Co-Development, Financing and Production Agreement
Exhibit
10.4
The
following sets forth the agreement dated as of November 3, 2006 between Platinum
Studios, Inc. (“Platinum”) and Arclight International PTY,
LTD. (“Arclight”) with respect to the co-development, financing and
production of certain motion picture projects (each a “Picture”) based on
certain Platinum comic book properties as set forth below. Platinum
and Arclight are each a “Party” and collectively the “Parties.”
1)
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Properties. Platinum
is the owner of motion picture rights in the
following properties (each a “Property” and collectively the
“Properties”):
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a)
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THE
WITCHBLADE (“Witchblade”)
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b)
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THE
DARKNESS (“Darkness”)
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c)
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DYLAN
DOG aka DEAD OF NIGHT (“Dead of
Night”)
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d)
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THE
HUNTER
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e)
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GHOSTING
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f)
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HIVE
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g)
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MAL
CHANCE
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h)
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XXXXXXXXXX
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2)
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Purpose. The
Parties intend to develop, finance, co-produce and distribute at
least
eight Pictures based on said Properties over a period of Five (5)
years,
with per picture budgets in the range of $6,000,000 to $12,000,000
dollars
(“Range”). Upon mutual agreement by the Parties, the budget for
a Picture may be increased or decreased outside the Range on a case
by
case basis.
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3)
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Development
and Financing. The Parties intend to mutually develop and
produce each Picture based on a Property. Platinum intends to
provide the Properties on which the Pictures shall be based, and
Arclight
shall provide the financing and international distribution for such
Pictures via its international sales arm. In addition, Arclight
agrees to engage Havenwood Media, LLC to shall furnish the producing
services of Xxxxx Xxxxxxxxxx to assist in development, budgeting
and
overseeing physical production of each Picture. Arclight agrees
to use best efforts to finance each Picture via Arclight’s financing
arrangement with GE Capital or alternative sources. The Parties
also intend to access “soft money” deals where available as part of the
Picture financing. A pro forma waterfall of gross receipts from
a Picture is attached as Exhibit A
hereto.
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4)
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Domestic
Distribution. The Parties shall mutually determine how to
pursue domestic distribution for each Picture, although the sales,
fulfillment and delivery of such a sale to domestic distributor shall
lie
with Arclight. It is understood that Arclight is required to
obtain theatrical domestic distribution as a condition to accessing
the GE
Capital fund and is actively pursuing such
distribution. The titles are intended for theatrical
release, but the Parties acknowledge that those not suited for such
release may be licensed for direct to video or special cable premiere
slots. The Parties shall use test screenings, etc. to determine
the optimal release strategy for each
Picture.
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1
5)
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Development
and Selection of Properties.
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a)
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Initial
Development Properties. The Parties have selected the
following Properties as the first Properties to be developed for
production under this agreement. Such Properties are Dead of
Night, The Witchblade, Ghosting, and The Darkness (the “Development
Properties”). The Properties not identified as the Development
Properties are the “Additional Properties.” During the first
three years of the “Term” (as defined below) of this Agreement,
each time a Development Property commences principal photography
hereunder, the parties shall mutually select an Additional Property
to be
deemed a Development Property, and Platinum, in consultation with
Arclight, shall select another Platinum property as an Additional
Property.
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b)
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Development
Commitment. The term of this Agreement (“Term”) shall
commence as of the date of this Agreement and end five (5) years
from the
date hereof, unless earlier terminated as set forth
herein. During the Term Arclight agrees to engage writers
(subject to Platinum’s approval rights in Section 5(f) below) to develop
screenplays based on the Development Properties and provide other
related
development money for budgeting, location scouting,
etc. Arclight has already committed funds to develop Dead of
Night and The Witchblade, and agrees to commit a similar amount to
develop
Ghosting and The Darkness. At all times during the Term,
Arclight agrees to have at least two (2) Properties in active development
(meaning that Arclight shall have committed development funds to
such
Properties and shall be actively trying to get them into
production). If at any time Arclight does not have two (2)
Properties in active development, then Platinum shall give written
notice
thereof to Arclight, and Arclight shall have 30 days to commence
active
development as required herein. If Arclight does not commence
such active development, then Platinum shall have the right to terminate
this agreement.
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c)
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Platinum
Exclusivity Commitment. In consideration for Arclight’s
commitment of such development funds and Arclight’s other obligations
under this Agreement, Platinum agrees to exclusively develop the
Development Properties with Arclight during the Term. In
addition, during the Term, Platinum agrees not to actively “shop” any
Additional Properties, but if any third party expresses an interest
in
developing, producing, licensing rights in or purchasing rights in
any
Additional Property, Platinum shall notify Arclight of such interest
in
writing. If Arclight and Platinum are unable to come to any
agreement with respect to such Additional Property (within 5 business
days) Platinum shall be free to enter into an agreement with such
third
party and such Additional Property shall be excluded from this
Agreement.
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d)
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Termination. If
at the end of the first year of the Term no Properties have commenced
principal photography hereunder, Platinum shall have the right to
terminate this Agreement; provided if the Parties are in “Pre-Production”
with respect to one or more Development Properties (defined as Arclight
backing pay or play offers to lead actors, or in active
“pre-production” as such term is commonly understood in the entertainment
industry - i.e., there is a detailed budget for the Picture and
Arclight is actively scouting locations, identifying key crew and
a
director is attached) then the Term shall be extended for the length
of
the Pre-Production period but in no event for more than six additional
months. Thereafter, if during any twelve month period no
Picture commences principal photography, Platinum shall have the
right to
terminate this agreement (i.e., an additional Picture must commence
principal photography under this agreement no later than twelve months
after the commencement of principal photography of the immediately
preceding Picture on a rolling basis or Platinum shall have the right
to
terminate this agreement); provided if at the time Platinum elects
to so
terminate this Agreement one or more Properties are in Pre Production,
then this Agreement shall continue only for the lesser of an additional
six (6) months or the period of such Pre-Production, but only with
respect to such Projects in Pre-Production, and this Agreement shall
terminate with respect to all other
Properties.
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e)
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Reversion. At
such time as this Agreement is terminated for any reason, then all
right, title and interest of Arclight or its affiliates in the
Properties, including all right, title and interest of Arclight or
its
affiliates in any screenplays, budgets, and development materials
commissioned or owned by Arclight or its affiliates, shall automatically
revert to Platinum, subject to a lien in favor of Arclight in an
amount
equal to 110% of all of Arclight’s (or it’s affiliate’s) actual
out of pocket script development costs paid in connection with the
development of such Property but only for scripts actually utilized
by
Platinum, payable on the first day of principal photography of any
picture
incorporating the Arclight material (provided it is understood that
Platinum shall not be required to reimburse Arclight for use of Arclight
material that comprises modifications to characters already found
in the
Property or “generic” storylines common in comic book adaptations unless
such use incorporates detailed storylines or actual use of substantial
portions of any script paid for by Arclight); provided further, it
is
understood that rights in produced Pictures shall continue per the
terms
for that particular Picture.
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f)
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Controls
and Approvals. During the Initial Period (as it may be
extended pursuant to the terms of this agreement), the Parties shall
mutually determine how to develop the Development
Properties. All decisions regarding development, financing, and
distribution shall be made mutually. Notwithstanding the
foregoing, neither party shall submit a Development Property to any
agencies, talent, studios, third party financiers or other entities
without the consent of the other party. In connection with
Arclight’s funding of development for the Development Properties, all
attachments, writer agreements and terms thereof shall be subject
to the
prior written approval of Platinum, which approval shall not be
unreasonably withheld, and if Platinum fails to respond to any written
request for approval within five (5) business days such approval
is
requested, such matter shall be deemed approved and Arclight will
promptly
give Platinum notice in writing of such deemed
approval. Arclight shall submit drafts of all agreements prior
to execution and no attachments to any Property shall survive the
termination of this Agreement without the written consent of
Platinum.
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6)
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Licensed
and Reserved Rights. Platinum has advised Arclight that due
to the interweaving of characters and storylines and other intellectual
property elements within the Properties, the specific grant of rights
for
a particular Property shall be sufficient to grant the rights required
to
produce, distribute and exploit each Picture on a worldwide basis,
but
character, sequel, and other related rights shall be reserved by
Platinum
as Platinum determines in good faith is advisable. Upon
financing of a Picture based on a Property under this agreement (or
at
such earlier time as the Parties mutually agree is necessary or advisable,
Platinum shall execute an assignment of rights into a special purpose
production entity for such Picture and at such time the definition
of
rights to be contributed by Platinum shall be
negotiated). Notwithstanding the foregoing, Platinum’s reserved
rights shall in any event include (a) all publication rights, (b)
theme
park rights, (c) all animation rights, (d) all interactive rights
whether
or not game oriented (including video games, online games, games
and other
non-theatrical entertainment on any device or though any delivery
method),
(e) live theater and radio rights, and (f) any and all Property based
rights. In addition, Platinum shall have the right
to use and exploit any new character rights in any Picture produced
pursuant to this agreement in connection with the exercise of any
of
Platinum’s reserved (and/or reverted) rights with respect to any
Picture.
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7)
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Rights
Fees To Platinum. Because of the unique nature of each
Property, and because certain Properties such as WitchBlade,
Darkness and Xxxxxxxxxx have additional participants entitled
to compensation for exploitation of such rights, Platinum and Arclight
shall negotiate in good faith the license fee to be paid to Platinum
for
the rights for each Property.
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8)
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Producing
Fees and Participation. Platinum and Arclight shall each
take an equal producer fee out of the budget of each
Picture. Arclight agrees to engage Havenwood Media, LLC to
furnish the non-exclusive services of Xxxxx Xxxxxxxxxx to render
producing
services for each Picture and Arclight and Platinum shall bear on
a 50/50
basis all fees and participation payable to Havenwood Media for the
services of Xxxxx Xxxxxxxxxx. Havenwood Media’s fees and
participation are as follows: 2.5% of the budget (which is 1.25%
from
Platinum and 1.25% from Arclight. Havenwood Media shall be
entitled to receive 5% of the profits of each film, subject to the
same
definitions, terms and conditions applicable to Arclight and
Platinum. Arclight shall provide the non-exclusive services of
Xxxxxxxx Xxxxxxxxxx (subject to his other professional obligations)
and in
connection therewith the special purpose production entity for a
Picture
shall enter into a separate agreement with Xxxxxxxxxx’x loanout company
for his producing services, with such fees and contingent compensation
to
be negotiated in good faith. Platinum shall provide the
non-exclusive services of Xxxxx Xxxxxxxxx (subject to his other
professional obligations) and in connection therewith the special
purpose
production entity for a Picture shall enter into a separate agreement
with
Xxxxxxxxx’x loanout company for his producing services, with such fees and
contingent compensation to be negotiated in good faith. It is
anticipated that the total producing fees to be split between Arclight
and
Platinum (inclusive of Xxxxxxxxx and Xxxxxxxxxx) shall be no more
than 8%
of the ingoing budget of each Picture (inclusive of third party producer
fees, if any).
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9)
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Distribution
Fees and Expenses for Arclight. In consideration for
Arclight’s services as international sales agent for a Picture produced
under this agreement, Arclight shall earn a 20% sales fee on all
foreign
sales it makes, ½ of which shall be payable on a non deferred basis and
one half shall be deferred behind the financing. In addition,
Arclight shall be entitled to recoup its marketing expenses in connection
with each picture “off the top” ahead of its sales fee and the
financier. It is anticipated that the marketing budget for each
Picture will be $150,000 to $250,000 including preparation of one
sheet,
trailer, etc. and shall include a “market charge” to Arclight of [$35,000]
in lieu of any recoupable costs for attending film markets, general
overhead, cost of promotion of Arclight’s slate as a whole,
etc.
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10)
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Profits. Arclight
and Platinum agree to split on a 50/50 basis all profits from a Picture
(with Havenwood’s participation, when payable, off the top per Section 8
above) and net of all third party costs, financing fees,
etc. Exhibit “A” sets forth a pro forma “waterfall” of picture
receipts. Platinum shall bear out if its share of profits the
contingent compensation payable to
Xxxxxxxxx.
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11)
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Credit. For
each Picture produced under this Agreement, Each of Platinum and
Arclight
shall receive two (2) Executive Producer credits, two (2) Co-Executive
Producer credits, and one (1) Produced by Credit. In addition,
Havenwood Media shall be entitled to one (1) Produced By credit,
one (1)
Executive Producer credit, and one (1) Co-Producer credit for all
Pictures
for which it renders services. In addition, subject to the
approval or Arclight and Platinum, all third party rights holders
entitled
to credit shall receive such credit as required by such agreements
with
such third parties. All of the foregoing credits shall be in
the main titles and in paid ads, subject to customary size and excluded
ad
ties, exclusions, etc. with position to be negotiated. Platinum
shall also be entitled to an animated company production credit in
the
main titles of each Picture and a logo “bug” on one
sheets. Each of Platinum and Arclight shall be entitled to
presentation credits on screen and in paid ads, with position and
other
terms to be negotiated in good faith between the parties and the
domestic
distributor of the Picture.
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12)
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Sequels/Remakes/Derivative
Productions. With respect to any Picture produced under
this agreement, theatrical sequel, prequel and remake rights shall
be
frozen for a five year period from first exploitation of such rights
(or 6
½ years from the commencement of principal photography of such Picture,
whichever occurs sooner. With respect to television
exploitation (including original programming for internet exploitation)
Platinum shall control such rights; provided Arclight shall be entitled
to
a passive payment equal to [5%] of all of Platinum’s fees, rights payments
and profits received from the exploitation of such rights (it being
understood, however, that if a television series or other production
is
based on rights reserved to Platinum under Section 6 above, the provisions
of this Section shall not apply).
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13)
Merchandising. For all Picture based merchandising
rights with the exception of Platinum reserved rights Arclight
shall be entitled to an amount equal to twenty five percent
(25%) of all non-refundable, non-returnable income received by Platinum
from the exploitation of such rights after Platinum’s deduction
“off-the-top” from said Platinum receipts of a 20% distribution fee and
recoupment of all of Platinum’s direct, out-of-pocket costs and expenses
incurred in connection therewith including agents and
legal. “Picture based” merchandise shall be defined an
merchandise based solely on the characters and elements that appear
in the
Picture, and shall terminate within a customary period of time after
initial exploitation of the Picture; Thereafter, all
merchandising rights in the Picture and the characters therein shall
be
deemed reserved rights of Platinum.
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14)
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Key
Man. In the event Xxxxxxxx Kordestanti and Xxxxxx
Xxxxxxxxxx are no longer rendering services on behalf of Arclight,
then
Platinum shall have the right to terminate this agreement. Upon
such termination by Platinum, all properties not greenlit shall revert
to
Platinum subject to Section 5(e) above. Upon termination by
Arclight, Arclight’s obligations with respect to financing and development
under this agreement shall terminate. Notwithstanding the
foregoing, for any Pictures greenlit prior to such termination, the
Parties’ rights and obligations with respect to such Picture shall
continue.
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15)
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Assignment. Neither
party may assign its rights and obligations under this agreement
without
the consent of the other (except to a successor company under the
same
management as the current company).
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16)
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Long
Form Agreements. The Parties agree to enter into long form
agreements as and when reasonably necessary (including formal option
agreements for the rights, producing agreements, financing agreements,
etc.)
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17)
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Remedies;
Governing Law. If either party is in material breach of
this agreement, then upon written notice by the non breaching party
to the
breaching party, the breaching party shall promptly commence to cure
such
breach, and cure such breach within 5 business days. If such
breach is not cured as set forth above, or if such breach is not
capable
of cure, then, in addition to any other rights and remedies under
this
agreement, the non-breaching party shall have the right to
terminate this agreement. This agreement and its validity,
construction and effect shall be governed by the laws of the State
of
California applicable to contracts wholly to be performed
therein. Any controversy, claim or dispute arising out of or
relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of
the
scope or applicability of this agreement to arbitrate shall be determined
by confidential binding arbitration in Los Angeles,
California. The arbitrator shall be a member of the American
Arbitration Association (“AAA”) Law Practice Panel of
Neutrals. The arbitration shall be administered by the AAA
pursuant to its Commercial Rules and Supplementary Procedures for
Large,
Complex Disputes. Judgment on the binding arbitration shall be
final and binding and may be entered into in any court having
jurisdiction. As a practical matter, by agreeing to arbitrate,
all Parties are waiving jury trial. The Arbitrator will render a
detailed
written decision. The loser of such arbitration hearing will pay
the
associated fees and costs to arbitrate (including, without limitation,
attorneys’ fees and costs) of the winner. The arbitration process will
include a customary appeal procedure. In the event of termination
of this
agreement by Platinum with or without cause, Arclight shall be entitled
to
an action at law for damages (excluding lost profits or consequential
damages) but in no event shall Arclight be entitled to seek equitable
relief. Notwithstanding the foregoing, upon the greenlighting
of any Picture based on a Property, the remedies of the Parties shall
be
as set forth in the agreements regarding the financing and production
of
such Picture.
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18)
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Arclight
shall execute and deliver any further and additional documents which
Platinum may reasonably deem necessary to carry out and effectuate
the
purpose and intent of this Agreement with respect to the reversion
of
rights to Platinum hereunder. If Arclight fails to execute and
deliver to Platinum any such further documents required of them under
this
Agreement within five (5) business days after Platinum's request
therefor,
or if Arclight fails to take any action reasonably necessary or reasonably
desirable to effectuate the purposes of this Agreement (including,
without
limitation timely exercise of any rights of Arclight under any agreement
between Arclight and a third party that pertains to any Property),
and
Arclight fails to respond within five (5) business days of Platinum's
notice or request therefor, then Arclight hereby irrevocably appoints
Platinum as its attorney-in-fact to execute such documents and take
any
such actions. Said appointment is coupled with an interest and
shall be irrevocable. Platinum shall furnish copies of all documents
executed as Arclight’s attorney in
fact.
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19)
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Each
party ("Indemnifying Party") hereby indemnifies, defends and holds
harmless the other party and its successors, licensees, assigns,
and
employees, officers and directors (collectively for the purposes
of this
Paragraph "Indemnified Party") from and against any and all liability,
loss, damage, cost and expense, including, without limitation, reasonable
attorney's fees (but excluding lost profits or consequential damages)
arising out of any breach or alleged breach, or claim by a third
party
with respect to any warranty, representation or agreement made by
the
Indemnifying Party herein. The Indemnified Party shall promptly
notify the Indemnifying Party of any claim to which the foregoing
indemnification applies and the Indemnifying Party shall undertake,
at its
own cost and expense, the defense thereof. The Indemnified
Party may, at its option and expense, engage its own
counsel. If the Indemnifying Party fails to promptly appoint
competent and experienced counsel, the Indemnified Party may engage
its
own counsel and the reasonable charges in connection therewith shall
promptly be paid by the Indemnifying Party. If the Indemnified
Party settles or compromises any such suit, claim or proceeding,
the
amount thereof shall be charged to the Indemnifying Party, provided
that
the Indemnifying Party's reasonable prior approval has been
secured.
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20. Marketing
Plan: Arclight shall use good faith efforts to carve out a
percentage of the marketing budget to utilize Platinum’s unique marketing
strategy and channels.
AGREED
AND ACCEPTED
BY
/s/
Xxxxx Xxxxxxxxx
ITS
CEO
ARCLIGHT
INTERNATIONAL PTY, LTD.
BY:
Xxxxxxxx Xxxxxxxxxx
ITS: Principal and its Authorized Signatory
7
Exhibit
A
The
following is a pro-forma waterfall of Picture receipts. The
recoupment position of the equity financier is based on arrangement contemplated
by Arclight’s agreement with GE Capital.
EXHIBIT
A
RECOUPMENT
SCHEDULE
Subject
to the repayment of any production lender, gap or super-gap financing, and
collection fee payable to Fintage, all Gross Receipts received into the Fintage
collection account shall be payable on a continuing and rolling basis as
follows:
(i)
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First,
to debt and equity financing (such as GE Capital) until Equity recoups
its
negotiated rate (which all parties will be privy
to.
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(ii)
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If
necessary, a corridor of recoupement during the equity recoupement,
to
Platinum, Top Cow, and/or Awesome Comics of the underlying properties
for
the payment of the deferred Rights Fee, if any. If this payment
or obligation exists, it shall be recoupable prior or simultaneously
to
any fees or commissions to
Arclight;
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(iii)
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Next,
to Arclight for payment of the Marketing
fee;
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(iv)
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Then,
to Arclight for payment of the 10% non-deferred Sales Agency Fee
as a
corridor;
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(v)
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Then,
to recoup any other distribution expenses and residual
payments;
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(vi)
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Then,
to Arclight, to recoup the 10% deferred Sales Agency Fee (accrued
from
first dollar)
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(vii)
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Lastly,
the balance of all monies payable pari passu as
follows:
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a.
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Equity
investors based on the proportion of the budget that they financed
(to be
negotiated);
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b.
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Profit
participants on the pictures (i.e., cast, director,
etc.);
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c.
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The
remainder of all monies to be split 50% to Platinum and 50% to
Arclight
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