EXHIBIT 10.2
OPTION AGREEMENT
This Agreement, executed on the day below written, is by and between Futura
Pictures (hereinafter "Producer"), and Xxxxx Xxxxxxx (hereinafter "Writer") with
respect to the unpublished literary work tentatively entitled "Xxxx.xxx.xxx"
(which, together with themes, characters, contents, alternate titles, and other
versions thereof, is hereinafter called the "Property"), as follows:
1. CONSIDERATION AND TERM: In consideration of the sum of Five Thousand
(5,000) Shares of Futura Pictures, Inc., common stock, and other good
and valuable consideration, receipt of which Writer hereby
acknowledges, Writer grants to Producer an exclusive and irrevocable
option to purchase all motion picture, television, and allied rights in
the Property ("Option"), such option period commencing on the date
hereof ("Commencement Date," which shall be the date both parties
signed or the later of the two dates, if different) and continuing for
twelve (12) months ("Term").
2. TERMINATION: Producer may terminate this Option Agreement at its
volition, by mailing or emailing written notice to Writer at any time.
3. EXTENSION: Producer retains the right, but not the obligation, to
purchase from the Writer one twelve-month extensions of the Exclusive
Option, by payment of an additional Five Dollars ($5.00) no later than
30 days prior to the expiration of the original option period.
4. PURCHASE PRICE: If Producer exercises its option, Producer will pay
Writer the following additional sums ("Purchase Price") for all of the
rights granted it herein and for all of Writer's representations and
warranties hereunder:
a) Ten Thousand Dollars ($10,000.00), upon execution of the
Option;
b) one percent (1%) of the final budget, upon commencement of
principal photography
5. WRITER'S REPRESENTATIONS: Writer hereby represents and warrants that:
(a) the Property was written solely by and is original with Writer; (b)
Writer owns all rights, title, and interest in and to the story; (c)
neither the Property nor any element thereof infringes upon any other
literary property; (d) the production or exploitation of any motion
picture or other production based on the Property will not violate the
right to privacy of any person or constitute a defamation against any
person, nor will production or exploitation of any motion picture or
other production based thereon in any other way violate the rights of
any person whomsoever; (e) Writer owns all rights in the Property free
and clear of any liens, encumbrances, claims or litigation, whether
pending or threatened; (f) Writer has full right, power and authority
to make and perform this Agreement; (g) the Property has not previously
been exploited as a motion picture, television production, play or
otherwise, and no rights have been granted to any third party to do so;
(h) all facts represented by Writer herein (as well as the Literary
Property Submission Release, if any), are true and accurate.
Writer hereby indemnifies Producer against any loss or damage
(including reasonable attorney's fees) incurred by reason of any breach
or claim of breach of the foregoing representations, warranties and any
and all agreements herein. The term "person" as used herein shall mean
any person, firm, corporation or other entity.
6. RIGHTS GRANTED: The foregoing Option covers the sole, exclusive,
perpetual and universe-wide motion picture, television and allied and
incidental rights in the Property (and any and all screenplays or other
adaptations thereof) including theatrical, television (whether filmed,
taped, computer animated or otherwise recorded, whether distributed or
broadcast by so-called "free", "pay", "cable" television,
video-on-demand over the Internet/cable/satellite, "home video" or
otherwise and including, without limitation, television series,
television motion pictures, MOWs and so-called "novels for
television"), cassette, DVD's, video discs and other compact devices,
sequel, remake and advertising rights (including 10,000-word synopsis
publication rights); all rights to exploit, distribute and exhibit any
motion picture or other production produced hereunder ("Picture") in
all media now known or hereafter devised; all rights to make any and
all changes to and adaptations of the Property; merchandising, sound
track, music publishing and exploitation rights; the right to use
Writer's name in and in connection with the exploitation of the rights
granted hereunder; all live television, radio and legitimate stage
rights; and all other rights customarily obtained in connection with
formal literary purchase agreements (the "Rights").
7. ADDITIONAL DOCUMENTS: Writer agrees to execute, at Producer's request,
any and all additional documents or instruments, including a short form
option agreement and a short form assignment for purposes of recording
in the Copyright Office, and to do any and all things necessary or
desirable to effectuate the purposes of this Agreement. If such short
form assignment is undated, Producer is authorized to date such short
form assignment and to file the same in the Copyright Office
immediately upon exercise of the option herein granted. If Writer fails
to do anything necessary or desirable to effectuate the purposes of
this Agreement, including, but not limited to, renewing copyrights and
instituting and maintaining actions for infringement of any rights
herein granted to Producer under copyright law or otherwise, Writer
hereby irrevocably appoints Producer Writer's attorney-in-fact with the
right, but not the obligation, to do any such things and renew
copyrights and institute and maintain actions and all such things in
Writer's name and behalf, but for Producer's benefit, which appointment
shall be coupled with an interest and irrevocable.
8. RIGHT OF FIRST REFUSAL: If, pursuant to any copyright law or similar
law Writer becomes entitled to exercise any right of reversion,
recapture or termination (the "Termination Right") in or to all or part
of the Rights granted hereunder, and Writer exercises the termination
right, then, from and after the date that Writer has the right,
pursuant to such copyright or similar law, to transfer all or part of
such Rights (the "Recaptured Rights") to a third party, Producer shall
have the first right to purchase and acquire from Writer the Recaptured
Rights. If Writer is prepared to accept a bona fide offer with respect
to all or part of the Recaptured Rights, then, in each such instance,
Writer shall, promptly after deciding to accept such offer, make a
written offer to Producer, specifying in such offer all of the terms
and conditions which Writer is prepared to accept
and the name of the third party who made the offer to Writer, to enter
an agreement with Producer with respect to the Recaptured Rights on the
same such terms and conditions. At any time not later than thirty (30)
days after receipt of such written offer from Writer, Producer may
notify Writer of its acceptance of such offer, and, in such event, the
rights referred to in such offer shall be assigned to Producer, subject
to Producer's compliance with the terms and conditions of the offer so
accepted; provided, however, that Producer shall not be required to
meet such terms or conditions which cannot be as easily met by one
transferee as another, including, without limitation, the use of
certain talent. If Producer shall acquire from Writer all or part of
the Recaptured Rights, then Writer agrees to enter into appropriate
written agreements with respect thereto. If Producer shall elect not to
purchase the Recaptured Rights, then Writer may dispose of said rights,
but only to the offeror and upon the terms and conditions specified in
Writer's aforesaid notice to Producer, it being understood and agreed
that Writer may not dispose of said rights to any other party or upon
terms or conditions more favorable to the transferee than those offered
to Producer hereunder without again offering such more favorable terms
and conditions to Producer as herein provided.
9. CREDITS: Producer agrees to accord Writer credit in connection with any
Picture based upon the Property, subject and pursuant to the provisions
of the applicable Producers/Writers Guild Theatrical Basic Agreement.
a) Subject to the foregoing, the presentation of such credits
shall be determined by Producer and Producer retains the right
to have one screen credit on each Picture produced which is
based upon the Property. Any casual or inadvertent failure by
Producer, an assign, Purchaser, or any failure by any third
party, to comply with the provisions of this paragraph shall
not be deemed to be a breach of this Agreement.
b) In the event of a breach of Producer's obligations under this
paragraph, it is expressly agreed that Writer's and Producer's
sole remedy shall be to seek damages in a court of competent
jurisdiction, and that in no event shall Writer or Producer be
entitled to obtain any injunctive or other equitable relief or
undertake any legal efforts to restrict Producer, or its
assign's, right to exploit the Property.
10. BINDING ARBITRATION: Writer and Producer hereby agree to arbitrate any
disputes in the County of Los Angeles, State of California, in
accordance with applicable provisions of the American Arbitration
Association and judgement upon any reward rendered by the Arbitrator(s)
may be entered in any court having competent jurisdiction and the
prevailing party may recoup all its costs of litigation. Although
Writer and Producer agree to abide by any such arbitration decision(s)
made, shall endeavor, with the best of their abilities, to settle all
disputes that may arise without the need for arbitration.
11. CONFIDENTIALITY: In consideration of this Agreement and its benefits,
Writer and its agents, employees, and administrators, agree to keep
confidential the specific terms and conditions of this Agreement,
including but not limited to, the term of the Option and Exclusive
Option Terms (including Extensions, renewals or conversions, thereof,
if any)
and the Purchase Price. Writer hereby indemnifies Producer from any and
all loss or liability that may result from a breach of the foregoing
confidentiality.
12. TITLES AND TRANSFERS: Producer reserves the right to sell or transfer
this Option Agreement at any time. In the event Producer sells this
Option, it hereby agrees to grant Writer 20% of the gross proceeds from
such sale and in return Writer hereby agrees to grant to Producer 20%
of the Purchase Price received by Writer from the exercise of this
Option Agreement, or modification hereof, by any person or entity other
than Producer at any time.
13. RELEASE AND WAIVERS: Writer hereby acknowledges and warrants that he or
she understands and acknowledges that Producer's use of other writer's
literary properties may contain features and elements similar to or
identical with those contained in the Property and as shall not entitle
Writer to any compensation beyond that which is stipulated in the
Option Agreement.
14. NOTICES: All checks and notices from Producer to Writer shall be sent
to the below address and Writer agrees to notify Producer of any change
of address within 10 days. All notices from Writer to Producer shall be
sent to Producer at the following address: Futura Pictures, 00000
Xxxxxxx Xxxx., or other such address as Producer shall designate.
15. ACCURACY AND COUNTERPARTS: Writer represents and warrants that all data
submitted herein is true and correct and that same is consistent with
all previous documents, or forms, submitted to Producer. The Parties
hereto agree that this Agreement may be executed in full counterpart or
signature page counterpart as emailed between Writer and Producer.
16. SEVERABILITY: In the event any provision of this Option Agreement is
held invalid or unenforceable by any arbitrator or court of competent
jurisdiction, the remaining provisions will not be affected.
17. PRIOR AGREEMENTS AND CHOICE OF LAW: This Agreement, executed on the day
and year below written ("Commencement Date"), supersedes and replaces
any and all former Option Agreements or agreements (oral or written)
whether expressed or implied between Writer and Producer relating to
the subject matter hereof. Unless and until a more formal agreement is
executed incorporating all of the foregoing and additional detailed
representations, warranties and other provisions customarily included
in such formal literary purchase agreements, this Option Agreement
shall be binding (when all submission conditions as set forth
hereinbelow are met) and same shall be interpreted in accordance
with California law, and shall inure to the benefit of the Parties
hereto as well as their successors, representatives, heirs, assigns and
licensees.
AGREED AND ACCEPTED:
FUTURA PICTURES DATE: January 19, 2005
/s/ Xxxxx Xxxxx
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By: Xxxxx Xxxxx
WRITER DATE: January 19, 2005
/s/ Xxxxx Xxxxxxx
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By: Xxxxx Xxxxxxx
