##### **EXHIBIT10.8**

 

**OUT OF THE BLUEPRODUCTIONS, LLC.**

9300 Wilshire Boulevard, Suite508

Beverly Hills, California 90212

 

As of February 20, 2004

 
| Clematis Productions, Inc.         |   |                          |   |                              |
|------------------------------------|--------|-------------------------------|--------|-----------------------------------|
| c/o Jack Gilardi                   |   | Copy to: Thomas Patrick Rowan |
| International  Creative Management |   |                          |   | A  Professional Corporation       |
| 8942  Wilshire Boulevard           |   |                          |   | 11601  Wilshire Blvd., Suite 2200 |
| Beverly Hills, California 90211    |   |                          |   | Los Angeles, California 90025     |

 

Re:                               “***CLOUD 9***” (WorkingTitle) (a/k/a *“Out of the Blue”*)

**ClematisProductions, Inc.** f/s/o **Burt Reynolds** as Performer

 

Ladies and Gentlemen:

 

The following will confirm theagreement between **CLEMATIS PRODUCTIONS, INC.**(“you”) and **OUT OF THE BLUE PRODUCTIONS, LLC.**(“we” or “us”) with respect to your furnishing to us the services of **Burt Reynolds** (the “Employee”) as hereinprovided:

 

1.                                       Youagree to furnish to us the services of Artist upon all of the terms andconditions set forth in this letter agreement and in the agreement attachedhereto as Exhibit “A” and incorporated herein by this reference (both of whichshall together be referred to herein as the “Agreement”).

 

2.                                       Notwithstandingthe fact that Exhibit “A” is drafted in the form of an agreement between Artistand us, it is understood and agreed that you are supplying Artist’s services tous and that we are utilizing said services in accordance with the terms andprovisions of this Agreement.  Youhereby assign to us all of your rights in Artist’s services and the results andproceeds thereof (including all copyrights therein and all renewals and extensionsthereof, if any), which shall be considered a work for hire.  We shall have all of the rights to Artist’sservices and the results and proceeds thereof to the same extent as if we hademployed Artist directly under Exhibit “A.”

 

3.                                       Youhereby represent and warrant that (a) you are a duly organized and existingcorporation and are presently in good standing under the law of thejurisdiction of your incorporation and all other jurisdictions in which youtransact business, (b) you have a valid, binding and subsisting writtenagreement with Artist pursuant to which you are exclusively entitled to all ofthe services of Artist and all of the results and proceeds thereof which are orwill be required under the Agreement, (c) you have the right to enter into theAgreement and to grant the rights, furnish the services and make therepresentations and warranties set forth herein, (d) you have not made and willnot make any grant or assignment which will conflict with or impair the rightsand privileges granted to us hereunder, (e) you are a bona fide corporatebusiness entity established for a valid business purpose within the meaning ofthe tax laws of the United States and not a mere sham, conduit or agent forArtist, and (f) you are or will become, and will remain throughout the term ofthis Agreement, a signatory to any applicable guild or union agreement.  You further acknowledge that the foregoingrepresentations and warranties will be relied upon by us for the purpose ofdetermining whether or not it is necessary to make withholdings for U.S.Federal taxes from monies being paid to you hereunder, and you agree that ifwithholdings are not made from said payments, and if thereafter it isdetermined that such withholdings were legally required, you and Artist willindemnify, defend and hold us harmless from and against any and all losses,costs, damages and expenses relating thereto.

 

4.                                       Oncondition that neither Artist nor you is in breach under this Agreement, weshall pay to you, and not to Artist, as full consideration for all services tobe rendered and rights granted under this Agreement, all compensation payableto Artist under Exhibit “A.”  If saidcompensation is at least Six Thousand Dollars ($6,000) or such other minimumapplicable amount as is specified in Section 3423 of the California Civil Codeand Section 526 of the California Code of Civil Procedure, you agree tocompensate Artist at the rate of not less than Six Thousand Dollars ($6,000)per annum or such other minimum applicable amount as is specified in Section3423 of the California Civil Code and Section 526 of the California Code ofCivil Procedure.  If California lawshall be changed to provide for different minimum compensation as aprerequisite to obtaining injunctive relief, the references in the precedingsentence to Six Thousand Dollars ($6,000) or such other minimum applicableamount as is specified in Section 3423 of 

 

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the California Civil Code andSection 526 of the California Code of Civil Procedure shall be deemed to bereferences to such different minimum compensation.

 

5.                                       Subjectto Paragraph 6 hereof, you hereby agree to discharge us from all obligationsimposed on employers including, without limitation, the payment of Artist’scompensation, the withholding and payment of taxes, payments relating tounemployment compensation or insurance, FICA, workers’ compensation, anddisability pensions, and the making of all payments required to be made underany applicable collective bargaining agreement by reason of Artist’s servicesrendered pursuant hereto.  You agree todefend, indemnify and hold us harmless from and against any and all judgments,liabilities, penalties, interest, damages, costs, expenses and attorneys’ feeswhich we may incur by reason of your failure to pay any compensation, tax, orother contribution required to be paid in respect of Artist’s serviceshereunder.

 

6.                                       Weshall make all payments to pension, health or welfare funds required pursuantto any applicable collective bargaining agreement by reason of Artist’sservices hereunder, provided, however, that (a) such payment shall not exceedthe amounts which we would have been required to make had we employed Artistdirectly and (b) such payment shall not include Artist’s share of any suchpayment.

 

7.                                       In theevent of a breach or anticipatory breach of this Agreement by you or by Artist,we shall be entitled to seek legal, equitable and other relief against youand/or against Artist in our discretion, and we shall have all rights andremedies against Artist which we would have had if Artist had been directlyengaged by us.  We shall not be requiredfirst to resort to or exhaust any rights or remedies which we may have against youbefore exercising our rights and remedies against Artist.

 

8.                                       If youor your successors in interest should be dissolved, should cease to remainqualified to do business as a corporation for any reason, or should otherwisecease to exist, or for any reason whatsoever should fail, refuse or neglect tocomply with the terms and conditions of this Agreement, Artist shall at ourelection be engaged directly by us for the balance of the term of thisAgreement upon the terms and conditions contained in Exhibit “A.”

 

9.                                       Anyand all notices to be given hereunder shall be given to the parties hereto atthe address set forth above, provided that a copy of any notice to us shall betransmitted to us by mail, facsimile, or telegraph to Out of the BlueProductions, LLC, 9300 Wilshire Boulevard, Suite 508, Beverly Hills, California90212, Attention:  Gray Frederickson,and Out of the Blue Productions, LLC, c/o Robert M. Angel, A ProfessionalCorporation, 939 North Hill Avenue, Pasadena, California 91104, and to any otheraddress which we may designate at a later time.  The date of mailing of any notice (whether sent by registeredmail, with or without return receipt requested, certified mail, airmail and/orordinary mail) or the date the notice is transmitted from the sender’sfacsimile machine, or the date the notice is delivered to the telegraph office,as the case may be, shall be deemed the date of service of the notice.

 

10.                                 Notwithstandingthat you are furnishing Artist’s services to us, for the purposes of any andall applicable Workers’ Compensation statutes, an employment relationshipexists between Artist and us such that we are Artist’s special employer and youare Artist’s general employer (as the terms “Special Employer” and “GeneralEmployer” are understood for purposes of Workers’ Compensation statutes).  The rights and remedies, if any, of Artistand Artist’s heirs, executors, administrators, successors and assigns, againstus and/or our officers, directors, agents, employees, successors, assigns orlicenses, by reason of injury, illness, disability or death arising out of oroccurring in the course of Artist’s rendition of services hereunder shall begoverned by and limited to those provided under such Workers’ Compensationstatutes, and neither we, nor our officers, directors, agents, employees, successors,assigns or licensees, shall have any other obligation or liability by reason ofany such injury, illness, disability or death. If the applicability of any Workers’ Compensation statutes to theengagement of Artist’s services hereunder is dependent upon, or affected by anelection on the part of you or Artist, such election is hereby made by each ofyou in favor of such application.

 

11.                                 ThisAgreement shall be construed and enforced in accordance with the laws of theState of California.  You and we consentto the jurisdiction of the courts of the State of California and the courts ofthe United States located in the State of California in connection with anylawsuit arising out of or relating hereto.

 

                                                Pleaseindicate your agreement to the foregoing by signing in the space providedbelow.

 

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|                           |             |   |   |   |   | Very truly yours,                      |
|--------------------------------|------------------|--------|--------|--------|--------|----------------------------------------|
|                           |             |   |   |   |   | **OUT OF THE BLUE  PRODUCTIONS, LLC.** |
|                           |             |   |   |   |   |                                   |
|                           |             |   |   |   |   | By:                                    | /S/GRAY FREDERICKSON |   |
| ACCEPTED AND AGREED:           |             |   |   |   |   |                                   |
| **CLEMATIS PRODUCTIONS, INC.** |             |   |   |   |   |                                   |
|                           |             |   |   |   |   |                                   |
| By:                            | /S/BURT REYNOLDS |   |   |   |   |                                   |   |   |
|                           |             |   |   |   |   |                                   |
| Title: President               |             |   |   |   |   |                                   |
|                                |                  |        |        |        |        |                                        |  |  |  |  |

 

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As of February 20, 2004

 

OUT OF THE BLUE PRODUCTIONS, LLC.

9300 Wilshire Boulevard, Suite 508

Beverly Hills, California 90212

 

Gentlemen:

 

I have read the attached letteragreement (the “Agreement”) dated as of February 20, 2004 from you to ClematisProductions, Inc. (“Lender”) and, as an inducement to you to enter into theAgreement, I hereby represent, warrant and agree as follows:

 

1.                                       I amfamiliar with all of the terms and conditions of the Agreement and I herebyconsent to the execution thereof.  Ishall perform and comply with all of the terms, conditions and obligations ofthe Agreement as if I had executed it directly as an individual, even if theemployment agreement between me and Lender should hereafter expired, terminateor be suspended.  I, as an individual,hereby join in and confirm all grants, representations, warranties andagreements made by Lender under the Agreement.

 

2.                                       UnlessI am deemed substituted for Lender as a direct party to Exhibit “A” pursuant toparagraph 4 below, I shall look solely to Lender and not to you for the paymentof compensation for my services and for the discharge of all other obligationsof any employer with respect to my services under the Agreement.

 

3.                                       In theevent of a breach or anticipatory breach of the Agreement by Lender or by me,you shall not be required first to resort to or exhaust any rights or remediesagainst Lender before exercising your rights and remedies against me.

 

4.                                       IfLender or its successors in interest should be dissolved or should otherwisecease to exist, or for any reason should fail, refuse or neglect to perform,observe or comply with the terms and conditions of the Agreement I shall, atyour election, be deemed to be employed directly by you for the balance of theterm of the Agreement upon the terms and conditions set forth in Exhibit “A”.

 

5.                                       If youshall serve Lender with any notices, demands or instruments relating to theAgreement, or to the rendition of my services thereunder, service upon Lendershall also constitute service upon me.

 
|   |   |   |   |   |   |   | Very truly yours, |   |
|--------|--------|--------|--------|--------|--------|--------|-------------------|--------|
|   |   |   |   |   |   |   |              |   |
|   |   |   |   |   |   |   | /S/BURT REYNOLDS  |   |
|   |   |   |   |   |   |   | **BURT REYNOLDS** |   |

 

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#### **EXHIBIT“A”**

#### ** **

#### **SAGMOTION PICTURE CONTRACT – WEEKLY PERFORMER**

 

AGREEMENT made as of February 20, 2004between **OUT OF THE BLUE PRODUCTIONS, LLC**  (“Producer”), 9300 Wilshire Boulevard, Suite508, Beverly Hills, California 90212, Attention:  Gray Frederickson, and **BURTREYNOLDS** (“Artist”), c/o International Creative Management, 8942Wilshire Boulevard, 5th Floor, Beverly Hills, California 90211, Attention:  Jack Gilardi, with a copy to Thomas PatrickRowan, A Professional Corporation, 11601 Wilshire Boulevard, Suite 2200, LosAngeles, California 90025 (the “Agreement”).

 

Re:                               ***“CLOUD 9”***(WorkingTitle) (a/k/a *“Out of the Blue”*)

 

This will confirm the agreement(“Agreement”) between Producer and Artist with respect to the acting andrelated services of Artist in and in connection with the Picture, as follows:

 

A.                                 ConditionsPrecedent:  Notwithstandinganything to the contrary contained in this Agreement, Producer’s obligationsunder this Agreement are subject to the fulfillment of all of the followingconditions (each, a “Condition Precedent” and collectively, “ConditionsPrecedent”):

 

I.                                         Producer’sreceipt of copies of this Agreement executed by Artist;

 

II.                                     Artist’sproviding Producer with all documents which may be required by any governmentagency or other­wise for Artist to render services hereunder for the fullperiod during which such services may be required by Producer, including,without limitation, if applicable, a completed (to Producer’s satisfaction) INSForm I-9 (Employment Eligibility Verification Form), original documents establishingArtist’s employ­ment eligibility and any and all other visas, work permits andother documents establishing Artist’s right to enter and work in the applicablejurisdiction(s);  and

 

III.                                 Artist’squalifying for all insurance which Producer deems necessary (*e.g.*, life, health, accident and/or castinsurance) at customary rates and subject only to customary exclusions anddeductible amounts (if any).

 

1.                                       EMPLOYMENT:  Producer hereby employs Artist and Artistagrees to perform services as a performer in the role of “Billy Cole” in thefeature length theatrical motion picture currently entitled ***“CLOUD 9”*** (a/k/a *“Out of the Blue”*) (the “Picture”).  Picture principal photography is currentlyscheduled to commence on or about April 15, 2004.  The start date for Artist’s services is currently contemplated tobe not earlier than April 1, 2004 and not later than April 29, 2004.  It is understood that Artist may be requiredto render preparatory services (including one [1] free wardrobe day and one [1]free rehearsal day) prior to the start date for Artist’s services.

 

2.                                       COMPENSATION

 

(a)                                  Uponcondition that Artist faithfully performs all of the terms and conditions ofthis Agreement in connection with the Picture, and subject to Producer’s usualand customary rights of suspension and/or termination in the event of Artist’smaterial breach, incapacity, or morals clause violation, or the occurrence ofan event of force majeure, Producer shall pay Artist the sum of One HundredThousand Dollars ($100,000) (“Guaranteed Compensation”), which amount shallinclude payment for Artist’s services for [i] four (4) work or production weeksin the Los Angeles metropolitan area tentatively scheduled to commenceapproximately April 15, 2004 (i.e., not earlier than April 1, 2004 and notlater than April 29, 2004), [ii] one (1) free week, and [iii] subject toArtist’s professional availability, three (3) non-consecutive looping, dubbing,retakes, added scenes and re-shooting days (collectively, “Guaranteed Period”).  The Guaranteed Compensation shall be payableon a weekly basis, as and when Artist renders services hereunder.  If Artist’s services are used in work daysin excess of the Guaranteed Period for other than looping, dubbing, retakes,added scenes and re-shooting, Producer shall pay Artist additional compensationon a pro rata daily basis at the rate of Five Thousand Dollars ($5,000) perday.

 

(b)                                 TheGuaranteed Compensation shall be a recoupable, non-reimbursable advance againstten percent (10%) of one hundred percent (100%) of Producer’s gross receipts atactual break-even (i.e., after Producer fully recoups all actual, direct,out-of-pocket “negative” costs of production of the Picture, plus interestthereon at a rate equal to the prime rate plus two percent [2%] per annum, butnot more than five percent [5%] per annum, and excluding overhead, completionbond charges, and any unexpended budgetary contingency).  Producer shall direct the distributor of thePicture to pay any such contingent compensation directly to Artist.  The definition of such contingentcompensation (including frequency of statements, timeliness of payments, auditrights, etc.) which applies to Artist shall be the same as the definitionapplicable to Producer with respect to the Picture.

 

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(c)                                  To theextent permitted by the 2001 Screen Actors Guild Basic Agreement (“SAGAgreement”), including any applicable Schedule thereof, the GuaranteedCompensation shall constitute a pre-payment for all additional sums payablepursuant to the SAG Agreement (*i.e.*,all meal penalties, forced calls, saga sells, reprises, “premium” days,etc.).  Behind-the-scenes footage,“making of” footage, and clips from the Picture and (subject to clearance fromthe owners thereof) from other motion pictures for which Artist has renderedservices may be utilized in connection with such promo­tional films andtrailers without additional compensation to Artist, provided that the usethereof shall be subject to Artist’s approval which shall not be unreasonablywithheld or delayed.  For each foreigntelevision use, supplemental market use, or other use (other than theatricalexhibition) of the Picture which contains the results and proceeds of Artist’sservices, Artist shall be paid the minimum additional compensation, if any,required by the SAG Agreement.

 

(d)                                 Artistwarrants and represents that Artist is eligible to be employed in the UnitedStates in compliance with the Immigration Reform & Control Act of1986.  As a condition precedent toArtist’s receipt of any payment hereunder, Artist will complete the requiredI-9 form and will present such form to Producer along with the requisitedocumentation, as specified in the form, that Artist may be lawfully employed.

 

3.                                       SCREENCREDIT:

 

(a)                                  Artistshall be accorded on a separate card in first star billing below the title(with no other performer to receive billing above the title) in the main titlesof the Picture if there are credits in the main titles (otherwise in theequivalent position in the end titles). The size of such credit shall be no smaller than the size of any otherperformer in the Picture who receives credit below the main title.  Subject to the foregoing, Producer shalldetermine the size, placement, nature and all other characteristics of suchbilling in Producer’s sole discretion.

 

(b)                                 Subjectto customary exclusions, Artist shall be accorded billing of the same relativesize and in the same position as hereinabove set forth in the billing block andin all paid print advertisements (other than group advertisements [*i.e.*, where more than one (1) Picture isadvertised] and special advertisements [such as congratulatory advertisementsand advertisements relating to prizes, awards, or personal appearances]) issuedunder the control of and paid for by Producer (but not in print advertisementsissued under the control of or paid for by the distributor) where any otherperformer receives credit in connection with the Picture.  Notwithstanding the foregoing, [1] Producershall not be obligated to accord Artist billing in any paid advertisement inwhich no other cast member in the Picture is accorded billing, [2] Producershall use Artist’s name, photograph or likeness in any paid print advertisementor “excluded ad” if the name, photograph or likeness, as applicable, of anyother member of the principal cast of the Picture appears in the applicableprint advertisement or “excluded ad,” unless such excluded ad relates primarilyto the other cast member (such as a congratulatory ad or an ad relating to apersonal appearance of such cat member), and [3] the foregoing limitationsshall not apply to Producer’s use of Artist’s name (as opposed to Artist’slikeness) in the billing block of any advertisements, publicity (e.g.,one-sheets), or home video packaging related to the Picture.

 

(c)                                  Producershall have no obligation to accord Artist billing in other paid advertising ortrailers relating to the Picture, provided, however, that Producer shall havethe right, exercisable in Producer’s sole discretion, to accord any suchbilling.

 

(d)                                 It isunderstood that the billing obligations set forth in this Paragraph 3 shall notbe applicable if the results and proceeds of Artist’s services are not utilizedin connection with the Picture.  Anyinadvertent failure to comply with the billing requirements hereof shall not bedeemed a breach of this Agreement. Producer shall exert its commercially reasonable best efforts toobligate third parties to comply with the foregoing provisions of thisParagraph 3.

 

4.                                       MANNEROF SERVICE:  Artist shalldevote Artist’s best talents, efforts and abilities in connection with Artist’sservices and shall render services in a competent, painstaking, artistic,timely and professional manner.  Artistshall render all services under Producer’s supervision, direction and control.  Artist shall comply promptly and faithfullywith all of Producer’s reasonable instructions, directions, requests, rules andregulations.  If and when Producerrequests, and subject to Artist’s professional availability and to the approvalof Artist (which approval shall not be unreasonably withheld or delayed),Artist shall report for wardrobe fittings, photo sessions, hairdressing,make-up, production conferences and the making of stills.  Without limiting the foregoing, Artist shallbe available for a photography session at Producer’s designated photo gallerybefore, during, or after production, for up to five (5) in-person interviewsand two (2) half-days of telephone interviews before, during, or afterproduction, as arranged by Producer’s press and publicity representativessubject to the approval of Artist (which approval shall not be unreasonablywithheld or delayed).

 

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5.                                       DRESSINGFACILITY; TRANSPORTATION; LOCAL TRANSPORTATION; PER DIEM; HAIRPIECES; MAKE-UP& HAIRDRESSER PERSONNEL; WARDROBE:  While Artist is rendering services in connection with thePicture, Producer shall provide Artist with (a) a first class dressing facility(with first class amenities) which will be not less than a trailer (with noother performer in the Picture to receive a superior dressing facilities oramenities [other than any performer with special needs such as disability ormaternity]), (b) one (1) first class round trip airfare (Florida – Los Angeles– Florida), (c) local transportation to and from Artist’s Los Angeles arearesidence and the Picture locations for the exclusive use of Artist, (d) aweekly allowance of Two Thousand Dollars ($2,000) for all of Artist’s expenses(including accommodations), (e) two (2) hairpieces during the GuaranteedPeriod, and (f) the first priority use of Artist’s pre-approved hairdresser andmake-up person (it being agreed that such persons will be available to rendertheir respective services for other cast members when Artist does not requiretheir services) who will be employed at the rate of Two Hundred Seventy-FiveDollars ($275) per person per fourteen (14) hour work day, plus an additionalFifty Dollars ($50) per person per day for box rental.  Producer shall supply “character” or“period” costumes.  Artist may retainany non-rented wardrobe which Artist utilizes in Artist’s performance(excluding any borrowed wardrobe items).

 

6.                                       OWNERSHIPRIGHTS AND RIGHTS TO EDIT: Artist grants to Producer perpetually and exclusively all rights of anykind and character whatsoever in and to services and performances under thisAgreement and in and to the results and proceeds of those services andperformances.  Producer shall have theperpetual and exclusive right to reproduce and license others to reproduce,exhibit and/or distribute by any methods or combination of methods, any part orall of Artist’s acts, poses, appearances and voice in the Picture.  Artist agrees that Artist shall have noright, title or interest in or to the Picture or any material contained in thePicture, including without limitation the title, format and dialogue,regardless of any contributions made by Artist.  Any material written or created by Artist for Producer shall be considereda work made for hire.  Producer will notuse Artist’s performance in the Picture in any other motion picture.  Artist waives all moral rights of authors (*droit moral*) which the laws of anyjurisdiction may now or later recognize, and the Picture may be edited, cut,modified and lengthened from time to time as its licensees and/or assigneeselect.  Furthermore, Producer willafford Artist the first opportunity to perform any English language dubbing ofArtist’s performance, but if Artist is not available when Producer requiresArtist to perform such dubbing services, Producer may “dub” Artist’s voiceand/or use a double instead of Artist as and when Producer may elect to theextent permitted by the SAG Agreement. Producer agrees not to use bloopers or out-takes of Artist’s performancewithout Artist’s consent (which consent shall not be unreasonably withheld ordelayed).

 

7.                                       EXCERPTS;TRAILERS:  Producer mayrequire Artist to perform in trailers for the Picture and may utilize filmclips or sound track of Artist’s services in the Picture in trailers inperpetuity to promote the Picture, and Artist shall not be entitled to anyadditional compensation therefor.

 

8.                                       EXHIBITIONRIGHTS:  Producer shallhave the unlimited, perpetual right throughout the world to exhibit the Picturein whole or in part in theaters, on television, in supplemental markets (asdefined in the SAG Agreement), on the Internet, and by any and all othermethods now known or discovered in the future, subject to the terms andconditions of this Agreement and of the SAG Agreement.  Without limiting the foregoing, Producer maymake and use and authorize others to use the Picture for audition, file, andreference purposes, and for audience previews and other screenings.

 

9.                                       NAMEAND LIKENESS:

 

(a)                                  Artistgrants to Producer the exclusive perpetual right to use and to license the useof Artist’s name and likeness (subject to Paragraph 9(b) below) in connectionwith the Picture and in the advertising, promotion, publicity or otherexploitation thereof by any means now or hereafter known, provided, however,that in no event shall Artist’s name and likeness be used as a directendorsement by Artist of any product or service without Artist’s prior writtenconsent.

 

(b)                                 Artistshall be entitled to approve the still photographs and likenesses of Artistused in the advertising and publicity materials (or any other permitted uses ofphotographs and likenesses) issued by or under the control of Producer inaccordance with and subject to the following:

 

[1]                                  StillApproval.  Producer shall submitto Artist a reasonable number of still photographs (“Stills”)  (which may be on “proof” or “contact’’sheets) which Producer intends to use in connection with the advertising and/orpublicity for the Picture.  Artist shallapprove at least fifty percent (50%) of the Stills within five (5) businessdays after Artist’s receipt thereof, or such shorter period (but not less thanforty-eight [48] hours) as Producer may require due to marketingexigencies.  Artist’s failure to notifyProducer of Artist’s disapproval of any Stills received by Artist within suchfive (5) business day (or shorter, if applicable) period shall be deemed toconstitute Artist’s approval of the Stills submitted; provided, however, thatif Artist approves fewer than fifty percent (50%) of the Stills so submitted,Producer may only deem 

 

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approved by Artist such numberof Stills as equal the difference between fifty percent (50%) and thepercentage of Stills from such submission actually approved by Artist.

 

[2]                                  LikenessApproval.  Artist shall havethe right to approve one hundred percent (100%) of all non-photographiclikenesses of Artist for use in connection with Producer’s advertising and/orexploitation of the Picture.  If Artistdisapproves a non-photographic likeness, then Artist will advise Producer ofArtist’s specific objections to the disapproved non-photographic likenesswithin five (5) business days after submission thereof (or such shorter timeperiod as Producer may require due to marketing exigencies, but not less thanforty-eight [48] hours). Artist’s failure to notify Producer of Artist’sdisapproval of any non­-photographic likenesses received by Artist within suchfive (5) business day (or shorter, if applicable) period shall be deemed toconstitute Artist’s approval of the non-photographic likenesses submitted.  If Artist disapproves a non-photographiclikeness, Artist shall specify precisely which elements of Artist’s physical appearance(for example, nose, hair and eyes, as opposed to position or dimension) aspresented in the non-photographic likeness Artist disapproves.  Producer shall thereafter continue to submitto Artist corrected likenesses and Artist shall approve or disapprove same (butstrictly in accordance with the foregoing provisions of this Paragraph 9(b)[2])until Artist approves such likeness; provided, however, that if due toProducer’s marketing exigencies and deadlines Producer does not have time tocontinue such resubmission process, then provided Artist has had at least two(2) opportunities to specify which elements of the likeness Artist disapprovesand Producer has revised the likeness to correct such elements at least two (2)times, then upon such correction, such non-photographic likeness shall bedeemed approved.  Once Artist approvesor is deemed to have approved any non-photographic likenesses, it shall bedeemed approved for all purposes in connection with the exploitation of thePicture (except purposes expressly prohibited by this Agreement).

 

(c)                                  Theuse of Artist’s name and/or likeness in connection with merchandising,commercial tie-ins or tie-ups, or soundtrack shall be subject to Artist’swritten approval (which shall not be unreasonably withheld or delayed) in eachinstance.  If any use of Artist’s nameand likeness is in connection with any merchandising or commercial tie-in ortie-up activities or the soundtrack, Producer shall pay to Artist five percent(5%) of one hundred percent (100%) of any money or financial consideration (afterdeducting Producer’s expenses in connection therewith) which Producer or anyparent, subsidiary, or officer of Producer derives from such use.  No royalty will be payable solely as aresult of Artist’s name appearing in a list of cast credits in a billing blockon any merchandising or commercial tie-ins or tie-ups.

 

10.                                 ASSIGNMENTAND LOANOUT OF SERVICES: Producer shall have the right to assign this Agreement and/or any or allof Producer’s rights hereunder and to delegate any or all of Producer’s obligations.  Producer shall be relieved of allobligations hereunder in the event of such assignment if such assignment is toa “major” motion picture studio or subsidiary thereof (e.g., Miramax,Dimension, New Line), or USA television network or USA cable network or partywith similar financial resources which assumes such obligations in writing, orif the distributor executes an assumption agreement which the Screen ActorsGuild approves and which complies with the applicable provisions of the SAGAgreement.  Artist may not assign thisAgreement or any of Artist’s rights and/or obligations hereunder.  At any time and from time to time Producermay lend Artist’s services hereunder to any person, firm, or corporation.

 

11.                                 PAY ORPLAY:  Producer shall notbe obligated to produce, exhibit, distribute, broadcast or exploit the Pictureor to utilize any rights granted by Artist to Producer or any materialsfurnished by Artist.  If Producer electsnot to utilize Artist’s services or to exhibit, distribute, or broadcast thePicture, Producer shall have the right to discharge its obligations completelyby paying Artist the minimum Guaranteed Compensation provided for in thisAgreement.

 

12.                                 RELIEF;REMEDIES:  Artist agrees thatthe services to be furnished by Artist, and the rights and privileges grantedto Producer under this Agreement, are of a special, unique, unusual,extraordinary and intellectual character which gives them a peculiar value, theloss of which cannot reasonably or adequately be compensated for in damages atan action in law, and that Artist’s failure to perform Artist’s obligationsunder this Agreement will cause Producer irreparable injury and damage.  Artist, therefore, agrees that Producershall be entitled, as a matter of right, to injunctive relief against Artist toprevent Artist from furnishing the same or similar services and/or grantingsimilar and/or conflicting rights to others. If Artist breaches any of Artist’s representations, warranties or agreementsunder this Agreement, Producer may terminate and/or suspend thisAgreement.  If this Agreement issuspended pursuant to this Paragraph 12, it will remain in full force andeffect, except that Artist’s services will be postponed to a date selected by Producerand Artist will not be entitled to any compensation during any suchsuspension.  This Agreement may beterminated during any such suspension. Producer’s rights and remedies under this Agreement shall be cumulative,and the exercise by Producer of one or more of the rights or remedies shall notpreclude the exercise by Producer of any other right or remedy under thisAgreement, at law or in equity.

 

13.                                 ARTIST’SDISABILITY:  Producer shallhave the right to suspend and/or terminate this Agreement by giving Artistnotice of suspension and/or termination if Artist suffers any mental orphysical disability, any alteration in Artist’s 

 

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facial or physical appearance,or any impairment of Artist’s voice which, in Producer’s opinion, interferes withthe proper performance of any or all of Artist’s obligations under thisAgreement, or Artist or Producer receives or is threatened with a restrainingorder or injunction with respect to an actual or alleged contract or commitmentof Artist.  If this Agreement issuspended under this Paragraph 13, Producer will have the rights with regard tosuspension stated under Paragraph 12 above.

 

14.                                 FORCEMAJEURE:  If the productionof the Picture is prevented, suspended, postponed or discontinued by reason ofa governmental regulation or order, strike, war, civil unrest, fire, earthquakeor similar act of God or by the failure or refusal of a cast member or of thedirector to perform, or by any other cause of a similar or dissimilar naturebeyond the control of Producer (“Force Majeure”), Producer shall have theexclusive right, subject to the SAG Agreement, to suspend or terminate Artist’semployment at any time during the continuation of such condition, and further,Producer shall have the exclusive right to extend the Guaranteed Period for aperiod of time equal to the continuation of such Force Majeure condition.  If Producer suspends Artist’s employment formore than eight (8) weeks for a Force Majeure event, Artist may terminate thisAgreement by written notice to Producer unless Producer reinstates Artist withpay within one (1) week after Producer receives such termination notice fromArtist.  Producer will not suspendArtist’s employment unless all other principal performers in the Picture arelikewise suspended for the same Force Majeure event.  Producer shall not suspend Artist’s employment more than once forthe same Force Majeure event.  Artist’sfailure or refusal to cross a picket line shall not be deemed an event of forcemajeure or grounds for suspension or termination.

 

15.                                 WARRANTIES:  Artist agrees, represents, and warrantsthat:  Artist has the right to enterinto this Agreement and to grant the rights granted to Producer; Artist neitherhas nor will make any contractual or other commitments which would conflict orinterfere with the rights granted Producer; Artist is a member of and willremain a member of the Screen Actors Guild; and if Artist provides any ideas,creations, literary, musical or artistic material (collectively andindividually referred to as “artistic material”), the artistic material will beArtist’s own and original creation except for matters in the public domain andthe use of the artistic material will not infringe upon or violate any rightsof any kind or nature whatsoever of any person or entity.

 

16.                                 INDEMNITIES:  Artist agrees to defend, indemnify and holdharmless Producer, distributor of the Picture (the “distributor”), thedistributor’s parent and subsidiary companies, and the officers, directors,attorneys, agents and employees of each from and against any and all claims,damages, liabilities, costs and expenses, including, but not limited to,reasonable outside attorneys’ fees arising out of (a) any breach or allegedbreach of any representation, warranty or agreement made by Artist in thisAgreement; (b) the use or dissemination of any materials furnished by Artist,and/or (c) any acts done or words spoken by Artist in connection with theproduction, rehearsal, recording or broadcasting of the Picture, other than actsdone or words spoken by Artist at Producer’s direction.  Producer’s approval of material supplied byArtist shall not constitute a waiver of this indemnity.  Except where Artist’s indemnity as set forthin the first sentence of this Paragraph 16 applies, Producer will defend,indemnify and hold Artist and Clematis Productions, Inc. harmless from andagainst any and all claims, damages, liabilities, costs and expenses, includingreasonable outside attorneys’ fees arising out of the use of any materials thatProducer has supplied to Artist in the Picture, Producer’s uncured materialbreach of this Agreement, or the development, production, exhibition,broadcast, distribution, advertising, promotion, publicity, or exploitation ofthe Picture or any element thereof.  Theindemnitee shall give the indemnitor prompt written notice of any claim orlawsuit to which the indemnification agreement in this Paragraph 16relates.  The indemnitee shall have theright to participate in the defense and/or settlement of any lawsuit and/orclaim for which indemnitee is being indemnified.  If the indemnitee settles any claim, demand or action for whichindemnity is provided, without the prior written consent of the indemnitor, theindemnitor shall be released from any and all liability under theindemnity.  When Artist’s indemnity ofProducer applies, Producer may elect to employ Producer’s own attorney(s)instead of using the services of Artist’s attorney(s) but Artist’s indemnityshall still apply.

 

17.                                 PUBLICITY:  Artist shall not authorize the publishingof, or furnish material relating to the Picture, or Artist’s services inconnection with the Picture, without the prior written consent of Producer,provided that Artist may issue personal publicity which makes incidental, non-derogatorymention of Producer, the Picture, and/or the distributor of the Picture.  Subject to Artist’s availability, Produceragrees to consult meaningfully with Artist regarding all publicity orpress-related materials which relate to the Picture and/or Artist’s servicestherein.

 

18.                                 UNIONCOMPLIANCE:  The SAG Agreementshall govern the terms and conditions of Artist’s services.  If there is any inconsistency between thisAgreement and the SAG Agreement, the SAG Agreement shall prevail and thisAgreement shall be deemed modified to the minimum extent necessary to resolvethe conflict and shall continue in full force and effect.  Producer shall be entitled to the maximumrights, privileges, and benefits conferred upon or permitted to Producer underthe SAG Agreement for the minimum payments required, except as otherwisespecifically provided in this Agreement.

 

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19.                                 ARBITRATIONOF DISPUTES:  If any dispute orcontroversy arises between the parties hereto with reference to this Agreement,or the employment herein provided for, such dispute or controversy shall besettled and determined by conciliation and arbitration in accordance with theconciliation and arbitration provisions of the SAG Agreement, and suchprovisions are hereby referred to and by such reference incorporated herein andmade a part of this Agreement with the same effect as though the same were setforth herein in detail.

 

20.                                 PERSONALAPPEARANCES:  When Producer sorequests, and subject to Artist’s availability and reasonable approval (whichapproval shall not be unreasonably withheld or delayed), Artist shall makepersonal appearances at such places and on such occasions as Producer or thedistributor of the Picture may determine in connection with the Picture or anydistributor sponsor of the Picture, including without limitation promotionalactivities, interviews, and television guest appearances.  Producer or its successor-in-interest shallpay for all reasonable first class pre-approved out-of-pocket expensesreasonably incurred in connection with such appearances, includingtransportation expenses.

 

21.                                 ENFORCEABILITYOF CONTRACT:  If a court orother tribunal having jurisdiction determines any provision of this Agreementto be void or unenforceable, the provision in question shall in no way affectany other provision of this Agreement, and this Agreement shall continue infull force and effect.  Neither theexpiration of this Agreement nor any termination or suspension of it shallrelieve Artist of Artist’s obligations with respect to any representation,warranty or indemnification agreement made under this Agreement.  No waiver by any party to this Agreement ofa breach of any obligation imposed by this Agreement or of a breach of any representationor warranty made under this Agreement shall be deemed to be a waiver of anypreceding or succeeding breach of the same or of a different obligation,representation or warranty.  Failure onthe part of any party to complain of any failure to act of the other party orto declare the other party in default, irrespective of how long the failurecontinues, shall not constitute a waiver by the party of its rights under thisAgreement.

 

22.                                 INSURANCE:  Producer may secure life, health, accident,cast or other insur­ance covering Artist, or Artist and others, and Artistshall have no right, title or interest in or to such insurance.  As soon as possible after Artist’s executionof this Agreement, Artist shall submit to usual and customary medical examinationsfor Producer’s insurance purposes (including, without limitation,self-insurance) and will sign such applications and/or other documentsreasonably required.  Artist may haveArtist’s own physician present at any such examination at Artist’s own expense.  Producer may terminate this Agreementwithout any further obligation or liability of any kind to Artist (other thanpayment to Artist of any unpaid compensation under this Agreement which has, asof the date of such termination, accrued and been earned by Artist inaccordance with the terms and conditions of this Agreement) if: (i) any suchexamination establishes a substantial doubt as to Artist’s physical ability toperform and/or complete Artist’s services hereunder; or (ii) if cast insurancecover­ing Artist cannot be obtained for normal premiums and without exclusions(other than minor and customary exclusions), provided, however, that if Artistpays the amount of the excess premiums above the customary premiums for castinsurance, Producer will not terminate Artist for failure to qualify forcustomary cast insurance premiums.  Fromthe date two (2) weeks before the scheduled start date of principal photographyuntil comple­tion of all services required of Artist hereunder, Artist will notride in any aircraft, other than as a passenger on a scheduled flight of aUnited States or major international air carrier maintaining regularlypublished schedules, or engage in any extrahaz­ardous activity withoutProducer’s written consent in each case. Artist and Clematis Productions, Inc. shall be covered under Producer’spolicies of errors and omissions and general liability insurance (if any) forthe Picture, subject to all of the terms and limitations set forth in suchpolicies; provided, however, that Producer shall have no obligation to maintainany such policy or policies for any specific period of time.

 

23.                                 FREEDVD AND VHS CASSETTE: Provided that Artist is not in material default, Producer shall furnishto Artist, at Artist’s request and at Producer’s cost, one (1) DVD copy andone-half inch (1⁄2”) VHS videocassette copy of the Picture if and when the sameis manufactured and commercially available to the general public.  Artist shall use said DVD copy and videocassettecopy solely for personal, library and reference purposes, and in no event shallsaid DVD copy and videocassette copy be duplicated or used for any commercialpurpose or for profit, including, but not limited to, the making of publicexhibitions of the Picture.  Inaddition, if Producer so elects, Artist will execute Producer’s customarydistributor’s “private use” letter.

 

24.                                 CONSULTATIONREGARDING MAKE-UP AND HAIRDRESSING PERSONNEL, AND SCREENPLAY MODIFICATIONS:  Producer shall meaningfully consult withArtist regarding any make-up and hairdressing personnel rendering services toArtist, it being agreed that such personnel may perform such services to othermembers of the cast of the Picture when not rendering services for Artist.  Artist acknowledges that Artist has approvedthe Picture screenplay dated February 11, 2004; if Producer revises suchscreenplay and thereby materially changes Artist’s role, Producer willmeaningfully consult with Artist regarding such revisions.

 

25.                                 PREMIERE:  Producer will provide Artist withinvitations for Artist and up to three (3) individual guests to 

 

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the Los Angeles premiere of thePicture.  If there is a premiere, filmfestival, or event at a location outside of the Los Angeles metropolitan areaat which Producer requests Artist’s presence and Artist agrees to attend same,then Producer will provide reasonable transportation and accommodations toArtist on terms no less favorable than are provided to any other Pictureperformer whose presence Producer requests at such premiere, film festival, orevent.

 

26.                                 NUDITY:  It is specifically agreed that there will beno nudity or simulated nudity (including no below the waist frontal nudity), nosex acts or simulated sex acts, no nude or sex doubles, and no stillphotographer will take photographs in which Artist appears partially or totallynude, and photographs (including still frames from the Picture) and likenessesof Artist which involve any nudity of Artist will not be taken or used for anypurpose.

 

27.                                 NOTICES:  All notices which Producer is required ormay desire to serve upon Artist in connection with this Agreement may be servedby delivering the notice to Artist personally in writing or orally or bysending the notice to Artist by mail, facsimile or telegraph addressed toArtist at the address specified above, with a copy to Thomas Patrick Rowan, AProfessional Corporation, 11601 Wilshire Boulevard, Suite 2200, Los Angeles,California 90025, Fax (310) 479-5218, or at any other address which Artist hasdesignated in writing.  Artist may serveany notice which Artist may be required or may desire to serve upon Producer bysending the notice to Producer at the address above or at any other addresswhich Producer has designated in writing. The date of mailing of any notice (whether sent by registered mail, withor without return receipt requested, certified mail, air mail or ordinary mail)or the date the notice is deposited for transmission by facsimile or telegraph,as the case may be, shall be deemed the date of service of the notice.

 

28.                                 HEADINGS:  The headings of this Agreement are merelyfor convenience and shall have no legal effect or significance.

 

29.                                 GOVERNINGLAW; COMPLETE UNDERSTANDING: This Agreement shall be construed and enforced in accordance with thelaws of the State of California applicable to agreements made and to beperformed wholly within the State of California regardless of where performanceof this Agreement may occur.  ThisAgreement sets forth the complete understanding between Artist and Producerwith respect to the subject matter hereof, and all prior agreements, whetherwritten or oral, have been merged in this Agreement.  This Agreement may only be modified by a written instrument whichthe party to be charged has signed.  Artist acknowledges that neither Producer nor any of its agents,employees or representatives has made any representations or promises which arenot expressly contained in this Agreement.

 

ACCEPTED AND AGREED:

 
|              | **OUT OF THE BLUE  PRODUCTIONS, LLC.** |
|-------------------|----------------------------------------|
|              |                                   |
|              |                                   |
| /S/BURT REYNOLDS  |                                   | By: | /S/GRAY FREDERICKSON |   |
| **BURT REYNOLDS** | **Its:**                               |   |   |
|                   |                                        |  |  |  |

 

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