Contract
Text
marked by [ * * *] has been omitted pursuant to a Request for Confidential
Treatment and was filed separately with the Securities and Exchange
Commission.
Agreement
made as of this 8th
day of
November, 2006, between PRO ELITE, INC., 00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000
(hereinafter referred to as “Licensor”)
and
SHOWTIME NETWORKS INC., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as “SNI”)
concerning the staging, television production and distribution of mixed martial
arts programs as more fully set forth below.
1. Term.
The
term of this Agreement shall commence on the date hereof and expire on December
31, 2009 (as the same may be extended, the “Term”).
The
Term may be extended in accordance with the following:
Commencing
on August 1, 2008, SNI shall have a forty-five (45) day exclusive negotiating
window to renew this Agreement for an additional three-year period (i.e.,
through December 31, 2012) on terms to be mutually agreed upon. In the event
no
agreement between SNI and Licensor is reached to so extend the Term within
such
exclusive negotiating window, then Licensor may negotiate with any third
party
in connection with any or all of such rights; provided, however,
that Licensor may not enter into any arrangement, understanding or agreement
with a third party or parties on less favorable terms to Licensor than the
last
offer which SNI made to Licensor without first giving SNI a right to match
such
less favorable terms, exercisable within ten (10) days following receipt
by SNI
of written notice detailing the terms and conditions of the bona-fide
third-party odder, as to any such offer that Licensor intends to accept.
If SNI
does not meet such third-party offer, Licensor shall be free to conclude
its
agreement with such third party, provided, however, that Licensor shall not
enter into any arrangement, understanding or agreement with such third party
(or
any other third party) on terms and conditions less favorable to Licensor
than
those contained in the third-party offer without again affording SNI a last
refusal as provided above. Licensor shall not structure any agreement with
any
third party in a manner which could reasonably be anticipated to frustrate
SNI's
first negotiation and/or last refusal rights hereunder.
2. The
Events.
(a) Licensor
shall provide live professional mixed martial arts programs under the brand
name
“Elite XC…” (or such other brand name mutually agreed upon by the parties
hereto) (“Elite
XC”)
in
accordance with the following schedule (which represents the minimum number
of
anticipated Events):
|
Year
|
Showtime
Events
|
PPV
Events
|
|
2007
|
4
|
2
-
4
|
|
2008
|
6
-
8
|
4
-
6
|
|
2009
|
8
-
12
|
6
-
10
|
The
first
Showtime Event (tentatively entitled “Elite XC #1”) shall take place on
February 10, 2007 and shall be staged at a venue to be mutually agreed
upon, and shall be scheduled to start at either 9PM ET or 10PM ET, as designated
by SNI.
(b)
(i) Unless
otherwise mutually agreed in writing, all events to be aired live on SHOWTIME
(as opposed to events to be first offered exclusively on pay-per-view)
(“Showtime
Events”)
will
be scheduled in order to be available live on SHOWTIME starting at either 9PM
ET
or 10PM ET (such start time to be determined by SNI) and SNI shall use its
commercially reasonable efforts to air each Event when and as delivered by
Licensor hereunder. Each Showtime Event will be scheduled to run for
approximately two (2) hours.
(ii) Unless
otherwise mutually agreed in writing, all events to be first offered exclusively
on pay-per-view (“PPV
Events”,
and
collectively with the Showtime Events, the “Events”)
will
be scheduled in order to be available live starting at either 9PM ET or 10PM
ET
(such start time to be determined by SNI). Each PPV Event will be scheduled
to
run for approximately three (3) hours.
1
(iii) Each
Event will be scheduled to take place live on a Saturday night on dates to
be
mutually agreed upon by SNI and Licensor. In all events, Licensor acknowledges
that SNI schedules its boxing events on the first Saturday of every month,
and,
as such, such first Saturdays would be unavailable for Events unless SNI were
to
agree otherwise.
(iv) The
parties shall mutually agree on additional events to be staged as
“SHOBOX Elite XC” featuring up and coming fighters developed through
the Pro Elite ladder system on terms to be mutually agreed
upon.
(c) The
fighter participants (each, a “Fighter”),
match-ups and the headline bout (the “Main
Bout”)
to be
televised as part of each Event will be mutually agreed upon between SNI and
Licensor sufficiently in advance of each Event. There shall be no less than
four (4) bouts to be telecast as part of each Showtime Event and no less
than five (5) bouts to be telecast as part of each PPV Event. All bouts
scheduled to be on the telecast of the pertinent Event shall be referred to
herein as the “Event
Card.”
Licensor shall use its best commercially reasonable efforts to keep each Event
Card intact, provided that in the event that there needs to be a substitution
either of a particular Fighter or a particular bout, Licensor shall immediately
notify SNI of the need for such substitution and the reason(s) therefor, and
shall work with SNI in determining the appropriate replacement Fighter or bout
as applicable. In all events, the replacement Fighter/bout shall be of at least
equal quality to the Fighter/bout being replaced.
(d) Unless
otherwise mutually agreed upon, each Event shall be staged at a venue located
in
the continental United States (other than the first Event, which may be staged
in Honolulu, Hawaii) from an arena that permits SNI to telecast a first class
quality, high definition production consistent with the production values of
SNI’s Showtime Championship Boxing franchise (each, a “Venue”).
(e) SNI
shall
not be required to blackout any marketing, promotion or telecast of any Showtime
Event or PPV Event, provided that with respect to PPV Events, SNI shall use
its
reasonable efforts to have the local cable system(s) (within a 30 mile radius
of
the Venue) not run advertising spots promoting the live Event until such time
that 80% of the Venue tickets have been sold or 12:01 am ET on the Thursday
prior to the date of the PPV Event, whichever is earlier. For each PPV Event,
Licensor shall promptly notify SNI when 80% of the Venue tickets have been
sold.
3. Grant
of Rights.
(a) Showtime
Events:
(i) For
each
Showtime Event, Licensor hereby grants to SNI the right (which right shall
be
exclusive (except as otherwise set forth herein) to SNI for the “Exclusive
License Period” (as defined below) applicable to such Showtime Event and
non-exclusive thereafter for the “Non-Exclusive License Period” (as defined
below) applicable to such Showtime Event) throughout the “Territory” (as defined
below) to market, exhibit, sell and otherwise exploit, and to authorize others
to market, exhibit, sell and otherwise exploit, the live telecast and recordings
of such Showtime Event, in whole or in part (in both standard and high
definition formats), in any and all media whether now known or hereafter
existing (but excluding “Home Video” (as defined below), the internet and mobile
(i.e., cell phone hand sets) technologies, which rights shall be as further
described below) (including, without limitation, theatrical, non-theatrical,
closed circuit, pay-per-view, video on demand, premium television (including,
without limitation, subscription video on demand), basic cable, over the air
broadcast television, still photographs, and radio) via any and all distribution
technologies whether now known or hereafter existing (including, without
limitation, distribution to hotels and motels, terrestrial broadcast systems,
cable systems, SMATV systems, MMDS systems, and direct-to-home (including,
without limitation, HTVRO and DBS) and closed broadband distribution
systems).
2
(ii) With
respect to exploitation of each Event in the Territory by means of the internet
and mobile technologies (the “Other
Media”),
(X) SNI shall have the right to market and promote by means of such Other
Media, and shall have the right to authorize others to market and promote by
means of such Other Media, the Events (including, without limitation, by means
of the use of clips of the Showtime Events and PPV Events) and their upcoming
exhibitions, and (Y) SNI and Licensor shall negotiate in good faith, on an
opportunity-by-opportunity basis, on the timing of exploitation of such Showtime
Event itself via such Other Media and whether SNI or Licensor shall pursue
such
opportunity, with the goal of maximizing revenues to, and exposure of the Events
for, SNI and Licensor from such exploitation.
(iii) Notwithstanding
the exclusive grant of rights above, for each Showtime Event, commencing
forty-five (45) days after the date of the pertinent live Showtime Event,
Licensor may offer such Showtime Event (either in whole or on a bout-by-bout
basis) via “Downloading” (as defined below) from internet websites owned and
operated by Licensor. Such internet exploitation shall be non-exclusive to
SNI’s
rights as described elsewhere in this Agreement. Any revenue generated by such
exploitation (after deduction solely of Licensor’s reasonable, verifiable,
direct out-of-pocket costs specifically for making the bout or bouts available
for Downloading and specifically for selling such bouts via Downloading (but
excluding in all events any and all costs for overhead and/or similar items)
(“Permitted
Costs”)
shall
be split seventy percent (70%) to Licensor and thirty percent (30%) to
SNI. Licensor shall remit to SNI its share of such revenue within
thirty (30) days after receipt thereof by Licensor or any affiliate of
Licensor.
(b) PPV
Events.
(i) For
each
PPV Event, Licensor hereby grants to SNI the exclusive right throughout the
Territory for the entire “Initial PPV License Period” (as defined below)
applicable to such PPV Event to distribute, exhibit, sell and otherwise exploit
(subject to Licensor’s prior approval of each such distribution agreement, which
shall not be unreasonably withheld or delayed), the live telecast and recordings
of such PPV Event, in whole or in part, (1) via all forms of pay-per-view
whether now known or hereafter existing (including, without limitation, video
on
demand) to residential consumers via any and all distribution technologies
whether now known or hereafter existing (including, without limitation,
distribution to hotels and motels, terrestrial broadcast systems, cable systems,
SMATV systems, MMDS systems, and direct-to-home (including, without limitation,
HTVRO and DBS) and the internet (as opposed to any closed broadband
distribution, which shall be permitted herein); provided that SNI shall first
obtain Licensor’s prior written consent as to any internet (as opposed to any
closed broadband distribution, which shall be permitted hereby) exhibition
of
such PPV Event prior to any such internet exhibition, which consent may be
withheld in Licensor’s reasonable discretion) and (2) to “closed circuit”
(as defined below) locations (including the right to police and enforce such
rights at closed circuit locations consistent with industry practice; provided
that net revenues derived by SNI from such policing rights shall be included
as
“Net Pay-Per View and Closed Circuit Receipts” (as defined below) applicable to
such PPV Event for purposes of this Agreement). During the “Post PPV License
Period” (as defined below) for a given PPV Event, SNI shall have the same
rights, and the PPV Event shall be subject to the same holdbacks, as if such
PPV
Event were a Showtime Event under subparagraph (a) above.
3
(ii) Notwithstanding
the exclusive grant of rights above, for each PPV Event, commencing forty five
(45) days after the date of such live PPV Event, Licensor may offer such PPV
Event (either in whole or on a bout-by-bout basis) via Downloading from internet
websites owned and operated by Licensor. Such internet exploitation shall be
non-exclusive to SNI’s rights as described elsewhere in this Agreement. Any
revenue generated by such pay-per-view exploitation (after deduction solely
of
Licensor’s Permitted Costs) shall be split seventy percent (70%) to
Licensor and thirty percent (30%) to SNI. Licensor shall remit to SNI its
share within thirty (30) days after receipt by Licensor or any affiliate of
Licensor.
(c) Library
Content:
Licensor hereby grants to SNI the non-exclusive right for the Term to exhibit
the “Library Content” (as defined below) in whole or in part (in both standard
and high definition) throughout the Territory in any and all media now known
or
hereafter invented for use via any and all distribution technologies whether
now
known or hereafter existing (including, without limitation, distribution to
hotels and motels, terrestrial broadcast systems, cable systems, SMATV systems,
MMDS systems, and direct-to-home (including, without limitation, HTVRO and
DBS),
radio, mobile devices and downloading via the internet), for the sole purpose
of
promoting the Events, SNI, SNI’s programming and mixed martial arts (other than
mixed martial arts competitors to Licensor) on SNI’s networks and solely to the
extent and for so long as Licensor has the right to use such Library Content
(provided that Licensor shall provide SNI written notice of any restrictions
of
which SNI needs to be aware and further written notice in the event that any
rights previously granted have expired or are no longer available for SNI’s uses
as and to the extent contemplated herein),. For purposes hereof, the term
“Library
Content”
shall
mean the content listed on Exhibit B attached hereto and any additional
content hereafter created by or for Licensor during the Exclusive License Period
pertaining to the Events and/or the Elite XC. If
Licensor is commercially exploiting (or has authorized the commercial
exploitation of) Library Content, SNI shall use good faith efforts to refrain
from making the same Library Content available to the public as free promotional
material. SNI may not show complete bouts as promos and can only use a
reasonable amount of Library Content in each promotion so as to avoid diluting
the value of the Library Content.
(d) Home
Video:
The
parties shall negotiate in good faith as to which party hereto will exploit
in
the Territory “Home Video” (as defined below) in order to maximize revenues
therefrom. Net Revenues from Home Video shall be split seventy
percent (70%) to Licensor and thirty percent (30%) to SNI. The
foregoing revenue split shall apply to any Home Video product or offering
containing (1) any Event, and/or (2) any other Elite XC-related material
created by or for SNI during the Term. In connection with any Home Video
distribution of any Event(s) or content as contemplated hereby, Licensor agrees
that SNI’s name and logo (in the format provided to Licensor by SNI) shall be
placed in a prominent manner on each Home Video (including DVD and any other
format) box and in any and all Promotional materials relating to the Home Video
distribution of such Event(s) and/or content. Notwithstanding the foregoing,
SNI
shall no longer be entitled to its share of the Home Video revenue as set forth
hereunder with respect to each Event for any exploitation of such Event in
Home
Video that takes place beginning ten (10) years after the date of such
Event.
4
(e) For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) the
term
“Territory”
shall
mean the United States and its territories, protectorates, commonwealths and
possessions (including without limitation Puerto Rico and the U.S. Virgin
Islands), Bermuda, and the Islands of the Caribbean (which Islands are set
forth
on Exhibit A
hereto),
and in addition, for PPV Events only, Canada;
(ii) the
term
“Exclusive
License Period”
for
a
given Event shall be for a period commencing on the date of the Event and shall
expire without further notice three (3) years after the date of the
Event;
(iii) the
term
“Non-Exclusive
License Period”
for
a
given Event shall be for a period commencing on the date of the expiration
of
the Exclusive License Period for the Event and shall continue thereafter in
perpetuity;
(iv) the
term
“Initial
PPV License Period”
for
a
given Event shall be for a period of five (5) calendar days from the date
of the live Event;
(v) the
term
“Post
PPV License Period”
for
a
given Event shall be for a period commencing on the date of the expiration
of
the Initial PPV Period for the Event and shall continue thereafter in
perpetuity;
(vi) the
term
“Downloading”
shall
mean the streaming or downloading transmission of an encrypted digital file
of
the pertinent content to a personal computer (or other device capable of
receiving digital downloads, such as set-top boxes, handheld devices, wireless
devices, etc.), on either (a) a “rental” basis (i.e., a temporary,
download-to-rent basis) or (b) a “purchase” basis (i.e., a permanent,
download-to-own basis);
(vii) the
term
“Home
Video”
shall
mean the sale and/or rental (and the promotion thereof) of videotape cassettes,
laserdiscs, DVD’s, CD ROM’s or similar physical devices for private, personal
use by individuals in their private residences; and
(viii) the
term
“closed-circuit”
shall
mean a private telecast of a given Event within theaters,
arenas, casinos, auditoriums, bars, clubs, restaurants or other similar
locations of public assembly where an admission fee or other consideration
is
charged and received for entry to view the telecast of the given Event, but
in
no event with a fire code capacity in excess of 500 persons (except for licensed
gaming casinos).
5
(e) Game
Rights:
Licensor shall own all right, title and interest in and to all game rights
of
every kind and nature concerning the Elite XC and Licensor’s business. If and to
the extent that SNI makes available a cable- and/or satellite-delivered video
game service to its customers, Licensor shall use its best commercially
reasonable efforts to ensure that any game produced with the authorization
of
Licensor during the Term is available through such video game service on terms
and conditions to be negotiated between Licensor and such service.
(f) International
Distribution.
Licensor shall determine the territories outside of the Territory in which
SNI
shall be responsible for licensing and distributing the Events (referred to
herein as “SNI
International Territories”).
For
any such SNI International Territories, SNI would be entitled to retain a
distribution fee (the “International
Distribution Fee”)
in an
amount equal to fifteen percent (15%) of the “Net International Receipts” (as
defined below). For purposes hereof, the term “Net
International Receipts”
shall
mean all revenues actually received by SNI from the Event in the SNI
International Territory (after the deduction of all fees and amounts (which
fees
and amounts shall be negotiated in good faith and on an arm’s-length basis)
retained by any agents for, and/or distributors and/or exhibitors of, such
Events pursuant to the agreements between SNI and such agents, distributors
and/or exhibitors together with the reasonable out-of-pocket costs incurred
by
SNI in creating and delivering the necessary materials and Events to such SNI
International Territories). The terms and conditions of any agreements between
SNI and such agents, distributors and/or exhibitors shall be subject to
Licensor’s prior approval, not to be unreasonably withheld or delayed. Any
amounts remaining after SNI’s International Distribution Fee and permitted
deductible costs and expenses shall be remitted to Licensor within
thirty (30) days after receipt by SNI or any affiliate of SNI.
(g) Basic
Cable/Broadcast Distribution.
In the
event that, at Licensor’s request, SNI is able to secure on Licensor’s behalf a
basic cable or broadcast network to televise Elite XC content (such as, but
not
limited to, a reality show based on the Elite XC, library content, live Elite
XC
events, or behind the scenes shows, as opposed to the Events themselves), SNI
shall be entitled to fifteen (15%) of all amounts actually received by
Licensor or any affiliate of Licensor from such basic cable or broadcast
network. Licensor shall remit to SNI its share of such amounts within
thirty (30) days after receipt by Licensor or any affiliate of
Licensor.
(h) Territorial
Protection.
In
connection with any internet by either party of any Event within such party’s
territory (and excepting promotional uses), such party shall (i) use
diligent efforts, and shall contractually require any and all sub-licensees
or
exhibitors of the pertinent Event to use diligent efforts, to restrict access
to
the Event to viewers located in such party’s territory (it being understood and
agreed that use of commercially viable software that is designed to allow access
to a web site or area only by individuals residing in the applicable territory
shall constitute “diligent efforts” for purposes of this clause), (ii) not
knowingly promote or authorize any other person or entity to promote the
internet exploitation of the Event in a manner that is targeted to any websites
or individuals that such party knows or reasonably should know reside outside
of
the pertinent territory, and (iii) use diligent efforts, and shall
contractually require any and all sub-licensees or exhibitors of the Event
to
use diligent efforts, to ensure that all promotions of such internet of the
Event bear a prominent disclaimer that indicates that the Event is not available
to residents outside of the pertinent territory.
6
(i) Reservation
of Rights.
All
rights not granted to SNI hereunder are reserved to Licensor. Except as to
approval rights granted hereunder and as otherwise specified elsewhere in this
Agreement, Licensor shall have absolute control of the operation of Licensor’s
business and shall be entitled to promote its business and retain all revenues
therefrom. As between SNI as the licensee under this Agreement and Licensor,
Licensor shall be entitled to all gate revenue, site fees, concessions,
sponsorship revenue and all other revenue derived by Licensor from the Events
except for the revenues shared with SNI under this Agreement. If SNI makes
any
agreements with affiliated companies, such agreements shall be entered into
on
an arms length basis and in good faith. Licensor shall own all trademarks,
service marks and other intellectual property in its business, subject only
to
the rights of SNI under this Agreement. SNI shall own all trademarks, service
marks and other intellectual property in its business, subject only to the
rights of Licensor under this Agreement.
4. Costs
and Expenses/License Fees/Recoupment/Distribution Fee to SNI.
(a) Production
of the Live Events.
Except
as expressly set forth below, Licensor shall be solely responsible for all
elements of, and all costs and expenses associated with, the production,
staging, content (including but not limited to national anthems, ring walks
or
entrances and the music associated therewith, interviews and promotional
materials), promoting and marketing of the live Event and all the bouts that
comprise the Event, including, without limitation, providing, at its sole cost
and expense, the site, the participants (including but not limited to all
Fighter purses, training expenses and travel and lodging expenses), officials,
referees and other customary attendant activities, and paying any and all
insurance (including satellite transmission failure insurance) and taxes,
license and sanctioning fees or other assessments arising out of the live Event
. SNI shall have no obligation to make any payments to any Fighter participating
in the Event (including Fighters or any member of a Fighter’s camp), to any
officials, referees, sanctioning organizations, arena or facility or to any
other supplier of goods or services to the Event (except as expressly required
by the provisions of this Agreement or as ordered by SNI with respect to its
own
distribution and exploitation of the Event), all of which shall, as between
SNI
and Licensor, be and remain the sole responsibility and liability of Licensor.
Under no circumstances shall Licensor use or permit the use of any pyrotechnics
or other flammable displays of any kind in or around the Venue at any time
before, during or after the live Event unless SNI is advised and consulted
prior
to the Event and consents to the use thereof; provided that under all
circumstances Licensor shall remain solely liable and responsible for and shall
indemnify, defend and hold SNI harmless from the use thereof.
(b) Television
production.
(i) SNI
and
Licensor shall mutually approve the key creative and production decisions
concerning SNI’s telecast of the Events, but SNI shall be solely responsible
for, and shall have the final decision with regard to, the technical production
of the telecast, transmission and authorization of each Event (including, but
not limited to, the content, graphics, announcers (including the telecast
announcers and the ring announcer), camera numbers and locations, director,
producer and production facilities). For Showtime Events taking place in 2007,
Licensor shall be solely responsible (and shall reimburse SNI) for all of the
costs and expenses associated with such television production (provided that
such television production budget shall be subject to a mutually agreed upon
budget) as further described in subclause (ii) below. For all other
Showtime Events taking place after 2007 SNI shall fund the television
production costs and pay the license fees provided for in Subclause (c)
below. For all PPV Events, SNI will advance all television production
costs, which shall be recouped by SNI as provided in Subclause (d)(ii) below.
7
(ii) In
all
events, for Showtime Events taking place in 2007, SNI shall consult with
Licensor as to such television production matters (including, but not limited
to, the above- and below-the-line budgets, the announce team, ring announcer,
number and positioning of cameras, production and transmission facilities and
processes). The television production and transmission is currently estimated
to
be between $250,000 and $350,000 per Event. Prior to each Showtime Event taking
place in 2007, SNI shall furnish to Licensor for its review and approval (not
to
be unreasonably withheld or delayed) an estimated production and transmission
budget for such Event. Following the Showtime Event, SNI shall furnish to
Licensor an invoice containing an itemized list of the actual costs of the
production and transmission of such Event, and Licensor shall reimburse SNI
for
the full amount of such invoice (but in no event shall such invoice be for
more
than ten percent (10%) over the estimated budget for such Event) within
ten (10) days following receipt by Licensor from SNI of such invoice. In
addition to the foregoing, Licensor shall reimburse SNI up to $100,000 for
initial one-time start-up costs incurred by SNI in developing the necessary
production elements for the Events (including, but not limited to, SNI’s show
open, logos, graphics packages, music, and the like).
(iii) SNI
shall, where technically feasible, provide a clean line cut feed of each
televised Event (xxxx to xxxx video coverage with ambient audio (natural sound)
and English-language commentary (for guide purposes only and which in no event
shall be used commercially by Licensor) of the bouts comprising the pertinent
Event) to an on-site production facility or up-link designated by Licensor
for
distribution at Licensor’s sole liability, cost and expense to any international
delivery point(s). Licensor shall coordinate all such production with SNI for
each Event and all requests for production facilities and support shall be
made
to SNI in writing. Notwithstanding any of the foregoing or anything else
contained in this Agreement, SNI assumes no liabilities or duties and shall
not
be liable to Licensor or any third party with respect to inadvertent mistakes
in
connection with such arrangements, services and transmissions contemplated
by
this Subclause (iii). Subject at all times to the exclusivity and holdback
restrictions elsewhere in this Agreement, SNI
shall
also provide reasonable assistance to Licensor (at Licensor’s sole cost and
expense) in assisting Licensor to be able to transmit and exhibit non-televised
undercard bouts over internet websites owned and controlled by Licensor. SNI
shall provide SNI-created xxxxxx shows for exhibition via Licensor’s website
(currently named xxx.Xxxxxxxx.xxx)
and
other Licensor outlets in a manner to be mutually agreed upon.
(c) License
Fees for Showtime Events.
(i) There
shall be no License Fee payable by SNI on account of Showtime Events in 2007.
License Fees payable by SNI on account of Showtime Events for 2008 and 2009
shall be negotiated in good faith, but in all events, no less than:
*
*
*
8
(ii) SNI
and
Licensor shall split the net revenues derived by SNI from the exploitation
of
said Showtime Events off of SHOWTIME (other than Home Video and internet,
treated separately under this Agreement) fifty percent (50%) to SNI and
fifty percent (50%) to Licensor. SNI shall remit to Licensor its share of
such revenue within thirty (30) days after receipt thereof by SNI or any
affiliate of SNI.
(d) Pay-Per-View
Events:
(i) For
each
PPV Event, SNI shall collect all revenues from its pay-per-view and closed
circuit distribution of the PPV Event and shall furnish to Licensor monthly
reports of the collection of said revenues together with the pay-per-view buy
rate and closed circuit information collected by SNI through such date.
(ii) For
each
PPV Event, SNI shall expend on Licensor’s behalf a mutually agreed upon amount
for the marketing, public relations and television production of such PPV Event
(the “Advance”).
SNI
shall be entitled to recoup the Advance (and any other expenses incurred by
SNI
at the request of Licensor in connection with the PPV Event) from first dollars
(after deduction of the PPV/CC Distribution Fee as described in
subclause (iii) below) from the pay-per-view and closed circuit revenues
generated by the PPV Event. In the case that pay-per-view and closed circuit
revenues from the PPV Event are not sufficient to reimburse SNI the full amount,
Licensor shall provide to SNI (by check or wire transfer) by no later than
December 15th
of the
calendar year in which the PPV Event occurs the balance of any shortfall between
that amount received by SNI to cover such expenses and such full amount of
the
Advance.
(iii) In
addition to SNI’s recoupment of the Advance as set forth above, SNI would be
entitled to retain from first dollars from the pay-per-view and closed circuit
revenues generated by each PPV Event a distribution fee in an amount equal
to
ten percent (10%) of the “Net Pay-Per-View and Closed Circuit Receipts” (the
“PPV/CC Distribution
Fee”).
SNI
shall be entitled to bonus payments at various pay-per-view buy-rate levels
to
be negotiated in good faith for each PPV Event taking into account prior
performance of the PPV Events, Fighter costs, and costs of production, marketing
and public relations for that particular Event. After recouping the Advance
and
retaining the PPV/CC Distribution Fee for each PPV Event, SNI shall remit to
Licensor the remaining portion of revenues received by SNI to which Licensor
is
entitled together with the pertinent monthly reports..
(iv) As
used
herein, “Net
Pay-Per-View and Closed Circuit Receipts”
shall
mean all revenues actually received by SNI from the pay-per-view and closed
circuit distributors and exhibitors of such PPV Event in the Territory (after
the deduction of all fees and amounts (which fees and amounts shall be
negotiated in good faith and on an arm’s-length basis) retained by such
distributors and exhibitors pursuant to the agreements between SNI and such
distributors and exhibitors). The terms and conditions of such agreements
between SNI and such distributors and exhibitors, shall be subject to Licensor’s
prior approval, not to be unreasonably withheld or delayed.
9
(e) Sales
of Merchandise.
Any
revenues (after deduction of the costs of goods sold and other reasonable
out-of-pocket costs of sale) derived from the sale of Elite XC merchandise
by
SNI, or by Licensor via SNI, on SNI’s website or via SNI’s telecasts shall be
split seventy percent (70%) to Licensor and thirty percent (30%) to
SNI. The sale of merchandise is subject to Licensor approval in each case.
SNI
shall remit to Licensor its share of such revenue within thirty (30) days
after receipt thereof by SNI or any affiliate of SNI and Licensor shall remit
to
SNI its share of such revenue within thirty (30) days after receipt thereof
by Licensor or any affiliate of Licensor.
(f) Intentionally
omitted.
(g) Between
thirty (30) and forty-five (45) days after each PPV Event, SNI and
Licensor shall meet or hold a conversation to determine a good faith estimate
of
the number of pay-per-view buys and closed circuit sales and the Net Pay-Per
View and Closed Circuit Receipts to be derived therefrom. SNI shall remit to
Licensor an amount equal to eighty percent (80%) of the revenue from such
estimated buys and sales (less any permitted recoupment and deductions) within
three (3) business days after such buy rate estimation meeting or
conversation. Upon the earlier of (i) the time that SNI reasonably believes
that
it is ninety percent (90%) collected, or (ii) one hundred twenty (120) days
after the Event, the parties shall undertake a reconciliation of all revenues
for determining any additional amounts due and owing to Licensor and/or SNI,
to
be followed by quarterly reports thereafter with further payments, as
applicable.
(h) Each
party shall keep detailed and complete books and records relating to all aspects
of each Event. For a period of forty-eight (48) months after the live
exhibition of a given Event, Licensor shall have the right, during regular
business hours and upon reasonable advance written notice of at least
fifteen (15) days to SNI, at Licensor’s sole cost and expense, to examine
and copy SNI’s books and records (including without limitation all documentation
regardless of format) relating to a given Event. If Licensor examines SNI’s
books hereunder, Licensor must make any claim against SNI within
twelve (12) calendar months after SNI has furnished the examiners all
information reasonably requested by them. At any time during the Term and for
a
period of forty-eight (48) months after Term, SNI shall have the right,
during regular business hours and upon reasonable advance written notice of
at
least fifteen (15) days to Licensor, at SNI’s sole cost and expense, to
examine and copy Licensor’s books and records (including without limitation all
documentation regardless of format) relating to a given Event. If SNI examines
Licensor’s books hereunder, SNI must make any claim against Licensor within
twelve (12) calendar months after Licensor has furnished the examiners all
information reasonably requested by them.
5. Advertising
and Promotion.
(a) Commencing
with the date of this Agreement and continuing in perpetuity, Licensor grants
to
SNI the non-exclusive right to use and to authorize others to use the following,
in the Territory, in any and all media (whether now known or hereafter
existing), solely for the purpose of promoting the Events, SNI and SNI’s
programming (other than for the promotion of mixed martial arts programming
supplied to SNI by a competitor of Licensor) (subject to any third party
restrictions imposed upon Licensor (e.g., talent restrictions and/or clearance
limitations) that are communicated to SNI in advance in writing):
10
(i) All
advertising, promotional and publicity rights with respect to each Fighter
and
the Elite XC and any league participating therein, including but not limited
to
all name, voice and likeness and biographical rights with respect to all
Fighters scheduled to appear in any Event and all other persons who render
services in connection with, or appear in any Event (including, but not limited
to, trainers, referees, officials, Licensor and Licensor’s principal
executives), provided that SNI shall not knowingly use or authorize the use
of
any of the foregoing for purposes of endorsement of any commercial product
or
service other than the Event, SNI, and/or SNI’s pay-per-view and/or premium
television businesses and/or programming.
(ii) Excerpts
(of a duration equal to the lesser of (i) 50% of the duration of the bout
and (ii) three (3) minutes) of prior bouts and events staged by
Licensor and to which Licensor has the applicable rights.
(b) Commencing
with the date of this Agreement and continuing in perpetuity, subject to any
third party restrictions imposed upon Licensor (e.g., talent restrictions and/or
clearance limitations) that are communicated to SNI in advance in writing),
SNI
shall have the right, and may grant to other persons or entities the right,
to
use, in the Territory, in any and all media (whether now known or hereafter
existing), synopses or excerpts of each Event, and the right to re-synchronize
any and all music contained in each Event, in and out of context, as may be
required to create advertising, promotion and publicity materials for the
pertinent Event and institutional advertising for SNI. In addition, commencing
with the date of this Agreement and continuing in perpetuity, subject to any
third party restrictions imposed upon Licensor (e.g., talent restrictions and/or
clearance limitations) that are communicated to SNI in advance in writing),
SNI
shall have the right, and may grant to other persons or entities in the
Territory the right, to exhibit or authorize others to exhibit in the Territory
(including on SNI’s website(s)), in any and all media (whether now known or
hereafter existing), synopses or excerpts of a given Event of a duration equal
to the lesser of (i) 50% of the duration of the bout and
(ii) three (3) minutes, for or as part of promotional, news, sports
anthology and other purposes and programming considered appropriate by SNI,
including without limitation for the purpose of promoting that Fighter’s
upcoming future bouts (whether or not such upcoming bout is covered by this
Agreement), the SHOWTIME television network or SNI, and to otherwise make
reference to the Event as part of SNI’s sports archives.
11
(c) Without
limiting any of the foregoing, commencing with the date of this Agreement and
continuing in perpetuity, subject to any third party restrictions imposed upon
Licensor (e.g., talent restrictions and/or clearance limitations) that are
communicated to SNI in advance in writing), SNI shall have the right, and may
grant to other persons or entities the right, to use, in the Territory, in
any
and all media (whether now known or hereafter existing), all “Promotional
Materials” (as defined below) in connection with any and all promotion of, and
programs concerning, the Events, SNI, and SNI’s pay-per-view and/or premium
television businesses and/or programming. For purposes of this Agreement, the
term “Promotional
Materials”
shall
mean all (i) trailers, (ii) press kits (whether electronic or
otherwise), (iii) stills of Fighters in prior boxing contests and stills
from the boxing matches comprising the Event, (iv) poster art for the
Event, (v) any additional footage, and video and audio materials secured by
or for Licensor and/or SNI from behind-the-scenes video shoots at training
and/or sparring sessions, press conferences, sound checks and the like, as
well
as from interviews with each of the Fighters concerning the Event (and Licensor
shall provide SNI access to the training camp of each Fighter on dates and
at
times reasonably convenient to SNI, which do not interfere with the reasonable
training requirements of such Fighter, for the purpose of enabling SNI to
conduct and videotape interviews of each Fighter and to videotape training
footage for inclusion in the Events and for advertising and promotional
purposes), and (vi) Licensor’s trademarks (including, but not limited to,
Elite XC and I-Fight) in and on all material used to market, promote and sell
Elite XC events and approved merchandise. Licensor shall have the right to
use,
in the Territory, in any and all media (whether now known or hereafter
existing), SNI’s trademarks and service marks (the “Marks”)
in
connection with any and all promotion of the Events. Licensor shall clearly
identify the Marks as the trademarks and service marks of SNI through the use
of
the symbols “Ò”
and
“Ô”,
as
applicable, and with language identifying SNI as the owner thereof. Licensor
shall submit any proposed use of any Xxxx in representative form to SNI for
SNI's prior written approval at least ten (10) days before their intended
distribution. Any such use of the Marks by Licensor shall not be inaccurate
or
misleading, and may not be used for or imply any endorsement or sponsorship
of
or advertising in or for the promotion of any product or service other than
SNI.
For the avoidance of doubt, Licensor retains merchandising rights to Elite
XC;
provided that SNI shall have the right to create, at its sole cost and expense,
and distribute promotional merchandise (i.e., not for retail sale to the public)
incorporating Elite XC logos and properties. SNI shall provide samples of such
merchandise to Licensor for its prior approval, such approval not to be
unreasonably withheld or delayed.
(d) Licensor
shall make available promptly to SNI for publicity, promotion and advertising
in
connection with the Event, at no additional cost (other than reasonable
out-of-pocket duplication and shipping costs), all publicity, advertising and
promotional materials and photographs of persons scheduled to appear in the
Event as are available to Licensor and to which Licensor has (or can reasonably
obtain) the necessary rights. Without limiting the generality of the foregoing,
prior to each Event, Licensor shall provide SNI with sufficient (in SNI’s
reasonable judgment) pre-recorded videotape footage of all Fighters scheduled
to
participate in the Event for use by SNI, at no additional cost (other than
reasonable out-of-pocket duplication and shipping costs), in connection with
SNI’s rights hereunder to the extent that Licensor has, or can reasonably
obtain, appropriate rights to such footage.
(e) Without
limiting the generality of the foregoing, all press releases and other publicity
emanating from either party that make any mention of the other party or its
products or services, or any employee, officer or director of the other party
shall be subject to such other party’s prior written approval as to the content
and timing for release thereof.
(f) Licensor
shall, and shall cause the Fighters to, reasonably cooperate with SNI in the
promotion and production of the Event in an effort to maximize the Event’s
financial and ratings performance (and shall, and shall contractually require
such Fighters to, refrain from any conduct the logical result of which would
impair or otherwise materially limit SNI’s ability to maximize the Event’s
financial and ratings performance).
12
(g) The
parties shall mutually agree on licensing clips taken from the Events to third
parties on a revenue share basis.
(h) Xxxxxx
Shows/Countdown Shows:
Licensor shall have the right to create at its sole cost and expense (but
subject to a mutually agreed upon budget, currently estimated to be $50,000
to
$75,000 per show) (a) for each Showtime Event, a xxxxxx show and (b) for each
PPV Event, a countdown show, subject at all times to SNI’s final approval over
the content and quality of said shows, for SNI’s and Licensor’s use in promoting
the upcoming telecasts and/or PPV Event and any rebroadcasts thereof and/or
for
SNI’s and Licensor’s use in promoting Elite XC and mixed martial arts generally.
The costs of said xxxxxx shows (but not the cost of the pay-per-view countdown
shows, which shall be a part of the marketing budget for such PPV Events),
shall
be borne by Licensor unless otherwise mutually agreed upon by SNI and Licensor.
In the event that Licensor desires to license third party cable networks to
exhibit a given PPV Event xxxxxx show, Licensor shall consult with SNI, and
obtain SNI’s written approval, as to all of the material terms, conditions and
considerations associated with such license, including, but not limited to,
the
window for exhibiting such xxxxxx show, the number of runs, the dates and time
periods for such runs and the consideration to be provided to Licensor in return
for such license.
(i) Approval
Process.
Any
creative material requiring the approval of one party or the other hereunder
shall be deemed approved if not rejected within five (5) days following
submission (subject to reduction as otherwise provided herein and/or should
exigencies require that approval be given in a shorter period of
time).
(j) Fighter,
Promoter, Manager, Trainer/Coach Obligations.
Licensor shall require each Fighter and their respective promoters, managers
and
coaches/trainers to undertake the following promotional efforts prior to each
Event in which they are to participate:
(i) Event
announcement press conferences; (ii) media teleconferences;
(iii) multi-city press junkets; (iv) radio and television media tours;
(v) open (to public and press) training sessions; and (vi) in the week
preceding the pertinent Event, Fighters shall participate in increased media
opportunities including interviews by telecast announce team/director, a final
press conference, an open training session and various press interviews both
telephonically and on-site in the Event city.
13
Furthermore,
each Fighter and their respective promoters, managers and coaches/trainers
shall
also agree to participate in other customary promotional efforts as reasonably
requested by SNI so long as such promotional efforts do not unreasonably
interfere with the pertinent Fighter’s training regimen.
6. Exclusivity;
Holdbacks.
(a) During
the Term, Licensor shall not supply any Elite XC events or programming, or
license or authorize the use of the Elite XC name (or any derivation thereof),
to any other premium television service or channel (including, but not limited
to HBO, Cinemax, Starz or Encore). In addition, Licensor shall not authorize
any
third party to distribute any Elite XC event or program on a pay-per-view basis
in any media of any kind, whether now known or hereafter invented. Licensor
may
itself lf distribute on a pay-per-view basis in any media of any kind, whether
now known or hereafter invented, any Elite XC event that is not viewed in the
industry as a significant event, or may itself lf distribute or distribute
through a third party (other than any other premium television service or
channel (including, but not limited to HBO, Cinemax, Starz or Encore) or ESPN)
any Elite XC event that has first been offered to SNI to distribute on
pay-per-view basis under this Agreement but that SNI has elected to not so
distribute. Notwithstanding the foregoing, the parties do contemplate that
Licensor will seek to supply Elite XC events and/or programming to either a
free
over-the-air broadcaster or broadcasters or basic cable television network
or
networks (“Permitted
Exhibitors”).
In
the event that Licensor does supply a Permitted Exhibitor Elite XC events or
programming, such events shall under no circumstances be of a quality with
respect to the fighters equal to or greater than the Events and programming
to
be supplied hereunder to SNI.
(b) Except
as
expressly provided in Paragraphs 3(a)(iii) and 3(b)(ii), Licensor covenants
and
agrees that other than by SNI and SNI’s licensees in accordance with this
Agreement, or by Licensor in accordance with this Agreement, no Event nor any
of
the bouts comprising any Event, have been nor will be announced, advertised,
marketed, promoted, released, licensed for exhibition, exhibited or otherwise
exploited, in whole or in part, in any media whatsoever whether now known or
hereafter existing (including, without limitation, theatrical, non-theatrical,
home video, pay television, pay-per-view, television stills, over-the-air
broadcast television, basic cable, syndication, radio or via the internet)
anywhere in the Territory on a live or delayed basis at any time before the
date
that is three (3) years after the date of the Event (other than ordinary
course advertising and promotion of the live site of the Event for purposes
of
selling tickets to view the Event at such site).
(c) Notwithstanding
the foregoing, Licensor shall have the right to exhibit in the Territory via
Licensor’s website(s) clips of each Event of a duration equal to the lesser of
(i) 50% of the duration of the bout and (ii) three (3) minutes
for the purpose of promoting Licensor and Licensor’s events.
(d) Licensor
shall ensure that no Fighter scheduled to appear in the Event shall, directly
or
indirectly, fight or otherwise participate in any other bouts, matches, athletic
competitions or exhibitions of any kind at any time during the sixty (60)
day period immediately prior to the date of the live Event.
14
7. Complimentary
Tickets.
(a) In
2007,
Licensor shall provide SNI, on a complimentary basis the following: (i) a
mutually agreed upon number of working and VIP credentials to the Event and,
(ii) ten (10) ringside tickets (at least two (2) of which shall
be in the first row on camera (i.e., directly across from the main camera
position)); twenty (20) tickets in the next best price range and
twenty (20) tickets in the next best price range.
(b) In
2008
and 2009, Licensor shall provide SNI, on a complimentary basis the following:
(i) a mutually agreed upon number of working and VIP credentials to the
Event and, (ii) twenty (20) ringside tickets within the first five (5)
rows (at least four (4) of which shall be in the first row on camera (i.e.,
directly across from the main camera position), all four next to each other,
and
at least four (4) of which shall be in the second row immediately behind the
four (4) first row seats)); twenty (20) tickets in the next best price
range and twenty (20) tickets in the next best price range.
(c) All
of
the foregoing tickets shall be configured so as to be next to at least one
other
SNI seat. All tickets within the first five (5) rows of the ring shall be
inside the ringposts parallel to the ring, and Licensor shall use good faith
efforts to ensure all other tickets provided to SNI by Licensor pursuant to
this
Section are also inside the ringposts parallel to the ring, provided however,
that in no event shall fewer than 75% of such other tickets be located inside
the ringposts parallel to the ring. SNI shall have the right to purchase a
reasonable number of the best available additional tickets, at regular box
office prices, upon notice to Licensor, provided that in the event that Licensor
elects to make available at no charge or at a reduced charge unsold seats for
purposes of filling or “papering” the arena, Licensor shall first offer such
tickets to SNI at no charge or at such reduced charge, as the case may be.
All
such purchased or Licensor-provided tickets will be the best available location
at the time of allocation.
8. Telecast
of the Event.
(a) Advertising,
Promotion and Sponsorship.
Except
as expressly permitted herein, Licensor agrees that it will refrain from
including or permitting to be included, as part of its presentation of any
Event
and its telecast by SNI, any commercial or promotional material of any kind
on
or about the Fighters (provided that permitted sponsor logos shall be allowed
on
the clothing of the Fighters or other personnel appearing in the ring such
as
trainers and handlers), the ring itself or otherwise about the Venue during
SNI’s telecast. Without limiting the foregoing, Licensor shall take reasonable
steps to ensure that no Fighter places upon himself any body art (e.g.,
temporary tattoos) of any kind (other than his pre-existing permanent tattoos,
if any) and Licensor shall take reasonable steps to inspect each Fighter
sufficiently in advance of his entering the ring to ensure that such Fighter
does not have any such body art. Furthermore, except as expressly permitted
in
the following two sentences, Licensor agrees that there will be no “advertising
wedges” at ring level or nor any commercial or promotional material on the
corner ring posts. Licensor shall have the right to identify permitted sponsors
on the ring mat and on the ring posts. On SNI’s lighting truss, there shall be
banners for SNI, Elite XC and, space permitting, Licensor’s permitted
sponsor(s). With respect to any sponsor identification on or about the Fighters
apparel, the ring or the arena, such sponsor will be subject to SNI’s prior
written approval (such approval to be granted or withheld in SNI’s sole
discretion) and
subject
to the following Standards and Practices: no material may be displayed by any
person or entity at any time during, or in connection with, the Event of any
material of any (i) sexual nature, (ii) tobacco or hard liquor
products, (iii) firearms products, (iv) gambling or internet gaming services
or
offerings, or (v) company or other entity that SNI believes in good faith
is competitive with SNI (or any sponsor of SNI’s). SNI shall make reasonable
identification of Licensor through inclusion Licensor’s logo in any off-SHOWTIME
materials advertising upcoming Events. SNI shall provide reasonable assistance
and information to Licensor in connection with Licensor’s efforts to secure
sponsorship.
15
(b) For
each
Event, at SNI’s option, not less than five (5) SNI banners shall be
prominently displayed in the facility in which the Event takes place in sight
of
and convenient to the television cameras covering the Event, with one main
SNI
banner to be on the main lighting truss in the center on-camera position,
provided that in the event that the arena restricts the number of SNI banners,
Licensor shall inform SNI and shall cooperate with SNI to ensure that at least
its main lighting truss banner is displayed as described above. Without limiting
the foregoing, except for the signage as set forth above, it is expressly
understood and agreed that Licensor shall not include any commercial material,
advertising, promotional announcements or other material that might appear
in
any telecasts of the Event in the Territory. SNI shall have the right to opening
and closing credits within the telecast of each Event prominently identifying
SNI as the distributor of such Event in the Territory.
(c) Licensor
shall utilize industry standard measures to ensure that all transmissions of
the
Event outside of the Territory shall be fully encrypted and secured at all
points along the transmission path and shall not be available or accessible
within the Territory.
9. Licensor’s
Representations, Warranties and Additional Covenants.
Licensor represents, warrants and agrees that:
(a) All
aspects of the Event will comply with all applicable federal, state and local
laws, rules, ordinances and regulations (including, without limitation, all
of
the laws, rules, ordinances and regulations of the state athletic commission
with jurisdiction over the Event) and Licensor shall cause the Event to be
approved by the appropriate athletic commission in the state in which the Event
takes place (and shall notify SNI in writing immediately in the event that
the
applicable commission disapproves the Event together with the reasons for such
disapproval); the Event shall be presented in accordance with the rules,
regulations, orders and instructions of any boxing commission or regulatory
or
boxing authority having jurisdiction over the Event; and the bouts shall be
sanctioned by the applicable sanctioning organizations. Licensor will not take
or fail to take any action that jeopardizes the approval and/or sanctioning
of
the Event.
(b) The
bout
agreements between Licensor and Fighters are valid and binding agreements,
and
at all times during the Term of this Agreement will remain, in full force and
effect, and, to the best of Licensor’s knowledge, neither Licensor nor Fighters
are in uncured breach or will, with the passage of time, be in uncured breach
of
said agreements. Licensor is, or shall be at the time of the Event and shall
remain, a licensed mixed martial arts promoter in good standing in the state
in
which the Event is to take place at all times necessary for Licensor to perform
its obligations under this Agreement. Nothing herein shall require SNI to act
in
any way as a mixed martial arts promoter as that term is currently understood
in
the industry.
16
(c) Licensor
is the sole owner or licensee of all of the rights, licenses, privileges and
property herein granted to SNI, including, without limitation, all television
and other rights in and to the Event throughout the Territory and Licensor
has
obtained all necessary clearances, rights and permissions whatsoever required
for SNI to be able to exploit the Event in all manners contemplated by this
Agreement.
(d) No
part
of the rights herein granted to SNI belong to (other than material licensed
by
Licensor) or have been transferred to any third party and said rights are and
will be free and clear of any liens, claims or encumbrances by or in favor
of
any third party, and there are no claims, litigations or other proceedings
pending, outstanding or threatened that would adversely affect or that would
or
might in any way prejudice SNI’s rights hereunder or jeopardize the sanctioning
or occurrence of the Event contemplated by this Agreement. Neither the Event
nor
any part thereof (including but not limited to music synchronization or
performance through to the viewer thereof), nor any other materials furnished
by
Licensor to SNI, nor the exercise of any rights granted to SNI hereunder, will
violate or infringe upon the trademark, trade name, copyright, right of privacy
or publicity, property right, personal right or any other right of any person
or
entity or violate any applicable law. Licensor has not entered into any
agreement or taken any act or done any thing which in any way violates or
interferes with the full and complete performance of its obligations or SNI’s
rights hereunder.
(e) Licensor
will secure, or cause the Fighters to secure, sufficiently in advance of each
Event, any and all documentation, licenses and permits (including but not
limited to visas and international work papers) required by the appropriate
agency(s) enabling the full and complete participation of the Fighters in the
pertinent Event on the date and at the venue scheduled therefor.
(f) All
of
Licensor’s representations and warranties contained herein or made by Licensor
in connection herewith shall survive any independent investigation made by
SNI
and the execution, delivery, suspension and termination of this Agreement or
any
provision herein.
(g) All
persons employed or otherwise engaged by Licensor in connection with its
performance hereunder shall be Licensor’s employees and/or subcontractors and
Licensor shall be fully responsible for them, including, without limitation,
responsible for all insurance, compensation, withholding taxes, workers
compensation, benefits or other required payments in connection with such
employees.
17
10. Postponement
or Cancellation of the Event; Failure of Participation.
(a) If
any
Event is cancelled or postponed for any reason (other than due to breach by
SNI), Licensor shall be solely responsible for any and all cancellation or
postponement fees agreed to in the pertinent distribution agreements entered
into by SNI on Licensor’s behalf in connection with the pertinent Event as
pre-approved by Licensor (including but not limited to fees (if any) payable
to
iNDemand, DirecTV, EchoStar or any other pay-per-view distributor or exhibitor
of the Event) and shall reimburse SNI all such amounts within thirty (30)
days after such cancellation or postponement of the pertinent Event. In
addition, Licensor shall be solely responsible for any and all marketing and
production commitments and expenses incurred by SNI pursuant to the agreed
budget, and Licensor shall reimburse SNI within thirty (30) days after such
cancellation or postponement of the Event all of SNI’s out-of-pocket third party
marketing and public relations expenses that SNI is unable to salvage. Licensor
may cancel or postpone the date or time of the pertinent Event at any time
(with
as much prior written notice to SNI as is practicable under the circumstances)
if (i) Licensor has received a written opinion of its outside legal counsel
indicating that the occurrence of the Event would materially infringe upon
the
rights of others, or violate any law, court order, governmental regulation
or
other ruling of any governmental or athletic commission, agency or ruling body
with competent jurisdiction, (ii) a licensed physician approved by the
athletic commission with jurisdiction over the Event certifies in writing that
any participant is mentally or physically disabled so that he cannot participate
as scheduled (and SNI shall have the right to have such Fighter examined at
any
time by a physician selected by SNI in order to confirm such diagnosis),
(iii) any participant is legally prevented from participating by the board
or athletic commission with jurisdiction over the Event or by a court of
competent jurisdiction, or (iv) an event of “Force Majeure” (as defined
below) occurs that prevents the Event from taking place as contemplated by
this
Agreement. In the event of an occurrence pursuant to items (i), (ii), (iii)
or
(iv) of this subsection (a) for reasons outside the control of Licensor or
its
agents (e.g., occurrences not caused, directly or indirectly, through the acts
or omissions of Licensor or its agents), Licensor may cancel the Event or
postpone the Event to a subsequent date upon reasonable advance written notice
to and consultation with SNI (provided that, upon any postponement, should
Licensor elect to reschedule the Event (as opposed to cancel it), the venue
and
date for the rescheduled Event shall be mutually agreed upon by Licensor and
SNI, provided that the venue for the Event shall be located in the continental
United States unless otherwise agreed to in writing by SNI. Nothing in this
Section 10(a) is intended to, nor shall it have the effect of, limiting (or
absolving a party from liability on account of a breach of) the parties’
respective representations, warranties, covenants or indemnification obligations
set forth in this Agreement. For purposes hereof, an event of “Force
Majeure”
shall
mean an occurrence that prevents the Event from taking place or being telecast
as contemplated by this Agreement due to equipment failure, by reason of an
Act
of God, labor dispute (provided that Licensor represents and warrants that
to
the best of Licensor’s knowledge there are no current or anticipated labor
disputes at or involving the Arena that would or could interfere with the Event
or Licensor’s ability to telecast such Event as contemplated by this Agreement),
breakdown of facilities, fire, flood, or any other cause beyond a party’s
reasonable control (financial inability excepted).
(b) Without
limiting any of SNI’s other rights and remedies, SNI may, in its discretion,
elect not to telecast a given Event, without liability or penalty to SNI,
immediately and at any time (with as much prior notice to Licensor as is
practicable under the circumstances (if any)) if (i) it has received
written opinion of its outside counsel indicating that the occurrence or
telecast thereof would materially infringe upon the rights of others, or violate
any law, court order, governmental regulation or other ruling of any
governmental or athletic commission, agency or ruling body and such infringement
remains uncured or is incurable, or (ii) the occurrence or telecast thereof
would subject SNI to any substantial uninsured liability that is uncured or
incurable, or (iii) a licensed physician certifies that any Fighter in a
Main Bout to be televised is mentally or physically disabled so that he should
not participate as scheduled (and any refusal by any Fighter to submit to or
release the results of such examination shall provide SNI with the right (but
not the obligation) to declare that such Fighter is mentally or physically
disabled so that he cannot participate as scheduled), or (iv) any Fighter
in a Main Bout at any time after the date of this Agreement violates the morals
clause set forth in Section 16 below as if such participant were subject to
such morals clause.
18
11. Indemnities.
(a) Licensor’s
Indemnity Obligations.
Licensor agrees to defend, indemnify and hold SNI and SNI’s parent, subsidiary
and other affiliated companies (and each of their respective present and former
directors, officers, employees, agents and assigns) and the cable, satellite
and
other distributors and exhibitors of the Events harmless from and against any
and all damages, actions, claims, liabilities, costs and expenses (including
reasonable outside attorneys’ fees, disbursements and court or administrative
costs) incurred by any of them arising out of (i) a breach of any provision
of, or representation, warranty or covenant made in, this Agreement by Licensor
(or a claim by a third party of an act, omission or wrongdoing by Licensor
which, if proven true, would constitute a breach of this Agreement by Licensor),
or (ii) the exercise by any of them of the rights granted by Licensor
hereunder.
(b) SNI’s
Indemnity Obligations.
SNI
agrees to defend, indemnify and hold Licensor and Licensor’s parent, subsidiary
and other affiliated companies (and each of their respective present and former
directors, officers, employees, agents and assigns) harmless from and against
any and all damages, actions, claims, liabilities, costs and expenses (including
reasonable outside attorneys’ fees, disbursements and court or administrative
costs) incurred by any of them arising (i) out of a breach of any provision
of,
or representation, warranty or covenant made by SNI in this Agreement (or a
claim by a third party of an act, omission or wrongdoing by SNI which, if proven
true, would constitute a breach of this Agreement by SNI), or (ii) from any
materials (apart from materials created by or for Licensor and furnished by
or
on behalf of Licensor to SNI) that SNI inserts into the telecast of the
Event.
(c) Indemnity
Procedures.
The
indemnifying party (“Indemnitor”)
shall
have the right to assume the defense of any such action (provided that SNI
shall
have the right to approve counsel selected by Licensor, such approval not to
be
unreasonably withheld) in which case its liability shall be limited to judgment
or settlement costs (together with all reasonable costs and expenses incurred
by
the indemnified party (“Indemnitee”)
prior
to the Indemnitor assuming such defense), provided that the Indemnitee shall
have the right to participate in any such action at its own cost and expense
and
any settlement shall be subject to the Indemnitee’s prior written approval,
which approval shall not be unreasonably withheld or delayed.
12. Confidentiality;
Public Announcements.
Each
party and its employees and representatives shall keep confidential the terms
and conditions of this Agreement and any and all data, reports and information
relating thereto except (a) to the extent necessary (but redacted to the
greatest extent possible) to comply with law or with the valid order of a court
of competent jurisdiction or to support a defense or claim made in a litigation
or governmental proceedings and, in any such event, the party making such
disclosure shall so notify the other as promptly as practicable (and, if
possible, prior to making such disclosure) and shall seek confidential treatment
of such information; (b) to the extent necessary to comply with SEC or
similar securities law disclosure requirements, (c) as part of its normal
reporting or review procedure to its parent company, its auditors or attorneys;
(d) in order to enforce its rights or perform its obligations pursuant to
this Agreement; provided, however, that prior to such disclosure such party
shall seek confidential treatment of such information; or (e) if mutually
agreed by the parties, in advance of such disclosure, in writing. Neither party
shall make any public announcement concerning the existence of this Agreement
or
any of the terms and conditions of this Agreement without the other party’s
prior written consent as to the content and timing of such
announcement.
19
13. Copyright
Ownership/License of Intellectual Property.
(a) It
is
understood and agreed that SNI shall exclusively own the worldwide copyright
in
its telecast of each Event (including all bout footage, logos, graphics,
billboards and announcers associated with the bouts within the Event and any
and
all derivative works created therefrom). It is further understood and agreed
that Licensor shall own the worldwide copyright in the “clean feed” and/or any
international feed with its own announce team, graphics, logos, of each Event;
provided that, notwithstanding the foregoing, Licensor shall not exploit, nor
permit any other person or entity to exploit, Licensor’s copyrighted telecast of
the Event (in whole or in part) or any derivative works thereof within the
SNI
Territory during the Exclusive License Period except as expressly permitted
by
Section 6 above.
(b) The
parties acknowledge and agree that this Agreement concerns as its material
content a license of “intellectual property” consisting of works of authorship
protected under Title 17 of the United States Code. Accordingly, in the event
that Licensor files a proceeding under the United States Bankruptcy Code, 11
U.S.C. § 101, et.
seq.,
and
this Agreement is determined to constitute an executory contract, the parties
hereto agree that Licensor is a licensor of a right to intellectual property
under this Agreement, and SNI shall have all of the rights afforded to a
licensee under Section 365(n) of the Bankruptcy Code in the event this
Agreement is rejected in such bankruptcy case.
14. Insurance.
(a) Licensor
shall obtain for each Event, at its sole cost and expense, each of the
following:
(i) errors
and omissions liability insurance covering the Event and all elements thereof
which has limits of not less than $1,000,000/$3,000,000, with a deductible
of
not more than $10,000;
(ii) commercial
broad form general liability insurance (which shall include coverage for slip
and fall and similar incidents);
20
(iii) accident
insurance coverage on all Fighters participating in the Event to the fullest
extent required by law or administrative rule or regulation of the state and/or
administrative body with jurisdiction over the Event; and
(b) Each
of
the above-mentioned insurance policies shall be obtained from a nationally
recognized insurance carrier or carriers with a then-current A.M. Best Company
rating of at least A:VII. The general liability insurance policy shall be a
broad form commercial general liability policy which includes contractual
indemnity coverage, and has a combined single limit amount of not less than
Three Million Dollars ($3,000,000) for each occurrence for personal injury,
bodily injury and property damage. Any deductible under such policy or policies
shall be no greater than Twenty-Five Thousand Dollars ($25,000). Each such
insurance policy shall remain in full force and effect at all times until the
last possible exhibition of the Event under this Agreement and shall cover
any
claims which are asserted during the term of the insurance policy or at any
time
following expiration of the policy. SNI and its parent, subsidiary and
affiliated companies and their respective licensees shall be named as additional
insureds on each of the insurance policies with regard to the Event. Each of
the
foregoing policies shall negate any “other insurance” clause in such policy,
shall be primary and not excess of or contributory to any other insurance
provided for the benefit of or by SNI, and shall provide that at least
thirty (30) days’ advance written notice of any cancellation, non-renewal
or other material change in the policy shall be accorded to SNI.
(c) Licensor
shall provide SNI with documentation to the effect of all of the foregoing
policies in the form of certificates of insurance from the insurer(s) no later
than thirty (30) days prior to the date of each Event. In the event
Licensor fails to acquire any of the above-required insurance on account of
each
Event, without limiting any of SNI’s other rights or remedies, SNI shall have
the right to elect to not telecast the Event, without liability or penalty
to
SNI, or to purchase for itself (or self-insure) such insurance and to deduct
the
full costs (or attributed costs in the event SNI self insures) of such insurance
from the License Fee to be paid to Licensor on account of the Event.
(d) SNI
shall
name Licensor as an additional insured on SNI’s general liability
policy.
15. Termination.
(a) Either
party, in addition to whatever other remedies it may have at law or otherwise,
may elect to terminate this Agreement and, except as otherwise expressly
provided for below, be relieved of any prospective liabilities and obligations
hereunder, in the event of any material default on the part of the other party.
Either party shall be deemed in default hereunder if:
(i) it
breaches or otherwise fails to comply with or fulfill any material provision
hereof on its part to be performed (including, in the case of Licensor, any
breach under subclause (b)(i) below), or if it breaches any representation,
warranty, covenant or material undertaking herein, and, if such breach is
curable, fails to provide written proof of its remedy of its breach or failure
in performance within a period of ten (10) days after the date of written
notice from the other party specifying such breach or failure; or
21
(ii) (A)
a
petition in bankruptcy or for reorganization is filed by or against it under
any
Bankruptcy Act now or hereafter in force (unless prohibited by law), (B) it
makes an assignment for the benefit of its creditors, (C) a receiver,
trustee, liquidator or custodian is appointed for all or a substantial part
of
its property, and the order of appointment is not vacated within thirty (30)
days, (D) it assigns or encumbers this Agreement contrary to the terms
hereof, or (E) all or a substantial part of its property is sequestered,
and the order of sequestration is not vacated within thirty (30)
days.
(b) SNI
Termination Rights:
SNI
shall have the right to terminate this Agreement in the event of any of the
following:
(i) With
cause:
| 1. |
Any
SEC or other federal or state regulatory or governmental body takes
action
against Licensor.
|
| 2. |
Any
failure of Licensor to comply with its reporting obligations or any
failure of Licensor to comply with Xxxxxxxx-Xxxxx or other regulatory
requirements.
|
| 3. |
Any
failure by Licensor or any executive, employee or contractor of Licensor
to comply with all local, state and, if any, federal rules, regulations
or
guidelines regarding the sport of mixed martial
arts.
|
| 4. |
Any
breach of this Agreement that remains uncured beyond the period set
forth
for such cure.
|
| 5. |
Any
change of control of Licensor (unless the principal management remains
substantially in place) that has not been pre-approved by SNI in
writing.
|
(ii) Without
cause, for any reason or no reason on thirty (30) days prior written
notice. In the event SNI elects to terminate this Agreement solely under this
subclause (ii), (X) SNI shall not enter into a license agreement with
a third party under which it licenses mixed martial arts content to be on the
Showtime television network for the shorter of (1) eleven (11)
calendar months from the calendar month in which the termination becomes
effective (e.g., were the termination to become effective in the month of May
2007, the holdback on SNI licensing mixed martial arts content would be prior
to
April 2008) and (2) the end of the Term of this Agreement, and (Y) all
content pertaining to the Events and Elite XC shall revert to Licensor (provided
that SNI shall under no circumstances be liable for any infringement of any
licensed content to the extent that such content has already been licensed
or is
otherwise already available in the marketplace prior to effectiveness of the
termination). The parties’ insurance and indemnity obligations shall survive any
termination of this Agreement and each party shall remain responsible to fulfill
any executory obligations accruing prior to termination.
(c) Licensor
Termination Rights:
In the
event that after the effective date of this Agreement, SNI airs more than
two (2) live mixed martial arts events from another supplier (a
“Third
Party MMA Event”)
in a
given calendar year period during the Term, Licensor shall have the right,
on
written notice to SNI, to indicate that were SNI to telecast one (1)
additional live mixed martial arts event from another supplier in such calendar
year, then this Agreement will terminate effective thirty (30) days
following the date of such third third-party supplied mixed martial arts event.
In calendar year 2008 or 2009, the minimum number of Showtime Events to be
staged hereunder would be increased on a one-for-one basis for each Third Party
MMA Event staged by SNI.
22
16. Morals
Clause.
For any
given Event, SNI shall have the right to require Licensor to replace a Fighter
who has engaged in conduct which would be deemed a violation of this Morals
Clause. For purposes of this Agreement, a Fighter shall be deemed to have
violated the Morals Clause of this Agreement if a Fighter at any time after
the
date of this Agreement (i) is charged with committing a misdemeanor of
moral turpitude that is punishable by a prison term of at least 6 months or
a
felony (regardless of the length of prison term associated with such offense);
(ii) commits or is accused of committing an act involving moral turpitude
under federal, state or local law (regardless of whether or not such act
involving moral turpitude is a misdemeanor or felony); (iii) violates the
terms of any parole or probation to which such Fighter is or may become subject;
or (iv) commits an act of significant public disrepute or becomes the
subject of a scandal such that SNI believes, in its sole discretion, that the
marketability of the Event or SNI’s corporate image has been or will be
negatively affected.
17.
Investment/Board
Representation.
The
parties acknowledge that SNI and Licensor have entered into the following
agreements relating to SNI’s investment in Licensor: (i) Securities Purchase
Agreement between SNI and Licensor dated as of January 3, 2007, (ii) Investor
Rights Agreement among SNI, Xxxx Xxxx, Xxxxxxx XxXxxx and Santa Xxxxxx Capital
Partners II, LLC dated as of January 3, 2007, (iii) Investor Warrant from
Licensor to SNI dated as of January 3, 2007, (iv) Vested Warrant for Licensor
to
SNI dated as of January 3, 2007 and (v) SNI Warrant from Licensor to SNI
dated
as of January 3, 2007.
(b) In
addition, Licensor shall issue to SNI one warrant (the “Additional
Warrant”)
to
purchase 2,500,000 shares of common stock of Licensor. The Additional Warrant
shall have an exercise price of US$2.00 per share, and shall vest upon the
earlier of (i) the date that is 1080 days after the effective date of this
Agreement and (ii) the date upon which this Agreement is terminated (if at
all) due to a breach by Licensor. The Additional Warrant shall be exercisable
by
SNI at any time during the five-year period immediately following vesting;
provided that, prior to any such exercise, SNI shall not have televised on
SHOWTIME during the Term of this Agreement any unrelated third party’s mixed
martial arts events. The shares underlying the Additional Warrant shall have
the
same rights as granted to the investors in the Offering.
(c) In
recognition that SNI has not yet had the opportunity to conduct its full due
diligence into Licensor for purposes of evaluating the investment option,
(i) Licensor shall make itself available to SNI for meetings, and furnish
to SNI reasonably requested information and documentation, promptly upon SNI’s
request therefor, and (ii) the parties hereto shall negotiate in good faith
revisions to the provisions contained in this Section 17 and the addition
of such other terms and conditions after SNI has had the opportunity to meet
with Licensor and conduct such due diligence.
23
18. Miscellaneous.
(a) Not
An
Agency Agreement; No Third Party Beneficiaries.
Nothing
herein contained shall be deemed to constitute either of the parties a joint
venturer or partner or agent of the other. Neither party shall hold itself
out
contrary to the terms of this Agreement and neither party shall become liable
by
any reason of any representation, act or omission of the other contrary to
the
provisions hereof. The provisions of this Agreement are for the exclusive
benefit of the parties who are signatories hereto and their permitted successors
and assigns, and no third party (including but not limited to any Fighter or
other participant in the Event) shall be a beneficiary of, or have any rights
by
virtue of, this Agreement.
(b) Subject
to Applicable Laws.
Nothing
herein contained shall require the commission of any act contrary to any
provision of law, or of any rule or regulation of any governmental authority,
and if there shall exist any conflict between any provision of this Agreement
and any such law, policy, rule or regulation, the latter shall prevail, and
the
provision or provisions of this Agreement affected shall be curtailed, limited
or eliminated to the extent necessary to remove such conflict and as so modified
this Agreement shall continue in full force and effect.
(c) New
York Law.
THIS
AGREEMENT, ITS INTERPRETATION, PERFORMANCE OR ANY BREACH THEREOF, SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND ALL QUESTIONS WITH RESPECT THERETO SHALL
BE
DETERMINED BY, THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO CONTRACTS MADE
AND ENTIRELY PERFORMED THEREIN, AND VENUE AND JURISDICTION IN ANY ACTION SHALL
LIE SOLELY WITHIN THE SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE
COUNTY OF NEW YORK AND, IF APPLICABLE, THE UNITED STATES DISTRICT COURT FOR
THE
SOUTHERN DISTRICT OF NEW YORK. Each party hereto hereby consents and agrees
that
service of process upon it may be effected pursuant to personal delivery or
certified or registered mail, return receipt requested, at the address set
forth
for notices to such party herein or by any other method of service acceptable
under the Civil Practice Law and Rules of the State of New York and expressly
waives the benefit of any contrary provision of foreign law.
(d) Notices.
All
notices and reports under this Agreement must be provided in writing and sent
via personal delivery, registered or certified mail or via a nationally
recognized overnight air courier service. Notices shall be sent as
follows:
If
to
SNI:
Showtime
Networks Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Senior Vice President, General Manager,
Sports
& Event Programming
Facsimile
No.: (000) 000-0000
With
a
copy to Showtime Networks Inc., Attention: Law Department at the same address
(Facsimile No. (000) 000-0000).
24
If
to
Licensor:
PRO
ELITE, Inc.
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
With
a
copy to:
Xxxxxxxxx
Xxxxx Xxxxx Xxxxx Xxxx & Xxxxx LLP
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
All
notices shall be deemed received on the date delivered if sent by personal
delivery; the next business day after posting if sent via a nationally
recognized overnight air courier with instructions for overnight delivery;
and
five (5) days after mailing if sent by registered or certified
mail.
(e) Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes all prior agreements, understandings
and arrangements (whether written or oral) with respect to the subject matter
of
this Agreement and may be modified or amended only by a written instrument
executed by all of the parties hereto and specifically referencing this
Agreement.
(f) No
Waiver; Cumulative Remedies.
Any
party’s failure to insist at any time(s) upon strict performance of any
provision, term or condition hereof, or to exercise any rights hereunder, shall
not be construed as a waiver thereof, and all such provisions, terms, conditions
and rights shall continue and remain in full force and effect. All such rights
and remedies shall be cumulative and any election by either party to enforce
one
or more of its rights and to pursue one or more of its remedies shall not be
construed as a waiver of any of its other rights or remedies, all of which,
in
the Event, shall be deemed to be expressly reserved.
(g) Binding
on Successors; No Assignment.
This
Agreement shall redound to the benefit of and be binding upon the parties and
their respective successors in interest and permitted assigns. SNI may freely
assign this Agreement to any parent, subsidiary, affiliated or successor entity
that owns the SHOWTIME network. Licensor may assign this agreement only in
connection with a merger, sale of substantially all of Licensor’s assets or to a
parent, subsidiary or affiliate of Licensor.
25
(h) Injunctive
Relief.
It is
expressly understood and agreed that each Event is of a special, unique, unusual
and extraordinary character which gives it a particular value for the loss
of
which SNI cannot be reasonably or adequately compensated in damages, and a
breach by Licensor may cause SNI irreparable injury and damage. In the event
of
a breach or threatened breach of this Agreement by Licensor, SNI shall be
entitled to seek legal and equitable relief, including but not limited to
injunctive relief, against Licensor or any other person or entity, either
jointly or severally, to prevent a breach of this Agreement and to secure its
enforcement. Resort to such equitable relief by SNI shall not be construed
as a
waiver of any other rights or remedies which SNI may have under this Agreement,
at law or in equity. The parties further expressly agree that, if SNI breaches
its obligations under this Agreement, the damage, if any, caused Licensor shall
not be deemed irreparable or sufficient to entitle Licensor to injunctive or
other equitable relief. Consequently, Licensor’s rights and remedies shall be
limited to the right, if any, to obtain damages at law and Licensor shall not
have any right in such event to terminate or rescind this Agreement or any
of
the rights granted to SNI hereunder or to enjoin or restrain the development,
production, advertising, promotion, distribution, exhibition or exploitation
of
the Event and/or any of SNI’s rights hereunder.
(i) Further
Documents.
Each
party hereto shall execute any and all further documents or amendments which
either party hereto may deem necessary and proper to carry out the purposes
of
this Agreement.
(j) Headings.
The
descriptive headings of the several sections and paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this Agreement
and shall not be considered for purposes of its interpretation. This Agreement
shall be deemed to have been drafted by both parties and no provision of this
Agreement shall be construed in favor of or against either party on grounds
that
such party or its counsel drafted this Agreement.
26
(k) Facsimile
copies; Counterparts.
Facsimile machine transmitted copies of this Agreement may be executed by the
parties and shall be deemed as binding as if originals had been executed. This
Agreement may also be executed in counterparts, each of which shall be deemed
and original; all counterparts together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as
of the above date.
|
SHOWTIME
NETWORKS INC.
By: /s/
Xxxxxxx X. Hershman________
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Senior Vice President, General
Manager—Sports & Event Programming
|
PRO
ELITE, INC.
By: /s/
Xxxx DeLuca______________________
Name:
Xxxx XxXxxx
Title:
CEO
|
27
EXHIBIT
A
Caribbean
Areas Included in the SNI Territory
ANGUILLA
(Dog Island, Seal Island, Sombrero Island and Scrub Island)
ANTIGUA
and BARBUDA (a twin-island State of the Caribbean)
ARUBA
|
BAHAMAS,
THE
|
(comprised
of approximately 700 islands, including Grand Bahama Island, Andros,
New
Providence, Bimini, Eleuthera, Exuma, the Xxxxx Islands, Conception
Island, Cat Island, Little Abaco Island and Great Abaco Island)
|
BARBADOS
CAYMAN
ISLANDS (Grand Cayman, Cayman Brac, and Little Cayman)
CUBA
DOMINICA
DOMINICAN
REPUBLIC, THE
GRENADA
(Carriacou Island, and Petite Martinique Island)
|
ST.
XXXXXXX and GRENADINES, THE
|
(Bequia,
Isla a Quatre, Bettowia Island, Baliceaux Island, Mustique, Petit
Mustique, Petit Canouan, Canouan, Mayreau, Union Island, Palm
Island)
|
GUADALOUPE
(Petite Terre Island, Xxxxx Xxxxxxx Island)
HAITI
JAMAICA
MARTINIQUE
MONTSERRAT
|
NETHERLANDS
ANTILLES
|
(which
consists of: Xx. Xxxxxxxxx, Xxxx, Xxxx Xxxxxxx, Xxxxxxx and
Bonaire)
|
ST.
BARTS
(also known as St. Barthelemy or St. Xxxxx'x)
ST.
KITTS
- NEVIS
ST.
LUCIA
ST.
XXXXXX
XXXXXXXX
and TOBAGO
TURKS
& CAICOS ISLANDS
VIRGIN
ISLANDS (British): Tortola, Anegada, Virgin Gorda, and Xxxx Xxx Xxxx, and the
32
smaller islands and islets.
28
EXHIBIT
B
Library
Content
29
