FILED: NEW YORK COUNTY CLERK 08/12/ :53 PM INDEX NO /2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/12/2015 EXHIBIT A

Transcription

1 FILED: NEW YORK COUNTY CLERK 08/12/ :53 PM INDEX NO /2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/12/2015 EXHIBIT A

2 January 25, 2014 Harvey Keitel c/o Karen Sellars ICM Constellation Blvd Los Angeles, CA Dear Karen: This will set forth principal terms covering a proposed agreement between The Ogilvy Group, Inc. d/b/a Ogilvy & Mather NY ( Agency ), on behalf of its client, E*TRADE Financial Corporation ( Client ), and ( Supplier ) f/s/o Harvey Keitel ( Artist ), with respect to the provision of personal services by Artist in connection with the advertising and promotion of Client s products and services. Some of the principal terms of the proposed agreement are as follows TERM: Commencing on the date hereof and continuing for a period of one (1) year from first use of any of the Commercials (defined below). SERVICES/ MATERIALS: Up to three (3) ten (10) hour service days (exclusive of travel)(the Production Days ), two (2) of which to be scheduled in early to mid-february, the third of which to be scheduled later, in 2014, subject to mutual agreement by the parties, location TBD, as an on-camera performer in and in connection with the production of three (3) thirty-second (:30) television commercials, including edits, lifts and versions thereof (collectively, the TV Commercials ); digital materials (e.g., banner ads)( Digital Materials ) and B-Roll; ; One (1) four (4) hour service day (exclusive of travel)(the Recording Day ) to be scheduled subject to the mutual agreement of the parties, location TBD, in and in connection with the

3 production of two (2) sixty-second (:60) radio commercials, including edits, lifts and versions thereof (collectively, the Radio Commercials ). The TV Commercials, Radio Commercials, Digital Materials and B-Roll shall be collectively referred to herein as the Materials. OPTIONAL SERVICES/ MATERIALS: USE: Client shall have the option, during the Term, to have Artist perform services for an additional (10) hour service day (exclusive of travel)(the Optional Production Day ), as an on-camera performer in and in connection with the production of an on-line video, to be created and produced in collaboration with Artist ( the On-Line Video ), in exchange for payment to Artist of an additional $250K. During the Term, and throughout the Territory, Client shall have the right to use the Materials in any and all forms of media now known or hereafter invented, including, without limitation: Any and all television media (including, but not limited to wild spot, national network, local television, satellite, free and basic cable (including but not limited to premium subscription and or pay-per-view cable), direct satellite and closed circuit television, and any and all radio media; Industrial usage (including, but not limited to, trade and sale shows, sponsorship events, conventions, distributors, institutional meetings, retail dealers/in-store use, sales meetings, internal usage, in-flight, Jumbo-trons, and kiosks); Cinema/in-theater; Internet / Digital use, in streaming, downloadable and any other format (including, without limitation, in banner advertisements, Client and Agency web sites and on any third party web sites, digital channels and social networking and video-sharing websites (e.g., Facebook, Twitter, YouTube.com); and distribution via mobile technology, including digital out-of-home, Client shall also have the right, during the Term, upon exercise of the On-Line Video Option, to use the On-Line Video in the Internet / Digital and Industrial media set forth above.

4 APPROVAL: Artist shall have a right of approval over storyboards, rough-cuts, lay-outs and other preliminary materials containing Artist s image or vocal performance, to ensure that Artist is portrayed in a flattering light and in a manner that is consistent with Artist s public persona, such approval not to be unreasonably withheld or delayed, and to be deemed approved unless expressly disapproved in writing within three (3) business days of receipt of the applicable Materials. COMPENSATION: USD $1.5 MM. Agency shall make the applicable contributions directly to the Pension and Health Plan of SAG and AFTRA, which payments shall be in addition to any other payments provided for herein. TERRITORY: EXCLUSIVITY: PUBLICITY: United States, its territories, possessions and commonwealths; worldwide for Internet ( Territory ) Financial services. Agency and Client shall have the right, during the Initial Term and Option Terms, if any, to use Artist s name, likeness, voice and biographical information in publicity releases and materials and in advertising directed to the trade to publicize Artist s services in connection with the Commercials. MISCELLANEOUS: Artist represents and warrants that (i) the rights granted herein will not conflict with the rights of any third party, (ii) Artist has the right to enter into and fully perform this Agreement and to grant all the rights granted hereunder, and (iii) Artist is and will remain throughout the term of this agreement a member in good standing with SAG and AFTRA. Client s obligation hereunder shall be fully satisfied upon payment to Artist of the Compensation and Client shall have no obligation to use the services of Artist or the materials created hereunder. This letter sets forth the general intent of the parties to discuss in good faith the terms and conditions of Artist s potential participation in Client s advertising, provided that neither party shall be bound until the parties execute a more formal written agreement, which shall include

5 terms and conditions standard for agreements of this type, including Client s standard warranty, adjustment, force majeure, termination, ownership, morals clause, confidentiality and indemnification provisions, subject to good faith negotiations. If the foregoing correctly sets forth your understanding with respect to the proposed negotiations, please contact me as soon as possible to discuss this project further. Very truly yours, Ogilvy & Mather, NY As Agent for E*TRADE Financial Corporation By: Title: