EXHIBIT
10.8


 


OUT OF THE BLUE
PRODUCTIONS, LLC.


9300 Wilshire Boulevard, Suite
508


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” (Working
Title) (a/k/a “Out of the Blue”)


Clematis
Productions, Inc. f/s/o Burt Reynolds as Performer


 


Ladies and Gentlemen:


 


The following will confirm the
agreement 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 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.  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 exclusively entitled to all of
the 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, (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, and (f) you are or will become, and will remain throughout the term of
this Agreement, a signatory to any applicable guild or union agreement.  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 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 


 


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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.  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:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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 letter
agreement (the “Agreement”) dated as of February 20, 2004 from you to Clematis
Productions, Inc. (“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/BURT REYNOLDS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  BURT REYNOLDS

  	
   

  



 

















 


EXHIBIT
“A”


 


SAG
MOTION PICTURE CONTRACT – WEEKLY PERFORMER


 


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


 


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


 


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 of “Billy Cole” 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 not earlier than April 1, 2004 and not later than April 29, 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 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 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 15, 2004 (i.e., not earlier than April 1, 2004 and not
later than April 29, 2004), [ii] one (1) 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”).  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 for other than looping, dubbing, retakes,
added scenes and re-shooting, Producer shall pay Artist additional compensation
on a pro rata daily basis at the rate of Five Thousand Dollars ($5,000) per
day.


 


(b)                                 The
Guaranteed Compensation shall be a recoupable, non-reimbursable advance against
ten percent (10%) of one hundred percent (100%) of Producer’s gross receipts at
actual break-even (i.e., after Producer fully recoups all actual, direct,
out-of-pocket “negative” costs of production of the Picture, plus interest
thereon at a rate equal to the prime rate plus two percent [2%] per annum, but
not more than five percent [5%] per annum, and excluding overhead, completion
bond charges, and any unexpended budgetary contingency).  Producer shall direct the distributor of the
Picture to pay any such contingent compensation directly to Artist.  The definition of such contingent
compensation (including frequency of statements, timeliness of payments, audit
rights, etc.) which applies to Artist shall be the same as the definition
applicable to Producer with respect to the Picture.


 

















 


(c)                                  To the
extent permitted by the 2001 Screen Actors Guild Basic Agreement (“SAG
Agreement”), including any applicable Schedule thereof, 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 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.                                       SCREEN
CREDIT:


 


(a)                                  Artist
shall 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 titles
of the Picture if there are credits in the main titles (otherwise in the
equivalent position in the end titles). 
The size of such credit shall be no smaller than the size of any other
performer in the Picture who receives credit below the main title.  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 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 (but not in print advertisements
issued under the control of or paid for by the distributor) where 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, [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 primarily
to the other cast member (such as a congratulatory ad or an ad relating to a
personal appearance of such cat member), and [3] the foregoing limitations
shall not 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 other paid advertising or
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. 
Producer shall exert its commercially reasonable best efforts to
obligate third parties to comply with the foregoing provisions of this
Paragraph 3.


 


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 reasonable instructions, directions, requests, rules and
regulations.  If and when Producer
requests, and subject to Artist’s professional availability and to the approval
of 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 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
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).


 


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5.                                       DRESSING
FACILITY; TRANSPORTATION; LOCAL TRANSPORTATION; PER DIEM; HAIRPIECES; MAKE-UP
& HAIRDRESSER PERSONNEL; WARDROBE:  While Artist is rendering services in connection with the
Picture, Producer shall provide Artist with (a) a first class dressing facility
(with first class amenities) which will be not less than a trailer (with no
other performer in the Picture to receive a superior dressing facilities or
amenities [other than any performer with special needs such as disability or
maternity]), (b) one (1) first class round trip airfare (Florida – Los Angeles
– Florida), (c) local transportation to and from Artist’s Los Angeles area
residence and the Picture locations for the exclusive use of Artist, (d) a
weekly allowance of Two Thousand Dollars ($2,000) for all of Artist’s expenses
(including accommodations), (e) two (2) hairpieces during the Guaranteed
Period, and (f) the first priority use of Artist’s pre-approved hairdresser and
make-up person (it being agreed that such persons will be available to render
their respective services for other cast members when Artist does not require
their services) who will be employed at the rate of Two Hundred Seventy-Five
Dollars ($275) per person per fourteen (14) hour work day, plus an additional
Fifty Dollars ($50) per person per day for box rental.  Producer shall supply “character” or
“period” costumes.  Artist may retain
any non-rented wardrobe which Artist utilizes in Artist’s performance
(excluding any borrowed wardrobe items).


 


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.  Producer will not
use Artist’s performance in the Picture in any other motion picture.  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, Producer will
afford Artist the first opportunity to perform any English language dubbing of
Artist’s performance, but if Artist is not available when Producer requires
Artist to perform such dubbing services, 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. 
Producer agrees not to use bloopers or out-takes of Artist’s performance
without Artist’s consent (which consent shall not be unreasonably withheld or
delayed).


 


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:


 


(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.  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.


 


10.                                 ASSIGNMENT
AND LOANOUT OF SERVICES: 
Producer shall have the right to assign this Agreement and/or any or all
of Producer’s rights hereunder and to delegate any or all of Producer’s obligations.  Producer shall be relieved of all
obligations hereunder in the event of such assignment if such assignment is to
a “major” motion picture studio or subsidiary thereof (e.g., Miramax,
Dimension, New Line), or USA television network or USA cable network or party
with similar financial resources which assumes such obligations in writing, or
if the distributor executes an assumption agreement which the Screen Actors
Guild approves and which complies with the applicable provisions of the SAG
Agreement.  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 minimum Guaranteed Compensation provided for in this
Agreement.


 


12.                                 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 12, 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.


 


13.                                 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 


 


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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 13, Producer will have the rights with regard to
suspension stated under Paragraph 12 above.


 


14.                                 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.  If Producer suspends Artist’s employment for
more than eight (8) weeks for a Force Majeure event, Artist may terminate this
Agreement by written notice to Producer unless Producer reinstates Artist with
pay within one (1) week after Producer receives such termination notice from
Artist.  Producer will not suspend
Artist’s employment unless all other principal performers in the Picture are
likewise suspended for the same Force Majeure event.  Producer shall not suspend Artist’s employment more than once for
the same Force Majeure event.  Artist’s
failure or refusal to cross a picket line shall not be deemed an event of force
majeure or grounds for suspension or termination.


 


15.                                   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.


 


16.                                 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 limited to,
reasonable outside 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.  Except where Artist’s indemnity as set forth
in the first sentence of this Paragraph 16 applies, Producer will defend,
indemnify and hold Artist and Clematis Productions, Inc. harmless from and
against any and all claims, damages, liabilities, costs and expenses, including
reasonable outside attorneys’ fees arising out of the use of any materials that
Producer has supplied to Artist in the Picture, Producer’s uncured material
breach of this Agreement, or the development, production, exhibition,
broadcast, distribution, advertising, promotion, publicity, or exploitation of
the Picture or any element thereof.  The
indemnitee shall give the indemnitor prompt written notice of any claim or
lawsuit to which the indemnification agreement in this Paragraph 16
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.


 


17.                                 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,
provided that Artist may issue personal publicity which makes incidental, non-derogatory
mention of Producer, the Picture, and/or the distributor of the Picture.  Subject to Artist’s availability, Producer
agrees to consult meaningfully with Artist regarding all publicity or
press-related materials which relate to the Picture and/or Artist’s services
therein.


 


18.                                 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.


 


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19.                                 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.


 


20.                                 PERSONAL
APPEARANCES:  When Producer so
requests, and subject to Artist’s availability and reasonable approval (which
approval shall not be unreasonably withheld or delayed), 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.  Producer or its successor-in-interest shall
pay for all reasonable first class pre-approved out-of-pocket expenses
reasonably incurred in connection with such appearances, including
transportation expenses.


 


21.                                 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.


 


22.                                 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
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 and Clematis Productions, Inc. 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 maintain
any such policy or policies for any specific period of time.


 


23.                                 FREE
DVD AND VHS CASSETTE: 
Provided that Artist is not in material default, Producer shall furnish
to Artist, at Artist’s request and at Producer’s cost, one (1) DVD copy and
one-half inch (1⁄2”) VHS videocassette copy of the Picture if and when the same
is manufactured and commercially available to the general public.  Artist shall use said DVD copy and videocassette
copy solely for personal, library and reference purposes, and in no event shall
said DVD copy and videocassette copy be duplicated or used for any commercial
purpose or for profit, including, but not limited to, the making of public
exhibitions of the Picture.  In
addition, if Producer so elects, Artist will execute Producer’s customary
distributor’s “private use” letter.


 


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


 


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


 


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


 


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


 


27.                                 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, with a copy to Thomas Patrick Rowan, A
Professional Corporation, 11601 Wilshire Boulevard, Suite 2200, Los Angeles,
California 90025, Fax (310) 479-5218, 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.


 


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


 


29.                                 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/BURT REYNOLDS

  	
   

  	
  By: 

  	
  /S/GRAY FREDERICKSON

  	
   

  
	
  BURT REYNOLDS

  	
  Its:

  	
   

  	
   

  
					



 


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