laws and applicable regulations such securities
may be resold without registration under the Securities
Act, only in certain limited circumstances. In this
connection, Pictures represents that it is familiar with
Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities
Act.
v. ACCREDITED INVESTOR. Pictures is an accredited investor
as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act.
f. RULE 144 COMPLIANCE. At all times after the date hereof, each of
xxxxxxxxx.xxx and Holdings agrees to take such action as may be
necessary to enable a holder of its shares to complete the public sale
of such shares in accordance with Rule 144.
g. DELIVERY OF CERTIFICATES. Each party will deliver certificates
representing the purchase of the stock by each party pursuant to this
paragraph by no later than thirty days after the Closing Date.
h. LEGEND. The parties hereto further agree that any certificate
evidencing the Xxxxxxxxx.xxx Stock or the
EXHIBIT 10.105 (CONTINUED)
Trimark Stock Securities shall bear one or more of the following
legends:
(a) THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, HAVE BEEN TAKEN FOR
INVESTMENT, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID SECURITIES ACT
COVERING THE SALE OR OTHER TRANSFER OR AN OPINION OF COUNSEL,
WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
ISSUER, THAT REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
(b) Any legend required by the laws of any state or other
jurisdiction.
6. TRIMARK REPRESENTATIONS AND WARRANTIES:
a. Trimark has all requisite corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. Subject to the
approval of its Board of Directors, this Agreement has been duly
authorized, executed and delivered by Trimark, constitutes the valid
and binding agreement of Trimark, and is enforceable against Trimark
in accordance with its terms.
b. Trimark hereby represents and warrants to xxxxxxxxx.xxx that (i) the
Videos are owned by or licensed to Trimark, (ii) Trimark has all
necessary rights and licenses to sell and distribute the Videos as
provided herein, (iii) Trimark holds all rights material to this
Agreement throughout the territories and license period set forth of
the applicable Exhibit A or replacement Exhibit A, including the
encoding, transmission, retransmission, distribution, performance,
display and broadcast of the Videos and the Broadcast Inventory by
xxxxxxxxx.xxx, (iv) xxxxxxxxx.xxx's copying of the Videos contemplated
by this Agreement and xxxxxxxxx.xxx's exercise of any rights granted
by Trimark herein, will not violate or infringe any right of privacy
or publicity, any copyright, trademark, moral right or other
intellectual property right, or, to the best of Trimark's knowledge,
any other right of any third party, and (v) the Videos and Broadcast
Inventory as provided by Trimark to xxxxxxxxx.xxx to the best of
Trimark's knowledge do not contain any libelous, defamatory, obscene
or unlawful material.
EXHIBIT 10.105 (CONTINUED)
c. Trimark will be solely responsible for the acquisition of any and all
third party clearances, permissions and licenses which are necessary
in connection with the broadcast by xxxxxxxxx.xxx of the Videos in
accordance with this Agreement and Broadcast Inventory sold by Trimark
throughout the territories specified on Exhibit A or applicable
replacement Exhibit A, including, without limitation, with respect to
the use of any copyrighted and/or trademarked materials and the use of
the name, likeness and/or biographical materials, and for the payment
of all applicable guild fees, and/or any music licensing fees relating
to or arising from xxxxxxxxx.xxx's activities under this agreement.
d. Trimark warrants, represents and agrees that, to the extent required,
Trimark will obtain all requisite consents and permissions of labor
organizations and pay any and all residuals, payments, fees or
royalties, if any, payable under any collective bargaining agreement
or otherwise, in connection with xxxxxxxxx.xxx's exercise of the
rights granted under this agreement. By way of example, and not
limitation or obligation, as between xxxxxxxxx.xxx and Trimark,
Trimark would be liable to pay any residuals required to be paid under
any "Basic Agreement" of the Director's Guild of America, the Writer's
Guild of America, or the Screen Actor's Guild for "Supplemental
Market" showings of the licensed Videos. Xxxxxxxxx.xxx shall provide
to Trimark all information concerning the transmission and
distribution of the Videos as is reasonably necessary for Trimark to
comply with the obligations of this subparagraph.
e. Trimark warrants, represents, and agrees that Trimark shall comply
with all legal restrictions on its use of the Registration Database.
f. Trimark warrants that it has obtained professional media insurance in
the amount of $1,000,000 per occurrence and $3,000,000 in the
aggregate to cover all risks relevant to this Agreement and that
xxxxxxxxx.xxx is an additional insured party.
g. Trimark warrants that all applicable territory and period limitations
will be provided by Trimark on Exhibit A and any replacement Exhibit A
and that such limitations will be no greater for any Video than the
contractual limitations to which Trimark is bound pursuant to its
third party agreements relating to such Video.
h. Trimark warrants that it shall use its best efforts, with regard to
any new Videos to be distributed by Trimark
EXHIBIT 10.105 (CONTINUED)
after the effective date of this Agreement, to secure for the term
of this Agreement the worldwide right to broadcast/distribute such
Videos on the Internet in all manners contemplated in this
Agreement, along with the right to grant all necessary sublicenses
to xxxxxxxxx.xxx to exercise those rights. Notwithstanding the
foregoing, Trimark shall be entitled to license certain videos to
other Internet broadcasters on an exclusive basis; provided that
Trimark offers xxxxxxxxx.xxx the right of first refusal with
respect to the acquisition of the exclusive rights to such videos
under the same terms and conditions. Xxxxxxxxx.xxx will notify
Trimark within two business days of receipt of such offer as to
whether xxxxxxxxx.xxx will enter into an agreement with Trimark
upon the same terms and conditions. If xxxxxxxxx.xxx does not
provide Trimark such notification within the requisite time period,
it will be deemed to have rejected the offer.
7. XXXXXXXXX.XXX REPRESENTATIONS AND WARRANTIES:
a. Xxxxxxxxx.xxx has all requisite corporate power and authority
to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions
contemplated hereby. Subject to the approval of its Board of
Directors, this Agreement has been duly authorized, executed
and delivered by xxxxxxxxx.xxx, constitutes the valid and
binding agreement of xxxxxxxxx.xxx, and enforceable against
xxxxxxxxx.xxx in accordance with its terms.
b. Trimark shall not be required to pay any expense related to the
transmission and/or distribution of the Videos by
xxxxxxxxx.xxx, except as otherwise specified in this Agreement.
c. Xxxxxxxxx.xxx warrants that it has obtained professional media
insurance in the amount of $1,000,000 per occurrence and
$3,000,000 in the aggregate to cover all risks relevant to this
Agreement and that xxxxxxxxx.xxx is an additional insured
party.
d. Xxxxxxxxx.xxx warrants that it will comply with the period
restrictions specified on the most recently received
replacement Exhibit A and such other contractual restrictions
provided to xxxxxxxxx.xxx in advance of the broadcast and in
writing by Trimark. Xxxxxxxxx.xxx warrants that it will also
comply with the territorial restrictions specified on such
Exhibit A by requiring Users to enter in their zip code and
limiting access to the Videos to such Users that do not enter
in a zip code within the unrestricted territories.
EXHIBIT 10.105 (CONTINUED)
e. Xxxxxxxxx.xxx warrants that at all times, the Videos are and
shall continue to be the property of Trimark, and nothing
herein shall be deemed to transfer ownership or control of any
kind to xxxxxxxxx.xxx or any third party.
8. INDEMNIFICATION:
a. Trimark agrees to indemnify and hold harmless xxxxxxxxx.xxx and
its officers, directors, employees and agents from and against
any and all losses, claims, damages, liabilities, obligations,
penalties, judgments, awards, costs, expenses and
disbursements, including without limitation, the costs,
expenses and disbursements, as and when incurred, of
investigating, preparing or defending any action, suit,
proceeding or investigation, caused by, relating to, based
upon, arising out of or in connection with any breach by
Trimark of the representations, warranties or agreements made
by it under this Agreement.
b. Xxxxxxxxx.xxx agrees to indemnify and hold harmless Trimark and
its officers, directors, employees and agents from and against
any and all losses, claims, damages, liabilities, obligations,
penalties, judgments, awards, costs, expenses and
disbursements, including without limitation, the costs,
expenses and disbursements, as and when incurred, of
investigating, preparing or defending any action, suit,
proceeding or investigation, caused by, relating to, based
upon, arising out of or in connection with any breach by
xxxxxxxxx.xxx of the representations, warranties or agreements
made by it under this Agreement.
9. TERM:
a. This Agreement shall be effective on the later of the Closing
Date or March 15, 1999 and shall terminate on January 31, 2001.
The parties agree that within 180 days prior to the expiration
of the term of this Agreement they will enter into good faith
negotiations for a period of not less than thirty days to
extend this Agreement. After the expiration of this Agreement,
xxxxxxxxx.xxx shall cease any advertising or broadcast of the
Videos, except as otherwise expressly approved in writing by
Trimark and agreed to by xxxxxxxxx.xxx.
b. Notwithstanding the foregoing, either party
shall have the right at any time to terminate this Agreement,
effective upon the other party's receipt of termination
notice, without prejudice to any other legal rights to which
such terminating party may be entitled, upon the occurrence
of any one or more of the other party's
EXHIBIT 10.105 (CONTINUED)
failure to comply in any respect with its material obligations,
representations or warranties contained in this Agreement, and
such party's failure to cure the same within thirty (30) days
of receipt of notice of such failure.
10. GENERAL:
a. This Agreement shall constitute the entire
understanding between the Parties, and supersedes all prior
negotiations or understandings between the Parties concerning
the subject matter contained herein.
b. Each party acknowledges and agrees that: (i)
the other party's Marks are and shall remain the sole
property of the other party, (ii) nothing in this Agreement
shall confer in the party any right of ownership in the other
party's Marks, and (iii) the party shall not now or in the
future contest the validity of the other party's Marks.
c. All provisions hereof regarding amounts payable by Trimark to
xxxxxxxxx.xxx and by xxxxxxxxx.xxx to Trimark (as applicable)
shall survive the expiration or earlier termination of this
Agreement until such amounts are paid in full to the payee;
further provided, Paragraphs 4, 5, 6, 7, 8 and 9, and all
portions of this Agreement limiting the use of any Confidential
Information, shall survive termination or expiration of this
Agreement.
d. This Agreement shall be governed by the laws
of the State of Delaware applicable to contracts entered into
and to be performed entirely within the State of Delaware.
The parties agree to submit to binding arbitration in
accordance with the provisions of the American Arbitration
Association.
e. XXXXXXXXX.XXX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER,
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
f. XXXXXXXXX.XXX SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, OR ANY
INTERRUPTION OF SERVICE, DUE TO ANY CAUSE, DUE TO ANY FACTORS
NOT WITHIN XXXXXXXXX.XXX'S CONTROL.
g. The parties hereto are independent parties, and no partnership,
joint venture, enterprise or employment relationship shall be
created or inferred by the existence or performance of this
Agreement.
h. Should any part of this Agreement be found to be illegal
EXHIBIT 10.105 (CONTINUED)
or otherwise unenforceable, both Parties shall continue to be
bound under the remaining parts of the Agreement, if the
purpose and intent of the Parties can be carried out under the
remaining parts of the Agreement. A facsimile signature shall
be deemed an original for purposes of this Agreement. The
headings of this Agreement are for convenience of reference
only, and do not limit or alter the Parties' respective rights
and obligations under this Agreement.
i. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their
respective successors, assigns or purchaser of the respective
companies. Neither party may assign this Agreement without
the consent of the other party, provided, however, no such
consent shall be required for any assignment to any person in
connection with a transaction with such person, or any
affiliate of such person, involving the merger,
consolidation, recapitalization or other reorganization, or
the sale or transfer to such person, or any affiliate of such
person, of all or substantially all of such party's assets.
j. Any and all notices, communications and
demands required herein by either party hereto shall be in
writing and shall deemed to have been given when: (a) served
personally to the addresses listed below; (b) served by a
recognized overnight delivery service such as Federal
Express, UPS or Express Mail to the addresses listed below;
(c) served by United States Mail, certified, postage prepaid,
return receipt requested to the addresses listed below, or
(d) received by facsimile (as evidenced by the transmission
report of the facsimile machine of the transmitting party
acknowledging a good transmission) if sent by facsimile to
the numbers listed below:
IF TO TRIMARK, TO: IF TO XXXXXXXXX.XXX, TO:
C/o Trimark Pictures, Inc xxxxxxxxx.xxx inc.
0000 00xx Xxxxxx 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
Telephone: 310/000-0000 Telephone: 214/000-0000
Facsimile: 310/452-8934 Facsimile: 214/748-6657
att'n: Senior VP, att'n: Xxxxxxx Xxxxxxx,
Business Affairs General Counsel
k. CLOSING.
(a) The obligations of xxxxxxxxx.xxx to consummate the
transactions contemplated by this Agreement shall, at its
option, be subject to the satisfaction at or
EXHIBIT 10.105 (CONTINUED)
prior to March 15, 1999, of the
following conditions: (i) there shall have been no
material breach by Trimark of any its obligations
hereunder and Trimark's representations and warranties
shall be true and correct in all material respects as
though made on the Closing Date; (ii) Trimark shall have
qualified the Trimark Stock for listing on the principal
exchange or trading system on which shares of Holdings
Common Stock are listed or quoted; (iii) Trimark shall
have secured all third party consents required for
consummation of the transactions contemplated hereby;
(iv) xxxxxxxxx.xxx's board of directors shall have
approved this Agreement and the consummation of the
transactions contemplated hereby.
(b) The obligations of Trimark to
consummate the transactions contemplated by this
Agreement shall, at its option, be subject to the
satisfaction at or prior to March 15, 1999, of the
following conditions: (i) there shall have been no
material breach by xxxxxxxxx.xxx of any its obligations
hereunder and xxxxxxxxx.xxx's representations and
warranties shall be true and correct in all material
respects as though made on the Closing Date; (ii)
xxxxxxxxx.xxx shall have qualified the Xxxxxxxxx.xxx
Stock for quotation on the Nasdaq National Market; (iii)
xxxxxxxxx.xxx shall have secured all third party
consents required for consummation of the transactions
contemplated hereby; (iv) Trimark's board of directors
shall have approved this Agreement and the consummation
of the transactions contemplated hereby.
(c) The parties hereto agree to use
their reasonable best efforts to cause the satisfaction
of the conditions set forth herein as soon as reasonably
practicable and in any event prior to March 15, 1999.
In the event that a party learns that any such condition
will not be able to be satisfied prior to March 15,
1999, or at all, such party will promptly notify the
other parties hereto. The closing of the transactions
contemplated hereby shall occur two business days after
the satisfaction or waiver of satisfaction of the
conditions set forth above. The date of the closing is
referred to herein as the "Closing Date." The parties
agree to solicit board approval and all other necessary
consents by no later than February 28, 1999.
EXHIBIT 10.105 (CONTINUED)
[PAGE INTENTIONALLY LEFT BLANK]
EXHIBIT 10.105 (CONTINUED)
IN WITNESS WHEREOF, the Parties hereto have caused the foregoing agreement to
be signed by a duly authorized agent of each party, the day and year first
above written.
TRIMARK HOLDINGS, INC: BROADCAST COM INC.:
By: /S/ By: /S/
Name: Xxxx Xxxx Xxxx Xxxxx, President
Title: Chairman & CEO
DATE: DATE:
TRIMARK PICTURES, INC:
By: /S/
Name: Xxxx Xxxx
Title: Chairman & CEO
DATE:
TRIMARK TELEVISION, INC:
By: /S/
Name: Xxxx Xxxx
Title: Chairman & CEO
DATE:
TRIMARK MUSIC:
By: /S/
Name: Xxxx Xxxx
Title: Chairman & CEO
DATE:
EXHIBIT 10.105 (CONTINUED)
EXHIBIT A
VIDEOS
[*] [*]
[*] [*]
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[*] [*]
[*] [*]
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
Leprechaun [*]
[*] Warlock
[*] [*]
[*] [*]
[*] [*]
---------------
[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
EXHIBIT B [*]
TRIMARK BROKERS FEES
---------------
[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
[Trimark Pictures Letterhead]
February 19, 1999
VIA FACSIMILE TRANSMISSION
(000) 000-0000
Xxx Xxxxxxxx
c/o Xxxxx Xxxxxxxx
Xxxxx, Hergott, Cook,
Xxxxxx and Xxxxx, LLP
000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
RE: XXX XXXXXXXX/ TRIMARK PICTURES/ XXXXXXXXX.XXX
Dear Leigh:
This letter shall confirm our conversation regarding the above
referenced matter. The parties have agreed that in the event that Trimark
and Xxxxxxxxx.xxx execute an agreement within the next ninety (90) days
(subject to reasonable extension to accommodate same negotiations) which
embodies an investment in Trimark Pictures by Xxxxxxxxx.xxx (whether in the
form of cash or stock including a stock swap), Xxxxxxxx Personal Management
shall receive a finder's fee (payable within 10 business days of Trimark's
receipt (from time to time as the same may occur as a result of the same
transaction) of the investment by Xxxxxxxxx.xxx) as follows:
1. [*] percent ([*]%) of the initial One Million Dollars
($1,000,000) (or part thereof) invested in Trimark Pictures by
Xxxxxxxxx.xxx; plus
2. [*] percent ([*]%) of the next One Million Dollars ($1,000,000)
(or part thereof) invested in Trimark Pictures by
Xxxxxxxxx.xxx; plus
3. [*] percent ([*]%) of the next One Million Dollars ($1,000,000)
(or part thereof) invested in Trimark Pictures by
Xxxxxxxxx.xxx; plus
4. [*] percent ([*]%) of any amount thereafter invested in Trimark
Pictures by Xxxxxxxxx.xxx.
---------------
[*] Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT 10.105 (CONTINUED)
Notwithstanding the foregoing, the parties agree that the finder's fee
payable to Xxx Xxxxxxxx shall not exceed Five Hundred Thousand Dollars
($500,000) in the aggregate.
At Trimark's election the finder's fee may be paid in cash or common
stock, or a combination thereof.
Both parties shall keep the nature of this agreement confidential except
as required by law.
If your understanding is in agreement with the foregoing, please so
indicate by signing below. Subsequently we can prepare a more formal
document which shall supercede.
Thank you for your assistance in this matter by accommodating both of
our travel schedules.
Very truly yours,
/S/
Xxxxx Xxxxx
Senior Vice President
Acquisitions & Business Affairs
Dictated by not read
AGREED AND ACCEPTED
Xxxxxxxx Personal Management
By: /S/
Xxx Xxxxxxxx
Date: 2/21/99
EXHIBIT 10.105 (CONTINUED)
TRIMARK PICTURES, INC. TRIMARK HOLDINGS, INC.
TRIMARK TELEVISION, INC. TRIMARK MUSIC
0000 00XX Xxxxxx
Xxxxx Xxxxxx, XX 00000
March 15, 1999
xxxxxxxxx.xxx inc.
Attn: Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Dear Xx. Xxxxxx:
Reference is made to the agreement entered into by and between
xxxxxxxxx.xxx inc., Trimark Pictures, Inc., Trimark Holdings, Inc. Trimark
Television, Inc., and Trimark Music dated as of February 22, 1999 (the
"Agreement").
You are hereby notified and you agree that you hereby notify us
that qualification of stock described and required under Section
10(k)(a)(iii) and 10(k)(b)(ii) of the Agreement will not be satisfied or
waived on or prior to March 15, 1999.
We acknowledge and you are hereby requested to agree that the
references to March 15, 1999 in Section 10(k) of the Agreement are amended to
refer to March 30, 1999.
Please indicate your agreement, on behalf of xxxxxxxxx.xxx inc.,
to the foregoing by signing the below and returning a copy of this letter to
me.
Very truly yours,
/S/
Xxxx Xxxx
Chairman and CEO
XXXXXXXXX.XXX INC.
By: /S/
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
