AGREEMENT FOR PAYMENT OF ROYALTIES
This Agreement ("AGREEMENT") is made effective the 20th day of
April, 2000, by and between XXXXXXXXX COMMUNICATIONS, INC., a California
corporation, ("KCI") and Xxxx Xxxxx, an individual residing at 000 Xxxxx Xxxxx
Xxxxxx, #00, Xxxxxx Xxxxx, Xxxxxxx 00000 ("XXXXX"). This Agreement formalizes,
restates and replaces that certain agreement evidenced by a Memo re "Proposal
for distribution of 'Dead Angel'," dated October 18, 1999, which was addressed
to XXXXX from Xxxx Xxxxxxxx, the Director of Internet Business Affairs of KCI
(the "MEMO AGREEMENT").
RECITALS
A. KCI is in the business of marketing books and videos via the
Internet.
X. XXXXX has written a book titled "Dead Angel" which pertains to
XXXXX'x relationship with Xxxxx Xxxxxx (the "BOOK").
X. XXXXX desires to have KCI market, and KCI desires to market,
the Book via the Internet pursuant to the terms of this
Agreement.
D. Pursuant to the terms of the Memo Agreement, KCI previously
has paid (i) $3,000 to XXXXX to finish the Book, and (ii)
$2,000 to Xxx Xxxxxx.
AGREEMENT
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NOW THEREFORE, in consideration of the Recitals made above, the
representations and covenants made herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. SERVICES TO BE PERFORMED BY KCI.
KCI hereby agrees to perform the following services on behalf of XXXXX
in an effort to promote the Book (the "SERVICES"):
A. VIDEO TAPED INTERVIEWS. KCI or its agents, at KCI's cost and
expense, will videotape interviews with Xxxxx Xxxxxx, Xxx
Xxxxxxx and XXXXX (the "INTERVIEW VIDEOTAPE").
B. PROMOTIONAL PARTY. KCI will pay XXXXX $6,000 to be applied
towards expenses to be incurred by XXXXX (and evidenced by
written documentation satisfactory to KCI) in connection with
his hosting of a party to promote the Book at Cocodrie on or
about May 8, 2000 (the "PARTY"). XXXXX shall provide KCI
copies of any written documentation evidencing the Party
expenses which KCI reasonably requests. To the extent XXXXX
incurs Party expenses which in the aggregate are less than
$6,000, XXXXX hereby agrees to refund the difference to KCI
within 15 days of the date of the Party. XXXXX will arrange to
have the "All Star Band" perform at the Party. The members of
the All Star Band include Xxxxx Xxxxxxxxx (originally from the
Xxxxx Xxxxx Band), Xxxxx Xxxxx (originally from the Xxxxx
Xxxxx Band), Xxxxx Xxxxxxx (originally from the Xxxxx Xxxxxx
Band, Starship), Xxxxxx Xxxx (originally from the Xxxxx Xxxxxx
Band), Ed "Mudbone" Xxxxxx (originally from the Xxxxx Xxxxxx
Band) and Xxxxx Xxxxx (originally from Cold Blood). KCI or its
agents, at KCI's cost and expense, will videotape the Party
and the performance of the All-Star Band at the Party (the
"PARTY VIDEOTAPE").
C. WEBCAST. KCI will feature a webcast on the homepage of the
XXX.XXXX.XXX website (the "WEBCAST"). The Webcast will include
clips, to be selected by KCI, from the Interview Videotape and
the Party Videotape.
D. PAYMENTS. KCI has already paid $3,000 to XXXXX to finish the
Book and an additional $2,000 to the Editor's Agent, and XXXXX
hereby acknowledges that such payments have been made. In
addition to these payments, KCI hereby agrees to make the
following payments in an effort to promote the Book: (i) the
$6,000 to be paid to XXXXX as of the date of this Agreement to
be used for Party expenses in accordance with paragraph 1.D
above, and (ii) a second payment of $2,000 to the Editor's
Agent as agreed forthwith.
II. CONSIDERATION PAID FOR SERVICES.
As consideration for the Services performed or to be performed by KCI,
XXXXX hereby agrees to pay KCI the following consideration in accordance with
the terms and conditions of this Agreement:
A. ONLINE DISTRIBUTION ROYALTY. XXXXX hereby agrees to pay KCI in
perpetuity a royalty equal to 50% of the Gross Sales Revenue
generated from the distribution of the Book via the Internet
(the "ONLINE DISTRIBUTION ROYALTY"). The remaining 50% of the
Gross Sales Revenue shall be remitted to XXXXX within 45 days
of the end of each calendar quarter. For purposes of this
Agreement, "GROSS SALES REVENUE" means the gross revenue
actually received by KCI with respect to sales of the Book via
the Internet, based on a cash method of accounting, and
otherwise determined in accordance with generally accepted
accounting practices, applied on a consistent basis from
period to period.
B. OTHER ROYALTIES. XXXXX hereby assigns to KCI the right to
receive for two years following the date of this Agreement 50%
of all royalties generated by the Book, the Interview
Videotape, the Party Videotape or any content contained
therein (the "OTHER ROYALTIES"), whether such revenues arise
from leases, licenses, sales and other transfers, uses and/or
dispositions of any interest in the Book, Interview Videotape
and/or Party Videotape. If XXXXX initially receives such
revenues, the Other Royalties shall be paid to KCI no later
than 45 days after the end of each calendar quarter in which
such revenues were received by XXXXX. If KCI initially
receives such revenues, it shall retain for itself the Other
Royalties and shall remit the remainder of such revenues to
XXXXX or his designated assigns no later than 45 days after
the end of each calendar quarter in which such revenues were
received by KCI.
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III. GENERAL PROVISIONS.
A. GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of
California. The proper venue for any action arising from or in
connection with the interpretation or enforcement of this
Agreement shall be the Superior Court for the County of
Orange, State of California.
B. SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired in
any way and shall be construed in accordance with the purpose
and terms of this Agreement.
C. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon
the respective executors, administrators, heirs, successors
and assigns of the parties. Except as expressly provided
herein, nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties
hereto, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
D. NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon
personal delivery, 24 hours after transmission by telex, or
five days after deposit in the United States mail, by
registered or certified mail, addressed as set forth on the
execution page hereto or at such other address as such party
may designate by ten (10) days' advance written notice to the
other party.
E. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
F. HEADINGS. The headings of the sections of this Agreement are
for convenience and shall not by themselves determine the
interpretation of this Agreement.
G. AMENDMENT OR WAIVER OF AGREEMENT. The provisions of this
Agreement may not be amended or waived except by a written
instrument signed by the affected parties hereto.
H. LEGAL ACTION AND FEES. In the event of any controversy, claim
or dispute between the parties hereto arising out of or
relating to this Agreement, the prevailing party shall be
entitled to recovery from the nonprevailing party its or his
reasonable expenses, including, but not by way of limitation,
attorneys' fees.
I. ENTIRE AGREEMENT. This Agreement constitutes the entire
contract between the parties relative to the subject matter
hereof and no party shall be liable or bound to the other in
any manner by any warranties, representations or covenants
except as specifically set forth herein. Any previous
agreement among the parties with respect to the matters
discussed herein is superseded by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed this 20th day of April, 2000.
KCI: XXXXXXXXX COMMUNICATIONS, INC.
By: /S/XXXX XXXXXXXXX
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Name:_________________________
Its:__________________________
Address:______________________
______________________
______________________
Fax No.:______________________
XXXXX: /S/XXXX XXXXX
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Xxxx Xxxxx
Address:705 X. Xxxxx #00
Xxxxxxx Xxxxx, XX 00000
Fax No.:(000) 000-0000
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