Re: Stan Lee / Producer / Overall Agreement / Third Amendment
September
10, 2007
(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 / Third 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”), as amended by the
letter agreement, dated as of September 20, 2006 (the “First Amendment”) and the
letter agreement, dated as of March 13, 2007 (the “Second Amendment”), for (a)
submission by Xxxx Xxx (“Artist”), on an exclusive “first look” basis, of any
and all ideas, material and/or properties (“Property[ies]” as more fully set
forth in Paragraph I.E.1 of the Agreement) 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, in the
Agreement, the First Amendment and the Second Amendment, Silver Creek, Lender
and Artist hereby agree in this third amendment (“Third Amendment”)
effective as of
March 20, 2006, to further amend the Agreement as set forth herein.
1. In
addition to the representations and warranties contained in Paragraph D of
Silver Creek’s Standard Terms and Conditions, Lender hereby expressly
represents, warrants and agrees that:
a. Lender
and/or Artist is the sole owner of all intellectual property and other rights in
each Property submitted as of the date hereof to Silver Creek pursuant to the
Agreement and Lender and/or Artist have full power and authority to grant said
rights to Silver Creek (including, without limitation, the right to use Artist’s
name, biography, photographs and/or likeness); to the extent that Lender and/or
Artist is not the sole owner of all rights in each Property submitted or to be
submitted to Silver Creek in the future, Lender or Artist shall advise Silver
Creek in writing of any and all terms pertaining to such Property and the
identity of third parties who may possess rights in such Property (e.g., producers,
actors, directors attached to the Property, etc.), if any, and if not
specifically disclosed to Silver Creek in such written submissions, Lender
represents and warrants to Silver Creek that any Property submitted is wholly
owned by Lender and/or Artist.
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b. Except
as shall have been disclosed to Silver Creek at the time a Property is submitted
to Silver Creek, none of the rights granted to Silver Creek pursuant to the
Agreement have been granted, encumbered, or otherwise disposed of in any manner
to any person, firm or other third party and neither Lender nor Artist have
granted any other rights to any Property.
c. Except
for the rights granted to Silver Creek pursuant to the Agreement, and provided
that Silver Creek has accepted an Artist-Submitted Property for
development, no motion picture or other work based in whole or in part upon a
Property (whether an Artist-Submitted Property or a Silver Creek Submitted
Property) has been or will be produced or authorized by Lender or Artist or by
or with the knowledge or consent of Lender or Artist; neither any Property
(whether an Artist-Submitted Property or a Silver Creek Submitted Property) nor
any version thereof nor any play or dramatic adaptation based thereon in whole
or in part has been or will be published or presented or authorized in any
media, including, without limitation, on television, stage or on the
spoken stage, by or with the knowledge or consent of Lender or
Artist.
d Neither
Lender nor Artist has done or omitted to do, and will not do or omit to do, any
act or thing by license, grant, or otherwise, which will or may impair or
encumber any of the rights granted to Silver Creek or interfere with the full
enjoyment of said rights.
e. Other
than (i) the litigation (the “SLMI Litigation) involving Xxxx Xxx Media, Inc.
(“SLMI”), Xxxxx Xxxxxxxx, X. X. Xxxxxxxx and Xxxxxxx Xxxxxx and (ii) the
litigation involving Valcom, Inc. (the “Valcom Litigation”), there are no claims
or litigations pending or threatened which will or might adversely affect any of
the rights granted in any Property submitted as of the date hereof or in the
future to Silver Creek; Lender and Artist and their representatives have advised
Silver Creek of their opinion that neither the SLMI Litigation nor the Valcom
Litigation has merit.
f. No
Artist-Submitted Property shall be in the public domain, and each
Artist-Submitted Property enjoys, and will enjoy, either statutory or (to the
extent that it may exist) common law protection in the United States and all
countries adhering to the Berne and Universal Copyright Conventions; and the
rights granted to Silver Creek pursuant to the Agreement are and will be
exclusive.
g. The list
attached hereto as Schedule I is a complete and accurate list of the assets (the
“Assets”) that Artist, or a company established by Artist, has the right exploit
exclusively on behalf of SLMI; neither a Property (whether an Artist-Submitted
Property or a Silver Creek Submitted Property) nor any part thereof is or will
be taken from or based upon any Asset; Lender represents and warrants that such
list is complete and accurate; and no Artist-Submitted Property is or will be
derived from, based upon, or substantially similar to any Asset, nor will Lender
or Artist contribute any element to a Silver Creek Submitted Property that is or
will be derived from, based upon or substantially similar to any
Asset.
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2. Lender
will indemnify, make good, save and hold harmless Silver Creek, its parent,
subsidiaries, subsidiaries of its parent and/or affiliated companies, the
officers, directors, employees, representatives, shareholders and predecessors
of the foregoing, and its successors and assigns (the “Indemnified Parties”),
from and against any losses, damages, costs, liabilities, claims, demands,
charges, fees (including, but not limited to, reasonable outside attorneys’
fees), recoveries, actions or judgments from a court of competent jurisdiction,
penalties, guild fees or awards, expenses and any other losses whatsoever which
may be obtained against, imposed upon or suffered by the Indemnified Parties due
to the breach or alleged breach of any warranty, covenant, agreement or
representation herein made by Lender and/or Artist in this Amendment,
the Agreement, First Amendment and/or Second Amendment. The
Indemnified Parties shall have the right to select their own counsel in
connection with any such claim, subject to prior consultation with Lender,
provided that in the event of a disagreement, the Indemnified Parties’ decision
shall be final and binding.
Except as
specifically set forth herein, all provisions of the Agreement, the First
Amendment and the Second Amendment 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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SCHEDULE
I
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Xxxxxxx.xxx
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Pandora’s
Box
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Haywire
(aka The Fixers)
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The
Power
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War
is Heck
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Tomorrow
Man
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Braindead
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Triple
Helix
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Fissure
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Tomorrow
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Op:
Alien
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The
Demolisher
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Planet
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Death
Xxxx
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Captain
Super
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Talon
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Bots/The
Retrievers
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Raiders
of Space
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Adjuster
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The
Visitor (Quarantine)
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Con
Man and the Cop
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Chairman
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Micro-Man/Micro-Team
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Cougar
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Missing
Link
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Femizons
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Hobsons’s
Choices
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The
Un-Humans
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Diabella
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Tarantula
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I-Werewolf
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X-Isles
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The
Terminal
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Vindicator
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Decoy
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The
Lighthouse
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Disaster
Blasters
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Stronghold
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Mumbo
Jumbo
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Rocker
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The
Accuser
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The
Drifter
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Xxxx
Xxx’x Evil Clone
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Chrysallis
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The
Stone Giant
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Battle
School Tranquility
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Scuzzle
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Scuzzle
Design
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DC
Comics
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Guardians
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