OPTION PURCHASE AGREEMENT
Producer: Big Dog Entertainment/Prelude Development, Inc.
000X Xxxx Xxx, Xxxxxxxxxx
Xxx Xxxx, X.X. 00000
Owner: Xxxxxx Xxxxxx
c/o TD Media, Inc.
000 X. 00xx Xx Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
This will serve as the agreement between Producer and Owner with respect to
the unpublished, unexploited original treatment for a screenplay and the
subsequent screenplay entitled "Swashbuckler" written by Xxxxxx Xxxxxx
("Author"). (That work, and the title, themes, stories and other contents
thereof, and the characters therein, and all translations, adaptations, sequels
and other versions thereof now or hereafter owned by Owner, whether now existing
or hereafter created, are herein called, collectively, the "Screenplay").
1. Option. In consideration of the efforts heretofore and hereafter to be
expended by Producer in connection with the development, financing and
production of the Screenplay, and for other good and valuable consideration,
receipt of which is hereby acknowledged, Owner hereby grants to Producer a 20
month exclusive and irrevocable option (the "Option") to purchase all rights in
the Screenplay (the "Rights"). The initial option period shall commence on the
date upon which Owner signs this agreement as indicated below. This option may
be extended by Producer for an additional 12 months by payment to Owner of the
sum of $20,000 (the "Option Extension Fee") at any time prior to expiration of
the initial option period. During the initial option period and extensions
thereof, Producer may engage in development and preproduction activities with
respect to motion pictures and/or other productions based on the Screenplay. If
in connection with such development or preproduction activities another party is
engaged by or on behalf of Producer to write revisions of the Screenplay and /or
to prepare any such preproduction materials, all such revisions and materials
shall be and remain Producer's sole and exclusive property (whether or not
Producer exercises the option hereunder). The initial option period and
extensions thereof shall be extended without notice for periods equal to the
length of industry-wide labor disputes and other force majeure events.
2. Purchase. Producer agrees to pay Owner the sum of Five Thousand Dollars
($5000.00) on April 15, 1999, as initial payment to apply against the purchase
price of the Rights, which shall be the sum of $150,000 (the "Purchase Price").
The balance of the Purchase Price shall be paid upon exercise of the Option with
funding and a production agreement for filming the project.. The option shall be
exercised by written notice or by commencement of principal photography of the
first feature-length motion picture based on the Screenplay produced pursuant to
the Rights granted hereunder (the "Picture").
3. Contingent Compensation. Owner shall be entitled to an amount equal to
5% of 100% of Producer's gross share of proceeds, if any, of the Picture,
defined, accounted for and paid in accordance with the most favorable definition
utilized in connection with the Picture that the Producer enjoys.
4. Rights. If the Option is exercised, Producer shall own, and, subject
only to such exercise, Owner assigns and sells to Producer, exclusively, in
perpetuity and throughout the universe, all right, title and interest (including
the entire copyright) in the Screenplay, including, by way of illustration, all
motion picture rights, all television rights (pay, free, film, tape, cable, live
and otherwise) and all allied and incidental rights in the Screenplay
(including, by way of further illustration, sequel and remake rights, music and
music publishing rights, soundtrack album and other soundtrack exploitation
rights, merchandising rights, publishing rights, radio rights, stage rights and
promotional and advertising rights.)
The rights herein granted include, by way of further illustration, the
right to distribute, transmit, exhibit, broadcast and otherwise exploit all
works produced pursuant to the Rights granted hereunder by means of any and all
media and devices whether now known or hereafter devised, and in any and all
markets whatsoever, as well as the right of Producer in its discretion to make
any and all changes in, additions to and deletions from the Screenplay.
Owner also hereby grants to Producer the perpetual right to issue and
authorize reasonable and customary publicity concerning Author, and to use
Author's name and likeness and biographical material in a reasonable and
customary manner in connection with the distribution, exhibition, advertising
and other exploitation of any motion picture in which the Screenplay shall be
used in whole or in part.
Owner hereby covenants and agrees not to make any claim or bring any suit,
action or arbitration or other proceeding which will or might interfere with or
derogate from Producer's rights in the Screenplay, it being expressly understood
and agreed that Owner shall not have or be deemed to have any lien, charge or
other encumbrance upon said Screenplay or any rights therein or proceeds derived
therefrom, and that neither the breach nor alleged breach of this agreement by
Producer, nor the termination of this agreement, nor any other act, omission or
event of any kind, shall terminate or otherwise adversely affect Producer's
ownership of said Screenplay and the Rights. Owner's sole remedy for any such
breach or alleged breach shall be an action at law to recover such damages as
may have been actually suffered by it as a result thereof.
Nothing contained in this agreement shall be construed as requiring
Producer to exercise or exploit, or continue to exercise or exploit, any of the
Rights granted hereunder. The Rights granted by Owner to Producer hereunder are
in addition to, and this Agreement shall in no way limit, the rights with
respect to the Screenplay or the subject matter thereof which Producer may now
or hereafter enjoy as a member of the general public.
5. Representations and Warranties. Owner hereby represents and warrants
that:
(a) to the best of Owner's knowledge, the Screenplay was written solely by
and is original with Author;
(b) to the best of Owner's knowledge, neither the Screenplay nor any
element thereof infringes the copyright in any other work;
(c) to the best of Owner's knowledge, neither the Screenplay nor its
exploitation will violate the rights to privacy or publicity of any person or
constitute a defamation against any person, or in any other way violate the
rights of any person whomsoever;
(d) Owner owns all rights assigned to Producer free and clear of any liens,
encumbrances, other third party interests of any kind;
(e) Owner has full right and power to make and perform this Agreement
without the consent of any third party;
(f) the Screenplay has not previously been exploited as a motion picture or
television production; and
(g) Owner is free to enter into this agreement, that Owner is not subject
to any conflicting obligations or any disability which will or might interfere
with the execution and performance of this agreement by Owner; that Owner has
not made, and Owner will not make, any grant or assignment which will or might
conflict with or impair the complete and quiet enjoyment of Producer's rights
hereunder.
Owner will indemnify Producer against any and all liability, damages, costs
and expenses, including reasonable attorneys' fees, arising (i) out of any
breach of the foregoing representations and warranties, or (ii) out of any claim
alleging facts which if true would constitute such a breach, if such claim is of
a type not ordinarily covered by a so-called errors and omissions or producer's
liability insurance policy. Nothing herein contained shall be construed to
require Owner to warrant or indemnify with respect to any material other than
material written by Author. Producer shall indemnify Owner against any and all
liability, damages, costs and expenses, including reasonable attorneys' fees, in
connection with any claim or action respecting material supplied by Producer for
incorporation into the Screenplay, or incorporated into the Screenplay by
employees or officers of Producer.
Producer and Owner shall, upon presentation of any claim or institution of
any action covered by the foregoing indemnity provisions, promptly notify the
other of the presentation of such claim or the institution of such action,
giving full details thereof.
The term "person" as used in this Agreement shall means any person, firm,
corporation or other entity.
6. Additional Instruments. At Producer's request, Owner will execute all
additional documents which Producer reasonably deems necessary or desirable to
effectuate the purposes of this Agreement (including, without limitation, the
short-form option and the short-form assignment attached hereto as Exhibits "D"
and "E", respectively). In connection therewith, Owner agrees to execute and
return said attachments simultaneously with this Agreement. The short form
assignment will be signed and not dated and Producer is authorized to date and
file the same with the Copyright Office immediately upon the exercise of the
Option. Owner irrevocably appoints Producer as attorney-in-fact with full power
to execute and deliver such documents if Owner shall fail to do so upon request
by Producer. The foregoing appointment shall be a power coupled with an
interest.
7. Credit. Author shall receive credit on screen and in paid advertising in
connection with the Picture pursuant to the credit provisions of the Writers
Guild of America Basic Agreement. No casual or inadvertent failure by Producer
to accord such credit, nor the failure for any reason by third parties to comply
with the provisions of this paragraph, shall be deemed a breach hereof by
Producer.
8. No Equitable Relief. All rights granted and agreed to be granted to
Producer under this Agreement shall be irrevocably vested in Producer
(including, without limitation, for the full term of copyright protection
everywhere in the world and any and all renewals thereof). No breach of this
Agreement shall entitle Owner to equitable relief, whether injunctive or
otherwise, against the Picture or any other works produced pursuant to the
Rights herein granted. If the rights granted to Producer hereunder should revert
to Owner pursuant to the provisions of any copyright law or similar law, and if
Owner is at any time thereafter prepared to enter into an agreement with a third
party for the license, exercise or other disposition of all or any of such
rights, Owner shall, before entering into such agreement, give Producer notice
of the proposed terms thereof (and all modifications of such terms) and the
party involved. In each instance, Producer shall then have ten (10) business
days in which to elect to acquire the rights involved on the terms contained in
the notice.
9. Assignment. Producer shall have the right to assign any or all of its
rights under this Agreement to any entity whatsoever, and upon such assignment
Producer shall have no further obligations to Owner hereunder; provided however,
that unless such assignment is to a so-called major motion picture company or
other financially capable party which assumes such obligations in writing,
Producer shall remain secondarily liable hereunder.
10. Miscellaneous:
(a) Except as herein expressly provided, this Agreement cancels and
supersedes all prior negotiations and undertakings relating to the Screenplay
and contains all terms and conditions, pertaining to the subject hereof. If
there is any conflict between any provision of this Agreement and any present or
future statute, law, ordinance or regulation the latter shall prevail; provided,
that the provision hereof so affected shall be limited only to the extent
necessary and no other provision shall be affected.
(b) This Agreement shall be governed and construed in accordance with the
laws of the State of New York to contracts entered into and fully performed
therein.
(c) This Agreement is not a partnership between or joint venture of the
parties hereto and neither party is the agent of the other. This Agreement is
not for the benefit of any third party, whether or not referred to herein.
Captions and organization are for convenience only and shall not be used to
construe meaning. A waiver of any breach shall be cumulative and pursuit of any
one remedy shall not waive any other. This Agreement may be signed in
counterpart, each of which shall be deemed an original, but all of which
together shall constitute the Agreement. Notices hereunder, unless specified
otherwise, shall be in writing and shall be given either by personal delivery,
telegram or telex (toll prepaid) or by mail (postage prepaid) and shall be
deemed given on the date delivered, telegraphed or telexed or the date mailed.
BIG DOG ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
President
Big Dog Entertainment
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
DATE OF EXECUTION: 2/18, 1999
EXHIBIT "D"
"Swashbuckler"
SHORT FORM OPTION
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, for value received,
hereby grants to Big Dog Entertainment and its successors and assigns (herein
called "Assignee"), the sole and exclusive option to purchase all motion picture
rights, television motion picture and certain other television and other allied
rights in and to the motion picture screenplay entitled "Swashbuckler" (which
together with the title, themes, contents and characters and other versions
thereof, is hereinafter called the "Work") written by Xxxxxx Xxxxxx and owned by
the undersigned, as more particularly set forth and upon and subject to the
terms and conditions in that certain agreement between the undersigned and said
Assignee dated _________________________.
The undersigned hereby agrees to obtain or cause to be obtained renewals of
all United States copyrights in and to said Work, whether or not referred to
herein, and hereby assigns said rights under said renewal copyrights to
Assignee; and should the undersigned fail to do any of the foregoing, the
undersigned hereby irrevocably appoints Assignee as attorney-in-fact, with full
and irrevocable power and authority to do all such acts and things, and to
execute, acknowledge, deliver, file, register and record all such documents, in
the names and on behalf of the undersigned, as Assignee may deem necessary or
proper in the premises to accomplish the same.
Assignee is also hereby empowered to bring, prosecute, defend and appear in
suits, actions and proceedings of any nature under or concerning all copyrights
in and to said Work and all renewals thereof, or concerning any infringement
thereof, or interference with any of the rights hereby granted under said
copyrights or renewals thereof, in its own name or in the name of the copyright
proprietor, but at the expense of Assignee, and, at its option, Assignee may
join such copyright proprietor and/or the undersigned as a party plaintiff or
defendant in any such suit, action or proceeding.
DATED: 2/18/98
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
State of Pa )
) ss.
County of Lehigh )
On February 18, 1999, before me, the undersigned, a Notary Public in and
for said State, personally appeared XXXXXX XXXXXX, known to me to be the person
whose name is subscribed to the within instrument, and acknowledged to me that
he executed the same.
WITNESS my hand and official seal.
______________________ Notary's Signature
/s/ Xxxxxxx Xxxxxxxx
Notarial Seal
Xxxxxxx Xxxxxxxx, Notary Public
Allentown, Lehigh County
My Commission Expires ...
EXHIBIT "E"
"Swashbuckler"
SHORT-FORM ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, for value received,
hereby sells, grants, assigns and sets over unto BIG DOG ENTERTAINMENT, INC. and
its successors and assigns (herein called "Assignee"), all right, title and
interest in and to the original motion picture screenplay entitled
"Swashbuckler" (which together with the title, themes, contents and characters
and other versions thereof, is hereinafter called the "Work") written by Xxxxxx
Xxxxxx and owned by the undersigned, as more particularly set forth and upon and
subject to the terms and conditions in that certain agreement between the
undersigned and said Assignee dated __________________________.
The undersigned hereby agrees to obtain or cause to be obtained renewals of
all United States copyrights in and to said Work, whether or not referred to
herein, and hereby assigns said rights under said renewal copyrights to
Assignee; and should the undersigned fail to do any of the foregoing, the
undersigned hereby irrevocably appoints Assignee as attorney-in-fact, with full
and irrevocable power and authority to do all such acts and things, and to
execute, acknowledge, deliver, file, register and record all such documents, in
the name and on behalf of the undersigned, as Assignee may deem necessary or
proper in the premises to accomplish the same.
Assignee is also hereby empowered to bring, prosecute, defend and appear in
suits, actions and proceedings of any nature under or concerning all copyrights
in and to said Work and all renewals thereof, or concerning any infringement
thereof, or interference with any of the rights hereby granted under said
copyrights or renewals thereof, in its own name or in the name of the copyright
proprietor, but at the expense of Assignee, and, at its option, Assignee may
join such copyright proprietor and/or the undersigned as a party plaintiff or
defendant in any such suit, action or proceeding.
DATED: 2/18/98
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
