EXHIBIT 10.2 Marvel Agreement
AGREEMENT as of February 29, 1998, by and between FineLine Properties, Inc., an
Ohio corporation having a place of business at 0000 Xxxxxxxx Xxxxx, Xxxx, Xxxx
00000 ("FineLine") and Marvel Entertainment Group, Inc., a Delaware corporation
having its principal office at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Marvel").
WHEREAS, FineLine owns or controls all rights, title and interest in and to the
valuable property known under the character group names of "Moodiest, Tasties"
and "The Hogstturrs" (individually a "Character Group" and collectively the
'Character Groups"), which property includes, without limitation, the rights to
all names, characters, symbols, designs, depictions, likeness, costumes, visual
representations, characteristics, concepts, pictorial and written graphics, and
other intellectual, literary, moral, and property rights and goodwill contained
in, relating to or associated with the property or any part thereof
(hereinafter the "Property");
WHEREAS, FineLine has the sole and exclusive right to create, design, print,
reprint, publish and republish, distribute and redistribute, translate, sell
and license anywhere in the world in any language literary works, printed
matter, publications, and any and all merchandise or any other goods or
products, and also the sole and exclusive right to reproduce and record, or
option and/or license others to do the same, all or any part of the Property in
any audio, visual, or audiovisual mode now known or hereafter devised and to
release, distribute, sell, and/or exploit, and to license others to do the
same, said recorded work in all languages throughout the world. FineLine also
has the sole and exclusive right to sell, dispose of, license and exploit all
merchandise, ancillary, allied and subsidiary rights in and to the Property
and/or based upon or derived or adapted from or incorporating the Property or
any part, portion, element, aspect or feature thereof, including but not
limited to all merchandising rights and all (including, without limitation,
remakes and sequels) motion picture, television, video, radio, and live
dramatic stage rights, and all ancillary rights related thereto, in all
languages throughout the world. All rights enumerated herein shall hereinafter
be collectively referred to as the "Exploitation Rights"; and WHEREAS, FineLine
desires to sell its entire right, title and interest throughout the world in
and to the ownership of the Property and to all rights in and to the Property
including the Exploitation Rights, and Marvel desires to purchase same, upon
the terms, conditions, covenants and representations hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and all of the mutual
promises, terms, and conditions hereinafter set forth, it is agreed as follows:
I. CLOSING
1.1 The Closing, as such term is herein employed, shall take place following
the execution of this Agreement but in no event later than ten (10) business
days from full execution of this Agreement.
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II. PURCHASE AND SALE OF PROPERTY
2.1 Assets to Be Transferred-Upon the terms and subject to all of the
conditions herein and the performance by each of the parties of their
respective material obligations hereunder, FineLine agrees to sell, transfer,
convey, assign and deliver to Marvel (or its designee company or companies
which shall execute an agreement assuming Marvel's obligations hereunder), and
Marvel agrees to acquire and accept (or have such designee company or
companies acquire and accept) from FineLine as hereinafter provided, at the
Closing, the entire right, title and interest of FineLine in and to the
ownership of the Property and the Exploitation Rights throughout the world,
including but not limited to the following:
(a) The Property as it may be used and has been used and all trademarks, trade
names, service marks, trade styles, indicia and all variations thereof
throughout the world used with, included in, associated with or relating to the
Property, including but not limited to the characters identified on Schedule A
hereto and the trademarks comprised of the character names identified on
Schedule A identified on Schedule B hereto, and all registrations and
applications for registration thereof in all classifications throughout the
world including but not limited to the registrations and applications listed
and/or indicated on Schedule B hereto, together with the goodwill symbolized
thereby and the right to recover for past infringement thereof.
(b) All copyright rights throughout the world in or relating to the Property
and/or all previously published, produced or created works utilizing or
associated with the Property, including all registrations therefor and all
renewals and extensions thereof.
(c) All published and unpublished artwork and all copies thereof, all editorial
material and all advertising and publicity material pertaining to all works or
publications featuring the Property.
2.2 Purchase Price. The purchase price for the Property and the Exploitation
Rights (the "Purchase Price') shall be comprised of the following:
(a) A non-refundable fee of Seven Thousand Five Hundred Dollars ($7,500) per
Character Group or a total of Twenty-two Thousand Five Hundred Dollars
{$22,500) for the three Character Groups named hereinabove, payable at the
Closing;
(b) For a period of fifteen (15) years commencing on the date of first
commercial use of the Property by Marvel, Marvel shall pay to FineLine
royalties based on the net revenues generated from the exploitation of the
Property or flat fees for certain types of exploitation. "Net Revenue" shall
mean gross revenues actually received by Marvel from the exploitation of the
Property less returns, against commissions, applicable taxes, and Marvel's
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direct expenses in connection with such exploitation (excluding overhead
costs). The royalties or flat fees shall be as follows:
(i) a royalty of one percent (1%) of Marvel's net revenues for all publishing
and print publications featuring or utilizing the Property;
(ii) a royalty of twenty percent (20%) of Marvel's net revenues from the sale
or license of merchandise featuring or utilizing the Property;
(iii) a flat fee of Seven Thousand Five Hundred Dollars ($7,500) for each
television production Marvel produces or licenses others to produce in which
one or more of the Character Groups are the primary featured characters,
meaning that the name(s) of the Character Group(s) appears in the title of the
television show and/or the characters comprising the Character Group(s) appear
in at least 50% of the duration of the television show; and
(iv) a flat fee of Twenty-five Thousand Dollars ($25,000) for each major motion
picture Marvel produces or licenses others to produce in which one or more of
the Character Groups are the primary featured characters, such term having the
same meaning as defined in (iii) above.
(c) In the event Marvel utilizes the Property in a publication, merchandise
item or other medium also containing properties other than the Character
Groups, the royalty due FineLine shall be a pro rata share of the aforesaid
royalties equal to the ratio of the appearance time of the Property to the
total length of the project calculated. If the prominence of all properties is
almost equal, the royalty due shall be the prorata share of the royalties equal
to the ratio of the number of characters from the Property featured to the
total number of characters featured in the project or merchandise item.
(d) Marvel shall render semi-annual statements to FineLine relating to
royalties payable in respect of each semi-annual period after initial
exploitation of the Property in accordance with Marvel's regular accounting
practices, showing the number, description, invoiced selling price, and other
pertinent information for each publication, item of merchandise or other use
of the Property, and the amounts due FineLine for each such period. Payment
of the amount due on each statement, after allowance of estimate for returns
of publications or other items sold on a returnable basis, shall accompany
each such statement, and shall be submitted no later than sixty (60) days
after the end of such semi-annual period.
(e) Marvel shall maintain, in accordance with generally accepted accounting
principles, accurate and complete books and records relating to the
exploitation of the Property. Marvel shall keep all such books of account
and records available to FineLine at Marvel's principal place of business
for at least two (2) years after the termination or expiration of this
Agreement. During this Agreement, but not more than once each year, FineLine
or FineLine's designee may, during regular business hours, on at least ten
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(10 days written notice to Marvel, examine and, at FineLine's sole cost and
expense, make extracts and copies of Marvel's books of account, records,
vouchers, invoices and all other documents, as they relate to the Property,
in order to determine the accuracy of the statements furnished to FineLine
hereunder. In the event that FineLine or its authorized representatives shall
discover a deficiency for any accounting period of five percent (5%) or more
by any such inspection or audit provided said five percent (5%) equals or
exceeds Five Hundred Dollars ($500.00), Marvel shall pay to FineLine the costs
of such examination and/or audit. The audit fee per them shall be Five Hundred
Dollars ($500.00). In no event, however, shall Marvel be charged for any
individual inspection or audit in excess of One Thousand Five Hundred Dollars
($1,500.00).
(f) FineLine shall be entitled to payment, royalties, or other forms of
remuneration only as provided by this Agreement. Therefore, it is acknowledged
and agreed that FineLine will have no rights in, nor be entitled to receive,
compensation, royalties, or other remuneration for exploitation of the Property
in any form, format, or media now known or hereafter created anywhere in the
universe, except as expressly provided herein; all other revenues shall be the
sole property of Marvel.
2.3 Reversion of Sale. The ownership of the Property and the Exploitation
Rights shall revert to FineLine only if the following takes place: at the end
of a period of three (3) years after the date of execution of this Agreement,
if FineLine has not received at least Twenty-five Thousand Dollars in royalties
and fees generated pursuant to Section 2.2(b) above, FineLine must notify
Marvel in writing within a period of time ending sixty (60) days after the end
of such three (3) year period of its intention to exercise these reversion
rights (the "Reversion Notice'). If FineLine so notifies Marvel, Marvel shall
have ten (10) business days after receipt of such notification to pay to
FineLine a sum equal to the difference between Twenty-five Thousand Dollars
($25,000) and the amount received by FineLine during such previous three (3)
year period for royalties and fees pursuant to Section 2.2(b), and if Marvel
makes such payment to FineLine, then the ownership will not revert to FineLine
and there will be no other reversion of rights possible under this Agreement.
If Marvel does not timely make the requisite payment, all rights granted
hereunder to Marvel shall revert to FineLine except that Marvel shall have the
right to fulfill any outstanding orders or commitments entered into prior to
receipt of the Reversion Notice for one hundred eighty (180) days from receipt
of the Reversion Notice.
III. REPRESENTATIONS AND WARRANTIES OF FINELINE
FineLine represents and warrants as follows:
3.1 Completeness and Accuracy of Schedules. Schedule A annexed hereto is
correct and complete in all material respects. Schedules B and C annexed
hereto are incomplete with respect to the filing, registration status and
ownership information for the trademarks and copyrights, Within a period of
time no longer than twenty (20) business days after the closing, FineLine
shall use its best efforts, and at its own expense, to provide Marvel
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with revised schedules that include complete information on the trademarks
and copyrights. In the event that FineLine does not provide such schedules,
Marvel may take action to verify the missing information and the costs
incurred in doing so shall be deducted from the amounts due to FineLine
under Section 2.2(b) above. There are no corporations, partnerships or persons
who have any rights in or claim to the ownership or any of the Exploitation
Rights.
3.2 Legal Existence of FineLine. FineLine is a corporation duly organized
and existing in good standing under the laws of the State of Ohio, and has
full corporate power to carry on its business as now conducted, and is
entitled to own, lease or operate its properties and assets now owned, leased
or operated by it.
3.3 Authority and Capacity of FineLine. The execution of this Agreement by
FineLine and the transfers, assignments and deliveries contemplated hereby,
have been approved by all persons or entities required to approve the same,
and no further corporate action is necessary on the part of FineLine to make
this Agreement valid and binding upon FineLine. The execution of this Agreement
by FineLine and the consummation of the transactions contemplated hereby does
not and will not violate the provisions of the Certificate of Incorporation or
By-Laws of FineLine.
3.3 Property Free of Encumbrances. All assets comprising the Property and
Exploitation Rights are free and clear of any and all liens, pledges, security
interests, restrictions, prior assignments, licenses, encumbrances, claims and
liabilites of every kind and nature, including claims for unpaid taxes of any
kind or nature based upon or arising out of the operation of the business of
FineLine as well as the sale of the ownership of the Property and the
Exploitation Rights hereunder.
3.5 Title, Adverse Claims. FineLine makes the warranties and representations
which follow in subparagraphs (a) through (d) of this Section 3.5 without
limitation, with respect to the world regarding the Exploitation Rights in and
relating to the Property and all material elements thereof:
(a) FineLine is the owner of the entire right, title and interest in and to
the Property and the Exploitation Rights, and all trademark registrations and
applications and all copyright registrations reflect such ownership. In the
event Marvel learns of any inconsistency with this representation and warranty,
FineLine will be responsible for any and all costs associated with correcting
such inconsistency.
(b) All of the pertinent and material elements of the Property and the
Exploitation Rights which are or were subject to copyright protection were
prepared as works for hire pursuant to United States copyright law, and there
are no reversionary rights to any of the copyrights therein held or exercisable
now or in the future by FineLine or any other person under any copyright law.
The Property is not in the public domain. The names, likeness, and all
trademarks are valid and enforceable, are owned exclusively by FineLine,
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and no other person or company has the right to use such names or likenesses
in any manner and FineLine has not granted to anyone the right or permission
to use any confusingly similar names or likenesses. Each trademark
registration and/or application set forth on Schedule B is valid, subsisting
and in full force and effect on the Principal Register of the United States
Patent and Trademark Office or on the records of the trademark office of the
country of jurisdiction indicated.
(b) There does not, and will not on the date of Closing, exist any
infringement, violation or claimed infringement or violation by FineLine (and
FineLine has no knowledge, information or belief as to any past event or
condition which may reasonably be expected to result in a claim of infringement
or violation being made at any time after the Closing) of any copyright,
trademark, privacy, publicity, contractual or any other rights of others, or
any libel or defamation of any person or entity arising out of the publication,
use and/or exploitation of the Property.
(c) Marvel's use, licensing or other exploitation of the Property will not
violate or infringe any rights of any other person, company, corporation,
association or other entity, including but not limited to trademark rights,
copyrights, privacy rights, publicity rights, and/or contractual rights whether
common law, statutory or otherwise, will not constitute a libel or defamation
of any person or entity, and will not be otherwise unlawful.
3.6 Transferability. All of the material assets comprising the Property are
freely transferable and assignable without obtaining the consent or approval of
any other person or party. FineLine has not heretofore assigned rights and will
not hereafter grant or enter into any agreement purporting to sell or grant any
rights in the Property or any part thereof to anyone else.
3.7 Litigation. There are no actions, suits, claims or proceedings pending, or
threatened against FineLine or affecting or relating to any of the rights in
the Property.
3.8 No Infringement There is no infringement or violation by any third party
of any of the rights in the Property.
3.9 Material Misstatements or Omissions. No representation or warranty by
FineLine in this Agreement, nor any covenant or Schedule hereto, nor any
document furnished or to be furnished to Marvel in connection with the
transactions contemplated hereby, is materially inaccurate or untrue or
contains or will contain any materially untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements or
facts contained therein not materially misleading, and FineLine has no
knowledge, information or belief that any person or entity has made a claim,
contention or assertion inconsistent with the material truth or accuracy
thereof.
3.10 No Prohibitions. The performance by Fine Line of its obligations
hereunder and the consummation of the transactions contemplated hereby is not
prohibited by any contract
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or instrument to which FineLine is a party or by which FineLine is bound,
and will not violate any applicable statute, order, rule or regulation, or be
otherwise contrary to law, or violate the rights of any person or entity, and
no consent, approval, authorization or order of any court, governmental agency
or administrative body is required for the consummation of the transactions
contemplated hereby.
IV. COVENANTS OF FINELINE
4.1 Representations and Warranties to Survive Closing.
The representations and warranties of FineLine set forth in this Agreement
shall be true on and as of the date of Closing and shall survive the closing
as though such representations and warranties were made on and as of such time,
and shall be deemed to have been relied upon by Marvel notwithstanding any
investigation made by or on behalf of Marvel, and no such investigation shall
affect FineLine's representations or warranties in any manner.
4.2 FineLine to Hold Harmless and Indemnify Marvel. FineLine agrees to
indemnify and hold Marvel, its subsidiaries and affiliates, and its and their
officers, directors, employees, agents, customers and licensees harmless from
and against the following claims (including any expenses, costs and attorneys'
fees incident to the defense of such claims, and any damages or penalties
awarded or losses suffered):
Any and all claims of any kind or nature whatsoever asserted against any of
them either (i) based upon or arising from acts or events occurring prior to
Closing, or (ii) involving a breach by FineLine of any of FineLine's
representations, warranties or covenants herein except any modifications or
alterations made by Marvel to the Property for purposes of exploiting the
Property with respect to which Marvel hereby agrees to indemnify FineLine
against third party claims caused by such modifications or alterations.
4.3 Assistance of FineLine. From time to time at Marvel's request, whether
on or after the closing, FineLine will furnish such information, facts and
documents, and execute and deliver such further instruments of assignment,
transfer or conveyance of any of the assets comprising the Property, or
documents to acknowledge, confirm, record, perfect, enforce or support the
same, as Marvel may reasonably request or deem desirable to assist Marvel in
protecting or registering rights in the Property or otherwise, and to assist
Marvel in any litigation relating to the Property . In order to accomplish
any of the foregoing purposes in the event that FineLine is unable or unwilling
promptly to render such assistance to Marvel, FineLine hereby irrevocably
appoints Marvel as FineLine's true and lawful attorney-in-fact, with full
power of substitution in FineLine's name and stead but for Marvel's benefit,
without further consideration to FineLine, to take all Steps (including
proceedings at law, in equity or otherwise) and to execute, acknowledge and
deliver any and all such instruments to accomplish the foregoing. FineLine
acknowledges that this Power is coupled with an interest. Provided that
FineLine is not in breach of any material warranty, representation, covenant
or obligation hereunder pertaining to the subject matter of Marvel's action
pursuant to this appointment, Marvel agrees to hold harmless and indemnify
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Fineline from and against claims asserted against FineLine or any of them
as a result of such action taken by Marvel on FineLine's behalf pursuant to
this appointment.
4.4 Cessation of Use and Representation of Ownership. FineLine agrees that
after the Closing, it will cease to use or exploit in any manner whatsoever
any part of the Property , and will cease to hold itself out to the public as
having any ownership in any part of the Property , or as having any right to
use the same or to authorize others to use the same, and shall not assist or
cooperate with anyone else in so doing.
4.5 Use of Property and Exploitation Rights by FineLine After Closing.
FineLine specifically acknowledges that in the event it makes use of any of
the rights in the Property after the closing, or violates the restriction
contained in Paragraph
4.4 above, Marvel will suffer immediate irreparable and irrevocable damage
and harm, and FineLine acknowledges and admits that there is no adequate remedy
at law for such use or violation and further agrees that in the event of such
use or violation Marvel shall be entitled to seek equitable relief in the way
of temporary and permanent restraining orders and injunctions against FineLine
and such further and other relief as any court of competent jurisdiction may
deem just and proper.
4.6 No Restrictions on Marvel's Use. The sale, transfer, conveyance and
assignment of the Property and Exploitation Rights to Marvel contemplated
herein is without any restriction whatsoever as to the manner in which Marvel
may use and exploit the Property in the future, and Marvel may after the
closing change, adapt, transpose, vary or otherwise modify the Property for
purposes of exploitation only in whatever manner Marvel may in its sole
discretion determine. No claim or objection will ever be made by FineLine
with respect to the use or exploitation of the Property by or on behalf of
Marvel or by its licensees, successors or assigns, and all moral rights of
FineLine, if any, relating to the Publishing Rights are hereby waived.
4.7 Ownership of New Characters. FineLine acknowledges and agrees that after
the Closing, any and all new characters appearing in any manner, using, based
upon and/or adapted from the Property or any part thereof which are created by
Marvel and the distinctive likenesses thereof and any and all trademarks
therein shall be owned by Marvel for all purposes.
4.8 No Chal1enge- After the Closing, and provided Marvel is not then in breach
of any of its material obligations hereunder, FineLine will never dispute,
challenge or contest, directly or indirectly, Marvel's title or ownership in
or to any of the assets comprising the Property, or the validity or
enforceability of any rights therein, and will not aid or assist any others
in so doing, and will not make any claim or assert any right inconsistent
therewith.
V. REPRESENTATIONS AN WARRANTIES OF MARVEL
Marvel represents and warrants as follows:
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5.1 Legal Existence of Marvel. Marvel is a corporation duly organized and
existing under the laws of the State of Delaware and has full corporate power
to carry on its business as now conducted, and is entitled to own, lease or
operate its properties and assets now owned, leased or operated by it.
5.2 Authority and Capacity of Marvel.
(a) The execution of this Agreement by Marvel and the consummation of the
transactions contemplated hereby, have been approved by all persons or
entities required to approve the same, and no further corporate action is
necessary on the part of Marvel to make this Agreement valid and binding upon
Marvel in accordance with its terms. The execution of this Agreement by Marvel
and the consummation of the transactions contemplated hereby does not and will
not violate the provisions of the Certificate of incorporation or By- Laws of
Marvel.
(b) The performance by Marvel of its obligations hereunder and the
consummation of the transactions contemplated hereby is not prohibited by any
contract or instrument to which Marvel is a party or by which it is bound, and
(as far as Marvel is concerned) will not violate any applicable statute, order,
rule or regulation, or be otherwise contrary to law, or violate the rights of
any persons or entity, and no consent, approval, authorization or order of any
Court, governmental agency or administrative, body is required for the
consummation of the transactions contemplated hereby.
5.3 Material Misstatements or Omissions. No representation or warranty by
Marvel in this Agreement, nor any information or document furnished or to be
furnished to FineLine in connection with the transactions contemplated hereby,
is untrue or contains or will contain any untrue statement of a material fact,
or omits or will omit to state a material fact necessary to make the statements
or facts contained therein not misleading, and Marvel has no knowledge,
information or belief that any person or entity has made a claim, contention or
assertion inconsistent with the truth or accuracy thereof.
VI. COVENANTS OF MARVEL.
6.1 Representations and Warranties to Survive Closing. The representations and
warranties of Marvel set forth in this Agreement shall be true on and as of
the date of closing and shall survive the closing as though such
representations and warranties were made on and as of such time, and shall be
deemed to have been relied upon by FineLine notwithstanding any investigation
made by or on behalf of FineLine and no such investigation shall affect
Marvel's representations or warranties in any manner,
VII. FURTHER CONDITIONS PRECEDENT TO OBLIGATIONS OF MARVEL.
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The obligation by Marvel to consummate the transactions contemplated by this
Agreement is subject to and conditioned upon the satisfaction by FineLine
prior to or on the date of closing of each of its obligations hereinbefore
stated and also upon the following further conditions:
7.1 No Impairment of Value. In the event that the Closing does not occur
simultaneously with the execution of this Agreement, FineLine shall not have
taken any action or omitted to take action where appropriate by the date of
Closing, which action or omission materially adversely affects or impairs the
value of any of the rights in the Property. FineLine specifically shall not
have entered into any license agreements granting any rights in the Property.
7.2 Documents Being Delivered. In addition to documents already referenced
herein, FineLine is delivering to Marvel the following documents:
(a) A Xxxx of Sale;
(b) Separate assignments for the purposes of recording the transfer of
ownership of the trademarks identified on Schedule B hereto, together with
the goodwill of the business symbolized thereby;
(c) Separate assignments of the copyrights identified on Schedule C hereto;
(d) Evidence of no UCC filings or tax or judgment
liens against the FineLine or any of the Property; and
(e) Certified resolutions passed and adopted by the Board of Directors of
FineLine effective on the closing date, authorizing and approving the
transfers, assignments and deliveries being made by such corporation
pursuant to this Agreement.
VIII. GENERAL PROVISIONS
8.1 No Rights in Third Parties Created. This Agreement is solely between the
parties hereto and all rights arising from it are intended to inure to
the sole benefit of the parties. Subject to Section 8.2, it is not the
intention of the parties to create any rights in any third parties, whether
as third party beneficiaries or otherwise, and whether in the nature of a
guarantee or otherwise, and the parties expressly disavow any such intention,
and this Agreement shall be construed and interpreted so as not to create or
confer any such third party rights.
8.2 Assignment, During the first three (3) years of this Agreement, this
Agreement may not be assigned by Marvel without FineLine's written consent,
which shall not be reasonably withheld, except that no consent is required for
assignment to an owned subsidiary or affiliate, a successor by merger,
consolidation or sale, or exchange of assets.
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and this Agreement may not be assigned by FineLine.
8.3 Waiver and Modification. Either party hereto may waive satisfaction of any
condition precedent to its obligation to consummate the transactions
contemplated hereby. Such waiver must be made in writing by the party
entitled to the benefit of such condition.
8.4 Expenses of this Transaction. All expenses and charges in connection with
this transaction, including without limitation, accounting, legal and
professional services, shall be borne by the party incurring same.
8.5 Notices. Any notice required or permitted to be given hereunder shall be
deemed duly given if sent by registered mail, postage prepaid, addressed as
follows or such other address as may be furnished in writing by any such person.
(a) If to Marvel:
Marvel Entertainment Group, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(b) If to FineLine:
FineLine Properties, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxx 00000
Attention: President
8.6 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
8.7 Severability. All provisions of this Agreement are limited to the extent
mandated by any applicable law. If any provision or portion of this Agreement
shall be determined by any court of competent jurisdiction to be invalid,
illegal or unenforceable, and such determination shall become final, such
provision or portion shall be deemed to be severed and deleted herefrom and
the remaining provisions and portions shall survive and be enforced to give
effect to the intentions of the parties insofar as that is possible.
8.8 Force Maicure. If Marvel's failure to perform any obligation hereunder
is caused by unavailability of services or materials, labor disputes,
governmental restrictions, acts of God, or any other circumstances beyond
Marvel's control, such failure shall not be deemed a breach of this Agreement,
and if any time period for performance is involved, such period shall be deemed
extended for the period of such delay.
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8.9 Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York.
8.10 Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.11 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties and supersedes all prior oral or written
agreements or understandings relating to the subject matter hereof.
8.12 Effect and Modification. This Agreement and any and all provisions hereof
shall not be effective unless and until this Agreement shall have been fully
executed by the parties hereto. This Agreement may not be modified or amended
except by a writing executed by each of the Parties hereto.
8.13 Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which counterparts collectively
shall constitute one instrument representing the Agreement between FineLine and
Marvel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
FINELINE PROPERTIES, INC.
Date: 2-18-98
By: s/s Xxxxxx Xxxxx
---------------------
Name:
Title: Pres
MARVEL ENTERTAINMENT GROUP, INC.
Date: 2-20-98
By: s/s Xxxxxx Xxxxxxxx
------------------------
Name:
Title:
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