[EXHIBIT 10.1.11]
LITERARY PURCHASE AGREEMENT
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This Agreement ("Agreement") is made as of December 22, 2003, by
and between Xxxx X. Xxxxxx ("Owner") and Film And Miracle
Entertainment, Inc., a California Corporation ("Purchaser").
Owner and Purchaser hereby agree as follows with reference to
that certain literary material and screenplay entitled "The
Harder They Fall" a/k/a "Xxxxxx Phoenix" (the "Work") written by
Owner .
1. GRANT OF RIGHTS. Upon the execution of this Agreement,
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Purchaser shall own, and Owner hereby sells, transfers, assigns
and grants to Purchaser, exclusively and perpetually, throughout
the universe, all right, title and interest in and to the Work
(including all stories, plots, characters, characterizations,
dialogue, screenplays, treatments, drafts revisions and other
adaptations thereof whether heretofore or hereafter written by
Owner or any other person) (the "Rights"), including, without
limitation, the following: (a) all rights of copyright (including
all renewals and extensions thereof); (b) the sole and exclusive
motion picture (silent, sound, musical and/or talking) television
and all other audio-visual rights, and allied and incidental
rights, including radio, legitimate stage, theatrical, television
(whether live, filmed, taped or otherwise recorded, and including
series rights, subscription, pay, cable, satellite and free
television rights), cassette, disc and other video devices,
interactive, internet, sequel, remake, phonograph record,
advertising, publication, novelization and promotion rights
(including the rights to broadcast and/or telecast by television
and/or radio or any other process, now known or hereafter
devised, any part of the Work or any adaptation or version
thereof, and announcements of and concerning same); (c) all
rights to exploit, distribute and exhibit any motion picture or
other production produced hereunder in all media now known or
hereafter devised; (d) all rights to make any and all changes to
,and adaptations of the Work; (e) all merchandising, commercial
tie-in, sound track, music publishing and exploitation rights;
and (f) all other rights customarily obtained in connection with
formal literary purchase agreements. Owner hereby waives and
releases any and all "separated rights," "moral rights," rights
to reversion of title to the 'Work, and any other rights or
claims which Owner may have or hereafter acquire in the Work.
Nothing contained in this Agreement shall be construed as
requiring Purchaser to exercise or exploit any of the rights
granted to or acquired by Purchaser under this Agreement. Owner
shall be entitled to the customary passive royalties should there
be any remake, sequel or television movie, mini-series, pilot,
series, or spin-off.
Additionally, Owner shall have a turnaround or reversion rights
to the original Screenplay if the motion picture is not produced
within 5 years from the date of Purchase hereunder.
2. CONSIDERATION. In consideration for the sale and transfer of
the Rights herein, Purchaser agrees to pay Owner three percent
(3%) of the approved production budget for the Picture, with a
minimum aggregate sum of Three Hundred Thousand Dollars
($300,000) and a maximum aggregate sum of Four Hundred Fifty
Thousand Dollars.
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($450,000), payable as follows: (a) TWENTY FIVE THOUSAND DOLLARS
($25,000) upon funding of development and pre-production, and the
balance on the earlier of the full funding of the Picture or the
first day of principal photography. As additional compensation
Owner shall be entitled to 3% of 100% of net profits, defined,
accounted, computed and paid on a most favored nations basis with
Xxxx Xxxx and all producers and directors in connection with the
Work. The foregoing compensation shall be in addition to any
compensation which Owner receives as a producer or performer in
connection with the Picture.
3. EXECUTION AND DELIVERY OF AGREEMENT. Concurrently with the
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execution hereof, Owner is executing and delivering to Purchaser
the Short Form Assignment which is attached hereto as Exhibit
"A."
4. CREDITS. Owner shall be entitled to credits as per WGA,
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whether or not WGA applies. Owner hereby waives and releases
Producer and its successors and assigns, in perpetuity, of and
from any and all claims, demands, obligations and liabilities of
every kind and character whatsoever relating thereto, provided,
however, that Owner is not waiving any rights to receive credit.
If the Picture is produced and the Work is the final shooting
script without material changes, then Owner shall receive sole
"story by" credit and "written by" screen credit in the main
titles of the Picture. If the Work is rewritten, then Owner shall
receive either sole or shared "written by" screen credit in the
main titles of the Picture, if no more than 50% of the pages of
th3 Work as written by Owner are changed in the final shooting
script. In such a case, the determination as to whether to accord
Owner sole or shared credit shall be at Producer's discretion. If
more than 50% of the pages of the Work as written by Owner are
changed in the final shooting script, then any screen credit to
be accorded to Owner hereunder shall be at Producer's sole
discretion. Any changes within the screenplay which affect
Owner's writing credits must be material creative content changes
and not merely cosmetic or font changes. Subject to the
foregoing, all other aspects of any such credit shall be at
Producer's sole discretion. No casual or inadvertent failure by
Producer to comply with this paragraph, nor any failure by third
parties, shall constitute a breach hereof.
5. NO PARTNERSHIP. Nothing contained in this Agreement shall be
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construed to make Owner and Purchaser partners, joint venturers
or agents of one another, or give Owner any interest whatsoever
in any of the results or proceeds derived from the exercise of
the Rights granted or agreed to be granted hereunder.
6. NO OBLIGATION TO PROCEED. Nothing contained herein shall be
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deemed to obligate Purchaser to produce motion pictures or
programs based on the Work or make any other use of any right,
title or interest in and to the Work acquired by Purchaser
hereunder.
7. REPRESENTATIONS AND WARRANTIES. Owner hereby represents and
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warrants that: (a) the Work was written solely by and is original
with Owner; (b) neither the Work nor any element thereof
infringes upon any other literary property; (c) Owner is the sole
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and exclusive owner, throughout the universe, of all rights
(including the rights of copyright), title and interest of every
kind in and to the Work as specified in Paragraph 1 hereof free
and clear of any liens, encumbrances, claims or litigation,
whether pending or threatened; (d) Owner has full and sole right
and power to make and perform this Agreement; (e) that, to the
best of Owner's knowledge (or that which Owner should have known
in the exercise of reasonable prudence), the production or
exploitation of any motion picture or other production based on
the Work will not violate the rights 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
on the Work in any other way violate the rights of any person or
entity; and (1) the Work 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. Owner
agrees to defend, indemnify and hold Purchaser and Purchaser's
officers, shareholders, employees, successors and assigns, and
each of them, harmless from and against any loss, claim, demand,
liability, obligation, expense, lien, action and cause of action
(including the payment of reasonable outside attorneys' fees and
costs actually incurred, whether or not in connection with
litigation) based on, or in connection with, or arising out of
any uncured material breach or failure of any of Owner's material
warranties, representations or covenants herein and hereunder .
8. FURTHER INSTRUMENTS. Owner agrees to duly execute, acknowledge
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and ,deliver to Purchaser, or procure the due execution,
acknowledgment, and delivery to Purchaser, of any and all further
assignments and other instruments, consistent herewith and
provided that Owner will have right to submit any documents to
Owner's .attorney for any customary review or comment, in form
approved by counsel for Purchaser (including, without limitation,
the Short Form Assignment which is attached hereto as Exhibit
"A"), necessary or expedient to further evidence or carry out and
effectuate the purposes and intent of the parties as herein
expressed and to convey to Purchaser all the Rights herein
granted and agreed to be granted to Purchaser. If Owner shall
fail, refuse or neglect to so execute and deliver or cause to be
so executed and delivered any such assignment or other
instrument, Purchaser shall be deemed to be, and Owner hereby
irrevocably appoints Purchaser, the true and lawful attorney-in-
fact of Owner (which appointment is coupled with an interest),
with full right of substitution and delegation, to execute,
verify, acknowledge and/or deliver any and all such assignments
and other instruments and to do any and all acts and things
reasonably required in the premises, in the name of Owner or
otherwise.
9. TERMINATION OF RIGHTS AND RIGHT OF LAST REFUSAL If at any time
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Owner ()r any other party succeeding to Owner's termination
interest, or otherwise claiming by or through Owner or any other
party so empowered by law, is deemed to have any right to
terminate any or all of the Rights granted to Purchaser hereunder
pursuant to the Copyright Act or any other laws of the United
States or any of its subdivisions or of any foreign country ,
nothing in this Agreement shall be deemed to preclude Owner from
freely exercising said right to terminate; provided, however,
Owner hereby agrees not to sell, license or otherwise dispose of
the Rights to any party (other than Purchaser) on
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terms less favorable to Owner than those terms contained in
Owner's last offer to Purchaser, unless Owner first has offered
such less favorable terms to Purchaser in writing and Purchaser
has not, within thirty (30) days after the offering of such terms
to Purchaser, accepted them by written notice to Owner. Purchaser
shall not be required to meet any non-monetary terms which are
not as readily performed by Purchaser as by any other party.
10. REMEDIES. In the event of any failure or omission by
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Purchaser constituting a breach of this Agreement, Owner's rights
and remedies shall be limited to an action at law for damages, if
any I and Owner shall have no right in such event to seek or
obtain injunctive or other equitable relief or to rescind or
terminate this Agreement or any of Purchaser's rights hereunder.
Purchaser shall not be deemed in breach of this Agreement unless
and until Purchaser receives written notice from Owner specifying
the alleged breach and unless Purchaser fails to cure such breach
within ten (10) business days after receipt of such notice.
11. ASSIGNMENT. Purchaser shall have the irrevocable right to
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assign Purchaser's rights hereunder to any person, firm or
corporation, as and to the extent Purchaser may elect. The
Purchaser remains liable in the case of any assignment. In the
event of any such assignment, reference to and provisions
relating to Purchaser herein shall be deemed to refer to and
relate to Purchaser's assignee to the extent and subject to the
limitation of the assignment.
12. NOTICES. Any notices, requests and demands in connection with
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this Agreement shall be in writing and shall be served personally
on the party to whom notice is to be ,given, or mailed to the
party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid and properly addressed
as set forth below unless otherwise specified in a notice given
pursuant to this paragraph setting forth a new address:
OWNER
Xxxx X. Xxxxxx
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Copy TO
Xxxxxx Xxxxxxx Xxxxx -A Professional Law Corporation
c/o Xxx Xxxxx/Xxx Xxxxx
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx 00000
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PURCHASER
Film and Miracle Entertainment Inc.
0000 Xxxxxxxx Xxxx. Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Notices provided hereunder shall be deemed to have been duly
given on the date of service if served personally or on the third
day after mailing, if mailed as provided herein.
13. ENTIRE AGREEMENT. This Agreement, including the Short Form
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Assi9nment attached hereto as Exhibit "A," constitutes the entire
agreement between the parties and cannot be modified except by
written instrument executed and delivered by Purchaser and Owner.
Neither Purchaser nor Owner has made any representations,
promises or warranties expressed or implied, not set forth herein
or in any exhibit and each of the parties acknowledges that this
Agreement has not been executed by such party in reliance upon
any such representation, promise or warranty of the other party.
14. GOVERNING LAW. This Agreement shall in all respects be
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governed and controlled by the laws of the State of California.
15. ARBITRATION. Any dispute, controversy or claim arising out
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of or relating to the enforcement, interpretation or alleged
breach of this Agreement, shall be submitted to and resolved by
binding arbitration in Los Angeles, California before one neutral
arbitrator appointed in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the 1:lrbitrator may be
entered in and enforceable by any court having jurisdiction. If
the 'Writers Guild of America ("WGA") has jurisdiction over the
screenplay then the WGA will have the jurisdiction over the
arbitration.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered the day and year first above
written.
AGREED AND ACCEPTED:
/S/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx ("Owner")
/s/
AGREED AND ACCEPTED
("Purchaser")
/s/Xxxx Xxxx
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Film and Miracle Entertainment, Inc.
("Purchaser")
By: Xxxx Xxxx
Its: President
EXHIBIT "A"
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SHORT FORM ASSIGNMENT
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KNOW ALL MEN BY THESE PRESENTS: That in consideration of the
payment of good and valuable consideration, receipt of which is
hereby acknowledged, the under- signed, Xxxx X. Xxxxxx ("Owner")
does hereby sell, assign, transfer, grant, set over and convey to
Film And Miracle Entertainment, Inc. ("Purchaser") and its
assigns, successors, licensees and transferees, all rights of
every kind, now known or hereafter devised, including, without
limitation, all rights of copyright (including all renewals and
extensions thereof) and all audio-visual and publishing rights,
including, without limitation, the sole and exclusive motion
picture (silent, sound, musical and/or talking), sequel, remake,
television, phonograph record, publication, interactive,
internet, merchandising and commercial tie-up rights, and all
allied and ancillary rights, throughout the universe, in
perpetuity, in and to that certain original, entirely-fictional,
unexploited literary material and screenplay described as
follows:
TITLE:
"The Harder They Fall" a/k/a
" Xxxxxx Phoenix" (the "Work")
AUTHOR: Xxxx X. Xxxxxx ("Author")
COPYRIGHT REGISTRATION #
including, without limitation, all stories, plots, characters,
characterizations, dialogue, 'treatments, drafts, revisions and
other adaptations thereof.
Owner and Purchaser have entered into that certain Literary
Purchase Agreement (the "Agreement"), dated as of December 22nd,
2003, relating to the transfer and assignment of the foregoing
rights in and to the Work.
Without limiting the generality of the foregoing, this Short Form
Assignment shall be deemed to include, and shall be limited to,
those rights of whatever nature which are included within the
Agreement, -which is not limited, added to, modified or amended
thereby, and this Short Form Assignment is expressly made subject
to all of the terms conditions and provisions contained in the
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Assignment
as of December 22, 2003.
AGREED AND ACCEPTED:
/S/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx Film ("Owner")
AGREED AND ACCEPTED:
/s/Xxxx Xxxx
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Film and Miracle Entertainment, Inc.
("Purchaser")
By: Xxxx Xxxx
Its: President
