FORM OF POST PRODUCTION SERVICES AGREEMENT
Exhibit
D
This
Post
Production Services Agreement (this “Agreement”),
dated
as of [_________], 2007, is by and between DG FastChannel, Inc., a Delaware
corporation (“DG
FastChannel”),
and
New 360, a California corporation (“New
360”).
WHEREAS,
DG FastChannel, New 360, and Point.360, a California corporation (“Point.360”),
are
parties to an Agreement and Plan of Merger and Reorganization, dated as of
April
16, 2007 (as amended or supplemented, the “Merger
Agreement”);
and
WHEREAS,
as a condition of consummating the transactions contemplated by the Merger
Agreement, the parties hereto are executing this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
in
this Agreement and in the Merger Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties to this Agreement hereby agree to the following terms in respect of
post
production services:
| 1. |
TERM
OF AGREEMENT.
The initial term of this Agreement shall commence on the date hereof
and
expire on the earlier of (x) the fifth anniversary of the date of
this
Agreement and (y) New 360’s breach of its obligations under its
noncompetition agreement with DG FastChannel. The term of this Agreement
shall automatically be extended for a one-year term unless either
party
has given the other party at least 180 days’ prior written notice prior to
such fifth anniversary of its intention not to extend the term of
this
Agreement by one year. On each anniversary of each such one-year
extension, the term of this Agreement shall automatically be extended
for
another one-year term unless either party has given the other party
at 180
days’ prior written notice before such anniversary of its intention not
to
extend the term of this Agreement for one additional
year.
|
| 2. |
SERVICES.
From and after the date of this Agreement until the expiration of
the term
of this Agreement (as it may be extended pursuant to Section 1),
(i) DG
FastChannel will utilize post production services, including high
definition duplication, to be provided by New 360; provided
that New 360 provides those services and that New 360’s service level and
pricing are competitive, and (ii) New 360 will act as DG FastChannel’s
resource to vault all elements to be stored in Los Angeles, California
for
existing Point.360 customers and new West Coast-based DG FastChannel
customers; provided
that New 360 provides those services and that New 360’s service level and
pricing are competitive. DG FastChannel will xxxx customers directly
for
vaulting services.
|
| 3. |
CONSIDERATION.
|
| a. |
The
rate card attached hereto as Exhibit
A
will be mutually agreed upon and set forth the rates for the types
of
services described in Section
2
that New 360 charges third parties as of the date of this Agreement.
DG
FastChannel will be billed at a [__]% discount from the rates set
forth in
Exhibit
A
(other than the rates for vaulting media storage and
servicing).
|
| b. |
After
the first anniversary of the date of this Agreement, New 360 has
the right
to modify the rates set forth in Exhibit
A
at
any time after the date of this Agreement. Promptly after modifying
such
rates, New 360 will advise DG FastChannel of the new rates, and the
parties will negotiate in good faith to determine the discount that
DG
FastChannel will receive from the new rates. Until the parties mutually
agree upon the discount to be applied to the new rates, DG FastChannel
will be obligated to make payments to New 360 based upon the prior
discount applied to the prior rates.
|
| 4. |
GENERAL.
|
| a. |
This
Agreement, including Exhibit
A,
includes the entire understanding between the parties hereto, and
may not
be modified or amended without the prior written consent of both
parties.
|
| b. |
The
parties hereto agree that the terms and conditions contained herein
shall
be kept strictly confidential and not disclosed to any third
parties.
|
| c. |
This
Agreement shall be governed by the laws of the State of
California.
|
| d. |
All
services provided by New 360 hereunder are warranted to be free from
any
defects. DG FastChannel must notify New 360 in writing of any defects
within thirty (30) days after the delivery of the service. In the
event
original materials owned by a DG FastChannel customer are lost or
destroyed, New 360 will not be liable to DG FastChannel or its customers
for replacement costs of programming or production and New 360’s liability
to DG FastChannel and its customers will not exceed the cost of replacing
the applicable medium. In the event that the materials of a DG FastChannel
customer are not delivered in the agreed upon time, New 360 will
be liable
to such customer for the amount equal to the delivery charges in
connection with such materials; provided,
however,
that in no event will New 360 be liable for the cost of unused air
time.
The foregoing constitutes New 360’s sole and exclusive warranties under
this Agreement. There are no other express, implied or statutory
warranties, including but not limited to implied warranties of
merchantability or fitness for a particular
purpose.
|
| e. |
DG
FastChannel agrees to defend, indemnify and hold harmless New 360
and its
affiliates and each of their respective directors, officers, employees,
agents and representatives from any damages, liabilities, claims
and
expenses, including reasonable attorneys’ fees, arising out of or related
to any material provided to New 360, including but not limited to
claims,
actual or alleged, relating to any violation of copyright law, export
control laws, failure to procure consents or that such content is
libelous, slanderous, an invasion of privacy, pornographic or otherwise
unauthorized or illegal.
|
2
| f. |
NONE
OF NEW 360 OR ITS RESPECTIVE AFFILIATES OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL HAVE ANY LIABILITY
FOR INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, OR LOSS OF
BUSINESS
REVENUES OR PROFITS OR LOSS OF OPPORTUNITY, RELATING IN ANY WAY TO
ANY
SERVICES PROVIDED UNDER THIS AGREEMENT, UNDER ANY THEORY OF LAW AND
WHETHER OR NOT THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT LIMIT NEW
360’S
LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION
4(b)
ABOVE.
|
| g. |
Nothing
contained herein shall be deemed or construed by the parties hereto
or by
any third party as creating the relationship of principal and agent,
partnership or joint venture between either party hereto, and neither
party hereto is authorized to contract any debt, liability or obligation
for or on behalf of the other
party.
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of this page intentionally left blank.]
3
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by
their respective officers thereunto duly authorized as of the date first written
above.
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DG
FASTCHANNEL, INC.
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| By: | ||
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Chairman and CEO
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NEW
360
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| By: | ||
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Name:
Xxxx X. Bagerdjian
Title:
Chairman, President, and CEO
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EXHIBIT
A
Rate
Card
