Exhibit 6(b)(ii)(2)
As of December 5, 1994
Wombat Productions
A Division of The CineMasters Group, Inc.
c/x Xxxxxx Associates, Inc.
Plaza West
00 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
RE: BIOGRAPHY: XXXXXXXX XXXXXX AND XXXXX XXXXX
Ladies and Gentlemen:
This will acknowledge and confirm the terms pursuant to which Wombat
Productions, a division of CineMasters Group, Inc. ("Producer") and A&E
Television Networks ("A&E") have agreed with respect to the above-named two (2),
one (1) hour programs ("Program(s)") to be co-produced by Producer with A&E for
exhibition over the A&E television networks ("Networks").
1. TERM
The Term of the Agreement shall commence on the date hereof and continue
for so long as A&E shall have any right in any Program.
2. EXHIBITION PERIOD / COMMENCEMENT DATE
A&E shall have the right to exhibit each of the Programs
for a period of five (5) years commencing on the earlier of the first telecast
or the date four (4) months after delivery of each Program (pay or play).
3. OPTION TO EXTEND EXHIBITION PERIOD
A&E shall have an irrevocable option exercisable by written notice no
later than August 31, 1999 to extend the Exhibition Period for an additional two
(2) years and ten (10) playdates.
4. OPTION TO ORDER ADDITIONAL PROGRAMS
A&E shall have an irrevocable option exercisable by written notice no
later than September 1, 1995 to order up to two (2) additional programs
("Optional Program(s)") on all applicable terms set forth herein.
5. TERRITORY
Those areas capable of receiving transmissions from a satellite
transponder carrying the Networks, limited to the United States, its territories
and possessions (including Puerto Rico, Guam and the U.S. Virgin Islands), and,
in the English language only, Canada, Mexico, Central America and the Caribbean.
6. MEDIA
A&E shall have the right to transmit the Programs in television formats
including, but not limited to cable, microwave, multipoint distribution service
(MDS), satellite master antenna television system (SMATV), direct broadcast
satellite (DBS), and transmission directly to so-called "backyard" TVRO
receiving dishes, and including simulcasting of the Programs' stereophonic sound
tracks over FM radio.
7. PLAYDATES
Twenty-five (25) for each Program. A Playdate shall consist of any
exhibition(s) of a Program occurring within a twenty-four (24) hour period.
8. PREMIERE
Producer warrants and represents that A&E's initial exhibition hereunder
shall constitute each Program's premiere over standard television and
non-standard television formats (including "superstation" distant signal
carriage such as WTBS) throughout the world.
9. EXCLUSIVITY
Each Program shall be exclusive to A&E in the United States and its
territories and possessions (including Puerto Rico, Guam and the U.S. Virgin
Islands) and Canada (in the English language only) over standard television and
non-standard television (including "superstation" distant signal carriage such
as WTBS) from the date hereof until the expiration of the Term.
With respect to Mexico, Central America and the Caribbean, each Program
shall be non-exclusive during the Term.
10. CREATIVE RIGHTS
A&E shall have its standard rights of prior creative approval with respect
to all key elements of each Program including but not limited to the subject of
each Program, host, principal performers, narrator, director, writer, scripts,
credits and rough cut.
Xxxx Xxxxxxx and Xxxxxxx Xxxxxx are pre-approved as co-writers and
co-directors of the Programs.
11. CREDITS
A&E shall receive the following permanent credit within each Program,
"Produced by Wombat Productions in association with Xxxxxx Associates and A&E
Network." In addition, each Program shall conclude with a graphic (to be
furnished by A&E) stating "This has been a presentation of A&E Network."
12. EDUCATORS' RIGHTS
A&E shall have the right to authorize educators to tape and retain each
Program for the duration of the Exhibition Period.
13. FINANCIAL COMMITMENT
The total sum of Two Hundred Forty Thousand Dollars
($240,000).
In the event A&E exercises its options to order any Optional Program(s),
the Financial Commitment shall be One Hundred Twenty Thousand Dollars ($120,000)
for each Optional Program.
In the event A&E exercises its options to extend the Exhibition Period,
A&E shall pay Twenty Thousand Dollars ($20,000) for the extension of the
Exhibition Period for each
Program.
14. PAYMENT SCHEDULE
a. The Financial Commitment shall be payable as follows:
Twenty-Four Thousand Dollars ($24,000) within fifteen (15) business days
of mutual execution of this Agreement;
Thirty Thousand Dollars ($30,000) within fifteen (15) business days of
commencement of principal photography of each of the Programs (Sixty Thousand
Dollars ($60,000 total), which has occurred on or about November 15, 1994 with
respect to both Programs;
Forty-Two Thousand Dollars ($42,000) within fifteen (15) business days of
completion of production of each of the Programs (Eighty-Four Thousand Dollars
($84,000) total) and delivery and approval by A&E of the rough cut, currently
scheduled to occur on or about January 11, 1995 with respect to XXXXXXXX XXXXXX
and on or about March 31, 1995 with respect to XXXXX XXXXX; and
Thirty-Six Thousand Dollars ($36,000) within six (6) weeks of delivery to
A&E and technical acceptance of the Delivery Materials for each Program as
defined herein (Seventy-Two Thousand Dollars ($72,000) total) subject to
delivery of the E&O Certificate to A&E's Legal & Business Affairs Department as
set
forth herein.
b. In the event A&E exercises its option to order any Optional Program(s),
the Financial Commitment therefor shall be payable Twelve Thousand Dollars
($12,000) within fifteen (15) business days of the exercise of the option, and
the balance shall be payable according to the same schedule as provided for each
of the Programs
c. In the event A&E exercises its option to extend the Exhibition Period
for any Program(s), the fee therefor shall be payable within fifteen (15)
business days of the exercise of the option.
d. All payments due the Producer hereunder shall be made to and in the
name of Xxxxxx Associates, Inc., and such payment shall fully discharge A&E's
payment obligations hereunder.
15. EDITING AND NARRATION
Producer shall edit the Programs to conform to A&E's programming format as
set forth in Schedule A attached hereto and made a part hereof.
A&E shall have the right to edit each Program further for any and all
purposes whatsoever including, without limitation, formatting and scheduling, to
insert commercials and to conform with A&E's standards and practices. A&E shall
also have the right to renarrate each Program.
16. FOOTAGE RIGHTS
Producer shall obtain the rights for A&E to use all of the archival
material, television and movie clips, music, interview material and any other
material not specifically created for inclusion in the Programs ("Third Party
Material") for all the purposes described herein for the Term ("Minimum
Rights").
Without limiting the foregoing, Producer warrants and represents that A&E
shall have the rights to use all of the Third Party Material in non-standard
television throughout the Territory for the Term, including any extensions of
the Exhibition Period ("Minimum Rights") without payment by A&E to any third
parities whatsoever.
Producer shall deliver to A&E a full and complete written summary of the
usage and extent of Third Party Material, together with copies of all agreements
relating thereto ("Rights Bible"), not later than delivery of each Program.
17. PROFIT PARTICIPATION
Producer shall have the right to distribute the Programs in any and all
media (including videograms) outside of the Territory, and shall pay A&E Seven
Percent (7%) of Producer's gross receipts derived therefrom, in perpetuity.
"Gross Receipts" shall be all amounts paid for exploitation of the Programs,
including videogram advances and royalties, less any and all residual and rights
payments made by Producer with respect to the distribution of each Program
outside the Territory, except for the first One Hundred Thousand Dollars
($100,000) of gross receipts for each Program. Each Program shall be accounted
for separately, and there shall be no cross collateralization.
18. VIDEOGRAMS
A&E shall have the right to purchase finished videograms of each Program
from Producer for direct marketing by A&E in the Territory at a price not to
exceed Forty-Five Percent (45%) of their suggested retail price.
The term "videogram" as used herein shall mean video cassette, video disc,
and all other video device forms and configurations.
19. DELIVERY MATERIALS
Producer agrees to deliver the materials listed below to A&E on or before
May 15, 1995:
* One (1), first-generation, master, one-inch (1"), Type C, NTSC color
videotape of each Program with continuous drop-frame time code, and whenever
available, stereo sound, to be delivered to Modern Telecommunications, Inc. at 0
Xxx Xxxxxxxxxxxx Xxxxx, "C" Level, New York, NY 10017 to the account of the A&E
TELEVISION NETWORKS.
* A script, if available, and music cue sheets for each
Program.
The Programs shall be in accordance with the technical specifications set
forth in Schedule C attached hereto and made a part hereof.
Timely delivery of the Programs is of the essence of this Agreement.
20. PROMOTIONAL MATERIALS
Upon the earlier of mutual execution of this Agreement or delivery of the
Delivery Materials, Producer shall provide A&E with promotional materials
including color or black-and-white slides, transparencies, and photographs with
captions; brochures; program logos; a synopsis and description of each Program;
a complete list of cast and credits; and biographies of key Program performers
and the host, if any.
21. INDEMNIFICATION
Producer warrants and represents that it has the right to enter into this
Agreement, to grant all rights granted herein, to perform all of Producer's
obligations hereunder and that A&E's exercise of its rights hereunder,
including, without limitation, the exhibition, promotion, publicity and
advertising use of any Program or any part thereof as licensed herein shall not
violate the rights of any third party.
Producer shall indemnify and hold harmless A&E from and against any
claims, damages, liabilities, costs and expenses, including but not limited to
reasonable counsel fees, relating to the Programs or arising from exhibition of
any Program over the Networks, any breach of any warranty or representation made
by Producer herein, and any promotional use of any Program or any elements
thereof in any manner in any media (but not as direct endorsement of any
product), including, without limitation, clips, photographs and music.
22. E&O INSURANCE
Producer shall procure and maintain in full force and effect with respect
to the Programs, a policy of standard Producer's Liability (errors and
omissions) insurance for the first year of the Term and Distributor's Liability
insurance for the balance of the Term in annual renewals, all naming A&E as an
additional insured, all issued by a nationally recognized insurance carrier, and
with minimum limits of at least $1,000,000 for any single occurrence and
$3,000,000 for all claims in the aggregate, which polic(y)(ies) may not be
canceled without thirty (30) days' prior written notice to A&E.
Please sign below and indicate your acceptance of the foregoing and return all
copies of the Agreement to A&E to the attention of the Vice President, Legal and
Business Affairs, A&E Television
Networks.
Sincerely,
A&E TELEVISION NETWORKS ACCEPTED AND AGREED:
By: /s/ Xxxxxxx X. Xxxxxx WOMBAT PRODUCTIONS
Xxxxxxx X. Xxxxxx A DIVISION OF THE CINEMASTERS
Executive Vice President & GROUP, INC.
Chief Administrative By: /s/ Xxxx Xxxxxxx
Officer Xxxx Xxxxxxx, President
00-0000000
Federal ID Number
AMENDMENT
As of June 27, 1995
Wombat Productions
A Division of The CineMasters Group, Inc.
c/x Xxxxxx Associates, Inc.
Plaza West
00 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
RE: AMENDMENT TO AGREEMENT AS OF DECEMBER 5, 1994
Ladies and Gentlemen:
Reference is made to the agreement between Wombat Productions, a division of
CineMasters Group, Inc. ("Producer") and A&E Television Networks ("A&E") dated
as of December 5, 1994 ("Agreement"). Producer previously co-produced Programs
for A&E entitled XXXXXXXX XXXXXX and XXXXX XXXXX ("Programs 1 & 2").
Producer and A&E have agreed and do hereby agree that the Agreement shall be
amended as follows:
1. Paragraph 4 of the Agreement is hereby deleted and the
following is substituted in its place and stead:
"4. PROGRAM ORDER AND OPTIONS TO ORDER ADDITIONAL PROGRAMS
A&E hereby orders and Producer agrees to produce and
deliver the following five (5) Programs ("Programs 3 - 7"), each one (1) hour in
length under the Agreement:
XXX XXXXXXX
XXXX XXXXXXXXX
XXXX XXXXXX
XXXX XXXXXXXX
XXXX XXXXXXXXX
A&E shall have two (2) successive dependent options, each to order up to
five (5) additional programs, ("Program(s) 8 - 12" and Program(s) 13 -17"), to
be exercised no later than the date of delivery of the next-to-last Program of
the previous group of Programs set forth above."
2. Paragraph 3 of the Agreement is hereby deleted and the
following is substituted in its place and stead:
"3. OPTIONS TO EXTEND PROHIBITION PERIODS
A&E shall have two (2) successive dependent options to
extend the Exhibition Period for each of Programs 1 - 7 and 8 - 17, if any are
ordered pursuant to Paragraph 4 hereof.
The first extension shall be for two (2) Additional years (and ten (10)
additional Playdates) ("First Extension"), exercisable for Programs 1 & 2 no
later than January 31, 2000 and for Programs 3 - 17 no later than four years
after the commencement of the Exhibition Period for each Program.
The second extension shall be for three (3) additional years thereafter,
(and fifteen (15) additional Playdates) ("Second Extension"), exercisable for
Programs 1 - 17 no later than the end of the first year of the First Extension."
3. Paragraph 13 of the Agreement is hereby deleted and the
following shall be substituted in its place and stead:
"13. FINANCIAL COMMITMENT
For Programs 1 and 2, the Financial Commitment shall be the total sum of
Two Hundred Forty Thousand Dollars ($240,000), receipt of which is hereby
acknowledged by Producer.
For Programs 3 - 7, the Financial Commitment shall be One Hundred Twenty
Thousand Dollars ($120,000) per Program for a total of Six Hundred Thousand
Dollars ($600,000).
In the event A&E exercises its options, or any of them, to order any of
Programs 8 - 12, the Financial Commitment shall be One Hundred Twenty-Five
Thousand Dollars ($125,000) per Program.
In the event A&E exercises its options, or any of them, to order any of
Programs 13 - 17, the Financial Commitment shall be One Hundred Thirty Thousand
Dollars ($130,000) per Program.
In the event A&E exercises any of its options to extend the Exhibition
Period for any Program (for either the First Extension or the Second Extension),
the Financial Commitment for each such extension for each Program shall be
Twenty Thousand Dollars ($20,000)."
4. A new subparagraph 00.xX. shall be added to the Agreement
after subparagraph 14.a, as follows:
"(14. PAYMENT SCHEDULE)
aI. The Financial Commitment for Programs 3 - 7 shall be
payable as follows:
Sixty Thousand Dollars ($60,000) within fifteen business days of mutual
execution of this Amendment;
Thirty Thousand Dollars ($30,000) within fifteen (15) business days of
commencement of principal photography of each Program (One Hundred Fifty
Thousand Dollars ($150,000 total) for Programs 3 - 7);
Forty-Two Thousand Dollars ($42,000) within fifteen (15) business days of
completion of production and delivery and technical approval by A&E of the rough
cut of each Program (Two Hundred Ten Thousand Dollars ($210,000) total for
Programs 3 - 7); and
Thirty-Six Thousand Dollars ($36,000) within six (6) weeks of delivery to
A&E and technical acceptance of the Delivery Materials for each Program offered
hereunder as defined herein subject to delivery of the E&O Certificate to A&E's
Legal & Business Affairs Department as set forth herein (One Hundred Eighty
Thousand Dollars ($180,000) total for Programs 3 - 7)."
5. Subparagraph 14.b of the Agreement is hereby deleted and
the following is substituted in its place and stead:
"(14. PAYMENT SCHEDULE)
b. In the event A&E exercises any of its options to order any of
Program(s) 8 - 12, the Financial Commitment therefor shall be payable Twelve
Thousand Dollars ($12,000) per Program ordered, within fifteen (15) business
days of the exercise of the option, and the balance shall be payable according
to the same schedule as provided under Subparagraphs 14.a and 00.xX for Programs
1 - 7, except that the payment due within fifteen (15) business days of
completion of production and delivery and technical approval of the rough cut
shall be Forty-Seven Thousand Dollars ($47,000) per Program.
In the event A&E exercises any of its options to order any of Program(s)
13 - 17, the Financial Commitment therefor shall be payable Twelve Thousand
Dollars ($12,000) per Program ordered, within fifteen (15) business days of the
exercise of the option, and the balance shall be payable according to the same
schedule as provided under Subparagraphs 14.a and 00.xX for Programs 1 - 7,
except that the payment due within fifteen (15) business days of completion of
production and delivery and technical approval of the rough cut shall be
Fifty-Two Thousand Dollars ($52,000) per Program.
6. A new Paragraph 17A shall be added to the Agreement
following Paragraph 17, as follows:
"17A. A&E FRANCHISED CHANNELS
Producer shall retain the right to license to television in all
territories except the United States and its territories and possessions and
Canada (and Producer shall also retain the right to license to television in
Canada in the French language), provided however, that notwithstanding the
provisions of Paragraphs 5 and 17 hereof, A&E shall have the right to license
the non-exclusive television exhibition of any Program on any A&E franchised
channel, in any country in which it operates:
(a) in the event that Producer has not theretofore licensed the television
exhibition in such country, no earlier than two (2) years after delivery of such
Program to A&E, or
(b) in the event that Producer has licensed the
television exhibition:
(i) in Great Britain: no earlier than six (6) years
after delivery of such Program to A&E, and
(ii) in all other countries and territories: no
earlier than four (4) years after delivery of such Program to A&E.
The term "A&E franchised channel" shall mean any television program
service owned, controlled, programmed or operated solely or jointly by A&E or
which A&E has licensed the Networks' name(s) and/or format(s) in any language.
Notwithstanding the possible expiration of the Exhibition Period for any
Program, or the failure of A&E to extend the Exhibition Period for such Program,
A&E may license such Program on any A&E franchised channel(s) for up to four (4)
years and twenty (20) Playdates.
If required for A&E to exercise its rights under this provision, Producer
shall deliver a master videotape for any such Program with separate M&E track
for dubbing, and A&E shall have the right to dub the Program(s) into foreign
languages.
Producer shall give A&E prompt notice of any television licenses it has
entered into for any of the Programs, for any Territories for which A&E shall
make a written request, in order to facilitate A&E's exercise of its rights
hereunder without violating the rights of Producer or of any such television
licensee."
7. Paragraph 18 of the Agreement shall be amended by deleting the phrase
"Forty-five Percent (45%)" and substituting the phrase "Forty Percent (40%)" in
its place and stead.
8. The introductory clause of Paragraph 19 of the Agreement is
hereby deleted and the following is substituted in its place and
stead:
"(19. DELIVERY MATERIALS
Producer agrees to deliver the materials listed below to A&E for Programs
1 and 2 on or before May 15, 1995. Producer agrees to deliver the materials
listed below for Programs 3 - 7 according to the following schedule:
Title: Delivery Date:
XXX XXXXXXX August 18, 1995
XXXX XXXXXXXXX November 3, 1995
XXXX XXXXXX February 26, 1996
XXXX XXXXXXXX June 3, 1996
XXXX XXXXXXXXX August 24, 1996
The Delivery Dates for Programs 8 - 12 and for Programs 13 - 17 shall be
at approximately twelve (12) week intervals to be determined by A&E in
consideration of A&E's scheduled exhibition dates and the Producer's reasonable
production requirements."
9. The parties agree to set dates certain for the exercise of all options
hereunder consistent with the schedules of delivery and Commencement Dates
provided herein.
10. The limits of liability of the insurance requirements of Paragraph 22 of the
Agreement shall apply to each Program individually and separately.
Except as specifically amended herein, all the terms and conditions of the
Agreement are hereby ratified and confirmed.
If the foregoing is acceptable to Producer, please indicate Producer's approval
by signing in the space provided below and returning a copy of this amendment to
the attention of the Vice President of Business Affairs and General Counsel, A&E
Television
Networks.
Sincerely,
A&E TELEVISION NETWORKS ACCEPTED AND AGREED:
By: /s/ Xxxxxxx X. Xxxxxx WOMBAT PRODUCTIONS, A
Xxxxxxx X. Xxxxxx DIVISION OF THE CINEMASTERS,
Executive Vice President GROUP, INC.
Chief Financial and By: /s/ Xxxx Xxxxxxx
Administrative Officer Xxxx Xxxxxxx, President
00-0000000
Federal ID Number
[Letterhead of A&E Television Networks]
November 8, 1996
Xx. Xxxxxxx Xxxxxx
Wombat Productions
A Division of the CineMasters Group, Inc.
c/x Xxxxxx Associates, Inc.
Plaza West
00 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
RE: BIOGRAPHY(R)- PROGRAMS 8 - 10
Dear Xxxxx,
I am pleased to return to you a fully executed copy of the amendment to the
agreement between us for the above referenced programs.
Best regards,
Sincerely,
/s/ Xxxxx XxXxxxxx
Xxxxx XxXxxxxx
Attach.
AMENDMENT
As of October 1, 1996
Wombat Productions
A Division of The CineMasters Group, Inc.
c/x Xxxxxx Associates, Inc.
Plaza West
00 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
RE: BIOGRAPHY(R) PROGRAMS 8 - 10
Ladies and Gentlemen:
Reference is made to the agreement between Wombat Productions, a division of
CineMasters Group, Inc. ("Producer") and A&E Television Networks ("A&E") dated
as of December 5, 1994 ("Agreement"), as amended as of June 27, 1995
("Amendment").
Pursuant to Paragraph 1 of the Amendment, A&E hereby exercises its option to
require Producer to produce three (3) additional Programs ("Programs 8 - 10")
for the BIOGRAPHY(R) series on all of the terms and conditions of the Agreement
and Amendment.
Producer and A&E have agreed and do hereby agree that the Agreement and
Amendment shall be further amended as follows:
1. SUBJECT MATTER & DELIVERY DATE
A&E hereby approves the following subject matter and delivery dates:
Program: Subject Matter: Delivery Date:
8 Xxxxxxx Xxxxxxxx 2/28/97
9 Xxxxxx Xxxxxxx To Be Determined By A&E
10 Xxxxxx Xxxxxx To Be Determined By A&E
Any change of the Subject Matter for any of the above referenced Programs
shall be subject to the prior approval of A&E.
2. BIOGRAPHY(R) is a registered trademark and servicemark of A&E, and Producer
acknowledges that it has no right, title or interest in BIOGRAPHY, except as
expressly set forth herein.
Except as specifically amended herein, all the terms and conditions of the
Agreement are hereby ratified and confirmed.
If the foregoing is acceptable to Producer, please indicate Producer's approval
by signing in the space provided below and returning a copy of this amendment to
the attention of the Vice President & General Counsel, A&E Television Networks.
Sincerely,
ACCEPTED AND AGREED:
A&E TELEVISION NETWORKS
WOMBAT PRODUCTIONS A Division of the
CineMasters Group, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Vice President &
General Counsel By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx, President
Print Name & Title
