THIS AGREEMENT is made as of the _ day of February, 1996, among FTI, Inc.,
c/o Beachport Entertainment Corp., 000 Xxxxx Xxxxxxxxx Xxxx., Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx, President ("Company"), Xxxxx
Xxxxxx, 00 Xxxx 00xx Xxxxxx, Xxx. 0X, Xxx Xxxx, Xxx Xxxx 00000 ("Zippel") and
Xxxxxx Xxxxxxxx, Inc. ("Lender") f/s/o Xxxxxx Xxxxxxxx ("Xxxxxxxx", together
with Zippel, are referred to herein as "Composers") in connection with the
creation of music by Composers for the "Fairy Tales On Ice" program presently
entitled "Through The Looking Glass" and starring Xxxxx Xxxxxxxx (the
"Program"). (Lender, together with Zippel, are referred to herein as "Owners").
1. Services. Company hereby engages (i) Lender to provide the services of
Xxxxxxxx to compose the music and (ii) Zippel to write the lyrics for two (2)
original musical compositions (one of which is intended to be the theme song for
the Program, hereinafter referred to as the "Theme Song") to be included in the
Program (the "Compositions").
2. License and Grant of Rights.
(a) Owners hereby grant to Company, its licensees and assigns, the
following exclusive rights and licenses, throughout the world and in perpetuity,
in all media, whether now known or hereafter devised (including, without
limitation, theatrical, non-theatrical, home video, free, pay and satellite
television):
(i) to record and synchronize all or any portion of the
Compositions in timed relation with visual images of the Program (including
promos, clips, advertising and trailers), and to re-record, reproduce and
otherwise make copies of the Compositions as synchronized with the Program in
any and all visual or audiovisual formats, including for use in television and
radio commercials, but only for purposes of news and for promotion of the
Program;
(ii) to record, reproduce and otherwise make copies of the
Compositions in any mechanical format, as a soundtrack album of the Program (a
"Soundtrack Album");
(iii) to market, sell, distribute or disseminate to the public
copies of the Program and a Soundtrack Album by sale, rental, license, lease or
otherwise, in any and all formats; and
(iv) the right to exercise any of the rights granted in
subparagraphs (i), (ii) and (iii) above with respect to a compilation program of
the Program along with portions of other "Fairy Tales" programs produced by
Company or a compilation soundtrack album of compositions from the Program along
with
compositions from other "Fairy Tales" programs produced by Company (as used
herein, "Program" or "Soundtrack" shall be deemed to include any such
compilation program or soundtrack, as appropriate).
(v) subject to the rights of regularly established performing
rights societies, to broadcast, exhibit, display and/or perform the Compositions
publicly in connection with the Program (it being understood that Owners,
Composers or their designees shall be entitled to receive one hundred (100%)
percent of both writer's and publisher's shares of performance royalties for
television/radio performances from any performing right society to which they
belong).
(b) Company shall have the right and may grant to others the right
to reproduce, print, publish, or disseminate Composers' names, approved
pictures, approved likenesses and approved biographical information in
connection with the Program for advertising purposes.
(c) As between Company, Owners and Composers, Owners and/or
Composers (as the case may be) and/or their respective designees, shall own all
right, title and interest, including, without limitation, the copyright and any
renewals or extensions thereof, throughout the universe, in the Compositions.
(d) It is understood and agreed that Company's exclusive rights in
and to the Compositions are only granted in connection with the Program and a
Soundtrack Album and that Company may only use the Compositions in the Program
(in any and all visual formats in which the Program might be delivered,
transmitted or reproduced, including, without limitation, live performances of
the Program), a Soundtrack Album (in any and all audio formats in which a
Soundtrack Album might be delivered, transmitted or reproduced) and in the
advertising, promotion and marketing of the foregoing, and for no other purpose.
Owners hereby expressly reserve all rights not specifically granted to Company
hereunder. Notwithstanding the foregoing, Composers and Owners agree that they
will not solicit a recording of a Composition by a third party until the date
which is six (6) months following the earlier of (i) recording of a
videocassette of the Program or (ii) release of a videocassette of the Program.
(d) Notwithstanding anything to the contrary contained herein,
Company may not utilize the Compositions in connection with animation, whether
intended for television, videotape, theatrical release or otherwise.
(e) Company agrees that the Theme Song will be included in any
production of the Program produced by Company in accordance with the rights
granted to Company pursuant to this paragraph 2
3. Delivery. Composers shall deliver the Compositions to Company in such form
as Company shall reasonably request by February 22, 1996. Any expenses of
recording necessary to fulfill Company's request shall be borne by Company.
4. Right of First Refusal. In the event Company or its affiliates, designees
or assignees shall produce additional programs in the "Fairy Tales On Ice"
series, Xxxxxxxx shall have a right of first refusal to compose the musical
compositions for such additional programs with a lyricist to be chosen in
Xxxxxxxx'x sole discretion. Lender and/or Xxxxxxxx shall, within thirty (30)
days following receipt of notice from Company of Company's intent to produce an
additional program, notify Company of Xxxxxxxx'x exercise of his right to
compose the musical compositions for such additional program. The material terms
of such engagement shall be substantially similar to the terms set forth herein
with respect to the Program, provided that the compensation for such additional
programs shall in no event be less than that set forth herein. The foregoing
right of first refusal shall not apply with respect to the programs entitled
"Sleeping Beauty" and "Xxxxx and the Wolf".
5. Term. The term of this Agreement shall commence on the date hereof and
shall continue until Composers have fully rendered the required services
hereunder.
6. Compensation. As consideration for all services rendered by Composers
hereunder and all rights granted to Company hereunder:
Lender and Zippel shall be entitled to receive the following compensation,
to be paid in equal amounts to Lender and Zippel:
(a) A one-time payment of Fifteen Thousand ($15,000.00) Dollars per
Composition, payable one-half upon execution hereof and one-half upon the
delivery by Composers to Company of the Compositions. The foregoing amount is a
non-returnable, non-recoupable fee for services.
(b) If the Program is broadcast on network television, a one-time
payment of Twenty-Five Thousand ($25,000.00) Dollars per Composition or portion
thereof contained in such broadcast of the Program, payable upon the first
broadcast of the Program;
(c) If the Program is broadcast on basic cable television, a
one-time payment of Five Thousand ($5,000.00) Dollars per Composition or
portion thereof contained in such broadcast of the Program, payable upon the
first broadcast of the Program;
(d) If the Program is broadcast on pay cable or pay-per-view
television, a one-time payment of Fifteen Thousand ($15,000.00) Dollars per
Composition or portion thereof contained in such broadcast of the Program,
payable upon the first broadcast of the Program;
(e) If the Program is adapted into a motion picture, a one-time
payment of of Fifty Thousand ($50,000.00) Dollars per Composition or portion
thereof contained in such motion picture of the Program, payable upon Company's
securing access to the financing of a substantial portion of the budget of such
motion picture of the Program;
(f) If the Program is released as a home videocassette, a royalty of
Fifteen ($0.15) Cents per Composition or portion thereof contained on such
videocassette of the Program, payable with respect to each videocassette of the
Program distributed and sold.
(g) With respect to performances of the Program before a live
audience, two and one-half (2-1/2%) percent of the gross weekly box office
receipts of the Program. As used herein, "gross weekly box office receipts"
shall mean all sums received from ticket sales to the Program allocable to
performances given in such week, less all applicable federal and other admission
taxes or similar taxes which may be now or hereafter imposed upon admission; any
and all booking commissions, charges or expenses (provided that the contract
with the venue at which such production of the Program is being presented allows
deduction of such commissions against gross weekly box office receipts); any
customary fees or commissions actually paid in connection with subscriptions,
theater parties, group sales or benefits, telephone charge services, credit card
organizations such as, American Express, and automatic ticket distribution or
remote box offices; discounts applicable to subscriptions, theater parties,
group sales or benefits and/or organizations similar to TKTS; and library
discounts and commissions, entertainment taxes, admission taxes, federal, state
or municipal, value added taxes, and foreign artist union taxes, if any.
(h) Owners and Composers acknowledge that (i) Company will not be
required to pay any additional compensation in connection with the use of the
Compositions for news clips, advertising or other promotional purposes and (ii)
the one-time payments referred to in this paragraph 2 shall not apply with
respect to broadcast of a portion of the Program in connection with a segment of
a news, current events, news magazine or similar type of program.
7. Soundtrack.
(a) In addition to the compensation set forth in paragraph 6, with
respect to any Soundtrack Album, Company shall cause the applicable record label
to pay directly to Lender and Zippel a royalty of two and one-half (2-1/2%)
percent of the suggested retail list price for top-line, full priced net sales
of Soundtrack Albums sold throughout the world. Royalties under this paragraph
(a) will be computed, calculated and paid on the same basis (e.g., packaging
deductions, free goods, reserves, discounts, return policy, taxes, etc.), and at
the same times as royalties are computed, calculated, adjusted, reduced and paid
to Company by the applicable record label or distributor. In addition to the
foregoing, Company shall pay to Lender
and Zippel an amount equal to two and one-half (2-1/2%) percent of any
non-returnable advance received by Company with respect to a Soundtrack Album.
(b) In the event Company or its licensee releases a Soundtrack
Album, Company shall pay (or cause its licensee to pay directly) to Lender
and/or Zippel, or their designees: (a) a mechanical license royalty of one
hundred (100%) percent of the minimum compulsory license rate under the United
States copyright law on the date of delivery of a Soundtrack Album to the
applicable record company based on net sales of albums distributed and sold in
the United States; (b) a mechanical license royalty of one hundred (100%)
percent of the minimum compulsory license rate under the Canadian copyright law
on the date of delivery of a Soundtrack Album to the applicable record company
based on net sales of albums distributed and sold in Canada, and (c) a
mechanical license royalty for records distributed and sold outside of the
United States and Canada at one hundred (100%) percent of the standard rate
payable in the territory of distribution on the date of delivery of a Soundtrack
Album to the applicable record company based on net sales of albums distributed
and sold in such territory.
(c) Owners and Composers hereby grant to Company the right to enter
into an agreement for a Soundtrack Album provided that such agreement shall be
subject to Owner's and Composers' reasonable approval, not to be unreasonably
withheld or delayed.
8. Accounting. Company will use its best efforts to insure that all monies due
pursuant to paragraphs 6 and 7 will be paid directly to Lender and/or Zippel, as
the case may be, by the parties with whom Company has contracted. Company will
use its reasonable effort to insure that all such parties shall send copies of
all statements sent to Company directly to Lender and/or Zippel, as the case may
be. In the event any payments are not made directly to Lender or Zippel, Company
will compute any royalties due hereunder as of each June 30th and December 31st
for the prior calendar half year. Within ninety (90) days from the end of each
calendar half year (or at such intervals as Company is paid by the applicable
distributor), Company will send to Lender and/or Zippel, as the case may be, a
statement covering those royalties and will pay any royalties which are then
due. If Company makes any overpayment hereunder, the recipient of such
overpayment will reimburse Company for it; Company may also deduct it from any
payments due or becoming due to the recipient of such overpayment. Company will
maintain books and records with respect to monies received from the exploitation
of the Compositions. Owners may, at their own expense, examine those books and
records related solely to the monies received from the exploitation of the
Program, for the purpose of verifying the accuracy of the statements sent to it
hereunder. Owners may make such an examination for a particular statement only
once during any twelve (12) month period and only during Company's usual
business hours, and at the place where it keeps the books and records to be
examined. Owners will notify Company at least thirty (30) days before the date
when it plans to begin an examination. Owners may appoint a certified
public accountant to make such an examination for them. Company will use its
best efforts to insure that Owners have the right to directly audit, soley with
respect to the Compositions, the books and records of any third party with whom
Company contracts.
9. Termination. In the event Company terminates Composer's services hereunder
without legal justification or reasonable cause, then, Company shall pay Lender
and/or Zippel, as the compensation set forth herein in the same manner and at
the same times as such compensation would otherwise be payable.
10. Credit. Composers shall receive credit with respect to each Composition
included in the Program on two separate lines in the form of "Music by Xxxxxx
Xxxxxxxx, Lyrics by Xxxxx Xxxxxx" as follows: (i) in the playbill or other
program for live performances of the Program, (ii) screen credit on a separate
card in the main titles of any television broadcast or motion picture of the
Program (or the end titles thereof if the producer, director and writer credits
only appear in the end titles) and (iii) in all paid advertising for the Program
where principal creators of the Program receive credit (whether for a live,
motion picture, television or videotape production of the Program or a
Soundtrack Album) issued by or under Company's direct control in which the
billing block appears.
11. Confidentiality. This Agreement and the contents hereof constitute a
confidential business relationship among the parties. Company acknowledges
that significant damage could be done to Owners and Composers should the
financial terms of this Agreement become public knowledge. Company agrees that
it will not reveal the terms of this Agreement to any third party (excluding
agents, attorneys, representatives and others to whom it has a legal obligation
to disclose such information, including, without limitation, ABC Video
Productions, Inc.) and that it will exercise reasonable precautions to insure
that neither Company nor its employees or agents shall allow the terms of this
Agreement to become public knowledge except as shall be necessary to fulfill the
terms of this Agreement. In connection with the foregoing, Company acknowledges
that the services of Composers are being supplied to Company at a significantly
reduced fee as an accommodation to Company and Company agrees that, in the event
of a breach by Company, an employee or an agent of Company of the terms of this
paragraph 11, Company shall pay to the Owners the additional amount of Fifty
Thousand ($50,000.00) Dollars as additional compensation hereunder.
12. Assignment. Company shall have the right to assign this Agreement, provided
that the assignee assumes all of Company's obligation hereunder in writing and
Company shall remain secondarily liable hereunder. Owners shall not have the
right to assign this Agreement until Owners' and Composers' services are
completed without Company's prior written consent. This Agreement shall inure to
the benefit
of Company and Owners' and Composers' successors, assigns, licensees and
grantees, as the case may be.
13. Notices. All notices hereunder shall be in writing and shall be given by
personal delivery, registered or certified mail or telegraph (prepaid), at the
addresses shown above, or such other address or addresses as may be designated
by either party. Notices shall be deemed given when mailed or delivered to a
telegraph office, except that notice of change of address shall be effective
only from the date of its receipt. All notices to Company shall be sent to the
attention of Xx. Xxxxx Xxxxxxxxx. Copies of all notices to Lender, Composers or
Owners shall be sent to Shukat Arrow Xxxxx & Xxxxx, L.L.P., 000 Xxxx 00xx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Arrow, Esq.
Copies of all notices to Company shall be sent to Levy & Freundlich, LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.
14. Travel. If Composers are required, pursuant to a specific request by
Company, to travel in connection with the rendition of services hereunder,
Company shall reimburse Composers for reasonable first class travel and
accommodation living expenses.
15. Miscellaneous.
(a) This Agreement has been entered into in the State of New York and the
validity, interpretation and legal effect of this Agreement shall be governed by
the laws of the State of New York applicable to contracts entered into in the
State of New York. The New York Courts (State and Federal) only, will have
jurisdiction of any controversies regarding this Agreement; any action or other
proceeding which involves such a controversy will be brought in those courts,
and not elsewhere. Any process in any such action or proceeding may, among other
methods, be served upon either party by delivering it or mailing it, by
registered or certified mail, directed to the address first above written or
such other address as such party may designate pursuant to paragraph 13. Any
such delivery or mail service shall be deemed to have the same force and effect
as personal service within the State of New York.
(b) This Agreement contains the entire understanding of the parties hereto
relating to the subject matter hereof and cannot be changed or terminated except
by an instrument signed by the parties hereto. A waiver by either party of any
term or condition of this Agreement in any instance shall not be deemed or
construed as a waiver of such term or condition for the future, or of any
subsequent breach thereof. All remedies, rights, undertakings, obligations, and
agreements contained in this Agreement shall be cumulative and none of them
shall be in limitation of an other remedy, right, undertaking, obligation or
agreement of either party. If any provision of this Agreement shall be held
void, voidable, invalid or inoperative, the same shall not affect any other
provision of this agreement.
(c) This Agreement may be executed in counterparts, each of which
constitutes an original and both of which together constitute one and the same
instrument, which shall be binding and effective as to both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
FTI, INC.
By: /s/ XXXXX XXXXXXXXX
----------------------------------
Name:
Title:
XXXXXX XXXXXXXX, INC.
By: /s/ XXXXXX XXXXXXXX
----------------------------------
Name:
Title:
/s/ XXXXX XXXXXX
------------------------------------
Xxxxx Xxxxxx
ACKNOWLEDGED AND AGREED WITH RESPECT
TO PARAGRAPH 11
CAPITAL CITIES/ABC VIDEO PUBLISHING, INC.
By: [signature illegible]
----------------------------------
Name:
Title:
INDUCEMENT
In order to induce FTI, Inc. ("Company") to enter into the above agreement
with Xxxxxx Xxxxxxxx, Inc. ("Lender") and Xxxxx Xxxxxx (the "Agreement"), Xxxxxx
Xxxxxxxx ("Xxxxxxxx"):
1. Assents to the execution of the Agreement and agrees to be bound
by all grants, restrictions, and other provisions of it relating to Xxxxxxxx;
and
2. Acknowledges that Company will have no obligation to make any
payments to Xxxxxxxx in connection with the services rendered by Xxxxxxxx.
3. Guarantees, absolutely and unconditionally, the full performance
by Lender of all of Lender's obligations under the Agreement; and
4. Agrees to indemnify and hold Company harmless from any loss,
damage, liability or expense (including, but not limited to outside attorneys,
fees and legal expenses) which arise from any failure by Lender to fulfill
Lender's obligations under the Agreement, or which are incurred by Company in
the enforcement of its rights under this guarantee.
5. Xxxxxxxx'x liability under this guarantee is direct and
immediate, and is not conditioned upon the pursuit by Company of any remedy it
may have against Lender.
Dated: /s/ XXXXXX XXXXXXXX
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XXXXXX XXXXXXXX
