Exhibit 10.11
TAG ENTERTAINMENT, INC.
DISTRIBUTION AGREEMENT- WORLDWIDE- MOTION PICTURE & TELEVISION
Agreement made this ____ day of ___ 200__ by and between _________
Limited
Partnership and having its principal place of business at 15230
Ventura
Boulevard, Suite #524, Sherman Oaks, CA 91403 ("LP") and TAG
Entertainment,
Inc., having its principal place of business at 4130 Cahuenga
Boulevard, Second
Floor, Universal City, California 91602 ("TAG") in connection with
the
theatrical motion picture tentatively titled " ______________."
In consideration of the covenants and conditions hereinafter
contained, and
other good and valuable consideration, the parties agree as
follows:
I. (1) Picture Specifications: The "Picture" means and refers to a
theatrical
motion picture being produced by LP and which conforms to the
following
specifications:
(a) The Picture shall be a feature-length theatrical motion picture
of no less
than 95 minutes and no more than 110 minutes (inclusive of main and
end titles);
photographed in color using 35mm raw stock negative film designated
by TAG;
exposed without a hard matte in the camera at a ratio of 1.33 to 1
and with each
scene composed for projection at an aspect ratio of 1.85 to 1; and,
produced,
recorded (not dubbed) and delivered in the English language.
(b) The screenplay, budget, production and post production
schedule, director,
producer, principal cast and principal locations of the Picture (as
well as
changes in the foregoing) shall have been approved in writing by
TAG.
(c) The Picture shall be, completely finished, fully edited and
titled and fully
synchronized with language, dialogue, sound and music, recorded
with sound
equipment pursuant to valid licenses, and in all respects ready,
and of a
technical quality adequate for general release in first- class
theaters in the
Territory.
(d) The Picture shall consist of a continuous and connected series
of scenes
which conform in all material respects to the approved screenplay
and shall
conform to the requirements of the Production Code of the Motion
Picture
Association of America, Inc. and will qualify for an MPAA rating
not more
restrictive than " PG-13."
All of the foregoing specifications are material and there shall be
no changes
in them without TAG's prior written approval, which TAG shall have
no obligation
to grant.
2. Condition Precedent: As a condition to TAG's obligations
hereunder, LP shall
submit to TAG documentation satisfactory to TAG subordinating to
TAG's rights of
distribution all liens against the Picture.
1
3. Delivery:
(a) LP shall deliver the completed Picture to TAG, including
providing TAG with
the items described on the Delivery Schedule attached hereto as
Exhibit A,
promptly upon completion of the same.
4. Sale of Rights:
(a) "Term" means the period commencing with the date of this
Agreement and
ending twenty (20) years immediately following delivery of the
Picture.
(b) "Territory" means the world and, in all parts of the world (i)
all ships and
aircraft flying the flag of, or of the registry of, or licensed by,
any country
(or political subdivision of any thereof) located in the Territory
and all other
ships and aircraft which are customarily booked or serviced from
any part of the
Territory, and (ii) all diplomatic posts and camps, bases,
installations and
reservations of the Armed Forces of each country located in the
Territory,
including the U.S.O., Veteran's Administration, Red Cross and
similar
organizations of each such country.
(c) LP sells, grants, sets over and assigns to TAG throughout the
Territory and
during the Term, the sole and exclusive right, grant and privilege,
under
copyright and otherwise, to exhibit, distribute, market, reissue,
transmit,
perform and otherwise deal in and exploit the Picture and trailers
thereof, and
excerpts and clips therefrom, in any and all languages and versions
(including
dubbed, titled and narrated), in all sizes and gauges of film, tape
and other
material now known or hereafter devised, on or with respect to
which a motion
picture or any part thereof is printed, recorded, reproduced,
duplicated or
otherwise preserved for:
I. Theatrical purposes of any and all kinds;
II. Non-theatrical, educational, industrial, commercial and trade
purposes of
all kinds;
III. Television in all forms, which term "television" shall mean
and include
(but shall not be limited to) all rights to transmit, broadcast and
exhibit the
Picture by means of free, toll, pay, subscription, premium and
theatre
(including transmission or broadcast by open or closed circuits to
any theatre
or other place where an admission fee is charged to view the
broadcast or
transmission of the Picture) television, Community Antenna Systems,
Telstar-type, all other forms of satellite and relay television,
so-called
"pay-per-view" television, and any and all other kinds of open or
closed circuit
systems (as now or hereafter known;
IV. Audiovisual discs and cassettes and other similar devices
intended primarily
for home use (in accordance with a separate home video distribution
agreement
executed concurrently herewith, herein "The Home Video License");
and
V. All other methods of exploitation or distribution now or
hereafter known; by
every means, method, process, medium or device now or hereafter
known, invented,
2
contemplated or devised, and in connection with such uses (whether
the same be
for profit or otherwise) to use and perform any and all music,
lyrics and
musical compositions contained in the Picture and/or recorded in
the sound track
thereof. Without limiting the foregoing, the rights granted to TAG
shall include
the sole and exclusive right:
(A) To use the title(s) by which the Picture is or may be known or
identified
and to change the title of the Picture.
(B) To permit, authorize and license others to exercise and to
sublicense all or
any of TAG's rights and licenses hereunder, and to distribute,
exhibit,
advertise, publicize and exploit the Picture under any terms and in
such manner
TAG deems proper or expedient.
(C) To make such dubbed and titled versions of the Picture, and the
trailers
thereof, including, but not limited to, cut-in, synchronized and
superimposed
versions thereof in all languages for use in the Territory as TAG
deems
advisable.
(D) To permit commercial messages to be broadcast or telecast
before, during and
after the television exhibition of the Picture.
(E) To use TAG's name and trademark on the positive prints of the
Picture and in
trailers thereof, and in all advertising and publicity relating
thereto, in such
a manner, position, form and substance as TAG elects. TAG also
shall have the
right to indicate on all positive prints of the Picture and in all
trailers and
other advertising and publicity that it or one or any of its
sub-distributors is
the distributor of the Picture, in such manner and position and by
the use of
such words and phrases it determines.
(F) To make such changes, additions (including, but not limited to,
narration),
alterations, cuts, interpolations and eliminations as TAG requires
including
(but not limited to) changes needed to make the Picture suitable
for exhibition
in any part of the Territory or to meet television exhibition
requirements
(including, without limitation, time and length requirements and
standards and
practices).
(G) To publicize, advertise and exploit the Picture throughout the
Territory
during the Term and to cause or permit others so to do, including,
without
limitation, the exclusive right in the Territory in connection
with, and for the
purpose of, advertising, publicizing and exploiting the Picture, to
(i) publish
and license and authorize others to publish in any language or form
TAG deems
advisable, synopses, summaries, novelizations, resumes and stories
of and
excerpts from the Picture and from any literary or dramatic
material included in
the Picture or upon which the Picture is based in book form and in
newspapers,
magazines, trade periodicals, booklets, press books and any other
periodicals
and in all other media of advertising and publicity; (ii) broadcast
by radio and
television and license and authorize others so to broadcast, in any
language,
the Picture or any part thereof, and any literary or dramatic
material included
in the Picture or upon which the Picture was based, and use in
conjunction
therewith any other literary, dramatic or musical material; and
(iii) use,
license and authorize others to use
3
the name, physical likeness and voice (and any simulation or
reproduction of any
thereof including still photographs from or relating to the
Picture) of any
party rendering services in connection with the Picture to
advertise, publicize
or exploit the Picture or TAG, including so-called commercial
tie-ins, subject
to contractual restrictions in favor of any third party rendering
such services
or granting such rights; provided, that LP notifies TAG in writing
of those
restrictions prior to delivery hereunder.
(H) To cause trailers of the Picture and prints thereof and of the
Picture to be
manufactured, exhibited and distributed by every means, method and
device now or
hereafter known.
(I) To order and procure from LP, and directly from any laboratory
in any part
of the world holding pre-print or other material (including any
dubbed, titled,
narrated or other versions thereof) in respect of the Picture, such
number of
release prints, sound recordings, preprint material and any parts
thereof, as
TAG from time to time requires in any and all sizes and gauges, and
to cause the
performance of such laboratory or other work (including but not
limited to the
manufacture of dubbed, re-dubbed, titled, subtitled, narrated and
any and all
language versions of the Picture). As one of the items of delivery
to be made
pursuant to this Agreement, LP will deliver to TAG a statement
setting forth the
details of any and all versions (dubbed, titled or other) of the
Picture,
together with the name of the laboratory having possession thereof,
and as one
of the delivery items hereunder, will furnish to TAG a Laboratory
Access
Agreement in the form attached hereto, signed by the laboratory
having
possession thereof, LP and any other party whose consent may be
necessary or
required.
(J) To assert, prosecute, handle and settle in any part of the
Territory all
claims, actions or causes of action against any persons or entities
for the
unauthorized or illegal use, copying, reproduction, release,
distribution,
exhibition or performance of the Picture or any part or version
thereof, or of
the literary, dramatic or musical material upon which it is based
or which is
used therein, or any part or version thereof, or for the
enforcement or
protection of any rights herein granted or purported to be granted
to TAG,
together with full and complete authority and power of attorney in
LP's name or
otherwise, to do any of the foregoing, and to execute, acknowledge,
verify and
deliver any consents, documents, releases or other papers or
documents of any
kind pertaining thereto in LP's name or on LP's behalf.
(K) To use, in any part of the Territory, and to license and
sublicense any
other person or entity (including any subsidiary or affiliated
corporation of
TAG) to use, all or any part of the sound track of the Picture
and/or all or any
part of the musical score and the individual parts used in
connection with or as
part of the Picture, for the purpose of producing or reproducing
commercial,
phonograph, tape, wire or other recordings of any kind, whether in
album form,
single records, cartridges, electrical transcriptions or otherwise,
and whether
designed for sale to the public or for advertising purposes or any
other purpose
and to sell, market and exploit the same, in accordance with the
terms of The
Home Video License.
4
(L) To use, exercise, enforce and exploit in any medium (whether
for the
advertising or exploitation of the Picture or for sale to the
public or any
other purpose) all merchandising, commercial tie ups and by-product
rights of
any and all kinds, including, but not limited to, all rights to
manufacture,
sell, market and exploit commercial and non- commercial goods,
services and
theme parks and other types of attractions of any and all kinds,
utilizing,
depicting or embodying any of the characters, situations or events
depicted or
portrayed in the Picture and the art work, scenery, props and
objects appearing
or portrayed therein, subject to contractual restrictions in favor
of any third
party rendering such services or granting such rights; provided,
that LP
notifies TAG in writing of those restrictions prior to delivery
hereunder.
(M) LP assigns to TAG all right, title and interest for the
Territory (subject
only to the right, if any, of the composer to receive customary
royalties),
including, without limitation, all rights of copyright and
administration, in
and to all music and/or lyrics written for or in connection with
the Picture
(other than previously copyrighted music and/or lyrics licensed to
LP by
unrelated copyright proprietors and not written specifically for
the Picture).
TAG may assign all or any of its rights under this paragraph to any
music
publishing entity designated by TAG, including any entity, which is
a subsidiary
or affiliated corporation of TAG. LP shall execute and deliver to
TAG as part of
the documents required by paragraph 21 hereof all further documents
reasonably
required by TAG to evidence or effectuate the foregoing assignment.
5. LP's Representations and Warranties: LP represents and warrants
that:
(a) LP is the sole and absolute owner of, and has the absolute
right to grant to
or vest in TAG, all rights, licenses and privileges granted to or
vested in TAG
under this Agreement.
(b) All of the following have been fully paid or discharged, or
will be fully
paid or discharged prior to delivery of the Picture hereunder:
(i) All claims and rights of owners of copyrights in literary,
dramatic and/or
musical rights and other property or rights in or to all stories,
plays,
scripts, scenarios, themes, incidents, plots, characters, dialogue,
music, words
and other material of any nature whatsoever appearing, used or
recorded in the
Picture;
(ii) All claims and rights of owners of inventions and patent
rights with
respect to the recording of any and all dialogue, music and other
sound effects
recorded in the Picture and with respect to the use of all
equipment, apparatus,
appliances and other materials used in the photographing, recording
or otherwise
in the manufacture of the Picture;
(iii) All claims and rights with respect to the use, distribution,
performance,
exhibition and exploitation of the Picture, and any music contained
therein
throughout the Territory;
(iv) All costs of producing and completing the Picture; and there
are not, and
will not be,
5
outstanding at any time during the Term hereof any liens, claims,
charges,
encumbrances, restrictions, agreements, commitments or arrangements
whatsoever
with any person or entity, or any obligation (past, present or
future), or any
breaches of any contract, license or agreement which in any way can
or will
interfere with, impair, abrogate, or adversely or otherwise affect
any rights
granted to TAG pursuant to this Agreement, and that (except to the
extent
hereinafter expressly provided) there are not and will not be any
payments of
any kind required to be made by TAG in respect, or as a result, of
any use of
the Picture pursuant to the rights and licenses herein granted to
TAG.
(c) Neither the Picture nor any part thereof, nor any materials
contained
therein or synchronized therewith, nor the title thereof, nor the
exercise of
any right, license or privilege herein granted, violates or will
violate, or
infringes or will infringe, any trademark, trade name, contract,
agreement,
copyright (whether common law or statutory), patent, literary,
artistic,
dramatic, personal, private, civil, property or privacy right or
"moral rights
of authors" or any other right of or slander or libel, any person
or entity.
(d) The Picture does not contain any advertising matter for which
compensation
has been or will be received by LP or to its knowledge by any other
person or
entity.
(e) Neither the Picture nor any part thereof has been released,
distributed or
exhibited theatrically, non-theatrically, by means of television or
by any other
medium in the Territory, nor has it been, and it will not be,
banned by the
censors of, or refused import permit or entry into, any part of the
Territory.
(f) LP has not sold, assigned, transferred or conveyed, and will
not sell,
assign, transfer or convey, to any party, any right, title or
interest in or to
the Picture or any part thereof, or in or to the dramatic or
literary material
upon which it is based adverse to or derogatory of the rights
granted TAG, and
LP has not authorized and will not authorize any party during the
Term to
distribute, exhibit or exploit in any language in any part of the
Territory by
any means, the Picture, or any remake or sequel thereto, or any
motion picture
of any type or kind based in whole or in part on such literary or
dramatic
material, or any of the characters depicted therein, and has not
authorized and
will not authorize any other party to exercise any right or take
any action
which derogates from or competes with the rights herein granted or
purported to
be granted TAG.
(g) LP owns and controls, without any limitations or restrictions
whatsoever,
all motion picture, performance and all other rights granted
hereunder in or to
the Picture and all the sound tracks thereof, and has obtained all
necessary
licenses required for the production, synchronization, exhibition,
performance,
distribution, marketing and exploitation of the Picture hereunder
(including the
music contained therein, subject only to the payment of such
performing fees, if
any, customarily payable by exhibitors to such performing rights
society having
jurisdiction) throughout the Territory and during the Term for all
purposes
licensed hereunder and by every means, method and device now or
hereafter known
or required for full, complete and unlimited exercise and enjoyment
by TAG of
the rights granted; the performing rights to all musical
6
compositions contained in the Picture are (i) controlled by the
American Society
of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc.
(BMI), or
their affiliates or (ii) in the public domain or (iii) controlled
by LP to the
extent required for the purpose of this Agreement.
(h) There are no restrictions which would or could prevent TAG from
distributing
the Picture by any medium or means for which rights are granted TAG
hereunder
and there are not and will not be any payments (out of any part of
any revenues
from the distribution or exploitation of the Picture or otherwise)
which must be
made by TAG to any actors, musicians, directors, writers or other
persons who
participated in the Picture, or to any union, guild or other labor
organization
for any right to exhibit the Picture or as compensation in
connection with such
exhibition or for any other use of the Picture or any of the rights
therein and
thereto granted hereunder. Any such payments shall be solely the
responsibility
of LP.
(i) The copyright in the Picture and the literary, dramatic and
musical material
upon which it is based or which is contained in the Picture will be
valid and
subsisting during the Term throughout the Territory, and no part of
any thereof
is in the public domain.
(j) TAG will quietly and peacefully enjoy and possess each and all
of the
rights, licenses and privileges herein granted or purported to be
granted to it
throughout the Term and the Territory without hindrance by any
third party.
(k) All negatives, inter-negatives, inter-positives and other
pre-print material
to be delivered or made available to TAG is and will be of a
quality suitable
for the manufacture therefrom of technically acceptable positive
release prints
of the Picture and trailers thereof.
(l) The Picture will be produced in accordance with all applicable
collective
bargaining agreements (if any) in effect at the time to which LP is
signatory
and which are accordingly applicable to the Picture.
(m) There are no rights to the Picture for the Territory, which are
specifically
reserved by LP or otherwise excluded hereunder except as contained
in The Home
Video License Agreement.
6. Indemnity: LP at all times shall indemnify and save harmless
TAG, its
subsidiary and affiliated companies, its officers, directors and
employees, and
its exhibitors, licensees and assignees, of and from any and all
claims, demands
and causes of action arising out of or relating to the Picture,
including,
without limitation, any infringement or violation of the rights of
any person or
entity, in any part of the Territory, because of plagiarism,
copyright
infringement, patent, libel, slander, invasion of privacy, breach
of contract,
or any other claim concerning the Picture, or connected with or
resulting from
any breach by LP of any of its representations or warranties or in
connection
with any claim by any governmental taxing authority or agency that
TAG failed
properly to withhold or remit taxes in connection with sums payable
to LP
hereunder. Upon notice from TAG of any such claim, demand or action
being
advanced or commenced, LP
7
shall adjust, settle, or defend the same at LP's sole cost.
Notwithstanding the
foregoing, TAG shall have the right but not the obligation to
adjust, settle or
defend such claim, demand or cause of action, without affecting
LP's indemnity;
provided, that if LP makes bonding arrangements reasonably
satisfactory to TAG
assuring TAG of reimbursement for all payments and expenses in
connection with
such claims, demands and causes of action (including, without
limitation,
reasonable attorney's fees, whether or not litigation is
commenced), TAG shall
not settle such claim, demand or cause of action without LP's
consent, which
shall not be unreasonably withheld. The previous sentence shall not
apply and
TAG's right to settle any claim, demand or cause of action and LP's
indemnity
obligation shall remain unlimited where TAG deems advisable a
settlement of a
lawsuit in which a claim, demand or cause of action for an
injunction is made
against the production, distribution and/or exploitation of the
Picture. In any
case, whether LP or TAG adjusts, settles or defends such claim,
demand or cause
of action, within fifteen (15) days after demand (which demand
shall include a
reasonably detailed description of TAG's payments and expenses)
therefor by TAG,
LP shall reimburse TAG fully for all such payments and expenses,
including
attorneys' fees, in connection therewith. If LP fails so to
reimburse TAG,
without waiving its right otherwise to enforce such reimbursement,
TAG shall
have the right to deduct such amount, or any part thereof, from any
sums
accruing, to or for the account of LP under this or any other
agreement. LP
shall cause TAG to be named as an additional insured with respect
to the Picture
under LP's Errors and Omissions policy until one year following the
theatrical
general release of the Picture in the Territory. Such insurance
shall be in an
amount not less than $1 Million/$3 Million, shall be obtained from
an entity
reasonably approved by TAG and shall have a deductible of no
greater than
$10,000 per claim. LP shall cause its carrier to assume primary
responsibility
notwithstanding that TAG also may have its own insurance coverage.
As a
condition to TAG's obligations under this Agreement, LP shall
provide TAG with a
copy of such Errors and Omissions policy. TAG will indemnify and
hold harmless
LP, its subsidiaries and affiliated companies, its officers,
directors,
employees and its licensees and assignees of and from any and all
claims,
demands and causes of action, costs and expenses, including
reasonable
attorney's fees, arising out of or relating to any breach by TAG of
any of its
representations or warranties under this Agreement which is not a
breach of this
Agreement by LP or with respect to any material added to the
Picture by TAG.
7. Credits: LP warrants and represents that the main and end titles
of the
negative and pre-print materials of the Picture contain all
necessary and proper
credits for the actors, directors, writers and all other persons
appearing in or
connected with the production of the Picture who are entitled to
receive the
same. LP shall deliver to TAG as part of the delivery requirements
of the
Picture a complete statement in English setting forth the credits
as they appear
on the screen. In addition, LP shall deliver to TAG a complete
statement setting
forth the names of all persons to whom LP is contractually
obligated to accord
credit in any advertising, publicity or exploitation of the
Picture. LP shall
include in such statement excerpts from any such agreements
defining and
describing the form and nature of such required credits. LP shall
not grant
screen or advertising credits of any kind without TAG's written
approval. In no
event shall TAG be obligated or required to give credit: granted in
violation of
TAG's approval right; to more than two people above the title of
the Picture; to
any person in radio or television advertising,
8
outdoor advertising or advertising less than eight (8) column
inches in size;
which is inconsistent with any other credit; which violates any
law, statute,
regulation or collective bargaining agreement; or, in advertising
to persons to
whom, or in a form in which, TAG does not usually give such credit.
TAG shall be
entitled to rely entirely upon LP's aforesaid warranties and
representations and
the statements to be delivered as aforesaid. If by reason of any
improper, or
lack of, information contained in LP's statements, TAG accords
improper or
insufficient credit or no credit to any person and such person by
reason thereof
makes any claim or demand or prosecutes any cause of action against
TAG, then at
TAG's election evidenced by written notice to LP, LP at its own
c
