AGREEMENT
"NIGHT
OF THE LIVING DEAD 3D"
This agreement
(the "Agreement") is made and entered into as of August 23, 2006, by and between
Lux Digital Pictures GmBH (individually and collectively, "Grantor") and Lions
Gate Films Inc. ("LGF") with respect to that certain motion pictures presently
entitled "Night of the Living Dead 3D".
1. Picture: The "Picture" shall mean
that certain motion picture presently entitled
"Night of the Living Dead 3D" and any and all
versions thereof and all "bloopers", footage, trims and outtakes thereof
(including, without limitation, the
Director's Cut and the Final
Cut and any and all versions of each of me foregoing, all versions rated by the
Motion Picture Association of America and unrated
versions of the Picture, "behind the scenes", "making of and any and all other
documentary or short films concerning the Picture, and all footage, "bloopers",
trims and out-takes of each of me foregoing),
produced by, on behalf of or at Grantor's direction, in the year 2006,
starring Briaima Xxxxx, Xxxxxx XxxXxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxx and Xxxx
Xxxxxx in the principal lead and supporting roles and directed by Xxxx
Xxxxxxxxxxx. Grantor shall only be required to Deliver such "behind the scenes",
"making of and other documentary and short films concerning the Picture, and
such footage, "bloopers" trims and outtakes of the Picture as are available,
except as otherwise set forth in the Delivery Schedule with respect to
Television Cover Shots.
2. Territory:
The 'Territory" shall mean and include each of the following: (a) United States
of America (including but not limited to, Guam, Saipan, Midway Island, the Trust
Territory Islands, the Xxxxxxxx Islands, the Xxxxxxxx Islands, the Virgin
Islands, Puerto Rico and American Samoa) ("U.S."), its territories, possessions,
trusteeships and commonwealths and all military bases, ships at sea, airlines
and oil rigs flying the flag or serviced from of the U.S., (b) Bermuda and the
Bahamas Islands.
3.
Rights Granted; Release Commitments:
a.
Rights
Granted to LGF: Grantor hereby grants to LGF, on an exclusive basis, all
jigjnis
in and to the Picture and the underlying material with respect thereto,
under copyright and otherwise, in all languages and in all media, whether now
known or hereafter devised, including, without limitation, all Non-Theatrical,
Home Video, Television, and ancillary and derivative rights in and to the
Picture, by all methods of delivery, whether now know or hereafter devised,
including without limitation, all Internet Delivery Mechanisms, all as such
rights may be more
specifically defined in Schedule
"A", which is attached
hereto and incorporated herein by Has
reference (collectively, the "Rights*), but expressly excluding the
Copyright, all rights in and to
all sequels, prequels and remakes of the
Picture, and the Theatrical, Merchandising, Soundtrack, Music Pubhshjng,
Literary Pubtishing and Electronic Publishing Rights in and to
the Picture (collectively, the "Reserved Rights'^) and all rights to all
sequels, prequels and remakes of the
Picture, regardless of form
(e.g., theatrical, made for cable, episodic television, etc.). Without
limiting
me generality of the foregoing, the Rights granted to LGF hereunder shall
include, without limitation, the exclusive right to market, advertise, promote
and publicize the Picture in all media, whether now known or hereafter
devised.
1
"The
Night of the Dead 3D"
DM.03
Page 2
b.
Grantor's Theatrical
Release Commitment
Grantor shall cause a theatrical release of the Picture in the Territory prior
to LGF 8
initial Home Video Street Date of the Picture in the Territory and in no
event later than November 10,2006. Such theatrical release shall occur on no
fewer than three hundred fifty (350) screens in its initial release and shall
have no fewer than five hundred (500) playdates. Without limiting the generality
of the foregoing, Grantor shall spend no less than One Million Dollars
($1,000,000.00) in actual, direct, out-of-pocket, third party print and
advertising costs in connection with such theatrical release.
c.
LGF Marketing: Subject to timely and complete Delivery (and LGFs acceptance) of
the Picture, LGF shall cause a trailer of the Picture to appear on Video Devices
of other motion pictures)
distributed by LGF, the number and selection of which shall be determined
by LGF in its sole discretion. LGF shall market the Picture in accordance with
its good faith business judgment and standard business practices. Without
limiting the generality of the foregoing, LGF shall meaningfully consult with
Grantor with respect to the top sheet of the marketing budget for the initial
Home Video release of the Picture in the Territory. Without limiting the
generality of the foregoing, LGF shall consult with Grantor with respect to
thelselection of the initial Home Video Street Date of the Picture in the
Territory.
d.
Remakes. Prequels &
Sequels:
LGF shall have a right of first negotiation (for a period of thirty (30) days
commencing on LGFs receipt of the Negotiation Elements), and a right of first
refusal (with respect to offers that are equal to or less than one hundred fifty
percent (150%) of LGFs best financial offer) for a period of thirty (30)
days commencing on LGFs receipt of the material financial terms of any
agreement which Grantor is prepared to accept, with respect to the distribution
of each and every remake, prequel and sequel of the Picture, regardless of form
(e.g., theatrical, made-for-cable, episodic television, etc.). LGFs first
refusal rights shall revive and apply to each and every further offer which
Grantor is prepared to accept and shall continue in full force and effect so
long as Grantor retains any right, title or interest in and to the applicable
rights. Without limiting the generality of the foregoing, LGFs first negotiation
and first refusal rights shall revive and apply each and every time one of the
Negotiation Elements (as mat term is defined below) changes in any material
respect (unless the Negotiation Elements) change after an agreement with a third
party has been executed, subj ect to any reversion of rights to Grantor, as in
the case of a turnaround provision). As used herein, the term "Negotiation
Elements" shall mean written notice from Grantor that includes all of the
following: (a) a copy of the most recent draft of the script, (b) a list of
principal cast and any and all other material attachments (e.g., writer,
director and producer attachments, etc.), (c) a copy of the budget of such
production, and (d) the most recent cut of such production.
e.
Reserved
Rights Participation: Grantor represents and warrants to LGF that it has
entered into agreements with third parties for the exploitation of each of the
Reserved Rights, other man the remake, prequel and sequel rights in and to the
Picture. One hundred percent (100%) of all monies received by or credited to the
account of Grantor (or the parent of Grantor or
a wholly owned subsidiary or a wholly owned affiliated entity of Grantor) from
the eixploitation of the Reserved Rights (other than the remake, prequel and
sequel rights in and to the Picture) shall be allocated and paid Eighty Percent
(80%) to Grantor and Twenty Percent (20%) to LGF. LGF shall be copied on all
reporting statements rendered to Grantor with respect to each of the Reserved
Rights within five (5) business days of Grantor's receipt of such reporting
statement. If Grantor self-distributes any of the Reserved Rights at any point
during the Term, Grantor shall render accounting statements and payments to LGF
under the same terms and conditions as LGF is required to render accounting
statements and payments to Grantor pursuant to paragraph 12 below. LGF shall be
entitled to the same audit rights as are accorded to Grantor pursuant to
paragraph 13 below.
2
"The
Night of the Dead 3D"
DM.03
Page 3
4.
Term:
The Term"offhis Agreement shall commence as of the date first written above and
shall terminate Twenty-Five (25) years from complete Delivery of the Picture to
LGF in accordance with the Delivery Schedule plus an additional six (6) month
exclusive sell-off period Without limiting the generality of the foregoing, LGF
shall have a right of first negotiation and a right oflast refusal with respect
to any extensions of the Term hereof.
5.
Minimum
Guarantee: None.
6.
Grantor's
Participation; Distribution Fees:
a.
Grantor's
Participation: From One Hundred Percent (100%) of all monies received by
LGF on a non-refundable basis from the exploitation of the Picture in all media,
LGF shall be entitled to deduct the following on a continuing basis and in the
following order: (i) LGFs Distribution Fee for all media, and (ii) LGPs
Distribution Expenses (as that term is defined hereinbelow) plus Interest. AH
revenues remaining after the foregoing deductions shall be referred to herein as
"AGR". Grantor shall be entitled to receive One Hundred Percent (100%) of the
AGR. That portion of the AGR allocated to Grantor pursuant to this paragraph
shall be referred to herein as "Grantor's Participation". LGF shall be entitled
to cross-collateralize all revenues from all media for the purposes of recouping
LGFs recoupable Distribution Expenses plus Interest
b.
LGFs "Distribution Fee" shall equal Twenty Percent (20%) of One Hundred Percent
(100%)
of all Gross Receipts received by LGF from the exploitation of the Picture in
all media throughout
the Territory.
c.
As used herein, "Distribution Expenses" shall mean, with respect to all rights
granted to LGF
hereunder, one hundred percent (100%) of the aggregate of all actual, direct,
out-of-pocket, third
xxxxx costs expended or incurred by LGF in direct connection with the
distribution and exploitation
of the Picture throughout the Territory in all media, including, without
limitation, all DLT
Creation Costs, and all conversion, manufacturing, duplication, shipping,
marketing, advertising,
promotion and publicity costs, and all costs to complete Delivery of the Picture
(to the
extent (i) LGF elects to cure any failure of Grantor to complete Delivery of the
Picture in accordance with the Delivery Schedule and/or
(ii) LGF is required to take "access" to any Delivery
Materials pursuant to the Delivery Schedule; and/or fiii) Grantor is not
required to deliver such elements under the Delivery Schedule).
3
"The
Night of the Dead 3D"
DM.03
Page 4
7.
Delivery: Grantor shall Deliver, at Grantor's sole cost and expense, all Initial
Delivery Materials (as that term is defined in the Delivery Schedule) to LGF on
or before October 16, 2006 (the "Initial Delivery Date") and all Delivery
Materials set forth in the Delivery Schedule mat are required to constitute
complete Delivery on or before October 30,2006 (the "Complete Delivery Date").
The Initial Delivery Date and the Complete Delivery Date shall be individually
and collectively referred to herein as the "Delivery Date". Without limitation
to those requirements set forth in the Delivery Schedule, all documents required
to be Delivered to LGF pursuant to the Delivery Schedule shall be Delivered in
the English language. It is the essence of this Agreement that Grantor Deliver
both the 3D version of the Picture as well as the 2D version of the Picture in
accordance with the Defivery Schedule.
a
Running
Time: The Picture shall be Delivered to I/jF
have a running time of not less than eighty (80) minutes, nor more than
one hundred ten (110) minutes, inclusive of main and end titles.
b.
Rating:
The Picture shall be delivered to LGF having been judged to receive a rating by
the M.P.A.A. that is no more restrictive man "R".
8. Credits;
Editing: LGF shall have the right to cut, edit, change or add to, delete from or
revise the Picture, including the title, for M.P-A.A. rating purposes, to meet
Television broadcaster standards, practices and timing requirements, to obtain
distribution opportunities (e.g., the creation of an airline and/or ship version
of the Picture, the creation of downloadable episodes (e.g., i-tunes downloads),
and as required by law, court order, and in settlement of a dispute. Subject
only to Grantor's third party contractual restrictions delivered to LGF,
Grantor's credit, and/or any guild restrictions which Grantor has informed LGF
are applicable to the Picture in writing prior to the execution of this
Agreement, LGF may, in its sole discretion, determine and arrange the placing
and size of credits including credits above the title and/or above the artwork
tide. Without limiting the generality of the foregoing, LGF shall have the right
to place its name and logo on all materials concerning the Picture, including,
without limitation, in the main and end credits of the Picture (e.g., LGFs
customary presentation credit), in the billing block, and on all advertising
materials. It is the essence of this Agreement that Grantor Deliver written
notice of all credit, name and likeness obligations and restrictions and all
third party contractual approval and consultation rights to LGF in writing on or
before the Initial Delivery Date. Without limiting the generality of the
foregoing, in the event that a performer or other agreement containing a credit,
name and/or likeness provision or approval or consultation right is unexecuted
as of such Initial Defivery Date, then Grantor shall deliver the most recent
draft of such agreement to LGF and LGF shall have the right to rely thereon.
Without limiting the generality of the foregoing, in the event that a performer
or other agreement obtaining a credit, name and/or likeness and/or approval or
consultation provision is unexecuted as of the Initial Delivery Date, then any
and all contractual credit, name and likeness obligations and restrictions and
approval rights negotiated after such Delivery Date must be approved by LGF in
writing prior to Grantor entering into any agreement with respect thereto. LGF
shall not remove any credit
or copyright notice appearing on screen as the Picture is Delivered to LGF
except as follows: (1) to
comply with a court order or the order of an arbitrator or mediator, (ii) as
required in settlement of a dispute, or (iii) as required by law.
4
"The
Night of the Dead 3D"
DM.03
Page 5
No casual or inadvertent failure by LGF or any third party to comply with any
credit, name or likeness obligation or restriction, or to comply with any
approval or consultation right, shall be deemed a breach of this Agreement,
provided that LGF takes all commercially reasonable steps to cure such failure
on a prospective basis commencing on LGFs receipt ofwritten notice thereof. The
sole remedy of Grantor for a breach of any of the provisions of tins paragraph 8
shall be an action at law for compensatory damages, it being agreed that in no
event shall Grantor be entitled to consequential or punitive damages, or to seek
or obtain injunctive relief, specific performance, or any other form of
equitable relief, by reason of any breach or threatened breach of any of the
credit, name, likeness or other obligation or restriction or approval or
consultation right, nor shall Grantor be entitled to enjoin or restrain the
exhibition, distribution, marketing, advertising, promotion, or other
exploitation of the Picture.
9.
Holdbacks: LGF shall control the release dates of the Picture by means of the
Home Video Rights as well as all television exhibition in Canada (in the English
and French languages) and in Mexico (in the English and Spanish languages);
provided that Grantor's distributor of the Picture in Canada and in Mexico shall
each be entitled to release the Picture day and date with LGFs initial
commercial release of the Picture in the Territory in like nfedia. When
applicable, LGF shall also control the wholesale and suggested retail price of
the distribution of the Picture by means of the Home Video Rights in Canada (in
the English and French languages) and in Mexico (in the English and Spanish
languages); provided that Grantor's distributor of the Picture in Canada and in
Mexico shall each be entitled to release the Picture at the same price point as
LGF's initial release of the Picture in the Territory. Grantor guarantees that
the distributors) of the Picture in Canada and in Mexico shall each confirm in
writing its acknowledgement of such holdback and price
restrictions.
10.
Grantor's Representations and Warranties: Grantor represents and warrants as of
the date hereof and also upon Delivery of the Picture that (a) there are no
non-customary credit, name or likeness obligations or restrictions or approval
or consultation rights applicable to the Picture (all of which, if any, shall be
Delivered to LGF in writing on or before the Delivery Date and LGF shall have
the right to rely thereon) and that LGF shall have the right, but not the
obligation, to utilize the likeness and name of each of the principal cast
members in the artwork and in trailers for the Picture, (b) Grantor owns or
controls all Rights granted to LGF under mis Agreement and mat all such Rights
are free of all Kens, claims, charges, encumbrances, restrictions, and
commitments; (c) there is no agreement concerning the Picture with any person or
entity which, ifbreached, would or could in any way impair, interfere with,
abrogate or adveniery or ctiierwiseaftect any of tie Rights granted to LGF under
this Agreement; (d) LGFs exploitation of the Picture will not be subj ect to any
guild (e.g., WGA, DGA, and SAG) hens, or residuals; (e) it is a corporation duty
formed and validly existing in good standing under the laws of California (with
respect to Midnight Movies Entertainment, Inc.) and Germany (with respect to Lux
Digital Pictures GmbH) and has the full right, power, legal capacity and
authority to enter into and cany out the terms of this Agreement;
5
"The
Night of the Dead 3D"
DM.03
Page
6
(f) neither the Picture, nor any part thereof, nor any materials contained
therein or synchronized therewith, nor the title thereof, nor the exercise of
any Right, license or privilege granted to LGF hereunder,
violates or will violate, or infringes or will infringe, any trademark, trade
name, service xxxx, patent, copyright (whether common law or statutory), or the
literary, dramatic, musical, artistic, pereonal, private, xxxX "droit moral" or
property right or rights of privacy or any other right of any person or entity
whatsoever, or unfairly competes with or slanders or libels (or constitutes a
trade disparagem ent of) any person or entity whatsoever, (g) it has no
agreement with or obligations to any third parry with respect to the Picture
which might conflict or interfere with any of the provisions of this Agreement
or the use or enjoyment by LGF of any of the Rights granted; (h) the rights
granted to LGF herein have not been previously granted, licensed, sold,
assigned, transferred, conveyed or exploited by any person or entity and Grantor
shall not sell, assign, transfer, convey to or authorize any person or entity
any right, title or interest in and to the Picture or any part thereof or in and
to the dramatic or literary material upon which the Picture is based, which is
adverse to or in derogation of the Rights granted to LGF; (i) there is no
litigation, arbitration, claim, demand, or investigation pending or threatened
with respect to the Picture, or the literary, dramatic or musical material upon
which the Picture is based or which is contained therein, or concerning the
physical properties thereof, (j) Grantor
has secured, or by the Delivery Date will have secured, and shall for the
duration of this Agreement maintain, all clearances (including, without
limitation, all music rights and music clearances) which are necessary for LGF
to use and enjoy the Rights granted to LGF in and to the Picture throughout the
Territory for the duration of the Term and that no supplemental or additional
use payments shall be required with respect to the exploitation of the Picture
(or any portion or element thereof, mchxbrig, without limitation, the music
contained therein) and/or any use or exploitation of any advertising or
promotion of the Picture which contains the music as embodied in the Picture
(including both "m-contexf' and "out-of-context" uses thereof); and (k) Grantor
is in all respects in compliance with the requirements of the Child Protection
and Obscenity Enforcement Act of 1988, as amended by the Child Protection
Restoration and Penalties Enhancement Act of 1990, and all rules and regulations
promulgated thereunder (collectively, the "CPOEA") and mat the Picture is in all
respects in compliance with the requirements of the CPOEA, and does not contain
any material that would require Grantor to comply with the recordkeeping
requirements of the CPOEA.
11. Indemnities:
a.
Grantor shall indemnify, defend and hold harmless LGF, its parent, subsidiaries,
affiliates,
assignees, licensees, sublicensees, distributors, sub-distributors and dealers,
and the directors,
officers, agents, consultants and representatives of the foregoing (the "LGF
Indemnitees"),
from all claims, costs, liabilities, obligations, judgments or damages
(including reasonable
attorneys' fees), arising out of or for the purpose of avoiding any suit, claim,
proceeding
or demand or the settlement thereof, which may be brought against any of the LGF
Indemnitees
by reason of the actual or proposed production of the Picture, or the use or
disposition
of rights granted herein, or in connection with the breach or alleged breach of
any of the
warranties, representations or obligations made by Grantor, unless resulting
from a breach of this
Agreement by LGF.
6
"The
Night of the Dead 3D"
DM.03
Page
7
b. LGF shall indemnify, defend and hold harmless
Grantor, its parent, subsidiaries, affiliates,
assignees, and the directors, officers, agents, consultants and representatives
of the foregoing
(the "Grantor mdemnitees"),
from all claims, costs, liabilities, obligations, judgments or
damages (including reasonable attorneys' fees but excluding lost profits and
consequential damages)
arising out of or for the purpose of avoiding any suit, claim, proceeding
or demand or the settlement thereof, which may be brought against any of the
Grantor mdemrirtees by reason of the distribution, advertising or promotion of
the Picture, or in connection with the breach or alleged breach of any of the
warranties, representations or obligations made by LGF, except to the extent mat
LGF is required to be indemnified by Grantor in accordance with paragraph 11(a)
hereinabove.
c.
The parties hereto shall meaningfully consult with each other with respect to
the defense, institution or settlement of litigation in connection with the
rights granted hereunder and LGFs exploitation thereof during the Term and in
the Territory.
12.
Reporting
Periods: Following exploitation by LGF of the rights granted herein, customary
reporting shall be rendered to Grantor quarterly for two (2) years, then
annually. Statements and accountings shall be delivered within ninety (90) days
of each reporting period. In the event that no payments are due Grantor
hereunder for a period of two (2) consecutive years, then LGF shall have no
obligation to render any reporting hereunder until such time as payments are
owed to Grantor hereunder.
13.
Audit
Rights: Grantor shall have the right to have a certified public accountant of
its choice audit LGFs books and records with respect to the Picture(s) once per
year (and only once with respect to any particular records and/or statements) at
Grantor's sole cost and expense; such audit shall take place in LGFs principal
place of business and shall not unreasonably interfere with LGFs course of
business. Said audit shall be conducted at LGFs principal place of business
during normal business hours. Grantor shall give LGF ten (10) business days
prior written notice of its intent to conduct such audit All notices, statements
and payments made pursuant to the Agreement shall be deemed valid and shall not
be subject to dispute or audit unless disputed within twelve (12) months after
first issued.
14.
Assignment
LGF may grant, assign or sublicense tins Agreement or any of its rights or
obligations herein to any third party. Grantor shall not assign tins Agreement
or any of their rights or obligations herein, except that after Delivery of the
Picture is accepted by LGF Grantor shall have the right to assign its right to
receive payment on a single occasion in bulk. Any purported assignment in
violation of tins Agreement shall be null and void.
15.
No
Third Parry Beneficiaries: Nothing contained in tins Agreement shall be
construed so as to create any
third party beneficiary hereunder. In this regard, nothing under tins Agreement
shall
entitle any third party to any remedies against LGF, at law, in equity,
or otherwise, including, without limitation, any additional audit rights or the
right to seek or obtain injunctive relief against LGFs distribution of the
Picture.
16. Default If Grantor defaults
(or breaches a material representation and warranty), which
default remains uncured
for fifteen (15) business days following
Grantor's receipt of LGFs written notice
to
Grantor thereof, LGF shall be entitled to terminate this Agreement m the event
that Grantor fails to fully Deliver the
Delivery Materials set forth in the Delivery Schedule, which failure is not
timely,
LGF may create such Delivery Materials, the reasonable, actual, out-of-pocket
cost of which shall be recoupable by LGF, in LGFs sole discretion, as (i) a
Distribution Expense, and/or (n)
from any other monies (e.g. Grantor's Participation, bonuses, etc.) which
are then due and owing to Grantor. LGFs rights and remedies shall be cumulative,
and none ofthem shall be exclusive of any other allowed by law. If LGF defaults,
Grantor shall not be entitled to terminate or rescind this Agreement, nor to
obtain mjunctive relief with respect to the exercise by LGF of the rights
granted hereunder, Grantor's sole remedy shall be an action at law for
damages.
7
"The
Night of the Dead 3D"
DM.03
Page 8
17.
Governing Law; Jurisdiction: This Agreement shall be construed and interpreted
pursuant to the Laws of the State of California as it applies to contracts
entered into and performed wholly within California or, if appropriate,
the federal laws of the United States of America Any dispute regarding the
validity, construction, terms or performance of mis Agreement or any other
matter in connection therewith shall be submitted to binding arbitration before
the JAMS in Los Angeles, California in accordance with the following
provisions:
a.
If the parties cannot agree upon a single arbitrator, each party shall select
one arbitrator
who has experience in the motion picture industry and both arbitrators so
selected shall select
a third arbitrator.
b.
The third arbitrator shall adjudicate the dispute applying the laws of the state
of California
as it applies to contracts entered into and wholly performed within California
or, if appropriate,
the federal laws of the United States of America
c.
The arbitrator shall issue a written opinion specifying the basis for their
award and
the types of damages awarded.
d.
There shall be a court reporter record made of the arbitration hearing and said
record
shall be the official transcript of the proceedings.
e.
Witness
lists, production of documents and subpoenas in the arbitration shall be m
accordance
with Section 1280 et seq. of the California Code of Civil Procedure, except that
the fifteen
(15) day periods set forth in subsections (a)(2)(A)
and (B) of Section 1282.2 shall
be deemed
to be periods of five (5) business days. If the dispute pertains to Delivery,
there shall be made
available to the arbitrator all relevant materials submitted by LGF or Grantor
which purport
to constitute completion and delivery of the Picture. The parties shall
participate in an exchange
of information before the hearing. If any such discovery is not voluntarily
exchanged among
the parties, the party desiring such discovery may apply to the arbitrator at
the outset of the
arbitration for particular discovery requests. The arbitrator may deny only such
discovery as is
unreasonable or is intended to unduly delay the prompt conclusion of the
arbitration.
f
.. The decision of the arbitrator (or the maj ority of the
arbitrators, if applicable) shall be binding upon the parties, shall constitute
a full and final adjudication of the controversy. The parties shall each be
responsible for paying fifty percent (50%) of all the arbitrator's and court
reporter's fees (mduduig, without limitation, the cost of the arbitration). A
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
8
"The
Night of the Dead 3D"
DM.03
Page
9
This
Agreement (inclusive of Schedule "A", Exhibit "A" and Exhibit "C"),
when executed, is legally binding unless and until superseded by a more
formal agreement incorporating the terms set forth above as well as additional
provisions, which when and if executed, shall replace this Agreement.
Capitalized terms used herein and not otherwise defined shall have the same
meaning as in LGF's standard long-form agreement, subject to good faith
negotiations in accordance with LGF's standard business practices. All items not
addressed above shall be negotiated in good faith pursuant to rffevailing
industry customs and standards and LGFs standard business
practices.
AGREED AND ACCEPTED
BY:
| LIONS GATE FILMS, INC. | LUX DIGITAL PICTURES GMBH | |||
|
Missing
Graphic Reference
|
Missing
Graphic Reference
|
|||
|
Signature
|
Signature
|
|||
|
|
|
|||
| Xxxxx Xxxxx | Xxxx Xxxxx | |||
| PRINT NAME | PRINT NAME | |||
| President of Acquisitions | Operating Manager | |||
| TITLE | TITLE | |||
| 10/26/06 | 12.10.2006 | |||
| DATE | DATE |
9
"The
Night of the Dead 3D"
DM.03
Page
10
Schedule
"A"
The
Rights
All
rights in and to the Picture and the Screenplay (hereof, exclusively, in the
Territory under copyright and otherwise, but expressly excluding the Reserved
Rights (as that term is defined in the Agreement) in and to the Picture. Without
limiting the generality of the foregoing, LGF is hereby granted the sole and
exclusive right to produce and distribute the Picture in all languages in all
media (other man the Theatrical media and the other Reserved Rights as set forth
herein), whether now known or hereafter devised including, but not limited to
Home Video Rights (including, without limitation, rental, sell-thru (including,
but not limited to, Electronic Sell-Thru, including, but not limited to,
Download-to-Own and Download-to-Bum), Video-On-D em and, and other
pay-per-transaction methods of distribution), Non-Theatrical (including, without
limitation, airlines, ships, hotels, oil rigs, educational institutions, and
military bases and embassies), Television (including, without limitation,
advertising supported programming, premium programming, network television, ad
hoc network television, television syndication, closed circuit, and Pay-Per-View
by all methods of delivery, now known or hereafter devised, whether re-uplinked
or otherwise, including without limitation, terrestrial, digital terrestrial,
Satellite, Cable, MMDS, MDS, DBS, DDT, DIVA, DIVX, SMATV, MATV, ADSL, LPTV,
CATV, and other telecommunication systems), by any and all methods of
distribution, whether now known or hereafter devised, including, without
limitation, fiberoptics and Internet Delivery Mechanisms, without limiting the
foregoing, LGF is hereby granted the exclusive right to exploit the Picture in
all manner and style including, without limitation, the right to sell, rent,
give-away, exhibit, advertise and promote the Picture in all media, whether now
known or hereafter devised. Without limiting the generality of the foregoing
grant, LGF is hereby granted all elements with respect to the Picture, including
the title and characters, and including the exclusive right to edit, delete,
modify, disguise, create, develop, adapt, produce, distribute, exhibit,
broadcast, and exploit the Picture, subject to those editing restrictions set
forth in paragraph 8 of the Agreement Without limiting the generality of the
foregoing grant, LGF is hereby granted the right to exploit and/or license, in
any and all media, all footage, (rims and outtakesof and from the Picture as may
be available, and any portions thereof in any manner and style as LGF shall
determine in its sole discretion, including, without limitation, the right to
use such footage, trims and outtakes in connection with the creation of other
motion pictures and/or other audiovisual works, and to license such footage,
trims and outtakes as "stock footage" as that term is commonly understood in the
entertainment industry (collectively, the "Clip Rights")- In the event that LGF
is required to receive access to the footage, trims and outtakes of the Picture
pursuant to the Delivery Schedule (as opposed to physical delivery), then prior
to Grantor destroying or electing not to store any footage from the Pictures and
any trims and outtakes from the Pictures, Grantor shall notify LGF in writing
and LGF may elect to store such footage, trims and outtakes at LGF' s cost If
LGF does so elect to store such footage, trims and outtakes, Grantor shall have
access to all such material. Grantor shall pay for the laboratory charges and
duplication costs which Grantor incurs in this regard.
Capitalized
terms utilized herein and not otherwise defined shall have the same meaning as
in LGF's Standard Terms and Conditions, which shall be negotiated in good faith
in accordance with LGF's standard business practices.
10
