Re: Stan Lee / Producer / Overall Agreement / Amendment
As of
September 12, 2006
(f/s/o
Xxxx Xxx)
c/o
Ganfer & Shore
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx, Esq.
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Re:
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Xxxx Xxx / Producer /
Overall Agreement /
Amendment
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Gentlemen:
Reference is made to the Agreement (the
"Agreement") dated as of March 20, 2006 between SILVER CREEK PICTURES, INC.
("Silver Creek") and POW! ENTERTAINMENT, INC. (“Lender”) for (a) submission by
Xxxx Xxx (“Artist”), on an exclusive “first look” basis, of any and all ideas,
material and/or properties owned or controlled by Lender or Artist that Artist
is interested in developing in any medium or media and (b) the producing
services of Artist in connection with the development, production and
distribution of such Properties in any medium or media.
In
consideration of the mutual covenants and agreements contained herein and in the
Agreement, Silver Creek, Lender and Artist hereby agree in this amendment
(“Amendment”) dated as of September 12, 2006, to amend the Agreement as
follows:
1. Silver
Creek shall have no obligation to perform pursuant to this Amendment unless and
until Silver Creek receives an executed original of this Amendment (in form and
substance acceptable to Silver Creek).
2. Reference
is made to Paragraph II.D.1 of the Agreement (Credit – Artist-Submitted
Properties; Individual Executive Producer Credit – Theatrical and DTV Motion
Pictures). Provided that Gill Champion (“Champion”) is employed as an
officer of Lender at the time that a Picture is produced and released as a
feature-length theatrical or DTV motion picture based on an Artist-Submitted
Property, if Artist fully performs all producing services and material
obligations in connection with such Picture and Champion signs a Certificate of
Results and Proceeds (in form and substance acceptable to Silver Creek)
substantially in the form attached hereto as Exhibit “A”
(a “Certificate”) in connection with Champion’s services on such
Picture, and further subject to Silver Creek’s standard exclusions and
exceptions (including artwork title exceptions), and subject to any union or
guild restrictions or obligations, Silver Creek shall accord Champion an
individual “Executive Producer” credit (which credit may be shared in Silver
Creek’s sole discretion), so that the “Executive Producer” credit accorded
pursuant to Paragraph II.D.1 of the Agreement shall appear in substantially the
form “Executive Producers – Xxxx Xxx and Gill Champion.”
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3. Reference
is made to Paragraph II.D.2 of the Agreement (Credit – Artist-Submitted
Properties; Individual Executive Producer Credit – Television
Productions). Subject to network and guild restrictions and
approvals, with respect to each telefilm and/or each episode of an Original
Series for which Artist renders and fully performs all services and material
obligations as a producer, provided that Champion is employed as an officer of
Lender at the time that such telefilm and/or episode of an Original Series is
produced and broadcast and Champion signs a Certificate in connection with
Champion’s services on such telefim and/or episode, in addition to the executive
producer credit accorded Artist in connection therewith, Silver Creek shall also
accord Champion an executive producer credit (which credit may be shared in
Silver Creek’s sole discretion) on screen on a separate card (which card may be
shared in Silver Creek’s sole discretion) in the main or end titles, at Silver
Creek’s election, of each such telefilm or episode of an Original Series, with
all other aspects of such credit in Silver Creek’s sole
discretion. Notwithstanding anything to the contrary contained in
Paragraph II.D.2 of the Agreement, Artist hereby acknowledges and agrees that
Artist’s executive producer credit may appear, in Silver Creek’s sole
discretion, in first position on a card shared with Champion.
Except as
specifically set forth herein, all provisions of the Agreement shall remain in
full force and effect and may not be modified except by a writing executed by
all parties to the Agreement. Each capitalized term used herein
and
not
specifically defined herein shall have the meaning ascribed thereto in the
Agreement.
If the
foregoing correctly represents your understanding, please so acknowledge and
accept as provided below.
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SILVER
CREEK PICTURES, INC.
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By:
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Its:
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ACCEPTED AND
AGREED:
POW!
ENTERTAINMENT PRODUCTIONS, INC.
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By:
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Its:
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Federal
I.D.
No.
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2
EXHIBIT
“A”
CERTICATE OF RESULTS AND
PROCEEDS
In connection with that certain
proposed [feature-length theatrical motion picture project/telefilm/original
series] tentatively entitled “_______________” (the “Picture”), for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees to the following: the results and proceeds
of the undersigned’s services in connection with the Picture, including without
limitation all material composed, submitted, added, created, or interpolated by
the undersigned, from the inception of creation and irrespective
of the stage of development or completion of the Picture (collectively,
the “Work”), which the undersigned acknowledges may have been or may be rendered
in collaboration with others, shall be deemed a work-made-for-hire specifically
ordered by Silver Creek, and the undersigned hereby further acknowledges that
all of the Work is the sole property of Silver Creek for any and all purposes
whatsoever. In the event that the Work is found not to be a
work-made-for-hire, the undersigned hereby assigns, transfers and grants all
rights, including all exclusive exploitation rights, of every kind and nature
(including any and all copyrights and neighboring rights, to the extent such
assignment is allowed by law) in and to such Work to Silver
Creek. All rights to such Work are owned by Silver Creek solely and
exclusively, for the duration of the rights in each country and area and space,
in all languages, and throughout the universe. The undersigned and
Silver Creek are aware and hereby acknowledge that new rights to the Work may
come into being and/or be recognized in the future, under the law and/or in
equity (hereafter the “New Exploitation Rights”), and the undersigned intends to
and does hereby grant and convey to Silver Creek any and all such New
Exploitation Rights to the Work granted by the undersigned
hereunder. The undersigned and Silver Creek are also aware and do
hereby acknowledge that new (or changed) (1) technology, (2) uses, (3) media,
(4) formats, (5) modes of transmission, and (6) methods of distribution,
dissemination, exhibition or performance (hereafter the “New Exploitation
Methods”) are being and will inevitably continue to be developed in the future,
which would offer new opportunities for exploiting the Work. The
undersigned intends and does hereby grant and convey to Silver Creek any and all
rights to such New Exploitation Methods with respect to the Work. The
undersigned hereby agrees to execute any document Silver Creek deems in its
interest to confirm the existence of the preceding and to effectuate its purpose
to convey such rights to Silver Creek, including without limitation the New
Exploitation Rights and any and all rights to the New Exploitation
Methods. The undersigned further hereby agrees that he will not seek
(1) to challenge, through the courts, administrative governmental bodies,
private organizations, or in any other manner the rights of Silver Creek to
exploit the Work by any means whatsoever, or (2) to thwart, hinder or subvert
the intent of the grants and conveyances to Silver Creek herein and/or the
collection by Silver Creek of any proceeds relating to the rights conveyed
hereunder.
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The undersigned hereby warrants and
represents that the undersigned’s contribution to the Work including, without
limitation, all ideas, notes and/or other material, written or
otherwise: (1) is wholly original with the undersigned; (2) does not
defame any person or entity; (3) does not violate any copyright; (4) does not
violate any right of privacy or publicity, or any other right of any person or
entity; and (5) is not the subject of any litigation or claim that might give
rise to litigation. The undersigned further warrants and represents
that there has been no publication or other use of any ideas, notes, materials
and/or any other contributions of the undersigned to the Work anywhere in the
universe and that the undersigned has not granted or transferred any rights in
or to the Work to any third party and that the undersigned has not done nor will
not do anything which has impaired or will impair the right to the Work in any
way. The undersigned shall indemnify Silver Creek against any and all
liability, damages, costs and expenses (including reasonable attorney’s fees)
proximately caused by reason of any breach of the foregoing representations and
warranties. Nothing shall be deemed to constitute a waiver of Silver
Creek’s right to seek indemnification from the undersigned in the event Silver
Creek pays monies to settle a third party claim which Silver Creek believes was
caused by the undersigned’s breach.
Silver Creek may assign or license any
of its rights in the Work and any such assignment or license shall inure to the
benefit of such assignee or licensee and shall be binding upon the
undersigned. Any remedies the undersigned may have against Silver
Creek in connection with the Work and the Picture shall be limited to the right
to recover damages, if any, in an action at law, and the undersigned hereby
waives any right or remedy in equity, including any right to rescind Silver
Creek’s right and interest in and to the Work or to enjoin or restrain the
distribution or exhibition of the Picture, including any advertising related
thereto.
Silver Creek is not obligated to
develop, produce, distribute, and/or exploit the Picture, or, if commenced, to
continue the development, production, distribution, or exploitation of the
Picture in any territory. Regardless of whether or not Silver Creek elects to
develop, produce, distribute and/or exploit the Picture (or to commence same)
Silver Creek is not obligated to use the services in whole or in part of the
undersigned hereunder or the results and proceeds thereof in whole or in
part.
This letter agreement shall be binding
upon the parties and their administrators, representatives, agents, executors,
predecessors, successors, and assigns, and shall inure to the benefit of the
parties and to their respective heirs, administrators, representatives,
executors, successors and assigns. The individuals executing this
letter agreement on behalf of themselves and/or their respective entities have
the authority to do so and to bind their respective entities to the terms and
conditions of this letter agreement.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this agreement
as of the date and year first written above.
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SILVER
CREEK PICTURES, INC.
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By:
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Its:
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ACCEPTED
AND AGREED:
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Gill
Champion
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