AGREEMENT made this 15 day of January, 1998, by Xxxxxx Xxxxxxx, an
individual whose address is 00000 Xxxxxxxx Xxxx., Xxxx 000, Xxxxxxx xxxx, XX
00000 ("Artist") and Prelude Development (hereinafter collectively referred to
as "Manager").
WHEREAS, Artist desires to obtain counsel, advice and guidance in the
entertainment industry and has sought out Manager to obtain such counsel, advice
and guidance; and
WHEREAS, Manager desires to furnish such counsel, advice and guidance;
NOW, THEREFORE, upon the mutual promises, representations and covenants
herein contained, it is hereby agreed as follows:
1. Artist hereby engages Manager, and Manager hereby agrees to act, as
Artist's sole and exclusive personal manager throughout the world in all of
Artist's affairs relating to the management of Artist's career(s) in all fields
of the entertainment industry throughout the world, including without
limitation, in the following areas:
a. motion pictures, legitimate theater, television and radio;
b. recording of phonograph records, electrical transcriptions and
audiovisual works (as that term is defined in the Copyright Act of 1976)
and by any other devices now known or later developed;
c. music publishing, songwriting, literature and literary
publications;
d. personal appearances, including, without limitation, on television,
radio and other broadcast media, concerts, public appearances in places of
amusement and entertainment; and
e. advertising, endorsements and commercial tie-ins which include the
use of Artist's or the members of Artist music, songs, lyrics, name, group
names, stage names, sobriquet, likeness, signature, voices (or facsimile
thereof), photograph, caricature and biographical information for purposes
of advertising, trade and merchandising.
2. Manager agrees to advise, direct and represent Artist in the promotion,
development and advancement of Artist's professional career in all fields of
entertainment; to make himself available at reasonable times and places to
confer with Artist in all matters affecting Artist's career; and to devote as
much of Manager's time and efforts as Manager deems necessary, to such ends;
provided that Manager is available as reasonably requested by Artist to render
the services contemplated hereunder. During the term hereof, Manager is
authorized and empowered by Artist, for and on Artist's behalf:
a. to act as Artist's sole representative and negotiator, along with
Artist's attorney and/or accountant if Artist so chooses, and to confer
with theatrical agencies, employers and other users of Artist's services in
any and all fields of entertainment;
b. to arrange for, approve and permit any and all advertising and
publicity at Artist's sole expense.
c. to approve and permit the use of Artist's names, stage names,
sobriquets, likenesses, signatures, voices (or facsimiles thereof)
photographs, caricatures, biographical information, literary products and
artistic and musical products ("Artist Materials"), for purposes of
advertising, publicity, and for purposes of trade in connection with the
business and products of others; and
d. to retain attorneys to defend and protect the interests of Artist,
including the prosecution of any claims for compensation due Artist for
services rendered by Artist in any field of entertainment.
3. Artist shall not directly negotiate for or contract for Artist's
services in the field of entertainment. Artist shall direct all inquiries for
Artist's services to Manager and Manager shall be the sole representative of
Artist in connection with such matters.
4. Reserved.
5. Artist agrees to use reasonable efforts to promote and pursue Artist's
career. Artist shall not, during the term hereof, engage any third party to
perform the duties which are generally acknowledged to be within the scope of a
personal manager; provided; however, that Artist shall have the right to employ
the services of attorneys and/or accountants.
6. Artist expressly acknowledges and understands that Manager is not a
theatrical employment agent or employment agent of any kind; that Manager has
not offered, or attempted or promised to obtain employment or engagements for
Artist, or promises of information where the same may be procured; and that
Manager is not obligated or expected to do so. During the term of this
Agreement, Artist shall have the right to engage reputable and competent
licensed booking and theatrical agents or other employment agencies in order to
obtain engagements and other employment for Artist. Manager shall have the right
to approve any such agent. Any compensation required to be paid to such agents
or agencies shall be at Artist's and Manager Cost and expense to be split
equally by Artist and Manager. Artist shall inform Manager of all offers of
employment and will refer any inquiries concerning or seeking Artist's services
to Manager.
7. a. (i) Artist shall pay to Manager, and does herewith assign to Manager,
a sum equal to fifty percent (50%) of any and all gross monies or other
considerations which, as a result of Artist's activities during the term of
this Agreement, in and throughout the field of entertainment as referred to
in paragraph 1 hereof, shall be received by Artist or any other persons
(including any of Artist's heirs, distributees, executors, administrators
or assigns), firms or corporations on Artist's behalf during the term of
this Agreement. Artist further agrees to pay to Manager for a period of
twenty four (24) months following the expiration or termination of the term
hereof, fifty percent of all gross monies or other considerations which are
earned or received by Artist or any other persons (including any of
Artist's heirs, distributees, executors, administrators or assigns), firms
or corporation on Artist's behalf pursuant to: (A) any and all agreements
entered into or substantially negotiated during the term hereof which
relate to any of Artist's activities referred to in paragraph 1 hereof and
executed no later than twenty-four (24) months after the termination of the
term of this Agreement, and (B) any and all extensions, renewals,
improvements and/or substitutions of agreements, which agreements are
entered into prior to or during the term, and (C) any and all songs written
or other material created by Artist and/or released during the term hereof
(and the publishing and writers' income from the songs contained thereon).
All such compensation shall be payable to Manager notwithstanding the fact
that Manager's services are not to be performed after the term hereof and
Artist hereby assigns such compensation to Manager. As used herein, the
term "gross monies and other considerations" shall include, but not be
limited to: salaries, earnings, royalties, advances, fees, compensations,
profits, the monetary value of shares of stock at the date of receipt or
acquisition of such stock, percentages, partnership or joint venture
interests, net recoveries from entertainment related activities (whether by
judgment, settlement, or decree) of claims for damages arising out of
matters occurring or materials created or released during the term hereof
and Artist's share of the total amount paid (less any production expenses
actually incurred by Artist).
The manager has the right to buy stock in any corporation related, directly
or indirectly, to the performing career of Artist or any interest in or
right to buy an interest in any partnership or joint venture related,
directly or indirectly, to the performing career of Artist, or that Artist,
as compensation for Artist's services becomes the packager or owner (as,
without limitation, an individual proprietor, stockholder, partner or joint
venturer) of all or a part of a business entity engaged or to be engaged in
any area in the field of entertainment or related field relating directly
or indirectly to Artist's performing career (whether or not Artist's
services in a field of entertainment are furnished to or through such
entity), Manager's percentage compensation hereunder shall apply to the
monetary value of any such interest or right Artist now has and any that
Artist acquires during the term hereof (as of the date Artist acquires such
interest or right) and Manager shall be entitled to its percentage share of
the monetary value thereof.
b. Manager's right to compensation shall not include loan forgiveness,
any so-called "short-fall" tour support with respect to any tour,
reimbursements of out-of-pocket costs in connection with promotional
activities, contributed by any third-party, recording costs or video
production costs paid by a third-party distribution company or record
label.
c. Manager's right to compensation shall not apply to gross monies or
other consideration received by Artist outside the fields of entertainment
(as described in paragraph 1 hereof).
d. Notwithstanding the fact that this Agreement encompasses both
individual and corporate income, Manager shall not be entitled to twice
commission the same item of income from any source. In addition, in the
event Manager enters into a production, publishing or similar agreement
with Artist, Manager shall be entitled to receive compensation equal to the
greater of (i) the compensation under the production agreement, or (ii) the
compensation under this Agreement, but not both elements of compensation.
8. a. Manager shall collect and receive all gross monies and other
considerations earned by Artist during the term hereof with respect to
Artist's activities described in paragraph 1 hereof. Artist agrees and does
hereby irrevocably authorize and direct, for as long as Manager fulfills
the material terms and conditions of this Agreement, that all gross monies
and other consideration received by Manager which are subject to this
Agreement shall be segregated into two shares, i.e. Artist's share and
Manager's share.
b. No failure by Manager to claim immediate payment or reimbursement
of any loan, expense, compensation or commission shall be deemed a waiver
of Manager's right pursuant to the terms of this Agreement. 9. a. Manager
shall keep true and accurate books of account with respect to all gross
monies and other considerations collected hereunder. Artist shall keep true
and accurate books of account with respect to Artist's activities in the
entertainment field. Should Artist receive any compensation directly,
Artist shall immediately deliver such compensation to Manager.
b. Except as specifically set forth to the contrary herein, ten (10)
days after the end of the month during which gross monies and other
considerations are received by or on behalf of Artist, Manager shall render
to Artist statements showing the amount of monies due Artist hereunder, if
any, for and during such monthly periods and the source and nature thereof,
accompanied by payment of any monies shown to be due to Artist.
c. Artist shall be deemed to have consented to all payments,
statements and other accounts rendered by or on behalf of Manager and same
shall be binding on Artist unless Artist notifies Manager in writing within
one year of the date received.
d. Manager shall invoice Artist with respect to all expenses which
Manager is entitled to reimbursement pursuant to paragraph 2(b) above and
paragraph 12 below.
10. Artist hereby appoints Manager, exclusively for the term of this
Agreement and any options, as Artist's true and lawful attorney-in-fact to do
the following as fully and effectively as Artist could do if personally present:
to sign, make, execute and deliver any and all contracts in Artist's name, to
demand, collect, recover and receive all goods, claims, money, interest or other
items that may be due to Artist or belong to Artist. Artist agrees that Artist
shall execute any documents Manager may reasonably deem necessary to carry out
the intent of this agreement ,including without limitation, the power of
attorney herein granted.
11. Artist shall bear the costs of Manager's reasonable and necessary
travel and lodging and long distance telephone, telefax, postage, overnight
courier, copies and telegraph arising as a result of Manager's and Artist's
activities. Manager agrees that all travel on behalf of Artist will be charged
to Artist at the actual rate for the same class of travel used by Artist.
12. a. Artist expressly acknowledges that Manager's engagement and the
rights granted to Manager under this agreement with respect to Artist are
of a special, unique and intellectual character which gives them peculiar
value, and, in the event of the breach by Artist of any material term,
condition, covenant, warranty or representation herein contained, Manager
shall be caused irreparable harm for which the remedy at law is inadequate.
Accordingly, Manager shall be entitled to seek preliminary and permanent
injunctive relief (mandatory or otherwise), and any other equitable relief
which Manager deems appropriate.
b. Artist and Manager agree to hereby indemnify, save and hold each
other harmless from any and all losses, damages (consequential or
otherwise), and expenses (including reasonable attorney's fees, expenses
and court costs) arising out of or in connection with any claim which shall
be inconsistent with any agreements, warranties, or representations made by
Artist or Manager in this agreement and which result in a final judgment
against the indemnified party or is settled with the prior written consent
of the indemnifying party. The indemnifying party agrees to reimburse the
indemnified party, on demand, for any payments made by the indemnified
party at any time after the date hereof with respect to any liability to
which the foregoing indemnify applies. The indemnifying party shall have
the right to participate at its own cost and expense with counsel of its
own choosing in the defense of any claim by a third party under this
paragraph.
13. Manager and Artist hereby agree that Manager has an insurable interest
in the life and well being of the Artist and Artist hereby agrees that should
Manager, at Manager's own expense, elect to obtain and life and/or disability
insurance policy on the Artist naming Manager as beneficiary, Manager will be
entitled to do so and Artist will reasonably cooperate to assist Manager in
obtaining such policies, including submitting to a physical examination, if
necessary.
14. In order to make specific and definite or/or to eliminate, if possible,
any controversy which may arise between Manager and Artist hereunder, Artist and
Manager agree that if at any time either believes that the material terms of
this agreement are not being performed by the other as herein provided, the
complaining party will so notify the other in writing, of the specific nature of
any claim, nonperformance or misfeasance and shall allow the other a reasonable
time after receipt thereof within which to cure such claimed nonperformance.
Artist and Manager each agree that no breach of the terms hereof, unless
intentionally dishonest, will be construed as incurable so long as cured within
such reasonable time.
15. All notices required to be given to either party hereunder shall be in
writing and sent by Registered or Certified Mail, to the respective addresses
first indicated above, Return Receipt Requested with copies as specified herein
below and shall be deemed given when mailed except that notices designating a
change of address shall be deemed given when received.
If to Artist, a copy to:
If to Manager, a copy to:
16. For the purposes of this agreement, the words "person," "party,"
"firm," "corporation," and "company" shall include, where applicable, any
individual, corporation, partnership, associate or other organized groups of
persons or legal successors or representatives of the foregoing.
17. This Agreement shall be binding upon Artist and Manager and their
respective heirs, personal representatives, executors, administrators,
successors and permitted assigns. Artist may not assign any of its rights or
obligations hereunder without the express prior written permission of Manager,
except to an entity which provides Artist's services. Manager's percentage
entitlement will attach to the gross income and other considerations received by
such entity.
18. a. The term of this Agreement shall commence as of the date hereof and
shall continue for a period of five (5) years (the "Initial Term").
b. This Agreement shall be automatically extended for an additional
period (the "Option Period") equal to the term, including all option
periods and extensions, of any LP recording agreement entered into by
Artist with a record label prior to the expiration of the Initial Term of
this Agreement.
c. Notwithstanding the foregoing, in the event Manager does not
negotiate a recording agreement for Artist with a record label within nine
months of the date that a demo recording is completed by Artist, Artist
shall have the right to terminate this Agreement by giving thirty days
written notice to Manager.
d. Manager shall advance the reasonable costs for the completion of
demos for two songs and shall cause such demos to be completed within six
months of the execution of this Agreement.
19. If Manager should dissolve or is adjudicated bankrupt or if a petition
in bankruptcy is filed by, for, or against Manager and is not dismissed within
sixty (60) days or if Manager makes an assignment for the benefit of its
creditors or taken the benefits of any insolvency law, or if a receiver is
appointed by or for Manager, then, in that event, Artist shall have the right to
terminate this Agreement.
20. This agreement constitutes the entire agreement between Artist and
Manager and all prior understandings, representations and agreements as to the
nature of the relationship from the date hereof. No modifications, amendments or
extension hereof shall be binding upon the party sought to be charged unless in
writing and duly executed by both parties. All remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative, and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation, or agreement by either party. No waiver by any party hereto of any
provision of this agreement or of any default hereunder shall affect such
party's rights thereafter to enforce such provision or to exercise any right or
remedy in this event of any other default or breach, whether or not similar. The
provisions of this agreement are severable so that if any provision hereof is
found for any reason to be invalid or unenforceable, such finding shall not
affect the validity, construction or enforceability of any other provision
hereof.
21. This agreement is made in accordance with the laws of the state of New
York and its validity, construction and effect shall be governed by the law of
said State as if this agreement were entered into and wholly to be performed
therein.
22. In the event this Agreement is executed by a group, this agreement
shall be binding on each of the individual members of the group as if entered
into separately and individually. Manager shall represent such individuals in
their individual capacities with respect to all endeavors in the entertainment
field.
IN WITNESS WHEREOF, the parties hereto have set their hands of the day and year
first above written.
MANAGER:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx for Prelude
Development
ARTIST:
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Born:
SS #
