Exhibit 10.3
OPTION TO PURCHASE AGREEMENT
THIS AGREEMENT, made effective this 2nd day of March, 2003
BETWEEN:
FIDEL THOMAS,
a natural person residing at
8-534 Cambie Street, Vancouver, BC V6B 2N7
("Owner")
AND:
AMP PRODUCTIONS, LTD.,
a British Columbia corporation having an office at
2708-939 Homer Street, Vancouver, BC V6B 2W6
("Purchaser")
WHEREAS, Owner is the sole and exclusive owner throughout the universe of all
certain rights in and to that certain screenplay titled "CODE BLUE", written by
the Owner (the "Literary Material");
AND WHEREAS, Purchaser desires to acquire the exclusive option to acquire all
rights in and to the Literary Material with consideration and in reliance upon
the Owner's representations and warranties as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein the parties agree as follows:
1. OPTION
Owner hereby grants to Purchaser, its successors and assigns an exclusive and
irrevocable option (the "Option") effective for a period of one year commencing
on the above-written effective date of this Agreement (the "Initial Option
Period") the option to acquire all right, title and interest (including all
copyrights, and renewals and extensions thereof) and all theatrical, television,
video and allied rights (the "Rights") as more particularly defined in the
Literary Purchase Agreement, a true copy of which is attached hereto and marked
as Exhibit "A" to this Agreement (the "Purchase Agreement"). The Option Period
may be extended for an additional period of one year by the payment of TWO
THOUSAND, FIVE HUNDRED DOLLARS ($2,500) (the "Extension Payment") to the Owner
on or before the expiration of the Initial Option Period ("Second Option
Period").
2. AUTOMATIC EXTENSION OF OPTION PERIOD
The Option Period shall automatically be suspended and extended for the duration
of any period during which a claim (which if sustained would constitute a breach
of the Owner's warranties and representations herein or would in any way
diminish Purchaser's full exercise of the rights granted herein) with respect to
the Literary Material or the Rights has been asserted and remains unresolved,
and during any period during which Purchaser's development or production
activities based on the Literary Material or the Rights are interrupted or
postponed by any occurrence of an event of force majeure (as this term is
understood in the motion picture and television industries).
3. FEE FOR OPTION
As full consideration for the Rights granted during the Initial Option Period,
Purchaser agrees to pay Owner, the sum of TWO THOUSAND, FIVE HUNDRED DOLLARS
($2,500).
4. EXERCISE OF OPTION
Purchaser may exercise the Option at any time during the Option Period by
delivery to Owner of:
(a) notice of the exercise of the Option;
(b) payment to Owner of the amount described and set out in paragraph 6 of the
Literary Purchase Agreement (the "Purchase Price"), less the amount(s)
previously paid to Owner for the Initial Option Period or the Second Option
Period (if applicable) within five days of notice of the exercise of the
Option; and
(c) a fully-executed original of the Purchase Agreement in the same form
attached as Exhibit "A", dated as of the effective date of the exercise of
the Option.
If Purchaser does not exercise the Option, then the sums paid to Owner pursuant
to this Agreement shall be and remain the sole property of the Owner without any
further obligation owed to the Purchaser in respect thereof.
5. RIGHTS DURING THE OPTION PERIOD
At any time during the Option Period, Purchaser may enter into conditional
agreements relative to the financing or distribution of any production based on
the Literary Material or any of the Rights. Furthermore, Purchaser shall have
the right, but not the obligation, to do any and all other acts normally done by
Purchasers in the entertainment industry in relation to the development and
pre-production stages of a production.
6. FURTHER INSTRUMENTS
At Purchaser's request, Owner shall promptly sign or cause the signature of any
and all additional documents, including without limitation, the Purchase
Agreement, a Short Form Assignment and a Certificate of Authorship in the same
forms attached to this Option to the Purchase Agreement as Exhibits A, B and C
respectively, and will perform or cause the performance of any other acts which
Purchaser may reasonably deem necessary or desirable to effectuate the purposes
of this Agreement. Upon Owner's failure to do so promptly, Owner hereby appoints
Purchaser as Owner's attorney-in-fact for such purposes (it being acknowledged
that such appointment is irrevocable and shall be deemed a power coupled with an
interest), with full power to sign and deliver such documents and with full
powers of substitution and delegation.
7. REVERSION OF RIGHTS
If the Purchaser does not timely exercise the Option during the Initial Option
Period or the Second Option Period (if applicable) and timely pay the Purchase
Price, the Option shall end and all rights vested, assigned or transferred to
the Purchaser, if any, in the Literary Property or the Rights shall revert to
Owner. Purchaser shall immediately execute and deliver to Owner any assignments
and documents required to effectuate any reversion to the Owner.
8. OWNER'S WARRANTIES
Owner hereby warrants and represents that:
(a) Owner has the full right, power and authority to enter into this Agreement
and to grant and assign to Purchaser the Rights and to grant to Purchaser
all of the other rights granted to Purchaser herein without the consent of
any third party;
(b) the Literary Material is wholly original with Owner, and that with respect
to any actual persons, entities or events referred to therein, is true and
accurate;
(c) neither the Literary Material, nor any of the other literary material
written or to be written or furnished by Owner in connection with any
production based on the Literary Material (the "Material") will not in any
way infringe upon or violate the copyright, right of privacy or publicity,
or common law rights or literary or dramatic or motion picture rights of,
or to the best of the Owner's knowledge constitutes a libel or defamation
against, or invasion of the rights of privacy or any other rights of any
party whatsoever;
(d) Owner owns all of the right, title and interest (including without
limitation, the copyright throughout the world) in and to the Literary
Material free and clear of any liens, encumbrances and other third party
interests of any kind, and free of any claims or litigation, whether
pending or threatened which might in an way prejudice, interrupt or
interfere with the use by Purchaser of any of the rights granted herein to
Purchaser;
(e) Owner has not entered into and will not enter into any agreement selling,
assigning, transferring, licensing, granting, encumbering, derogating from
or otherwise affecting the Rights or any of the rights granted herein to
Purchaser;
(f) the Literary Material has not previously been exploited in any manner,
whether as a motion picture, television production, play or otherwise, and
no rights have been granted to third parties to do so; and
(g) The Literary Material may be validly copyrighted and registered for
copyright in Canada and the United States and may similarly be protected
elsewhere so far as the laws of other countries provide for such
protection, and no party of the Literary Material is in the public domain
and Owner will take all steps necessary to prevent the work from falling
into the public domain.
9. INDEMNIFICATION
Owner and Purchaser each agree to indemnify and hold harmless the other party,
its successors, licensees and assigns, from any losses, damages, liabilities,
claims, costs and expenses, including reasonable legal fees, arising as a result
of any breach of any warranty, undertaking or representation made in this
Agreement.
10. ASSIGNMENT
Purchaser may at any time license, assign or transfer this Agreement or any of
the rights granted to Purchaser hereunder, but no such assignment shall relieve
Purchaser of its obligations hereunder without Owner's prior written consent,
which shall not be unreasonably withheld. Owner may not license, assign or
transfer this Agreement or any of the rights granted to Owner hereunder, except
that Owner may assign the right to receive payments hereunder.
11. NO OBLIGATION TO EXPLOIT
Nothing contained in this Agreement shall be construed as requiring Purchaser to
exercise or exploit, or to continue to exercise or exploit, any of the Rights
granted hereunder.
12. NOTICES
All notices and payments hereunder shall be in writing and shall be given either
by personal delivery, telegram, telex (toll prepaid) or by registered, certified
or Express mail (postage prepaid), or by nationally recognized overnight
delivery service (delivery fee prepaid) to the appropriate party at the address
listed below, or at such other address as such party shall have specified by
written notice hereunder, and the date of such personal delivery, mailing,
telegraphing, telexing, or deposit for delivery shall be the date of the giving
of such notice. All notices due Owner under this Agreement will be sent in care
of, and all moneys due Owner under this Agreement will be paid to Owner or if
designated by the Owner, the Owner's agent, and the receipt by said agents will
be a good and valid discharge of such indebtedness. All notices and payments
hereunder shall be made to the appropriate party at the following address:
if to the Owner:
- ----------------
8-534 Cambie Street
Vancouver, BC
V6B 2N7
if to the Purchaser:
- --------------------
AMP Productions, Ltd.
2708-939 Homer Street
Vancouver, B.C.
V6B 2W6
Attention: Thomas E. Mills
13. JURISDICTION
This Agreement shall be interpreted in accordance with and subject to the laws
of the province of British Columbia applicable to agreements fully executed and
performed therein. All sums referred to herein shall refer to currency of the
United States of America.
14. ENTIRE AGREEMEN1
This Agreement and the Purchase Agreement set forth the complete understanding
between the parties with respect to the Literary Material and the Rights and may
not be modified except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 2nd day of
March, 2003.
/s/ Fidel Thomas
Fidel Thomas
AMP PRODUCTIONS, LTD.
per: /s/ Thomas Mills
Thomas E. Mills
President
Exhibit "C"
CERTIFICATE OF AUTHORSHIP
-------------------------
To: AMP Productions, Ltd.
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, I the undersigned, Fidel Thomas, hereby certifies and
warrants, subject to the terms of the Option to Purchase Agreement dated March
2, 2003, between Fidel Thomas and AMP Productions, Ltd. ("AMP") and Literary
Purchase Agreement, as follows:
1. I am the sole author and the original copyright holder of the original
literary and dramatic work and original screenplay entitled "CODE BLUE"
(the "Property").
2. As the sole author of the Property, I am entitled to assign the copyrights
(and all extensions and renewals of copyright) in and to the Property,
including the right to make such changes and uses thereof as I may from
time to time determine.
3. I wrote the Property by myself and not in collaboration with any other
party and I am the original sole owner under copyright, of all rights to
the Property.
4. The Property is original and to the best of my knowledge and belief, does
not defame, infringe upon or violate the rights of any person, firm or
corporation, and to the best of my knowledge and belief, is not the subject
of any litigation or claim, threatened, pending or otherwise, that might
give rise to litigation.
5. The option to acquire the Property was exercised by AMP in accordance with
the terms of the Option to Purchase Agreement.
6. I confirm I have irrevocably granted, assigned and sold to AMP,
exclusively, in perpetuity and throughout the universe, all right, title
and interest, of every type and sort, now known or hereinafter devised, in
the Property, except for the rights which I have reserved as set forth in
paragraph 5 of the Literary Purchase Agreement.
7. I confirm that I have received all payments (except for Contingent
Compensation) in full owing to me by AMP pursuant to the Option Agreement
and Literary Purchase Agreement.
8. I hereby waive any and all rights anywhere of "Droit Moral" or "Moral
Rights of Authors" or any similar rights or principles of law which I may
now or later have in the Property or any where derived therefrom. It is
agreed that my consideration for the waiver of "Droit Moral" in the
Property is included in the compensation which has been paid pursuant to
the Option to Purchase Agreement and the Literary Purchase Agreement.
9. I agree to indemnify AMP against any breach of any of the representations
and warranties contained herein. I agree to execute any other documents
(paragraph 6 of the Option to Purchase Agreement) which AMP reasonably
deems necessary or desirable to effectuate the purposes of the Option to
Purchase Agreement.
10. AMP's rights in the Property may be assigned, transferred and/or licensed
and its rights and obligations will be binding upon myself and enure to the
benefit of my assignees, transferees, successors, heirs and licensees.
11. I agree, at the request and expense of AMP, to execute any documents and to
do any other acts reasonably deemed necessary by AMP or its assignees or
licensees to further evidence or effectuate AMP's rights as set forth in
this Certificate of Authorship, the Option to Purchase Agreement and/or the
Literary Purchase Agreement. Upon my failure promptly to do so, I hereby
appoint AMP as attorney-in-fact for such purposes (it being acknowledged
that such appointment is irrevocable and coupled with an interest) with
full power of substitution and delegation.
12. Any remedies which I may have, against AMP arising out of any breach of any
agreement, including, but not limited to, the Option to Purchase Agreement
and/or the Literary Purchase Agreement, in connection with the Property and
the Picture based thereon shall be limited to the right to recover damages,
if any, in an action at law, and I hereby, waive any right or remedy in
equity, including any right to terminate the Option to Purchase Agreement
and/or the Literary Purchase Agreement or to rescind AMP's right, title and
interest in and to the Property or the results and proceeds of my services
or to enjoin, restrain or otherwise impair in any manner the production,
distribution, advertising or any other exploitation of the Picture or any
parts or elements thereof.
I have caused this document to be executed as of this ______ day of
________________, 200__.
------------------------
FIDEL THOMAS
Exhibit "B"
SHORT FORM ASSIGNMENT OF RIGHTS
KNOW ALL MEN BY THESE PRESENTS that in consideration of the payment of One
Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, that Fidel Thomas ("Assignor") does
hereby sell, license, grant, assign, convey, transfer and set over unto AMP
Productions, Ltd. ("Assignee") its successors, licensees, transferees and
assignees forever under copyright, the sole and exclusive motion picture rights,
television motion picture and other television rights, all radio broadcasting
rights, all dramatic rights on the legitimate stage and publication rights
limited to 10,000 words for advertisement, publicity and rights throughout the
world in perpetuity in and to that certain original screenplay described as
follows:
Title: "CODE BLUE"
Written by: FIDEL THOMAS
including all titles, elements, themes, stories, plots, incidents, music,
lyrics, arrangements, choreography, dialogue, characters, character names,
action revisions, dramatizations, sequels and their parts and components
contained therein, now or hereafter in existence, as well as all copies of any
and all manuscripts thereof, and all versions and translations thereof and in
and to the copyrights thereof and all renewals and extensions of such
copyrights.
The Assignor and the Assignee have entered into a certain Literary Purchase
Agreement dated the 2nd day of March, 2003 between Assignor and Assignee wherein
the rights so assigned are more fully described. This agreement is made
expressly subject to the terms and conditions of the said agreement.
IN WITNESS WHEREOF the undersigned has executed this assignment this 2nd day of
March, 2003.
--------------------
FIDEL THOMAS
On this ____ day of ____________, 2003, before me, the undersigned, a Notary
Public in the Province of British Columbia, appeared before me Fidel Thomas and
he then demonstrated to me that he is the person whose name is subscribed to in
the within instrument and he acknowledged to me that he had executed the same in
his own capacity.
WITNESS by hand and an official seal.
-----------------------------
Notary Public
Exhibit "A"
LITERARY PURCHASE AGREEMENT
This Agreement made effective the 2nd day of March, 2003, is by and between
Fidel Thomas, a writer presently residing at 8-534 Cambie Street, Vancouver,
British Columbia V6B 2N7 ("Owner") and AMP Productions Ltd. a company
incorporated pursuant to the law of the province of British Columbia having a
place of business located at 2708-939 Homer Street, Vancouver, BC V6B 2W6
("Purchaser").
WHEREAS:
A. Owner is the sole and exclusive owner throughout the world of all rights in
and to the original screenplay titled "CODE BLUE" written by the Owner (the
"Literary Material").
B. The Literary Material and the plots, themes, titles, characters and
copyright thereof, and any translations, dramatizations and other
adaptations or versions thereof now or hereafter created, are herein
collectively referred to as the "Property".
C. Purchaser wants to acquire the Rights in consideration for the purchase
price provided herein and in reliance upon Owner's representations and
warranties.
NOW, THEREFORE, in consideration of the mutual covenants contained herein the
parties agree as follows:
1. RIGHTS GRANTED
Owner hereby sells, grants, conveys and assigns to Purchaser its successors,
licensees and assigns exclusively and forever, all right, title and interest of
any nature including, but not limited to, all motion picture rights, all rights
for advertisement, publicity and exploitation purposes, and certain incidental
and allied rights, throughout the world, in and to the Property and in and to
the copyright of the Property and all renewals and extensions of copyright. The
rights granted to Purchaser hereunder (without limiting the grant of rights
herein) are the following exclusive rights throughout the world (hereinafter
collectively referred to as the "Rights"):
(a) All theatrical motion picture, non-theatrical motion picture, all forms of
the medium known as television, radio, home video, audio-visual devices,
remakes, sequels, publishing, soundtrack, music, merchandizing and
legitimate stage rights, all copyrights therein and thereto (including all
renewals and extensions) and all other allied or ancillary uses including
the right to produce, distribute, advertise and publicize the Property,
exclusively and perpetually throughout the world and in all forms of media
known or hereinafter devised;
(b) To broadcast, transmit or reproduce the Property or any adaptation or
version of it (including without limitation any motion picture produced
hereunder and/or any script or other material based on or using the
Property or any of the characters, themes or plots of it), by means of
television or any process analogous thereto whether now known or from now
on devised (including commercially sponsored, sustaining and subscription
or pay-per-view television), by motion pictures produced on films or by
means of magnetic tape, wire, disc, audio-visual cartridge or any other
device now known or from now on devised and including such television
productions presented in series or serial form, and the exclusive right
generally to exercise for television purposes all the Rights granted to
Purchaser hereunder for motion picture purposes.
(c) To publish and copyright or cause to be published and copyrighted in the
name of Purchaser or its nominee in any languages throughout the world, in
any form or media, synopses, serializations, dramatizations, abridged and
revised versions of the Property or adapted from the Property or from any
motion picture or version of the Property for advertising, publicizing and
exploiting any such motion picture and/or other version.
(d) For the foregoing purposes to use all or any part of the Property and any
of the characters, plots, themes and ideas contained therein, and the title
of the Property and any title or subtitle or any component of the Property,
and to use said titles or subtitles for any motion picture or other version
of adaptation whether the same is based on or adapted from the Property or
as the title of any musical composition contained in any such motion
picture or other version or adaptation.
(e) To use and exploit commercial or merchandise tie-ups and recordings of any
sort and nature arising out of or connected with the Property and its
motion picture or other versions and the title or titles of it and
characters of it and their names or characteristics.
The Rights herein granted to the Purchaser shall be cumulative and
Purchaser may exercise or use any or all of the Rights simultaneously with
or in connection with or separately and apart from the exercise of any
other of said Rights. The terms "Picture" and "Pictures" as used herein
shall be deemed to mean or include any present or future kind of motion
picture production based upon the Property, with or without sound recorded
and reproduced synchronously with it, whether the same is produced on film
or by any other method or means now or from now on used for the production,
exhibition or transmission of any kind of motion picture productions.
2. RIGHT TO MAKE CHANGES
Owner agrees that Purchaser shall have the right to vary, change, alter, modify,
add to and delete from the Property, and to rearrange and transpose the Property
and change the sequence of it and the characters and descriptions of the
characters contained in the Property, and to use a portion or portions of the
Property or the characters, plots, or theme of it with any other literary,
dramatic or other material of any kind.
3. NO DROIT MORAL
Owner hereby waives the benefits of any provisions of law known as the moral
right of authors or "droit moral" or any similar law in any country of the world
and agrees not to permit or prosecute any action or lawsuit on the ground that
any Picture or other version of the Property produced or exhibited by Purchaser,
its assigns or licensees, in any way constitutes an infringement of any of the
Owner's "droit moral" is in any way a defamation or mutilation of the Property
or any part of it or contains unauthorized variations, alterations,
modifications, changes or translations.
4. DURATION AND EXTENT OF RIGHTS GRANTED
Purchaser shall enjoy, solely and exclusively, all the Rights granted hereunder
throughout the universe, in perpetuity, as long as any Rights in the Property
are recognized in law or equity. All Rights granted herein to Purchaser are
irrevocable and not subject to rescission, restraint or injunction under any
circumstances.
5. RIGHTS RESERVED
Owner hereby reserves all rights of novelization of the Property as per the
existing Independent Production Agreement of the Writer's Guild of Canada
currently in effect at the time of the execution of this Agreement.
6. CONSIDERATION
As consideration for all Rights granted and assigned to Purchaser and for
Owner's representations and warranties herein contained, Purchaser agrees to pay
to Owner, and Owner agrees to accept the greater of: TWENTY THOUSAND ($20,000)
approved and bonded.
The Payment of the Purchase Price shall be made to Owner within five days of the
commencement of principal photography for the Picture and upon receipt by
Purchaser of all necessary documentation to effect and evidence the transfer of
Rights granted herein.
7. CONTINGENT COMPENSATION
(a) In the event that a theatrical or television motion picture is produced by
Purchaser or its assigns, based on the Property (the "Picture") and the
budget of the Picture as of the first day of principal photography and as
allowed by all entities financing or guaranteeing completion of the
Picture, is not less than One Million, Five Hundred Thousand Dollars
($1,500,000.00), Owner shall receive additional compensation to make the
Purchase Price equivalent to the Script Fee payable to a writer pursuant to
the most current Independent Production Agreement of the Writer's Guild of
Canada, notwithstanding that neither the Owner nor Purchaser are a member
or subscriber thereof.
(b) In addition to the amounts set out above, Purchaser shall pay to Owner
Three percent (3%) of One Hundred percent (100%) of Purchaser's "Net
Profits" of the Picture, or any television series, pilot or
movie-of-the-week (as that term is used in the entertainment industry) that
derives directly from the Property. "Net Profits" will be defined,
computed, accounted for and paid in accordance with Purchaser's standard
Net Profits definition based on the Purchaser's "break even" negative cost
position after payment of all reasonable production expenses and receipt by
the Purchaser of all distribution advances and gross receipts from
exploitation of the Picture and the Property.
8. TURNAROUND RIGHT
In the event that Purchaser does not produce a theatrical or television motion
picture based on the Property within five (5) years from the date of the
execution of this Agreement, Owner may re-acquire all of the Rights herein
granted by payment to the Purchaser of an amount equivalent to one-half of any
sums paid to Owner by the Purchaser.
9. TITLE
Owner acknowledges and agrees that included among the rights granted by Owner to
Purchaser hereunder is the right to use the current title of the Property or any
previous title by which it was known, as the title of any motion picture or
other project based upon the Property and in connection with the production,
exhibition, advertising and other exploitation of any motion picture or other
project based upon the Property and all subsidiary rights therein.
10. REPRESENTATIONS AND WARRANTIES
Owner represents and warrants, subject to the following warranties and
representations of Owner to Purchaser, Purchaser shall indemnify and hold Owner
harmless from and against any claim arising out of or in connection with the
development, production or distribution of any derivative work produced from the
Property pursuant to the Rights granted hereunder to Purchaser as follows:
(a) Owner is the sole author and creator of the Property and is the sole and
exclusive owner throughout the world of all rights in and to the Literary
Property, the Property is not in the public domain in any country in the
world where copyright protection is available and there is no outstanding
claim or litigation pending against or involving the title, ownership
and/or copyright in the Property, or in any part thereof, or in any rights
granted herein and that all appropriate protection of such rights will
continue to be maintained by Owner;
(b) Owner has the full and sole right and authority to enter into this
Agreement and to convey the Rights and all other rights conveyed to
Purchaser as herein set forth;
(c) to the best of Owner's knowledge, no motion picture or dramatic version of
the Property, or any part of it, has been manufactured, produced, presented
or authorized; no radio or television development, presentation, or program
based on the Property, or any part of it, has been manufactured, produced,
presented, broadcast or authorized;
(d) none of the Rights herein granted or assigned to Purchaser have been
granted or assigned, licensed or otherwise encumbered, diminished or
impaired, except with respect to Purchaser and to the best of Owner's
knowledge Owner has not committed, omitted to perform any act by which such
rights could or will be encumbered, diminished or impaired;
(e) Owner has not adapted the Property from any other literary, dramatic or
other material of any kind, nature or description, nor, except material
which is in the public domain, has Owner copied or used in the Property the
plot, scenes, sequence or story of any other literary, dramatic or other
material; the Property does not infringe upon any common law or statutory
rights in any other literary, dramatic or other material; to the best of
Owner's knowledge, no material contained in the Property is libelous or in
violation of the right of privacy of any person; to the best of Owner's
knowledge that the full utilization of any and all rights in and to the
Property granted by Owner pursuant to this Agreement will not violate the
rights of any person, firm or corporation.
11. INDEMNIFICATION
(a) The parties hereto agree to indemnify the other against all judgments,
liability, damages, penalties, losses and expense (including reasonable
legal fees) which may be suffered or assumed by or obtained against the
other party by reason of any breach or failure of any warranty or agreement
herein made by the other party.
(b) Neither party shall be liable to the other party for damages of any kind in
connection with any Picture it may produce, distribute or exhibit, or for
damages for any breach of this Agreement (except failure to pay the money
consideration herein specified) occurring or accruing before the other
party has or had reasonable notice and opportunity to adjust or correct
such matters.
(c) All rights, licenses and privileges herein granted to Purchaser are
irrevocable and not subject to rescission, restraint or injunction under
any circumstances.
12. PROTECTION OF RIGHTS GRANTED
Owner hereby grants to Purchaser the free and unrestricted right, but at
Purchaser's own cost and expense, to institute in the name and on behalf of
Owner, or Owner and Purchaser jointly, any and all legal proceedings, to enjoin
and restrain any infringements of the Rights herein granted, and hereby assigns
and sets over to Purchaser any and all causes of action relative to or based
upon any such infringement, as well as any and all recoveries obtained thereon;
Owner shall not compromise, settle or in any manner interfere with such
litigation if brought; and Purchaser agrees to indemnify and hold Owner harmless
from any costs, expenses or damages which Owner may suffer as a result of any
such suit or proceeding.
Nothing in this Agreement will be construed as compelling or obligating the
Purchaser to institute legal proceedings on behalf of Owner, or Owner and
Purchaser jointly.
13. COPYRIGHT
Owner shall execute any documentation that will evidence the transfer of
copyright in and to the Property of the Purchaser.
14. CREDIT OBLIGATIONS
Purchaser shall have the right to publish, advertise, announce and use, in any
manner or medium, the name, approved biography and approved photographs or
approved likenesses (such consent not unreasonably withheld) of Owner in
connection with any exercise by Purchaser of the Rights hereunder, provided such
use shall not constitute an endorsement of any product or service.
Subject to the foregoing, Owner shall be accorded the following credits on a
single card on screen and in paid ads controlled by Purchaser and in size of
type (as to height, width, thickness and boldness) equal to the largest size of
type in which any other person (other than a performer) is accorded credit in
third to last position and size according to Purchaser's discretion in the
following form:
"Screenplay by Fidel Thomas"
Alternatively, Owner has the right to designate a pseudonym to be used subject
to the reasonable approval of the Purchaser over the pseudonym chosen (such
approval not to be unreasonably withheld).
Subject to the foregoing, the writers of the Story shall be accorded the
following credits on a single card on screen and in paid ads controlled by
Purchaser and in size of type (as to height, width, thickness and boldness)
equal to the largest size of type in which any other person (other than
performer's) is accorded credit in second to last position and size of
Purchaser's discretion in the following form:
"Story by Fidel Thomas"
No other "written by", "story by" or "screenplay by" or similar writing credit
shall be given to any other party.
If Purchaser shall exploit any other rights in and to the Property, then
Purchaser agrees to give appropriate source material credit (as set out above)
to the Property, to the extent that such source material credits are customarily
given in connection with the exploitation of such rights.
No casual or inadvertent failure to comply with any of the provisions of this
clause shall be deemed a breach of this Agreement by the Purchaser. Owner hereby
expressly acknowledges that in the event of a failure or omission constituting a
breach of the provisions of this paragraph, the damage (if any) caused Owner
thereby is not irreparable or sufficient to entitle Owner to injunctive or other
equitable relief. Consequently, Owner's rights and remedies in the event of such
breach shall be limited to the right to recover damages in an action at law.
Purchaser agrees to provide in its contracts with distributors of the Picture
that such distributors shall honour Purchaser's contractual credit commitments
and agrees to inform such distributors of the credit provisions herein.
15. INSURANCE
Purchaser agrees to add Owner as an additional insured to an Errors and
Omissions policy obtained for the production of any Picture based on the
Property.
16. NOTICES AND PAYMENTS
All notices and payments hereunder shall be made to the appropriate party at the
following address:
if to the Owner:
- ----------------
8-534 Cambie Street
Vancouver, BC
V6B 2N7
if to the Purchaser:
- --------------------
AMP Productions, Ltd.
2708-939 Homer Street
Vancouver, B.C.
V6B 2W6
Attention: Thomas E. Mills
17. MISCELLANEOUS
(a) This Agreement between the parties does not constitute a joint venture or
partnership of any kind.
(b) All amounts referred to in this Agreement shall refer to currency of the
United States of America, unless otherwise indicated.
(c) All rights, remedies, licences, undertakings, obligations, covenants,
privileges and other property granted herein shall be cumulative, and
Purchaser may exercise or use any of them separately or in conjunction with
any one or more of the others.
(d) A waiver by either party of any term or condition of this Agreement in any
instance shall not be deemed or construed to be a waiver of such term or
condition for the future, or any subsequent breach thereof.
(e) If any provision of this agreement is applied to either party or any
circumstances shall be adjudged by a court to be void and unenforceable,
such shall in no way affect any other provision of this Agreement, the
application of such provision in any other circumstance, or the validity or
enforceability of this Agreement.
(f) The Parties shall do any and all acts and execute any and all documents as
may reasonably be required to give effect to and in accordance with this
Agreement.
(g) This Agreement shall be construed in accordance with the laws of the
Province of British Columbia and Canada.
(h) Captions are inserted for reference and convenience only and in no way
define, limit or describe the scope of this Agreement or intent of any
provision.
(i) This Agreement contains the entire understanding of the parties relating to
the subject matter, and this Agreement cannot be changed except by written
Agreement executed by the party to be bound.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the ___
day of ______________, 2003.
---------------------
Fidel Thomas
AMP PRODUCTIONS, LTD.
per:
--------------------------
Thomas E. Mills
President