**CONFIDENTIAL TREATMENT
REQUESTED**
THIS AGREEMENT,
dated as of January 10, 2006, is between NGTV (“
Licensor ”), and iN DEMAND L.L.C. (“
Licensee ”).
The Deal Terms set
forth below, the Standard Terms and Conditions attached hereto as
Exhibit A , and the Delivery Information attached
hereto as Exhibits B and C are referred to
collectively herein as this “ Agreement ”. All
references to this Agreement shall be deemed to include all of the
foregoing. Except as expressly set forth in these Deal Terms, in
the event of a conflict between any provision of the Deal Terms and
any provision of the Standard Terms and Conditions, the terms of
the Deal Terms shall govern to the extent of any such
conflict.
In consideration
of the mutual promises herein contained and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
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1.
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Program: “Program” shall
mean each of the following programs: 52 weekly programs during
the Term of programs comprised of entertainment news and
programming, including, without limitation, uncensored celebrity
interviews and music videos. The name of the Programs shall be
“No Good TV.”
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Each Program shall be of high
production quality.
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2.
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Launch Date : The date on which Licensee first
Exhibits a Program hereunder, which shall be on or around
July 4, 2006.
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3.
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Term : Commencing as of the date hereof
and ending one (1) year from the Launch Date; provided,
however, that any time after the six (6) month anniversary of the
Launch Date, either party may terminate this Agreement on at least
60 days’ prior written notice to the other party
hereto.
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4.
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Live or Tape : Taped.
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5.
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Running Time : With respect to each Program, not
less than 3 hours and 45 minutes and not more than 3 hours and 57
minutes.
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6.
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Ratings and Content
Advisories :
TV-MA, L, S.
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7.
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Rights : With respect to each Program, the
non-exclusive right to authorize the Exhibition of such Program
during its License Period within the Territory on a Pay-Per-View
Basis (other than via direct broadcast satellite distribution),
provided that Licensee shall have the exclusive right to authorize
the Exhibition of such Program through Affiliated Systems (other
than via direct broadcast satellite distribution) during such
Program’s License Period on a Pay-Per-View Basis. Upon the
execution of this Agreement, and from time-to-time thereafter,
Licensee shall provide Licensor with a list of Affiliated Systems.
For purposes of clarification, with respect to each Program,
Licensor retains and reserves to itself all rights not granted to
Licensee and such rights may be exercised,
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**CONFIDENTIAL TREATMENT
REQUESTED**
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marketed and exploited by Licensor
concurrently with and throughout the Term of this Agreement,
including without limitation, the right to grant any third party
that is not an Affiliated System to Exhibit the version(s) of such
Program made available to Licensee hereunder by means of
Non-Standard Television during such Program’s License Period,
provided that any such grant shall be subject to Section 3(d) of
the Standard Terms and Conditions.
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Licensee shall have the
non-exclusive right to Exhibit each Program as part of its
currently untitled SVOD service (the “ SVOD Package
”). If Licensee makes its SVOD Package commercially available
on or before the Launch Date, then, commencing with the Launch
Date, Licensee shall have the right, but not the obligation, to
make Licensor’s programming available as part of the SVOD
Package. Provided that Licensee provides Licensor with at least
ninety (90) days’ notice that it is making
Licensor’s programming available as part of the SVOD Package,
Licensor shall provide, and Licensee shall Exhibit, a minimum of
**** hours of programming for the SVOD Package each month. In the
event that Licensee desires to include more than **** hours of
programming from Licensor in the SVOD Package, then Licensee shall
provide Licensor with at least sixty (60) days’ prior
written notice of such increase. The Programs to be included in the
SVOD Package will be selected by Licensor. One hundred percent
(100%) of Licensor’s programming included in the SVOD Package
will be refreshed every **** weeks, provided that Licensee agrees
that it shall provide Licensor with the opportunity to refresh the
Programs included in the SVOD Package at least as frequently as any
other supplier providing programming for inclusion in the SVOD
Package.
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8.
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License Period
: With respect to each
Program Exhibited on a Pay-Per-View Basis, 90 days, commencing with
the earlier of (i) its initial Exhibition hereunder or
(ii) 10 days after Delivery of such Program.
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9.
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Territory : The United States of America and
its commonwealths, territories and possessions (including, without
limitation, the U.S. Virgin Islands, Puerto Rico, Guam and Saipan),
the Bahamas, Bermuda, Jamaica, the Cayman Islands, Curacao, the
Netherlands Antilles (including, without limitation, St. Maarten),
the Dominican Republic, Anguilla and the West Indies.
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10.
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Exhibition Holdback Date
: 90 days after the
end of the License Period.
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11.
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Promotion Holdback Date
: 75 days after the
end of the License Period.
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12.
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Delivery Date
: With respect to each
Program to be Exhibited on a Pay-Per-View Basis, 5 business days
prior to the first Exhibition of such Program.
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13.
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Delivery : With respect to each Program, not
later than the Delivery Date therefor, Licensor shall deliver to
Licensee a taped, post-produced version of such Program as provided
in the Standard Terms and Conditions and Exhibit B
hereto. In addition, with respect to each Program, not later than
the Delivery Date therefor, Licensor shall deliver
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****Material
Omitted Pursuant to Request for Confidential Treatment; Material
Has Been Filed Separately with the Securities and Exchange
Commission.
-2-
**CONFIDENTIAL TREATMENT
REQUESTED**
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to
Licensee a fact sheet consisting of a rundown of such Program.
Licensor, at its option, shall have the right, subject to
Licensee’s reasonable technical specifications, upon at least
sixty (60) days’ prior notice to Licensee, to deliver the
Programs to Licensee via fiber in lieu of tape.
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14.
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Exhibition Commitment
: During the Term,
Licensee shall (a) Exhibit no less than **** “All Day
Ticket” (“ ADT ”) each week on **** as
shall be mutually agreed upon in writing by Licensor and Licensee,
and Licensee agrees to consider a **** ADT if, in the exercise of
its good faith business decision, it makes economic sense for
Licensee to do so, and (b) Exhibit the premiere and encore of
each Program in back-to-back blocks on Thursday or such other day
as shall be mutually agreed upon in writing by Licensor and
Licensee.
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15.
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Suggested Retail Price
: With respect to each
Program Exhibited on a Pay-Per-View Basis, $4.95.
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16.
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License Fee Payable to Licensor
(SVOD Package) : With respect to each Program
Exhibited as part of the SVOD Package, subject to the applicable
Standard Terms and Conditions, the monthly License Fee for Programs
included in the SVOD Package shall equal (i) $**** for each hour of
Programs included in the SVOD Package multiplied by (ii) the
number of Subscribers to the SVOD Package on the first day of the
month of such Program’s Exhibition.
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17.
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License Fee Payable to Licensor
(Pay-Per-View Basis) : With respect to each Program
Exhibited on a Pay-Per-View Basis, subject to the applicable
Standard Terms and Conditions (including, without limitation, the
payment terms), the License Fee for such Program shall be
determined as follows:
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(a)
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with respect to Exhibitions on a VOD
Basis, the greater of: (i) **** % of Gross Receipts, or (ii) $****
less applicable sales and use taxes; and
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(b)
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with respect to Exhibitions on a
non-VOD Basis ( i.e. , linear pay-per-view), the greater of:
(i) **** % of Gross Receipts, or (ii) $**** less applicable sales
and use taxes.
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(c)
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Licensee shall retain as a
distribution fee an amount equal to the sum of (i) **** percent
(**** %) of Gross Receipts with respect to Exhibitions of
Program(s) on a non-VOD Basis and (ii) **** percent (**** %) of
Gross Receipts with respect to Exhibitions on a VOD Basis; it being
understood that Licensee, at its expense, shall encode all Programs
Exhibited by Licensee on a VOD Basis.
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****Material
Omitted Pursuant to Request for Confidential Treatment; Material
Has Been Filed Separately with the Securities and Exchange
Commission.
-3-
**CONFIDENTIAL TREATMENT
REQUESTED**
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(d)
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In
the event that at any time during the Term, Licensee eliminates the
channel associated with its ADT programming and, as a result, is
unable to fulfill its ADT obligation to Licensor as set forth in
Section 14 above, then the Guaranteed License Fee and the
amount of the letter of credit (or other mutually agreed upon
security instrument) shall, effective as of the date of such
elimination, be reduced to $****.
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18.
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Guaranteed License Fee
. No portion of the
License Fee payable to Licensor pursuant to Sections 16 and 17
above shall be payable to Licensor until such time that the
Programs, in the aggregate, have generated sufficient Gross
Receipts and SVOD Package revenues for Licensee to recoup a
distribution fee equal to at least $250,000 for each calendar
quarter (the “ Guaranteed License Fee ”),
provided that if the Launch Date occurs on other than the first day
of a calendar quarter or the expiration or termination of this
Agreement occurs on other than the last day of a calendar quarter,
then the Guaranteed License Fee for such calendar quarter shall be
prorated based on the number of days during such quarter that the
Programs are provided for Exhibition hereunder. For purposes of
determining whether Licensee has recouped the Guaranteed License
Fee for any calendar quarter, the amount of SVOD Package revenues
to be allocated to Licensee as a distribution fee shall be equal to
(i) $**** for each hour of Programs included in the SVOD Package
during such calendar quarter multiplied by (ii) the aggregate
number of Subscribers to the SVOD Package during such quarter as
determined pursuant to Section 16 above ( i.e. , the
sum of the number of Subscribers to the SVOD Package on the first
day of each month during such quarter). Such Guaranteed License Fee
shall be cross-collateralized such that Licensor may apply amounts
in excess of $250,000 retained by Licensee as a distribution fee
for any given calendar quarter against the Guaranteed License Fee
due for future calendar quarters. No later than sixty
(60) days prior to the Launch Date, Licensor, for the benefit
of Licensee, shall secure a letter of credit or other mutually
agreed upon security instrument in the amount of $250,000. If, for
any calendar quarter during the Term, the sum of (i) the Gross
Receipts, (ii) the SVOD Package revenues, and (iii) any
amounts cross-collateralized as set forth in the preceding
sentence, are insufficient for Licensee to recoup a distribution
fee at least equal to the Guaranteed License Fee, and Licensor
fails to pay the difference between the Guaranteed License Fee and
the distribution fee recouped by Licensee for such quarter within
five (5) business days of receipt of the Accounting Statement (as
defined in the Standard Terms and Conditions) for the last month in
such calendar quarter, then Licensee shall have the right to make a
draw under the letter of credit (or other security
instrument).
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19.
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Payment Terms
: With respect to each
Program, subject to the Standard Terms and Conditions, the date
five (5) business days after the end of each Accounting Period
therefor. “ Accounting Period ” shall mean, with
respect to each Program: (a) a period commencing on the date
on which such Program is first Exhibited on a Pay-Per-View Basis
hereunder and ending on the date sixty (60) days thereafter
(or, if such date is not the last day of a calendar month, the last
day of the calendar month in which such date
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****Material
Omitted Pursuant to Request for Confidential Treatment; Material
Has Been Filed Separately with the Securities and Exchange
Commission.
-4-
**CONFIDENTIAL TREATMENT
REQUESTED**
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occurs); and (b) each calendar
month thereafter for so long as there are monies due and owing
Licensor hereunder. Notwithstanding the foregoing, with respect to
each Program, no License Fee shall be payable to Licensor until
(i) the execution and delivery of this Agreement,
(ii) delivery by Licensor of a copy of the endorsement of
insurance with coverage as set forth in Section 22 of these
Deal Terms, and (iii) until such time that Licensee has
recovered its closed-captioning costs related to such
Program.
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20.
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Sponsorship : While traditional advertising (
i.e. , interruption of programming for the insertion of
thirty (30) or sixty (60) -second advertising spots) shall not
be permitted without Licensee’s prior written approval,
Licensor shall be entitled to include sponsorships (including
product placement and signage of Licensor and its sponsors) in (and
in conjunction with) any Program. Without Licensee’s prior
written consent, Licensor shall not sell entitlement sponsorships
in the prohibited categories identified in Exhibit D hereto.
For the avoidance of doubt, Licensor’s product placement and
signage shall not be subject to such prohibitions.
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21.
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Late Fees and Other Costs
. In the event that,
after delivery of a Program to Licensee, and subject to Section
6(c) of the Standard Terms and Conditions, Licensor makes any
changes in any Program or its promotion (including cancellation),
Licensor is responsible for all costs associated with these delays
and/or changes including but not limited to editing, audio,
communications ( e.g. , telecopies) and delivery of
material, and shall pay to Licensee an amount equal to such costs
not later than fifteen (15) days after Licensee’s
delivery of documentation evidencing such costs. Notwithstanding
anything herein to the contrary and without in any way limiting
Licensee’s rights and remedies hereunder or otherwise
including, without limitation, in an action at law to recover
damages with respect to each Program if such Program is cancelled
by or on behalf of Licensor or any performer for any reason, within
thirty (30) days of such cancellation, Licensor will remit to
Licensee the sum of $25,000, together with an amount equal to all
amounts paid by Licensee for the marketing and promotion of such
Program (such aggregate amount being herein referred to as the
“ Cancellation Fee ”). In addition, with respect
to each Program, Licensee will charge Licensor the following fees
in the event of late delivery, or failure to comply with the terms
hereof, with respect to the following: (i) 30-second video
spot and any other advertising and publicity material, $25,000; and
(ii) any tape of each Program hereunder, $25,000.
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22.
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Insurance Requirements
: Not later than the
Launch Date, Licensor shall procure and maintain in full force and
effect standard producer’s liability (errors and omissions)
insurance covering the Programs throughout the Territory with
minimum limits of at least One Million Dollars ($1,000,000) for any
claim arising out of a single occurrence and Three Million Dollars
($3,000,000) for all claims in the aggregate, which insurance shall
include title coverage for the Programs and shall be written on
either: (A) an occurrence basis, in which event it shall
remain in full force and effect until the end of the License Period
and may not be permitted to lapse, or (B) a claims-made basis,
in which event it shall remain in full force and effect until the
end of the License Period, shall cover any claims made at any time
until the end of such License Period and shall include an extended
reporting period of no less than one year after the expiration of
such License Period and may not be permitted to lapse.
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-5-
**CONFIDENTIAL TREATMENT
REQUESTED**
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Such insurance policy:
(a) shall be issued by a nationally recognized insurance
carrier; (b) may not be cancelled without sixty (60) days
prior written notice to Licensee; (c) shall not carry a
deductible larger than Fifty Thousand Dollars ($50,000);
(d) shall name as an additional insured “iN Demand
L.L.C.”; (e) shall name Licensor as a named insured or
as an additional insured; and (f) shall be primary and not
contributing to or in excess of any such insurance maintained by
Licensee or its members or affiliates for the benefit of
Licensee.
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23.
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Notices : All notices, statements, and other
documents required to be given in writing shall be by personal (or
messenger) delivery, by registered or certified mail, or by
overnight delivery service with instructions for overnight delivery
(except as herein otherwise expressly provided) and shall be
addressed as provided below (or such other addresses as may be
designated in writing by either party). Notice given by personal
(or messenger) delivery, by registered or certified mail or by
overnight delivery shall be deemed given upon receipt.
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Licensee:
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Licensor:
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NGTV
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345 Hudson
Street, 17 th Floor
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9944 Santa
Monica Blvd.
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Beverly Hills,
CA 90212
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Attention:
Senior Vice President,
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Attention:
President
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Business
Affairs and General Counsel
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With a
separately delivered copy to:
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Attention: Senior Vice President, Programming
and Development
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24.
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General : Capitalized terms not otherwise
defined in these Deal Terms shall have the respective meanings
assigned thereto in the Standard Terms and Conditions.
Exhibits A , B , C and D
attached hereto are hereby incorporated herein and made a part
hereof. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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-6-
**CONFIDENTIAL TREATMENT
REQUESTED**
Please confirm
Licensor’s agreement with the above by obtaining the
appropriate signature and returning both copies of this Agreement
for countersignature. This Agreement will become effective only
when signed and delivered by both parties hereto.
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NGTV
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iN DEMAND
L.L.C.
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By:
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/s/ Michael
Berman
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Title:
Co-President
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Title:
EVP
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Date:
January 10, 2006
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Date:
January 10, 2006
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-7-
**CONFIDENTIAL TREATMENT
REQUESTED**
EXHIBIT A
to
Agreement dated as of January 10, 2006
by and between NGTV (“Licensor”)
and iN DEMAND L.L.C. (“Licensee”)
Standard Terms and
Conditions
In addition to the
words, terms and phrases defined elsewhere in this Agreement, the
words, terms and phrases (and variations thereof) defined in this
Section 1 shall, for the purposes of this Agreement, have the
meanings ascribed to them below.
(a)
Accounting Statement shall have the meaning assigned to such
term in Section 3(b) of these Standard Terms and
Conditions.
(b)
Affiliated Systems shall mean, with respect to each Program,
the systems and other entities affiliated with Licensee (excluding,
for the avoidance of doubt, any direct broadcast satellite
distributor) that distribute such Program by means of Non-Standard
Television on a Pay-Per-View Basis.
(c)
Exhibition shall mean distribution, transmission, display,
exhibition, exploitation, projection or performance, and
Exhibit shall mean to cause the Exhibition.
(d) Gross
Receipts shall mean, with respect to each Program Exhibited on
a Pay-Per-View Basis, all monies actually received by the
Affiliated Systems for each viewing of such Program by Program
Subscribers on a Pay-Per-View Basis pursuant to the rights herein
granted, less applicable sales and use taxes. Gross Receipts shall
be, at all times, subject to retroactive adjustment for refunds,
credits, settlements, allowances, rebates, corrections and other
similar purposes. Such retroactive adjustments may be implemented
by Licensee’s withholding appropriate amounts from such
License Fees as become payable pursuant to subsequent Accounting
Statements following the relevant retroactive adjustment, provided
that Licensee itemizes such adjustments on the Accounting
Statement(s) in which they are taken. All overpayments not
recovered from amounts otherwise payable for the month in which
such matters are first reflected in an Accounting Statement may be
carried forward or backward (at Licensee’s election) and, if
at the end of the Term, any overpayments remain, Licensor shall
make immediate payment to Licensee of any amounts shown to be due
to Licensee.
(e) Home
Video Devices shall mean videocassettes and videodiscs that, as
sold or rented, themselves physically embody (without need for
further transfer of data or further activation or other
authorization from outside the home into the home) a motion picture
or other programming for exhibition by means of a playback device
which causes a visual image to be seen on the screen of a
television receiver, which cassettes and discs are intended for
sale or rental to the general public for use in the home and are
physically transported to the home. No electronic or other
non-tangible transmission of programming to the home from a source
outside the home for taping, recording or other storage on tape,
disc, or any other means of data
A-1
**CONFIDENTIAL TREATMENT
REQUESTED**
retention for
subsequent replay shall constitute the Exhibition of such
programming by means of Home Video Devices, nor shall an Exhibition
of programming in the home that requires activation or
authorization from outside the home constitute the Exhibition of
such programming by means of Home Video Devices.
(f)
License Fee shall mean, with respect to each Program, the
license fee set forth with respect to such Program in the Deal
Terms, which shall depend on whether it is Exhibited on a
Pay-Per-View Basis or as part of the SVOD Package, and which shall
be payable in accordance with Section 3 of these Standard
Terms and Conditions.
(g)
Non-Standard Television shall mean any and all forms of
television Exhibition, whether now existing or developed in the
future, other than Exhibition by means of Standard Broadcast
Television. Non-Standard Television shall include, without
limitation, Exhibition by means of cable, wire or fiber of any
material, over-the-air pay or STV in any frequency band, any and
all forms of electronic or other non-tangible transmission
(including, without limitation, the Internet) for Exhibition or for
taping, recording or other storage on tape, disc or any other means
of data retention for subsequent exhibition (whether by the
Internet or any other electronic or non-tangible distribution
medium), master antenna, satellite master antenna, high definition
transmission, closed-circuit transmission, single and multi-channel
multi-point distribution service and satellite transmission
directly to TVROs, all on a subscription, pay-per-view, license,
rental, sale or any other basis.
(h)
Pay-Per-View Basis shall mean the mode of Exhibition of a
Program by means of Non-Standard Television in which a Subscriber
elects to view such Program (alone or in combination with other
programming) and is charged a fee for such viewing (which fee may
be in payment for multiple Exhibitions of such Program (and/or
combination of programming, as the case may be), regardless of
whether any such Exhibition occurs at a regularly scheduled time,
or on a VOD Basis, but not on an SVOD Basis. Pay-Per-View
Basis shall also include: (i) the mode of Exhibition of a
Program by means of Non-Standard Television in which a person
employed by an Affiliated System elects to view such Program (alone
or in combination with other programming) in the course of such
person’s employment, but is not charged a fee for such
viewing; and (ii) the mode of Exhibition of a Program by means
of Non-Standard Television in which a Subscriber elects to view
such Program but is not charged a fee for such viewing on a limited
promotional basis, provided that such Exhibition does not occur on
a service that is made available on a periodic basis of more than
twenty-four (24) hours.
(i)
Person shall mean any natural person, corporation,
partnership, joint venture, association, trust, governmental agency
or any other entity whatsoever.
(j)
Physical Materials shall have the meaning assigned to such
term in Section 4(a) of these Standard Terms and
Conditions.
(k)
Program Subscriber shall mean, with respect to each Program,
a Subscriber that elects to view such Program on a Pay-Per-View
Basis as authorized by Licensee or the applicable Affiliated
System, and receives and pays for such viewing.
A-2
**CONFIDENTIAL TREATMENT
REQUESTED**
(l)
Related Agreement shall have the meaning assigned to such
term in Section 3(d) of these Standard Terms and
Conditions.
(m)
Standard Broadcast Television shall mean Exhibition by means
of UHF or VHF television broadcast, the video and audio portions of
which are intelligibly receivable without charge by means of
standard home rooftop or television set built-in
antennas.
(n)
Studio shall mean Licensee’s playback and uplink
facilities at the Comcast Media Center in Littleton, Colorado, or
such other facility in the Territory as Licensee shall
designate.
(o)
Subscriber shall mean a customer of Licensee or of an
Affiliated System acting with the authorization of
Licensee.
(p) SVOD
Basis shall mean the mode of Exhibition of a group of Programs
offered to Subscribers where, for a fixed fee, the Subscriber can
watch a selection of all or a portion of such Programs with
“on demand” functionality over a set period of time as
often as desired on a subscription basis.
(q)
Transfer House shall mean such professional video transfer
house or houses as Licensee shall designate, if any; provided,
however, that in the absence of such designation the Transfer House
shall be the Studio.
(r) Video
Reproductions shall have the meaning assigned to such term in
Section 4(a) of these Standard Terms and Conditions.
(s) VOD
Basis shall mean the mode of Exhibition of a Program in which a
Subscriber elects to view such Program, which Exhibition occurs on
an “on demand basis” ( i.e. , at a time or times
of such individuals’ choosing, which time or times are not
regularly scheduled), but shall not include Exhibition on an SVOD
Basis.
(i) Licensee
shall pay and have sole responsibility for all costs related to the
uplink and transmission of the Programs to the Affiliated Systems
for Exhibition hereunder, including, without limitation, encoding
the Programs to be Exhibited on a VOD Basis or an SVOD
Basis.
(ii) Without
derogating from Licensee’s rights and remedies hereunder or
otherwise, the parties acknowledge and agree that Licensee shall
have the right to reject any Program at any time if such Program
does not conform to the running time and/or rating and content
advisories set forth in the Deal Terms and/or to the other
applicable provisions of the Deal Terms.
(b)
Advertising and Promotion . Licensor also hereby grants to
Licensee, with respect to each Program, the right and license
to:
A-3
**CONFIDENTIAL TREATMENT
REQUESTED**
(i) use
(and authorize the use of) the title of such Program solely for the
purpose of advertising, exploiting and publicizing such Program,
its Exhibition hereunder and the services of Licensee and the
Affiliated Systems;
(ii) use
(and authorize the use of), including, without limitation,
reproduce (and authorize the reproduction of), the advertising and
publicity material provided by Licensor provided that such use
and/or reproduction shall be in accordance with Licensor’s
instructions with respect to the same; and
(iii) advertise,
publicize and promote (and authorize the advertising, publicizing
and promotion of) such Program, its Exhibition hereunder and the
availability of such Program from Licensee and the Affiliated
Systems, but Licensee shall not, for such purposes, utilize
excerpts of more than three (3) minutes from such
Program.
(c)
Holdbacks . With respect to each Program, Licensor shall not
itself, and shall not authorize or permit (other than pursuant to
the rights and licenses granted herein and except as provided
otherwise herein) any Person to: (i) on or prior to the
Exhibition Holdback Date therefor, Exhibit any version (including,
but not limited to, all foreign language, cut and edited versions
and those produced for media other than Non-Standard Television) of
such Program so as to be receivable within the Territory by any
means or media, or (ii) on or prior to the Promotion Holdback
Date therefor, promote or announce any such Exhibition. The
foregoing notwithstanding and consistent with the rights reserved
by Licensor, with respect to each Program, Licensor may authorize
any third party that is not an Affiliated System to Exhibit and
promote the version(s) of such Program made available to Licensee
hereunder, by means of Non-Standard Television (other than the
Internet).
(d)
Postponement . Without derogating from Licensor’s
obligations hereunder and without limiting Licensee’s rights
and remedies hereunder or otherwise, if the occurrence or
Exhibition of any Program is delayed or postponed, Licensee shall
have the option (and not the obligation) to Exhibit such Program on
a later date or dates agreed upon by the parties hereto upon the
terms and conditions set forth herein. Licensor shall promptly
notify Licensee of any event which may delay or postpone any
Program and will keep Licensee advised regarding the status
thereof.
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3.
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LICENSE FEES; STATEMENTS AND
PAYMENTS
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(a) In
consideration of the rights and license granted to Licensee
hereunder and Licensor’s agreements and obligations herein
with respect to each Program, Licensee shall pay to Licensor, with
respect to each Program, an amount, to be paid and accounted for in
accordance with this Section 3, equal to the License Fees
collected by Licensee from the Affiliated Systems with respect to
such Program. Each such payment shall be by check(s) mailed to
Licensor at the address set forth in the Deal Terms not later than
the time(s) set forth in Section 3(b) below.
(b) With
respect to each Program and, for Programs Exhibited on an SVOD
Basis, with respect to the SVOD Package, not later than the date
five (5) business days after the end of each Accounting Period
for which License Fees are collected with respect to such Program
or
A-4
**CONFIDENTIAL TREATMENT
REQUESTED**
SVOD Package,
as applicable, Licensee shall send to Licensor a statement in such
form as Licensee shall reasonably designate (“ Accounting
Statement ”) setting forth with respect to each
Affiliated System for such Accounting Period: (i) the number
of individual purchases of such Program by Program Subscribers on a
Pay-Per View Basis as reported by such Affiliated System, broken
down separately for Exhibitions on a non-VOD Basis and on a VOD
Basis; (ii) the retail price(s) for such Program on a
Pay-Per-View Basis as reported by such Affiliated System, broken
down separately for Exhibitions on a non-VOD Basis and on a VOD
Basis; (iii) the Gross Receipts for such Program reported by
such Affiliated System, broken down separately for Exhibitions on a
non-VOD Basis and on a VOD Basis; the (iv) the number of
Subscribers to the SVOD Package on the first day of each month and
the number of hours that each Program was Exhibited as part of the
SVOD Package; and (v) License Fees for such Program and SVOD
Package, as applicable, during such Accounting Period. The amount
shown to be due Licensor shall be paid concurrently with the
rendition of the respective Accounting Statement. All payments
hereunder shall be made in U.S. Dollars. All Accounting Statements
and payments shall be addressed to Licensor at the address set
forth in the Deal Terms. Any unpaid License Fees shall accrue
interest at a rate of one percent (1%) per month or the highest
lawful rate, whichever is less, from the due date until payment is
received by Licensor. Licensee shall be liable to Licensor for all
reasonable out-of-pocket costs incurred by Licensor (which, for the
avoidance of doubt, shall not include any overdue amounts, together
with any interest due thereon) in connection with the collection of
any such overdue amounts (not to exceed $50,000).
(c)
Records and Audit Rights . (i) With respect to each
Program, including each Program included in the SVOD Package,
Licensee shall keep at its main offices books of account directly
relating to the Exhibition of such Program hereunder (which books
of account are herein referred to as “ Records
”), which shal
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