EXHIBIT
10.5


 


SAG
MOTION PICTURE CONTRACT – WEEKLY PERFORMER


 


AGREEMENT made as of April 16,
2004, as revised April 22, 2004, between OUT
OF THE BLUE PRODUCTIONS, LLC 
(“Producer”), 9300 Wilshire Boulevard, Suite 508, Beverly Hills,
California 90212, Attention:  Gray
Frederickson, and ANGIE EVERHART
(“Artist”), c/o PTI Talent Agency, 14724 Ventura Boulevard, Penthouse Suite,
Sherman Oaks, California 91403, Attention: 
Sheryl Abrams (Telephone 818-386-1310; Fax 818-386-1311; Email
sheryl@ptitalentagency.com) (the “Agreement”).


 


Re:                               “CLOUD 9” (Working
Title)


 


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


 


A.                                   Conditions
Precedent:  Notwithstanding
anything to the contrary contained in this Agreement, Producer’s obligations
under this Agreement are subject to the fulfillment of all of the following
conditions (each, a “Condition Precedent” and collectively, “Conditions
Precedent”):


 


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


 


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


 


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


 


1.                                       EMPLOYMENT:  Producer hereby employs Artist and Artist
agrees to perform services as a performer in the role currently known as
“Julie” in the feature length theatrical motion picture currently entitled “CLOUD 9” (the
“Picture”).  Picture principal
photography is currently scheduled to commence on or about April 19,
2004.  The start date for Artist’s
services is currently contemplated to be approximately April 19, 2004 (it
being understood and agreed that Artist’s services will continue for on or
about April 23, 2004 for an aggregate of thirteen [13] non-consecutive
work days over a period of four [4] weeks, then be dropped until May 29, 2004
[with Artist’s services required on May 29, 2004 and/or May 30, 2004]).  It is understood that Artist may be required
to render preparatory services prior to the start date for Artist’s services.


 


2.                                       COMPENSATION


 


(a)                                  Upon
condition that Artist faithfully performs all of the terms and conditions of
this Agreement in connection with the Picture, and subject to Producer’s usual
and customary rights of suspension and/or termination in the event of Artist’s
material breach, incapacity, or morals clause violation, or the occurrence of
an event of force majeure, Producer shall pay Artist the an amount equal to one
hundred ten percent (110%) of the applicable minimum low budget scale for four
(4) weeks pursuant to the 2001 Screen Actors Guild Basic Agreement (“SAG Agreement”)
(i.e., One Thousand Six Hundred
Twenty Dollars [$1,620] per week plus ten percent [10%] agency commission of
One Hundred Sixty-Two Dollars [$162]), but in no event less than aggregate
total of Thirty Thousand Dollars [$30,000]) (“Guaranteed Compensation”), which
amount shall include payment for Artist’s services for a maximum of thirteen
(13) non-consecutive work or production days during a period of four (4)
non-consecutive work or production weeks in the Los Angeles metropolitan area
tentatively scheduled to commence approximately April 23, 2004, plus two
(2) free non-consecutive looping and dubbing days (collectively, “Guaranteed
Period”).  Fifty percent (50%) of the
Guaranteed Compensation shall be paid upon execution of this Agreement, and the
remaining fifty percent of the Guaranteed Compensation shall be payable on a
weekly basis, as and when Artist renders services hereunder.  If Artist’s services are used in work days
in excess of the Guaranteed Period, Producer shall pay Artist additional compensation
on a pro rata daily basis.  In addition
to the Guaranteed Compensation, subject to the following conditions, Producer
shall pay Artist the following bonus on box office receipts on a cumulative
basis:


 

















 


[1]                                  If the
United States and Canada box office receipts in the aggregate for the Picture
as reported in Daily Variety (or
a comparable publication) equal or exceed Ten Million Dollars ($10,000,000),
the distributor of the Picture shall pay Artist a bonus of Twenty-Five Thousand
Dollars ($25,000) within ten (10) business days after Daily Variety (or a comparable
publication)  reports such box
office receipts.


 


[2]                                  If the
United States and Canada box office receipts in the aggregate for the Picture
as reported in Daily Variety (or
a comparable publication) equal or exceed Fifteen Million Dollars
($15,000,000), the distributor of the Picture shall pay Artist a bonus of
Twenty-Five Thousand Dollars ($25,000) within ten (10) business days after Daily Variety (or a comparable
publication)  reports such box
office receipts.


 


[3]                                  If the
United States and Canada box office receipts in the aggregate for the Picture
as reported in Daily Variety (or
a comparable publication) equal or exceed Twenty Million Dollars ($20,000,000),
the distributor of the Picture shall pay Artist a bonus of Twenty-Five Thousand
Dollars ($25,000) within ten (10) business days after Daily Variety (or a comparable
publication)  reports such box
office receipts.


 


[4]                                  In no
event shall the aggregate amount of such bonus payments exceed Seventy-Five
Thousand Dollars ($75,000).


 


(b)                                 In
addition to the Guaranteed Compensation and any applicable box office bonuses,
Artist shall be paid an amount equal to two and one-half percent (2.5%) of one
hundred percent (100%) of “Producer’s Net Profits.”  “Producer’s Net Profits” shall be defined, accounted (including
customary audit rights) and paid on a basis no less favorable than any other
participation in “Producer’s Net Profits” payable to individuals rendering or
companies furnishing services in connection with the Picture.


 


(c)                                  Behind-the-scenes
footage, “making of” footage, and clips from the Picture and (subject to
clearance from the owners thereof) from other motion pictures for which Artist
has rendered services may be utilized in connection with such promotional films
and trailers without additional compensation to Artist, provided that the use
thereof shall be subject to Artist’s approval which shall not be unreasonably
withheld or delayed.  For each foreign
television use, supplemental market use, or other use (other than theatrical
exhibition) of the Picture which contains the results and proceeds of Artist’s
services, Artist shall be paid the minimum additional compensation, if any,
required by the SAG Agreement.


 


(d)                                 Artist
warrants and represents that Artist is eligible to be employed in the United
States in compliance with the Immigration Reform & Control Act of
1986.  As a condition precedent to
Artist’s receipt of any payment hereunder, Artist will complete the required
I-9 form and will present such form to Producer along with the requisite
documentation, as specified in the form, that Artist may be lawfully employed.


 


3.                                       CREDIT:


 


(a)                                  Artist
shall be accorded credit on a single card in the main titles of the Picture if
there are credits in the main titles (otherwise in the equivalent position in
the end titles), with such credit to read “And Angie Everhart” or “Also
Starring Angie Everhart,” as Producer may elect in Producer’s sole
discretion.  It is understood that the
main titles will appear at the beginning of the Picture, unless all credits
accorded to any individual or entity appear at the end of the Picture.  Subject to the foregoing, Producer shall
determine the size, placement, nature and all other characteristics of such
billing in Producer’s sole discretion.


 


(b)                                 Subject
to customary exclusions, Artist shall be accorded billing of the same relative
size and in the same position as hereinabove set forth in all paid
advertisements (other than group advertisements [i.e., where more than one (1) Picture is advertised] and
special advertisements [such as congratulatory advertisements and
advertisements relating to prizes, awards, or personal appearances]) issued
under the control of and paid for by Producer (but not in print advertisements
issued under the control of or paid for by the distributor) where the performer
in the role of “Christina” receives credit in connection with the Picture.  The size of Artist’s credit in such paid
print advertisements shall be not less than the size of the credit accorded the
performer in the role of “Julie” in such advertisements and no less favorable
in all respects to the credit accorded to the performer in the role of
“Christina” with respect to the Picture in such advertisements.  If the performer in the role of “Christina”
receives credit above or otherwise in conjunction with an artwork title, then
Artist


 


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shall similarly be accorded credit
above or otherwise in conjunction with the artwork title (in accordance with
the foregoing size and position requirements). 
Artist shall receive Artist’s credit in all “excluded ads” (other than
award, nomination and congratulatory “excluded ads” which name only the
person(s) receiving the award, nomination or congratulations) in which the
performer in the role of “Christina” in connection with the Picture receives
credit, in the size and position parameters set forth above.  Artist shall in any event receive Artist’s
credit whenever the billing block appears. 
Notwithstanding the foregoing, Producer shall not be obligated to accord
Artist billing in any paid advertisement in which no other cast member in the
Picture is accorded billing.


 


(c)                                  It is
understood that the billing obligations set forth in this Paragraph 3 shall not
be applicable if the results and proceeds of Artist’s services are not utilized
in connection with the Picture.  Any
inadvertent failure to comply with the billing requirements hereof shall not be
deemed a breach of this Agreement.


 


4.                                       MANNER
OF SERVICE:  Artist shall
devote Artist’s best talents, efforts and abilities in connection with Artist’s
services and shall render services in a competent, painstaking, artistic,
timely and professional manner.  Artist
shall render all services under Producer’s supervision, direction and
control.  Artist shall comply promptly
and faithfully with all of Producer’s instructions, directions, requests, rules
and regulations.  If and when Producer
requests, Artist shall report for wardrobe fittings, photo sessions,
hairdressing, make-up, production conferences and the making of stills.  Without limiting the foregoing, and subject
to Artist’s professional availability if not during the Guaranteed Period,
Artist shall be available for customary publicity activities related to the
Picture, as arranged by Producer’s press and publicity representatives subject
to the approval of Artist (which approval shall not be unreasonably withheld or
delayed).


 


5.                                       DRESSING
FACILITY; WARDROBE:  While Artist is
rendering services in connection with the Picture, Producer shall provide
Artist with a dressing facility which will be one-third (1/3) of a
“three-banger.”  Producer shall supply
“character” or “period” costumes, wardrobe and wearing apparel reasonably
necessary for the portrayal of Artist’s part.


 


6.                                       OWNERSHIP
RIGHTS AND RIGHTS TO EDIT: 
Artist grants to Producer perpetually and exclusively all rights of any
kind and character whatsoever in and to services and performances under this
Agreement and in and to the results and proceeds of those services and
performances.  Producer shall have the
perpetual and exclusive right to reproduce and license others to reproduce,
exhibit and/or distribute by any methods or combination of methods, any part or
all of Artist’s acts, poses, appearances and voice in the Picture.  Artist agrees that Artist shall have no
right, title or interest in or to the Picture or any material contained in the
Picture, 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
considered a work made for hire.  Artist
waives all moral rights of authors (droit
moral) which the laws of any jurisdiction may now or later
recognize, and the Picture may be edited, cut, modified and lengthened from
time to time as its licensees and/or assignees elect.  Furthermore, subject to Article 33 of Schedule C to the
SAG Agreement, Producer may “dub” Artist’s voice and/or use a double instead of
Artist as and when Producer may elect to the extent permitted by the SAG
Agreement.


 


7.                                       EXCERPTS;
TRAILERS:  Producer may
require Artist to perform in trailers for the Picture and may utilize film
clips or sound track of Artist’s services in the Picture in trailers in perpetuity
to promote the Picture, and Artist shall not be entitled to any additional
compensation therefor.


 


8.                                       EXHIBITION
RIGHTS:  Producer shall
have the unlimited, perpetual right throughout the world to exhibit the Picture
in whole or in part in theaters, on television, in supplemental markets (as
defined in the SAG Agreement), on the Internet, and by any and all other
methods now known or discovered in the future, subject to the terms and
conditions of this Agreement and of the SAG Agreement.  Without limiting the foregoing, Producer may
make and use and authorize others to use the Picture for audition, file, and
reference purposes, and for audience previews and other screenings.


 


9.                                       NAME
AND LIKENESS:  Artist grants to
Producer the exclusive perpetual right to use and to license the use of
Artist’s name and likeness in connection with the Picture and in the
advertising, promotion, publicity or other exploitation thereof by any means
now or hereafter known, provided, however, that in no event shall Artist’s name
and likeness be used as a direct endorsement by Artist of any product or
service without Artist’s prior written consent.


 


10.                                 ASSIGNMENT
AND LOANOUT OF SERVICES: 
Producer may assign this Agreement in whole or in part to any person,
firm, or corporation, provided, however, that no such assignment shall relieve
Producer of any of its obligations hereunder. 
Artist may not assign this Agreement or any of Artist’s rights and/or
obligations hereunder.  At any time and
from time to time Producer may lend Artist’s services hereunder to any person,
firm, or corporation.


 


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11.                                 PAY OR
PLAY:  Producer shall not
be obligated to produce, exhibit, distribute, broadcast or exploit the Picture
or to utilize any rights granted by Artist to Producer or any materials
furnished by Artist.  If Producer elects
not to utilize Artist’s services or to exhibit, distribute, or broadcast the
Picture, Producer shall have the right to discharge its obligations completely
by paying Artist the minimum Guaranteed Compensation provided for in this
Agreement.


 


12.                                 MAIL:  Any mail addressed to Artist will be
forwarded to Artist at the address stated on the first page of this Agreement.


 


13.                                 RELIEF;
REMEDIES:  Artist agrees that
the services to be furnished by Artist, and the rights and privileges granted
to Producer under this Agreement, are of a special, unique, unusual,
extraordinary and intellectual character which gives them a peculiar value, the
loss of which cannot reasonably or adequately be compensated for in damages at
an action in law, and that Artist’s failure to perform Artist’s obligations
under this Agreement will cause Producer irreparable injury and damage.  Artist, therefore, agrees that Producer
shall be entitled, as a matter of right, to injunctive relief against Artist to
prevent Artist from furnishing the same or similar services and/or granting
similar and/or conflicting rights to others. 
If Artist breaches any of Artist’s representations, warranties or
agreements under this Agreement, Producer may terminate and/or suspend this
Agreement.  If this Agreement is
suspended pursuant to this Paragraph 13, it will remain in full force and
effect, except that Artist’s services will be postponed to a date selected by
Producer and Artist will not be entitled to any compensation during any such
suspension.  This Agreement may be
terminated 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 not
preclude the exercise by Producer of any other right or remedy under this
Agreement, at law or in equity.


 


14.                                 ARTIST’S
DISABILITY:  Producer shall
have the right to suspend and/or terminate this Agreement by giving Artist
notice of suspension and/or termination if Artist suffers any mental or
physical disability, any alteration in Artist’s facial or physical appearance,
or any impairment of Artist’s voice which, in Producer’s opinion, interferes
with the proper performance of any or all of Artist’s obligations under this
Agreement, or Artist or Producer receives or is threatened with a restraining
order or injunction with respect to an actual or alleged contract or commitment
of Artist.  If this Agreement is suspended
under this Paragraph 14, Producer will have the rights with regard to
suspension stated under Paragraph 13 above.


 


15.                                 FORCE
MAJEURE:  If the production
of the Picture is prevented, suspended, postponed or discontinued by reason of
a governmental regulation or order, strike, war, civil unrest, fire, earthquake
or similar act of God or by the failure or refusal of a cast member or of the
director to perform, or by any other cause of a similar or dissimilar nature
beyond the control of Producer (“Force Majeure”), Producer shall have the
exclusive right, subject to the SAG Agreement, to suspend or terminate Artist’s
employment at any time during the continuation of such condition, and further,
Producer shall have the exclusive right to extend the Guaranteed Period for a
period of time equal to the continuation of such Force Majeure condition.


 


16.                                 MORALS:  If at any time Artist engages in conduct
without due regard to social conventions or circumstance which discredits
Artist in society or which brings Artist into public disrepute, scandal or
ridicule or which shocks, insults or offends the community or any segment of it
or which reflects unfavorably upon Artist, Producer or any sponsors, Producer
may terminate Artist’s services without any liability to Artist, suspend
Artist’s services for a maximum of thirty (30) business days, and/or delete
credit and/or billing required to be given to Artist under this Agreement for
Artist’s services.  If Artist’s services
are suspended, this Agreement shall remain in force, except that Artist’s
services shall be postponed to a date selected by Producer and Artist shall not
be entitled to any compensation during any suspension.


 


17.                                 WARRANTIES:  Artist agrees, represents, and warrants
that:  Artist has the right to enter into
this Agreement and to grant the rights granted to Producer; Artist neither has
nor will make any contractual or other commitments which would conflict or
interfere with the rights granted Producer; Artist is a member of and will
remain a member of the Screen Actors Guild; and if Artist provides any ideas,
creations, literary, musical or artistic material (collectively and
individually referred to as “artistic material”), the artistic material will be
Artist’s own and original creation except for matters in the public domain and
the use of the artistic material will not infringe upon or violate any rights
of any kind or nature whatsoever of any person or entity.


 


18.                                 INDEMNITIES:  Artist agrees to defend, indemnify and hold
harmless Producer, distributor of the Picture (the “distributor”), the
distributor’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


 


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limited to, reasonable attorneys’ fees
arising out of (a) any breach or alleged breach of any representation, warranty
or agreement made by Artist in this Agreement; (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 the production, rehearsal, recording or broadcasting
of the Picture, other than acts done or words spoken by Artist at Producer’s
direction.  Producer’s approval of
material supplied by Artist shall not constitute a waiver of this
indemnity.  Producer will indemnify and
hold Artist harmless from and against any and all claims, damages, liabilities,
costs and expenses, including reasonable attorneys’ fees arising out of the use
of any materials that Producer has supplied to Artist in the Picture.  The indemnitee shall give the indemnitor
prompt written notice of any claim or lawsuit to which the indemnification
agreement in this Paragraph 18 relates. 
The indemnitee shall have the right to participate in the defense and/or
settlement of any lawsuit and/or claim for which indemnitee is being
indemnified.  If the indemnitee settles
any claim, demand or action for which indemnity is provided, without the prior
written consent of the indemnitor, the indemnitor shall be released from any
and all liability under the indemnity. 
When Artist’s indemnity of Producer applies, Producer may elect to
employ Producer’s own attorney(s) instead of using the services of Artist’s attorney(s)
but Artist’s indemnity shall still apply.


 


19.                                 PUBLICITY:  Artist shall not authorize the publishing
of, or furnish material relating to the Picture, or Artist’s services in
connection with the Picture, without the prior written consent of Producer.


 


20.                                 UNION
COMPLIANCE:  The SAG Agreement
shall govern the terms and conditions of Artist’s services.  If there is any inconsistency between this
Agreement and the SAG Agreement, the SAG Agreement shall prevail and this
Agreement shall be deemed modified to the minimum extent necessary to resolve
the conflict and shall continue in full force and effect.  Producer shall be entitled to the maximum
rights, privileges, and benefits conferred upon or permitted to Producer under
the SAG Agreement for the minimum payments required, except as otherwise
specifically provided in this Agreement.


 


21.                                 ARBITRATION
OF DISPUTES:  If any dispute or
controversy arises between the parties hereto with reference to this Agreement,
or the employment herein provided for, such dispute or controversy shall be
settled and determined by conciliation and arbitration in accordance with the
conciliation and arbitration provisions of the SAG Agreement, and such
provisions are hereby referred to and by such reference incorporated herein and
made a part of this Agreement with the same effect as though the same were set
forth herein in detail.


 


22.                                 PERSONAL
APPEARANCES:  When Producer so
requests, and subject to Artist’s availability, Artist shall make personal
appearances at such places and on such occasions as Producer or the distributor
of the Picture may determine in connection with the Picture or any distributor
sponsor of the Picture, including without limitation promotional activities,
interviews, and television guest appearances. 
In connection with such appearances, if any, Producer shall provide
Artist with transportation and a per diem to be negotiated in good faith.


 


23.                                 ENFORCEABILITY
OF CONTRACT:  If a court or
other tribunal having jurisdiction determines any provision of this Agreement
to be void or unenforceable, the provision in question shall in no way affect
any other provision of this Agreement, and this Agreement shall continue in
full force and effect.  Neither the
expiration of this Agreement nor any termination or suspension of it shall
relieve 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 of
a breach of any obligation imposed by this Agreement or of a breach of any
representation or warranty made under this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or of a different
obligation, representation or warranty. 
Failure on the part of any party to complain of any failure to act of
the other party or to declare the other party in default, irrespective of how
long the failure continues, shall not constitute a waiver by the party of its
rights under this Agreement.


 


24.                                 INSURANCE:  Producer may secure life, health, accident,
cast or other insurance covering Artist, or Artist and others, and Artist shall
have no right, title or interest in or to such insurance.  As soon as possible after Artist’s execution
of this Agreement, Artist shall submit to usual and customary medical
examinations for Producer’s insurance purposes (including, without limitation,
self-insurance) and will sign such applications and/or other documents
reasonably required.  Artist may have
Artist’s own physician present at any such examination at Artist’s own
expense.  Producer may terminate this
Agreement without any further obligation or liability of any kind to Artist
(other than payment to Artist of any unpaid compensation under this Agreement which
has, as of the date of such termination, accrued and been earned by Artist in
accordance with the terms and conditions of this Agreement) if: (i) any such
examination establishes a substantial doubt as to Artist’s physical ability to
perform and/or complete Artist’s services hereunder; or (ii) if cast insurance
covering Artist cannot be obtained for normal premiums and without exclusions
(other than minor and customary exclusions), provided, however, that if Artist
pays the amount of the excess premiums above the customary premiums for cast


 


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insurance, Producer will not terminate
Artist for failure to qualify for customary cast insurance premiums.  From the date two (2) weeks before the
scheduled start date of principal photography until completion of all services
required of Artist hereunder, Artist will not ride in any aircraft, other than
as a passenger on a scheduled flight of a United States or major international
air carrier maintaining regularly published schedules, or engage in any extrahazardous
activity without Producer’s written consent in each case.


 


25.                                 NOTICES:  All notices which Producer is required or
may desire to serve upon Artist in connection with this Agreement may be served
by delivering the notice to Artist personally in writing or orally or by
sending the notice to Artist by mail, facsimile or telegraph addressed to
Artist at the address specified above or at any other address which Artist has
designated in writing.  Artist may serve
any notice which Artist may be required or may desire to serve upon Producer by
sending the notice to Producer at the address above or at any other address
which Producer has designated in writing. 
The date of mailing of any notice (whether sent by registered mail, with
or 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.


 


26.                                 HEADINGS:  The headings of this Agreement are merely
for convenience and shall have no legal effect or significance.


 


27.                                 GOVERNING
LAW; COMPLETE UNDERSTANDING: 
This Agreement shall be construed and enforced in accordance with the
laws of the State of California applicable to agreements made and to be
performed wholly within the State of California regardless of where performance
of this Agreement may occur.  This
Agreement sets forth the complete understanding between Artist and Producer
with respect to the subject matter hereof, and all prior agreements, whether
written or oral, have been merged in this Agreement.  This Agreement may only be modified by a written instrument which
the 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 are not expressly contained in
this Agreement.


 


ACCEPTED AND AGREED:


 


	
   

  	
  OUT OF THE BLUE
  PRODUCTIONS, LLC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /S/ANGIE EVERHART

  	
   

  	
  By:

  	
  /S/GRAY FREDERICKSON

  	
   

  
	
  ANGIE
  EVERHART

  	
   

  	
  Its: 

  	
   

  	
   

  



 


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