ADVERTISING PRODUCTION AGREEMENT
This ADVERTISING PRODUCTION AGREEMENT is dated as April 25, 2000 and is between
TRICOM PICTURES & PRODUCTION CO., INC., 2001 W. Sample Road, Pompano Beach, FL
33064, a Florida corporation, and SHAMAN PHARMACEUTICALS, INC., 213 Grand
Avenue, South San Francisco, CA 94080, a Delaware corporation.
Background
A. TRICOM PICTURES is in the business of developing and producing video
television advertisements, including infomercials, spots, and promos.
B. SHAMAN is in the business of, among other things, worldwide advertising,
marketing and distribution of consumer products including dietary supplements
via television, radio and print media, telemarketing, credit card syndication,
direct mail, catalog, etc.
C. The parties wish to set forth in this Agreement the terms upon which TRICOM
PICTURES will produce an infomercial and offer video advertisements for IBS
related Supplements which SHAMAN has developed and manufactured and shall be
referred to as (the "Product"), which may include specific stock keeping units
(SKU) of NORMAL STOOL FORMULA AND/OR NORMAL STOOL FORMULA BUNDLED IN A KIT WITH
OTHER RELATED PRODUCTS.
NOW, THEREFORE, in consideration of the mutual promises and undertakings set
forth herein, and intending to be legally bound hereby, the parties agree as
follows:
Exclusivity.
1.1 SHAMAN agrees that it will work exclusively with TRICOM PICTURES for
production of any infomercials for the "Product" including the infomercial
itself, television advertisements or TV spots supporting the infomercial and the
"Product" sold on the infomercial, TV promos supporting the infomercial and the
"Product" sold on the infomercial or any other call to action spots that
provides the customer an avenue to purchase the products directly from SHAMAN or
its fulfillment agent, providing TRICOM PICTURES meets the performance
requirements contained herein. For the purpose of this agreement, the definition
of a "call to action spot" will be defined as a TV spot that contains one or
more telephone numbers and/or the SHAMAN web site address where consumers can
purchase the "Product" directly from SHAMAN or its fulfillment agent.
2. Production of Programs
2.1 Generally. TRICOM PICTURES shall produce and edit a television infomercial
of approximately 30 minutes in length and "spot" television advertisements as
SHAMAN may direct (collectively, the "Programs"), each of which will describe,
display and promote the benefits to be derived from the use of the Product and
offer the Product for sale to the general public. Tricom pictures will edit a 90
second VNR out of the footage obtained for the infomercial.
2.2 Production Schedule
A) Generally. Prior to commencing work on the Programs, TRICOM PICTURES shall
prepare and submit to SHAMAN a detailed production schedule with respect thereto
(the "Production Schedule"). The Production Schedule shall include, without
limitation, the following information with respect to the Programs:
B) Timetable. The projected timetable for all phases of creation and production
of the Programs, including scripting, filming and editing, client review and
approvals;
C) Approval. The Production Schedule shall be subject to written approval by
SHAMAN. The Production Schedule may be revised from time to time, subject to
written approval of each revision by SHAMAN. Notwithstanding the foregoing,
SHAMAN shall be deemed to have approved a Production Schedule (or a revision
thereto) if SHAMAN shall not have objected thereto within five (5) days after
SHAMAN's receipt thereof.
D) Scripting. TRICOM PICTURES shall write or cause to be written a script for
the Program. Prior to commencement of shooting of the Program, TRICOM PICTURES
shall submit the script thereof to SHAMAN for its approval. In the event that
SHAMAN does not approve any script submitted by TRICOM PICTURES, SHAMAN may, in
its discretion, (i) require TRICOM PICTURES to revise such script, (ii) revise
such script itself, (iii) engage a third party to revise such script.
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2.3 Talent. TRICOM PICTURES shall be responsible for the selection and direction
of actors and other persons who are to appear in each Program ("Talent")
Engagement by TRICOM PICTURES of Talent for each Program shall be subject to
prior written approval by SHAMAN.
2.4 Testimonials. TRICOM PICTURES shall, at the direction of SHAMAN, and may, in
all other Cases in which TRICOM PICTURES so elects and SHAMAN concurs,
incorporate into any Program testimonials of users of the Products. In each such
case, TRICOM PICTURES shall be responsible for coordinating the attendance of
all persons providing such testimonials at such location(s) as the parties shall
determine for purposes of filming, taping and/or photographing. The costs of
incorporating such testimonials into the Programs (including, without
limitation, the costs of all such filming, taping and photographing and the
reasonable travel costs incurred by the providers of such testimonials), shall
be paid by Tricom. Tricom shall have the authority to offer individuals
providing testimonials free "Product" to meet their personal needs for a period
of up to one year from the time of production.
2.5 Production.
(a) Generally. TRICOM PICTURES shall, be responsible for the production of the
Programs. TRICOM PICTURES may engage the services of an executive producer,
scriptwriters and all other necessary creative and technical personnel as long
as there is no additional cost to SHAMAN.
(b) Pre-production Outline. Not less than ten (10) days before the first
scheduled day of shooting of the Programs, TRICOM PICTURES shall provide SHAMAN
with a pre-production outline thereof (the "Pre-production Outline"). The
Pre-production Outline shall contain a summary of the storyline, script and all
Product demonstrations and Video Production Enhancements (as defined below) then
proposed to be included in the Program. SHAMAN shall promptly review the
Pre-production Outline and shall have the right of approval of all elements
thereof. For purposes of this Agreement, "Video Production Enhancements" shall
mean video production techniques which are used to amplify, emphasize,
accelerate, clarify or otherwise portray (i) an actual event in a fashion other
than as occurs in nature, or (ii) a Product or its properties, attributes or
capabilities. Examples of Video Production Enhancements include (without
limitation) taping in controlled lighting conditions or from specially selected
angles, accelerating the speed of an event, amplifying the sound of an event,
using an artificial aid to reproduce an event which occurs in nature but is not
susceptible of depiction in a studio environment, and altering in any way the
natural or customary state or properties of any object used to demonstrate a
Product.
(c) Final Outline. Not less than five (5) days before the first scheduled day of
shooting of the Programs, TRICOM PICTURES shall provide SHAMAN with a final
outline thereof (the "Final Outline"). The Final Outline shall consist of the
Pre-production Outline as it may have been modified and shall detail all stage
directions, props, staging techniques, Product demonstrations and Video
Production Enhancements proposed to be used in the Programs. SHAMAN shall
promptly review the Final Outline and shall have the right of approval of all
elements thereof.
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2.6 Final Editing; Post-Production: Completion.
TRICOM PICTURES shall be responsible for final editing and post-production
services necessary to prepare the Program for television airing. Such services
shall include, without limitation, delivery to SHAMAN of all completed Beta
master videotapes of such Program, suitable for dubbing into same such toll-free
telephone number and Product ordering information as SHAMAN may wish to insert.
All final editing and post-production services shall be subject to approval by
SHAMAN (which shall not be unreasonably withheld or delayed), and no Program
shall be deemed completed until SHAMAN has accepted the same in writing;
provided, however, that SHAMAN shall be deemed to have approved a Program if
SHAMAN shall not have objected thereto within ten (10) days after SHAMAN's
receipt thereof.
2.8 Expenses
There shall be no other charges or fees except those listed in the fee section
of this contract incurred without the express written consent of SHAMAN except
that SHAMAN shall be responsible for its own travel and accommodation costs for
any of the employees and representatives when they wish to attend any portion of
the pre-production, production, or post production process.
2.9 Project Fees
$450,000 is the total project fee.
$300,000 will be paid by SHAMAN to TRICOM in the form of cash. An additional
$150,000 will be paid in the form of stock pursuant to the terms of the
memorandum for convertible debt attached. The stock portion will be paid as if
$150,000 cash were being put into the convertible memorandum upon signing of the
agreement and within 15 days SHAMAN will remit $150,000 cash and $150,000 worth
of stock. The balance of $150,000 cash is payable within three (3) days after
approval of the rough cut.
3. Television Advertising.
3.1 Broadcast of Programs. SHAMAN shall have exclusive control over and shall be
responsible for the broadcast and transmission of the Programs via broadcast,
cable and satellite television, at such times, with such frequency, in such
markets and on such networks and stations as SHAMAN, in its sole judgment, shall
determine.
3.2 Television Advertising: Costs. SHAMAN shall bear all costs incurred from and
after the date of this Agreement in connection with the airing of the Programs
with the exception of $150,000 of test media allocated for in the project fee.
(Tricom will plan and purchase the initial $150,000 of test media and any
additional media on behalf of SHAMAN as an agent.)
3.3 Substantiation and Documentation of Product Attribute. The program shall be
based upon such attributes or claims made about the Products as have been
documented or substantiated to SHAMAN's reasonable satisfaction. SHAMAN shall
provide (or cause to be provided), at its sole expense, all such documentation
and substantiation as TRICOM shall reasonably determine may be necessary to
facilitate compliance with all applicable laws in the jurisdictions within which
the Program shall be shown (including, without limitation, results of any and
all tests of the Product to which TRICOM PICTURES shall have access).
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3.4 Election to Terminate. If, at any time during the production and before the
airing the Program contemplated pursuant to Section 2.1 hereof, SHAMAN
determines, in its sole judgment, that it no longer wishes to continue with
production of the Program, then SHAMAN may terminate this Agreement upon written
notice to TRICOM PICTURES. In the event termination occurs, with the exception
of termination for failure to perform as outlined in section 9.1(c) regardless
of the reason for such termination, as long as such failure is not due to SHAMAN
preventing TRICOM from performing in any way including but not limited to
failure to provide approvals or information the project fee paid by SHAMAN will
be deemed earned in full and only the dollars allocated for purchasing media
will be refunded. With the exception of termination for failure to perform, in
no event will more than $75,000 be refunded which is equal to the cash portion
of the $150,000 of media denoted in this agreement. If SHAMAN believes there is
a failure by TRICOM to perform, they must notify TRICOM in writing via overnight
carrier and give TRICOM reasonable time and in no case less than twenty business
days to correct any alleged failure to perform prior to requesting a refund of
any dollars for failure to perform.
4. Royalties.
4.1 Royalty Payable by SHAMAN.
(a) Infomercial. Product Sales. In consideration of the creative responsibility
and management of the production of the Program and the performance and
observance by TRICOM PICTURES of its representations, warranties, covenants and
other obligations under this Agreement, SHAMAN shall pay to TRICOM PICTURES a
royalty on SHAMAN's Net Sales of the Products defined in Section 4.1(g), hereof)
made via infomercial advertising (i.e. those product sales generated directly
by an Infomercial), and (as provided in Section 4.1(g), below) via print
advertising where the ad contains the specific set of Products (hereinafter a
"Kit") advertised in the infomercial, and where the purchasers are new to
SHAMAN's self-generated customer list.
(b) "Back-End" Sales: SHAMAN shall pay TRICOM PICTURES a royalty on SHAMAN's
ongoing Net Sales of Products which were included in the infomercial, as a Kit
or individually, to any Purchasers where the original sale to such Purchaser was
generated directly by an infomercial, and such sale occurred within the previous
24 months.
(c) "Back-End" Sale Royalty Rate: The royalty payable by SHAMAN to TRICOM
PICTURES pursuant to Section 4.1(c) hereof shall be 10% on Net Sales for the
first $10,000,000 and 7.5% on net sales of over $10,000,001 to $15,000,000 and
6% on net sales of over $15,000,001.
(d) Print Sales: SHAMAN shall pay TRICOM PICTURES a royalty on SHAMAN's Net
Sales of Products to new customers via "front-end" print media, where the print
media refers directly to the infomercial, but only after SHAMAN has conducted
testing sufficient, in SHAMAN's opinion, to show a lift in response that covers
the royalty rate.
(e) Print Sales Royalty Rate: The royalty payable by SHAMAN to TRICOM PICTURES
pursuant to Section 4.1(e) hereof shall be consistent with the royalty rates
outlined in Section 4.1(c) above. For the purpose of calculating royalties, Net
Sales from Print and TV will be aggregated to provide a single, Total Net Sale
number for each reporting period as outline din Section 4.2.
(f) Definitions. For purposes of this Agreement, the following terms shall have
the following meanings:
(1) Returns. "Returns" shall mean all bona fide allowances and credits to
customers on account of rejection or return of any of the Products.
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(2) Uncollectible Accounts. "Uncollectible Accounts" shall mean losses due to
credit card chargebacks, bad checks and, other uncollectible debts.
(3) Media Costs. "Media Costs" shall mean all costs directly associated with the
purchase of cable, broadcast and satellite air time (including all third-party
placement fees and commissions.
(4) Net Orders. "Net Orders" shall mean SHAMAN's gross number of orders for the
Products less returns and uncollectible accounts.
(5) Net Sales: "Net Sales" shall mean SHAMAN's gross sales in dollars, less
returns, postage and handling charges, discounts, and uncollectible accounts.
(h) In no event shall a royalty be paid to TRICOM PICTURES by SHAMAN for any
sales made more than two (2) years after termination of the agreement.
4.2 Record Keeping, Reporting: and Remittance. During the term of this Agreement
and for at least two years thereafter, SHAMAN shall maintain and retain complete
and accurate records of all sales of the Products on which royalties are owed
pursuant to this Agreement. So long as such sales of the Products shall continue
and whether or not any royalty is due hereunder, SHAMAN shall render to TRICOM
PICTURES within five (5) working days of the last working day of each month a
true and correct accounting setting forth the following information for the
preceding month: (i) gross orders received; (ii) Returns and Uncollectible
Accounts; and (iii) calculations determining the royalty payable on such sales.
Payment in the amount of the applicable royalty on net sales so reported in each
such accounting shall be made to TRICOM within 30 days of submitting each
accounting.
4.3 Inspection and Audit Rights. During the period for which records are
required to be kept pursuant to Section 4.2 hereof, all such records shall be
made available for inspection by each of the parties (or its designee) at its
expense during normal business hours upon reasonable prior notice (which in any
event shall not be less than five business days). Each party may cause such
records to be audited at its expense not more than once in any twelve-month
period; provided, however, that if any such audit discloses underpayment of
royalties due hereunder by more than 5% of the total amount actually due, then
the party whose records are being audited shall bear the reasonable costs of
such inspection. Each party shall cooperate fully with all such audits.
5. Proprietary Rights.
5.1 Licensor's Intellectual Property.
(a) Generally. Subject to the rights granted to SHAMAN hereunder, all right,
title and interest and TRICOM PICTURES' Artwork or any other intellectual
property rights it may have apart from this Agreement (collectively, "TRICOM
PICTURES' Intellectual Property") is and shall remain, as between TRICOM
PICTURES and SHAMAN, the sole property of TRICOM PICTURES, and neither SHAMAN
nor any third party shall acquire any right, title or interest in TRICOM
PICTURES' Intellectual Property by virtue of this Agreement or otherwise, except
as expressly provided herein. Any unauthorized use of TRICOM PICTURES'
Intellectual Property by SHAMAN or any third party shall be deemed an
infringement of the rights of TRICOM PICTURES therein. SHAMAN shall not in any
way or at any time dispute or attach the validity or harm or contest the rights
of TRICOM PICTURES in or to any of TRICOM PICTURES' Intellectual Property.
SHAMAN shall display such notices as may be necessary or, in TRICOM PICTURES'
reasonable judgment, desirable in order to preserve and protect TRICOM PICTURES'
proprietary rights in TRICOM PICTURES' Intellectual Property.
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(b) Enforcement of Rights. TRICOM PICTURES shall have the right (but shall not
be required) to enforce its rights in TRICOM PICTURES' Intellectual Property
against infringement thereof. If SHAMAN requests TRICOM PICTURES to enforce such
rights and TRICOM PICTURES declines to do so, SHAMAN shall have the right (but
shall not be required) to enforce such rights in TRICOM PICTURES' name. In such
case, SHAMAN shall be responsible for all costs of such enforcement efforts.
SHAMAN shall fully inform TRICOM PICTURES of the status of such efforts, and
TRICOM PICTURES shall retain the right to assume control of any such efforts at
any time, at which time TRICOM PICTURES shall reimburse SHAMAN for all costs
associated with its enforcement efforts up to the time that TRICOM PICTURES
assumes control of the enforcement effort and shall bear all subsequent costs of
such enforcement efforts. The net proceeds (if any) of any settlement, judgment
or award resulting from such enforcement efforts shall be divided among TRICOM
PICTURES and SHAMAN in direct proportion to the expenses thereof born by each of
the parties.
5.2 SHAMAN's Intellectual Property. All right, title and interest (including,
without limitation, all rights arising under the Copyright Act, the Trademark
Act and all other applicable laws) in and to the entire editorial, visual,
audio, and graphic content of all advertisements and promotional materials
developed by SHAMAN in connection with its activities under this Agreement,
including, without limitation, (i) each Program and the performance recorded
therein, (ii) all raw footage shot in the course of producing each Program,
(iii) all trademarks for the Products developed or controlled, by SHAMAN, (iv)
all musical compositions included in each Program, and (v) all packaging designs
developed by SHAMAN for the Products (collectively, SHAMAN's "Intellectual,
Property") shall be and remain the sole property of SHAMAN, and neither TRICOM
PICTURES nor any third party shall acquire any right, title or interest in
SHAMAN's Intellectual Property by virtue of this Agreement or otherwise. Any
unauthorized use of any of SHAMAN's Intellectual Property by TRICOM PICTURES or
any third party shall be deemed an infringement of the rights of SHAMAN therein.
TRICOM PICTURES shall not in any way or at any time dispute or attach the
validity or harm or contest the rights of SHAMAN in or to such notices as may be
necessary or, in SHAMAN's reasonable judgment, desirable in order to preserve
and protect SHAMAN's proprietary rights in SHAMAN's Intellectual Property.
5.3 Customer List. SHAMAN may compile a list of the names and addresses of
persons and entities who order the Products through it or are otherwise targeted
by or on behalf of it as potential customers of the Products (the "Customer
List"). The Customer List shall be and remain SHAMAN's exclusive property during
the term and following any termination of this Agreement.
6. Additional Representations and Warranties. Each party represents and warrants
to the other as follows:
6.1 Power and Authorization. It has all requisite power and authority (corporate
and otherwise) to enter into this Agreement, and has duly authorized by all
necessary action the execution and delivery hereof by the officer or individual
whose name is signed on its behalf below.
6.2 No Conflict. Its execution and delivery of this Agreement and the
performance or its obligations hereunder, do not and will not conflict with or
result in a breach of or a default under its organizational instruments or any
other agreement, instrument, order, law or regulation applicable to it or by
which it may be bound.
6.3 Enforceability. This Agreement has been duly and validly executed and
delivered by it and constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement or creditors' rights and except as enforcement is
subject to general equitable principles.
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7. Indemnification.
7.1 By SHAMAN.
(a) Generally. Subject to Section 7.1(b) hereof, SHAMAN shall defend, indemnify
and hold harmless TRICOM PICTURES, its affiliated companies and their respective
officers, directors, shareholders, employees, licensees, agents, successors and
assigns from and against any and all liabilities and expenses whatsoever,
including, without limitation, claims, damages, judgments, awards, settlements,
costs, and attorneys fees and disbursements (collectively "Claims") which any of
them may incur or become obligated to pay arising out of or resulting from (i)
TRICOM PICTURES' authorized use of any material and information provided to
TRICOM PICTURES by SHAMAN (including information and data provided to TRICOM
PICTURES by SHAMAN in order to substantiate claims, including claims as to,
SHAMAN's competitors, made in advertising or any other material for SHAMAN) or
of copyrighted material, artwork, or any other property belonging to third
parties obtained by SHAMAN which are used by TRICOM PICTURES in performing
services for SHAMAN; or, (ii) the use of SHAMAN's products or services by any
third party; or, (iii) the breach by SHAMAN of any of its representations,
warranties, covenants, obligations, agreements or duties under this Agreement.
(b) Exceptions. SHAMAN shall have no duty under Section 7.1(a) hereof or
otherwise to defend, indemnify or hold harmless with respect to any claims which
(i) arise out of or result from the breach by TRICOM PICTURES of any of its
representations, warranties, covenants, obligations, agreements or duties under
this Agreement; or (ii) are subject to TRICOM PICTURES' duty to defend,
indemnify and hold harmless pursuant to Section 7.2(a) hereof.
7.2 BY TRICOM PICTURES.
(a) Generally. Subject to Section 7.2(b) hereof, TRICOM PICTURES shall defend,
indemnify and hold harmless SHAMAN, its affiliated companies and their
respective officers, directors, shareholders, employees, licensees, agents,
successors and assigns from and against any and all Claims which any of them may
incur or become obligated to pay arising out of or resulting from (i) the breach
by TRICOM PICTURES of any of its representations, warranties, covenants,
obligations, agreements or duties under this Agreement; (ii) arise out of or
result from any fraud, knowing misrepresentation or negligence by or on behalf
of TRICOM PICTURES with respect to the attribution or depiction of any of the
Products advertised in any Program; or (iii) the unauthorized use of the name,
likeness or voice of any person, or any libel, slander, defamation,
disparagement; piracy, plagiarism, idea misappropriation or infringement or
copyright, title, slogan or other property rights, or any invasion of privacy or
publicity, or unfair competition alleged in conjunction with any of the above
causes of action.
(b) Exceptions. TRICOM PICTURES shall have no duty under Section 7.2(a) hereof
or otherwise to defend, indemnify or hold harmless with respect to any Claims
which (i) arise out of or result from any fraud, knowing misrepresentation or
deception by or on behalf of SHAMAN with respect to the attributes or depiction;
of any of the Products advertised in any Program; (ii) arise out of or result
from the breach by SHAMAN of any of its representations, warranties, covenants,
obligations, agreements or duties under this Agreement; or (iii) are subject to
SHAMAN's duty to defend, indemnify and hold harmless pursuant to Section 7.I(a)
hereof.
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7.3 Procedure. Promptly after learning of the occurrence of any event which
may give rise to its rights under the provisions of this section, any person
seeking .to enforce such rights (a "Claiming Person") shall give written notice
of such master to the party against whom enforcement of such rights is sought
(the "Indemnifying Party"). The Claiming Person shall cooperate with the
Indemnifying Party in the negotiation, compromise and defense of any such
matter. The Indemnifying Party shall be in charge of and control such
negotiations, with respect thereto, provided that the Indemnifying Party shall
promptly notify the Claiming Person of all developments in the matter. In no
event shall the Indemnifying Party compromise or settle any such matter without
the prior written consent of the Claiming Person, which shall not be bound by
any such compromise or settlement absent its prior consent.
8. Term
8.1 Generally. Unless sooner terminated in accordance with the provisions of
Section 9 hereof, this Agreement shall remain in full force and effect for an
"Initial Term" commencing as of the date hereof and ending on April 30,2002 and
for such further Additional Term(s) (as defined in Section 8.2 hereof) as may
follow.
9. Termination.
9.1 Termination Events.
(a) Termination Upon Unsuccessful Conclusion of Test Marketing.
SHAMAN may terminate this Agreement concurrently with written notice to TRICOM
PICTURES of the unsuccessful conclusion (in SHAMAN's sole judgment) of any test
marketing conducted by SHAMAN. If a agreement is terminated for any reason, all
fees are still due TRICOM and all fees are deemed earned and only the dollars to
be refunded will be as described in Section 3.4.
(b) Termination Before Airing of Program.
SHAMAN may terminate this Agreement concurrently with written notice to TRICOM
PICTURES of its election, in accordance with Section 3.4 hereof, not to continue
with production of the Programs.
(c) Failure to Perform.
In the event that TRICOM fails to perform its agreed to duties as stated in this
Agreement, SHAMAN may terminate this Agreement with written notice to TRICOM
PICTURES. As long as such failure is not due to SHAMAN preventing TRICOM from
performing in any way including but not limited to failure to provide approvals
or information. If SHAMAN believes there is a failure by TRICOM to perform, they
must notify TRICOM in writing via overnight carrier and give TRICOM reasonable
time and in no case less than twenty business days to correct any alleged
failure to perform prior to requesting a refund of any dollars for failure to
perform. In the event of termination for failure to perform, TRICOM PICTURES
will refund all unspent/uncommitted production dollars and media dollars to
SHAMAN.
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10. Confidential Information. The parties contemplate that each may come into
contact with the confidential information of the other, its customers,
suppliers, and/or other consultants, including (1) information of a technical
nature, such as "know-how," secret processes, inventions and research projects,
(2) information of a business nature, such as information about costs, profits,
markets, sales, lists of customers, (3) plans for future developments and
products, and (4) other information of a similar nature to the extent not
available to the public. Each party agrees to keep secret all such confidential
information and further agrees not to use such information or to disclose it to
anyone outside of the other, either during or after the period of this Agreement
except upon the written consent of the other. Each party agrees that at any
time, upon the other's request and, in any event upon termination of this
Agreement, to deliver to the other party all originals and copies then in its
possession of any Confidential Information.
11. Injunction. Each party acknowledges that a breach of its obligations of
exclusivity under Section 1.1 hereof or confidentiality under Section 13 hereof
will result in irreparable and continuing damage to the other party for which
there will be no adequate remedy at law. Accordingly, in the event of any such
breach, the non-breaching party shall be entitled to injunctive relief and/ or
an order for specific performance, without bond, with respect to such breach.
The breaching party shall not oppose such relief on the grounds that there is an
adequate remedy at law, and such right shall be cumulative and in addition to
any other remedies at law or in equity (including monetary damages) which the
non-breaching party may have upon the breach of the other party's obligations of
exclusivity or confidentiality hereunder.
12. Independent Contractors. Both parties to the Agreement are independent
contractors, and neither is authorized to nor shall act as the agent for the
other. The control and conduct of the work performed by each under this
Agreement shall rest solely with such party.
13. Force Majeure. Neither party shall be responsible for any resulting loss if
the fulfillment of any terms or provisions of this Agreement are delayed or
prevented by riots, wars, acts or enemies, national emergencies, strikes,
floods, fires, acts of God, or by any other cause not within the control of the
party or its subcontractors whose performance is interfered with which by the
exercise of reasonable diligence such party or subcontractor is unable to
prevent, whether of the class or cause enumerated above or not.
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14 Miscellaneous.
14.1 Notices. All notices, requests, instructions, consents and other
communications to be given pursuant to this Agreement shall be in writing and
shall be deemed received (i) on the same day if delivered in person, by same-day
courier or by telegraph, telex or facsimile transmission, (ii) on the next day
if delivered by overnight mail or courier, or (iii) on the date indicated on the
return receipt, or if there is no such receipt, on the third calendar day
(excluding Sundays) if delivered by certified or registered mail, postage
prepaid, to the third party for whom intended to the following addresses:
Jack Levine
TRICOM PICTURES
2001 West Sample Road
Suite 101
Pompano Beach, FL 33064
Lisa Conte
SHAMAN Pharmaceuticals, Inc.
213 E. Grand Avenue
South San Francisco, CA 94080
Cc: Legal Department
Any party may by written notice given to the other in accordance with this
Agreement change the address to which notices to such party are to be delivered.
14.2 Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings between them with respect to the subject matter
hereof. Each party has executed this Agreement without reliance upon any
promise, representation or warranty other than those expressly set forth herein.
Each party acknowledges that (i) it has carefully read this Agreement; (ii) it
has had the assistance of legal counsel of its choosing (and such other
professionals and advisors as it has deemed necessary) in the review and
execution hereof; (iii) the meaning and effect of the various, terms and
provisions hereof have been fully explained to it by such counsel; (iv) it has
conducted such investigations contemplated hereby; and (v) it has executed this
Agreement of its own free will.
14.3 Amendment. No amendment of this Agreement shall be effective unless
embodied in a written instrument executed by all of the parties.
14.4 Waiver of Breach. The failure of any party hereto at any time enforce any
of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor in any way to affect the validity of this
Agreement or any provisions hereof or the right of any party hereto to
thereafter enforce each and every provision of this Agreement. No waiver of any
breach of any of the provisions of this Agreement shall be effective unless set
forth in a written instrument executed by the party against whom or which
enforcement of such waiver is sought; and no waiver of any such breach shall be
construed or deemed to be a waiver of any other or subsequent breach.
14.5 Assignability This agreement is personal to the parties and not assignable
by them with the sole exception that SHAMAN may assign its rights and
obligations hereunder, in whole or in part, to any affiliated corporation
controlled by or under common control with SHAMAN, without the prior written
consent of TRICOM PICTURES.
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14.6 Governing Law. All matters affecting the interpretation, form, validity and
performance of this Agreement shall be governed by the laws of the State of New
York, U.S.A and venue for any action shall be in the courts of New York County
New York.
14. 7 Severability. An or the provisions of this Agreement are intended to be
distinct and severable. If any provision of this Agreement is or is declared to
be invalid or unenforceable in any jurisdiction, it shall be ineffective in such
jurisdiction only to the extent of such invalidity or unenforceability. Such
invalidity or unenforceability shall not affect either the balance of such
provision, to the extent it is not invalid or unenforceable, or the remaining
provisions hereof, nor render invalid or unenforceable such provision in any
other jurisdiction.
14.8 Survival. The provisions of Sections 4 (royalties), 5 (proprietary rights),
7 (indemnification), 9 (rights upon termination) and 10 (confidentiality) shall
survive the termination of this Agreement.
14.9. Arbitration. In the event of any dispute between the parties, the dispute
shall be resolved by arbitration before the Florida Arbitration Association, in
accordance with its rules then in effect, pursuant to the laws of the State of
Florida applicable to contracts made and performed in that state.
14.10. Costs and Attorneys' Fees. If any action is necessary to enforce any of
the terms and conditions of this Agreement, including arbitration as described
above, the prevailing party shall be entitled to receive from the other party
all related costs and fees, including reasonable attorneys' fees, and the
prevailing legal interest rate on all debts from the date of default.
14.11 Interpretation and Construction. This Agreement has been fully and freely,
negotiated by the parties hereto, shall be considered as having been drafted
jointly by the parties hereto, and shall be interpreted and construed as if so
drafted, without construction in favor of or against any party on account of its
participation in the drafting hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on the date first written above.
Attest:
TRICOM PICTURES INC.
By:/s/Bonnie Harrison By: /s/Mark Alfieri
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Title:Office Manager Title: Executive Producer 5/2/00
--------------------- ----------------------------
SHAMAN BOTANICAL.COM
By:/s/ Loretta L. Su By: Thomas F. White
--------------------- -------------------
Title: Controller Title: Sr. Vice President Communications
--------------------- ----------------------------------
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