EXHIBIT 10.6


 


OUT OF THE BLUE
PRODUCTIONS, LLC.


9300 Wilshire Boulevard, Suite
508


Beverly Hills, California 90212


 


As of February 17, 2004


As Revised April 15, 2004


 


Five Timz Productions


c/o Daisy Wu/Jack Gilardi


International
Creative Management


8942 Wilshire
Boulevard


Beverly Hills, California 90211


 


Re:                               “CLOUD 9” (Working
Title) (a/k/a “Out of the Blue”)


Five Timz
Productions f/s/o D.L. Hughley
as Performer


 


Ladies and Gentlemen:


 


The following will confirm the
agreement between FIVE TIMZ PRODUCTIONS
(“you”) and OUT OF THE BLUE PRODUCTIONS, LLC.
(“we” or “us”) with respect to your furnishing to us the services of D.L. Hughley (the “Employee”) as herein
provided:


 


1.                                       You
agree to furnish to us the services of Artist upon all of the terms and
conditions set forth in this letter agreement and in the agreement attached
hereto as Exhibit “A” and incorporated herein by this reference (both of which
shall together be referred to herein as the “Agreement”).


 


2.                                       Notwithstanding
the fact that Exhibit “A” is drafted in the form of an agreement between Artist
and us, it is understood and agreed that you are supplying Artist’s services to
us and that we are utilizing said services in accordance with the terms and
provisions of this Agreement.  In
connection with the above-referenced motion picture, you hereby assign to us
all of your rights in Artist’s services and the results and proceeds thereof
(including all copyrights therein and all renewals and extensions thereof, if
any), which shall be considered a work for hire.  We shall have all of the rights to Artist’s services and the
results and proceeds thereof to the same extent as if we had employed Artist
directly under Exhibit “A.”


 


3.                                       You
hereby represent and warrant that (a) you are a duly organized and existing corporation
and are presently in good standing under the law of the jurisdiction of your
incorporation and all other jurisdictions in which you transact business, (b)
you have a valid, binding and subsisting written agreement with Artist pursuant
to which you are entitled to lend the exclusive services of Artist and all of
the results and proceeds thereof which are or will be required under the
Agreement, (c) you have the right to enter into the Agreement and to grant the
rights, furnish the services and make the representations and warranties set
forth herein, (d) you have not made and will not make any grant or assignment
which will conflict with or impair the rights and privileges granted to us
hereunder, and (e) you are a bona fide corporate business entity established
for a valid business purpose within the meaning of the tax laws of the United
States and not a mere sham, conduit or agent for Artist.  You further acknowledge that the foregoing
representations and warranties will be relied upon by us for the purpose of
determining 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 if
withholdings are not made from said payments, and if thereafter it is
determined that such withholdings were legally required, you and Artist will
indemnify, defend and hold us harmless from and against any and all losses,
costs, damages and expenses relating thereto.


 


4.                                       On
condition that neither Artist nor you is in material breach under this Agreement,
we shall pay to you, and not to Artist, as full consideration for all services
to be rendered and rights granted under this Agreement, all compensation
payable to Artist under Exhibit “A.”  If
said compensation is at least Six Thousand Dollars ($6,000) or such other
minimum applicable amount as is specified in Section 3423 of the California
Civil Code and Section 526 of the California Code of Civil Procedure, you agree
to compensate 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 Section
3423 of the California Civil Code and Section 526 of the California Code of
Civil Procedure.  If California law
shall be changed to provide for different minimum compensation as a
prerequisite to obtaining injunctive relief, the references in the preceding
sentence to Six Thousand Dollars ($6,000) or such other minimum applicable
amount as is specified in Section 3423 of the California Civil 


 

















 


Code and Section 526 of the
California Code of Civil Procedure shall be deemed to be references to such
different minimum compensation.


 


5.                                       Subject
to Paragraph 6 hereof, you hereby agree to discharge us from all obligations
imposed on employers including, without limitation, the payment of Artist’s
compensation, the withholding and payment of taxes, payments relating to
unemployment compensation or insurance, FICA, workers’ compensation, and
disability pensions, and the making of all payments required to be made under
any applicable collective bargaining agreement by reason of Artist’s services
rendered pursuant hereto.  You agree to
defend, indemnify and hold us harmless from and against any and all judgments,
liabilities, penalties, interest, damages, costs, expenses and attorneys’ fees which
we may incur by reason of your failure to pay any compensation, tax, or other
contribution required to be paid in respect of Artist’s services hereunder.


 


6.                                       We
shall make all payments to pension, health or welfare funds required pursuant
to any applicable collective bargaining agreement by reason of Artist’s
services hereunder, provided, however, that (a) such payment shall not exceed
the amounts which we would have been required to make had we employed Artist
directly and (b) such payment shall not include Artist’s share of any such
payment.


 


7.                                       In the
event 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 you
and/or against Artist in our discretion, and we shall have all rights and
remedies against Artist which we would have had if Artist had been directly
engaged by us.  We shall not be required
first to resort to or exhaust any rights or remedies which we may have against
you before exercising our rights and remedies against Artist.


 


8.                                       If you
or your successors in interest should be dissolved, should cease to remain
qualified to do business as a corporation for any reason, or should otherwise
cease to exist, or for any reason whatsoever should fail, refuse or neglect to
comply with the terms and conditions of this Agreement, Artist shall at our
election be engaged directly by us for the balance of the term of this
Agreement upon the terms and conditions contained in Exhibit “A.”


 


9.                                       Any
and all notices to be given hereunder shall be given to the parties hereto at
the address set forth above, provided that a copy of any notice to us shall be
transmitted to us by mail, facsimile, or telegraph to Out of the Blue
Productions, LLC, 9300 Wilshire Boulevard, Suite 508, Beverly Hills, California
90212, Attention:  Gray Frederickson,
and Out of the Blue Productions, LLC, c/o Robert M. Angel, A Professional
Corporation, 939 North Hill Avenue, Pasadena, California 91104, and to any
other address which we may designate at a later time, and a courtesy copy of
any notice to you will be sent to Hirsch Jackoway Tyerman Wertheimer Austen
Mandelbaum & Morris, 1888 Century Park East, 18th Floor, Los Angeles,
California 90067-1722, Attention:  David
J. Matlof, Esq., Fax (310) 553-5036 (it being agreed that the inadvertent
failure to send any such courtesy copy of a notice shall not be deemed a breach
of this Agreement).  The date of mailing
of any notice (whether sent by registered mail, with or without return receipt
requested, certified mail, airmail and/or ordinary mail) or the date the notice
is transmitted from the sender’s facsimile 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.                                 Notwithstanding
that you are furnishing Artist’s services to us, for the purposes of any and
all applicable Workers’ Compensation statutes, an employment relationship
exists between Artist and us such that we are Artist’s special employer and you
are Artist’s general employer (as the terms “Special Employer” and “General
Employer” are understood for purposes of Workers’ Compensation statutes).  The rights and remedies, if any, of Artist
and Artist’s heirs, executors, administrators, successors and assigns, against
us and/or our officers, directors, agents, employees, successors, assigns or
licenses, by reason of injury, illness, disability or death arising out of or
occurring in the course of Artist’s rendition of services hereunder shall be
governed by and limited to those provided under such Workers’ Compensation
statutes, and neither we, nor our officers, directors, agents, employees,
successors, assigns or licensees, shall have any other obligation or liability
by reason of any such injury, illness, disability or death.  If the applicability of any Workers’
Compensation statutes to the engagement of Artist’s services hereunder is
dependent upon, or affected by an election on the part of you or Artist, such
election is hereby made by each of you in favor of such application.


 


11.                                 This
Agreement shall be construed and enforced in accordance with the laws of the
State of California.  You and we consent
to the jurisdiction of the courts of the State of California and the courts of
the United States located in the State of California in connection with any
lawsuit arising out of or relating hereto.


 


Please
indicate your agreement to the foregoing by signing in the space provided
below.


 


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  Very truly
  yours,

  
	
   

  	
  OUT OF THE BLUE
  PRODUCTIONS, LLC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /S/GRAY FREDERICKSON

  	
   

  
	
  ACCEPTED AND AGREED:

  	
   

  	
   

  
	
  FIVE TIMZ PRODUCTIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/D.L. HUGHLEY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: President & CEO

  	
   

  	
   

  
							



 


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As of February 17, 2004


As Revised April 15, 2004


 


OUT OF THE BLUE PRODUCTIONS, LLC.


9300 Wilshire Boulevard, Suite 508


Beverly Hills, California 90212


 


Gentlemen:


 


I have read the attached letter
agreement (the “Agreement”) dated as of February 17, 2004, as revised April 15,
2004, from you to Five Timz Productions (“Lender”) and, as an inducement to you
to enter into the Agreement, I hereby represent, warrant and agree as follows:


 


1.                                       I am
familiar with all of the terms and conditions of the Agreement and I hereby
consent to the execution thereof.  I
shall perform and comply with all of the terms, conditions and obligations of
the Agreement as if I had executed it directly as an individual, even if the
employment agreement between me and Lender should hereafter expired, terminate
or be suspended.  I, as an individual,
hereby join in and confirm all grants, representations, warranties and
agreements made by Lender under the Agreement.


 


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


 


3.                                       In the
event 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 remedies
against Lender before exercising your rights and remedies against me.


 


4.                                       If
Lender or its successors in interest should be dissolved or should otherwise
cease 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, at
your election, be deemed to be employed directly by you for the balance of the
term of the Agreement upon the terms and conditions set forth in Exhibit “A”.


 


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


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Very truly yours,

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /S/D.L. HUGHLEY

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  D.L. HUGHLEY

  	
   

  



 

















 


EXHIBIT
“A”


 


SAG MOTION PICTURE CONTRACT – WEEKLY
PERFORMER


 


AGREEMENT made as of February 17, 2004,
as revised April 15, 2004, between OUT OF THE
BLUE PRODUCTIONS, LLC 
(“Producer”), 9300 Wilshire Boulevard, Suite 508, Beverly Hills,
California 90212, Attention:  Gray
Frederickson, and D.L. HUGHLEY
(“Artist”), c/o International Creative Management, 8942 Wilshire Boulevard, 5th
Floor, Beverly Hills, California 90211, Attention:  Daisy Wu/Jack Gilardi (the “Agreement”).


 


Re:                               “CLOUD 9” (Working
Title) (a/k/a “Out of the Blue”)


 


This will confirm the pay-or-play
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.                                         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


 


II.                                     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), provided that Artist may pay any excess premiums
and such condition shall be deemed satisfied as of the first day of Artist’s
services during principal photography of the Picture.


 


1.                                       EMPLOYMENT:  Producer hereby employs Artist on a
pay-or-play basis and Artist agrees to perform services as a performer in the
role of “Tenspot” in the feature length theatrical motion picture currently
entitled “CLOUD 9”
(a/k/a “Out of the Blue”) (the
“Picture”).  Picture principal
photography is currently scheduled to commence on or about April 15, 2004.  The start date for Artist’s services is
currently contemplated to be approximately April 19, 2004 (i.e., not earlier
than April 12, 2004 and not later than April 26, 2004).  It is understood that Artist may be required
to 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)                                  Upon
condition that Artist faithfully performs all of the material 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 or incapacity, or the occurrence of an event
of force majeure for which all other cast members are likewise suspended or
terminated, Producer shall pay Artist the sum of One Hundred Thousand Dollars
($100,000) (“Guaranteed Compensation”), which amount shall include payment for
Artist’s services for [i] four (4) work or production weeks in the Los Angeles
metropolitan area tentatively scheduled to commence approximately April 19,
2004 (i.e., not earlier than April 12, 2004 and not later than April 26, 2004),
[ii] one (1) consecutive free week, and [iii] subject to Artist’s professional
availability, three (3) non-consecutive looping, dubbing, retakes, added scenes
and re-shooting days (collectively, “Guaranteed Period”).  Producer shall deposit the Guaranteed
Compensation in an escrow account with Artist’s agents, International Creative
Management, not later than the commencement of Artist’s services in principal
photography in accordance with mutually approved escrow instructions, and the
Guaranteed Compensation shall be payable from such escrow account 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 for other than looping, dubbing, retakes, added scenes and
re-shooting, Producer shall pay Artist additional compensation on a pro rata
daily basis (based on four [4] five [5]-day weeks).  In addition to the Guaranteed Compensation, subject to Artist not
being in material breach of Artist’s obligations hereunder and appearing
recognizably in the Picture as initially released commercially, Artist shall be
entitled to receive contingent compensation of two and one-half percent (2.5%)
of one hundred percent (100%) of Producer’s share of net profits from the
exploitation of the Picture, with no other participant in Producer’s net
profits from the Picture to receive a more favorable definition of “net
profits” and such definition to be negotiated in good faith within Producer’s
customary parameters for artists of comparable stature in the motion picture
industry to Artist.


 

















 


(b)                                 To the
extent permitted by the 2001 Screen Actors Guild Basic Agreement (“SAG
Agreement”), including any applicable Schedule thereof, and on no less
favorable a basis as is applicable to the other three (3) lead performers in
the Picture, the Guaranteed Compensation shall constitute a pre-payment for all
additional sums payable pursuant 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 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 written
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.


 


(c)                                  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 on a separate card in third star billing below the title 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 no member of the
cast to receive a larger credit and no other performer to receive credit above
the title.  Subject to the previous
sentence, 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 the billing block and in
all paid print 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 in which any other performer
receives credit in connection with the Picture.  Notwithstanding the foregoing, [1] 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, and [2] Producer shall use
Artist’s name, photograph or likeness in any paid print advertisement or
“excluded ad” if the name, photograph or likeness, as applicable, of any other
member of the principal cast of the Picture appears in the applicable print
advertisement or “excluded ad,” unless such excluded ad relates solely to the
other cast member (such as a congratulatory ad or an ad relating to a personal
appearance of such cast member).  The
foregoing credit obligations shall apply to Producer’s use of Artist’s name (as
opposed to Artist’s likeness) in the billing block of any advertisements,
publicity (e.g., one-sheets), or home video packaging related to the Picture.


 


(c)                                  Producer
shall have no obligation to accord Artist billing in trailers relating to the
Picture, provided, however, that Producer shall have the right, exercisable in
Producer’s sole discretion, to accord any such billing.


 


(d)                                 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; provided, however, that in the event of any
failure or omission by Producer (or any third party) to accord proper credit,
Producer shall, if Artist notifies Producer in writing of such failure or
omission (specifying in such notice all information in Artist’s possession
relative thereto), (i) exert its commercially reasonable best efforts to
correct such failure or omission if such failure or omission relates to a credit
accorded by Producer, it being understood that any such correction shall be
made only on a prospective basis, and/or (ii) exert its commercially reasonable
best efforts to notify any applicable third party of their failure or omission
of such credit.  Producer shall use
reasonable efforts to notify third parties of the credit provisions of this
Agreement and to attempt to bind such third parties contractually to comply
therewith.


 


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, Artist shall
be available for a photography session at Producer’s designated photo gallery
before, during, or after production, for up to five (5) in-person interviews
and two (2) half-days of telephone interviews before, during, or after 


 


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production, as arranged by
Producer’s press and publicity representatives subject to the approval of
Artist (which approval shall not be unreasonably withheld or delayed) and to
Artist’s professional availability.


 


5.                                       DRESSING
FACILITY; CELLULAR TELEPHONE; LOCAL TRANSPORTATION; WARDROBE:  While Artist is rendering services in
connection with the Picture, Producer shall provide Artist with (a) a dressing
facility which will be not less than one-third (1/3) of a three banger and no
less favorable than the dressing facility accorded to other cast members
receiving a dressing facility in a three banger or comparable or smaller
dressing facility, (b) a cellular telephone for Artist’s exclusive use, and (c)
reasonable first class local transportation to and from Artist’s residence and
the Picture locations which shall be no less favorable than the local
transportation furnished to any other cast member receiving local transportation
in connection with the Picture. 
Inasmuch as all locations to be used for the Picture will be in the Los
Angeles area, there will be no air transportation, hotel accommodations or per
diem required for Artist’s services, but if a distant location is utilized
which is more than fifty (50) miles from Los Angeles, Producer and Artist shall
negotiate in good faith with respect to any necessary travel, accommodations
and per diem applicable to any such distant location.  Producer shall supply “character” or “period” costumes, modern
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 in connection with the Picture only.  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 affording
Artist the first opportunity to dub Artist’s performance in the English
language on a minimum of two (2) weeks advance notice, 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 during principal
photography 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,
BIOGRAPHY AND LIKENESS:


 


(a)                                  Artist
grants to Producer the exclusive perpetual right to use and to license the use
of Artist’s name and likeness (subject to Paragraph 9(b) below) 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.


 


(b)                                 Artist
shall be entitled to approve the still photographs and likenesses of Artist
used in the advertising and publicity materials (or any other permitted uses of
photographs and likenesses) issued by or under the control of Producer in
accordance with and subject to the following:


 


[1]                                  Still
Approval.  Producer shall
submit to 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/or
publicity for the Picture.  Artist shall
approve at least fifty percent (50%) of the Stills within five (5) business
days after Artist’s receipt thereof, or such shorter period (but not less than
forty-eight [48] hours) as Producer may require due to marketing
exigencies.  Artist’s failure to notify
Producer of Artist’s disapproval of any Stills received by Artist within such
five (5) business day (or shorter, if applicable) period shall be deemed to
constitute Artist’s approval of the Stills submitted; provided, however, that
if Artist approves fewer than fifty percent (50%) of the Stills so submitted,
Producer may only deem 


 


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


 


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


 


(c)                                  The
use of Artist’s name and/or likeness in connection with merchandising,
commercial tie-ins or tie-ups, or soundtrack shall be subject to Artist’s
written approval (which shall not be unreasonably withheld or delayed) in each
instance.  Producer agrees not to utilize
Artist’s name or likeness in connection with merchandising or commercial
tie-ins without Artist’s consent, it being agreed, however, that Artist
consents to the use of Artist’s name in the billing block.  If any use of Artist’s name and likeness is
in connection with any merchandising or commercial tie-in or tie-up activities
or the soundtrack, Producer shall pay to Artist five percent (5%) of one
hundred percent (100%) of any money or financial consideration (after deducting
Producer’s expenses in connection therewith) which Producer or any parent,
subsidiary, or officer of Producer derives from such use.  No royalty will be payable solely as a
result of Artist’s name appearing in a list of cast credits in a billing block
on any merchandising or commercial tie-ins or tie-ups.


 


(d)                                 Biography: Not
later than thirty (10) days after commencement of Artist’s services hereunder,
Artist shall provide Producer with an approved biography for the use by
Producer and its licensees, successors and assigns in connection with credits,
advertising, publicity and exploitational material relating to the Picture and
Artist’s services therein, provided that this shall not limit Producer’s right
to refer to Artist’s prior entertainment industry credits.  If Artist does not provide such biography in
a timely manner after a written request from Producer, Producer may utilize its
own biography of Artist.


 


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.


 


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 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 


 


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breaches any of Artist’s
representations, warranties or agreements under this Agreement and does not
cure such breach within forty-eight hours (48) hours after notice thereof,
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 during production Artist suffers any
mental or physical disability, any material alteration in Artist’s facial or
physical appearance, or any impairment of Artist’s voice which, in Producer’s
reasonable opinion, interferes with the proper performance of any or all of
Artist’s obligations under this Agreement, or Artist or Producer receives or 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.  Producer shall not selectively suspend or
terminate Artist for a Force Majeure event. 
If a suspension of Artist for Force Majeure continues for a minimum of
eight (8) weeks, Artist may terminate this Agreement by written notice to
Producer unless Producer reinstates Artist with pay within one (1) week after
receipt of such proposed termination notice from Artist.


 


16.                                 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.  Producer represents and warrants that
Producer is a signatory to the SAG Agreement.


 


17.                                 CONSULTATION
REGARDING OTHER PERSONNEL: 
Producer shall meaningfully consult with Artist regarding the engagement
of hairdresser, makeup artist and wardrobe personnel for Artist and Artist’s
stand-in to be utilized for the Picture, and use good faith efforts to attempt
to incorporate Artist’s input with regard to such personnel within the time
limits of pre-production exigencies and the parameters of the Picture budget;
provided, however, in the event of any disagreement with respect to the subject
matter of such consultations, Producer’s determination shall be final and
controlling and no casual, inadvertent or unintentional failure by Producer to
consult with Artist hereunder (by reason of shortage of time or otherwise) will
be deemed to be a breach of this Agreement by Producer.  Artist acknowledges that such consultations
have occurred and, notwithstanding the foregoing, Producer shall have all
business controls in connection with the development, production and
exploitation of the PIcture.


 


18.                                 INDEMNITIES:  Artist agrees to 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 limited to, reasonable
attorneys’ fees arising out of (a) any 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 or its employees supplies to Artist in the Picture, and
the development, production and exploitation of 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 


 


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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, including without
limitation promotional activities, interviews, and television guest
appearances.  Artist shall be provided
with reasonable first class travel (if used and if available) if necessary in
connection with any such personal appearance and all out-of-pocket expenses
reasonably incurred in connection with such appearances.


 


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.  Prior to commencement of
principal photography 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 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.  Artist shall be covered
under Producer’s policies of errors and omissions and general liability
insurance (if any) for the Picture, subject to all of the terms and limitations
set forth in such policies; provided, however, that Producer shall have no
obligation to obtain or maintain any such policy or policies.


 


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 


 


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mail, facsimile or telegraph
addressed to Artist at the address specified above, with a courtesy copy to
Hirsch Jackoway Tyerman Wertheimer Austen Mandelbaum & Morris, 1888 Century
Park East, 18th Floor, Los Angeles, California 90067-1722, Attention:  David J. Matlof, Esq., Fax (310) 553-5036
(it being agreed that the inadvertent failure to send any such courtesy copy of
a notice shall not be deemed a breach of this Agreement), 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/D.L. HUGHLEY

  	
   

  	
  By: 

  	
  /S/GRAY FREDERICKSON

  	
   

  
	
  D.L. HUGHLEY

  	
  Its: 

  	
   

  	
   

  
					



 


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