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EXHIBIT 10.25
AGREEMENT ("Agreement") made and entered into this as of this 25th day
of September, 2000, by and between CORPAS INVESTMENTS, INC., d/b/a MediaWebcast,
a Florida corporation having its principal place of business at 0000 0xx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "MW"), on
the one hand, and YOSHIMOTO KOGYO LTD., a Japanese corporation having its
principal place of business at 00-0 Xxxxx-xxxxxxxxxxx, Xxxxxx, Xxxxx-xxxx,
Osaka-fu and NUX, Inc., a Japanese corporation and subsidiary of Yoshimoto Kogyo
Ltd., having its principal place of business at 00-0 Xxxxx-xxxxxxxxxxx, Xxxxxx,
Xxxxx-xxxx, Osaka-fu (hereinafter collectively referred to as "YK"), on the
other hand.
RECITALS:
WHEREAS, YK has exclusive rights to various extreme sports-related
Materials (as defined below); and
WHEREAS, YK is interested in granting exclusive rights to MW to edit
and produce programming based on the Materials, and to distribute and/or sell
the programming within the territory and in the manner more particularly set
forth herein; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is agreed between YK and MW (sometimes collectively
referred to as "the Parties") as follows:
1. Materials. The materials covered by this Agreement shall
include, but not necessarily be limited to, materials on events of X-Sports and
Core Games, which YK shall deliver to MW, at YK's sole cost and expense, on
broadcast quality masters acceptable to MW, together with separated graphics,
transcriptions and iso audio channels and such other materials as may be (the
"Materials").
2. Grant of Rights.
(a) YK shall xxxxx XX the exclusive right to edit and
produce thirty (30) minute episodes (including applicable translation rights),
utilizing the Materials (the "Programming"), and to distribute, sub-distribute,
license, sell and market (collectively, "distribute") the Programming in the
Territory as hereinafter defined on (a) all forms of domestic and international
television now known or hereafter devised including, without limitation, free,
pay, closed circuit, Direct Broadcast Satellite, CATV, syndicated or otherwise;
(b) in multi-media, CD-ROM, interactive media and the Internet; and (c) in the
home video and DVD market (collectively, the "Licensed Rights"); and, if
applicable, to use the name, tradename, trademark and/or logo of YK in
connection with MW's exploitation of the Licensed Rights.
(b) As to multi-media, CD-ROM, interactive media and
Internet rights only (the "Internet Rights"), distribution, if any, shall be on
a project by project basis and subject to YK's prior written approval.
3. Territory. The territory covered by this Agreement shall be
worldwide, excluding Asia as to international broadcast and videocassette/DVD
sales (the "Territory").
4. Term. The term of this Agreement shall commence on full
execution and shall continue in perpetuity (the "Term"), unless earlier
terminated by reason of default pursuant to Paragraph 12 below.
5. Fees/Royalties.
(a) As to domestic (encompassing the United States, its
territories and possessions) broadcast distribution rights and pre-approved
Internet rights, MW shall pay YK the sum of Five Thousand (U.S.$5,000) United
States Dollars per month for each month of original episodes delivered to MW by
YK, with MW retaining, as its sole and exclusive property, all revenue derived
from such domestic broadcast distribution and pre-approved Internet rights.
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(b) As to international broadcast distribution rights within
the Territory, each of MW and YK shall retain fifty (50%) percent of Net
Revenues (as defined below); and
(c) As to worldwide videocassette/DVD sales within the
Territory, each of MW and YK shall retain fifty (50%) percent of Net Revenues
(as defined below).
6. Net Revenues.
(a) Net Revenues shall mean the amount of "Gross
Receipts" (defined below) remaining after deducting therefrom, on a continuing
basis, the sum of all verifiable costs incurred in connection with the
distribution, exploitation, licensing, promotion or sale of the Programming and
the Licensed Rights granted herein ("Direct Distribution Costs"). Direct
Distribution Costs shall include, but not necessarily be limited to, production
and manufacturing costs, advances and distribution fees and expenses, shipping
and courier charges, clearance and brokerage fees, warehouse and handling
charges, insurance, bank transfer charges, direct publicity or promotional costs
(e.g., creation of advertising materials, paid advertising), taxes and duties
including withholding taxes (but excluding MW's income taxes), duplication of
master tapes, PAL duplication, dubbing, foreign language versioning (if
required) and copyright registrations and searches (if required).
(b) "Gross Receipts" shall mean all nonrefundable cash
revenues actually received by MW attributable to the Licensed Rights. No sums
shall be included in Gross Receipts hereunder unless and until such sums have
been received by MW in U.S. Dollars in the United States.
7. Payments/Accountings. Payments of Net Revenues due to YK
hereunder shall be made in United States Dollars within thirty (30) days of the
end of each calendar quarter and shall be accompanied by an accounting statement
setting forth the calculation thereof. YK shall have the right to audit the
books and records of MW, once per calendar year as to the calculation of Net
Revenues, on not less than two (2) weeks advance written notice to MW of YK's
request to conduct an audit. Audits, if any, shall take place at MW's principal
place of business where all books and records pertaining to this Agreement shall
be maintained.
8. YK Warranties and Representations: YK warrants and represents
as follows:
(a) YK has the full and complete corporate and legal
right and authority to enter into this Agreement and will perform all
obligations required to be performed by it in accordance with this Agreement.
(b) YK has the authority to grant the rights licensed to
MW pursuant to this Agreement, free and clear of pending claims, liens, charges,
restrictions or encumbrances of any kind whatsoever, and the exercise by MW of
the rights and license granted to it herein shall not violate nor infringe on
any rights of any kind of any third party including, but not limited to,
copyright, trademark, contract, defamation, privacy or publicity rights.
(c) MW, in the exercise of its rights hereunder, will not
be requested to make any payment to any third party involved in the production
of the Materials to be incorporated in the Programming or who rendered services
in connection therewith, or any music performance fees, or to or on account of
any union, guild or other collective bargaining agent because of any
exploitation of the Materials by MW, and any such payments shall be borne solely
by YK, and MW shall have no responsibility whatsoever with respect thereto.
9. MW Warranties and Representations: MW warrants and represents
as follows:
(a) MW has the full and complete corporate and legal
right and authority to enter into this Agreement and will perform all
obligations required to be performed by it in accordance with this Agreement.
(b) As to any original material produced by MW for
incorporation in the Programming, MW will secure all rights, releases,
clearances and licenses (including music licenses, i.e., synchronization and
performance) required to enable MW to fully exploit the Programming in
accordance with the terms of this Agreement.
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10. Indemnification.
(a) MW shall defend, indemnify and hold harmless YK, its
officers, directors and employees, from and against any demand, claim, action,
liability, cost and expense (including reasonable legal fees) arising out of or
in connection with MW's breach of any of the representations, warranties or
provisions contained in this Agreement.
(b) YK shall defend, indemnify and hold harmless MW, its
officers, directors and employees and its sub-distributors and licensees and its
and their respective officers, directors and employees from and against any
demand, claim, action, liability, damages, cost and expense (including
reasonable legal fees) arising out of or in connection with YK's breach of any
of the representations, warranties or provisions contained in this Agreement.
11. Copyright. Copyright for Programming covered by this Agreement
shall be held jointly in the names of Yoshimoto Kogyo Ltd. and Corpas
Investments, Inc., d/b/a Mediawebcast.
12. Default. This Agreement may be terminated by either party upon
written notice if: (a) either party breaches a material provision of this
Agreement and fails to remedy such breach within thirty (30) business days after
written notice thereof by the other party or, with respect to MW's payment
obligations to YK, if such breach has not been cured within fourteen (14) days
after written notice thereof; or (b) any representation or warranty made herein
shall be found to be false, incorrect or misleading in any material respect, by
omission or otherwise.
13. Notices. Any notice, payment, request or other communication
required or permitted to be given hereunder by either of the Parties to the
other of them shall be given, made or communicated, as the case may be, by
personally delivering the same, by facsimile transmission, courier service, or
registered or certified mail, first-class, airmail postage prepaid, return
receipt requested, addressed to the recipient at the respective address set
forth in the Preamble to this Agreement, or to such other address as may be
provided by one party to the other in accordance with this Paragraph 13.
14. Assignment. This Agreement will be binding upon and will inure
to the benefit of the Parties hereto and their respective successors and
permitted assigns. Neither party may assign this Agreement without the prior
written consent of the other party, except that YK may assign its right to
payment of monies hereunder, and MW may assign its rights to a successor company
that may arise from MW merging, being acquired by or partnering with another
company.
15. Amendment/Waiver. This Agreement may not be amended or
modified, nor may any provision thereof be waived, except by a writing signed by
the party to be charged therewith. No payment by MW shall constitute a waiver of
any term or condition of this Agreement.
16. Relationship of the Parties. Nothing herein contained shall be
construed to create a joint venture or partnership between the Parties hereto.
Neither of the parties shall hold itself out contrary to the terms of this
provision, by advertising or otherwise, nor shall MW or YK be bound or become
liable because of any representations, actions or omissions of the other.
17. Further Assurances. Each of the Parties shall execute and
deliver any further documents or instruments the other may reasonably request to
carry out the intent of this Agreement.
18. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California applicable to contracts
made and to be entirely performed in such state. Any action or proceeding of any
kind or nature with respect to or arising out of this Agreement shall, if
brought by any party hereto, be instituted and resolved in the federal or state
courts located within the State of California, County of Los Angeles, and each
of the Parties consents to jurisdiction and service of process in such locale.
19. Severability. Should any provision of this Agreement be held
to be void, invalid or inoperative, the remainder of this Agreement shall be
effective as though such void, invalid or inoperative provision had not been
contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
CORPAS INVESTMENTS, INC.,
d/b/a/ MediaWebcast
By /s/ Xxxxx X. Xxxxx
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General Manager
YOSHIMOTO KOGYO LTD.
Chief Executive Officer
NUX, INC.
By /s/ Xxxxxxx Xxxxx
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Hirosho Osaki
