“the Agent is entitled to receive or retain as its commission (and is hereby irrevocably assigned) fifteen percent (15%) of gross monies paid to you hereunder”
AGREEMENT made as of December __, 2003 between The Disinformation Company Ltd., with an address at 207 West 25th Street, 4h Floor, New York, New York 10001 (“Disinformation”) and Martin Lunn, c/o Brian Albert, PO Box
18331, Denver, CO 80218-0331 (“you”).
1. THE BOOK
(a) You shall write and deliver to Disinformation a complete, original manuscript of the literary work with the working title “The Da Vinci Code Decoded” (the “Book”) in Microsoft Word format no later than February 15, 2004 (the “Delivery Date”). The Book shall substantially conform to the proposal attached hereto as Exhibit A and otherwise as requested by Disinformation (it being agreed and understood that the idea for the book originated with Disinformation). Disinformation shall have the right to request changes to the Book and you shall make and submit such changes expeditiously and in good faith. If you fail to deliver the Book by the Delivery Date or you fail to submit requested changes within seven (7) days following Disinformation’s request, then Disinformation may make such changes directly or Disinformation may elect to terminate this agreement by giving you written notice and you shall promptly return the Advance paid to you pursuant to paragraph 2 below and Disinformation will have no further obligation whatsoever under this agreement, to you or to any other person.
(b) You agree to read, revise, correct and return promptly all design, layout and printing proofs of the Book and you agree that alterations made at your request, the cost of which exceeds ten percent (10%) of the original cost of composition, exclusive of the cost of correcting other errors, shall be charged against any sums payable to you hereunder, and you shall pay in full for any corrections in the plates or approved digital files which you require or which are necessary for the correction of actual errors (excluding designer’s and printer’s errors) after the plates or approved digital files have been made in conformity with the last page proof as corrected by you.
(c) You agree that as between you and Disinformation, Disinformation (including but not limited to its affiliates, parent, subsidiaries, licensees and assigns) shall own and control all rights in and to the Book and any Materials (as defined in paragraph 8 below) created by or original with you and furnished to Disinformation for exploitation hereunder, including without limitation any illustrations and/or photographs created or taken by you. All such Materials shall be works made for hire by you for Disinformation and all rights in and to such Materials shall be owned by Disinformation from inception. If you shall be deemed to be an owner or author of all or any part of the Materials, by action of this agreement you shall be deemed to have assigned to Disinformation in perpetuity all rights therein and thereto, including without limitation worldwide copyright and any and all renewals and extensions of copyright. You agree to execute and deliver to Disinformation any document or instrument that Disinformation requires to evidence such assignment and, if you fail to do so within ten (10) days following Disinformation’s request, Disinformation shall have the right to do so in your name and on your behalf as attorney-in-fact.
(d) Disinformation may, at its sole option but in consultation with you, choose to license and/or commission photographs, illustrations and/or other art and design for inclusion in the Book. In such event, Disinformation’s out-of-pocket costs thereof shall be deemed an advance fully recoupable from your royalties hereunder.
(e) Disinformation shall have the right, throughout the universe, in perpetuity and in all media, to use and reproduce, and to license others to use and reproduce, your name, likeness and biography in connection with the advertising, promotion, sale and/or other exploitation of the Book, and/or the services of any distributor of the Book, and/or subsidiary and/or ancillary rights of any nature relating thereto, in any and all media, whether now known or hereafter devised, (including, without limitation, in connection with interviews, features, and other publicity). You agree that, upon Disinformation’s reasonable request you will perform promotion and publicity services with respect to the Book including, without limitation, television and radio interviews and in-store appearances/signings. Such services shall not be separately compensated, provided that Disinformation shall pay your actual, reasonable travel, meal and accommodation expenses in relation thereto in the event that you are required to travel more than fifty (50) miles.
Disinformation shall pay to you the sum of two thousand, five hundred dollars ($2,500) as a fully-recoupable advance against any and all amounts payable to you under this Agreement (the “Advance”), payable one half (½) upon full
execution of this agreement and one half (½) upon commercial release of a print edition of the Book in the United States.
(a) As full and complete consideration for the copyright ownership provisions herein, Disinformation’s right to use your name and likeness as provided herein, the services to be performed by you hereunder, and your other covenants, agreements, warranties and representations contained herein, Disinformation shall pay to you and you agree to accept the following royalties with respect to sales and other exploitations of the Book:
(i) On books sold, paid for and not returned in the United States and Canada:
(A) With respect to trade paperback editions, eight percent (8%) of the United States suggested retail list price on the first Fifty Thousand (50,000) copies, increasing to ten percent (10%) of the United States suggested retail list price on any copies sold in excess of Fifty Thousand (50,000) copies;
(B) With respect to hardcover editions, ten percent (10%) of the United States suggested retail list price on the first Ten Thousand (10,000) copies, increasing to twelve and one half percent (12.5%) of the United States suggested retail list price on the next Ten Thousand (10,000) copies and fifteen percent (15%) of the United States suggested retail list price on any copies sold in excess of Twenty Thousand (20,000) copies;
(C) With respect to ebook, audio book and mass market paperback editions, fifty percent (50%) of Disinformation’s Net Proceeds.
(ii) On books sold, paid for and not returned in the United Kingdom and Eire, fifty percent (50%) of the otherwise applicable United States royalty based on the United States suggested retail list price, except that if Disinformation ceases to distribute the Book directly in such territories and licenses publication rights to a third party, then Disinformation shall pay to you fifty percent (50%) of Disinformation’s Net Proceeds;
(iii) Fifty percent (50%) of Disinformation’s Net Proceeds on net sales in the rest of the world;
(iv) Fifty percent (50%) of Disinformation’s Net Proceeds on any exploitation of the following rights: book club and other direct marketing; corporate and/or institutional editions; textbook; foreign language/translation; and serialization in magazines, newspapers, web sites (other than on any web site owned or operated by Disinformation or any affiliate, which use shall be royalty free) and other similar formats, now or hereafter developed;
(v) Fifty percent (50%) of Disinformation’s Net Proceeds on copies that are sold above cost as overstock or as a premium.
“Net Proceeds” as used in this paragraph 3(a) shall be defined as the gross amounts actually received by Disinformation in the United States in United States currency, less all of Disinformation’s and/or its distributor(s)’ manufacturing and packaging costs, all advertising and publicity expenses, all amounts charged back to Disinformation by its distributor(s), and any and all commissions, fees and expenses paid or incurred by Disinformation, including without limitation materials and conversion costs, agents’ fees, shipping, customs clearance, insurance and collection costs. Notwithstanding the foregoing, no amounts shall be deducted more than once, such that if an expense has been charged back to Disinformation in reduction of the amount remitted by a distributor, such amount shall not be deducted from the gross amount received in computing Net Proceeds.
(b) No royalties shall be payable on copies furnished gratis for review, marketing, promotion, publicity or like practices, no royalties shall be payable on copies sold at or below cost as overstock or as a premium, and no royalties shall be payable on copies distributed as a sales inducement or otherwise and invoiced on a “no charge” or equivalent discount basis. With respect to copies sold at a discount of more than forty-nine percent, but less than sixty-one percent (61%), of the suggested retail list price, or the equivalent if prices are not expressed as a discount from suggested retail list price, (but not as overstock or as a premium) the royalties payable to you hereunder on such copies shall be at two thirds (2/3) of the otherwise applicable rate. With respect to copies sold at a discount of more
than sixty percent (60%) of the suggested retail list price, or the equivalent if prices are not expressed as a discount from suggested retail list price, (but not as overstock or as a premium) the royalties payable to you hereunder on such copies shall be at fifty percent (50%) of the otherwise applicable rate. Disinformation shall be entitled to withhold from payments otherwise due from time to time reasonable reserves against anticipated returns, rebates and credits.
(c) It is understood and agreed that Disinformation shall have the right, at its sole option, to calculate royalties payable to you on a wholesale price basis, in which event the royalty rates at which royalties are payable hereunder shall be adjusted by Disinformation such that, at the time of the adjustment, the royalty, in dollars and cents, payable on a wholesale basis shall equal the royalty, in dollars and cents, otherwise payable hereunder.
(d) (i) (A) Royalties will be calculated semi-annually and accountings demonstrating such Royalties will be rendered within ninety (90) days following each June 30h and December 31st in accordance with
Disinformation’s standard accounting procedures. Your first accounting shall be rendered with respect to the first period in which there are sales of the Book. Together with such accounting, Disinformation will include the payment to you of your royalties (as provided above) if any are due to you, subject to recoupment of the Advance and any other recoupable amounts hereunder. For the purposes of computing royalties if, as of the end of any semi-annual period, your account is in a negative balance, any such negative balance shall be carried forward to the subsequent accounting period.
(B) If Disinformation makes any overpayment to you, Disinformation may deduct it from any monies due or becoming due to you. If Disinformation pays you any monies on Books which are later returned or on other transactions which are reversed, those monies shall be considered overpayments.
(ii) Disinformation shall compute royalties in the same national currency in which Disinformation’s licensee(s) pay Disinformation for those sales, and Disinformation shall credit those monies to your account at the same rate of exchange at which the licensee(s) pay Disinformation. For purposes of accounting to you, Disinformation shall treat any sale outside of the United States as a sale made during the same six (6) month period in which Disinformation receives Disinformation’s licensee’s accounting and payment or credit for that sale. If any Disinformation licensee deducts any taxes from its payments to Disinformation, Disinformation may deduct a proportionate amount of those taxes from Income hereunder.
(iii) Disinformation shall maintain books and records which you may examine, at your expense. You may make those examinations only for the purpose of verifying the accuracy of the statements sent to you under paragraph 3(c)(i). You may make such an examination for a particular statement only once, and only within two (2) years after the date when Disinformation sends you that statement (which will be presumed to be the date when Disinformation is required to render such statement (solely for the purposes of this paragraph, the “Render Date”) unless you notify Disinformation in writing within ten (10) days following the Render Date that you have not received such statement. Upon the receipt of your notice, Disinformation will endeavor promptly to send you such statement and the Render Date will be deemed the actual date that Disinformation sends you such statement) under paragraph 3(c)(i). You may make those examinations only during Disinformation’s usual business hours, on reasonable written notice for a reasonably convenient time, and at the place where Disinformation keep the books and records to be examined. You may appoint a certified public accountant to make such an examination for you, but not if that accountant or that accountant’s firm has begun an examination of Disinformation’s books and records for any Person except you unless that examination has been concluded and any applicable audit issues have been resolved. The rights hereinabove granted to you shall constitute you sole and exclusive rights to examine Disinformation’s books and records.
(iv) You acknowledge that Disinformation’s books and records contain confidential trade information and you warrant and represent that neither you nor your representatives shall communicate to others or use on behalf of any other Person any facts or information obtained as a result of such examination of Disinformation’s books and records.
(v) If you have any objections to a statement, you shall give Disinformation specific notice of that objection and your reasons therefor within two (2) years after the Render Date regarding such statement. Each royalty statement shall become conclusively binding on you at the end of that two (2) year period, and you shall no longer have any right to make any other objections to the statement. You shall not have the right to sue
Disinformation in connection with any accounting, or to sue Disinformation for monies on Books sold by Disinformation during any period an accounting covers, unless you commence the suit within one (1) year after the end of that two (2) year period. If you commence suit on any controversy or claim concerning accountings rendered to you under this agreement, you shall not have any right to seek termination of this agreement or avoid the performance of your obligations hereunder by reason of any such claim.
4. NEGATIVE COVENANT
Neither you nor any Person deriving any rights from you shall at any time do, or authorize any Person to do, anything inconsistent with, or which might diminish or impair, any of Disinformation’s rights hereunder.
5. YOUR RELATIONSHIP TO DISINFORMATION
(a) You are an independent contractor hereunder, and nothing herein contained shall in any way constitute you as the agent or employee of Disinformation. You do not intend any other Person to be a third party beneficiary of this agreement.
(b) You shall cooperate fully with Disinformation in connection with any controversy or litigation which involves Disinformation’s rights under this agreement.
6. RIGHTS AND REMEDIES
(a) (i) You shall not be entitled to recover damages or to terminate this agreement by reason of any breach by Disinformation of its material obligations, unless Disinformation has failed to remedy the breach within thirty (30) days following receipt of your notice thereof and provided that such breach is curable.
(ii) Disinformation shall not be entitled to recover damages or to terminate this agreement by reason of any breach by you of your material obligations, unless you have failed to remedy the breach within thirty (30) days following receipt of Disinformation’s notice thereof provided such breach is curable.
(b) Except as otherwise may be specifically indicated herein to the contrary, the rights and remedies of each party as specified herein are not to the exclusion of each other or of any other rights or remedies as each party may deem fit, without jeopardizing any other rights and remedies of each party; each party may exercise or decline to exercise any of its rights and remedies as each party may deem to fit, without jeopardizing any other rights and remedies of each party.
7. FORCE MAJEURE
If by reason of act of God or force majeure, such as war, fire, earthquake, labor controversy, civil commotion, acts of any government, or the unavailability of or delays in the delivery of materials and supplies, or similar or dissimilar matters beyond Disinformation’s control, Disinformation is prevented from or materially hampered in the production, manufacture, distribution or sale of the Book, Disinformation shall have the right, by written notice to you and without liability, to suspend Disinformation’s obligations hereunder.
8. WARRANTIES AND REPRESENTATIONS; INDEMNITY
(a) You hereby warrant and represent that:
(i) You are possessed of the full right to enter into this agreement, that you are and shall, at all times, remain possessed of all rights necessary for you to completely fulfill all of your obligations hereunder, and that your entering into this agreement and fulfilling such obligations does not and shall not infringe upon the rights of any Person whatsoever.
(ii) None of the Materials (as hereinafter defined), if any, created by or original with you and furnished to Disinformation for exploitation hereunder will violate or infringe upon the rights of any third party. As used herein, “Materials” mean all dramatic, artistic and literary materials, ideas and other intellectual properties contained in
or used in connection with the Book hereunder or the packaging, sale, distribution, advertising, publicity, or other exploitation thereof.
(iii) Except as expressly provided herein to the contrary, Disinformation shall have no monetary obligation whatsoever to you or any other Person for or in connection with this agreement or services performed hereunder by you or Disinformation’s exercise of its rights hereunder.
(b) You shall at all times indemnify and hold harmless Disinformation and any licensee of Disinformation from and against any and all claims, losses, damages, liabilities, costs and expenses, including, without limitation, legal expenses and reasonable outside counsel fees, arising out of any breach by you of any warranty or representation made by you in this agreement or any other act or omission by you. Disinformation shall notify you of any action commenced on such a claim. You may participate in the defense of any such claim through counsel of your selection at your own expense, but Disinformation shall have the right at all times, in Disinformation’s sole discretion, to retain or resume control of the conduct of the defense. Pending the resolution of any claim in respect of which Disinformation is entitled to be indemnified, Disinformation may withhold and reserve any monies which would otherwise by payable to you under this agreement in an amount consistent with such claim.
(a) This agreement supersedes any and all prior negotiations, understandings and agreements between the parties hereto and sets forth the entire understanding between you and Disinformation with respect to the subject matter hereto. No amendment to or modification, waiver, termination or discharge of this agreement or any provision hereof shall be binding upon you or Disinformation unless confirmed by a written instrument signed by you and Disinformation’s authorized signatory. Each of the parties acknowledges and agrees that neither party has made any representations or promises in connection with this agreement or the subject matter hereof not contained herein. Any process in any action, suit or proceeding arising out of or relating to this agreement may, among other methods, be served upon you or Disinformation by delivering it or mailing it in accordance with paragraph 10 below. No waiver of any provision of or default under this agreement shall affect your or Disinformation’s right, as the case may be, thereafter to enforce such provision or to exercise any right or remedy in the event of any other default, whether or not similar. This agreement shall be construed under the internal laws of the State of New York applicable to agreements to be performed wholly therein, and both parties agree that only the New York Courts shall have jurisdiction over this agreement and any controversies arising out of this agreement shall be brought by the parties to the Supreme Court of the State of New York, County of New York, or to the United States Court for the Southern District of New York, and they hereby grant jurisdiction to such court(s) and to any appellate courts having jurisdiction over appeals from such court(s).
(b) If any part of this agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having the jurisdiction to make such determination, the remainder of this agreement shall remain in full force and effect provided that the part of this agreement thus invalidated or declared unenforceable is not essential to the intended operation of this agreement.
(c) Disinformation may, at its election, assign this agreement or any of its rights or obligations hereunder to any of current or future parents, subsidiaries or affiliated companies or to any Persons acquiring all or substantially all of its respective assets, or with whom Disinformation may merge. You shall not have the right to assign this agreement or any of your rights or obligations hereunder.
(d) The captions preceding the text of the various provisions of this agreement are inserted solely for reference and shall not constitute a part of this agreement nor affect its meaning, construction or effect. Every word or phrase defined herein shall, unless herein specified to the contrary, have the same meaning throughout. As used herein, wherever applicable, the singular shall include the plural and the plural shall include the singular, the masculine shall include the feminine and the feminine shall include the masculine.
(e) Disinformation shall not have any obligation whatsoever to make any investigation of the facts relevant to any warranty or representation herein made by you.
All notices and other items from one Party to the other hereunder will, unless herein indicated to the contrary, be addressed as follows:
To you: At your address as set forth on the first page hereof, or if physical delivery is to be made:
c/o Brian Albert 2858 Marion Street Denver, CO 80205
To Disinformation: At Disinformation’s address as set forth on the first page hereof, directed to the attention of Disinformation’s President.
or to such other address may designate in writing. Any notice shall be sent either by certified or registered mail, return receipt requested (and in the case of notices sent to or from a location outside the United States, by air mail), or by personal delivery or air express requiring signature for receipt to the party to be served and shall be deemed complete when same (containing whatever information may be required hereunder) is deposited in any United States mailbox addressed as aforesaid, except that (a) all materials personally delivered shall be deemed served when received by the party to whom addressed, (b) air express materials shall be deemed served one (1) day after delivery to the air express company, (c) notices of change of address shall be effective only from the date of their receipt and (d) royalty statements shall be sent by regular mail and shall be deemed rendered when deposited in any United States mail box.
(a) “Written Work” means an original literary work written in the English language.
(b) “Person” and “Party” mean any individual, corporation, partnership, association or other organized group or combination of any or all of the foregoing, and their legal successors or representatives.
12. YOUR AGENT
You irrevocably appoint Brian Albert as your sole and exclusive agent (the “Agent”) with respect to the Book and authorize and direct Disinformation to make all payments due or to become due to you hereunder to and in the name of said Agent, and to accept the receipt by the Agent as full evidence and satisfaction of such payments. As sole and exclusive agent, the Agent is hereby irrevocably authorized and empowered by you (a) to act on your behalf in all matters arising from and pertaining to this agreement and (b) to receive in the Agent’s name all monies due or to become due to you in connection with the disposal of any such rights. In consideration for services rendered, the Agent is entitled to receive or retain as its commission (and is hereby irrevocably assigned) fifteen percent (15%) of gross monies paid to you hereunder. If there is any inconsistency between the terms of this Section 5 and any other agency agreement between you and the Agent applicable to the Book, the terms of this agreement shall prevail.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date first written above.
THE DISINFORMATION COMPANY LTD.
By: ____________________________ Gary Baddeley, President
_______________________________ Martin Lunn
Proposal upon which the Book is to be based
· A pop culture easy to read “guide to” the Da Vinci Code (DVC) by Dan Brown to help all the purchasers of DVC who have no idea whether it’s based on accurate research or not.
· Focus on the “facts” underlying DVC and compare it to historical research in those areas (e.g. Priory of Sion, Templars, Roslyn, Grail, Opus Dei, etc.).
· Each of the various topics could be a chapter, with the gospel according to Dan Brown analyzed by Martin. · Small format – maybe even smaller than 8×5”
· No more than 200 pages.
· Some illustrations and/or photos (at least one per subject), but library or Public Domain.
· The following material should be covered, written in the order in which it is first mentioned in the DVC:
o (Jacques Saunière). Perhaps the story of Bérenger Saunière should start the book off as theories connected to it resonate throughout the book.
o Opus Dei. They mention the New York and London offices, but the order started in Spain. o The Priory of Sion and information on the Plantard St Clairs.
o Analyses of the Madonna of the Rocks and the Virgin of the Rocks.
o Holy Grail theories including the alleged Holy Grail chalice in Valencia Cathedral, Spain. o Emperor Constantine including details on the Donation of Constantine.
o The marriage of Christ including marriage customs of the time.
o Mediterranean churches with Mary Magdalene references to the sea etc. (Madonna of the Sea) o Benjamin and Davidic bloodlines
o Dagobert story o Atbash cipher o Baphomet
o Fibonacci Numbers and The Golden Section in Art, Architecture and Music o Secret Societies and the Origins of Tarot
o The Vitruvian Man Leonardo Da Vinci o Compass Rose
o Wind Rose
o Virgin of the Rocks & Madonna of the Rocks
o History of the Vatican Observatory and Its Castel Gandolfo Headquarters o Cryptology
o The Last Supper
o The Gnostic Gospels
o Definition of Sang Real Royal Blood o Merovingian Bloodline
o Knights Templar & Priory of Sion o La Pyramide Inversee
o Places visited:
§ Eglise de Saint-Sulpice § Rue Haxo in Paris
§ Chateau Villette near Paris Santa Maria delle Grazie in Milan § Temple Church in London
§ King’s College theological database in London § Westminster Abbey
§ Newton tomb
§ Chapter House
§ St Faith’s Chapel § Rosslyn Chapel