Exhibit 10.20
Portions denoted with an asterisk have been omitted and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.
LIVE/SUMMIT OMNIBUS AGREEMENT
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Table of Contents
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1. Definitions................................................... 3
2. Contribution of Stock of Summit N.V........................... 5
3. Sale of * Interest in Summit.................................. 6
4. Representations and Warranties................................ 6
a. Organization and Qualification; Affiliates.............. 6
b. Authority Relative to this Agreement.................... 6
c. No Conflict; Required Filings and Consents.............. 7
d. Financial Statements.................................... 7
e. Absence of Certain Changes or Events.................... 7
f. No Undisclosed Liabilities.............................. 7
g. Absence of Litigation................................... 8
h. Taxes................................................... 8
i. Intellectual Property................................... 8
j. Interested Party Transactions........................... 8
k. Brokers................................................. 8
l. Disclosure.............................................. 9
5. Starting Equity............................................... 9
6. Service Options............................................... 9
7. Closing....................................................... 9
8. Domestic Distribution Rights.................................. 10
9. Conduct Prior to the Call Closing Date........................ 10
10. Call.......................................................... 12
a. Exercise................................................ 12
b. Call Closing Date....................................... 12
c. Payment of Call Purchase Price.......................... 12
d. Disputes as to Call Purchase Price...................... 12
e. Single Picture Designation.............................. 13
f. Executive Covenant...................................... 14
g. Employment Contracts.................................... 14
h. Post-Closing Audit...................................... 14
i. Assignment.............................................. 14
j. Transfers of Interests.................................. 14
11. Summit Call Option............................................ 15
12. Accounting Principles......................................... 15
13. Press Releases................................................ 15
14. Expenses...................................................... 16
15. Arbitration................................................... 16
16. Notice and Cure............................................... 16
17. Representations and Warranties................................ 16
18. Integrated Agreement.......................................... 16
19. Governing Law................................................. 16
20. Good Faith.................................................... 16
21. Execution in Counterparts..................................... 17
22. Super-Special "If, If, If, If" Provisions..................... 17
EXHIBITS
"A" Agency Agreement
"B" Partnership Agreement
"C" Service Options
"D" Accounting Principles
"E" Executive Covenant
"F" Summit Share Transfer Agreements
1. Definitions. All capitalized words used herein shall have the
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meanings as set forth below:
a. "Affiliates" means all entities owned or owning, directly or
indirectly, 50% or more by a Party. For Summit, Affiliates includes Summit N.V.,
Proscenium Pictures Ltd., and Summit Entertainment Development Services, Inc. An
Affiliate of an individual includes members of their family and persons
controlling, controlled by or under common control with the person or their
family.
b. "Agency Agreement" means the Film Sales Agency Agreement between
LIVE and Summit, attached hereto as Exhibit "A".
c. "Agreement" means this LIVE/Summit Omnibus Agreement.
d. "Base Compensation" means * compensation payable to the
Individuals in any twelve-month period following the Closing Date, payable * to
Wachsberger, * to Hayward, and * to Garrett.
e. "Call" has the meaning set forth in Paragraph 10(a).
f. "Call Formula" means *.
g. "Call Closing Date" means the date of closing of the Call.
h. "Call Lapse Date" means the earliest to occur of:
i. The * anniversary of the Closing Date.
ii. The date that LIVE exercises its put right under Paragraph
9(g)(II).
iii. The date that LIVE or Holdings files a voluntary petition
in bankruptcy, or an involuntary petition in bankruptcy is filed against either
of them that is not discharged within sixty days.
iv. The date of termination of the Agency Agreement at any
time by LIVE for any reason or by Summit pursuant to Paragraph 13(g) of the
Agency Agreement.
v. The date of any transfer of LIVE's interest in Summit
except (i) to an Affiliate of LIVE or (ii) to a buyer of all or substantially
all of the assets of LIVE if such sale includes the Agency Agreement and the
foreign rights to LIVE's films.
vi. The date of rejection by Sellers of a Call applying New
GAAP pursuant to Paragraph 22.
i. "Call Notice" means LIVE's written notice of exercise of the
Call.
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j. "Call Notice Date" means the date that LIVE delivers to Sellers
the Call Notice.
k. "Call Purchase Price" means a price based on the Call Formula
multiplied by the Percentage Interest in Summit being sold. If the Call Purchase
Price is being calculated with respect to any sale by Sellers of their interests
in Summit, the Call Purchase Price shall be increased by 100% of the unpaid
Priority Distribution.
l. "Cash Floor" means cash held by Summit and its Affiliates of at
least *, at least * of which is held by Summit in the United States.
m. "Ceiling Compensation" means an amount equal to the Base
Compensation plus, at the beginning of each twelve-month period commencing on
the first anniversary of the Closing Date, an increase from the prior year equal
to the greater of five percent or the increase in the Los Angeles region "All
Urban Consumers" Consumer Price Index from the prior year.
n. "Closing" means the closing of certain transactions as described
herein, which shall occur at a time and place mutually agreed to by the Parties.
o. "Closing Date" means the date of Closing.
p. "Franco/Kiwi" means The Franco-Kiwi Alliance, Inc., a California
corporation.
q. "GAAP" means generally accepted principles consistently applied,
except as provided in Exhibit "D".
r. "Garrett" means David Garrett.
s. "Guarantee Income" means any advance, minimum guarantee or fixed
sum license fee that is payable under a license agreement.
t. "Hayward" means Bob Hayward.
u. "Holdings" means Film Holdings Incorporated, a Delaware
corporation.
v. "Individuals" means Wachsberger, Hayward, and Garrett,
collectively.
w. "LIVE" means LIVE Entertainment Inc., a Delaware corporation.
x. "Material Adverse Effect" means a material adverse effect on the
business or operations of Summit and its Affiliates taken as a whole.
y. "New GAAP" has the meaning set forth in Paragraph 22.
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z. "Old GAAP" has the meaning set forth in Paragraph 22.
aa. "Parties" means LIVE, Holdings, Summit, Franco/Kiwi, and the
Individuals.
bb. "Partnership Agreement" means the Amended and Restated Agreement
of Limited Partnership of Summit, attached hereto as Exhibit "B".
cc. "Percentage Interest" means the percentage ownership of Summit
held by each of its owners from time to time.
dd. "Priority Distribution" means the amount, if any, by which
Starting Equity exceeds $6 million.
ee. "Sellers" means Franco/Kiwi and Garrett.
ff. "Service Options" means the options granted to the Individuals to
acquire stock of LIVE pursuant to Paragraph 6.
gg. "Starting Equity" means Summit Equity on the Closing Date.
hh. "Summit" means Summit Entertainment L.P., a California limited
partnership.
ii. "Summit Equity" means Summit's net equity, including, without
limitation, initial capitalization, subsequent capital contributions, and
retained earnings, calculated by consolidating Summit and its Affiliates and
applying GAAP except as provided in Paragraph 12.
jj. "Summit N.V." means Summit Entertainment N.V., a Netherlands
Antilles corporation.
kk. "Taxes" and "Tax Returns" have the meaning set forth in Paragraph
4(h).
ll. "Termination Notice" means written notice by Wachsberger to LIVE
of his intention to terminate his employment with Summit ninety days after such
notice. The Termination Notice may not be given on prior to ninety days prior to
twenty-four months after the Closing or anytime after the Call Notice Date.
mm. "Wachsberger" means Patrick Wachsberger.
2. Contribution of Stock of Summit N.V. Wachsberger and Hayward do
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hereby contribute all of the stock they own in Summit N.V. (representing,
collectively, * of the issued and outstanding stock of Summit N.V.) to
Franco/Kiwi as a capital contribution, and Franco/Kiwi, in turn, hereby
contributes such stock to Summit as a capital contribution. Likewise, Garrett
does hereby contribute the stock he owns in Summit N.V. (representing * of the
issued and outstanding stock of Summit N.V.) to Summit as a capital
contribution. The Individuals and Franco/Kiwi do hereby separately (i.e., and
not jointly and severally) represent and warrant to LIVE
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that the stock contributed by them and by Franco/Kiwi (a) is free and clear of
all liens, encumbrances, and claims of any kind, (b) represents * of the
stock of Summit N.V., and (c) has not previously been subject to an actual or
purported assignment to any other person.
3. Sale of * Interest in Summit. Subject to the conditions
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precedent of receipt of the * purchase price as set forth below on the Closing
Date, Sellers do hereby sell, transfer, and convey to LIVE a collective *
Percentage Interest in the equity and future profits of Summit, of which a *
Percentage Interest shall be sold by Franco/Kiwi and a * Percentage Interest
shall be sold by Garrett. In consideration for this sale, LIVE shall pay Sellers
*, of which * shall be paid to Franco/Kiwi and * shall be paid to Garrett.
4. Representations and Warranties. The Individuals, Summit and
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Franco/Kiwi hereby represent and warrant to LIVE and Holdings as follows:
a. Organization and Qualification; Affiliates. Each of Summit and
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each of its Affiliates is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation and has the
requisite power and authority and is in possession of all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates, approvals
and orders ("Approvals") necessary to own, lease and operate the properties it
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purports to own, operate or lease and to carry on its business as it is now
being conducted except where the failure to possess the Approvals has not had,
and would not have, a Material Adverse Effect. Each of Summit and each of its
Affiliates is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary except where the failure to be so qualified
or licensed has not had, and would not have, a Material Adverse Effect.
Substantially all of the business and operations of Summit and its Affiliates
are conducted through, and substantially all of the properties and assets of
Summit and its Affiliates are owned by, Summit and its Affiliates.
b. Authority Relative to this Agreement. Summit, Franco/Kiwi and the
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Individuals have all necessary power and authority to execute and deliver this
Agreement and to perform their obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Summit and Franco/Kiwi and the consummation by Summit and Franco/Kiwi of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action, and no other proceedings on the part of Summit and Franco/Kiwi
are necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered by
Summit, Franco/Kiwi and the Individuals and, assuming the due authorization,
execution and delivery by LIVE and Holdings, as applicable, constitutes a legal,
valid and binding obligation of Summit, Franco/Kiwi and the Individuals
enforceable against them in accordance with its terms.
c. No Conflict; Required Filings and Consents
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i. Neither Summit nor any of its Affiliates has breached, is
in default under, or has received written notice of any material breach of or
default under, any material agreements to which they are a party, and (ii) each
such material agreement is in full force and effect,
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except with respect to breaches, defaults or failures to be in full force and
effect that have not had, and would not have, a Material Adverse Effect.
ii. The execution and delivery of this Agreement by Summit
does not, and the performance of this Agreement by Summit and the consummation
of the transactions contemplated hereby will not, (i) conflict with or violate
the organizational documents of Summit, (ii) conflict with or violate any
federal, foreign, state or provincial law, rule, regulation, order, judgment or
decree (collectively, "Laws") applicable to Summit or any of its Affiliates or
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their properties, or (iii) result in any breach of or constitute a default (or
an event that with notice or lapse of time or both would become a default)
under, or impair Summit's or any of its Affiliates' rights or alter the rights
or obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, pursuant to any
material agreement or other instrument or obligation to which Summit or any of
its Affiliates is a party or by which Summit or any of its Affiliates or its or
any of their respective properties is bound or affected, except in the case of
clauses (ii) and (iii) for any such conflicts, violations, breaches, defaults or
other occurrences that do not constitute a Material Adverse Effect.
iii. The execution and delivery of this Agreement by Summit
does not, and the performance of this Agreement by Summit will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any domestic or foreign governmental or regulatory authority except where
the failure to obtain such consents, approvals, authorizations or permits, and
to make such filings or notifications, would not constitute a Material Adverse
Effect.
d. Financial Statements. Each of the financial statements delivered
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by Summit to LIVE fairly presents in all material respects the financial
position of Summit and its Affiliates as at the respective dates thereof, except
that the interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be material
in amount, and each (except for periods ending on or before December 31, 1997)
was prepared in accordance with GAAP throughout the periods involved (except as
may be indicated in the notes thereto or as otherwise provided in Exhibit "D").
e. Absence of Certain Changes or Events. Since December 31, 1997,
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Summit has conducted its business in the ordinary course and there has not
occurred any Material Adverse Effect.
f. No Undisclosed Liabilities. Neither Summit nor any of its
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Affiliates has any liabilities (absolute, accrued, contingent or otherwise),
except liabilities (a) in the aggregate adequately reserved or provided for in
Summit's balance sheet (including any related notes thereto) for the fiscal year
ended December 31, 1997, or (b) incurred since such date in the ordinary course
of business consistent with past practice.
g. Absence of Litigation. There are no claims, actions, suits,
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proceedings or investigations pending or, to the knowledge of Summit, threatened
against Summit or any of its Affiliates, or any properties or rights of Summit
or any of its Affiliates, before any court, arbitrator
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or administrative, governmental or regulatory authority or body, domestic or
foreign, the adverse resolution of which would have a Material Adverse Effect.
h. Taxes.
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i. For purposes of this Agreement, "Tax" or "Taxes" shall mean
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taxes, fees, levies, duties, tariffs, imposts, and governmental impositions or
charges of any kind in the nature of (or similar to) taxes, payable to any
federal, state, local or foreign taxing authority, including (without
limitation) (i) income, franchise, profits, gross receipts, ad valorem, net
worth, value added, sales, use, service, real or personal property, special
assessments, capital stock, license, payroll, withholding, employment, social
security, workers' compensation, unemployment compensation, utility, severance,
production, excise, stamp, occupation, premiums, windfall profits, transfer and
gains taxes, and (ii) interest, penalties, additional taxes and additions to tax
imposed with respect thereto; and "Tax Returns" shall mean returns, reports, and
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information statements with respect to Taxes required to be filed with the IRS
or any other federal, foreign, state or provincial taxing authority, domestic or
foreign, including, without limitation, consolidated, combined and unitary tax
returns.
ii. Other than where the failure to do so has not had, and would
not have, a Material Adverse Effect, (i) Summit and its Affiliates have filed
all United States federal income Tax Returns and all other Tax Returns required
to be filed by them, (ii) Summit and its Affiliates have paid and discharged all
Taxes due in connection with or with respect to the periods or transactions
covered by such Tax Returns and have paid all other Taxes as are due, except
such as are being contested in good faith by appropriate proceedings (to the
extent that any such proceedings are required) and with respect to which Summit
is maintaining adequate reserves, and (iii) there are no other Taxes that would
be due if asserted by a taxing authority, except with respect to which Summit is
maintaining reserves to the extent currently required.
i. Intellectual Property. Summit, directly or indirectly, owns, or
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is licensed or otherwise possesses legally enforceable rights to use, all
copyrights, trademarks, trade names, service marks, and any applications
therefor, technology, know-how and tangible or intangible proprietary
information or material that are material to the business of Summit and its
Affiliates as currently conducted by Summit or its Affiliates.
j. Interested Party Transactions. There are no arrangements between
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Summit and any Individual or person related to them that would be required to be
reported if Summit were publicly traded as a Certain Relationship or Related
Transaction, pursuant to Item 404 of Regulation S-K promulgated by the SEC
except as has been disclosed to LIVE in writing.
k. Brokers. No broker, finder or investment banker or other party
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is entitled to any brokerage, finder's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Summit or its Affiliates.
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l. Disclosure. None of the representations or warranties of the
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Individuals, Summit and Franco/Kiwi contained herein and none of the other
information or documents furnished to LIVE or any of its representatives by the
Individuals, Summit and Franco/Kiwi or its representatives pursuant to this
Agreement is false or misleading in any material respect or omits to state a
fact herein or therein necessary to make the statements herein or therein not
misleading in any material respect. There is no fact which adversely affects or
in the future is likely to adversely affect Summit in any material respect which
has not been disclosed to LIVE.
5. Starting Equity. Prior to the Closing Date, Sellers may withdraw cash
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from Summit to reduce Starting Equity to * and Starting Cash to the Cash Floor,
or they shall contribute such funds as may be necessary to increase Starting
Equity to * and Summit Cash to the Cash Floor.
6. Service Options. In consideration for services rendered, on the
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Closing Date, the Individuals shall receive Service Options in the form attached
hereto as Exhibit "C". These options shall be allocated * to Wachsberger, * to
Hayward, and * to Garrett. Any shares acquired pursuant to the Service Options
shall be treated as "Management Shares" for purposes of Holdings Stockholders
Agreement dated as of July 9, 1997.
7. Closing. At the Closing, the following actions shall occur:
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a. The Individuals and Franco/Kiwi shall deliver to Summit Share
Transfer Agreements (in the form of Exhibit "F" attached hereto) transferring
100% of the issued and outstanding stock of Summit N.V. to Summit. Immediately
following the Closing, Summit shall be reflected as the new owner of such stock
on the register of shareholders for Summit N.V.
b. LIVE shall deliver to Sellers two cashier's checks (or shall pay
by wire transfer, in which case receipt of such payment shall be a condition
precedent to the effectiveness of this Agreement) in immediately available
federal funds for the purchase of the * Interest in Summit, payable
* to Franco/Kiwi and * to Garrett. If payment is by wire transfer, the bank
acount information is as follows:
FRANCO/KIWI ALLIANCE
*
DCPJ & MS GARRETT (David Garrett)
*
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c. LIVE and Sellers shall execute the Partnership Agreement.
d. LIVE and Summit shall execute the Agency Agreement.
e. Holdings will deliver the executed Service Options to the
individuals.
8. *
9. Conduct Prior to the Call Closing Date. Prior to the earlier of the
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Call Lapse Date or the Call Closing Date, the following provisions shall apply
to Summit and Sellers:
a. No profit participation or equity interest in Summit that would
continue after the Call Closing Date shall be granted to any person except (i)
existing profit interests to certain employees (or subsequent replacements) of
Summit as disclosed to LIVE prior to the Closing Date and (ii) participations
and interests in particular films.
b. Sellers shall not sell, assign, or encumber any of their
interests in Summit and Summit shall not sell or assign any of its interest in
Summit N.V. or a material portion of its assets without LIVE's consent, except
in accordance with the terms of this Agreement.
c. Summit shall not pay the Individuals or their Affiliates
compensation in excess of the Ceiling Compensation.
d. Franco/Kiwi may elect, on behalf of the Individuals, to waive all
or part of any increase in the Base Compensation for one or more years, in which
case it may subsequently elect to increase the Base Compensation (in whole or in
part, and including retroactively to the first anniversary of the Closing Date)
up to the Ceiling Compensation. If Franco/Kiwi has elected to waive all or part
of any increase to the Base Compensation, and has not subsequently elected to
catch-up with such increase, then any portion of the waived increase shall not
be paid and shall not be a charge to earnings for purposes of calculating the
Call Purchase Price (i.e., only the Base Compensation plus actual increases
shall be a charge to earnings). In addition, each of the Individuals may elect
to defer all or part of their compensation, but to the extent this deferred
compensation has not been paid in full by the Call Closing Date, the Individuals
shall withdraw the unpaid amounts, and all such deferred compensation shall be a
charge to earnings for purposes of calculating the Call Purchase Price.
e. Summit and Sellers shall not agree to any alternative
acquisition, disposition, debt, or equity financing proposals that would
materially adversely affect LIVE's ability to secure the benefits of the Call
except as permitted by the terms of this Agreement.
f. Wachsberger agrees that he shall not compete with the activities
of Summit including, but not limited to, production, acquisition, and
distribution of motion pictures, acquisition
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and distribution of film licenses, and related matters, directly or through its
agents, for a period ending on the later of (i) * after the
Closing Date or (ii) * after Wachsberger gives LIVE the Termination
Notice. As a party hereto, LIVE shall be third-party beneficiary of such
agreement, and such agreement may not be amended without LIVE's consent. If
Wachsberger breaches this covenant not to compete, then Summit and LIVE shall be
entitled to injunctive relief and damages from Wachsberger as may be proven.
g. If Wachsberger either terminates his full-time exclusive
relationship with Summit (other than minor outside activities, including acting
as executive producer on outside films) for any reason (other than due to death
or disability) or gives the Termination Notice or if Summit materially breaches
the Agency Agreement or if Summit or an Individual materially breaches this
Agreement (subject in both cases to a fifteen-day notice and cure period), then
the following provisions shall apply:
I. LIVE shall have a thirty-day right to elect to cancel the
Agency Agreement.
II. LIVE shall have a thirty-day right to put to Summit LIVE's
entire interest in Summit in consideration for an immediate cash payment equal
to * plus interest thereon from the Closing Date at *, compounded quarterly,
less any distributions received through that date by LIVE from Summit, and LIVE
shall have the right to offset such amount against any fees owed to Summit under
the Agency Agreement.
III. The Call shall lapse.
h. Summit agrees that if LIVE so requests and at LIVE's expense, it
will cause the results of its operations to be audited by LIVE's firm of
independent accounts to facilitate a public offering of LIVE's or Holdings'
securities in which such financial statements may have to be included.
i. In consideration of the Agreements of LIVE and Holdings herein,
each Individual acknowledges that his relationship with LIVE during the period
prior to the Call Notice or the Call Lapse Date will bring Individual into close
contact with many confidential affairs of LIVE and its Affiliates, including
information about film acquisitions, costs, distribution strategies and other
business affairs and methods and other information not readily available to the
pubic. Individual agrees that he will keep secret all material confidential
matters of LIVE and its Affiliates which are not otherwise in the public domain
and will not intentionally disclose them to anyone outside of LIVE or its
Affiliates or Summit, either during or after the term hereof, except with LIVE's
written consent.
10. Call
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a. Exercise. LIVE shall have a call (the "Call") to purchase the
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entire remaining interest in Summit held by Sellers by delivering the Call
Notice to Sellers at the following times prior to the Call Lapse Date:
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i. At any time between the * and * anniversary of
the Closing Date.
ii. Prior to the second anniversary of the Closing Date, at any
time on or within four months after either (a) a public offering of equity
securities of LIVE or Holdings raising gross equity proceeds of $20 million or
more or (b) a sale of 80% or more of all of the stock or assets of LIVE or
Holdings.
b. Call Closing Date. The Call Notice shall specify the Call
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Closing Date, which shall be scheduled for a date no later than ninety days
after the Call Notice Date. After the Call Notice Date, LIVE's obligation to
close the acquisition shall be subject to customary conditions, including, but
not limited to (a) satisfactory completion of LIVE's due diligence, including
financial, tax, and audit review, (b) negotiation of definitive transaction
documentation (including customary representations and warranties) acceptable to
LIVE and Sellers in their reasonable good faith discretion, (c) receipt of
customary closing opinions and certificates, and (d) no material adverse changes
to Summit from the Call Notice Date through the Call Closing Date. LIVE and
Sellers shall use their best efforts to close the acquisition within ninety days
of the Call Notice Date, and the Call shall lapse if the Call Closing Date has
not occurred within 120 days of the Call Notice Date unless due to a default by
the Individuals or their Affiliates. On or prior to the Call Closing Date,
Sellers shall be entitled to withdraw from Summit the amount of any remaining
Priority Distribution pursuant to Paragraph 5.2(a) of the Partnership Agreement.
c. Payment of Call Purchase Price. If LIVE timely exercises the
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Call, the Call Purchase Price shall be paid to Sellers on the Call Closing Date
by two cashier's checks or wire transfers payable in immediately available
federal funds. The Call Purchase Price shall be payable * to Franco/Kiwi and *
to Garrett.
d. Disputes as to Call Purchase Price. In the event of any dispute
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between LIVE and Franco/Kiwi concerning the calculation or amount of the Call
Purchase Price, then on the Call Closing Date LIVE shall pay the Sellers the
greater of (i) 85% of Franco/Kiwi's good faith determination of the Call
Purchase Price based upon the financial information previously delivered by
Summit to LIVE or (ii) 100% of LIVE' good faith determination of the Call
Purchase Price, and the difference between the amount paid and 100% of
Franco/Kiwi's good faith determination of the Call Purchase Price shall be
placed in an interest-bearing escrow account (with interest to be paid in
proportion to the ultimate entitlement to the escrowed funds) with a third-party
escrow holder pending final determination of the Call Purchase Price pursuant to
arbitration in the manner set forth in Paragraph 15 hereof. Any claims relating
to the calculation of the Call Purchase Price must be submitted in writing
within six months after the Call Closing Date.
e. *
f. Executive Covenant. On the Call Closing Date, each of the
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Individuals shall execute the Executive Covenant in the form attached hereto as
Exhibit "E."
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g. Employment Contracts. If LIVE exercises the Call, Summit and
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each of the Individuals, if they are then actively employed by Summit, shall
enter into employment contracts with LIVE or Summit, which shall include
customary and standard provisions for similar employment contracts of the senior
executives of LIVE (except that the confidentiality and non-compete provisions
shall conform to the Executive Covenant attached as Exhibit "E"), with a term
ending on the earlier of (i) * from the Call Closing Date or (ii) * from the
Closing Date, and the Individuals' salaries shall be as follows:
Post-Call Salaries
Individual As of March 31, 1998
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Patrick Wachsberger *
Robert Hayward *
David Garrett *
The starting and continuing post-Call salaries shall be increased at the
beginning of each twelve-month period commencing on the first anniversary of the
Closing Date by the greater of five percent or the increase in the Los Angeles
region "All Urban Consumers" Consumer Price Index from the prior year. Upon the
Call Closing Date, the Individuals shall become eligible to participate in
LIVE's and Holdings' customary option, bonus, and benefit plans available to
their senior executives.
h. Post-Closing Audit. After the Call Closing Date, LIVE may cause
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there to be made a post-closing audit by an international accounting firm
mutually agreed to by LIVE and Franco/Kiwi to determine if, as of the Call
Closing Date, Summit Equity was less than the amount that the Call Purchase
Price was based on or if Summit Cash was less than the Cash Floor. If so, each
of Sellers agree that they shall return to LIVE their proportionate share (based
on their Percentage Interests in Summit that were sold) of the shortfall unless
Franco/Kiwi disagrees with the findings of the audit, in which case the
arbitration procedures set forth in Paragraph 15 shall apply. The cost of any
post-closing audit shall be borne equally by Sellers and LIVE.
i. Assignment. The Call shall not be assignable by LIVE to any
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third party other than LIVE or other Affiliates of LIVE.
j. Transfers of Interests. Sellers may transfer their interests in
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Summit among themselves or their heirs provided that prior to the Call Lapse
Date (a) Wachsberger shall at all times own, directly or indirectly, more than
* of Summit and (b) the Call shall continue to apply to the interest
transferred and the transferee shall execute an acknowledgment in favor of LIVE
to such effect. Prior to the * anniversary of the Closing Date, the Call
shall continue to apply with respect to any interest in Summit that is
transferred as permitted herein. *.
11. Summit Call Option. If LIVE does not give the Call Notice by the Call
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Lapse Date or if Sellers reject a Call applying New GAAP pursuant to Paragraph
22, then within eighteen
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months after the Call Lapse Date, Summit shall have an option to elect to
purchase all of LIVE's entire interest in Summit for the Call Purchase Price. In
addition, at all times (except after the Call Closing Date if the Call is
exercised) Summit shall have a thirty-day preemptive right of first refusal to
purchase all of LIVE's interest in Summit for the Call Purchase Price if LIVE
receives an offer that it wishes to accept to purchase any portion of its
interest in Summit from a third party, except if such purchase is for all or
substantially all of the assets of LIVE if such purchase includes the Agency
Agreement and the foreign rights to LIVE's films or if such purchase is by an
Affiliate of LIVE.
12. Accounting Principles. For purposes of calculating Summit Equity and
---------------------
Summit's earnings under the Call Formula, the Parties agree that the accounting
principles set forth on Exhibit "D" shall apply, even if such principles vary
from generally accepted accounting principles.
13. Press Releases. All press releases relating to the transactions
--------------
covered by this Agreement must be mutually approved by LIVE and Summit.
14. Expenses. The Parties shall bear their own expenses in connection
--------
with entering into this Agreement, with Summit paying the expenses relating to
the portion involving Sellers and the Individuals (such payment shall be
deducted in calculating Starting Equity).
15. Arbitration. Any and all disputes relating to this Agreement
-----------
(including all aspects of the Call Formula and the Call Purchase Price or the
application or determination of new GAAP) or any of the transactions
contemplated hereby, including the Agency Agreement and Partnership Agreement
(but excluding actions for injunctive relief) shall be subject to binding
arbitration before one arbitrator pursuant to the Commercial Rules of the
American Arbitration Association, with such arbitration to be held in Los
Angeles, California. The prevailing party (which shall be, in the event of a
dispute relating to the Call Purchase Price if funds have been escrowed, the
party entitled to the majority of the escrowed funds) in any such arbitration
such be entitled to recovery of reasonable attorney fees incurred in connection
with such dispute. If such dispute involves the calculation of Summit Equity,
Summit Cash, the Call Formula, the Call Purchase Price, or the single-picture
net profits payment under Paragraph 10(e), then the arbitrator shall
independently make the calculation based on the formulas, definitions, and
accounting principles set forth herein, but the arbitrator shall not be
constrained by management's or an auditor's initial calculation of such amount
even if such initial calculation falls within the range of reasonable
discretion. The decision of the arbitrator shall be final.
16. Notice and Cure. All alleged breaches hereof by any party shall be
---------------
subject to a thirty-day written notice and cure period before being treated as
an actual breach.
17. Representations and Warranties. LIVE and Holdings hereby represent
------------------------------
and warrant to the other Parties as follows:
a. LIVE is 100% owned by Holdings, and there are no outstanding
options to acquire any LIVE shares by any person.
12
b. The exercise price for Service Options is the same price as for
all the top executives of LIVE.
18. Integrated Agreement. This Agreement, together with all other
--------------------
agreements referenced in or attached hereto or referenced herein, shall
constitute the entire agreement among the Parties relating to the subject matter
hereof and supersedes any and all prior term sheets, negotiations, or
agreements. This Agreement may only be amended by a writing executed by all the
Parties. In the event of any conflict between this Agreement and any other
agreements referenced in or attached hereto, the provisions of this Agreement
shall control.
19. Governing Law. This Agreement shall be governed by the internal laws
-------------
of California (i.e. without regard to its conflict of law principles).
20. Good Faith. The parties shall interpret and perform the terms of this
----------
Agreement in the spirit of good faith and fair dealing.
21. Execution in Counterparts. This Agreement may be executed in
-------------------------
counterparts and transmitted by facsimile copy, each of which shall constitute
an original thereof.
22. Super-Special "If, If, If, If" Provisions. If the current GAAP
-----------------------------------------
provisions relating to the film industry ("Old GAAP") are modified by revised
rules ("New GAAP"), then at the time that New GAAP becomes mandatory to apply in
the preparation of financial statements, the provisions of this paragraph shall
apply.
a. At that time, Summit shall begin issuing two sets of financial
information pursuant to Paragraph 3.2 of the Partnership Agreement, one applying
Old GAAP and one applying New GAAP.
b. If LIVE exercises of the Call, LIVE shall elect to have the Call
Formula applied using either Old GAAP or New GAAP. If LIVE elects to use old
GAAP, then the provisions of this Paragraph 22(b) shall not apply. If LIVE
elects to use New GAAP, then, contemporaneous with the Call Notice, LIVE shall
submit a statement setting forth (a) the exact wording changes that it believes
are necessary to Exhibit "D" in order to conform it to New GAAP and (b)
confirmation that LIVE is calculating and reporting its own earnings and balance
sheet (including a restatement, if required by New GAAP) in accordance with the
language of the revised Exhibit "D" submitted by LIVE. If LIVE elects to
exercise the Call applying New GAAP, then Franco/Kiwi, on behalf of Sellers,
shall elect within 30 days to either accept or reject the Call. If Franco/Kiwi
elects to reject the Call, then either (x) LIVE shall have a ten business day
right to elect to use Old GAAP or (y) (a) the Call shall lapse, with the date of
rejection being the Call Lapse Date and (b) LIVE shall have 30 days to elect to
treat the rejection as though it were a Termination Notice for all purposes of
this Agreement, the Agency Agreement, and the Service Options.
13
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as
of the__ day of __________, 1998.
/s/ Patrick Wachsberger
_______________________________
PATRICK WACHSBERGER
/s/ Robert Hayward
_______________________________
ROBERT HAYWARD
/s/ David Garret
_______________________________
DAVID GARRETT
THE FRANCO/KIWI ALLIANCE, INC.
/s/ Patrick Wachsberger
By: __________________________________
Patrick Wachsberger, President
SUMMIT ENTERTAINMENT, LP.
By: The Franco/Kiwi Alliance, Inc.,
General Partner
/s/ Patrick Wachsberger
By: _________________________
Patrick Wachsberger, President
LIVE ENTERTAINMENT INC.
/s/ Mark Curcio
By: ____________________________
CEO
Title: ____________________________
FILM HOLDINGS INCORPORATED
/s/ Mark Curcio
By: __________________________
Title: VP
__________________________
14
EXHIBIT D
Accounting Principles
---------------------
*
1
example, if Summit receives a 10% commission on a picture, of which 5% is
deferred until after the production loan is repaid, and the Guarantee
Income for that Picture is sufficient for Summit to eventually realize 50%
of such deferred fees, then Summit will recognize its agency fee at a 7.5%
rate from first Dollar. If Summit is entitled to other deferments, (e.g. an
executive producer fee that is payable upon United States box office
performance) then such deferment will be recognized as income when the
payment obligation to Summit is triggered.
Income Recognition - Market Fees:
--------------------------------
For agency agreements where Summit is entitled to a fixed amount per
picture as compensation for costs of attending film markets, such fixed
amount will be recognized as income (or as an offset to costs) in the month
in which the applicable picture is first presented at a film market.
Actual costs of attending a film market will be allocated to agency
pictures which have no fixed charge in lieu of such costs and to any
pictures produced or acquired by Summit: (i) 50% in proportion to the total
number of theatrical pictures that are first presented at such film market
(including all agency pictures); and (ii) 50% in proportion to the budgets
of all such theatrical pictures.
Amortization:
------------
Amortization of film rights shall be made using the income forecast method
based on reasonable estimates of income to be received by Summit during the
first five years from the date of the first release of each film.
Residuals:
---------
Residuals shall be accrued and deducted at the time of recognition of the
income triggering the obligation to pay residuals. In the case of Guarantee
Income that is not specifically allocated to particular media, residuals
shall be calculated based on allocating: (i) 50% of such Guarantee Income
to theatrical revenues, 20% to video revenues, and 30% to television for
agreements which include all three rights; (ii) 75% of such Guarantee
Income to theatrical revenues and 25% to video revenues for agreements
which include theatrical and video rights but exclude television rights;
(iii) 75% of such Guarantee Income to theatrical revenues and 25% to
television revenues for agreements which include theatrical and television
rights but exclude video rights; and (iv) 40% of such Guarantee Income to
video revenues and 60% to television revenues for agreements which include
theatrical and television rights but exclude theatrical rights. For
purposes of the foregoing, video-on-demand shall be treated as a television
right.
Participations:
--------------
Participations shall be calculated based on the estimates of income used
for income forecast amortization and reasonable estimates of corresponding
expenses and shall be deducted based on the proportion of such estimated
income recognized each year.
2
Interest:
--------
Interest on film loans shall be capitalized as part of film costs until the
date the answer print for that film is produced (?Pre Delivery Interest?),
at which point any additional interest shall be deducted as an expense.
However, if Live changes its accounting practices such that Pre Delivery
Interest is a deductible expense on its financial statements (i.e., not
capitalized in film cost inventory), then Summit may treat Pre Delivery
Interest in the same manner for purposes of this Agreement. Whenever
interest is not capitalized and is treated as a deductible expense, it will
be added back in the calculation of earnings before interest and taxes for
purposes of the Call Formula.
3
EXHIBIT E
Executive Covenant
------------------
This Executive Covenant is given by ____________ in connection with the
acquisition by LIVE Entertainment Inc. ("LIVE") of an interest in Summit
Entertainment L.P., a California limited partnership which, together with its
subsidiaries and affiliates, conducts a film development, production and
distribution business throughout the world. In consideration of the
acquisition, the undersigned ("Executive") agrees that for the earlier of (i)
five (5) years after the Call Closing Date or (ii) eight years after the
Closing Date (the "Restricted Period"), the Executive shall be bound by the
terms set forth herein. (Capitalized terms used herein, and not defined herein,
shall be defined in the LIVE/Summit Omnibus Agreement.)
1. Executive acknowledges that the business of Summit and its Affiliates
are international in scope, that their products and services are marketed
throughout the world, that Summit and its Affiliates compete in nearly all of
their business activities with other organizations which are or could be located
in nearly all of their business activities with other organizations which are or
could be located in nearly any part of the world and that the nature of
Executive's services, position and expertise are such that he is capable of
competing with Summit and its Affiliates from nearly any location in the world.
2. During the Restricted Period, Executive shall not, directly or
indirectly, (i) engage in any business for its own account which is competitive
with the Businesses of Summit or Summit's Affiliates (collectively, "Competitive
Business"); (ii) enter the employ of, or render any services to, any person
engaged in a Competitive Business; (iii) become interested in a Competitive
Business in any capacity, including, without limitation, as an individual,
partner, shareholder, officer, director, principal, agent, trustee or
consultant; or (iv) induce any employee, customer or supplier of Summit or
Summit's Affiliates to terminate its relationship with Summit or Summit's
Affiliates (as the case may be). Notwithstanding anything to the contrary, (a)
Executive may acquire and/or retain, solely as an investment, and take customary
actions to maintain and preserve Executive's ownership of securities of any
corporation that are publicly traded, as long as Executive is not part of any
control group of such corporation and (b) the restrictions in this paragraph
shall lapse if Executive's employment with LIVE or Summit is terminated
(including constructive termination) without cause.
3. Executive acknowledges that his services to Summit will, throughout
his employment with Summit, bring Executive into close contact with many
confidential affairs of Summit and its Affiliates, including information about
film acquisitions, costs, distribution strategies and other business affairs and
methods and other information not readily available to the public, and plans for
future development. In recognition of the foregoing, Executive Covenants and
agrees:
a. That (without limiting LIVE's or Summit's rights under state law)
during the Restricted Period Executive will keep secret all material
confidential matters of Summit and its
1
Affiliates which are not otherwise in the public domain and will not
intentionally use or disclose them to anyone outside of Summit or its Affiliates
except with Summit's written consent and except for such disclosure as is
necessary in the performance of Executive's duties during his employment with
Summit; and
b. That Executive will deliver promptly to Summit on termination of
his employment with Summit or at any other time Summit may so request, at
Summit's expense, all confidential memoranda, notes, records, reports and other
documents (and all copies thereof) relating to Summit's and Affiliates'
business, which Executive obtained while employed by, or otherwise serving or
acting on behalf of, Summit, or which Executive may then possess or have under
his control (excluding Executive's rolodex).
4. Executive acknowledges that Executive's abilities are of a special,
unique, unusual, extraordinary and intellectual character which gives them
peculiar value, the loss of which cannot be reasonably or adequately compensated
in an action at law for damages and that a breach by Executive of the terms
hereof will cause Summit and LIVE irreparable injury. Executive agrees that
Summit and LIVE are entitled to seek injunctive and other equitable relief to
prevent a breach or threatened breach of this Agreement, which shall be in
addition to any other rights or remedies to which Summit and LIVE may be
entitled.
LIVE ENTERTAINMENT INC.
By: ______________________
Title: ______________________
SUMMIT ENTERTAINMENT, L.P.
By: ________________________
Title: ________________________
EXECUTIVE:
______________________________
2
SALES AGENCY AGREEMENT
between
SUMMIT ENTERTAINMENT N.V.,
SUMMIT ENTERTAINMENT L.P.
and
LIVE ENTERTAINMENT INC.
as of
March 31, 1998
LIBRARY AND NEW TITLES
SALES AGENCY AGREEMENT
Table of Contents
1. PARTIES............................................................. 1
2. PURPOSE............................................................. 1
3. RELATED DOCUMENTS AND CONTROL....................................... 1
a. Schedules...................................................... 1
b. Master Agreement............................................... 1
c. Inter-Party Agreements......................................... 1
d. Resolution of Conflicting Terms................................ 1
4. EFFECTIVE DATE AND TERM............................................. 1
5. DEFINITIONS......................................................... 2
6. ENGAGEMENT OF SUMMIT................................................ 6
7. DELIVERY............................................................ 7
a. Prior Licenses................................................. 7
b. Name/Likeness/Editing.......................................... 7
c. Picture Materials.............................................. 7
(i) Library Materials...................................... 7
(ii) New Pictures........................................... 7
d. Lab Rates...................................................... 7
8. AGENCY SERVICES..................................................... 7
a. General Obligation............................................. 8
b. Maximization of Gross Receipts................................. 8
c. Representation of Other Film Makers............................ 8
d. Display of LIVE Logo........................................... 8
(i) Press Releases......................................... 8
(ii) Film Markets........................................... 8
(iii) Trade Ads.............................................. 8
(iv) Offices................................................ 9
(v) Prospective Cure....................................... 9
e. No Authority to Bind........................................... 9
f. Approval of License Terms...................................... 9
g. Exploitation Restrictions...................................... 9
(i) Holdbacks.............................................. 9
(ii) Name/Likeness/Editing.................................. 10
(iii) Access to Materials.................................... 10
h. Collections.................................................... 10
i. Accounting Statements.......................................... 10
-i-
j. Registration of Royalties...................................... 10
k. Residuals and Deferments....................................... 11
9. AGENCY FEE AND EXPENSES............................................. 11
a. Payment of Fees................................................ 11
b. Payment Of Minimum Fees........................................ 11
c. Disputed Fees and/or Expenses.................................. 11
10. FIRST NEGOTIATION/FIRST REFUSAL OF NEW LIBRARIES.................... 12
11. SUSPENSION OF SERVICES.............................................. 12
12. TERMINATION......................................................... 12
a. Upon Notice by LIVE............................................ 12
b. Upon Departure of Key Man...................................... 12
13. GENERAL PROVISIONS.................................................. 13
a. Amendment/Waiver............................................... 13
b. Approval....................................................... 13
c. Arbitration.................................................... 13
d. Audit.......................................................... 13
e. Confidentiality................................................ 13
f. Counterpart Signatures......................................... 14
g. Default........................................................ 14
h. Errors and Omissions........................................... 14
i. Financing Documents............................................ 14
j. Indemnities.................................................... 15
(i) By LIVE................................................ 15
(ii) By Summit.............................................. 15
k. Integration.................................................... 15
l. Interpretation................................................. 15
m. No Partnership................................................. 15
n. Notices........................................................ 15
o. Reliance....................................................... 16
p. Reps/Warranties/Indemnities.................................... 16
(i) By LIVE............................................... 16
(ii) By Summit............................................. 16
q. Schedules...................................................... 16
r. Severability................................................... 17
-ii-
Schedule A: Minimum Accepting Prices for Minor Territories
Schedule B: Delivery Schedule
Schedule C: Rights Definitions
-iii-
SALES AGENCY AGREEMENT
----------------------
1a PARTIES: The parties to this agreement, which are subsequently
referred to collectively as "Parties", are:
. Summit Entertainment N.V., a corporation organized and existing under
the laws of the Netherlands Antilles, which is subsequently referred to
as "SENV";
. Summit Entertainment L.P., a limited partnership organized and existing
under the laws of the State of California, which is subsequently
referred to as "SELP"; and
. Live Entertainment Inc., a corporation organized and operating under
the laws of Delaware, which is subsequently referred to as "LIVE".
2a PURPOSE: As a description only, and without limiting or expanding upon
the terms of this instrument and the schedules attached hereto (if any), which
is subsequently referred to as "Agency Agreement" or "Agreement", the purpose of
this instrument is to set forth the terms and conditions of an agreement between
SENV and SELP, collectively referred to as "Summit", on the one hand, and LIVE,
on the other, in which LIVE engages Summit, subject to the terms and conditions
of this agreement as its exclusive agent to represent LIVE in connection with
the transfer to third parties of certain rights to LIVE's film library and
certain other motion pictures defined below.
3a RELATED DOCUMENTS AND CONTROL: This Agreement is one of several
documents that comprise the agreement between the Parties.
ai Schedules. As set forth in paragraph 13.q, this Agreement
incorporates certain schedules and exhibits (subsequently referred to as
"Schedules").
bi Master Agreement. The Parties to this Agreement are also among
the parties to that certain Omnibus Agreement dated as of _________, 1998
(subsequently referred to as "Master Agreement").
ci Inter-Party Agreements. The Parties to this Agreement and certain
other third parties may, from time-to-time, enter various inter-party agreements
which concern certain motion pictures developed and produced subsequent to the
date of this Agreement (subsequently referred to as "Inter-Party Agreement(s)").
di Resolution of Conflicting Terms. This Agreement will control in
the event of any conflict in terms between this Agreement and the schedules
attached hereto. The Master Agreement and any relevant Inter-Party Agreement
will control in the event of any conflict in terms between such agreements and
this Agreement.
-1-
4a EFFECTIVE DATE AND TERM: The effective date of this Agreement is March
31, 1998, which is subsequently referred to as the "Effective Date". The term
of this Agreement commences as of Effective Date and expires upon the expiration
of the audit rights set forth in paragraph 13.d below. Such period of time
subsequently is referred to as "Term". Within the period of the Term are the
Agency Term (defined in paragraph 5.zz) and the Distribution Term (defined in
paragraph 5.k). The Agency Term is the period of time during which Summit is
authorized to, and shall act as the exclusive agent of LIVE on the terms and
subject to the conditions of this Agreement. The Distribution Term is the
period during which Summit will service each License Agreement and be paid its
Agency Fee on Gross Receipts arising therefrom.
5a DEFINITIONS: As used in this Agreement defined terms have the meanings
set forth below, in the paragraphs referenced below, or on Schedule C.
ai "Accounting Statements" is defined in paragraph 8.i.
bi "Advances" means the minimum guarantees (which may be designated
"Advances" in the Summit Agreements) payable pursuant to the License Agreements
in consideration for the rights to Exploit any Licensed Rights which are paid in
cash, credit or kind (in all currency) and which are properly credited to the
Collection Account(s) or properly received by or properly credited to LIVE or
paid with the consent or at the direction of LIVE to any third party during the
Distribution Term of the respective License Agreement.
ci "Agency Fee" means *.
di "Agency Period" means each twelve-month period beginning April 1
and ending March 31. The first Agency Period begins April 1, 1998 and the last
Agency Period ends coincident with the Agency Term, March 31, 2003.
ei "Agency Term" means the period of time from the Effective Date and
continuing for five (5) years thereafter.
fi "Approval" means prior Notice of approval of, or assent to, a
particular matter or element, or permission to engage in a particular action or
course of action, which approval, assent, or permission LIVE may withhold in its
sole discretion, and which approval must be sought and given (if at all) in
accord with paragraph 13.b.
gi "Collection Account(s)" means that account (or those accounts,
including escrow accounts) designated by LIVE to which all Gross Receipts are
payable.
hi "Collection Fee" means *.
i. "Dispute Notice" is defined in paragraph 9.c.
-2-
j. "Distribution Expenses" means one (1) Market Charge and all of
Summit's customary out-of-pocket distribution expenses net of discounts and
rebates including without limitation, the reasonable and proper costs of
materials delivered to Licensees (e.g., costs of manufacture, storage, vaulting,
freight, delivery and courier costs), advertising, publicity (including
publicity events such as press conferences and the costs associated with the
attendance of key talent or director), publicist fees associated with a special
promotion (excluding Summit employees), outside legal expenses (to enforce any
subdistribution or third-party agreements), messenger and courier costs,
reasonable travel and entertaining costs (to the extent that such costs directly
relate to the Pictures) and miscellaneous expenses. For avoidance of doubt,
Distribution Expenses specifically include outside audit fees charged to Summit
(as opposed to LIVE) for audits of distributors (net of any recovery of audit
costs) which LIVE specifically requests Summit to conduct and specifically
exclude: (i) the cost of attendance by Summit at film markets but include the
costs of advertising, screenings, and the creation of promotional materials that
may be used at such markets; and (ii) amounts which are paid directly or
otherwise credited to Summit from third-parties for materials, audit expenses,
shipping, and the like.
k. "Distribution Term" means: (i) for LIVE agreements, from the
Effective Date to the date which is the earlier of the expiration of the
respective license agreement or the expiration of the Agency Term; and (ii) for
Summit Agreements from the effective date of such Summit Agreement until
expiration of such Summit Agreement.
l. "Dollars" means United States dollars.
m. "Effective Date" is defined in paragraph 4.
n. "Existing Library" means those Motion Pictures presently owned by
LIVE or represented by LIVE as Agent which have heretofore been released,
exhibited, or otherwise commercially Exploited by LIVE.
o. "Excluded Territory" means the territory presently within the
boundaries of the United States, Canada, and Bermuda and their respective
territories (including, without limitation, Puerto Rico), possessions, and, for
the exploitation of non-theatrical rights only, armed forces installations,
embassies, oil rigs, and other similar venues wherever located throughout the
world, and all ships, oil rigs and aircraft wherever located throughout the
world that fly the flag of such countries.
p. "Exploit" or "Exploitation" means the manufacture, exhibition,
broadcast, transmission, dissemination, reproduction, distribution, sale,
performance, publication, display, license, use, or exploitation by the means,
and in the manners and media authorized by this Agreement.
q. "Format Restrictions" is defined in paragraph 7.b.
r. "Gross Receipts" means an amount equal to the sum of (i) the
Advances; (ii) the Overages; and (iii) subject to case-by-case, good-faith
negotiation between Summit and
-3-
LIVE taking into account the extent of involvement of Summit in generating the
following source of revenue, amounts received by LIVE from co-producers for
production subsidies that arise from, or are attributable to, the License
Agreements, but only in the event that Summit renders services which are
reasonably requested by LIVE in connection therewith. Gross Receipts exclude:
(i) all sums not received or properly credited to the Picture to which the Gross
Receipts are attributable; (ii0 all sums paid by any third party for delivery
materials, (iii) all bank charges and withholding taxes; (iv) the amount, if
any, of the recovery from sublicensees or other parties as a result of an audit
or collection action (e.g., arbitration) (which is conducted by LIVE or, at
LIVE's request, Summit), unless and to the extent such amounts exceed the costs
of such audit or collection action, (v) all funds paid from the Collection
Account(s) (or escrow account, if any), (vi) amounts received from financiers
and/or investors as a loan to or an investment in LIVE and/or any Picture; and
(vii) revenues received or credited to Summit from third parties for costs
(e.g., for materials) charged to and paid for by (or on behalf of) such third
parties.
s. "Inter-Party Agreement" is defined in paragraph 3.c.
t. "Language" means (i) the original language version of the
Pictures; and (ii) the original language version of the Pictures dubbed or
subtitled (or otherwise alternatively communicated (e.g., simulcast)) in all
languages, spoken or unspoken, now know or hereafter discovered or devised.
u. "Library" means the Existing Library and, subject to paragraph 10,
any New Library.
v. "Library Fee" means *.
w. "License" means lease, license, sale, grant, transfer, and all
other means and manners of transfer of intellectual property consistent with the
United States Copyright Act of 1976 as amended.
x. "Licensee" means the person or legal entity to whom any Licensed
Rights are Licensed pursuant to a License Agreement.
y. "License Agreements" means all Summit Agreements and all LIVE
Agreements.
z. "Licensed Rights" means, to the extent that LIVE or its controlled
affiliates owns or controls rights to a Picture in the Territory, the (i)
exclusive Theatrical, Non-Theatrical, Public Video, Commercial Video, Home
Video, Pay TV, Free TV, Video-on-Demand and Pay-Per-View Rights as the same may
be exploited by any and all delivery systems and formats now known or hereafter
devised; (ii) exclusive Souvenir Program Rights for the territory of Japan, if
applicable; (iii) to the extent that LIVE agrees in any of the License
Agreements, Incidental rights directly related to the exploitation of the
foregoing (e.g. advertising, promotion, dubbing and subtitling); and (iv) to the
extent that LIVE agrees in any of the License Agreements, the non-exclusive
right to exploit excerpts (clips) of not more than three (3) minutes of the
Pictures
-4-
for educational, informational, and promotional purposes, including, without
limitation, the right to make such advertising materials available over the
internet and other interactive mediums but limited to exploitation in a linear,
continuous, and sequential manner. The Home Video Rights include Exploitation of
the Pictures by video disc, CD-ROM, DVD, DIVX, and all other formats and
delivery media now known or hereafter devised for purposes of viewing a motion
picture in a linear manner consistent with home video exploitation but not for
exploitation of ancillary rights such as video games or interactive media. The
Licensed Rights exclude the Reserved Rights.
aa. "LIVE Agreement" means an agreement confirmed in writing (i.e.,
exchange of correspondence, deal memo, or long-form agreement) which includes
all of the material terms set forth in the AFMA form international distribution
deal memo and in which any or all of the Licensed Rights to the Pictures are
Licensed for Exploitation within the Territory and which was concluded by LIVE
and the relevant distributor prior to the Effective Date of this Agreement.
bb. "Major Territories" means those territories so indicated on
Schedule A hereto.
cc. "Market Charge" means *.
dd. "Media" means the manners, means, and media of Exploitation that
comprise the relevant Rights.
ee. "Minimum Fees" means *.
ff. "Minor Territories" means those territories so indicated on
Schedule A hereto.
gg. "Motion Picture" means any feature-length theatrical motion
pictures, feature-length made-for-television motion pictures, and/or feature-
length made-for-video motion pictures but specifically excludes any television
series, documentary, or specialty programming (e.g, specialty formats such as
IMAX, but not digital Theatrical projection, to the extent the same or similar
projection methods and/or technologies may be considered a distinct format).
hh. "Motion Picture Copy" means the embodiment of a Motion Picture in
any physical form, including film, tape, cassette or disc. Where a specific
medium is limited to exploitation by a specific physical form, for example, the
exploitation of Videograms, then Motion Picture Copy with respect to such medium
is limited to such physical form.
ii. "New Deal Fee" means *.
jj. "New Library" is defined in paragraph 10.
kk. "New Library Fee" is *.
-5-
ll. "New Pictures" means Motion Pictures other than the Library to
which LIVE or its controlled affiliates owns or controls any of the Licensed
Rights for any of the Territory. For avoidance of doubt, New Pictures includes
The Ninth Gate (excluding Spain) as well as any Motion Pictures where LIVE is
agent for third parties.
mm. "New Picture Fee" means *.
nn. "Notice" means a communication in writing sent in accord with
paragraph 13.n.
oo. "Output Advance Fees" means *.
pp. "Output Overage Fees" means *.
qq. "Overages" means all other sums payable pursuant to a License
Agreement in addition to (or in lieu of) any Advance in consideration for the
right to Exploit any of the Licensed Rights (including "Overages" as defined and
designated in the Summit Agreements and any television or box office escalators
regardless of whether characterized in any License Agreement as an additional
Advance) which are paid in cash, credit or kind (in all currency) and which are
properly credited to the Collection Account(s) or received by or properly
credited to LIVE or paid with the consent or at the direction of LIVE to any
third party during the Distribution Term of the respective License Agreement.
rr. "Pictures" means the Library and the New Pictures.
ss. "Parties" is defined in paragraph 1 of this Agreement.
tt. "Recoupable Distribution Expenses" means, unless otherwise
Approved by LIVE, (i) all Distribution Expenses arising out of orders by Summit
from laboratories relating to the Picture in service of the License Agreements,
and (ii) all Distribution Expenses not included in clause (i) of this
paragraph *.
uu. "Reserved Rights" means all rights other than the Licensed Rights,
including, without limitation: (i) the underlying intangible property relating
to the Licensed Rights and the Picture, including all trademarks and copyrights;
and (ii) the right to Exploit the Picture: (a) in the Media, Language, and
Territory upon expiration of the Distribution Term; and (b) in all media,
languages, and territories not included within the Licensed Rights, including,
without limitation, Airline and Ship (unless LIVE agrees to license such Rights
in a particular License Agreement) Merchandising, Soundtrack Recording,
Novelization, Print Publishing, Music Publishing, Video Game, theme park, and
Remake and Sequel Rights.
vv. "Rights" means the right to Exploit the Picture and all rights
Incidental to such Exploitation. When preceded by a defined term denoting a
particular means, manner, or
-6-
medium of exploitation, (i.e., Free TV Rights), Rights is limited in meaning the
right to exploit the Picture in the means, manner, and medium comprising the
defined term.
ww. "Summit" means SENV and SELP.
xx. "Summit Agreement" means a written agreement negotiated by Summit
and confirmed in writing (i.e., exchange of correspondence, deal memo, or long-
form agreement) which includes all of the material terms set forth in the AFMA
form international distribution deal memo during the Agency Term, which is
executed by LIVE (or its assignee/designee such as a licensing intermediary)
after the Effective Date and during the Agency Term or the period four (4)
months thereafter, and in which any or all of the Licensed Rights to the
Pictures are Licensed for Exploitation in the Language within the Territory.
For avoidance of doubt, the term Summit Agreement excludes the LIVE Agreements.
yy. "Secondary Territories" means those territories so indicated on
Schedule A hereto.
zz. "SELP" is defined in paragraph 1.
aaa. "SENV" is defined in paragraph 1.
bbb. "Territory" means the Universe less the Excluded Territory.
ccc. "The Ninth Gate" means the theatrical motion picture presently
entitled "The Ninth Gate".
ddd. "Videogram" means any type of videocassette or video disc which
permits viewing a Motion Picture in a linear, continuous, and sequential manner
only.
6. ENGAGEMENT OF SUMMIT AS EXCLUSIVE AGENT: In consideration of the
mutual covenants contained herein and for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, LIVE engages Summit, and
Summit hereby accepts the engagement as the sole and exclusive agent of LIVE for
the purpose of negotiating the License Agreements during the Agency Term and
administering, servicing, and monitoring during the Distribution Term License
Agreements entered into during the Agency Term. Summit hereby acknowledges and
agrees that (i) Summit owns no right, title, or interest in the copyright to any
Picture or in the distribution rights to any Picture and (ii) LIVE reserves the
right to negotiate and conclude on its own behalf any deals for the License of
the Licensed Rights to the Pictures in the Territory and Language during the
Agency Term in its sole discretion, provided that LIVE shall not conclude any
deals without prior consultation with Patrick Wachsberger to avoid confusion in
the marketplace and/or inadvertent representations as to the status of the
Licensed Rights and provided further that LIVE shall pay Summit the Agency Fee
attributable to such deals as if they were Summit Agreements. Any inadvertent
and non-recurring failure by LIVE to consult with Patrick Wachsberger pursuant
to the foregoing sentence is not a material
-7-
breach of this Agreement and Summit's sole remedy for such failure shall be
LIVE's prospective cure.
7. DELIVERY:
a. Prior Licenses: Promptly upon execution of this Agreement, LIVE
shall provide Summit with details of (i) all prior sales still in effect and
LIVE Agreements, including rights and territories licensed and expiration dates
of all agreements therefor; and (ii) any limitations of the Licensed Rights to
the Pictures.
b. Name/Likeness/Editing: LIVE shall notify Summit of all credit
obligations, restrictions on use of name/likeness, and editing restrictions to
which the Pictures are subject, or will be subject, during the Distribution Term
("Format Restrictions").
c. Picture Materials:
(i) Library Materials: As soon as practicable after execution of
this Agreement by all Parties, LIVE shall deliver to, and provide access to
Summit all customary film and television materials necessary to service the
License Agreements. If any items do not conform to requirements set forth in the
License Agreements, or if LIVE fails to deliver any such materials or documents,
LIVE shall indemnify and hold Summit harmless (consistent with the indemnity
provisions set forth in paragraph 13.j) against all claims and damages arising
therefrom, except for any claims and damages arising out of Summit's loss of any
Agency Fees. Notwithstanding anything to the contrary in paragraph 5.tt, costs
incurred by Summit in correcting deficient delivery items or in creating
delivery items not delivered by LIVE are Recoupable Distribution Expenses
hereunder.
(ii) New Pictures: For each New Picture, as soon as practicable,
LIVE shall deliver to Summit (at LIVE's sole cost and expense) all documents and
materials set forth on Schedule B. If any items which LIVE is required to
deliver hereunder do not conform to requirements set forth on Schedule B, or if
LIVE fails to deliver any such materials or documents, LIVE shall indemnify and
hold Summit harmless (consistent with the indemnity provisions set forth in
paragraph 13.j) against all claims and damages arising therefrom except for any
claims and damages arising out of Summit's loss of any Agency Fees.
Notwithstanding anything to the contrary in paragraph 5.tt, costs incurred by
Summit in correcting deficient delivery items or in creating delivery items not
delivered by LIVE are Recoupable Distribution Expenses hereunder. All publicity
items set forth on Schedule B which are delivered by LIVE to Summit are for the
purpose of servicing the relevant License Agreements. Summit shall not create
any additional publicity materials without LIVE's Approval.
d. Lab Rates: Summit acknowledges and agrees that LIVE controls the
rates with all laboratories used to service the New Pictures and the Library;
however, if Summit is able to secure prices for materials at the same or other
laboratories of equal or better commercial reputation which are more than *
lower than those which LIVE is able to obtain, LIVE shall consult with Summit in
good faith to service such Pictures from such laboratory, provided that
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any rebates from such laboratory are paid to LIVE. For avoidance of doubt, in
the event that Summit and LIVE disagree as to which laboratory will service such
Picture, LIVE's decision, in its sole discretion, controls.
8. AGENCY SERVICES:
a. General Obligation: Summit shall render all services which are
customarily rendered by sales agents of similar quality and distinction in
connection with the licensing of international distribution rights for Motion
Pictures, including, without limitation, (i) identifying and negotiating with
prospective Licensees; (ii) provided LIVE complies with its delivery
requirements set forth in paragraph 7, assuming responsibility for and
coordinating the delivery to the Licensees of all required delivery materials
under the License Agreements; (iii) as set forth in paragraph 8.h, monitoring
and assisting in the collection of payments owing to LIVE under the License
Agreements; (iv) as set forth in paragraph 8.i, coordinating with, and providing
current reports and information to, LIVE's internal personnel to assist such
personnel in maintaining accurate information regarding the status of the
Licensed Rights for each Picture; (v) monitoring the compliance of Licensees
with LIVE's approval rights as may be set forth in and customarily enforced
under the License Agreements, including, without limitation, obtaining on LIVE's
behalf, any items, materials, or information from Licensees over which LIVE has
approval rights and thereafter providing the same (or causing the same to be
provided) to LIVE; and (vi) investigating reports of non-compliance by Licensees
of their obligations under the License Agreements.
b. Maximization of Gross Receipts: As agent of LIVE, during the
Agency Term, Summit shall act in good faith in its reasonable business judgment
to negotiate agreements for the License of any of the Licensed Rights to the
Picture with a view to maximizing the share of Gross Receipts available to LIVE
and that are commensurate with the terms for the license of such Rights then
being concluded by Summit for motion pictures of similar budgets and commercial
quality.
c. Representation of Other Film Makers: LIVE acknowledges that it has
been advised by Summit that Summit will act as the sales agent for third parties
and/or for Summit's own films. Summit shall not discriminate against the
Pictures in favor of Summit's own film or any third party's films, and shall not
use or attempt to use the Pictures in order to obtain better terms and
conditions for Summit's own films or any third party's films.
d. *
-9-
e. No Authority to Bind: Notwithstanding anything herein to the
contrary, Summit is not authorized to, and shall not execute any short or long-
form License Agreement on behalf of LIVE or to otherwise bind LIVE to any
License Agreement. No License Agreement is binding upon LIVE unless and until
the same has been executed by LIVE.
f. Approval of License Terms: LIVE retains the right to approve (in
accord with paragraphs 5.f and 13.b) the terms of all short and long-form
License Agreements negotiated by Summit. To facilitate Summit's performance of
its duties hereunder at film
-10-
markets, LIVE shall (i) designate by Notice an executive with the authority to
Approve License Agreements (with Amir Malin and Ken Schapiro hereby so
designated until further Notice and each, acting alone, with the power to so
Approve) and (ii) advise Summit by Notice prior to the beginning of such film
markets of the acceptable parameters for the License of Licensed Rights to the
New Pictures, including, without limitation, with respect to each Major and
Secondary Territory, a minimum guaranty, a proposed distribution term, and a
range of acceptable backend terms (as between LIVE and the prospective
Licensee). Notwithstanding the foregoing sentence, LIVE retains the right to
approve the terms of all short-form and long-form License Agreements negotiated
by Summit at the film markets and to execute such agreements. For avoidance of
doubt, LIVE's execution of any short or long-form License Agreement is
conclusively deemed Approval by LIVE of the form and substance of such License
Agreement.
g. Exploitation Restrictions: In negotiating and concluding License
Agreements, Summit shall impose the following contractual restrictions on
Licensees.
(i) Holdbacks: For each License Agreement, Summit shall
incorporate any "holdbacks" of which it has been advised by Notice by LIVE. LIVE
hereby notifies Summit of the following, standing "holdbacks".
(1a US Theatrical Release: For each New Picture which LIVE
intends to Theatrically release in the United States, Summit shall not
contractually authorize any Licensee to Theatrically release such Picture in the
Territory prior to its first United States release.
(2a HBO Release: For each Picture which LIVE advises Summit
is to have its worldwide premiere on the United States Pay TV service known as
"HBO", Summit shall not contractually authorize any Licensee to exhibit such
Picture in the Territory until the expiration of the forty-five (45) day period
immediately following the date of the initial exhibition of such Picture on
"HBO".
(3a Border Protection: For each Picture which Summit
intends to license for Free TV in Mexico, Summit shall incorporate into the
applicable License Agreement such "border protection" provisions of which LIVE
may have theretofore advised Summit.
(ii) Name/Likeness/Editing: Provided that LIVE has notified
Summit of all Format Restrictions to which a Picture is subject, or will be
subject, during the Distribution Term, Summit shall notify each Licensee of the
same and shall contractually require that such Licensees comply with such
restrictions. Summit acknowledges and agrees that it shall contractually
prohibit editing of the Pictures except for dubbing, subtitling, television
broadcast and airline conformity (if applicable), censorship or other
governmental requirements (in each case, however, subject to any applicable
Format Restrictions).
(iii) Access to Materials: Unless otherwise Approved by Live,
Summit shall ensure that License Agreements permitting the exploitation of the
Picture in the German, French, Italian, and Castillian Spanish languages provide
for access to the dubs of the all
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versions of the Picture in such languages for LIVE's exploitation thereof. LIVE
acknowledges and agrees that certain territories (e.g., Germany) typically
require as a condition of entering into a license agreement that the licensor
agree to prohibit the Exploitation of the Motion Picture in the language of such
territory outside such territory and LIVE shall not unreasonably withhold its
Approval of any License Agreement if the Licensee imposes such restriction as a
condition of such License Agreement and refuses to grant such access during the
license term of such License Agreement as a further condition thereof.
h. Collections: During the Distribution Term, Summit shall act
reasonably and diligently to collect all sums due under the License Agreements.
Summit shall, consistent with its custom and practice, obtain copies of, and
review the information contained in, the accounting statements (and other
performance based reports, such as theatrical box office and rentals figures,
video shipment and revenue figures, and television sales information) required
to be provided by the applicable Licensee under each License Agreement, and
shall provide a copy of such statement/report to LIVE. Summit may also make
recommendations to LIVE of the need to conduct audits and notify LIVE whether
termination and relicense and/or litigation or arbitration is advisable under
any given circumstances and shall cooperate with LIVE in connection therewith.
(For avoidance of doubt, LIVE retains the right to audit the books and records
of all Licensees directly and to pursue any legal action against any Licensee in
connection with any failure to make payments under the License Agreements or
otherwise.) LIVE shall advise Summit on a daily basis of all Gross Receipts
received the previous business day. Summit shall contractually require that all
Gross Receipts are paid into the Collection Account(s) (except as may be
required by licensing intermediaries) and shall promptly pay into the Collection
Account(s) any Gross Receipts which it receives directly from Licensees. With
the sole exception of amounts payable by third parties to Summit for materials
or other costs charged to Licensees or other third parties with LIVE's approval,
any sums to be paid to Summit hereunder will be invoiced to and paid by LIVE,
and Summit shall not offset any sums or cause any Licensee to account or to pay
such sums directly to Summit for any reason. Summit shall not claim any tax
credits in connection with the Pictures, all of which tax credits are the sole
property of LIVE.
i. Accounting Statements: Not more frequently than monthly and not
less frequently than quarterly, Summit shall provide LIVE detailed statements in
a form mutually agreeable to LIVE, including a summary of all distribution
agreements including minimum guarantees, the amount of the minimum guarantees
paid to the date of the statement and the amounts of the minimum guarantees
outstanding, Gross Receipts during the period, all Distribution Expenses
incurred during the reporting period, and all Agency Fees accrued, and claimed
during the period of the statement, together with invoices, itemized
accountings, and other customary detailed documentation as LIVE may reasonably
require ("Accounting Statements").
j. Registration of Royalties: For the avoidance of doubt, LIVE is
solely entitled to register the Picture with the appropriate collection agencies
for cable retransmission royalties, mechanical royalties, blank tape levies and
other similar royalties available in the Territory with it being expressly
understood that (i) such revenues, royalties, and levies are
-12-
excluded from "Gross Receipts" under this Agreement, and (ii) Summit does not
have (and will not have) any interest in such revenues, levies, and royalties.
For avoidance of doubt, Summit has no obligation hereunder to service the
collection of such revenues, levies, and/or royalties.
k. Residuals and Deferments: For avoidance of doubt, LIVE is solely
responsible for any deferments, profit participations, or residuals payable to
any individual or entity for services in connection with the Picture.
9. AGENCY FEE AND EXPENSES: In compensation for its services hereunder,
LIVE shall pay Summit the Agency Fee. The Agency Fee is the minimum payable to
Summit for its services in connection with the Picture and the Licensed Rights
thereto. Except as provided at law or by court order, LIVE shall neither
deduct, retain nor withhold from the Agency Fee any sums for withholding taxes
or other charges, fees, costs, or expenses.
a. Payment of Fees and Expenses: Subject to paragraph 9.b, LIVE shall
pay Summit the aggregate of the Library Fee and New Picture Fee and all
Recoupable Distribution Expenses within thirty (30) days of receipt of each
Accounting Statement. *
b. *
c. Disputed Fees and/or Expenses: In the event that LIVE (in its
sole discretion) disputes the amount of any Agency Fee and/or Recoupable
Distribution Expenses which are claimed by Summit on any Accounting Statement,
within thirty (30) days (subject to notice and cure as set forth in paragraph
13.g) of its receipt of Summit's Accounting Statement on which such disputed
fees and expenses are claimed, LIVE shall by Notice to Summit set forth: (i)
that it disputes such claim, (ii) the amount of such claim disputed, and (iii) a
detailed explanation of the reason(s) LIVE disputes such claim ("Dispute
Notice"). Failure by LIVE to provide such Notice is deemed Approval of such
Accounting Statement and the claimed Agency Fee and Recoupable Distribution
Expenses; provided that such failure does not prejudice LIVE's rights to audit
Summit as set forth in paragraph 13.d and to dispute any sums previously paid as
a result thereof. Upon receipt of any Dispute Notice, Summit may initiate
arbitration proceedings against LIVE (and any other proper party). If Summit
elects to proceed to arbitration, such arbitration must be conducted in accord
with paragraph 13.c of this Agreement, and both LIVE and Summit hereby waive any
"waiting" or "cooling off" period and agree that if they cannot agree on a
single arbitrator within ten (10) business days of the date Summit files and
serves it initial pleading in such arbitration, AFMA may appoint an arbitrator
and both Parties hereby waive any objection to such appointment.
10. FIRST NEGOTIATION/FIRST REFUSAL OF NEW LIBRARIES: If during the Agency
Term LIVE acquires any third-party library product, LIVE shall negotiate in good
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faith with Summit for thirty (30) days prior to negotiating with any other party
for agency services in the representation of such library product. During such
period, Summit shall conduct due diligence of such library product, and LIVE
shall use its commercially reasonable best efforts to provide Summit with all
documents reasonably necessary for Summit to determine whether to represent such
library product. *.
11. SUSPENSION OF SERVICES: If, during the Agency Term, after using
commercially reasonable best efforts, LIVE is unable to secure financing for a
New Picture from at least two (2) independent financial institutions which do
not have any interest in any other sales agent on the sole grounds that Summit
is the sales agent for LIVE or that Summit refuses to accede to commercially
reasonable terms in any inter-party agreement (see paragraph 13.i), LIVE shall
present Summit with letters signed by representatives of both such financial
institutions attesting to such facts. Thereafter, Summit has three (3) business
days in which to give Notice to LIVE that it will attempt to arrange production
financing, and unless Summit is able to present to LIVE within ten (10) business
days thereafter a customary term sheet signed by a duly authorized
representative of a financial institution on terms comparable to those LIVE
would have been able to obtain from either of the two (2) financial institutions
which rejected Summit (which term sheet may include Summit providing any portion
of the financing or gap financing on customary terms), LIVE may proceed to
finance the New Picture with either or both such financial institutions and both
Summit and LIVE will be relieved of their respective rights and obligations to
each other for such New Picture. *.
12. TERMINATION:
a. *
b. *
13. GENERAL PROVISIONS:
a. Amendment/Waiver: This Agreement may not be modified orally and
no waiver, amendment or modification shall be binding or effective unless in
writing and signed by both Parties.
b. Approvals: The "Party" (meaning either Summit or LIVE as the
circumstances and provisions hereof may dictate) seeking approval must provide
the Party from which Approval is sought a Notice containing a clear statement of
the request of Approval reasonably in advance of the event or the initiation of
the action or course of action for which approval is sought to permit a
meaningful response, but (except as provided below) not less than five (5) days.
The Party from which approval is sought, if it approves the request, must do so
by Notice to the Party seeking approval. Unless otherwise provided for in this
Agreement, any request for Approval which is not granted by Notice within seven
(7) business days from receipt of the Notice requesting Approval is deemed
disapproved. The Parties acknowledge and understand that time is of the essence
for any Notice by Summit requesting Approval of a proposed License, especially
at major film markets. Accordingly, LIVE shall use best efforts to
-14-
respond within seventy-two (72) hours of receipt of requests for Approval of
License Agreements and as promptly as the circumstances require for Approval of
short-form License Agreements at film markets (but not more than twenty-four
(24) hours).
c. Arbitration: This agreement is subject to binding AFMA
arbitration in English in Santa Monica, California, and is to be construed,
interpreted, and enforced in accord with the laws of the State of California,
excluding California's choice of law provisions. Accordingly, LIVE and Summit,
each as to and for the benefit of the other hereby irrevocably submit to the
jurisdiction of courts of the State of California and the United States for the
purpose of any action, suit or proceeding arising out of or related to the
subject matter of, or transactions contemplated by, this Agreement. The
prevailing party in any action related to or arising out of this agreement is
entitled to recover all attorney's fees and costs (including expert costs) in
bringing or defending such action. For avoidance of doubt, in the event the
Parties arbitrate any dispute involving the nonpayment of funds by LIVE to
Summit, and if Summit is the prevailing party in such arbitration, the
arbitrator shall award interest on any sums awarded to Summit at the statutory
rate from the date such sums became due to Summit under this Agreement.
d. Audit: Upon thirty (30) days advance Notice, LIVE may audit
Summit's books and records for the Picture during normal business hours at the
offices where such books and records are kept in order to verify all data
reported by Summit to LIVE. Summit shall make such books and records available
at its regular place of business in the United States, if any. LIVE's right to
audit each accounting period terminates if such audit is not commenced within
three (3) years from the close of such period. Summit's books and records may
be audited no more than once annually. If Summit is found as a result of such
audit to have overcharged any Library Fee, New Picture Fee, or Recoupable
Distribution Expenses withheld any sums due to LIVE hereunder for any reason,
save as provided for in this Agreement, Summit shall forthwith pay the same to
LIVE. If such audit reveals an error to the detriment of LIVE in excess of one
hundred thousand Dollars (US$100,000) in respect of the period under audit for
all Pictures under audit, excluding any errors in allocation between Pictures,
Summit shall pay the amount of the resulting underpayment to LIVE and pay all
reasonable audit costs incurred by LIVE.
e. Confidentiality: The terms of this Agreement are confidential.
Neither party shall disclose the terms of this Agreement to any third party
other than (i) as may be required by applicable law or legal process, (ii) to
its respective officers, directors, employees and advisors on a need-to-know
basis, and (iii) to profit participants on the Pictures and/or LIVE's financiers
and investors. Neither Party shall issue any form of press release regarding
this Agreement without the written consent of the other Party and after any
initial press release neither party shall communicate to any non-party
statements other than to the effect that Summit is the exclusive sales agent of
LIVE for the Pictures. Each Party agrees to indemnify and hold the other
(including its officers, directors, partners, shareholders, employees and
agents) harmless from all claims and expenses (including reasonable outside
attorneys' fees) arising out of breach by it of this provision.
-15-
f. Counterpart Signatures: This letter agreement may be executed in
one or more counterparts and transmitted by facsimile, each transmission of
which is deemed an original, and all of which, when taken together, constitute
one and the same instrument.
g. Default: No breach by either Party of any term or condition
herein shall be deemed material until the other Party has given Notice to the
breaching Party and such Party fails or refuses to substantially cure or correct
the applicable breach after such Notice is served within: twenty (20) days for
monetary breaches and for LIVE's failure to issue a Dispute Notice and thirty
(30) days for non-monetary breaches. Moreover, if the Party in breach fails to
cure either a monetary or a non-monetary breach within such prescribed time
period, such Party is thereafter deemed in default of this Agreement, and the
Party not in breach, at such Party's election, may terminate this Agreement by
Notice to the other Party. *
h. Errors and Omissions: LIVE shall maintain in full force and
effect during the first three (3) years after delivery of each New Picture (and
thereafter if LIVE or any assignee of LIVE continues such coverage) standard
form producer's liability insurance (error and omissions insurance) with limits
of not less than one million Dollars (US$1,000,000) per occurrence and three
million Dollars (US$3,000,000) total and with a deductible not greater than ten
thousand Dollars (US$10,000) for acquired New Pictures, thirty thousand Dollars
(US$30,000) for New Pictures produced by LIVE, and fifty thousand Dollars
(US$50,000) for Library Pictures, naming SENV, SELP, and Proscenium Pictures,
Ltd. and their officers, employees, representatives, attorneys, successors, and
assigns as additional insureds. Such insurance coverage shall extend to all
customary uses of the film(s) by Summit hereunder as are covered by customary
E&O policies. LIVE shall ensure that the errors and omissions may not be
terminated without thirty (30) days prior written notice to the above-mentioned
additional insured parties and the certificates issued naming such parties as
additional insured entities shall include statements to this effect.
i. Financing Documents: In the event that LIVE elects to "gap
finance" any Pictures, at LIVE's request, Summit shall negotiate in good faith
and execute all documents reasonably required to permit LIVE to conclude the
production financing of each Picture, including without limitation a customary
inter-party agreement and any document reasonably and customarily required by a
completion guarantor.
-16-
j. Indemnities:
(i) By LIVE: LIVE shall indemnify Summit, its affiliates,
officers, directors, partners, employees, exhibitors, licensees, and assignees,
against any and all claims, liability, damages, costs and expenses, including
attorney's fees, in connection with any third party claim or action arising out
of or relating to: (i) any breach by LIVE of any representation or warranty
herein; and (ii) the License Agreements and any financing arrangements for the
Picture, provided that Summit has not engaged in gross negligence or intentional
conduct directly giving rise to such action, (e.g., Summit Licensing any of the
Licensed Rights exclusively to two (2) or more Licensees for any overlapping
territory or territories, distribution term, and language(s), Summit executing
any License Agreement without LIVE's Approval and signature, or Summit failing
to include in any agreement the holdbacks set forth in paragraph 8.g.(i)) and to
the extent not resulting from a material breach by Summit of its obligations
under this Agreement.
(ii) By Summit: Summit shall indemnify LIVE, its affiliates,
officers, directors, partners, employees, exhibitors, licensees, and assignees,
against any and all claims, liability, damages, costs and expenses, including
reasonable attorney's fees, in connection with any third party claim or action
arising out of or relating to any material breach by Summit of its obligations
under this Agreement, or any gross negligence or intentional conduct by Summit,
directly giving rise to such action.
k. Integration: This Agreement, the Master Agreement, the Schedules,
and any Inter-Party Agreement(s) contains the entire agreement and understanding
between the Parties hereto with respect to the subject matter hereof and the
transactions contemplated hereby and supersede any and all prior or
contemporaneous oral and written agreements, promises, statements,
representations and information given by either Party. Accordingly, by their
signature below, each Party expressly waives in favor of the other any right to
rely on any such negotiations, understandings or representations, if any, and
this document is the sole embodiment of the agreement between the Parties.
l. Interpretation: This Agreement has been negotiated at arms-length
between persons knowledgeable in the matters dealt with herein. In addition,
each party has been represented by experienced and knowledgeable legal counsel
or has otherwise waived such right. Accordingly, any rule of law, including
without limitation section 1654 of the California Civil Code, or any legal
decision that would require interpretation of any ambiguities in this Agreement
against the Party that has drafted it, is of no application and is hereby
expressly waived.
m. No Partnership: Nothing herein contained constitutes the
formation of any partnership or joint venture between the parties hereto or
establish any agency relationship between them. This Agreement is not for the
benefit of any third party and should not be deemed to give any right or remedy
to any such party whether referred to herein or not.
n. Notices: All Notices required hereunder must be in writing and
transmitted either by facsimile or express courier. All Notices to Summit shall
be sent to:
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Summit Entertainment N.V.
Castorweg 22-24
Curacao, Netherlands Antilles
Telephone: 5999.618.985
Facsimile: 5999.616.279
Attn: Lourdes Penzo
with a copy to:
Summit Entertainment, L.P.
2308 Broadway
Santa Monica, CA 90404
Telephone: 310.315.6041
Facsimile: 310.828.4132
Attn: Bob Hayward and Andrew Matosich
All Notices to LIVE shall be sent to:
LIVE Entertainment Companies
15400 Sherman way, Suite 500
Van Nuys, California 91406
Telephone: (818) 988 5060
Facsimile: (818) 788 3153
Attn: Amir Malin and Ken Schapiro
Any Notice is deemed to have been duly served if correctly addressed and sent by
facsimile or courier to the relevant party at that Party's designated office
above (as may be changed from time to time by Notice to the other Party). Any
Notice so given is deemed served: (i) if sent by facsimile, by the later of
twenty four (24) hours from its transmission or the commencement of normal
business hours at its destination (if such Notice is sent outside of normal
business hours at such destination); and (ii) if sent by courier, within three
(3) business days of the date that such courier package is sent.
o. Reliance: No person, whether or not an officer, agent, employee,
or representative of any party, has made or has any authority to make for or on
behalf of that Party any agreement, representation, warranty, statement,
promise, arrangement or understanding ("Representations") not expressly set
forth in this Agreement. Accordingly, the Parties acknowledge that in entering
into this Agreement, they have not relied upon any Representations that are not
expressly set forth herein.
p. Reps/Warranties/Indemnities:
(i) By LIVE: LIVE hereby represents and warrants to Summit that:
(i) it has full and complete authority to enter into this Agreement; (ii) it has
the right and authority to grant the Licensed Rights in the Territory and
Language during the Term free and clear of any
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claims, liens, charges or encumbrances which will frustrate Summit's performance
of its obligations under this Agreement; (iii) subject to the restrictions
described in paragraph 7.b above, there are no rights of approval or control
held by third parties which will frustrate Summit's performance of its
obligations under this Agreement; and (iv) to the best of its knowledge there is
no litigation or threatened litigation involving the Pictures or the Rights
which will frustrate Summit's performance of its obligations under this
Agreement. The individual signing on behalf of LIVE below hereby represents and
warrants that he or she is duly authorized to sign on behalf of LIVE and that
LIVE has complied with all corporate formalities predicate to the license of the
Rights and the execution of this Agreement.
(ii) By Summit: Summit hereby represents and warrants that it has
full and complete authority to enter into this Agreement and that the individual
signing on behalf of Summit below is duly authorized to sign on behalf of Summit
and that Summit has complied with all corporate formalities predicate to the
execution of this Agreement.
q. Schedules: This Agreement includes and incorporates the following
Schedules that are attached hereto and incorporated herein by this reference:
Schedule A: Major, Secondary And Minor Territories
Schedule B: Delivery Schedule
Schedule C: Rights Definitions
r. Severability: If any of the provisions of this Agreement become
invalid, illegal or unenforceable in any respect under any law, for any reason,
such provision is deemed automatically adjusted to the minimum extent necessary
to conform to the requirements for validity as declared at such time and, as so
adjusted, is deemed a provision of this Agreement as though originally included
herein. In the event that the provision invalidated is of such a nature that it
cannot be so adjusted, the provision is deemed deleted from this Agreement as
though such provision had never been included herein, and the validity, legality
and enforceability of the remaining provisions hereof are not in any way
affected or impaired. In either instance, the parties shall negotiate in good
faith a substitute provision which they reasonably believe to be valid and
enforceable and which puts each party in a comparable position to that in which
it would have been but for the find of illegality, invalidity, or
unenforceability.
IN WITNESS WHEREOF, Summit and LIVE entered into this Agreement as of the
Effective Date.
Summit Entertainment N.V. Summit Entertainment L.P.
/s/ Lourdes Gingori-Perzo /s/ Bob Hayward
By: Lourdes Gingori-Perzo By: Bob Hayward
Its: Managing Director Its: COO
-19-
Live Entertainment Inc.
By: /s/ Mark Curcio
Its: CEO
-20-
SCHEDULE A
to Sales Agency Agreement
LIVE/ SUMMIT
dated as of March 31, 1998
*
-1-
SCHEDULE B
to Sales Agency Agreement
LIVE
dated as of March 31, 1998
DELIVERY SCHEDULE
-------- --------
Delivery of each Picture shall consist of LIVE making physical delivery of, or
providing irrevocable access to, the Primary Delivery Items as set forth below.
All Primary Delivery Items shall be delivered to Summit at LIVE's cost: (i)
without the logos of third parties that are not for use in the Territory such as
any applicable logos of the Picture's distributor in North America other than
LIVE; (ii) without the United States censorship rating tag; and, (iii) with the
correct credit block and copyright notice to be used in the Territory. The
elements contained in Paragraphs 1.a to 1.d shall conform to the final version
of the Picture and the trailer. All elements, including without limitation all
photography required under Paragraph 1.e, must be approved by LIVE and any other
individual or entity (e.g., talent) with approval thereover prior to delivery.
The Additional Delivery Items sets forth those additional items which Summit
shall be entitled to receive, upon request, for delivery to subdistributors to
the extent such materials and documents are available and necessary under the
respective distribution agreement.
All of the materials and documents set forth herein shall be delivered to Summit
Entertainment L.P., 2308 Broadway, Santa Monica, California 90404 for the
attention of Kaye Cooper-Mead.
Where the following provides for Summit to have laboratory access or access or
be given an access letter, such access shall be given by LIVE to Summit at no
charge via a laboratory access letter that is substantially in the form of the
model laboratory access letter in Exhibit 1 attached hereto.
1. PRIMARY DELIVERY ITEMS:
a. FEATURE 35MM PRINT ELEMENTS:
i. Interpositive: Access to one (1) 35mm interpositive of the Picture
feature, fully color-timed and conformed, to be manufactured in
first generation from the original Picture negative after the
final answerprint has been approved.
ii. Internegative: Access to one (1) 35mm internegative of the Picture
feature produced from a first generation 35mm interpositive of the
Picture referred to in Paragraph 1.a.i above, fully color-timed
and conformed to the final version of the Picture.
-1-
iii. Checkprint: Access to one (1) complete final sample 35mm composite
positive checkprint from the internegative of the Picture referred
to in Paragraph 1.a.ii above.
iv. Textless Backgrounds: Access to color background textless sections
(i.e. without any superimposed lettering) interpositive,
internegative and checkprint of the main and end titles and all
descriptive titles, including the backgrounds for inserts, if any,
in the Picture feature and of any other parts of the Picture
feature which contain superimposed lettering.
b. FEATURE SOUND ELEMENTS:
i. Optical Sound Negative: Access to, one (1) 35mm Dolby stereo
(SR/SR-D) original optical soundtrack negative of the Picture
feature, in good physical condition, fully cut, edited, scored and
assembled and conformed in all respects to the approved final
version of the Picture.
ii. 3 or 4 Track Mono Magnetic Sound Master: Irrevocable access to the
35mm 3 or 4 track monaural full coat magnetic sound master,
containing separate dialogue, music and sound effects tracks fully
conformed to the final version of the Picture.
iii. Stereo Print Master: Access to, one (1) 35mm Dolby stereo 2-track
full coat magnetic sound master fully conformed to the final
version of the Picture. If the picture is prepared in Dolby SR-D,
access to the 35mm six track printmaster.
iv. Magneto Optical Disc: If the Picture is prepared in Dolby SR-D,
access to one (1) magneto optical disc conformed to the final
version of the Picture and with the correct logo music to be used
in the Territory.
v. Music and Effects Tracks: If the Picture is prepared in Dolby SR-
D, delivery of and access to, a six track discrete Dolby SR-D
music and effects master of the Picture. In addition, delivery of
and access to, a six track Dolby SR music and effects master of
the Picture, containing a stereo configuration of
left/center/right/ surround, optional material on track 5 and a
complete discrete dialogue stem on track 6. If the aforesaid six
track Dolby music and effects master does not exist, then delivery
of and access to a 35mm 4 track Dolby stereo combined music and
effects master fully conformed to the final version of the Picture
with a stereo configuration of left/right/center/surround and a
separate 35mm single stripe monaural dialogue guide track.
c. TRAILER ELEMENTS:
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All items below shall conform to the final version of the trailer that is to
be used for the theatrical release of the Picture as well as any so-called
"teaser trailers".
i. Interpositives: Access to one (1) 35mm interpositive of the
trailer produced from the original 35mm negative of the trailer
and, if applicable, one (1) set of textless background
interpositive section(s) for any parts thereof where titles,
credits or inserts are over action (and not over black).
ii. Internegative: Access to one (1) 35mm internegative of the trailer
and, if applicable, textless background sections for any parts
thereof where titles, credits or inserts are over action (and not
over black).
iii. Optical Soundtrack: Access to one (1) 35mm Dolby stereo optical
soundtrack negative of the trailer in good physical condition,
fully cut, edited, scored and assembled and conformed in all
respects to the approved final version of the trailer.
iv. Checkprint: Access to one (1) 35mm composite checkprint of the
trailer produced from the internegative and optical soundtrack
referred to in Paragraphs 1.c.ii and 1.c.iii above, respectively,
fully cut, edited and assembled, main and end titled, conforming
in all respects to the final approved version of the trailer.
v. Music and Effects Master: One 35mm Dolby stereo music and effects
master of the trailer of the Picture conformed in all respects to
the final approved version of the trailer.
vi. Mono Magnetic Master: One 35mm 4-track mono magnetic master of the
trailer of the Picture with separated music, effects, dialogue and
narration.
vii. Two Stripe Print Master: One 35mm Dolby stereo 2-track full coat
sound master of the trailer of the Picture conformed in all
respects to the final approved version of the trailer.
viii. Laboratory Access: Laboratory access to: (i) the original 35mm
trailer negative; (ii) the 35mm optical soundtrack negative of the
trailer; (iii) the 35mm 4 track full coat magnetic master of the
mix for the trailer with separated dialogue, music, effects and
narration tracks; and, (iv) the music and effects master of the
trailer of the Picture.
d. VIDEO MASTERS: Must be direct film to tape transfers (conversions not
acceptable).
i. Digital PAL Masters: Access to D-1 PAL videotape masters of the
Picture in the fully panned and scanned and letterbox formats,
with stereo composite mix on channels 1 and 2 and stereo music and
effects tracks only on
-3-
channels 3 and 4 and the textless background sections (if
applicable) included after the Picture.
ii. Digital NTSC Masters: Access to D-1 NTSC videotape masters of the
Picture in the fully panned and scanned and letterbox formats,
with stereo composite mix on channels 1 and 2 and stereo music and
effects tracks only on channels 3 and 4 and the textless
background sections (if applicable) included after the Picture.
d. PUBLICITY ITEMS:
i. Press Kit: One (1) press kit containing: (i) production notes
relating to the production of the Picture; (ii) a list of the cast
and crew used in the production of the Picture; (iii) biographies
of the major cast members in the Picture, director, writer,
producer and the director of photography; (iv) available feature
stories and interviews, whether written or tape recorded; and (iv)
copies of available reviews of the Picture.
ii. Black & White Photography: Irrevocable access to all original
approved black and white negatives and delivery to Summit of one
set of 75 approved 8 x10 inch dupe negatives and two 8 x 10 inch
prints of each of the 75 approved stills. All of said stills shall
be of reproductive quality and suitable for advertising and
publicity purposes. Each such photograph shall bear notations
identifying the persons and subject matter.
iii. Color Photography: Irrevocable access to a set of all original
approved color transparencies, color prints and negatives for such
prints and/or color contact sheets taken or photographed in
connections with the Picture and delivery of a set of not less
than 125 dupe color transparencies produced therefrom depicting
various aspects of the production and location of the Picture.
Each dupe color transparency shall have annexed to it notations
which identify the personnel and subject matter appearing therein,
and shall be suitable for reproduction for advertising and
publicity purposes.
iv. Advertising Materials: Irrevocable access to the original
materials relating to the key artwork and poster and delivery to
Summit of a textless chrome of the advertising art, textless 8 x
10 inch black and white still, 8 x 10 inch negative of the artwork
and stat of the credit block and all printed matter for the one
sheet poster and print advertisements used for the Picture and for
making color separations for the one-sheet poster.
f. DOCUMENTS:
i. Continuity Script and Spotting List - Feature: Delivery of a
clearly legible typewritten copy of the detailed, final language
dialogue and action
-4-
continuity of the Picture with spotting list ("Dialogue/Continuity
List"). The Dialogue/Continuity List shall contain all the
dialogue, narration, song vocals, main and end title credits, as
well as a cut-by-cut description of the Picture action, conforming
exactly to the photographic action and soundtrack of the final
version of the Picture in such form as to be suitable for
transmittal to censorship authorities and for use in connection
with dubbing and subtitling the Picture. The Dialogue/Continuity
List shall include a statement as to the "action to action" length
of each reel of the Picture.
ii. Combined Dialogue/Continuity & Spotting List - Trailer: Delivery
of a clearly legible typewritten copy of the detailed, final
combined dialogue/continuity with spotting list of the trailer of
the Picture.
iii. Copyright Certificates: When available, and if necessary to meet
delivery requirements under a License Agreement, delivery of
copies of the copyright certificates for the Picture and
screenplay thereof in the United States, to be delivered promptly
after the issuance of the initial certificates by the United
States Copyright Office provided, however, that if said
certificates are not available to LIVE at the time of Delivery, a
copy of the copyright applications (Forms PA), accompanied by
proof of payment of the copyright application fees, will be
delivered to Summit at the time of Delivery with a copy of the
original copyright certificates being delivered to Summit when
available.
iv. Copyright Notice: Delivery of a statement in English indicating
the correct copyright notice for the Picture.
v. Final Credits: Delivery of complete statements of the final
credits to be accorded on the screen in the main and end titles in
connection with the Picture in the Territory. Such statements
shall be rendered in customary form for foreign distribution and
shall include the names of all persons who are given a credit and
shall contain excerpts from any such agreements defining or
describing the form and nature of such required screen credits.
vi. Statement of Dubbing Restrictions: Delivery of a statement
confirming any restrictions as to the dubbing of the voice of any
actor or actress into foreign languages.
vii. Statement of Distribution Restrictions and Obligations: Delivery
of a statement detailing any restrictions and/or obligations set
forth in the agreements with the director and actors in the
Picture or any other third parties which will effect Summit's
exploitation of the Picture in the Territory.
-5-
viii. E & O Insurance: Delivery of errors and omissions insurance
certificates from a qualified insurance company with liability
limits of not less than One Million Dollars (US$1,000,000) per
occurrence and Three Million Dollars (US$3,000,000) in the
aggregate with a deductible not greater than ten thousand Dollars
(US$10,000) for acquired New Pictures, thirty thousand Dollars
(US$30,000) for New Pictures produced by LIVE, and fifty thousand
Dollars (US$50,000) for Library Pictures, naming Summit
Entertainment N.V., Summit Entertainment L.P., and Proscenium
Pictures, Ltd. and their officers, employees, representatives,
attorneys, successors, and assigns as additional insureds to be in
place for a minimum of three (3) years from the date of Delivery
to Summit. LIVE shall, upon request, from time to time, furnish
Summit with certificates of insurance, naming relevant
subdistributors as separate additional insured parties on such
policy. The errors and omissions policy shall not be able to be
terminated without thirty (30) days prior written notice to the
above-mentioned additional insured parties and the certificates
issued naming such parties as additional insured entities shall
include statements to this effect.
ix. Paid Advertising Credits: Delivery of a complete statement of
final credits to be accorded in paid advertising in connection
with the Picture. Such statement shall be rendered in a customary
form for foreign distribution and shall include the names of all
persons who are contractually required to receive a credit in any
paid advertising, publicity or exploitation of the Picture and
shall contain excerpts from any such agreements defining or
describing the form and nature of such required paid advertising
credits.
x. Music Cue Sheet: Delivery of one (1) copy of the music cue sheet
of the Picture and any other materials delivered to Summit which
contain music, including without limitation, trailer and
promotional reels, setting forth, (i) the titles of the musical
compositions and sound recording, if applicable; (ii) the name(s)
of the composer(s) and their performing rights society
affiliation; (iii) names of recording artists; (iv) the nature,
extent and exact timing of the uses made of each musical
composition in the Picture; (v) the name and address of the
producer of the copyright of each musical composition and sound
recording; and, (vi) the name and address of the publisher and
company which controls the sound recording.
xi. Music Licenses: If required by delivery schedules with
subdistributors and requested by Summit, copies of: (i) all
synchronization and performance licenses issued in connection with
all music embodied in the Picture and the trailer of the Picture;
and (ii) all master-use licenses issued in connection with the
pre-existing master recordings embodied in the Picture.
-6-
xii. Key Talent Agreements: If necessary to meet delivery requirements
under a License Agreement, copies of the agreements with the
director, lead actor, lead actress, producer and composer of the
Picture.
xiii. Chain of Title: If necessary to meet delivery requirements under a
License Agreement, one (1) set of documents showing the chain of
title to the literary property and screenplay on which the Picture
is based and one original signed and notarized affidavit
summarizing the chain of title.
2. ADDITIONAL DELIVERY ITEMS:
a. Rating Certificate: If necessary to meet delivery requirements under a
License Agreement, when available and if requested by Summit, a copy of the
MPAA Rating Certificate issued by the Motion Picture Association of America
with respect to the Picture.
b. Coverage: If necessary to meet delivery requirements under a License
Agreement and if requested by Summit, laboratory access to the original
negative, answerprint, work print, magnetic soundtracks, filled music and
effects tracks and the original sound recordings, of all alternative takes,
cover shots, looped dialogue lines and other materials (hereinafter
collectively referred to as "coverage") for the purpose of conforming to
rating requirements, broadcast standards and practices in the Territory and
censorship.
c. Television Version: If created, laboratory access to the interpositive,
internegative, work print, magnetic sound transfer, music and effects,
continuity script and spotting list, editor's lined cutting script, and
music cue sheets and digital masters with respect to any television version
of the Picture, suitable for exhibition on free television during prime
time.
d. Access to the United States Distributor's Materials: To the extent LIVE has
such access, and if requested by Summit and if distributed in the United
States by an entity other than LIVE, free access to any other alternative
versions (e.g. airline version) or publicity materials created by the United
States distributor of the Picture including teaser trailers, trailers, key
art, EPK's, TV spots, radio spots, standees and banners.
e. Final Screenplay: If requested by Summit, delivery of a copy of the final
screenplay used in connection with photography of the Picture.
f. Certificates of Origin: Delivery of thirty (30) notarized original
certificates of origin executed by LIVE, in reasonable format(s) to be
agreed between Summit and LIVE prior to Delivery.
g. Certificates of Authorship: If necessary to meet delivery requirements
under a License Agreement, delivery of three (3) notarized original
certificates of authorship for each
-7-
writer who receives screen credit (either screenplay or story) in a format
to be agreed between Summit and LIVE prior to Delivery.
h. Title Report and Opinion: If necessary to meet delivery requirements under
a License Agreement, a title report and an MPAA title report, both
confirming the availability of the title(s) of the Picture.
i. Additional Documents: Any additional and available documents that may be
reasonably requested by Summit to service the sublicense agreements.
-8-
EXHIBIT 1 TO SCHEDULE B
LABORATORY ACCESS LETTER
(ON LIVE'S LETTERHEAD)
Date:
(Laboratory Address)
RE: (Film Title (all versions if more than one title))
Gentlemen:
LIVE Entertainment Inc. ("LIVE") has entered into a sales agency agreement (the
"Agreement") with Summit Entertainment N.V. and Summit Entertainment L.P.
(collectively "Summit") under which agreement Summit has been granted certain
distribution rights in and to the film entitled ______________________ (the
"Picture").
For good and valuable consideration, receipt of which is hereby acknowledged, it
is hereby agreed, for the express benefit of Summit, as follows:
1. You and LIVE represent to Summit that we have now entered into arrangements
whereby you hold in your possession and your control at your offices located in
___________________________all of the materials listed on the attached
"Schedule" relating to the Picture (the "Materials").
2. From such time as this letter shall be delivered to you, Summit and its
designees shall at all times have complete and free access to said Materials.
3. You will at all times perform all laboratory services requested by Summit or
its designees relating to the Picture which laboratory services will be
performed by you at Summit's sole expense.
4. Neither Summit nor LIVE shall have any liability for any indebtedness to you
incurred by the other.
5. You presently have no claim or lien against the Picture or the Materials nor
insofar as Summit is concerned will you assert any claim or lien against the
Picture or the Materials except for your charges for services rendered for and
documents furnished to Summit. Similarly, insofar as LIVE
-9-
is concerned, you will not assert any claim or lien against the Picture or the
Materials for your charges for services rendered and documents furnished to
Summit.
Please signify your agreement to the foregoing by signing where indicated below.
Very truly yours,
LIVE ENTERTAINMENT INC.
By: ________________________________
Its: ________________________________
AGREED TO:
(Laboratory)
By: ___________________________________
Its: ___________________________________
AGREED TO:
SUMMIT ENTERTAINMENT N.V. SUMMIT ENTERTAINMENT L.P.
By: ___________________________ By: _____________________________
Its: ___________________________ Its: _____________________________
-10-
SCHEDULE TO EXHIBIT 1 TO SCHEDULE B
(PICTURE)
The Materials
(Listing of all materials held by laboratory on the Picture)
-11-
SCHEDULE C
to Sales Agency Agreement
LIVE
dated as of March 31, 1998
Definitions - Rights
Cinematic Rights:
"Cinematic" means all forms of Theatrical, Non Theatrical, Public Video and
Commercial Video Exploitation of a Motion Picture Copy.
"Theatrical" means exploitation of a Motion Picture Copy by direct
exhibition in conventional or drive-in theaters that are open to the general
public on a regularly scheduled basis and charge an admission fee to view a
Motion Picture.
"Non-Theatrical" means exploitation of a Motion Picture Copy by direct
exhibition before an audience at facilities or organizations not primarily
engaged in the business of exhibiting Motion Pictures including, but not limited
to, educational organizations, churches, restaurants, bars, clubs, trains,
buses, libraries, prisons, industrial installations, Red Cross facilities, oil
rigs, embassies, military bases, military vessels or any other governmental
facilities flying the flag of countries within the Territory. Non-Theatrical
does not include Public Video, Commercial Video, Airline, Ship and Hotel/Motel.
"Public Video" means exploitation of a Motion Picture Copy embodied in a
Videogram by direct exhibition before an audience in a "mini-theater", an "MTV
theater" or like establishment which charges an admission to use the viewing
facility or to view the Videogram and which is not licensed as a theater for the
purposes of exhibiting Motion Pictures in a Theatrical manner.
"Commercial Video" means exploitation of a Motion Picture Copy embodied in a
Videogram by direct exhibition before an audience at facilities or organizations
not primarily engaged in the business of exhibiting Motion Pictures including,
but not limited to, educational organizations, churches, restaurants, bars,
clubs, trains, buses, libraries, prisons, industrial installations, Red Cross
facilities, oil rigs, embassies, military bases and military vessels. Commercial
Video does not include Non-Theatrical, Public Video, Airline, Ship and
Hotel/Motel.
-1-
Home Video Rights:
"Video" or "Home Video" means the manufacture, distribution, rental, lease
or sale of Videograms (restricted to the Videogram type(s) and format(s)
authorized in the Deal Terms), which enable a Motion Picture to be perceived
visually on a television screen when displayed through or as part of an
electronic apparatus (such as a television-type playback system) for private
non-commercial use. Home Video is restricted solely to the Videogram type(s) and
format(s) that are leased to Lessee in the Deal Terms. Home Video does not
include any form of Video-On-Demand.
"Home Video Rental" means Video and Home Video other than Home Video Sell
Through.
"Home Video Sell Through" means the manufacture and distribution of
Videograms (restricted to the Videogram type(s) and format(s) authorized in the
Deal Terms) for purposes of sale to the public for private non-commercial use
where: (i) ownership of such Videograms transfers to such ultimate purchasing
members of the public who use the Videograms for private non-commercial use; and
(ii) if a Maximum Net Sell Through Price is specified in the Deal Terms, the
price per Videogram unit that is derived by Lessee or its subdistributors and
Affiliates, net of discounts and rebates, is less than such any Maximum Net Sell
Through Price defined in the Deal Terms.
Ancillary Rights:
"Ancillary" means all forms of Airline, Ship and Hotel/Motel Exploitation of
a Motion Picture Copy.
"Airline" means exploitation by direct exhibition of a Motion Picture Copy
in airplanes, wherever located, which are operated by companies flying the flag
of any country within the Territory, but excluding airplanes which are
customarily licensed from a location outside of the Territory, or which are only
serviced in but do not fly the flag of any country in the Territory.
"Ship" means exploitation by direct exhibition of a Motion Picture Copy in
ocean going vessels, wherever located, which fly the flag of any country in the
Territory and are serviced from a country in the Territory, but excluding ships
serviced from a location outside of the Territory.
"Hotel/Motel" means the exploitation by direct exhibition of a Motion
Picture Copy in temporary or permanent living accommodations such as hotels,
motels, apartment complexes, co-operatives or condominium projects where the
exhibition is by means of closed-circuit television systems which originate
within or in the immediate vicinity of such living accommodations. Hotel/Motel
does not include Pay-Per-View or Video-On-Demand.
Television Rights:
-2-
"Television" means all forms of Free TV and Pay TV exploitation of a Motion
Picture Copy.
"Free TV" means all forms of Terrestrial Free TV, Cable Free TV and
Satellite Free TV exploitation of a Motion Picture.
"Terrestrial Free TV" means only standard over-the-air broadcast by means of
Hertzian waves of a Motion Picture Copy which is intended for reception on
television receivers in private living accommodations without a charge being
made to the viewer for the privilege of viewing a Motion Picture. For purposes
of this definition, neither governmental television receiver assessments nor
taxes are a charge to the viewer.
"Cable Free TV" means only the transmission by means of coaxial or fiber-
optic cable of a Motion Picture Copy for reception on television receivers in
private living accommodations without a charge being made to the viewer for the
privilege of viewing a Motion Picture. For purposes of this definition, neither
governmental television receiver assessments or taxes, nor regular periodic
basic cable service charges (other than subscriptions paid for the right to
receive specific programming channel(s) or amounts paid for the right to receive
specific programs on a fee-per-exhibition basis) paid by a subscriber to a cable
television system are a charge to the viewer.
"Satellite Free TV" means only the up-link transmission of a Motion Picture
Copy to a satellite and its down-link transmission to a terrestrial satellite
reception dish for the purpose of viewing of a Motion Picture on television
receivers in private living accommodations without a charge being made to the
viewer for the privilege of viewing a Motion Picture. For purposes of this
definition, neither governmental television receiver assessments or taxes, nor
regular periodic basic satellite service charges (other than subscriptions paid
for the right to receive specific programming channel(s) or amounts paid for the
right to receive specific programs on a fee-per-exhibition basis) are a charge
to the viewer.
"Pay TV" means all forms of Terrestrial Pay TV, Cable Pay TV, and Satellite
Pay TV exploitation of a Motion Picture Copy. Pay TV Rights do not include any
form of Hotel/Motel, Pay-Per-View or Video-On-Demand Rights.
"Terrestrial Pay TV" means only over-the-air broadcast of a Motion Picture
Copy by means of encoded Hertzian waves for reception on a television receiver
in private living accommodations by means of a decoding device where a charge is
made: (i) to the viewer for the right to use the decoding device for viewing any
special channel which transmits a Motion Picture along with other programming on
an ongoing basis; or (ii) to the operator of a hotel, motel, apartment complex,
co-operative, condominium project or similar place located distant from the
place where such broadcast signal originated for the right to use the decoding
device to receive and retransmit the programming on such channel throughout such
place.
"Cable Pay TV" means transmission or retransmission of a Motion Picture Copy
by means of an encoded signal over coaxial or fiber-optic cable for reception on
television receivers
-3-
in private living accommodations by means of a decoding device where charge is
made: (i) to the viewer for the right to use the decoding device for viewing any
special channel which transmits a Motion Picture along with other programming on
an ongoing basis; or (ii) to the operator of a hotel, motel, apartment complex,
co-operative, condominium project, or similar place located distant from the
place where such broadcast signal originated for the right to use the decoding
device to receive and retransmit the programming on such channel throughout such
place.
"Satellite Pay TV" means the up-link transmission of a Motion Picture Copy
by means of an encoded signal to a satellite and its down-link transmission to a
terrestrial satellite reception dish and a decoding device for the purposes of
viewing a Motion Picture on television receivers in private living
accommodations where a charge is made: (i) to the viewer for the right to use
the decoding device for viewing any special channel which transmits a Motion
Picture along with other programming on an ongoing basis; or (ii) to the
operator of a hotel, motel, apartment complex, co-operative, condominium
project, or similar place located distant from the place where such broadcast
signal originated for the right to use the decoding device to receive and
retransmit the programming on such channel throughout such place.
Other Rights:
"Incidental" means, subject to restrictions contained in the Agreement: (i)
dubbing or subtitling the Picture and trailers thereof; (ii) the application for
censorship and edit of the Picture; (iii) advertising and publicizing the
Picture; (iv) the application for copyright protection.
"Merchandising" means the manufacture and distribution for profit of items
of merchandise, other than books and records, featuring or embodying the title
of the Picture, or any logos identifiable with the Picture, or the name or
likeness of any characters, animals or objects identifiable with a Motion
Picture.
"Music Publishing" means the administration of the copyright(s) in musical
compositions appearing in the Picture's soundtrack, to the extent the same are
owned/or controlled by LIVE.
"Novelization" means the authorization of, or act of, writing (by
translation or otherwise) and exploitation of the Picture or screenplay thereof
as a book, novel, or other printed (electronic or otherwise) or published medium
(electronic or otherwise).
"Pay-Per-View" means the broadcast of a Motion Picture Copy by means of an
encrypted signal for reception on television receivers in homes or non-
residential institutions, including hotels, motels and hospitals, where a charge
is made to the viewer for the right to use a decoding device to view the
broadcast of a Motion Picture at a time designated by the broadcaster for each
viewing. Pay-Per-View Rights do not include any form of Hotel/Motel, Pay TV or
Video-On-Demand Rights.
"Souvenir Program" means the preparation and exploitation of souvenir
booklets or programs, not to exceed thirty (30) pages in length, featuring
photographs and explanatory text relating to the Picture.
-4-
"Soundtrack Record" means the manufacture and exploitation of recordings in
any form embodying all or any part of the soundtrack of the Picture or any re-
recording of all or any part of the soundtrack of the Picture (packaged and
labelled in such a way as to be identifiable with the Picture) in lieu of the
actual soundtrack thereof.
"Video Game" means the manufacture, distribution, and sale, lease, or rental
of video game(s) for platforms such as Sega Genesis, Nintendo SNES, 3DO
multiplayer system or any similar or new platform formats where the user is
given interactive control over "virtual" actors and surroundings and/or engages
in contests of dexterity and that: (i) are developed from the Picture or its
Underlying Material (whether or not such video game(s) use footage from the
Picture); and/or (ii) are packaged and labelled in such a way as to be
identifiable with the Picture.
"Video-On-Demand" means the broadcast of a Motion Picture Copy by means of
an encrypted signal for reception by decoding and storage devices for viewing on
television receivers in homes or non-residential institutions, including hotels,
motels and hospitals, where a charge is made to the viewer on a fee-per-
exhibition basis for the right to use such decoding and storage device to view
the broadcast of a Motion Picture at a time selected by the viewer for each
viewing. Video-On-Demand does not include any form of Hotel/Motel, Pay TV or
Pay-Per-View.
-5-
EXHIBIT "B"
THE PARTNERSHIP INTERESTS EVIDENCED BY THIS PARTNERSHIP AGREEMENT ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND CALL OPTIONS TO PURCHASE SUCH INTERESTS AS
SET FORTH IN A LIVE/SUMMIT OMNIBUS AGREEMENT.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
SUMMIT ENTERTAINMENT L.P.
A California Limited Partnership
Table of Contents
-----------------
Page
----
ARTICLE I DEFINITIONS...................................................... 1
ARTICLE II FORMATION....................................................... 2
2.1 Formation of Limited Partnership..................................... 2
2.2 Character of the Business............................................ 2
2.3 Principal Place of Business.......................................... 2
2.4 Address of General Partner........................................... 2
ARTICLE III RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER.................. 2
3.1 Management........................................................... 2
3.2 Financial Information................................................ 2
3.3 Tax Returns.......................................................... 2
ARTICLE IV RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS.................. 2
4.1 Rights of Limited Partners........................................... 2
4.2 Withdrawal and Dissolution........................................... 2
ARTICLE V ALLOCATION OF INCOME, EXPENSE, PROFIT, AND LOSS.................. 3
5.1 Tax Year............................................................. 3
5.2 Distributions........................................................ 3
5.3 Profits and Losses................................................... 3
5.4 Tax Withholding...................................................... 3
ARTICLE VI DISSOLUTION AND LIQUIDATION..................................... 3
6.1 General Partner...................................................... 3
6.2 Garrett.............................................................. 4
6.3 Termination and Dissolution.......................................... 4
ARTICLE VII MISCELLANEOUS PROVISIONS....................................... 4
7.1 Entire Contract...................................................... 4
7.2 Arbitration.......................................................... 4
7.3 Fiduciary Status..................................................... 4
7.4 Certain Transfers.................................................... 4
7.5 Indemnity............................................................ 4
i
This Amended and Restated Agreement of Limited Partnership is made and
entered into by and between The Franco/Kiwi Alliance, Inc., a California
corporation, as the General Partner, and David Garrett and Film LIVE
Incorporated as the Limited Partners.
ARTICLE I DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
set forth below:
1.1 Cash Floor: The same meaning as set forth in the Omnibus
----------
Agreement.
1.2 Agreement: This Amended and Restated Agreement of Limited
---------
Partnership.
1.3 Closing Date: The same meaning as set forth in the Omnibus
------------
Agreement.
1.4 Garrett: David Garrett.
-------
1.5 General Partner: The Franco/Kiwi Alliance, Inc.
---------------
1.6 Limited Partners: Garrett and LIVE.
----------------
1.7 LIVE: LIVE Entertainment Inc.
----
1.8 Omnibus Agreement: The LIVE/Summit Omnibus Agreement.
-----------------
1.9 Partners: All Partners, both General and Limited.
--------
1.10 Partnership: The Limited Partnership formed hereby, which
-----------
shall be named Summit Entertainment L.P.
1.11 Percentage Interests: * for the General Partner, *
--------------------
for Garrett, and * for LIVE.
1.12 Priority Distribution: The same meaning as set forth in the
---------------------
Omnibus Agreement.
1.13 RLPA: The California Revised Limited Partnership Act.
----
1.14 Summit Cash: The same meaning as set forth in the Omnibus
-----------
Agreement.
1.15 Summit Equity: The same meaning as set forth in the Omnibus
-------------
Agreement.
1
ARTICLE II FORMATION
2.1 Formation of Limited Partnership: The Partnership was formed
--------------------------------
pursuant to the RLPA.
2.2 Character of the Business: The purpose of the Partnership is to
-------------------------
engage in any activity permitted by the Act.
2.3 Principal Place of Business: The principal office of the
---------------------------
Partnership is 2308 Broadway, Santa Monica, California 90404. The General
Partner may, in its sole discretion, change the principal office of the
Partnership or designate other places and cities to be used as additional
Partnership offices for the purpose of carrying on the business of the
Partnership.
2.4 Address of General Partner: The address of the General Partner
--------------------------
is the same as the address of the Partnership.
ARTICLE III RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER
3.1 Management: The General Partner shall have the sole authority
----------
to manage, control, vote on, and approve all of the affairs of the Partnership,
except as provided in Paragraph 4.1.
3.2 Financial Information: The General Partner shall deliver within
---------------------
75 days of the end of each fiscal year to the Limited Partners quarterly and
annual financial statements of the Partnership and its affiliated companies
including statements of income, changes in financial position, and balance
sheets and accompanying notes, and the Limited Partners shall have access to
Partnership records as provided in California Corporations Code sections 15634
and 15615.
3.3 Tax Returns: The General Partner shall cause the preparation
-----------
and filing of all Partnership tax returns and shall make such tax elections as
the General Partner, in its sole discretion, deems appropriate. Partnership tax
returns will be delivered within 75 days of the end of each fiscal year.
ARTICLE IV RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
4.1 Rights of Limited Partners: The Limited Partner expressly waive
--------------------------
their right to vote on or approve any matters that they would otherwise be
entitled to vote on or approve pursuant to the RLPA, except amendments to this
Agreement which may only be made with the unanimous consent of all Partners.
Any matters upon which the Limited Partners may vote may only be approved by the
unanimous vote of all the Partners.
4.2 Withdrawal and Dissolution: The Limited Partners shall not have
--------------------------
the right to withdraw from the Partnership prior to termination, except in
accordance with the provisions hereof, and the Limited Partners shall not have
the right to seek a judicial dissolution of the Partnership.
2
ARTICLE V ALLOCATION OF INCOME, EXPENSE, PROFIT, AND LOSS
5.1 Tax Year: The Partnership shall adopt the calendar year as its
--------
taxable year.
5.2 Distributions: Cash funds which, in the sole discretion of the
-------------
General Partner, are not required to meet the needs of the business of the
Partnership (which needs shall include, without limitation, reasonable reserves
for future expenses and accounts payable) shall be distributed to the Partners
in the following order:
(a) The General Partner and Garrett shall be entitled, when
and as determined by the General Partner, to priority distributions at any time
after the Closing Date in an amount aggregating the Priority Distribution if (i)
making such distributions results in no adverse tax consequences to Summit or
LIVE and (ii) Summit Cash equals or exceeds the Cash Floor after the
distribution. Any distributions under this Paragraph 5.2(a) shall be made to the
General Partner and Garrett pro rata in the ratio of their Percentage Interests.
(b) Next, distributions shall be made to the Partners equal
to the taxes payable (assuming a tax rate equal to the highest effective
marginal federal and state tax rate applicable to any of the Partners) on the
cumulative taxable income allocable to them by the Partnership after the Closing
Date. Such distributions shall be made to the Partners pro rata in the ratio of
their Percentage Interests.
(c) Next, to the Partners pro rata in the ratio of their
Percentage Interests. However, no distributions may be made under this Paragraph
5.2(c) if the result would reduce Summit Equity below * or Summit Cash
below the Cash Floor.
5.3 Profits and Losses: The taxable profits and losses of the
------------------
Partnership shall be allocated to the Partners pro rata in accordance with their
Percentage Interests.
5.4 Tax Withholding: In the event that the Partnership is required
---------------
to pay or withhold any federal or state tax attributable to distributions or
allocations to any Partner, such withholding may be offset against any
distributions to such Partner (but shall be treated as an actual distribution to
such Partner). If the required withholding exceeds such distributions, such
Partner shall be obligated to contribute to the Partnership cash in an amount
equal to such excess plus interest at 10% until paid.
ARTICLE VI DISSOLUTION AND LIQUIDATION
6.1 General Partner: The Partnership shall be dissolved and shall
---------------
terminate and wind up its affairs upon the election of the General Partner, but
not prior to the termination of the Agency Agreement (not due to a breach by
Summit) without LIVE's express prior written consent.
3
6.2 Garrett: Upon the termination of the employment of Garrett by
-------
the Partnership or its affiliates for any reason, the Partnership shall not
terminate but shall have the option to purchase his interest in the Partnership
for an amount equal to his Percentage Interest of the book value (calculated
applying generally accepted accounting principles) of the net assets of the
Partnership at that time.
6.3 Termination and Dissolution: If the Partnership shall be
---------------------------
dissolved for any reason, no further business shall be conducted, except for the
taking of such action as shall be necessary for the winding up of the affairs of
the Partnership and the distribution of its assets in the following order:
(a) First, toward payment of all Partnership debts and
expenses and valid and existing claims of third persons, or adequate provisions
shall be made therefor;
(b) Second, to the Partners in accordance with Paragraph 5.2
(excluding the last sentence of Paragraph 5.2(c)).
ARTICLE VII MISCELLANEOUS PROVISIONS
7.1 Entire Contract: This Agreement and the Omnibus Agreement
---------------
constitutes the entire agreement among the Partners relating to the Partnership,
and supersedes all prior agreements relating thereto. This Agreement may only
be amended by a writing signed by all the Partners.
7.2 Arbitration: Any and all disputes relating to this Agreement or
-----------
any of the transactions contemplated hereby shall be subject to binding
arbitration before one arbitrator pursuant to the Commercial Rules of the
American Arbitration Association, with such arbitration to be held in Los
Angeles, California. The prevailing party in any such arbitration shall be
entitled to recovery of reasonable attorney fees incurred in connection with
such dispute.
7.3 Fiduciary Status: The Partners acknowledge that they are
----------------
fiduciaries as to each other.
7.4 Certain Transfers: If the General Partner sells any of its
-----------------
Percentage Interest in the Partnership to any party, Garrett shall have a tag-
along right to sell a proportionate share of his Percentage Interest in the
Partnership on the same terms and conditions as the interest being sold, and the
General Partner shall have a drag-along right to require Garrett to sell a
proportionate share of his Percentage Interest in the Partnership on such terms
and conditions.
7.5 Indemnity: If any Partners (or their officers or owners) incur
---------
legal fees in connection with claims made against them for actions or inactions
relating to their capacity as direct or indirect owners of the Partnership, the
Partnership shall advance such legal fees during the course of the dispute. If
the person prevails in the dispute, such advance shall be nonrefundable. If the
person does not prevail in the dispute, such advance shall be promptly refunded.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the Closing Date.
GENERAL PARTNER:
THE FRANCO/KIWI ALLIANCE, INC.
a General Corporation
By:
Patrick Wachsberger, President
LIMITED PARTNERS:
DAVID GARRETT
LIVE ENTERTAINMENT INC.
By:
Title:
S-1
EXHIBIT C
Execution Copy
--------------
THE SECURITIES EVIDENCED HEREBY (OR ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
--------------
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY REGULATION D AND RULE 701, PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION. THE SECURITIES EVIDENCED HEREBY (AND THE SHARES ISSUABLE
UPON EXERCISE HEREOF) ARE OR WILL BE SUBJECT TO RESTRICTIONS ON TRANSFER AND
RESALE UNDER A STOCKHOLDER AGREEMENT AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT
TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.
FILM HOLDINGS CO.
1997 STOCK OPTION
FOR SUMMIT EMPLOYEES
Option Certificate and Agreement
--------------------------------
This stock option is granted by Film Holdings Co., a Delaware corporation
(the "Company"), to Patrick Wachsberger (the "Optionee"), pursuant to the
Company's 1997 Stock Option Plan (the "Plan"). All initially capitalized terms
not otherwise defined herein shall have the meaning provided in the Plan.
30. Grant of Opinion
----------------
This certificate evidences the grant by the Company on April __, 1998 (the
"Grant Date") to the Optionee of an option to purchase, in whole or in part, on
the terms provided herein and in the Plan, a total of 50,859 shares of Class A
Common Stock, par value $0.001 per share, of the Company (the "Shares") at the
following exercise prices per Share:
Number of Options Exercise Price
----------------- --------------
22,799 $ 0.01
7,014 $ 2.98
10,523 $ 6.55
10,523 $10.12
The latest date on which this option may be exercised (the "Expiration
Date") is the earliest of (a) April __, 2008, or (b) the termination hereof in
accordance with this Agreement, the Stockholder Agreement or the Plan.
The option evidenced by this certificate is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code (the
"Code").
S-2
Execution Copy
--------------
THE SECURITIES EVIDENCED HEREBY (OR ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
--------------
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY REGULATION D AND RULE 701, PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION. THE SECURITIES EVIDENCED HEREBY (AND THE SHARES ISSUABLE
UPON EXERCISE HEREOF) ARE OR WILL BE SUBJECT TO RESTRICTIONS ON TRANSFER AND
RESALE UNDER A STOCKHOLDER AGREEMENT AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT
TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.
FILM HOLDINGS CO.
1997 STOCK OPTION
FOR SUMMIT EMPLOYEES
Option Certificate and Agreement
--------------------------------
This stock option is granted by Film Holdings Co., a Delaware corporation
(the "Company"), to Robert Hayward (the "Optionee"), pursuant to the Company's
1997 Stock Option Plan (the "Plan"). All initially capitalized terms not
otherwise defined herein shall have the meaning provided in the Plan.
31. Grant of Opinion
----------------
This certificate evidences the grant by the Company on April __, 1998 (the
"Grant Date") to the Optionee of an option to purchase, in whole or in part, on
the terms provided herein and in the Plan, a total of 30,516 shares of Class A
Common Stock, par value $0.001 per share, of the Company (the "Shares") at the
following exercise prices per Share:
Number of Options Exercise Price
----------------- --------------
13,679 $ 0.01
4,209 $ 2.98
6,314 $ 6.55
6,314 $10.12
The latest date on which this option may be exercised (the "Expiration
Date") is the earliest of (a) April __, 2008, or (b) the termination hereof in
accordance with this Agreement, the Stockholder Agreement or the Plan.
The option evidenced by this certificate is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code (the
"Code").
S-1
Execution Copy
--------------
THE SECURITIES EVIDENCED HEREBY (OR ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
--------------
OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED BY REGULATION D AND RULE 701, PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION. THE SECURITIES EVIDENCED HEREBY (AND THE SHARES ISSUABLE
UPON EXERCISE HEREOF) ARE OR WILL BE SUBJECT TO RESTRICTIONS ON TRANSFER AND
RESALE UNDER A STOCKHOLDER AGREEMENT AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT
TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.
FILM HOLDINGS CO.
1997 STOCK OPTION
FOR SUMMIT EMPLOYEES
Option Certificate and Agreement
--------------------------------
This stock option is granted by Film Holdings Co., a Delaware corporation
(the "Company"), to David Garrett (the "Optionee"), pursuant to the Company's
1997 Stock Option Plan (the "Plan"). All initially capitalized terms not
otherwise defined herein shall have the meaning provided in the Plan.
32. Grant of Opinion
----------------
This certificate evidences the grant by the Company on April __, 1998 (the
"Grant Date") to the Optionee of an option to purchase, in whole or in part, on
the terms provided herein and in the Plan, a total of 20,344 shares of Class A
Common Stock, par value $0.001 per share, of the Company (the "Shares") at the
following exercise prices per Share:
Number of Options Exercise Price
----------------- --------------
9,120 $ 0.01
2,806 $ 2.98
4,209 $ 6.55
4,209 $10.12
The latest date on which this option may be exercised (the "Expiration
Date") is the earliest of (a) April __, 2008, or (b) the termination hereof in
accordance with this Agreement, the Stockholder Agreement or the Plan.
The option evidenced by this certificate is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code (the
"Code").
This option shall become exercisable in annual installments over five (5)
years (i.e., it shall become exercisable as to twenty percent (20%) of the total
---
number of Shares on each anniversary of the Grant Date), a pro rata portion of
each installment becoming exercisable at
S-1
each exercise price each year except as accelerated by the Board pursuant to the
Plan. In the event of an Acquisition Event (as defined in the Plan) all
outstanding options which have not theretofore been exercised shall terminate,
provided that at least 10 days prior to the effective date of such Acquisition
Event the Company shall notify the Optionee of such pending Event and all
outstanding options shall vest and become exercisable immediately prior to
consummation of such Acquisition Event.
33. Exercise of Option.
------------------
Each election to exercise this option shall be in writing, signed by the
Optionee or by his or her executor or administrator or by the person or persons
to whom this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office, accompanied by payment in full of the applicable exercise
price and by such additional documentation evidencing the right to exercise (or,
in the case of a Legal Representative, of the authority of such person) as the
Company may require. The exercise price may be paid (i) in cash or by personal
check, bank check or money order payable to the order of the Company, (ii)
through the delivery of shares of unrestricted Stock that have been outstanding
for at least six months and that have a fair market value on the last business
day preceding the date of exercise equal to the exercise price, (iii) by
delivery of an unconditional and irrevocable undertaking by a broker to deliver
to the Company promptly sufficient funds to pay the exercise price, or (iv) by
any combination of the permissible forms of payment; provided, that so much of
the exercise price as equals to the par value of the Shares being purchased
shall be paid other than by personal check.
34. Stockholders Agreement
----------------------
Any shares received upon the exercise of this option shall be subject to
the Stockholders Agreement dated as of July 9, 1997 among the Company and
certain other parties thereto as amended and in effect from time to time (the
"Stockholders Agreement"), and no Shares shall be issued upon the exercise of
this option unless and until the Optionee shall have executed the Stockholders
Agreement or a Joinder to Stockholders Agreement satisfactory to the Company.
The Shares received upon exercise of this option shall be subject to the rights,
restrictions and obligations applicable to "Management Shares" as provided from
time to time in such Stockholders Agreement, and (if applicable) Joinder to
Stockholders Agreement. Without limiting the generality of the foregoing
provisions, in the event any Shares are issuable and issued upon exercise of
this option after termination of employment (or upon Executive Breach as defined
below) as contemplated by Section 6 below, then such shares shall be subject to
the provisions of the Stockholders Agreement (including but not limited to the
call provisions of Section 6 of the Stockholders Agreement) to the same extent
as if such Shares were issued prior to such event.
35. Restrictions on Transfer
------------------------
In addition to the provisions of Section 3 above, if at the time this
option is exercised the Company is a party to any other agreement restricting
the transfer of any outstanding shares of its Common Stock, this option may be
exercised only if the Shares so acquired are made subject to
S-2
the transfer restrictions set forth in that agreement (or if more than one such
agreement is then in effect, the agreement or agreements specified by the
Board); provided that such Shares may be appropriately legended to reflect the
--------
forgoing restrictions or any other restrictions to which such Shares may be
subject.
36. Withholding
-----------
No Shares will be transferred pursuant to the exercise of this option
unless and until the person exercising this option shall have remitted to the
Company an amount sufficient to satisfy any federal, state or local withholding
tax requirements, or shall have made other arrangements satisfactory to the
Company with respect to such taxes.
37. Acquisition by LIVE: Status Change
----------------------------------
Upon the acquisition (the "LIVE Acquisition") of a majority interest in
Summit Entertainment L.P., a California limited partnership ("Summit") by either
the Company or by LIVE, all outstanding options shall vest and become
immediately exercisable.
Upon the termination of the Optionee's full-time employment by Summit
without cause but with the prior agreement of LIVE (or if Optionee is then an
employee of LIVE, upon termination of Optionee's full-time employment by LIVE
without cause), all outstanding options shall thereupon become immediately
exercisable and shall remain exercisable for a period of 90 days following such
date of termination, but in no event beyond the Expiration Date; provided,
--------
however, that in the event that the Company's common stock is not publicly
- -------
traded on the date of such termination, the Company agrees to either (i) extend
the exercise period by not less than one year, or (ii) pay to the Optionee, upon
surrender of the option during the 90-day exercise period, the difference
between the Fair Market Value of the Shares subject to such option and the
exercise price thereof. "Fair Market Value" shall mean the Board's good faith
determination of the fair value of one Share as of the date of termination. In
the event the Optionee disagrees with the Board's determination of Fair Market
Value, the Optionee may give written notice to the Company of a demand for a
third-party appraisal of the value of the Shares. Within 30 days after the
receipt of such notice, such Optionee and the Company shall agree upon the
selection of an independent investment banking firm to perform the appraisal.
If the parties are unable to agree upon the selection of an independent
investment banking firm, each shall make a selection, and the two firms so
chosen shall nominate the independent investment banking firm. Within sixty
(60) days of the date of selection of the independent investment banking firm,
such firm shall prepare a written report detailing its determination as to the
fair value of a Share (without giving effect to minority discounts or the terms
of any other agreements). Absent manifest error, the fair value as so
determined shall be the price used in lieu of Fair Market Value for purposes of
this Section 6.
The fees and expenses of the investment banking firm shall be borne one-half by
the Company and one-half by the Optionee.
Upon (i) termination of Optionee's full-time employment with Summit by
Optionee for any reason other than death or disability prior to the date of the
LIVE Acquisition, or (ii) if after the date of the LIVE Acquisition upon the
termination of Optionee's full-time employment by
S-3
either Summit or LIVE for cause, or by Optionee without cause, or (iii) if
before the date of the LIVE Acquisition upon the termination of that certain
Agency Agreement between Summit and LIVE for cause due to material breach by
Summit, or (iv) if Patrick Wachsberger gives the Termination Notice (as defined
in the Omnibus Agreement dated April __, 1998) and LIVE terminates the Agency
Agreement, upon such termination (any of (i) through (iv) an "Executive
Breach"), this option shall immediately terminate as to all Shares subject
hereto, whether or not vested immediately prior to such termination, and any
Shares purchased prior to such date upon exercise of the option shall be subject
to purchase by the Company pursuant to the terms of Section 6.1.1.2 of the
Stockholders Agreement as if Optionee were terminated for Cause therein.
Upon the termination of the Optionee's employment with Summit or LIVE for
death or disability or for any other reason, this option shall terminate as to
any Shares not vested immediately prior to termination. The vested portion of
this option shall thereafter remain exercisable for 120 days.
After the LIVE Acquisition, should Summit or LIVE and Optionee enter into
an employment agreement, the terms of this Section 6 may be amended at LIVE's
request consistent with the provisions of such Section 6 of the Optionee
Agreements for other senior executive employees who are then parties to
employment agreements with LIVE.
38. Effect on Employment
--------------------
Neither the grant of this option, nor the issuance of Shares upon exercise
of this option, shall give the Optionee any right to be retained in the employ
of the Company or Summit, affect the right of the Company or Summit to discharge
or discipline such Optionee at any time, or affect any rights of such Optionee
to terminate his or her employment at any time.
39. Provisions of the Plan
----------------------
This option is subject in its entirety to the provisions of the Plan, a
copy of which is furnished to the Optionee with this option. In this regard, in
interpreting the Plan, employment by Summit shall be deemed to be employment by
the Company.
40. Notice of Disposition of Shares
-------------------------------
If the Optionee disposes of Shares issued upon exercise of this option, the
Optionee will notify the Company of such disposition (including the name of the
transferee and the date of transfer) within 30 days of such disposition.
S-4
In WITNESS WHEREOF, the Company has caused this option to be executed under
its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
FILM HOLDINGS CO.
By: /s/ Joeseph Pretlow
-------------------
Name: Joeseph Pretlow
Title: Principal
Dated: 4/12/98
Accepted and Agreed as of this
15th day of April, 1998:
/s/ David Garrett
- -----------------------------
David Garrett
S-5