[EXHIBIT 10.1.34]
OPTION AND ACQUISITION AGREEMENT
AGREEMENT dated as of December 12, 2005, by and between Xxxx Xxxxxxx
and Xxxx Xxxxxxxx located at 0000 Xxxxxxxxx Xxxx. #000, XX 00000
(collectively "Owner") and Blood and Bones Productions, Inc. a
California corporation, its successors and/or assigns with offices at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000 herein
referred to as the ("Purchaser").
WHEREAS:
1. The Owner holds all right, title and copy right in and to a
screenplay provisionally or definitively entitled "Xxxxx" WGA
register# 1089961 (the"Property"),
2. The Purchaser is desirous of acquiring from the Owner an option
(the "Option") to purchase certain rights in and to the Property for
the purposes of carrying out the development and the production and
distribution of, inter alia, a motion picture film (the "Film") based
on the Property;
3. The Owner is desirous of granting the Option to the Purchaser.
NOW, THERFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the
parties hereby agree as follows:
1. Option
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In consideration of the payment by the Purchaser of the sum of One
U.S. Dollars ($1.00 USD) (the "Initial Option Payment"), the receipt
and sufficiency of which are hereby acknowledged, the Owner hereby
grants to the Purchaser an irrevocable and exclusive option, for a
period of One (1) year commencing, on the date hereof (the 'Initial
Option Period") to purchase all of the Rights (as such term is
defined in 3(a)(ii) below) in and to the Property (as such term is
defined in 3(a)(1) below). If the Initial Option Period ends in as
Saturday, Sunday or holiday, it will be deemed to end on the close of
business in Los Angeles, California on the first succeeding business
day. Should Purchaser have commenced Development of the Property
prior to the end of the Initial Option period, then the Purchaser the
Purchaser shall be entitled to extend the Option for a further period
of twelve (12) months (the "Second Option Period"), commencing on the
date of expiration of the Initial Option Period for the payment of
Five Thousand US Dollars ($5,000.00), such payment to be paid prior
to the date of expiration of the Initial Option Period and to be
credit against the Purchase Price under 2 (b) below.
The Initial Option Period and the Second Option Period are
collectively herein referred to as the "Option Period".
Throughout the Option Period, the Purchaser shall have the right
to engage in any and all activities in respect of the Property which
are typical in the entertainment industry with respect to the
development and pre-production stages of a film (the "Development
Period"), such development activities to include, without
limitation, the exclusive rights to:
i) Negotiate and enter into any contracts relating to the
financing, production and/or distribution of the Film.
Without limiting the foregoing, the Purchaser shall have the
right to obtain an interim financing commitment from a
recognized bank or financial institution for financing of
the Film;
ii) revise the screenplay and hire writers other than the
Owner to do so at the sole discretion of the Purchaser;
iii) Carry out chain of title searches and any other searches
relating to the conveyance to the Purchaser of the necessary
title to exploit the rights granted to the Purchaser
hereunder.
Purchaser shall have no liability to the Owner with respect to any
development activities, regardless of whether the Purchaser does, or
does not, exercise the Option.
2. Exercise of the Option and Acquisition of the Rights
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a) Exercise of Option
The Purchaser may at any 'time during the Option Period
exercise the Option and thereby acquire the Rights (as such term is
Defined in 3(a)(ii) below), by payment to the Owner (subject to
paragraph 4 hereunder), upon exercise of the Option, of the Purchase
Price (as such term is hereafter defined). In the event the Purchaser
fails to duly and timely exercise the Option, the Option shall
terminate and the Owner shall be free to grant the Rights to any,
third party without further obligation to the Purchaser subject to
Section 10 herein.
b) Purchase Price
The Purchase Price means an amount equal One Hundred Thousand
U.S. dollars ($100,000.00 USD), less any amounts paid during the
Option Period as required under Section I above, such option
payment(s) being applicable against the Purchase Price. The Purchase
Price shall be payable on the first day of principal photography.
3. Grant of Rights
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a) Rights Granted
This Option refers to the exclusive and irrevocable right of
the Purchaser to irrevocably acquire, upon exercise of the Option,
the Rights (as such term is defined in 3(a)(ii) below) in and to
the Property (as such term is more defined in 3(a)(1) below).
(i) The Property
For the purposes hereof, the 'Property" shall mean the
original story, treatment and screenplay provisionally or
definitively entitled "Xxxxx" dated and all past, present and
future versions and all rights in and to the screenplay including
any rewrites or polishes written by the Writers, and including,
without limitation, the title, central premise, setting, format,
contents, characters, characterizations, stories, original idea and
concept created by the Writers, and other elements contained
therein, all of which rights the Owner owns entirely and without
limitation or restriction throughout the world and in perpetuity,
by virtue of the purchase agreement with full and unrestricted
rights to assign all right title and interest in and to the
property free and clear of any liens, claims or encumbrances.
(ii) The Rights
For the purposes hereof, the "Rights" shall mean all
rights, title and interest in and to the Property, including, but
not limited to, all copyright, such Rights to be granted, assigned
and conveyed to the Purchaser irrevocably, in perpetuity,
exclusively, throughout the universe in any and all languages and
for exploitation in all media, whether now known or hereafter in
existence, including, without limitation, exploitation on line,
electronically or by internet or other means now known or
hereinafter discovered. Such rights include, without limitation,
all motion picture rights, sequel, remake and prequel rights and
all novelization, publishing, merchandising at-id ancillary rights
with respect to the Property and the Film and all rights
represented in the Purchase Agreement.
The Owner herby agrees that the exercise of the Option by the
Purchaser shall trigger the express waiver by the Owner in favor of
the Purchaser, its successors, assigns and licensees, of any so-called
moral rights which the Owner may have, now and in the future, in and
to the Purchaser, and such waiver shall be applicable throughout the
world and for the duration of such moral rights and any renewal
thereof.
4. Credit
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It is agreed that the Owner shall receive a credit on the Film
in the form of a Producer credit on a single card. The Writers shall
receive a credit on the Film in the form of "Writers Xxxx Xxxxxxx and
Xxxx Xxxxxxxx", (or such other credit as the parties may agree upon)
if no other writers are credited thereto and if another writer is
credited, it is understood and agreed that such credit shall be at the
discretion of the Purchaser and the Owner and shall in all cases be
subject to standard industry or regulatory exclusions as well as to
the consent of distributors and financiers and in accordance with a
determination by the Writers Guild of America.
5. Representations and Warranties
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The Owner represents and warrants as follows:
(a) The Owner has the right and power to enter into
this agreement and to grant to the Purchase,- the
Rights set forth herein and all such rights are
not encumbered in any way.
(b) The Owner is owner pursuant to the Purchase
Agreement and has the full power to assign it to
the Purchaser.
(c) The Owner has not licensed, transferred assigned
hypothecated or encumbered the rights acquired
under the Purchase Agreement.
(d) The Owner is the owner of any and all right,
title and interest including, without limitation,
any copyright in the Property and of all of the
Rights being granted herein.
(e) The Property is an original work of authorship
and does not violate or infringe upon the rights
of any third party under the laws of copyright,
trademark, privacy, publicity, defamation or
otherwise.
(f) The Property has not previously been exploited in
any medium and is not and will not be subject to
any claims, liens or encumbrances, save and
except the repayment of the development costs
set forth at subparagraph 10 hereof.
6. Assignment
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The Purchaser may freely assign this Agreement or any of its
rights and obligations hereunder to any other party, provided however
that such assignee assumes all the Purchaser's obligations hereunder.
The Owner may assi.1-Iti this Agreement, to a wholly owned subsidiary
or affiliate without the prior consent of the Purchaser.
7. Consultation
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The Purchaser shall reasonablv consult with Owner during
the period prior to the exercise of the Option on all
business, financial and creative aspects of the development,
production and exploitation of the Property and the Film
production(s).
8. Fees
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The Owner shall receive a participation in the net
producer profits of property of Five per cent (5%), payable pari
passu with all other creative participants on a "most favored
nations" basis. This participation along with the Purchase Price
of 2(b) above.
shall be full payment for the rights granted herein as well as any
production services provided by Owners during and after
production.
9. Notices.
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All notices and payments hereunder shall be given to the
parties at their respective addresses first set forth above or at
such other address as to which a party may notice hereunder. All
notices shall be sufficiently given when the same shall be
deposited so addressed, postage prepaid, in the facilities of any
overnight delivery service or delivered by personal delivery upon
Owners.
10. Further Documents.
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The Owner agrees to execute or cause to be executed at the
Purchaser's request any and all additional documents or instruments
necessary to effectuate the purposes of this agreement, including,
without limitation a Short Form Assignment substantially in the form
attached hereto as Schedule "A".
11. General.
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This agreement shall be interpreted under the laws of the
State of California, United States of America and of the federal laws
of the United States applicable therein. The parties consent to the
Jurisdiction of the provincial and federal courts having jurisdiction
in the State of California over any action or proceeding arising out
of or relating to this agreement. No waiver of any term hereof shall
be deemed to be continuing or be deemed to waive any other term
hereof. Each party's rights and remedies herein shall be cumulative
and the exercise of any remedy or right shall not limit any other
remedy or right hereunder, at law or in equity. This agreement may not
be modified, nor any provision waived except by a writing signed by
both of the parties. This agreement, including Schedule "A"
constitutes the entire understanding of the parties concerning the
subject matter hereof, all prior negotiations and understandings are
merged herein. Paragraph headings are for convenience and shall not be
given any legal effect. Any schedule to this agreement shall form an
integral part thereof If any provision hereof is deemed to be illegal
or unenforceable, then the remainder of the provisions shall be deemed
to continue in full force and effect, and the illegal or unenforceable
provision shall be deemed modified in such a way that its intent is
nevertheless complied to the fullest extent legally possible.
12. Remedies.
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Upon the exercise of the Option under Section 2 above, the
rights granted to Purchaser hereunder are irrevocable and shall not be
subject to reversion. Owner hereby agrees that in the event of breach
of this agreement by Purchaser, Owner's remedies shall be limited to
an action for damages and in no event shall Owner be entitled to seek
rescission, reversion, to injunctive or other equitable relief.
IN WITNESS WHEREOF, the parties here 'xxxx caused this Agreement to be
executed as of the day and year first above written.
Owner Purchaser
Xxx Xxxxxxxx (Sig.)
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By: Xxxx Xxxxxxxx By: Illegible (Sig.)
Its: Its:
Address: 0000 Xxxxxxxxx Xxxxxxxxx Address: 0000 Xxxxxxxx Xxxx. #0000
Xxxxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
SCHEDULE "A"
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SHORT FORM ASSIGNMENT
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"XXXXX"
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KNOW ALL MEN BY THESE PRESENTS: that in consideration of the payment
of the Purchase Price set forth in sub-section 2 (b) of the Option and
Acquisition Agreement, in the amount of One Hundred Thousand U.S.
dollars ($ 100,000. 00) less amounts paid for the Option, and other
good and valuable consideration, receipt of which in full is hereby
acknowledged, the undersigned, Xxxx Xxxxxxx and Xxxx Xxxxxxxx
(hereinafter collectively referred to as the "Owner") hereby sell,
grant, assign and set over unto Blood and Bones Productions, Inc
(hereinafter referred to as the "Purchaser"), and its representatives,
successors and assigns, forever, all rights, including without
limitation, the sole and exclusive copyright, the motion picture
rights (silent, sound, talking), television motion picture, and
certain other television rights and all subsidiary and incidental
rights including publication, radio and television rights for
advertising and exploitation purposes, throughout the universe and in
perpetuity, in and to the literary, dramatic and/or musical writings
and materials and all other rights related to same and described as
that certain screenplay entitled "Xxxxx" (collectively the
"Property"), all plots, themes, title or titles, dialogue, language,
incidents, action, story, characters, underlying rights, options,
contracts and copyrights to said Property and all renewals and
dramatizations and other adaptation or versions of the Property, now
made or hereafter created or permitted to be made by the Author.
This agreement is subject to all of the terms and conditions of
the Option and Acquisition Agreement dated as of December 14,
2005 between the Owner and the Purchaser in respect of the
Property.
IN WITNESS WHEREOF, the undersigned has executed this assignment
as of December 14, 2005 by a duly authorized officer.
Owner
Illegible (Sig.)
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Bv: Xxxx Xxxxxxxx (Sig.)
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Its:
