ex102.htm


    Exhibit
      10.2

     

    DISTRIBUTION
      AGREEMENT

     

     

    The
      Distribution Agreement (the "Agreement") is entered into as of March 2007 (the
      "Execution Date") but effective as or January 1, 2007 (the Effective Date")
      between Platinum Studios, Inc. ("Platinum") and Top Cow Productions, Inc. ("Top
      Cow"), with reference to the following:

     

    WHEREAS,
      Top Cow is party to a print-publishing distribution agreement with Image Comics,
      Inc. ("Image"), which is a party to a Sales Agent Agreement with Diamond Comic
      Distributors, Inc. ("Diamond");

     

    WHEREAS.
      Platinum and Top Cow desire to enter into an agreement pursuant to which Top
      Cow
      will cause the distribution of certain of Platinum's comics and graphic novels
      through Diamond's agreement with Image, all under the terms and conditions
      set
      forth below;

     

    1.  (a)           Top
      Cow shall distribute printed copies of Platinum's comic-hook and graphic-novel
      properties that have been designated by Platinum and approved by Top Cow ("Comic
      Properties") through Diamond (via the Image's agreement with Diamond) during
      the
      Term (defined
      below), which approval shall not be unreasonably withheld; provided
      that,
      if at anytime during the Term, the majority of Top Cow's own titles arc
      solicited in a section of previews other than the Image section, then Top Cow
      shall provide Platinum with the similar placement through Diamond (but
      subordinate to Top Cow's own titles) that Top Cow receives for its own titles.
      Comic Properties shall include, without limitation, Platinum's "Kiss" Comic
      Properties ("Kiss Tides"). As part of its services hereunder, Top Cow shall
      provide the services listed in Exhibit ''A" attached hereto. Platinum grants
      to
      Top Cow all rights necessary (whether under copyright, trademark, or otherwise)
      to perform all of Top Cow's obligations hereunder.

     

    (b)           If,
      at any time during the 'Fenn, Top Cow enters into an agreement to distribute
      all or substantially all of its printed comics to the "direct market" through
      channels other than Diamond ("Other Distribution Channels"), Platinum shall
      have
      the option to have the Comic Properties distributed through such Other
      Distribution Channels, as well, on terms to be negotiated in good
      faith.

     

    2.  Top
      Cow
      shall not be obligated to distribute hereunder more than 60 Comic Properties
      per
      year ("Comics Titles Maximum"), excluding variant-cover and limited editions
      of
      Comic Properties ("Variant Covers"). Notwithstanding the foregoing, Top Cow
      shall also distribute hereunder up to 24 Kiss Titles ("Kiss 'Titles Maximum")
      per year.

     

    (b)           Subject
      to timely delivery, Top Cow's approval as set forth in Section

     

    (a)
      above, and no more than one full-page per item, and provided Platinum shall
      solicitat least two titles for the month in question, Top Cow shall provide
      two
      full pages in Diamond's "Previews" catalogue (the "Diamond Catalogue") each
      month of the Term for Comic Properties solicitations.


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    
      	
              3.

            	
              During
                the Term:

            


    

     

    (a)  .1-op
      Cow shall he responsible for arranging the printing of all Comic Properties
      listed with Diamond pursuant hereto at prices at least equal to the prices
      charged by the same printer for Top Cow's own regular titles, but Top Caw's
      obligations extend only to standard printing, and do not include enhanced
      versions (such as, without limitation, 3D effects, foils, or other special
      effects);

     

    (b)  Top
      Cow
      shall provide to Platinum at no additional charge forty-four (44) standard-sized
      pages of standard comic-book lettering (no obligation to hand letter) per month
      of the Term for Comic Properties.

     

    (c)           Top
      Cow shall be responsible for collecting, either directly or via
      Image,

     

    all
      monies payable to Platinum by Diamond for sales of Comic Properties and
      Ancillary Products hereunder; but Top Cow shall have no obligation to litigate,
      w arbitrate, or to use third-party collectors:, provided, however, that Top
      Cow
      covenants and agrees to employ the general level of efforts to collect monies
      payable to Platinum hereunder as it uses to collect monies payable directly
      to
      Top Cow for Top Cow's own properties from Image and/or Diamond.

     

    4.          Top
      Cow shall be entitled to receive the following:

     

    (a)           $3,000.00
      for each Comic Property listed with Diamond (the "Listing

     

    Fee"),
      provided that no Listing Fee shall be payable for variant covers of a Comic
      Property listed with Diamond. The Listing lee for a Comic Property shall he
      due
      and payable to Top Cow as of the date that Diamond publishes its preview book
      listing such Comic Property.

     

    (b)           ten
      percent (10%) of Net Revenues, defined below ("Top Cow Receipts");
      "Net Revenues" shall mean the gross revenues paid or credited by Diamond to
      Image or Top Cow for sales of Comic Properties and Variant Covers ("Gross
      Revenues") less only 

     

    (A)
      the
      actual, documented, out-of-pocket
      printing eosts, 

     

    (B)
      Diamond's
      direct marketing set-vices
      costs which are incurred at the request of Platinum; (C) audit and other
      documented collection costs (pro-rated); (D) the Listing Fee, but only if not
      previously paid by Platinum as set forth in Section 4 (a) above; (E) other
      directly related costs incurred by Top Cow or Image in connection with the
      Comic
      Properties that have been approved by Platinum (the "Costs"). Top Cow does
      not
      represent or warrant that there will he any Net
      Revenues; and

     

    (c)           a
      nonrefundable fee of Fifty Thousand US Dollars (US $50,000) (the "Distribution
      Fee") payable on the execution hereoll The timely receipt of portion of this
      fee
      shall be a condition precedent to the continuing effectiveness of any of Top
      Cow's obligations hereunder.

    

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

    

     

    (d)           Not
      more frequently than once per calendar month, Top Cow shall provide
      Platinum with an invoice for Costs not recouped from Gross Revenues, if any,
      together with any appropriate documentation. Platinum shall remit payment to
      Top
      Cow for such recouped Costs within thirty days following receipt of such
      invoice. Any disputes shall be resolved via arbitration as set forth in Section
      11(c) below.

     

    5.           (a)           Within
      thirty days of receipt by Top Cow of Gross Revenues (either

     

    directly
      from Diamond or from Image), Top Cow shall remit to Platinum 90% of Net Revenues
      (the "Platinum Receipts") derived from those Gross Revenues
      hereunder.

     

    (b)  Within
      thirty (30) days of the end of each calendar month during the Term and, to
      the
      extent applicable, following any expiration or termination of this Agreement,
      Top Cow shall provide to Platinum a written report of all Net Revenues received
      by image and/or 'Fop Cow during said calendar month, together with a.
      calculation of the Platinum Book Receipts and Platinum Product Receipts due
      thereon, including all deductions made for Costs broken out on a title-by-title
      and product-by­product basis (each, a "Monthly Fee Report").
      Simultaneously with the delivery of the Monthly Fee Report to Platinum. Top
      Cow
      shall remit to Platinum the Platinum Book Receipts and the Platinum Product
      Receipts shown on such Monthly lee Report to he due and owing to Platinum,
      less
      any Platinum Book Receipts and/or Platinum Product Receipts already paid by
      Top
      Cow in respect of such Monthly Fee Report pursuant to Section 5(a) above. All
      amounts payable hereunder are to be in United States Dollars.

     

    (c)             Audit
      Rights. Platinum shall have the right during the Term and, to the extent
      applicable, following any expiration or termination of this Agreement, at its
      own expense and during reasonable business hours, to have an independent
      certified public accounting firm examine the relevant books and records of
      account of Top Cow regarding Net Revenues, Platinum Receipts, Top Cow Receipts,
      listing Fees and Costs, to determine whether appropriate accounting and payment
      of Platinum Receipts has been made under the Monthly Fee Reports; provided
      that
      Platinum shall be prohibited from exercising such inspection rights (i) with
      respect to Platinum Receipts payable under any Monthly Fee Report more than
      eighteen months following delivery of such Monthly Fee Report to Platinum;
      and
      (ii) more often than once each twelve-month period. If any such audit accurately
      discloses that Top Cow underpaid Platinum Receipts due hereunder, then absent
      any dispute by Top Cow, Top Cow covenants and agrees to pay Platinum, within
      five (5) business days of such disclosure, an amount equal to the deficient
      amount disclosed by such audit. If the amount of additional Platinum Receipts
      shown by such audit to be owed by Top Cow for such time period shall be in
      amount in excess of ten percent (10%) of the aggregate amount of Platinum
      Receipts actually paid by Top Cow during the same time period (and also not
      less
      than $5,000), then Top Cow shall reimburse Platinum for all costs and expense
      incurred in conducting such audit within ten days of submission to Top Cow
      of a
      written invoice for all such costs and expense. In the event of any dispute
      under this Section, the parties shall submit to binding arbitration as sct
      forth
      in Section I 1(d) hereof within sixty days of such dispute arising.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    6.          (a)          The
      term
      of
this Agreement (the "Term") will commence on the Effective
      Date and will continue for one year, unless earlier terminated pursuant to
      the
      provisions of Section 6(h) below. For purposes of clarification, Platinum shall
      be prohibited from submitting solicitations to Top Cow hereunder if such
      solicitations would appear in the Diamond previews catalogue after December
      31, 2007.

     

    (b)            The
      Temi may be terminated by either party hereto in accordance with the
      following;

     

    (i)  upon
      thirty days prior written notice detailing a material breach of this Agreement
      that remains uncured for said thirty-day period;

     

    (ii)  immediately
      upon 

     

    (A)     Image
      or any
      party hereto filing a voluntary petition in bankruptcy or insolvency or
      petitions for reorganization under any bankruptcy law; 

     

    (B)    
Image
or
      any party hereto consenting or being subject to an involuntary petition
      in bankruptcy or if a receiving order is made against it under applicable
      bankruptcy legislation; 

     

    (C)     an
      order,
      judgment or decree by a court of competent jurisdiction, upon the application
      of
      a creditor, being entered approving a petition seeking reorganization or
      appointing a receiver, trustee or
      liquidator of all or a substantial part of the assets of Image or any
      party hereto and such order, judgment, or decree continues in effect for a
      period of thirty (30) consecutive days;

     

    (iii)  upon
      at
      least ninety (90) days prior
      written notice to the other party here, without cause; or

     

    (iv)  if
      either
      party ceases to conduct business.

     

    7.          The
      provisions of Section 8, 9 and 11 shall survive any termination or expiration
      of
      this
      Agreement.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    8.          (a)          Top
      Cow hereby represents and warrants to Platinum that 

     

    (i)
      it is
      fully authorized
      to execute this Agreement and perform its obligations hereunder in accordance
      with its terms, 

     

    (ii)
      the
      execution and performance of this Agreement by Top Cow does not and will not
      conflict with or violate the terms of any other agreements by which lop Cow
      is
      or may he hound; and 

     

    (iii)
      'l'op Cow has the power, ability and authority to cause the listing of Comic
      Properties through Image's agreement with Diamond and the collection of Net
      Revenues form Diamond directly or through Image and the remittance of the Net
      Revenues as required hereunder.

     

        (b)     By
      Platinum.
Platinum hereby represents and warrants to Top Cow that 

    (i)
      it is
      fully authorized to execute this Agreement and perform its obligations hereunder
      in accordance with its terms,

     

    (ii)
      the
      execution and performance of this Agreement by Platinum does not and will not
      conflict with or violate the terms of any other agreements by which Platinum
      is
      or may be bound and Platinum's execution and performance hereof shall not
      violate any law, rule, or governmental regulation; (iii) neither the
      distribution of Platinum's Comic Properties
      as
      contemplated hereunder nor the performance by Platinum of its obligations
      hereunder, will violate or infringe any third party rights or interest; (iv)
      all
      the rights herein licensed to 'fop Cow are clear and unencumbered, and that
      there are no actions or claims pending or threatened in connection therewith;
      and (v) Top Cow shall have no obligation or liability whatsoever (e.g. to pay,
      to report, or otherwise) to any third party, whether artists, writers, other
      contributors, licensors, or owners as a result of its actions hereunder. In
      connection herewith, Platinum covenants and
      agrees to add Top Cow as
      an
      additional named insured under it Errors and Omissions Policy.


    9.  Subject
      to the terms and conditions of this Agreement, (I) each party ("Inticmnitor")
      agrees to defend, hold harmless, and indemnify the other party, its employees,
      directors, officers and agents ("Indemnitee(s)") from and against all claims,
      actions, damages, and/or liabilities, together with any and all losses, lines,
      penabies, costs, and expenses, including, without limitation, attorneys' fees
      and expenses or penalties imposed by governmental entities (collectively, the
      "Liabilities") by reason of or resulting from any breach by Indemnitor of any
      of
      the provisions of this Agreement or any action or inaction of Indemnitor or
      its
      directors, officers, employees and agents that is illegal or constitutes gross
      negligence or intentional misconduct in the performance of Indemnitor's
      obligations under this Agreement; provided, however, that Inderrmitor's
      liability to an Indemnitee under this Section shall be reduced to the
      extent, and in the proportion, that such I ,iahilities have been proximately
      caused by any Indemnitee's negligence, recklessness, or intentional misconduct
      provided that Top Cow shall have
      no
      duty to investigate, review, or inquire about any Comic Property.

     

    10.  The
      relationship of the
parties
      established by this Agreement is that of independent contractors,
      and nothing contained in this Agreement should he construed to give either
      party
      the power to 

    (i)
      act
      as an agent or 

     

    (ii)
      direct or control the day-to-day activities of the other  All financial and
      other
      obligations associated with each party's
business
      are the sole
      responsibility of that party.

     

    I
      I.           (a)           Any
      notice required or permitted to be given under this Agreement will be
      effective if it is in writing and sent by prepaid certified or Express mail,
      or
      insured or overnight courier (i.e., FedEx, UPS, or DILL), return receipt
      requested, to the appropriate party at. the address set ihrth below and
      with the appropriate postage affixed or costs prepaid. Either party may change
      its address for receipt ornotice by notice to the other party in accordance
      with
      this Section. Notices are deemed given two business days following the date
      of
mailing or one
      business day following delivery to a courier.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    To
      Platnum:

     

    Platinum
      Studios, Inc.

    Attention:
      Brian Altounian, President 11400 W. Olympic Blvd., leFloor Los Angeles. CA
      90064

     

    Fax:
      (310) 887-3943

     

    With
      a
      copy to:

     

    Tide%
      Pretsky, Executive VP, Business Affairs & (ieneral Counsel Platinum Studios,
      Inc.

    11400
      W.
      Olympic Blvd., 141'
      Floor Los Angeles, CA 90064

    Fax:
      (310) 887-3943

    


    To
      Top Cow:

     

    Top
      Cow
      Productions, Inc.

    Attention:
      Mutt
Hawkins

    10350
      Santa Monica Rlvd,, Suite 100 Los Angeles; CA
      90025

    Fax:
      (866) 221-3759

     

    With
      a
      copy sent concurrently to:

     

    Law
      Offices of Harris M. Miller II, P.C. 8424A Santa Monica Boulevard,
      #127
West Hollywood, CA 90069

     

    Fax:
      (323) 656-0384

    


     

    (a)  Other
      than payment of the Distribution Fee, nonperformance of either party will be
      excused to the extent that performance is rendered impossible by strike, Fire,
      flood, governmental acts, orders, restrictions, or any other reason where
      failure to perlbrrn is beyond the control and not caused by the negligence
      of
      the non-performing party.

     

    (b)  This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      Stale ot.California,
without
      giving effect to provisions related to choice of laws or conflict
      or
      laws.

     

    (c)  Any
      dispute regarding any aspect of this Agreement or any act which allegedly has
or
      would violate any provision of this Agreement or any law (hereinafter "Arhitral
      Dispute") shall be submitted to arbitration in Los Angeles County, California,
      and selected in accordance with the Commercial Arbitration Rules of the American
      Arbitration Association, as the exclusive remedy for any such claim or Arbitral
      Dispute. The decision of the arbitrator shall be final, conclusive and binding
      upon the parties. Should any party to this Agreement pursue any Arbitral Dispute
      by any method other than said arbitration
      (except as required by law), the responding party shall be entitled to
      recover from the initiating party all damages, costs, expenses and attorneys'
      fees incurred as a result of such action.

     

    (d)  The
      prevailing party in any action or Arhitral Dispute arising from or relating
      to
      this Agreement or a dispute between the parties is entitled to recover its
      costs, including reasonable attorney foes, in addition to any other relief
      to
      which it may be entitled. Any party in whose favor a judgment
      ur
d;1,eeis.on
      has been
      entered
shall
also
      he entitled
to recovery of its attorney's lees
and
      costs in enforcing such judgment or
      decision.


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    


     

    (f)           The
      waiver by either party of any breach of this Agreement does not waive
      any
      other breach. The failure of any party to insist on strict performance of any
      covenant or obligation under this Agreement will
not
      be a waiver of such party's right to demand strict compliance in the future,
      nor
      will the same be construed as a novation of this Agreement. If
      any
      part of this Agreement is unenforceable, the remaining portions of this
      Agreement will remain in full force and effect. The parties have had an equal
      opportunity to participate in the negotiation and drafting of this Agreement
      and
      the attached schedules and exhibits. No ambiguity will be construed against
      any
      party based upon a claim that that party drafted the ambiguous language.
      Whenever required by context, a singular number will include the plural, the
      plural number
will include
      the singular, and
      the
gender of any pronoun will include all genders

     

    (g)  This
      Agreement, including any exhibits and schedules referred to herein, is the
      final
      and complete expression of all agreements between these parties and supersedes
      all previous oral
      and written agreements
regarding
      these matters. It may be changed only by a written instrument signed
by
      the party against whom
en
      liffcemeni is sought.

     

    (h)  The
      Agreement may be executed in counterparts,
      each of which
      will be deemed an original, but all of which taken together will
      constitute but one
      and the same
      instrument. The
      Agreement may be executed and delivered by facsimile or PDF and the
      parties agree
      that such execution and delivery will have the same force
      and
      effect as delivery of an original document with original signatures, and that
      each party may use such electronic signatures as evidence of the execution and
      delivery of this Agreement by all parties
      to
      the same extent that an original signature could he
      used.

     

    (i)           Neither
      party may assign its rights
      and
obligations under
      this
      Agreement without
      the written consent of the other, except pursuant
      to a
      merger, acquisition, or sale of
      all or
substantially all of its assets,
      Subject
      to the foregoing, this Agreement will be binding upon
      and inure to the benefit of the parties and their successors and assigns.
      Any Assignee shall
      execute a counterpart of this Agreement
      and
deliver it to the other party within
      Fifteen days
      of the assignment.

     

    TOP
      COW P1 S 1NU.

     

    
      President: IN
        WITNESS WHEREOF, the parties have executed this Agreement as of the date
        first
        written above

    

     

    
      
        	 	PLATINUM
                STUDIOS,
                INC.	 
	 	 	 	 
	
                Date

              	
                By:
                  

              	/s/ Brian
                Altounian	 
	 	 	Brian
                Altounian	 
	 	 	
                President

              	 
	 	 	 	 




      

        
          
            
            

          

          
            7

            
              

            

          

          
            
            

          

        

      

    

     

    EXHIBIT
      A

     

    ADDITIONAL
      SUPPORT SERVICES

     

    *Trafficking
      of print quotes from Quebecor and other printers

     

    *  Coordination
      of files and press time with Quebecor and other printers

     

    *  Coordination
      of marketing services as
      they apply directly to
      Diamond Comic Distributors

     

    *  Access
      to
      al] Diamond Comic Distributors marketing and other services at Image's preferred
      rates

     

    
      	
                     
                *  

            	
              Coordination
                of marketing services as they apply to direct-market retailers
                Facilitation or Diamond
                order codes for all product

            


    

     

    
      	
                      *  

            	
              Facilitation
of
                UPC codes
                for all product

            


    

     

    
      	
                     
                *  

            	
              Coordination
                olPRIs (Print Run, Instructions) between Image and
                Diamond

            


    

     

     

    8