ANTRA MUSIC GROUP, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Dated: As of October 1, 1999
Xxxxxxx Xxxxx
(professionally known as "Crush")
c/o Xxxxx X. Xxxx, XX
Xxxxxxxx Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Dear Xx. Xxxxx:
The following constitutes your and our agreement ("Contract"):
1. Service. During the term of this Contract ("Term") you shall, in
accordance with the provisions hereof, render to us your exclusive services and
furnish to us the services of one (1) or more producers for the purpose of
recording and delivering to us Masters.
2. Term.
(a) The Tenn shall consist of an "Initial Period" and of the
"Renewal Periods" for which we shall have exercised the options hereafter
provided. We shall have seven (7) separate options, each to extend the Term
for a Renewal Period. The Initial Period and each Renewal Period are each
hereafter sometimes referred to generally as a "Contract Period." Each
Renewal Period is hereafter sometimes referred to respectively in
chronological order as the "First Renewal Period," "Second Renewal Period,"
"Third Renewal Period," "Fourth Renewal Period," "Fifth Renewal Period,"
"Sixth Renewal Period" and "Seventh Renewal Period." We may exercise each
option to extend the Term for a Renewal Period by giving you notice of our
election to do so at any time prior to the commencement of the Renewal
Period for which our option is exercised;
(b) (i) The Initial Period shall commence on the date hereof and
shall continue until the date nine (9) months, or such fewer number of days
of which we may advise you in writing, after the initial release in the
United States, if any, of the Album required to be delivered to us in
fulfillment of your "Recording Commitment" (defined below) hereunder for
the Initial Period, which initial release, for purposes of this
subparagraph 2(b)(i) only, shall be deemed to occur on the earlier of: (1)
the date of the actual initial release in the United States, if any, of
that last Album; or (2) the date that is one hundred twenty (120) days
after your delivery to us of that last Album. No days between November 15
and February 15 of the next calendar year shall be taken into account for
purposes of determining the duration or end of that one hundred twenty
(120) day period referred to in the immediately preceding sentence; and
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(ii) Each Renewal Period shall run consecutively, shall commence
upon the expiration of the immediately-preceding Contract Period and
shall continue until the date nine (9) months, or such fewer number
of days of which we may advise you in writing, after the initial
release in the United States, if any, of the Album required to be
delivered to us in fulfillment of your Recording Commitment for that
Renewal Period, which initial release, for purposes of this
subparagraph 2(b)(ii) only, shall be deemed to occur on the earlier
of: (1) the date of the actual initial release in the United States,
if any, of that last Album; or (2) the date that is sixty (60) days
after your delivery to us of that last Album. No days between
November 15 and February 15 of the next calendar year shall be taken
into account for purposes of determining the duration or end of that
sixty (60) day period referred to in the immediately preceding
sentence; and
(c) Notwithstanding the foregoing, if as of the last date on which
we have the right to extend the Term for a Renewal Period pursuant to
subparagraph (b)(i) or (b)(ii) above, we have failed to exercise our option
to extend the Term for the next Renewal Period, the then-current Contract
Period nonetheless shall continue until you notify us in writing of that
failure, referring specifically to this subparagraph 2(c). If we fail to
exercise our option to extend the Term for the next Renewal Period on or
before the date that is sixty (60) days after we receive that specific
written notice from you, then the Term shall end on the date that is sixty
(60) days after we receive that notice from you, as if that date were the
original expiration date of the Term, without any liability or additional
obligation to you in connection therewith.
3. Recording Commitment.
(a) Your "Recording Commitment" is as follows: During each Contract
Period, you shall record for and you shall deliver to us, at a minimum,
Masters sufficient to constitute one (1) LP, plus, at our option, Masters
sufficient to constitute one additional (1) Optional LP; provided, however,
that in the aggregate, without your prior consent, you shall not have the
obligation to deliver to us hereunder in excess of eight (8) Required
Albums. We may exercise our option for the Optional LP to be recorded and
delivered to us during a Contract Period by giving you reasonable, written
notice of our election to do so at any time prior to the expiration of that
Contract Period. Each Album required to be delivered to us in fulfillment
of your Recording Commitment is hereinafter sometimes referred to generally
as a "Required Album." Accordingly, you might be required to record for and
deliver to us as many as eight (8) Required Albums. The Required Albums are
sometimes referred to as the "First Album," "Second Album," "Third Album,"
"Fourth Album," "Fifth Album," "Sixth Album," "Seventh Album" and "Eighth
Album;" and
(b) You shall deliver to us the First Album no later than ninety
(90) days after the date hereof During each Renewal Period, you shall
deliver to us the Required Album no later than three (3) months after the
commencement of the particular Renewal Period, or for an Optional LP no
later than three (3) months after our notice to you in Paragraph 3
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(a) above. You shall not without our prior written consent (which we shall
not unreasonably withhold), however, either (i) commence the recording of
any Masters for any Required Album prior to the date that is ten (10)
months after the date of your delivery to us of the immediately-prior
Required Album or (ii) deliver to us a Required Album prior to the date
that is twelve (12) months after the date of your delivery to us of the
immediately-prior Required Album. Notwithstanding anything to the contrary
contained herein, you shall deliver to us each Required Album as and when
required hereunder so that all eight (8) Required Albums are delivered to
us within seven (7) years after the date hereof.
4. Recording Procedures.
(a) You shall designate and submit to us for our approval the
producer of each of the Masters, the Musical Compositions or other
Selections which shall be embodied in those Masters, all other individuals
rendering services in connection with the recording of those Masters, the
studios at which those Masters shall be recorded, and the dates of
recording of those Masters (collectively referred to as "Recording
Elements"). You shall also prepare and submit to us for our approval, a
proposed budget for all "Recording Costs" (as defined below) setting forth
in such detail as is reasonably required by us all costs and expenses to be
paid or incurred for the production, recording and delivery to us of the
Masters ("Recording Budget"). No recording sessions shall be commenced nor
shall any commitments be made or costs incurred hereunder with respect to
any Masters unless and until we shall have approved in writing each
Recording Element and the Recording Budget for those Masters. If we shall
disapprove of any Recording Element submitted by you or of the Recording
Budget submitted by you, then our decision (including, at our election, our
designation of the Recording Budget or of one (1) or more Recording
Elements in substitution for the Recording Budget or any Recording Elements
submitted by you and disapproved by us) shall be final;
(b) You shall furnish to us at such times as we shall require all
union contract forms, report forms, invoices and other information that we
shall require so that we promptly may pay all Recording Costs, otherwise
comply with any of our obligations in connection with the Masters, release
Phonograph Records embodying the Masters and otherwise exploit the Masters;
(c) At our election, recording sessions for the Masters shall be
conducted under our or our designee's recording license;
(d) Our representatives may attend recording sessions for the
Masters;
(e) You shall deliver to us the Masters promptly after their
completion. All original session tapes and any derivatives or reproductions
thereof shall be delivered to us concurrently, or, at our election,
maintained at a recording studio or other location designated by us, in our
name and subject to our control. Each Master shall be subject to our
approval as commercially and technically satisfactory for the manufacture
and sale of Phonograph Records, and, upon our request, you shall re-record
any Musical Composition or other Selection until a Master that is
commercially and technically satisfactory to us shall have been obtained;
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(f) Each Master shall embody your vocal and instrumental
performances as the sole featured artist of a single Musical Composition
and shall be newly-recorded in its entirety in a recording studio.
Accordingly, no Masters shall be recorded in whole or in part at live
concerts or other live performances. Each Required Album shall embody
recordings of no fewer than ten (10) and no more than thirteen (13) Musical
Compositions. You shall not record or deliver hereunder nor shall we be
obligated to accept Masters constituting a Multiple Album. If, however, you
shall do so and we shall accept those Masters hereunder, then, at our
election, for the purpose of calculating the number of Masters recorded and
delivered hereunder, those Masters shall be deemed to constitute only one
(1) Album;
(g) Any Master Recording which is not recorded or delivered in all
respects in accordance with the terms hereof shall not apply towards the
fulfillment of your Recording Commitment, unless we otherwise consent in
writing. Furthermore, if we shall make any payments with respect to any
Master Recording which is not recorded for or delivered to us in all
respects in accordance with the terms hereof, you shall pay to us, upon our
demand, the amount thereof and, without limiting our other rights and
remedies, we may deduct that amount paid or incurred by us for any reason
from any monies payable by us hereunder; and
(h) If for any reason you delay the commencement of or are
unavailable for any recording sessions for the Masters, you shall pay us,
upon our demand, an amount equal to the expenses or charges paid or
incurred by us by reason thereof. Without limiting our other rights and
remedies, we may deduct that amount paid or incurred by us for any reason
from any monies payable by us hereunder.
5. Recording Costs.
(a) We shall pay the Recording Costs of those Masters recorded at
recording sessions conducted in accordance with the terms hereof in an
amount not in excess of the approved Recording Budget. If the Recording
Costs of any Masters shall exceed the Recording Budget therefor designated
by us or approved by us in writing for any reason, you shall be solely
responsible for and shall pay promptly the excess. If, however, we pay the
excess, you shall pay to us, upon our demand, the amount thereof and,
without limiting our other rights and remedies, we may deduct all such
amounts paid or incurred by us for any reason from any monies payable to
you by us or by any person or entity related to, owned by, controlled by or
controlling us (the "Company Parties"), whether or not in connection with
this agreement or in connection with any other agreement between you and
one or more of the Company Parties. You shall be solely responsible for and
shall pay any payments to any individuals rendering services in connection
with the recording of the Masters which exceed union scale unless the
excess and the recipient thereof shall have been specified in the approved
Recording Budget. You shall also be solely responsible for and shall pay
any penalties incurred for late payments caused by your delay in submitting
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union contracts forms, report forms, or invoices or other documents. If,
however, we pay any excess not approved by us in writing or any penalties,
you shall pay to us, upon our demand, the amount thereof, and, without
limiting our other fights and remedies, we may deduct that amount from any
monies payable by us hereunder; and
(b) The term "Recording Costs" shall include, without limitation,
all minimum union scale payments made to you, all payments made to any
other individuals rendering services in connection with the production and
recording of the Masters (including, without limitation, the individual
producers and co-producers of the Masters), all other payments which are
made pursuant to any applicable law or regulation or the provisions of any
collective bargaining agreement between us and any union or guild
(including, without limitation, payroll taxes and payments to union pension
and welfare funds and/or health and retirement funds), all amounts paid or
incurred for studio or hall rentals, tape, engineering, editing, mixing,
remixing, instrument rentals and cartage, mastering, transportation and
accommodations, immigration clearances, trademark and service xxxx searches
and clearances, any so-called "per diems" for any individuals (including
you) rendering services in connection with the recording of the Masters,
together with all other amounts paid or incurred in connection with the
production, recording and delivery to us of the Masters. Recording Costs
shall be recoupable from royalties payable by us hereunder.
6. Rights.
(a) All Master Recordings and Audio-Visual Recordings recorded
during the Term which embody your performances, from the inception of the
recording thereof, and all artwork created for use in connection with any
reproduction thereof ("Artwork") shall be deemed, for purposes of copyright
law throughout the universe, works made for hire for us by you and all
other persons rendering services in connection with those Master
Recordings, Audio-Visual Recordings and Artwork as our employees for hire.
Those Master Recordings and Audio-Visual Recordings, from the inception of
the recording thereof, and all Phonograph Records and other reproductions
made therefrom, together with the performances embodied therein and all
copyrights therein and thereto and all renewals and extensions thereof, and
all Artwork and all copyrights in and to all Artwork and all renewals and
extensions thereof, shall be entirely our property throughout the universe,
free of any claims whatsoever by you, or any other person, firm, or
corporation. Accordingly, we shall have the exclusive right to obtain
registration of copyright (and all renewals and extensions) throughout the
universe in those Master Recordings, Audio-Visual Recordings and Artwork in
our name, as the owner and author thereof. If for any reason we shall be
deemed not to be the author of those Master Recordings, Audio-Visual
Recordings or Artwork, this Contract shall constitute an irrevocable
transfer to us of ownership of copyright (and all renewals and extensions)
throughout the universe in those Master Recordings, Audio-Visual Recordings
or Artwork (as applicable) and, accordingly, you hereby grant, transfer,
convey and assign directly to us the entire fight, title and interest
throughout the universe, including, without limitation, the copyright, the
fight to secure copyright registration and any and all copyright renewal
fights, in and to all Master Recordings and Audio-Visual Recordings
recorded during the Term which embody your performances and in and to all
Artwork;
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(b) You shall, upon our request, cause to be executed and delivered
to us transfers of ownership of copyright (and all renewals and extensions)
in those Master Recordings, Audio-Visual Recordings and Artwork and any
other documents as we may deem necessary or appropriate to vest in us the
rights granted to us in this Contract, and you hereby irrevocably appoint
us your attorney-in-fact for the purpose of executing those transfers of
ownership and other documents in your names;
(c) Without limiting the generality of the foregoing, we and any
person, firm, or corporation designated by us shall have the exclusive,
perpetual right throughout the universe to manufacture, sell, distribute
and advertise Phonograph Records, Audio-Visual Records and other
reproductions embodying those Master Recordings or Audio-Visual Recordings
under any trademarks, trade names or labels, and to lease, license, convey
and otherwise exploit and use those Master Recordings by any method
(whether now known or unknown) and in any medium (whether now known or
unknown) and to perform publicly Phonograph Records, Audio-Visual Records
and other reproductions embodying those Master Recordings or Audio-Visual
Recordings, all upon such terms as we may approve, or we may refrain from
doing any or all of the foregoing;
(d) If you are entitled to any reversion of the copyright or other
right, title and interest in and to Masters (or any of them) pursuant to
the laws of the United States or any other country of the world, and that
reversion is effected, then you hereby irrevocably license to us
exclusively the entire worldwide right, title and interest, including,
without limitation, the copyright in and to any such Master so acquired by
you pursuant to the laws of the United States or any other country of the
world, all for the duration of the copyright (and any renewals or
extensions thereof) in and to such Master ("License Period"). In that
event, we and any person, firm or corporation designated by us shall have
the exclusive right throughout the universe during the License Period to
manufacture, sell, distribute and advertise Phonograph Records,
Audio-Visual Records and other reproductions embodying the Masters or
Audio-Visual Recordings under any trademarks, trade names or labels or to
lease, license, convey and otherwise exploit and use those Masters or
Audio-Visual Recordings by any method (whether now known or unknown) and in
any medium (whether now known or unknown) and to perform publicly
Phonograph Records, Audio-Visual Recordings and other reproductions
embodying the Masters or Audio-Visual Recordings all upon such terms as we
may approve, or we may refrain from doing any or all of the foregoing, all
in accordance with the provisions of this Contract. We shall have no
obligation to pay to you any monies in connection with the grant set forth
in this subparagraph 6(d) except that we shall continue to credit to your
royalty account hereunder royalties earned by you in accordance with the
provisions hereof on exploitations of the Masters occurring during the
License Period as if we had continued to own the entirety of all right,
title and interest, including, without limitation, the copyright in and to
the Masters or Audio-Visual Record Recordings in accordance with the
provisions of subparagraph 6(a), (b) and (c) above. You expressly
acknowledge and agree that no provision of any applicable law, rule or
regulation (including, without limitation, the copyright laws and
regulations of the United States or Canada) permits you to terminate
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the transfer, grant, conveyance or assignment to us of the copyright in and
to Master Recordings or Audio-Visual Recordings provided in this paragraph
6 or any other reversion of the copyright or other right, title and
interest in and to the Masters. If any such law, rule or regulation shall
apply at any time after the date hereof, you shall not exercise any rights
pursuant to that law, rule or regulation; and
(e) All matters relating to trademarks, notices, including, without
limitation, UPC symbols (i.e., barcoding), or disclosures deemed advisable
by us or our attorneys, and any matter other than the cover layout and the
picture of the art to be used on the particular Required Album will be
determined by us in our sole discretion.
7. Name and Likeness.
(a) We and any person, firm or corporation designated by us shall
have the perpetual, worldwide right to use and to permit others to use your
name (both legal and professional, and whether presently or hereafter used
by you), likeness, and other identification, and biographical material
concerning you, and the name and likeness of any producer rendering
services in connection with Master Recordings recorded by you during the
Term for purposes of trade and advertising. We shall have the further
right to refer to you during the Term as our exclusive recording artist and
you in your activities in the entertainment field shall use reasonable
efforts to be billed and advertised during the Term as our exclusive
recording artist. The fights granted to us pursuant to this subparagraph
7(a) with respect to your name, likeness, other identification and
biographical material concerning you shall be exclusive during the Term and
nonexclusive thereafter. Accordingly, but without limiting the generality
of the foregoing, you shall not authorize or permit any person, firm, or
corporation other than us to use during the Term your legal or professional
name or your likeness in connection with the advertising or sale of
Phonograph Records. Notwithstanding anything to the contrary contained
herein, during the Term, you shall not use any name other than the
professional name utilized by you as of the date of this Contract without
first obtaining our prior written consent thereto;
(b) You are the sole owner of each professional name used by you
during the Term and no other person, firm or corporation has or will have
the right to use that name in connection with Phonograph Records during the
Term. We shall have the right, at our election, to cause a search to be
instituted to determine whether there have been any third party uses of any
names used by you for Phonograph Record purposes. Further, we shall have
the right, at our election, to apply for registration of your name to be
made in favor of you for Phonograph Record and/or other entertainment
purposes in the United States Patent and Trademark Office or such other
federal institution as may then be charged with accepting those
registrations. Any amounts paid by us in connection with any search or
registration shall be deemed to be Recording Costs pursuant to subparagraph
5(b) above. If any search undertaken by us indicates or leads us reasonably
to believe that your name should not be used hereunder, then you and we
shall determine mutually a substitute name to be used by you. Nothing
contained herein shall release you from your indemnification of us in
respect of our use of any of your names, whether legal or professional or
otherwise; and
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(c) (i) We and our licensees shall have the exclusive rights and may
grant others the rights to use reproductions or adaptations of
packaging artwork, graphic materials used for marketing or
publicity, and other materials incorporating your name,
portraits, pictures and likenesses (including, without
limitation, professional, group, or other assumed or fictitious
names or sobriquets used by you and further including any logo
or trademark used by or controlled by you) on merchandise of any
kind other than Records (collectively the "Merchandise Uses"),
without payment of additional compensation to you, except as
provided in Paragraph 7(c)(ii) below.
(ii) If we receive any payments for any Merchandise Uses, your
royalty account shall be credited with fifty percent (50%) of
the net amount of those receipts, as computed after deduction of
the greater of the following amounts: (A) any direct expenses
actually incurred by us in connection with Merchandise Uses; and
(B) a charge equal to twenty percent (20%) of the gross amount
of those receipts.
8. Advances. Provided you are in compliance with all terms, provisions
and obligations contained herein, we shall pay to you as advances recoupable
from royalties earned by you hereunder the following amounts for the following
Required Albums payable at the following times:
(a) For the First Album, Twelve Thousand Five Hundred Dollars
($12,500), $3,500 of which you acknowledge having received already (which
payment, although made prior to the date hereof, shall be deemed to have
been made in connection with the First Album), Five Thousand Dollars
($5,000) payable upon full execution of this Agreement, $2,500 of which you
direct us to pay to your attorney, Xxxxx Xxxx'x firm, Xxxxxxxx Xxxxxx LLP
(collectively the "Execution Advance"), Two Thousand Five Hundred Dollars
($2,500) on or before thirty (30) days after the full execution of this
Agreement (the "First Album Initial Partial Advance"), One Thousand Five
Hundred Dollars ($1,500) on or before sixty (60) days after the full
execution of this Agreement (the "First Album Final Partial Advance"), and
the Fund Balance (defined below) payable promptly after the "Delivery Date"
(defined below) for the First Album. The "Recording Fund" for the First
Album shall be Fifty Thousand Dollars ($50,000); and
(b) For each Required Album other than the First Album: (A) the
"Pre-Delivery Payment" (defined below), payable promptly after our receipt
of your written notice indicating that recording sessions for the Required
Album for which the advance is payable have actually commenced in
accordance with all of the terms of this Contract (including, without
limitation, the provisions of subparagraph 4(a) above); and (B) the Fund
Balance (defined below), payable promptly after the Delivery Date. For each
Required Album, if any, after the First Album, the Recording Fund shall be
the "Formula Amount" (defined below), but no less than the "Minimum Amount"
and no more than the "Maximum Amount" set forth in the Schedule below:
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The "Formula Amount" for the Second Album shall mean an amount equal
to two-thirds (2/3) of the royalties (after retention of reserves) earned
by you hereunder from Net Sales through Normal Retail Distribution
Channels in the United States of the First Album, computed as of end of
the applicable "Fund Calculation Period" (defined below) and for each
Required Album after the Second Album shall mean an amount equal to the
product of (i) one-half (1/2) and (ii) two-thirds (2/3) of the royalties
(after retention of reserves) earned by you hereunder from Net Sales
through Normal Retail Distribution Channels in the United States of the
two (2) Required Albums initially released immediately prior to the
Required Album for which the Formula Amount is being calculated, computed
as of the end of the applicable Fund Calculation Period for Required
Albums in question. The term "Fund Calculation Period" shall mean the
period commencing on date of the initial commercial release in the United
States of the Required Album for which royalty earnings are being
computed and ending on the date nine (9) months thereafter;
(c) The term "Pre-Delivery Payment" shall mean an amount equal to
five percent (5%) of the "Minimum Amount" for the applicable Required Album
set forth in the Schedule above. The term "Fund Balance" shall mean the
amount by which the Recording Fund exceeds the aggregate of the Recording
Costs for the applicable Required Album, the Pre-Delivery Payment for the
applicable Required Album (or the Execution Advance with respect to the
First Album along with the First Album Initial Partial Advance and the
First Album Final Partial Advance) and any other advances paid in
connection with the applicable Required Album. The term "Delivery Date"
shall mean the later of the date of your delivery to us of all Masters
constituting the applicable Required Album in accordance with all of the
terms of this Contract and the date on which we determine the aggregate
Recording Costs for that Required Album. Notwithstanding anything contained
herein, for any Album you deliver after the date delivery was due, the
Recording Fund for that Album shall be the applicable Minimum Amount for
that Album listed in Paragraph 8(b) above; and
(d) You acknowledge and agree that any and all advances paid by us
hereunder shall constitute prepayment of session union scale to you, and
you agree to timely complete and appropriately deliver any documentation
required by the applicable union to document and effectuate each such
prepayment.
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8A. Minimum Annual Compensation
(a) The aggregate amount of the compensation paid to you under this
agreement shall not be less than the "Designated Dollar Amount" (as defined
below) per Fiscal Year. "Fiscal Year", in this paragraph, means the annual
period beginning on the date of commencement of the Term, and each
subsequent annual period through the seventh such annual period, during
the Term.
(b) If you have not received compensation equal to the Designated
Dollar Amount under this agreement for a Fiscal Year, we shall pay you the
amount of any deficiency before the end of that Fiscal Year; at least forty
(40) days before the end of each Fiscal Year you shall notify us if you
have not received compensation equal to the Designated Dollar Amount under
this agreement for that Fiscal Year, and of the amount of the deficiency.
Each such payment shall constitute an Advance and shall be applied in
reduction of any and all monies due or becoming due to you under this
agreement. We may not withhold or require you to repay any payment made to
you pursuant to or subject to this paragraph 8A.
(c) As used in this paragraph 8A, the "Designated Dollar Amount"
shall be:
(1) Nine Thousand Dollars ($9,000) for the first Fiscal Year of
this agreement;
(2) Twelve Thousand Dollars ($12,000) for the second Fiscal Year
of this agreement; and
(3) Fifteen Thousand Dollars ($15,000) for each of the third
through seventh Fiscal Years of this agreement.
If in any Fiscal Year the aggregate amount of the compensation paid to you
under this agreement exceeds the Designated Dollar Amount, such excess
compensation shall apply to reduce the Designated Dollar Amount for any
subsequent Fiscal Years.
(d) You acknowledge that this paragraph is included to avoid
compromise of our rights (including our entitlement to injunctive relief)
by reason of a finding of applicability of California law, but does not
constitute a concession by us that California law is actually applicable.
9. Royalties.
(a) In consideration of our copyright ownership set forth herein,
any rights licensed to us herein, our right to use your name, likeness and
biographical materials as provided herein, and the other agreements,
representations and warranties contained herein, on Net Sales of Phonograph
Records embodying Masters, we shall pay to you a royalty computed by
multiplying the Royalty Base Price, less the deductions hereafter provided,
by the applicable royalty rate set forth below:
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(i) On Phonograph Records sold in the United States the royalty rate
shall be:
(A) (1) Eleven percent (11%) on Albums;
(2) The royalty rate pursuant to subparagraph 9(a)(i)(A)(1)
above on Net Sales through Normal Retail Distribution Channels in
the United States ("Qualifying Sales") of a particular Required
Album embodying solely newly-recorded Masters in the form of
Conventional cassette tapes and Compact Discs C "Qualifying
Album") which exceed five hundred thousand (500,000) units, but
which do not exceed one million (1,000,000) units, shall be the
royalty rate set forth in that subparagraph, plus one-quarter
percent (.25%). The royalty rate pursuant to subparagraph
9(a)(i)(A)(1) above on Qualifying Sales of a particular
Qualifying Album in the United States which exceed one million
(1,000,000) units shall be the royalty rate set forth in that
subparagraph (without regard to the operation of the provisions
of this subparagraph 9(a)(i)(A)(2) plus one-half percent (.50%).
Any increases in the royalty rate set forth in subparagraph
9(a)(i)(A)(1) above resulting from the operation of the
provisions of this subparagraph 9(a)(i)(A)(2) shall be
disregarded for the purpose of computing any other royalty rates
pursuant to this paragraph 9 which apply to sales of Records
outside the United States or which are a percentage of or
otherwise based upon the royalty rate set forth in subparagraph
9(a)(i)(A)(1) above; and
(B) Seven percent (7%) on Singles;
(ii) On Phonograph Records sold in Canada the royalty rate shall be:
(A) Nine percent (9%) on Albums; and
(B) Seven percent (7%) on Singles;
(iii) On Phonograph Records sold in the United Kingdom the royalty
rate shall be:
(A) Eight percent (8%) on Albums; and
(B) Six percent (6%) on Singles;
(iv) On Phonograph Records sold in Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Holland, Italy, Norway, Portugal, Spain, Sweden
or Switzerland, the royalty rate shall be:
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(A) Seven percent (7%) on Albums; and
(B) Five percent (5%) on Singles;
(v) On Phonograph Records sold in Japan, Australia or New Zealand, the
royalty rate shall be:
(A) Seven percent (7%) on Albums; and
(B) Five percent (5%) on Singles; and
(vi) On Phonograph Records sold outside the United States, Canada, the
United Kingdom and those countries set forth in subparagraphs 9(a)(iv) and
(v) above, the royalty rate shall be:
(A) Five and One half percent (5.5%) on Albums; and
(B) Three and One half percent (3.5%) on Singles;
(b) Notwithstanding the foregoing:
(i) (A) On Phonograph Records sold through a direct mail or mail
order distribution method (including, without limitation through
so-called "record clubs"), or through any combination of the
foregoing, the royalty rate shall be one-half (1/2) of the otherwise
applicable royalty rate, but in no event shall your royalty in respect
of those sales exceed an amount equal to fifty percent (50%) of the
Net Receipts from the sale of those Phonograph Records (whether or not
sold by an affiliate of ours);
(B) On Phonograph Records sold through retail stores in
connection with special radio or television advertisements (sometimes
referred to as "key outlet marketing") ("Key Outlet Campaign") whether
alone or in combination with any direct mail or mail order
distribution method, the royalty rate shall be one hundred percent
(100%) of the otherwise applicable royalty rate and notwithstanding
anything to the contrary herein, we shall have the right to recoup
fifty percent (50%) of any and all of the costs paid or incurred by us
or our licensees in respect of such Key Outlet Campaigns from any and
all royalties earned by you under this Contract;
(ii) On Phonograph Records sold for use as premiums or in connection
with the sale, advertising', or promotion of any other product or service,
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the royalty rate shall be one-half (1/2) of the otherwise applicable royalty
rate and the Royalty Base Price of those Phonograph Records shall be deemed to
be an amount equal to the monies actually received by us from the sale of
those Phonograph Records, unless manufactured and sold by an affiliate or
licensee of ours, in which event the Royalty Base Price shall be deemed to be
the price used by that affiliate or licensee in accounting to us;
(iii) On Mid-Price Records the royalty rate shall be two-thirds (2/3)
of the otherwise applicable royalty rate, and on Budget Records the royalty
rate shall be one-half (1/2) of the otherwise applicable royalty rate;
(iv) On Phonograph Records sold to the United States Government, its
subdivisions, departments or agencies (including Phonograph Records sold
for resale through military facilities) or to educational institutions or
libraries, the royalty rate shall be one-half (1/2) of the otherwise
applicable royalty rate;
(v) On Long-Play Singles, the royalty rate shall be one half (1/2) of
the otherwise applicable royalty rate for Albums, and on EPs the royalty
rate shall be two-thirds (2/3) of the otherwise applicable royalty rate for
Albums;
(vi) On Multiple Albums, the royalty rate shall be the lesser of: (A)
the otherwise applicable royalty rate and (B) the otherwise applicable
royalty rate multiplied by a fraction, the numerator of which is the
Royalty Base Price of the Multiple Album and the denominator of which is
the product of the Royalty Base Price of a top-line single-disc Album in
the configuration in question and the number of discs contained in the
Multiple Album;
(vii) On Phonograph Records in the form of Digital Records the royalty
rate shall be:
(A) Seventy Five percent (75%) of the otherwise applicable
royalty rate for all Digital Records other than Compact Discs; and
(B) Eighty percent (80%) of the otherwise applicable royalty rate
on Compact Discs;
(viii) On Masters licensed by us to others for their manufacture and
sale of Phonograph Records or for any other uses (other than those for
which a royalty is payable in accordance with subparagraph (x)(B) below),
your royalty shall be an amount equal to fifty percent (50%) of our Net
Receipts from the sale of those Phonograph Records or from those other uses
of the Masters;
(ix) On Audio-Visual Recordings embodying the performances of Artist,
your royalty shall be as follows:
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(A) On Audio-Visual Records your royalty shall be computed in
accordance with the provisions of this paragraph 9 applicable to
Albums, except on sales of Audio-Visual Records in the United States
the royalty rate pursuant to subparagraph 9(a)(i) above shall be
deemed to be eighteen percent (18%) and on sales of Audio-Visual
Records outside of the United States the royalty rate pursuant to
subparagraphs 9(a)(ii) through 9(a)(v) above shall be deemed to be
twelve percent (12%). Notwithstanding anything to the contrary
contained herein, the royalty payable to you pursuant to this
subparagraph (ix)(A) on the exploitation of Audio-Visual Recordings in
the United States or Canada shall be inclusive of any royalties or
other monies required to be paid or incurred by us (or otherwise
deducted from monies payable to us) to any person, firm or corporation
for the synchronization, reproduction and/or public performance of any
Selection in the Audio-Visual Recording in question and, without
limiting any of our other rights or remedies hereunder or otherwise,
we shall have the right to deduct from the royalty payable to you
pursuant to this subparagraph (ix)(A) an amount equal to those sums
required to be paid to any person, firm or corporation in connection
therewith;
(B) On Audio-Visual Records manufactured and sold by a
non-affiliated licensee of ours, however, in the United States or
elsewhere, your royalty shall be an amount equal to fifty percent
(50%) of our Net Receipts from the sale of those Audio-Visual Records
(rather than the royalty computed in accordance with the immediately
preceding subparagraph (A); and
(C) Notwithstanding anything to the contrary contained herein,
the exploitation of Audio-Visual Recordings by means of any so-called
"video jukebox" shall be deemed to be non-royalty bearing and
promotional in nature for all purposes of this Contract; and
(D) On Mid-Price Audio-Visual Records the royalty rate shall be
three-fourths (3/4) of the otherwise applicable royalty rate, and on
Budget Audio-Visual Records the royalty rate shall be one-half (1/2)
of the otherwise applicable royalty rate;
(x) On New Records your royalty shall be the lesser of the following:
(A) Seventy-five percent (75%) of the otherwise applicable
royalty rate applied to the Royalty Base Price of the New Record
concerned; and
(B) An amount equal to the product of (1) our Net Receipts from
the exploitation of those New Records, and (2) the otherwise
applicable royalty rate;
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(c) Notwithstanding the foregoing:
(i) No royalties shall be payable on Phonograph Records furnished
as free or bonus Phonograph Records to members, applicants, or other
participants in any record club or other direct mail distribution method;
on Phonograph Records distributed for promotional purposes to radio
stations, television stations or networks, record reviewers, or other
customary recipients of promotional Phonograph Records; on so-called
"promotional sampler" Phonograph Records; on Phonograph Records sold as
scrap or as "cut-outs"; or on Phonograph Records (whether or not intended
for sale by the recipient) furnished on a no-charge or free basis (such as,
but not limited to, Phonograph Records commonly described in the record
industry as "free goods" or "freebies") or sold at less than fifty percent
(50%) of their regular wholesale price to distributors, subdistributors,
dealers, or others, whether or not the recipients thereof are affiliated
with us. We shall not distribute Phonograph Records embodying solely
Masters in the United States at no-charge for sale by the recipient thereof
other than in accordance with our then-current general policy applicable at
the time of our distribution of those Records which, in the United States
on the date of this Contract, is the distribution of the following
Phonograph Records at no charge intended for sale by the recipient thereof
(1) on a regular basis, as follows: Fifteen (15) Albums and EPs in the form
of Conventional vinyl discs and cassette tapes for each eighty-five (85) of
those Albums and EPs sold (that is, fifteen (15) Albums and EPs in the form
of conventional vinyl discs and cassette tapes are distributed at no charge
out of each one hundred (100) of those Albums and EPs distributed for sale
by the recipient thereof); twenty (20) Albums and EPs in the form of
Digital Records (including, without limitation, Compact Discs) for each
eighty (80) of those Albums sold (that is, twenty (20) Albums in the form
of Digital Records are distributed at no charge out of each one hundred
(100) of those Albums distributed for sale by the recipient thereof); and
thirty (30) Singles and Long-Play Singles in all forms and configurations
for each seventy (70) Singles and Long-Play Singles sold in any form or
configuration (that is, thirty (30) Singles and Long-Play Singles in all
forms and configurations are distributed at no charge out of each one
hundred (100) Singles and Long-Play Singles distributed in any form or
configuration for sale by the recipient thereof); and thirty (30)
Phonograph Records other than Albums, EPs, Singles and Long-Play Singles,
if any, for each seventy (70) of those Phonograph Records sold in'any form
or configuration (that is, thirty (30) Phonograph Records other than
Albums, EPs, Singles and Long-Play Singles, if any, are or would be
distributed at no charge out of each one hundred (100) of those Phonograph
Records distributed for sale by the recipient thereof); and (2), from time
to time in connection with short-term or other special sales programs of
limited duration, such additional Records as we in the exercise of our
business judgment determine. We shall distribute Phonograph Records in the
form of New Records embodying solely Masters in the United States at
no-charge for sale by the recipient thereof in accordance with our
then-current general policy applicable to Compact Discs at the time of our
distribution of those Records;
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(ii) Royalties on Phonograph Records (whether or not intended for
sale by the recipient thereof) sold at a discount to distributors,
subdistributors, dealers, or others, whether or not affiliated with us
(except for Phonograph Records sold at less than fifty percent (50%) of
their regular wholesale price, for which no royalties are payable
hereunder) shall be reduced in the same proportion as the regular wholesale
price of those Phonograph Records is reduced on those sales;
(iii) For purposes of computing royalties, there shall be
deducted from the Royalty Base Price (or other applicable price, if any,
upon which royalties are calculated) of Phonograph Records hereunder an
amount equal to twenty percent (20%) thereof for all Phonograph Records in
the form of Conventional cassette tapes and twenty-five percent (25%)
thereof for Phonograph Records in all other forms, whether now known or
hereafter devised;
(iv) Phonograph Records distributed by any of our affiliates
shall be deemed sold for the purposes of this Contract only if sold by that
affiliate to one of its independent third party customers and final payment
is received therefor by us in United States Dollars in the United States;
(v) The royalty payable to you hereunder on a Phonograph Record
or other device embodying Masters together with other Master Recordings
shall be computed by multiplying the otherwise applicable royalty rate by
the "Reduction Factor." As used herein, the term "Reduction Factor" shall
mean, at our election, (A) a fraction, the numerator of which shall be the
number of Selections contained on the Masters which are embodied on that
Phonograph Record or other device and the denominator of which shall be the
total number of Selections embodied on that Phonograph Record or other
device or (B) a fraction, the numerator of which shall be the playing time
of the Selections contained on the Masters which are embodied on that
Phonograph Record or other device and the denominator of which shall be the
total playing time of the Phonograph Record or other device in question.
For any Phonograph Record or other device for which a finite running or
playing time does not exist, the running or playing time of that Phonograph
Record or other device shall be deemed to be one hundred twenty (120)
minutes; and
(vi) The royalty payable to you hereunder and the Recording Costs
hereunder on a Master embodying your performances jointly with any other
artist or musician to whom we are obligated to pay a royalty in respect of
that Master shall be computed by multiplying the otherwise applicable
royalty rate and Recording Costs by a fraction, the numerator of which
shall be one (1) and the denominator of which shall be the sum of one (1)
and the total number of other artists or musicians whose performances are
embodied on that Master; and
(d) You hereby expressly authorize us and our licensees to collect and
receive on your behalf any royalties or other monies which may be payable in the
United
16
States pursuant to the Audio Home Recording Act allocable to featured performers
and which is otherwise determined to be payable to you in respect of your
performances in Masters ("AHRA Monies"). We shall credit to your account that
portion of AHRA Monies received by us which is specifically allocable to Masters
and otherwise payable to you (less any portion thereof which may be payable to
any third party, including, without limitation, any producer of Masters). You
shall execute any further documentation which we reasonably deem necessary or
desirable to effectuate the foregoing provisions of this subparagraph (d).
Without limiting the foregoing, you shall not have the right hereunder or
otherwise to be paid or to have credited to your account any portion of AHRA
Monies received by us or otherwise received on our behalf pursuant to the Audio
Home Recording Act which is allocable to the owner of the sound recording.
10. Royalty Payments and Accountings.
(a) We shall send to you statements for royalties payable hereunder on
or before the date ninety (90) days after the end of each of our then-current
semi-annual accounting periods (currently ending on June 30 and December 31),
together with payment of royalties, if any, earned by you hereunder during the
semiannual period for which the statement is rendered (based on our receipts in
the United States during the accounting period for which the statement is
rendered), less all advances and charges under this Contract. Notwithstanding
the foregoing, after the Term, no royalty statement shall be required to be
rendered for any semi-annual accounting period in which less than Five Thousand
Dollars ($5,000) in royalties are credited to your account (whether by
exploitation of Masters or liquidation of reserves) unless (i) royalties are
otherwise actually payable to you for that semi-annual accounting period, or
(ii) you notify us in writing of your request that we render to you a statement
for the semi-annual accounting period in which we receive that request on the
date otherwise required hereunder. We shall have the right to retain, as a
reserve against charges, credits, or returns, such portion of payable royalties
as shall be commercially reasonable and customary in the industry in our best
business judgment. You shall reimburse us on demand for any overpayments, and we
may also deduct the amount thereof from any monies payable to you hereunder.
Royalties paid by us on Phonograph Records subsequently returned shall be deemed
overpayments;
(b) No royalties shall be payable to you on sales of Phonograph
Records or other exploitations of Masters by any of our affiliates or licensees
until payment on those sales has been received by us in the United States. Sales
or other exploitations by an affiliate or licensee shall be deemed to have
occurred in the semiannual accounting period during which that affiliate or
licensee shall have rendered to us and we shall have received in the United
States accounting statements and payments for those sales or other exploitations
of Masters;
(c) (i) Royalties on exploitations of Masters outside of the United
States shall be computed in the national currency in which our licensees or
affiliates or other distributors pay us, shall be credited to your royalty
account hereunder at the same rate of exchange at which our licensees or
affiliates or other distributors pay us, and shall be proportionately
subject to any foreign withholding
17
or comparable taxes which may be imposed upon our receipts. You shall not
be entitled to any portion of a tax credit which may be available to us or
to any of our licensees or affiliates in connection with any foreign taxes
withheld from our receipts, from the applicable price in computing the
Royalty Base Price, or from any other source; and
(ii) If we shall not receive payment in United States dollars in
the United States for any exploitations of Masters outside of the United
States, royalties on those exploitations shall not be credited to your
royalty account hereunder. If all advances and other recoupable charges
under this Contract are then-currently recouped and if we are able to do
so, we shall accept payment for those exploitations in foreign currency and
shall deposit in a foreign bank or other depository, at your expense, in
that foreign currency, that portion thereof, if any, as shall equal the
royalties which would have been payable to you hereunder on those
exploitations had payment for those exploitations been made to us in United
States dollars in the United States. The foregoing deposit shall not be
reflected on your accounting statements hereunder. Deposit as aforesaid
shall fulfill our royalty obligations hereunder as to those sales. If any
law, ruling or other governmental restriction limits the amount an
affiliate or licensee can remit to us, we may reduce your royalties
hereunder by an amount proportionate to the reduction in our affiliate's or
licensee's (as appropriate) remittance to us;
(d) You shall be deemed to have consented to all royalty statements
and all other accountings rendered or required to be rendered by us hereunder
and each royalty statement and other accounting shall be conclusive, final, and
binding, shall constitute an account stated, and shall not be subject to any
objection for any reason whatsoever, unless you give us notice stating the
specific basis for that objection within one (1) year after the date rendered or
required to be rendered. You may not maintain any action, suit, or proceeding of
any nature against us in respect of any royalty statement or other accounting
rendered or required to be rendered by us hereunder (or in respect of the
accounting period to which it relates or was to relate) unless you commence that
action, suit, or proceeding against us in a court of competent jurisdiction
within one (1) year after the date rendered or required to be rendered. If you
shall commence an action, suit, or proceeding against us concerning royalty
statements or other accountings rendered or required to be rendered by us to you
hereunder, the scope of that action, suit or proceeding shall be limited to a
determination of the amount of royalties, if any, payable to you for the
accounting periods in question, and your sole remedy shall be the recovery of
those royalties;
(e) We shall maintain books and records concerning the sale of
Phonograph Records hereunder. You shall have the right to designate an
independent certified public accountant on your behalf (who shall not be
compensated on a contingent fee basis), at your own expense, to examine those
books and records (but not any of our books or records relating to the
manufacture of Phonograph Records hereunder) solely for the purpose of verifying
the accuracy of royalty statements and other accountings rendered by us
hereunder, only during our normal business hours and only upon reasonable
written notice. Our books and records relating to a particular royalty statement
or other
18
accounting may be examined only within one (1) year after the date rendered or
required to be rendered. We shall have no obligation to permit you to examine
our books or records relating to any particular royalty statement or other
accounting more than once. Prior to rendering a report to you with respect to
the examination of our books and records as aforesaid, the independent certified
public accountant engaged by you shall first review his or her tentative written
findings with a designated representative of our finance department in order to
remedy any factual errors and clarify any issues that may have resulted from
misunderstanding. You hereby acknowledge that our books and records contain
confidential trade information. Neither you nor your independent certified
public accountant or other representatives shall communicate at any time to any
others or use on behalf of any other person, firm or corporation any facts or
information obtained as a result of any such examination of our books and
records. Further, prior to the commencement of any examination of our books and
records in accordance with the provisions of the subparagraph (e), you shall
cause the independent certified public accountant engaged by you to sign a
letter in a form approved by us which acknowledges his or her agreement (and the
agreement of his or her firm) to be bound by the foregoing. The rights
hereinabove granted to you shall constitute your sole and exclusive rights to
examine our books and records;
(f) We shall have the right to deduct from any monies payable to you
hereunder any amounts paid by us to you or to any person, firm or corporation
representing you or incurred by us on your behalf or on behalf of any person,
firm or corporation representing you, if those monies are not otherwise required
to be paid or incurred by us hereunder (unless we expressly agree in writing
that the payment in question is non-deductible or is only recoupable from
royalties earned by you hereunder). Accordingly, all amounts paid or incurred by
us for the services of third parties to market and promote sales of Phonograph
Records embodying Masters shall be recoupable from royalties earned by you
hereunder; and
(g) We shall have the right to deduct from any monies payable to you
hereunder any amounts which are required to be deducted from any of those monies
under any statute, regulation, treaty or other law, or under any union or guild
agreement, and you shall promptly execute and deliver to us any forms or other
documents as may be required in connection therewith. If we fail for any reason
to deduct and instead pay any of those monies required to be deducted from
monies payable to you hereunder, and if, as a result, we are required by any
statute, regulation, treaty or other law or union or guild agreement to pay to
any third party any amounts which were paid to you but which were required to be
deducted, then, without limiting any of our other rights or remedies in that
event, you shall pay to us, upon our demand, the amount of those monies which
were paid to you but which were required to be deducted, or, at our election, we
may deduct from any monies payable to you hereunder the amount of those monies
paid to you but which were required to be deducted.
11. Musical Composition Licenses.
(a) You hereby grant to us and our designees the irrevocable non-
19
exclusive right to reproduce each Controlled Composition on Phonograph Records
and to distribute those Phonograph Records in the United States and Canada on
the following terms and conditions:
(i) Mechanical royalties shall be payable for Controlled Compositions
on Net Sales of Phonograph Records in the United States and Canada at the
following rates:
(A) On Phonograph Records sold in the United States, the rate for
each Controlled Composition embodied thereon shall be the United States
Controlled Composition Mechanical Rate. The term "United States
Controlled Composition Mechanical Rate" shall mean an amount equal to
seventy-five percent (75%) of the "United States Mechanical Rate." The
term "United States Mechanical Rate" shall mean an amount equal to the
minimum statutory royalty rate (without regard to playing time)
provided in the United States Copyright Act for the reproduction of
Musical Compositions as of the "Determination Date" (defined below);
(B) On Phonograph Records sold in Canada, the rate for each
Controlled Composition embodied thereon shall be the Canadian
Controlled Composition Mechanical Rate. The term "Canadian Controlled
Composition Mechanical Rate" shall mean an amount equal to seventy-five
percent (75%) of the Canadian Mechanical Rate. The term "Canadian
Mechanical Rate" shall mean an amount equal to the minimum statutory
royalty rate (without regard to playing time) provided in the Canadian
Copyright Act for the reproduction of Musical Compositions as of the
Determination Date. If no such statutory royalty rate exists, then the
term "Canadian Mechanical Rate" shall mean the minimum, standard
mechanical royalty rate provided in mechanical licenses between record
companies and unrelated publishers in Canada which are issued by
C.M.R.R.A. (or any successor) as of the Determination Date. If no such
standard mechanical royalty rate exists, however, then the term
"Canadian Mechanical Rate" shall mean the mechanical royalty rate which
we may, in good faith, negotiate at arm's-length with unrelated
publishers effective as of the Determination Date. In no event,
however, shall the number of Canadian pennies constituting the Canadian
Mechanical Rate exceed the number of United States pennies constituting
the United States Mechanical Rate in effect as of the Determination
Date; and
(C) The term "Determination Date" shall mean the date of delivery
to us of the first (1st) Master embodying the Musical Composition in
question or, if earlier, the date on which that first (1st) Master was
required to be delivered to us hereunder;
(ii) Notwithstanding the foregoing: The mechanical royalty rate on a
Controlled Composition which is an arrangement of a public domain work
shall be
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that percentage of the United States Controlled Composition Mechanical Rate
or the Canadian Controlled Composition Mechanical Rate, as applicable, that
is equal to the percentage of the arrangement of the Controlled Composition
which is original in the arrangement and therefore subject to copyright in
accordance with the rules and regulations of ASCAP and/or BMI and for which
ASCAP and/or BMI provides written documentation of that percentage of the
originality in and to that arrangement of a Controlled Composition; the
mechanical royalty rate for a Controlled Composition recorded in an EP,
Long-Play Single, Mid-Price Record, Budget Record or Records sold through
record clubs shall be three-fourths (3/4) of the United States Controlled
Composition Mechanical Rate or the Canadian Controlled Composition
Mechanical Rate, as applicable; if any particular Record (including,
without limitation, so-called "cassette Singles") embodies more than one
(1) of the same or different recordings of the same Controlled Composition,
then the United States Controlled Composition Mechanical Rate or Canadian
Controlled Composition Mechanical Rate, as the case may be, shall be
payable only once on all reproductions of that Controlled Composition in
that Record; and no mechanical royalties shall be payable for the
reproduction of any Controlled Composition on a Phonograph Record unless
the timing of the Controlled Composition in question as recorded in the
Master embodied on that Phonograph Record exceeds one (1) minute and thirty
(30) seconds in length;
(b) The term "Outside Selection" shall mean each Selection which is
not a Controlled Composition. You acknowledge that as an element of your
delivery to us of a Master, you are required to cause the issuance to us of
licenses to reproduce mechanically each Outside Selection in all Phonograph
Records sold in the United States or Canada on the Required Terms. The term
"Required Terms" shall mean mechanical royalty rates and otherwise on terms
that do not exceed the mechanical royalty rates and that otherwise are no
less favorable to us and our designees than those provided in the standard
mechanical licenses issued by The Xxxxx Xxx Agency, Inc. or any successor
for Phonograph Records sold in the United States and by C.M.R.R.A. or any
successor for Phonograph Records sold in Canada, except (i) the royalty
rate for the mechanical reproduction of Outside Selections on Phonograph
Records sold in the United States or Canada must not exceed the United
States Mechanical Rate or the Canadian Mechanical Rate above, as
applicable, and (ii) no royalties shall be payable for the mechanical
reproduction of Outside Selections on Phonograph Records sold in the United
States or Canada for which no Record royalties are payable under paragraph
9 above or otherwise. If for any reason you fail to cause the issuance to
us of a license for the mechanical reproduction of any Outside Selection as
and when required hereunder, we shall have the right, at our election and
without limiting our other rights or remedies in that event, to negotiate
and execute licenses for the mechanical reproduction of each such Outside
Selection on Phonograph Records distributed in the United States or Canada
on terms and conditions which are determined solely by us or our designees.
Solely for purposes of subparagraph (e) below, those licenses so procured
by us shall be deemed to be on terms no less favorable to us or our
designees than the Required Terms. Nothing contained in
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this subparagraph amends or modifies your obligation to deliver to us and
our designees licenses for the mechanical reproduction of all Selections
recorded in the Masters as a condition for the delivery to us of Masters or
waives the provisions of subparagraph 11(i) below;
(c) (i) Notwithstanding anything to the contrary contained herein, for
Net Sales in the United States, the maximum aggregate mechanical royalty
rate for all Selections, including Controlled Compositions, contained on a
Phonograph Record, regardless of the number of Selections contained
thereon, shall be the product of (A) the United States Controlled
Composition Mechanical Rate and (B) ten (10) for an Album, five (5) for an
EP, and two (2) for a Single and a Long-Play Single; and for Net Sales in
Canada, the maximum aggregate mechanical royalty rate for all Selections,
including Controlled Compositions, contained on a Phonograph Record,
regardless of the number of Selections contained thereon, shall be the
product of (A) the Canadian Controlled Composition Mechanical Rate and (B)
ten (10) for an Album, five (5) for an EP, and two (2) for a Single and a
Long-Play Single;
(ii) Notwithstanding the foregoing, if we release a Multiple Album
embodying solely Masters hereunder, then, solely with respect to that
Multiple Album, the maximum aggregate mechanical royalty rate for Net Sales
of that Multiple Album in the United States or Canada shall be the
otherwise applicable maximum set forth in subparagraph 11(c)(i) above for
Net Sales of Albums in the United States or Canada, as applicable,
multiplied by a fraction, the numerator of which is the Royalty Base Price
of that Multiple Album in the United States or Canada, as applicable, and
the denominator of which is the highest Royalty Base Price of an Album
which is not a Multiple Album in the configuration or format in question
released on our top-line label in the United States or Canada, as
applicable, as of the date of our initial release through normal retail
distribution channels in the United States or Canada, as applicable, of
that Multiple Album; and
(iii) Notwithstanding anything to the contrary contained herein,
royalties for the mechanical reproduction of any Selection in any
Phonograph Record distributed in the United States or Canada shall be
payable only on Net Sales of that Phonograph Record in question for which
in a Record royalty is payable hereunder pursuant to paragraph 9 above; and
(d) We shall account for and pay royalties for the mechanical
reproduction of Controlled Compositions in accordance with the provisions
of subparagraphs (a), (d), (e), and (g) of paragraph 10 above; and
(e) If for any reason we are required to pay royalties for the
mechanical reproduction of any particular Selection (including a Controlled
Composition) or for the mechanical reproduction of all Selections that are
mechanically reproduced in a particular Phonograph Record in excess of the
applicable amounts fixed in subparagraphs (a), (b) or (c) above, the
royalties payable by us for the mechanical reproduction of Controlled
22
Compositions on Phonograph Records hereunder shall be reduced by an amount
equal to such excess. If that excess is greater than the amount of
royalties payable for the mechanical reproduction of Controlled
Compositions on the Phonograph Record in question, then upon our demand,
you shall pay to us an amount equal to the amount by which those excess
mechanical royalties exceed the royalties payable for the mechanical
reproduction of Controlled Compositions. In addition to all of our other
rights and remedies, we may deduct the amount of that excess from any and
all royalties or other monies payable to you under this Contract;
(f) Upon our request, you shall cause the issuance to us and our
designees a license to reproduce all Selections mechanically on Phonograph
Records hereunder distributed outside the United States and Canada on terms
no less favorable to us and our designees than those generally applicable
to Phonograph Record manufacturers in each country in question. The
obligation to account for and pay royalties for the mechanical reproduction
of Selections on sales of Phonograph Records outside of the United States
shall be that of our affiliates and licensees;
(g) If the copyright in any Controlled Composition is owned or
controlled by a person, firm or corporation other than you, you shall cause
that person, firm or corporation to grant to us and our designees the same
rights as you are required to grant to us and our designees pursuant to
this paragraph 11;
(h) You hereby grant to us and our designees, at no fee, royalty, or
other cost to us or our designees, the irrevocable, non-exclusive,
worldwide right in perpetuity to reproduce and publicly perform each
Controlled Composition in Audio-Visual Recordings, to distribute
Audio-Visual Records embodying those Audio-Visual Recordings, and otherwise
to exploit in any manner and through any media those Audio-Visual
Recordings. You shall, upon our request, cause the issuance to us and our
designees, at no fee, royalty, or other cost to us or our designees, the
irrevocable, non-exclusive, worldwide right in perpetuity to reproduce and
publicly perform each Selection which is not a Controlled Composition in
Audio-Visual Recordings, to distribute Audio-Visual Records embodying those
Audio-Visual Recordings, and otherwise to exploit in any manner or media
those Audio-Visual Recordings. If we or our designees shall pay any such
fee, royalty, or other cost, then you shall, upon our demand, pay us the
amount thereof, and we may, in addition to all of our other rights and
remedies, deduct that amount from any monies payable by us hereunder,
including without limitation, from those royalties payable pursuant to
paragraph 9 above in respect of the exploitation of Audio-Visual Recordings
in the United States or Canada;
(i) Any assignment, license or other agreement made with respect to
Controlled Compositions shall be subject to the terms hereof, and
(j) You grant to us and our designees the irrevocable right throughout
the world in perpetuity to (A) print and reproduce on the packaging of
Phonograph Records, at our election, the title and lyrics to each
Controlled Composition embodied in a Master and (B) digitally encode in a
Master or transmit together with the transmission of
23
the Master the title and/or lyrics to each Controlled Composition embodied
in a Master, all without payment to you or any other person, firm or
corporation of any monies or other consideration in connection therewith.
You also shall cause to be granted to us and our designees the irrevocable
right throughout the world in perpetuity to (A) print and reproduce on the
packaging of Phonograph Records embodying Masters, at our election, the
title and lyrics to each Selection embodied in a Master that is not a
Controlled Composition and (B) digitally encode in a Master or transmit
together with the transmission of the Master the title and/or lyrics to
each Selection embodied in the Master which is not a Controlled
Composition, all without payment to you or any other person, firm or
corporation of any monies or other consideration in connection therewith.
If we are required to pay any monies to any person, firm or corporation for
the printing, reproduction, encoding, or transmission of the title or
lyrics of any Selection recorded in a Master as aforesaid, then you shall,
upon our demand, pay to us an amount equal to those monies paid by us in
connection therewith and we may, in addition to all of our other rights or
remedies, deduct that amount from any monies payable by us hereunder.
12. Audio-Visual Recordings.
(a) Upon our request, you shall appear for the making of Audio-Visual
Recordings embodying your performances on the following terms:
(i) We shall designate the Musical Compositions which shall be
embodied in the Audio-Visual Recordings, the producer and director of
the Audio-Visual Recordings, all other individuals rendering services
in connection with the production of the Audio-Visual Recordings, the
storyboard and script for the production of the Audio-Visual
Recordings, and the locations at and the dates on which the
Audio-Visual Recordings shall be produced (collectively referred to as
"Audio-Visual Production Elements");
(ii) We shall pay the Audio-Visual Production Costs of the
Audio-Visual Recordings in an amount not in excess of a budget
designated or approved by us in writing. "Audio-Visual Production
Costs" shall mean and include all minimum union scale payments made to
you in connection with the production of the Audio-Visual Recordings,
all payments which are made to any other individuals rendering
services in connection with the production of the Audio-Visual
Recordings, all other payments which are made pursuant to any
applicable law or regulation or the provisions of any collective
bargaining agreement between us and any union or guild (including,
without limitation, payroll taxes and payments to union pension and
welfare funds), all amounts paid or incurred for studio, hall,
location or set rentals, tape, film, other stock, engineering,
editing, instrument rentals and cartage, transportation and
accommodations, immigration clearances, any so-called "per diems" for
any individuals (including, you) rendering services in connection with
the production of the Audio-Visual Recordings, together with all other
amounts paid or incurred in connection with the production and
delivery to us of the Audio-Visual Recordings. One hundred percent
(100%) of the Audio-Visual Production Costs shall be recoupable from
royalties payable under this Contract on
24
the reproduction or other exploitation of all Audio-Visual Recordings
and Audio-Visual Records. Fifty percent (50%) of the aggregate
Audio-Visual Production Costs of each Audio- Visual Recording shall be
recoupable from royalties payable under this Contract on the
reproduction or other exploitation of Masters in Phonograph Records
reproducing sound alone;
(iii) The Audio-Visual Recordings shall be produced in accordance
with the rules and regulations of all labor unions and guilds having
jurisdiction over the production thereof;
(iv) You shall cooperate with us and our designees fully and to
perform to the best of your ability in connection with the production
of the Audio-Visual Recordings; and
(v) If the Audio-Visual Production Costs exceed the budget
approved by us in writing, you shall be solely responsible for and
shall promptly pay that excess. If, however, we pay any excess
Audio-Visual Production Costs, you shall pay to us, upon our demand,
an amount equal to that excess. If for any reason you delay the
commencement of or are not available for any scheduled appearance by
you relating to the production of the Audio-Visual Recordings, you
shall pay to us, upon our demand, an amount equal to the expenses or
charges paid or incurred by us by reason thereof. Notwithstanding
anything to the contrary contained herein, without limiting our other
rights and remedies, we may deduct the foregoing amounts from any
monies payable by us hereunder;
(b) Our rights in the Audio-Visual Recordings and our rights to use
your name and the name, likeness, and other identification and biographical
material concerning you are set forth in paragraphs 6 and 7 hereof, wherein
the terms "Master Recordings" and "Phonograph Records" include Audio-Visual
Recordings and Audio-Visual Records, respectively; and
(c) Audio-Visual Recordings shall not apply in fulfillment of your
Recording Commitment. We shall have no obligation, except as expressly
otherwise provided in this paragraph 12, to pay to you any monies in
connection with the production of Audio-Visual Recordings.
(d) We are under no obligation whatsoever to produce Videos hereunder.
Notwithstanding the foregoing, we agree to produce one (1) Video in
connection with each Album in fulfillment of the Recording Commitment,
provided that music videos remain a viable tool among major record
companies in the music industry for the marketing and promotion of Records
of the same genre as yours.
13. Warranties, Representations and Covenants. You hereby warrant,
represent, covenant and agree as follows:
(a) You have the right and power to enter into this Contract, to grant
25
the rights granted by you to us hereunder, and to perform all of the terms
hereof. Without limiting the generality of the foregoing, no Musical
Composition, other Selection or any other material recorded by you shall be
subject to any re-recording or other restrictions;
(b) During the Term, you shall become and remain members in good
standing of any labor union or guilds with which we may at any time have an
agreement lawfully requiring your membership;
(c) All recording sessions for the Masters shall be conducted in all
respects in accordance with the terms of the AF of M Phonograph Record
Labor Agreement, of the AFTRA Code for the Phonograph Industry, and of the
agreements with all other labor unions and guilds having jurisdiction over
the recording of the Masters;
(d) None of the following will violate or infringe upon the rights of
any person, firm or corporation, including, without limitation, contractual
rights, copyrights, rights of publicity and rights of privacy: any name or
other identification used by you; any Controlled Compositions; any other
Selections; and any materials, ideas, or other properties furnished or
designated by you and embodied or contained in or used in connection with
the Masters or the packaging of or the advertising for the Phonograph
Records embodying the Masters
(e) All recordings embodying your performances heretofore have been
released commercially in the United States on Phonograph Record;
(f) You shall not at any time, directly or indirectly, give or offer
to give any consideration of any kind to any radio or television station or
network, to any employee thereof, or to any person, firm, or corporation
controlling or influencing that station or network's programming for the
purpose of securing the broadcast or promotion of any Phonograph Records
hereunder;
(g) Except as otherwise specifically provided herein, we shall have no
obligation hereunder or otherwise to pay any person, firm, or corporation
any amounts in connection with the exercise of any of our rights hereunder,
including, without limitation, our rights with respect to the recording or
exploitation of Master Recordings; and
(h) Without limiting the generality of anything contained in the
foregoing, you shall neither authorize the production of, nor shall you
produce for or deliver to us, any Master for which the recording method
known as "sampling" shall have been utilized to record in that Master any
sound or material created, owned or controlled by any third party.
14. Recording Restrictions.
(a) During the Term, you shall not enter into any agreement or make
any commitment which would interfere with your performance of any of the
terms hereof. Further, during the Term, you shall not perform for or render
services in connection with
26
the recording of any Master Recordings for use or reproduction in
Phonograph Records by any person, firm, or corporation other than us. After
the Term, you shall not perform prior to the Restriction Date for any
person, firm or corporation other than us, for the purpose of making
Phonograph Records or Master Recordings, any Selection recorded hereunder
or under any other agreement between you and us or our affiliates. The term
"Restriction Date" shall mean the later of (i) the date five (5) years
subsequent to the last date on which a Master Recording embodying that
Selection was delivered to us and (ii) the date two (2) years subsequent to
the date on which the Term ended; and
(b) You shall not at any time manufacture, distribute, or sell or
authorize the manufacture, distribution, or sale by any person, firm, or
corporation other than us of Phonograph Records embodying (i) any
performance rendered by you during the Term or (ii) any performance
rendered by you after the Term of a Selection recorded hereunder if that
performance shall have been rendered prior to the Restriction Date
applicable to that Selection. Furthermore, you shall not record or
authorize or knowingly permit to be recorded for any purpose any such
performance without in each case taking reasonable measures to prevent the
manufacture, distribution, or sale at any time by any person, firm, or
corporation other than us of Phonograph Records embodying that performance.
Specifically, but without limiting the generality of the foregoing, if
during the Term you perform any Selection or if after the Term you perform
any Selection prior to the Restriction Date applicable thereto, you will
not authorize or knowingly permit that Selection to be recorded unless
pursuant to a written contract containing an express provision that neither
that performance nor the recording thereof will be used directly or
indirectly for the purpose of making Phonograph Records. Upon our request,
you shall promptly deliver to us a copy of the pertinent provisions of each
such contract and you shall cooperate fully and reasonably with us in any
controversy which may arise or litigation which may be instituted relating
to our rights pursuant to this paragraph.
15. Unique Services. You expressly acknowledge that your services
hereunder are of a special, unique, intellectual, and extraordinary character
which gives them peculiar value, and that, in the event of a breach by you of
any term hereof, we will be caused irreparable injury which cannot adequately be
compensated by money damages. Accordingly, we shall be entitled to injunctive
relief, in addition to any other rights or remedies which we may have, to
enforce the terms of this Contract.
16. Certain Remedies.
(a) We may, at our election, suspend the running of the Term and our
obligations hereunder upon written notice to you (i) if for any reason
whatsoever your voice or ability to perform as an instrumentalist shall
become materially impaired, (ii) if you shall refuse, neglect, fail, or be
unable to fulfill any of your obligations hereunder, or (iii) if as a
result of an Act of God, accident, fire, labor controversy, riot, civil
commotion, act of public enemy, law, enactment, rule, order, or act of any
government or governmental instrumentality, failure of technical
facilities, failure or delay of transportation facilities, illness or
incapacity of you, or others, or other cause of a similar or dissimilar
nature not reasonably within our control, we are hampered in the recording,
manufacture, distribution,
27
or sale of Phonograph Records or our normal business operations become
commercially impractical. A suspension shall be for the duration of any
such event or contingency, and, unless we notify you to the contrary in
writing, the Contract Period during which that event or contingency shall
have commenced shall be automatically extended by a number of days equal to
the total number of days of the suspension, or such fewer number of days of
which we may advise you in writing. If any period of suspension arising
from events other than (i) the impairment of your voice or ability to
perform as an instrumentalist, (ii) your refusal, neglect, failure, or
inability to fulfill any of your obligations hereunder, or (iii) any other
event affecting a substantial portion of the United States recording
industry, shall exceed six (6) consecutive months in duration, you may give
to us notice at any time during the continuation of that period of
suspension after the date six (6) months after its commencement, of your
desire that we discontinue such period of suspension and that the Term be
terminated if we fail to do so ("Termination Request"). If we shall fail to
give to you notice of our discontinuance of that period of suspension
within ten (10) business days after our receipt of your Termination
Request, the Term shall expire and we shall have no obligations or
liabilities to you hereunder, except for our obligations with respect to
Masters delivered hereunder prior to that termination, if any.
Notwithstanding the foregoing, a suspension of the Term pursuant to this
subparagraph 16(a) shall not suspend our royalty accounting and payment
obligations hereunder unless the event causing that suspension materially
affects our ability to make payments or render statements. No suspension
shall in any manner suspend or otherwise impair our rights under this
Contract;
(b) If your voice or ability to perform as an instrumentalist shall
become impaired or if you shall refuse, neglect, fail, or be unable to
fulfill any of your obligations hereunder, including, without limitation,
your obligation to record for and deliver to us Masters within the time
periods set forth in paragraph 3 above, we may, without limiting our other
rights or remedies, terminate the Term upon written notice to you, in which
event we shall have no obligations or liabilities to you under this
Contract, except for our obligations, if any, with respect to Masters
recorded prior to that termination. If we so terminate the Term, you shall
pay us, on demand, an amount equal to any unrecouped advances hereunder,
other than any advances attributable to and paid in respect of a Required
Album theretofore delivered by you to us; and
(c) In addition to our other rights hereunder, we shall have the
right, at our election and for any reason, with or without cause, to
terminate the Term at any time by written notice to you. Additionally, we
shall have the right, at our election, with or without cause, to refuse to
permit you to fulfill your then-current Recording Commitment for any
Contract Period including, without limitation, by discontinuing recording
sessions for any Masters and ceasing the payment of Recording Costs for any
Masters. If we refuse to permit you to fulfill your minimum Recording
Commitment for any Contract Period, other than as a result of an event or
contingency referred to in subparagraph 17(a) above, we shall have no
obligations or liabilities to you in connection therewith unless within
forty five (45) days after our refusal you shall notify us of your desire
to fulfill your minimum Recording Commitment for that Contract Period and
within thirty (30) days after our receipt of that notice we shall fail to
advise you in writing that we shall permit you to fulfill your minimum
Recording Commitment for that Contract Period. If we shall fail to so
28
advise you in writing that we shall permit you to fulfill your minimum
Recording Commitment for that Contract Period, the Term shall expire as of
the end of that thirty (30) day period and we shall have no obligations or
liabilities to you whatsoever in connection with our failure to permit you
to fulfill your Recording Commitment for that Contract Period. We shall,
however, pay to you promptly after the expiration of that thirty (30) day
period, as an advance recoupable from royalties hereunder or under any
other agreement between you and us or our affiliates, an amount equal to
the minimum union scale payments which would have been required to have
been paid to you for each Required Album for that Contract Period that we
did not permit you to record. For the purposes of the foregoing, an Album
shall be deemed to be comprised of eight (8) Masters.
17. Producer Provisions.
(a) You shall cause any and all producers of the Masters to execute a
Producer Declaration in the form attached hereto as Exhibit A prior to the
commencement of recording sessions for any Masters hereunder. Without
limiting the generality of anything set forth in paragraph 4 above, no
recording sessions shall be commenced nor shall we have any obligation to
pay to you any advances for the Masters pursuant to paragraph 8 above
unless and until you shall have entered into a binding agreement with any
and all producers of the applicable Masters and we shall have received an
executed Producer Declaration from any and all producers of the applicable
Masters;
(b) You shall be solely responsible for and shall pay all royalties
and other compensation which may be payable to any producers of the Masters
or to any producers or directors of Audio-Visual Recordings or to any
others rendering services in connection with the recording of the Masters
and the production of Audio-Visual Recordings or otherwise entitled to
compensation in respect of the exploitation of Masters or Audio-Visual
Recordings; and
(c) We may, but shall not be obligated to, enter into an agreement
with any producers of the Masters or any producer or director of any
Audio-Visual Recordings which provides for the payment by us, rather than
you, of royalties or other compensation payable to any such producer or
director; provided, however, that any such agreement shall contain standard
terms and conditions and we shall consult with you prior to our entering
into any such producer agreement, provided you are reasonably personally
available therefor. We shall consider in good faith your recommendations
with respect to such agreements, provided, however, that our decisions with
respect thereto shall be final and our failure to so consult with you in
accordance with this subparagraph 17(c) shall not constitute a breach of
the Contract. We may deduct any amounts payable by us to those producers or
directors of Masters or Audio-Visual Recordings from any monies payable by
us hereunder. Furthermore, for the purposes of the recoupment of any
advances or charges under this Contract, the royalty rates contained in
paragraph 9 with respect to those Masters and Audio-Visual Recordings shall
be deemed reduced by the amount of the applicable royalty rates with
respect to Masters and Audio-Visual Recordings payable by us to any such
producers or directors, Any advances payable by us to those producers or
directors which are not recouped by us from royalties payable to those
producers or
29
directors may be recouped by us from any royalties or other sums payable
by us hereunder.
18. Definitions.
(a) The term "Album" shall mean a twelve (12) inch thirty-three and a
third (33-1/3) rpm long-playing vinyl-disc Phonograph Record of no fewer
than forty-five (45) minutes in playing time or its cassette tape or other
equivalent or substantial equivalent in any form or configuration, and,
where the context requires, Masters sufficient to constitute a twelve (12)
inch thirty-three and a third (33-1/3) long-playing vinyl-disc Phonograph
Record of no fewer than forty-five (45) minutes in playing time or its tape
or other equivalent or substantial equivalent in any form or configuration.
The maximum playing time of an Album shall not exceed the maximum number of
minutes capable of being reproduced pursuant to the technological
specifications of the format or configuration concerned, which shall be
designated by us in our reasonable good faith discretion;
(b) The term "Audio-Visual Record" shall mean a Phonograph Record
embodying visual images;
(c) The term "Audio-Visual Recording" shall mean a Master Recording
embodying visual images;
(d) (i) The term "Budget Audio-Visual Record" shall mean an
Audio-Visual Record which bears a Royalty Base Price in the country in
question which is sixty-six and two-thirds (66-2/3%) percent or less of the
Royalty Base Price in that country of top-line Audio-Visual Records on
which recordings of the majority of our artists are initially released in
that country;
(ii) The term "Budget Record" shall mean a Phonograph Record which
bears a Royalty Base Price in the country in question which is sixty-six
and two- thirds (66-2/3%) percent or less of the Royalty Base Price in that
country of top-line Phonograph Records on which recordings of the majority
of our artists are initially released in that country;
(e) The term "Compact Disc" shall mean a Digital Record in any
configuration (e.g., Album, Single, EP) in disc form primarily reproducing
sound (but not together with visual images), the signals of which are read
and transmitted from that disc by means of laser;
(f) The term "Controlled Composition" shall mean a Musical Composition
or other Selection, written or composed by you, in whole or in part, alone
or in collaboration with others, or which is owned or controlled, in whole
or in part, directly or indirectly, by you, or any person, firm or
corporation in which you have a direct or an indirect interest;
(g) The terms "Conventional Phonograph Record," "Conventional cassette
tapes," "Conventional vinyl discs" and "Conventional Album" shall refer to
black
30
vinyl discs or analog tape cassettes of customary quality;
(h) The term "Digital Records" shall mean Records in any configuration
(e.g., Album, Single, EP), the signals of which are encoded and decoded by
digital technology, whether now known or hereafter devised, as opposed to
analog technology, and shall include, without limitation, Compact Discs,
digital audio tapes, mini discs and digital compact cassettes.
Notwithstanding the foregoing, the term "Digital Records" shall not mean a
Record exploited by means of direct transmission (whether digital or
otherwise) via satellite, cable or other direct transmission to the
consumer over wire or through the air, which shall constitute a New Record
hereunder for all purposes;
(i) The term "delivery to us" or words of similar connotation used in
connection with Master Recordings or Masters shall mean delivery to our
Production Manager at our offices in Philadelphia, Pennsylvania of all of
the following: a two-track sequenced, equalized, fully-mixed and mastered
digital audio tape and/or U-matic 1630 tape in proper form for the
production of the parts necessary to manufacture Phonograph Records
therefrom and all consents, approvals, copy information, credits,
mechanical licenses for all Selections recorded in those Master Recordings
or Masters and other material and documents required by us to release
Phonograph Records embodying those Master Recordings or Masters and to
manufacture album covers or other packaging therefor (including, without
limitation, Artwork). Our election to pay to you any monies which were
otherwise required to have been paid upon or promptly after your delivery
to us of Masters or our election to release any Phonograph Record derived
from any Master shall not be deemed to be an acknowledgment by us that
delivery to us of that Master or Masters has been completed in accordance
with the provisions of this subparagraph (i). Further, in either event, we
shall not be deemed to have waived our right to require your complete and
proper performance thereafter of your obligation to deliver to us any
Masters or any of our remedies for your failure to do so in accordance with
the provisions hereof;
(j) The term "EP" shall mean a twelve (12) inch thirty-three and a
third (33-1/3) rpm or forty-five (45) rpm vinyl-disc Phonograph Record, or
its cassette tape or other equivalent or substantial equivalent in any form
or configuration, embodying no fewer than four (4) Musical Compositions and
no more than seven (7) Musical Compositions;
(k) The term "Long-Play Single" shall mean a twelve (12) inch
thirty-three and a third (33-1/3) rpm or forty-five (45) rpm vinyl-disc
Phonograph Record, or its cassette tape equivalent or other equivalent or
substantial equivalent in any form or configuration, embodying one (1) or
more recordings of no more than three (3) different Musical Compositions;
(1) The term "Master Recording" shall mean every form of recording
(whether now known or unknown), embodying sound alone, or sound accompanied
by visual images, which may be used in the recording, production, or
manufacture of Phonograph Records;
31
(m) The term "Master" shall mean a Master Recording embodying your
performances recorded during the Term;
(n) (i) The term "Mid-Price Audio-Visual Record" shall mean an
Audio-Visual Record bearing a Royalty Base Price in the country in question
in excess of sixty-six and two-thirds (66-2/3%) percent and less than
eighty (80%) percent of the Royalty Base Price in that country of top-line
Audio-Visual Records on which recordings of the majority of our artists are
initially released in that country;
(ii) The term "Mid-Price Record" shall mean a Phonograph Record
bearing a Royalty Base Price in the country in question in excess of
sixty-six and two-thirds (66-2/3%) percent and less than eighty (80%)
percent of the Royalty Base Price in that country of top-line Phonograph
Records on which recordings of the majority of our artists are initially
released in that country;
(o) The term "Multiple Album" shall mean a single package containing
two (2) or more Albums, or their cassette tape or other equivalent or
substantial equivalent in any form or configuration, which is sold as a
single unit, and, where the context requires, Master Recordings sufficient
to constitute a single package containing two (2) or more Albums, or their
tape or other equivalent or substantial equivalent in any form or
configuration, which is sold as a single unit;
(p) The terms "Musical Composition" and "Composition" shall mean a
single musical composition and, for the purposes of computing mechanical
royalties hereunder, shall include a medley,
(q) (i) With respect to Masters other than Audio-Visual Recordings,
the term "Net Receipts" shall mean the flat-fee, if specifically
attributable solely to one (1) or more Masters, or the royalty, as the case
may be, received by us from a person, firm or corporation from the
exploitation by that person, firm or corporation of rights in those
Masters, less all costs paid or incurred by us in connection with the
exploitation of those rights and the collection of those monies, less all
taxes and adjustments and less all royalties or other sums payable by us to
any person, firm or corporation in connection with the exploitation of
those rights, including, without limitation, royalties for the mechanical
reproduction of the Selections embodied in those Masters, but excluding
royalties or other sums payable to producers of those Masters, which shall
be borne solely by you; and
(ii) With respect to Audio-Visual Recordings, the term "Net
Receipts" shall mean an amount equal to the flat-fee, if specifically
attributable solely to one (1) or more Audio-Visual Recordings, or the
royalty, as the case may be, received by us from a person, firm or
corporation from the exploitation by that person, firm or corporation of
rights in those Audio-Visual Recordings, less twenty percent (20%) of those
monies as a distribution fee, less all costs paid or incurred by us in
connection with the exploitation of those rights and the collection of
those monies and less all taxes and adjustments and less all royalties or
other sums
32
payable by us to any person, firm or corporation in connection with the
exploitation of those rights, including, without limitation, royalties for
the mechanical reproduction of the Selections embodied in those
Audio-Visual Recordings, but excluding royalties or other sums payable to
producers of the Masters embodied in those Audio-Visual Recordings and
producers or directors of those Audio-Visual Recordings, which shall be
borne solely by you;
(r) The term "Net Sales" shall mean ninety-percent (90%) of gross
sales for which final payment has been received by us in United States
Dollars in the United States, after deducting from gross sales returns,
credits, and reserves against anticipated returns and credits;
(s) The term "Net Sales through Normal Retail Distribution Channels"
shall mean Net Sales of Phonograph Records hereunder through our principal
distributor in the country in question for resale through record or other
retail stores for which a Record royalty is payable hereunder after the
retention of reserves (and, without limiting the generality of the
foregoing, shall exclude sales or distributions referred to in paragraph
9(b) above);
(t) The term "New Record" shall mean a Phonograph Record in any
software medium in which recorded music is not in general commercial
distribution in the United States as of January 1, 1999, including, without
limitation, the sale of Phonograph Records (or other exploitation of
Masters) through the telephone, satellite, cable or other direct
transmissions to the consumer over wire or through the air (as
distinguished from radio or television advertised sales of Phonograph
Records described in subparagraph 9(b)(i) above);
(u) The terms "Phonograph Record" and "Record" shall mean every form
of reproduction (whether now known or unknown), embodying sound alone, or
sound accompanied by visual images, distributed primarily for home use,
school use, jukebox use, and use in means of transportation, including,
without limitation, discs of any speed or size, reel-to-reel tapes,
cartridges, cassettes, other pre-recorded tapes, or any digital copy,
including, without limitation, so-called "temporary copy";
(v) The term "Royalty Base Price" shall mean the following amounts for
the following Phonograph Records:
(i) (A) With respect to Phonograph Records (other than
Audio-Visual Records) sold in the United States or Canada, the SRLP
except as set forth below; and
(B) With respect to royalties payable on Net Sales of
Phonograph Records in the United States or Canada for which the
Royalty Base Price is the SRLP, we shall have the right, at any time,
at our election, to calculate royalties hereunder on the basis of our
principal distributor's price (before consideration of any discounts
resulting from the distribution of free goods), from time to time, to
its customers in the United States of
33
Phonograph Records, in lieu of the SRLP of those Phonograph Records,
multiplied by an "uplift." As used in the immediately-preceding
sentence, the term "our principal distributor's price" shall mean the
lowest wholesale price paid by the largest category of customers to
our principal distributor in the United States during the relevant
semi-annual accounting period. If we elect to do so, then we shall
calculate that uplift" as a fraction, the numerator of which is the
SRLP of a Comparable Phonograph Record immediately prior to our
discontinuance of retail-based calculations and the denominator of
which is our principal distributor's price (before consideration of
any discounts resulting from the distribution of free goods) to its
customers in the United States of a Comparable Phonograph Record
immediately prior to our discontinuance of retail-based calculations.
The application of the foregoing provisions of this subparagraph shall
not result in a reduction in the amount of royalties otherwise payable
to you hereunder on a configuration-by-configuration basis immediately
prior to our discontinuance of retail-based calculations. For purposes
of this subparagraph, the term "Comparable Phonograph Record" shall
mean a Phonograph Record of the same configuration, with the same
packaging, and in the same price category as the Phonograph Record in
question; and
(ii) With respect to Phonograph Records (other than Audio-Visual
Records) sold outside of the United States and Canada:
(A) If an SRLP is established or utilized by our
licensee (whether or not affiliated with us) in a particular
country in accounting to us, then that particular SRLP
established or utilized by our licensees shall apply to
Phonograph Records hereunder;
(B) If an SRLP is not established or utilized by our
licensee (whether or not affiliated with us) in a particular
country in accounting to us on sales of Phonograph Records,
then, at our election, (1) the price upon which mechanical
royalties are generally computed and paid by major record
companies (including, without limitation, our then-current
principal distributor) in the country in question pursuant to
the then-current agreement between major record companies and
the mechanical reproduction rights society in that country or
(2) an amount computed by multiplying the lesser of (aa) that
percentage utilized by our affiliate or licensee in computing
a retail related price or constructed price on which
royalties are paid to us and (bb) one hundred twenty-six
percent (126%), by the lowest of (aa) the so-called
"published price to dealers," (bb) the lowest wholesale price
paid to our or our affiliate's or licensee's principal
distributor in the country in question by the largest
category of customers during the relevant semiannual
accounting period and (cc) the wholesale price which our
licensee (whether or not affiliated with us) in a particular
country uses in accounting to us for royalties.
34
(iii) With respect to Audio-Visual Records sold in any country of
the world, an amount equal to the monies actually received by us in
the United States (or credited to us in final reduction of an advance
previously received by us in the United States) from the sale of those
Audio-Visual Records (rather than their actual SRLP, wholesale price,
published price to dealers or any other price), after deduction of a
distribution fee of twenty percent (20%) of those monies; and
(iv) There shall be deducted from the Royalty Base Price an amount
equal to any excise, sales, value added or comparable or similar taxes
which are included therein;
(w) The term "Selection" shall mean a Musical Composition, poem,
dramatic work, comedy routine, or other verbal expression;
(x) The term "Single" shall mean a seven (7) inch vinyl-disc
Phonograph Record or its tape or other equivalent or substantial equivalent
in any form or configuration; and
(y) Except as otherwise herein provided, the term "SRLP" shall mean
those suggested retail list prices established by us or our affiliates or
licensees from time to time for Phonograph Records in a particular
configuration which shall be determined from time to time with reference to
the relevant wholesale price in a manner that shall be applied consistently
to a majority of our (or our licensees' or affiliates') then-current
recording artists. With respect to New Records that are distributed by
telephone, satellite, cable or other direct transmissions over wire or
through the air, the term "SRLP" shall mean either those suggested retail
list prices therefor, if any, established by us or our affiliates in
accordance with the terms of the preceding sentence or those retail list
prices charged to the ultimate consumer therefor, excluding any shipping
and handling charges in connection therewith.
19. Indemnity. You hereby indemnify, save, and hold us harmless from any
and all damages, liabilities, costs, losses and expenses (including legal costs
and attorneys' fees) arising out of or connected with any claim, demand or
action by us or by a third party which is inconsistent with any of the
warranties, representations or covenants made by you in this Contract. You shall
reimburse us, on demand, for any payment made by us at any time with respect to
any damage, liability, cost, loss or expense to which the foregoing indemnity
applies. Pending the determination of any claim, demand or action, we may
withhold, at our election, payment of any monies otherwise payable to you
hereunder or under any other agreement between you and us or our affiliates in
an amount which does not exceed your potential liability to us pursuant to this
paragraph.
20. Assignment. We shall have the right, at our election to assign this
Contract or any of our rights hereunder, in whole or in part, or to delegate any
of our obligations hereunder, in whole or in part, to any person, firm or
corporation. You shall not have the right to assign this Contract or any of your
rights or to delegate any of your obligations hereunder.
35
21. Notices. All notices to be given to you hereunder and all statements
and payments to be sent to you hereunder shall be addressed to you at the
address set forth on page 1 hereof or at such other address as you shall
designate in writing from time to time. All notices to be given to us hereunder
shall be addressed to us at the address set forth on page 1 hereof or at such
other address as we shall designate in writing from time to time. All notices
shall be in writing and shall either be served by personal delivery, certified
mail, return receipt requested, or facsimile transmission (with a copy sent
concurrently by certified mail, return receipt requested), all charges prepaid,
except that statements and payments may be sent by regular mail. Notices to us
must be sent to the attention of our Senior Vice President, Business & Legal
Affairs. Except as otherwise provided herein, notices shall be deemed given when
personally delivered, mailed as aforesaid, or transmitted by facsimile (with a
concurrent copy mailed as aforesaid), all charges prepaid, except that notices
of change of address shall be effective only after actual receipt. A copy of
each notice to us shall be sent simultaneously to Law Office of Xxxx X. Xxxxxx,
LLC, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxx.
22. Miscellaneous
(a) This Contract sets forth your and our entire understanding
relating to its subject matter. No modification, amendment, waiver,
termination or discharge of this Contract or of any of its terms shall be
binding upon either of us unless confirmed by a document signed by you and
by a duly authorized officer of ours. No waiver by you or us of any term of
this Contract or of any default hereunder shall affect your or our
respective rights thereafter to enforce that term or to exercise any right
or remedy in the event of any other default, whether or not similar;
(b) We shall not be deemed to be in breach of any of our obligations
hereunder unless and until you shall have given us specific written notice
by certified or registered mail, return receipt requested, describing in
detail the breach and we shall have failed to cure that breach within a
reasonable period of time; and
(c) Our payment obligations under this Contract are conditioned upon
your full and faithful performance of the terms hereof;
(d) Wherever your approval or consent is required hereunder, that
approval or consent shall not be unreasonably withheld. We may require you
to formally give or withhold approval or consent by giving you notice of
our request that you do so and by furnishing you with the information or
material in respect of which the approval or consent is sought. You shall
give us written notice of your approval or disapproval or of your consent
or non-consent within five (5) days after our notice is sent and in the
event of your disapproval or non-consent your notice shall contain the
specific reasons therefor. Your failure to give us notice as aforesaid
shall be deemed to be consent or approval, as the case may be, with respect
to the matter submitted;
(e) Nothing herein contained shall constitute a partnership, joint
venture, or fiduciary relationship between you and us. Except as otherwise
expressly provided herein, you are performing your obligations hereunder as
independent
36
contractors. Neither party hereto shall hold itself out contrary to the
terms of this subparagraph 22(e) and neither you nor we shall become liable
for any representation, act or omission of the other contrary to the
provisions hereof;
(f) This Contract shall not be deemed to give any right or remedy to
any third party whatsoever unless that right or remedy is specifically
granted by us in writing to that third party;
(g) The provisions of any applicable collective bargaining agreement
between us and any labor union or guild which are required by the terms of
that agreement to be included in this Contract shall be deemed incorporated
herein as if those provisions were expressly set forth in this Contract;
(h) In the event of any action, suit, or proceeding arising from or
based upon this Contract brought by either party hereto against the other,
the prevailing party shall be entitled to recover from the other its
attorneys' fees in connection therewith in addition to the costs of that
action, suit, or proceeding;
(i) Except as otherwise expressly provided herein all rights and
remedies herein or otherwise shall be cumulative and none of them shall be
in limitation of any other right or remedy;
(j) THIS CONTRACT HAS BEEN ENTERED INTO IN THE COMMONWEALTH OF
PENNSYLVANIA AND ITS VALIDITY, CONSTRUCTION, INTERPRETATION AND LEGAL
EFFECT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE
COMMONWEALTH OF PENNSYLVANIA (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS
PRINCIPLES UNDER PENNSYLVANIA LAW). THE VENUE FOR ANY ACTION, SUIT OR
PROCEEDING ARISING FROM OR BASED UPON THIS CONTRACT SHALL BE THE
APPROPRIATE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF PHILADELPHIA
IN THE COMMONWEALTH OF PENNSYLVANIA. ACCORDINGLY, YOU AND WE AGREE THAT ANY
ACTION, SUIT OR PROCEEDING ARISING FROM OR BASED UPON THIS CONTRACT SHALL
BE COMMENCED IN AND DETERMINED BY THOSE APPROPRIATE STATES AND FEDERAL
COURTS LOCATED IN THE COUNTY OF PHILADELPHIA IN THE COMMONWEALTH OF
PENNSYLVANIA. IN CONNECTION WITH THE FOREGOING, YOU AND WE EACH AGREE TO
SUBMIT TO AND BE BOUND BY THE JURISDICTION OF THE APPROPRIATE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF PHILADELPHIA IN THE COMMONWEALTH OF
PENNSYLVANIA;
(k) This Contract shall not become effective until signed by you and
countersigned by a duly authorized officer of ours;
37
(1) The paragraph headings herein are solely for the purpose of
convenience and shall be disregarded completely in the interpretation of
this Contract or any of its terms;
(m) We may at any time during the Term obtain, at our cost, insurance
on you. We or our designees shall be the sole beneficiary of that insurance
and neither you, nor any person, firm or corporation claiming rights
through or from you shall have any rights in that insurance. You shall
submit to such physical examinations and to complete and deliver such forms
as we may reasonably require and otherwise to cooperate with us fully for
the purpose of enabling us to secure that insurance;
(n) Upon our request, you shall render your services at such times and
places as we may reasonably designate for the purpose of assisting us in
the marketing, advertising and promotion of Phonograph Records hereunder.
Among those services are engaging in interviews, participating in press
conferences, posing at photography sessions and appearing on television and
radio shows. Promptly after your submission to us of invoices or other
suitable documentation therefor, we shall pay to you or reimburse you for
the reasonable costs of travel and accommodations which are actually paid
or incurred by you in connection with your services under this subparagraph
22(n), but you shall not pay or incur any costs or expenses in connection
with your services under this subparagraph 22(n) which are to be paid or
reimbursed by us unless you and we mutually agree in writing on the nature
and extent of those costs and expenses. If we pay or incur any costs in
connection with your services pursuant to this subparagraph 22(n)
("Promotional Services Costs"), those Promotional Services Costs shall not
be recoupable from royalties earned by you hereunder. If, however, any
third party pays to you any fee or other consideration for or in connection
with your services pursuant to this subparagraph 22(n) (such as, but not
limited to, a television appearance fee) and we pay or incur any
Promotional Services Costs in connection therewith, then you shall pay to
us all such fees and other consideration to the extent of our Promotional
Services Costs in connection therewith. If you fail for any reason to pay
to us those fees to the extent of our Promotional Services Costs, then, at
our election, the amount of all such fees received by you from third
parties in connection with your services pursuant to this subparagraph
22(n) in an amount equal to our Promotional Services Costs shall be deemed
to be advances recoupable from any and all monies payable to you pursuant
to this Contract;
(o) You shall not render any services to or authorize or permit your
name or likeness or any biographical material concerning you to be used in
any manner by any person, firm or corporation in the advertising, promoting
or marketing of blank magnetic recording tape, digital audio tape or any
other product or device intended to be sold, whether now known or hereafter
developed, which may be used for the fixation of sound alone or sound
together with visual images;
(p) You acknowledge and agree that you have been represented by
independent legal counsel or have had the unrestricted opportunity to be
represented by independent legal counsel of your own choice for purposes of
advising you in connection
38
with the negotiation and execution of this Contract. Additionally, you
acknowledge and agree that either you or your independent legal counsel
have had the opportunity to investigate and inquire about all of the
relevant facts and circumstances in connection with your entering into and
executing this Contract. If you have not been represented by independent
legal counsel of your own choice for purposes of advising you in connection
with the negotiation and execution of this Contract, you acknowledge and
agree that your failure to be represented by independent legal counsel in
connection with your negotiation and execution of this Contract was
determined solely by you, without any interference by us or any person,
firm or corporation related to us;
(q) The provisions of the Immigration Reform and Control Act ("IRCA")
are mandatory. You agree to complete the Immigration and Naturalization
Service Form 1-9 ("Employment Eligibility Verification Form") no later than
concurrently with your execution of this Contract. You expressly
acknowledge and agree that any and all payments to or on behalf of you
under this Contract are conditioned upon your delivery to us of a completed
Employment Eligibility Verification Form. This provision shall not in any
way modify or alter the fact that you are performing your obligations
hereunder as an independent contractor, except as otherwise expressly
provided in this Contract,
(r) Nothing contained in the Contract or otherwise shall be deemed to
authorize or permit you to pay or incur (and you shall not pay or incur)
any cost or expenses without our prior written consent, which consent we
may withhold in our sole discretion; and
(s) Unless otherwise specified herein or unless the context otherwise
clearly requires, the masculine gender used herein includes the feminine
and neuter genders, and the grammatically plural form of any term defined
in the singular form hereunder shall also be the plural form of such
defined term, and the grammatically singular form of any term defined in
the plural form hereunder shall also be the singular form of such defined
term.
23. Sampling and Sampled Master. The following terms have the following
meanings: The term "Sampling" refers to the use and reproduction of preexisting
music material in a Master Recording intended to be a "Master", the term "Other
Material" refers to the pre-existing musical material which is used or embodied
in a Master Recording intended to be a "Master"; and the term "Sampled Master"
refers to a Master Recording which is delivered to us as a "Master" subject to
this Contract embodying Other Material. You warrant, represent, covenant and
agree as follows: concurrently with your delivery to us of any Master Recording
as a "Master" subject to this Contract, you shall notify us in writing of any
Sampling of Other Material in that Master Recording, and you shall notify us in
writing of the names and addresses of the recording artist(s), recording
companies, songwriters and publishers who have any right, title or interest in
and to the Other Material embodied in that Master Recording intended to be
delivered to us as a "Master" subject to this Contract as a result of that
Sampling, no Sampled Master shall violate or infringe on the rights of any other
person, firm or corporation, including, without limitation, the copyrights owned
or controlled by any other person, firm or corporation; as between you, on the
one part, and us, on the other part, you shall be solely responsible for and
shall account for and pay to the
39
persons, firms or corporations that own or control Other Material all monies to
which those other person, firms or corporations are entitled to as a result of
the Sampling of any Other Material in Sampled Masters subject to this Contract;
and, as between you and us, you shall be solely responsible for obtaining all
consents and licenses necessary or desirable in connection with the use and
reproduction and licensing the use and reproduction of Other Material in Sampled
Masters. No royalties, advances or other money shall be earned by or payable to
you hereunder in connection with any Sampled Master and no Sampled Masters shall
be deemed to be delivered to us in fulfillment of your Recording Commitment
unless and until we obtain documentation reasonably satisfactory to us of the
foregoing.
In consideration of the mutual promises contained herein, and intending
to be legally bound hereby, the parties hereto have signed this Agreement on the
date and year first above written.
Very truly yours,
ANTRA MUSIC GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx, CEO
---------------------------
AGREED AND ACCEPTED:
By: /s/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx, p/k/a "Crush"
40
PRODUCER DECLARATION
--------------------
I, the undersigned, declare that I have read and understand
those relevant portions of the agreement between Antra Music Group, Inc.
("Antra") and Xxxxxxx Xxxxx (professionally known as "Crush" and referred to
below as "Artist") dated as of October 1, 1999 ("Artist Agreement") that pertain
to my record production endeavors.
I hereby certify that I have produced or will have produced
certain master recordings embodying Artist's featured performance ("Masters")
pursuant to an agreement between Artist and me ("Producer Agreement") which
provides for valuable consideration to be paid to me. As part of my material
obligations pursuant to the Producer Agreement and for the express and direct
benefit of Antra, I hereby:
X. Xxxxx to Antra the perpetual right to use and publish and to permit
others to use and publish my name, signature, approved likeness, and
approved biographical material concerning me for advertising and trade
purposes in connection with the sale and exploitation of masters and
records manufactured from masters recorded pursuant to the Artist
Agreement, or to refrain therefrom.
B. Agree to look solely to Artist for the payment of any advances, fees
and/or royalties, as the case may be, and will not assert any claim in
this regard against Antra or attempt to prevent the manufacture, sale
or distribution of phonograph records manufactured from Masters
produced under the terms and conditions of the Artist Agreement and the
Producer Agreement. Any payments that I receive from Antra in
connection with the exploitation of Masters or my services pursuant to
Producer Agreement shall have been made solely as an accommodation to
Artist and nothing contained herein, in the Producer Agreement or in
the Artist Agreement shall constitute me a beneficiary of or party to
the Artist Agreement or any other agreement between Antra and Artist.
C. Acknowledge and agree that each Master recorded under the Producer
Agreement embodying the results and proceeds of my services (i) is
prepared within the scope of the Artist's engagement of my personal
services and is a "work made for hire" or (ii) is prepared as part of a
long-playing phonograph record (or its substantial equivalent) which
constitutes a work specially ordered
A-1
by Artist or Antra for use as a contribution to a collective work and
shall be considered a "work made for hire." I further acknowledge that
Antra is the exclusive owner of copyright with respect to each such
Master and any "sound recording" or "phonorecord" or "copy"
manufactured therefrom (individually and collectively called the
"Work"), and that Antra has the right to exercise all rights of the
copyright proprietor with respect thereto, including, but not limited
to, all exclusive right specified in 17 U.S.C. ss. 106 and the
exclusive right to register copyright in the name of Antra.
D. Notwithstanding the provisions of paragraph C above, I agree that to
the extent, if any, that I may be deemed an "author" of any Work, I
hereby irrevocably transfer, grant, convey and assign to Antra,
exclusively, perpetually and throughout the universe, all exclusive
right, title and interest in and to such Work, including, but not
limited to, all exclusive right of the copyright owner as specified in
17 X.X.X.xx. 106. I hereby grant to Antra a power of attorney,
irrevocable and coupled with an interest, to execute for me and in my
name, all documents and instruments necessary or appropriate to
effectuate the intents and purposes of this paragraph D and to
accomplish, evidence and perfect the rights granted to Antra pursuant
to this paragraph D including but not limited to documents to apply for
and obtain all registration of copyrights in and to any such Work, and
documents to assign such copyrights to Antra.
E. Agree that I shall not produce or co-produce, prior to the date three
(3) years after the Master shall have been delivered to Antra in
accordance with the provisions of the Artist Agreement, any recording
for any person, firm or corporation other than Antra which embodies, in
whole or in part, any of the selections recorded in the Masters.
__________________________
SS#:__________________________
Address:__________________________
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