AGREEMENT
This agreement (hereinafter referred to as "Agreement") between P/S
StarGames and On Ice, Inc. (hereinafter referred to as "Venture") and NAK, Inc.
(hereinafter referred to as "NAK") is made and entered into this 15th day of
November 1995, for the purpose of Xxxxx Xxxxxxxx (hereinafter referred to as
"Athlete"), employee of NAK, participating in up to five (5) figure skating
shows with a fairy tale theme to be distributed on video tape, television, CD
ROM and any and all other forms of media (hereinafter referred to as
"Products").
WITNESSETH
WHEREAS, NAK has the sole right to contract for the services of Athlete;
and
WHEREAS, Athlete is an expert professional ice skater; and
WHEREAS, Venture wishes to produce Products for public distribution
starring Athlete; and
NOW THEREFORE, in consideration of the mutual promises listed below and
intending to be legally bound, the parties agree as follows:
2. TERM OF AGREEMENT.
This Agreement shall remain in full force and effect from the day on which
it is executed, until the number of shows and/or Products are completed as set
forth herein, unless sooner terminated in accordance with the terms and
conditions hereof, or extended as set forth herein below.
3. NAK DUTIES.
The parties agree that NAK shall cause Athlete to perform the following
duties in conjunction with this Agreement:
a. NAK agrees that Athlete shall participate at times and locations to be
mutually agreed upon, in up to five (5) video tapes, television shows and other
Products, based on fairy tale themes;
b. NAK agrees that Athlete shall be restricted in performing in other
television shows and video tapes with fairy tale themes without the approval of
Venture. For purposes of this Agreement, fairy tales shall be defined as
well-known fictitious/classic, public domain stories or fables intended to
please children.
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Nothing contained herein shall preclude Athlete from participating in any
live figure skating show whether or not with a fairy tale theme so long as it is
not produced for television or video tape. In addition, Venture agrees that
Athlete will be able to perform in figure skating shows for television and/or
video tape with other producers or companies (i.e. CBS, NBC, Xxx Xxxxxxx, Xxx
Xxxx, etc.). However, NAK agrees that Athlete will not participate in any
television show, home video or other Product as defined herein and/or video tape
with a fairy tale theme that would, within the reasonable judgment of Venture,
negatively impact the distribution of the Products. Venture acknowledges that
Athlete is currently scheduled to participate in an annual Halloween show
entitled "Halloween on Ice" and is in discussions to participate in a figure
skating show with Xxxxxx Xxxxx which may employ a fairy tale theme. Venture
agrees that Athlete's participation in these shows will not be considered a
breach of this Agreement. Notwithstanding anything else contained herein, the
parties acknowledge that this Agreement is not intended to hinder Athlete's
growth in any way or preclude her from exploiting various opportunities so long
as such activities are not, as interpreted in the reasonable business judgment
of the parties, injurious to the distribution or production of the Products;
c. If any Product is in fact made, NAK agrees that Athlete shall remain
exclusive for the production of Product(s) with fairy tale themes commencing
with the distribution date of such Product(s) and lasting for a period of three
(3) years from the date the final or last Product in which Athlete appears
begins distribution or is introducted in the marketplace;
d. NAK agrees to make Athlete available for seven (7) consecutive or
non-consecutive days of publicity and promotion for each video tape in which
Athlete participates which shall be subject to Athlete's prior bona fide
professional and personal commitments, and a reasonable number of days for
promotions, advertisements or appearances to promote other Products produced by
Venture. The parties understand that seven (7) to nine (9) days will be required
for production of each video tape and Athlete will make the necessary time
available for said production. The parties will mutually agree on the specific
scheduling of appearances and promotional dates.
4. Consideration.
In consideration for NAK's duties as set forth in paragraph three (3) of
this Agreement, Venture grants to NAK the following rights and benefits in
conjunction with this Agreement:
a. If any video tape is produced, NAK will receive a fee of Thirty-Five
Thousand U.S. Dollars ($35,000) per video tape for a minimum of three (3) video
tapes as an advance payment against royalties as set forth below;
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b. As soon as Athlete is used in one (1) such video tape, Venture becomes
obligated to compensate NAK for three (3) video tapes, whether or not Athlete is
used. Such Payment shall be made according to the schedule attached hereafter
and labeled Exhibit A; NAK shall be compensated with royalty payments in only
those video tapes in which she appears.
c. If no video tape or Product is produced, Venture shall not owe Athlete
any monies related to this Agreement;
d. Subject to the terms set forth herein and subject to the terms and
conditions set forth in the production and distribution agreement between
Capital Cities/ABC Video Publishing, Inc. and Venture ("ABC Contract"),
Venture shall pay to NAK a royalty of twenty percent (20%) of the net profits
Venture receives from the ABC Contract. The royalty payment set forth herein
shall first be applied against the fee set forth in paragraph 4(a). In addition,
subject to the ABC Contract, Venture agrees to pay NAK a one time fee of
Seventy-Five Thousand Dollars ($75,000) in the event that three (3) or more of
the programs are licensed from the ABC Contract for initial broadcast on ABC,
CBS, FBC, or NBC (i.e. Network TV) and Venture agrees to pay NAK a one time
bonus in the total amount of Twenty-Five Thousand Dollars ($25,000) in the event
that three (3) or more of the programs are licensed from the ABC Contract for
initial broadcast on non-network television;
e. NAK shall have the right to inspect the books and records of Venture
related to royalty payments from time to time and at NAK's expense. After each
royalty statement is received, NAK shall have said right to inspect for that
particular statement for a two (2) year period. If there is a significant error
in the payment of royalties found as a result of any such inspection, Venture
shall bear the cost of that particular inspection or audit.
5. APPROVAL.
Venture agrees that Athlete shall be consulted for input in all aspects of
the production of the Products including, but not limited to, skaters used,
music, storylines, costumes, choreography, etc. Further, Venture shall have the
ultimate approval over the above elements of production.
6. ASSIGNABILITY.
Except as stated herein, neither NAK nor Venture shall have the right to
sell, exchange, assign or transfer its rights and duties under this Agreement,
in whole or in part, to any person and/or entity without the others express
approval. NAK shall have the right to assign the financial benefits set forth
herein. Venture shall have the rights hereunder to assign its rights to any
third party distributors in order to
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carry out the obligations hereunder or in the event that Venture is dissolved
for any reason.
7. NOTICES.
All notices, statements, consents, approvals, documents and other
communications to be given hereunder shall be in writing and given by one party
to the other either by personal delivery, by certified mail, or by telegram and
shall be addressed as follows:
If to NAK:
NAK Productions
Xxxxx Xxxxxxx
0000 Xxxxxx Xxxx.
Xxxxx 0000
Xxxxxxxxx, Xx. 22209
If to Venture:
Xxxxx Xxxxxxxxx and Xxxxxx Xxxx
On Ice, Inc. PS/StarGames
000 X. Xxxxxxxxx Xxxx. 00 Xxxx Xx. #0
Xxxxx 000 Xxxxxx xxx Xxx, Xx 00000
Xxx Xxxxxxx, Xx 00000
or at such other addresses as a party may specify from time to time. Notice
given by personal delivery, certified mail, or telegram shall be deemed given
upon the date of personal delivery, mailing or delivery of such telegram to a
telegraph office, charges prepaid, as applicable.
8. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding between Venture and NAK
and cannot be altered or modified except by an agreement in writing signed by
the parties. Upon its execution, this Agreement shall supersede all prior
negotiations, understandings and agreements, whether written or oral, and such
prior agreements shall thereupon be null and void and without further legal
effect.
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9. SEVERABILITY.
Every provision of this Agreement is severable. If any term or provision
hereof is held to be illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not effect the validity of the remainder of this
Agreement.
10. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
Any suit or action arising out of breach of this Agreement shall be filed in a
court of competent jurisdiction in Los Angeles, California. The parties hereby
consent to the personal jurisdiction of said court.
11. ARBITRATION.
Any disputes arising out of this Agreement shall be submitted for binding
arbitration under the Rules of the American Arbitration Association, with the
agreed-to venue in the American Arbitration Association office in Los Angeles,
California. Judgment on the arbitrator's award may be taken in U.S. District
Court or any other court having jurisdiction over the non-prevailing party.
12. INDEMNIFICATION.
NAK agrees to protect, indemnify, and save harmless Venture from and
against any and all expenses, damages, claims, lawsuits, actions, judgments, and
costs whatsoever, including reasonable attorney's fees, arising out of, or in
any way connected with any claim or action arising out of or caused by any
actions of NAK, unless such claims arise from the gross negligence or wanton and
willful acts of Venture. Venture agrees to protect, indemnify, and save harmless
NAK from and against any and all expenses, damages, claims, lawsuits, actions,
judgments, and costs whatsoever,including reasonable attorney's fees, arising
out of, or in any way connected with any claim or action arising out of or
caused by any actions of Venture, unless such claims arise from the gross
negligence or wanton and willful acts of NAK.
13. INDEPENDANT CONTRACTOR.
Nothing contained herein shall be deemed to create a partnership or joint
venture between NAK and Venture. The parties shall be treated as independent
contractors; as such, there shall be no withholding of any taxes from any
payments made hereunder.
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14. CONFIDENTIALITY.
Except to third party distributors and as required by law, the parties
agree not to divulge any of the terms and conditions set forth herein to any
other individual, company, or third party entity, and that the terms and
conditions shall remain strictly confidential.
15. SIGNIFICANCE OF PARAGRAPH HEADINGS.
Paragraph headings contained hereunder are solely for the purpose of aiding
in speedy location of subject matter and are not in any sense to be given weight
in the construction of this Agreement. Accordingly, in case of any question with
respect to the construction of this Agreement, it is to be construed as though
paragraph headings had been omitted.
16. RIGHT TO CONTRACT.
Each party hereto represents to the other that it is authorized to enter
into this Agreement and provide the services to be provided hereunder and the
exercise of the rights granted to the other party hereunder will not conflict
with any commitments or agreements previously entered into between the
representing party and other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ XXXXX X. XXXXXXXX 11/15/95
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NAK, Inc. Date
President
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Title:
/s/ XXXXX XXXXXXXXX
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Venture Date
Partner
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Title:
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