Option and Purchase Underlying Rights Agreement Form

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Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
OPTION AND PURCHASE AGREEMENT—UNDERLYING RIGHTS
THIS AGREEMENT, effective as of _________, ____, is made by and between
________________ [name of producer] (“Producer”) whose address is [PHYSICAL ADDRESS]
and ________________ [name of owner] (“Owner”) whose address is [PHYSICAL ADDRESS]
concerning the rights to a ________________ [e.g., book, play, unpublished story] entitled
“_______________” and the materials upon which it is based. The following terms and
conditions shall apply:
1. DEFINITION OF “WORK”: For purposes of this Agreement, “Work” means the
_____________________ [book/play/magazine article] entitled “_______________” written by
_______________ and any and all other literary materials, titles, themes, formats, formulas,
incidents, action, story, dialogue, ideas, plots, phrases, slogans, catchwords, art, designs,
compositions, sketches, drawings, characters, characterizations, names, and trademarks now
contained therein, as well as such elements as may at any time hereafter be added or incorporated
therein, and all versions thereof in any form.
2. GRANT OF OPTION: In consideration of the mutual promises contained herein, and the
payment to Owner of $____________(the “Option Price”), which shall be applicable against the
Purchase Price, Owner hereby grants to Producer the exclusive, irrevocable right and option (the
“Option”) for ______ months (the “Option Period”) to acquire the exclusive motion picture,
television, videocassette, and all subsidiary, allied, and ancillary rights in and to the Work
pursuant to the terms set forth below.
3. EXTENSION OF OPTION:
(a)
Producer shall have the right to extend the Option Period for one (1) period of
____________ months for $______________ which shall be non-applicable
against the Purchase Price. For the right to the extension of the first Option Period
there must be one of the following:
(i)
letter of commitment to direct from an established director;
(ii)
the project is set up at a company, major studio, or mini-major studio able
to fund the project;
(iii)
substantial negotiations in progress for complete financing of the film;
(iv)
letter of commitment to act in the film from one star;
or
(v)
a full-length feature-film script has been completed.
(b)
Producer shall have the right to extend the Option Period for one (1) additional
___________ month period for $__________ which shall be non-applicable
against the Purchase Price. In order to have a right to a second extension,
Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
OPTION AND PURCHASE AGREEMENT—UNDERLYING RIGHTS
THIS AGREEMENT, effective as of _________, ____, is made by and between
________________ [name of producer] (“Producer”) whose address is [PHYSICAL ADDRESS]
and ________________ [name of owner] (“Owner”) whose address is [PHYSICAL ADDRESS]
concerning the rights to a ________________ [e.g., book, play, unpublished story] entitled
“_______________” and the materials upon which it is based. The following terms and
conditions shall apply:
1. DEFINITION OF “WORK”: For purposes of this Agreement, “Work” means the
_____________________ [book/play/magazine article] entitled “_______________” written by
_______________ and any and all other literary materials, titles, themes, formats, formulas,
incidents, action, story, dialogue, ideas, plots, phrases, slogans, catchwords, art, designs,
compositions, sketches, drawings, characters, characterizations, names, and trademarks now
contained therein, as well as such elements as may at any time hereafter be added or incorporated
therein, and all versions thereof in any form.
2. GRANT OF OPTION: In consideration of the mutual promises contained herein, and the
payment to Owner of $____________(the “Option Price”), which shall be applicable against the
Purchase Price, Owner hereby grants to Producer the exclusive, irrevocable right and option (the
“Option”) for ______ months (the “Option Period”) to acquire the exclusive motion picture,
television, videocassette, and all subsidiary, allied, and ancillary rights in and to the Work
pursuant to the terms set forth below.
3. EXTENSION OF OPTION:
(a)
Producer shall have the right to extend the Option Period for one (1) period of
____________ months for $______________ which shall be non-applicable
against the Purchase Price. For the right to the extension of the first Option Period
there must be one of the following:
(i)
letter of commitment to direct from an established director;
(ii)
the project is set up at a company, major studio, or mini-major studio able
to fund the project;
(iii)
substantial negotiations in progress for complete financing of the film;
(iv)
letter of commitment to act in the film from one star;
or
(v)
a full-length feature-film script has been completed.
(b)
Producer shall have the right to extend the Option Period for one (1) additional
___________ month period for $__________ which shall be non-applicable
against the Purchase Price. In order to have a right to a second extension,
Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
Producer must secure at least two (2) of the above five (5) items.
4. EXERCISE OF OPTION: Producer may exercise this Option at any time during the Option
Period, as it may be extended, by giving written notice of such exercise to Owner and delivery to
Owner of the minimum Purchase Price as set forth below. In the event Producer does not
exercise said Option during the period as it may be extended, this Agreement shall be of no
further force or effect whatsoever. All rights granted hereunder become property of Owner.
Upon exercise of the Option, Producer shall have the right to file the Assignment, Exhibit A,
with the Copyright Office.
5. PENDING EXERCISE OF OPTION: Producer shall have the right to engage in all
customary development and pre-production activities during the Option Period as it may be
extended.
6. GRANT OF RIGHTS: Effective upon Producer’s exercise of the Option, Writer hereby
exclusively sells, grants and assigns to Producer, Producer’s successors, licenses and assigns all
rights in and to the Work not reserved by Writer, throughout the universe, in perpetuity, in any
and all media and by any means now known or hereafter devised, including, without limitation,
all forms of theatrical and non-theatrical distribution and exhibition (including without
limitation, free broadcast, pay television, cable, subscription, pay-per-view, video-on-demand,
DVD and Internet), including without limitation the following: all motion picture rights,
including the right to make remakes, new versions or adaptations of the Work or any part
thereof; to make series and serials of the Work or any part thereof; the right, for advertising and
publicity purposes only, to prepare, broadcast, exhibit and publish in any form or media, any
synopses, excerpts, novelizations, serializations, dramatizations, summaries and stories of the
Work, or any part thereof; and all rights of every kind and character whatsoever in and to the
Work and all the characters and elements contained therein.
7. PURCHASE PRICE: As consideration for all rights and property herein granted, and all
warranties and covenants herein made by Owner, Producer agrees to pay Owner the following
sums not later than the commencement of principal photography of a production:
(a)
$_______________ if the final budget for the motion picture (less contingencies,
financing costs, and bank fees) based on the Work does not exceed two million
dollars ($2,000,000), less any moneys paid as option exercise money and less the
option payment for the initial period;
(b)
If the final budget exceeds two million dollars ($2,000,000), one percent (1%) of
the final budget for the motion picture (less contingencies, financing costs, and
bank fees) based on the Work less any amounts paid for option exercise; however,
in no event shall the amount of such payment exceed fifty-thousand dollars
($50,000).
8. ADDITIONAL COMPENSATION:
(a)
Contingent Compensation: Producer also agrees to pay Owner ___ percent
(__%) of one hundred percent (100%) of the producer’s share of proceeds from
Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
any production based on the Work for which Owner receives any other payment
under this Agreement. “Producer’s Share of Proceeds” shall be defined, accounted
for, and paid in the same manner for Owner as for Producer, whether Producer’s
contingent compensation is called Net Profits, Adjusted Gross Profits, or
otherwise.
(b)
Bonus Compensation: Producer shall pay Owner $___________ in addition to
any other money due Owner under this agreement upon the happening of the
following: _____________________________________________.
9. CREDITS:
(a)
In the event a motion picture based substantially on the Work is produced
hereunder, Owner shall receive credit in the following form:
Based on the novel by _________________
or if the film has a different title from the Work, then:
Based
on
the
novel
“___________________________”
by
_____________________
(b)
Such credit shall be accorded on a single card in the main titles on all positive
prints of the picture and in all paid advertising in which the director has received
credit, subject to Producer’s and any distributor’s usual and customary exclusions.
All other matters regarding prominence, placement, size, style and color of said
credits shall be in Producer’s sole discretion. Nothing herein shall be construed to
prevent so-called award or congratulatory or other similar advertising with respect
to the material or Picture which omits the name of the Writer.
(c)
No casual or inadvertent failure of Producer to comply with the credit provisions
hereof shall be deemed a breach of this Agreement. Within a reasonable time after
receipt of written notice from Owner specifying a failure to accord proper credit
in accordance with this Paragraph, Producer shall use good faith efforts to cure
prospectively any such failure with regard to positive prints and/or advertising
materials created after the date of Producer’s receipt of such notice. Producer will
contractually obligate third party licensees and sub-distributors with whom
Producer is in privity of contract to comply with the credit obligations set forth
herein, but shall not be responsible or liable to Owner for the failure of any such
third party to comply with the same.
10. RESERVED RIGHTS: All publication rights are reserved to Owner for Owner’s use and
disposition, including but not limited to the right to publish and distribute printed versions of the
Work and author-written sequels thereof (owned or controlled by Owner) in book form, whether
hardcover or softcover, and in magazines or other periodicals, comics or coloring books, whether
in installments or otherwise, subject to Producer’s limited rights to use up to 10,000 words to
promote and advertise the motion picture. Producer shall have the right of first negotiation and
Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
last refusal to enter an agreement such as this one with regard to any works created by Owner
pursuant to this paragraph.
11. RIGHT OF FIRST NEGOTIATION: If Owner desires to dispose of or exercise a
particular right reserved to Owner herein (“Reserved Right”), then Owner shall notify Producer
in writing and immediately negotiate with Producer regarding such Reserved Right. If, after the
expiration of thirty (30) days following the receipt of such notice, no agreement has been
reached, then Owner may negotiate with third parties regarding such Reserved Right subject to
the next paragraph.
12. RIGHT OF LAST REFUSAL: If Producer and Owner fail to reach an agreement pursuant
to Producer’s right of first negotiation, and Owner makes and/or receives any bona fide offer to
license and/or purchase the particular Reserved Right or any interest therein in a context other
than an auction (“Third Party Offer”), Owner shall notify Producer, if Owner proposes to accept
such Third Party Offer, of the name of the offeror, the proposed purchase price, and other such
terms of Third Party Offer. During the period of ten (10) days after Producer’s receipt of such
notice, Producer shall have the exclusive option to license and/or purchase said Reserved Right
upon the same terms and conditions of said Third Party Offer. If Producer elects to exercise the
right to purchase such Reserved Right, Producer shall notify Owner of the exercise thereof
within said ten (10) day period, failing which Owner shall be free to accept such Third Party
Offer. If any such proposed license and/or sale is not consummated with a third party within
thirty (30) days following the expiration of the aforesaid ten- (10-) day period, Producer’s Right
of Last Refusal shall revive and shall apply to each and every further offer or offers at any time
received by Owner relating to the particular Reserved Right or any interest therein; provided,
further, that Producer’s option shall continue in full force and effect, upon all of the terms and
conditions of this Clause, so long as Owner retains any rights, title, or interests in or to the
particular Reserved Right.
13. NO OBLIGATION TO PRODUCE: While Producer shall use best efforts to effect a
production hereunder, nothing herein shall be construed to obligate Producer to produce,
distribute, release, perform or exhibit a film based upon the Work, in whole or in part, or
otherwise to exercise, exploit or make any use of the rights, license, privileges or property gained
herein to Producer.
14. REPRESENTATIONS AND WARRANTIES:
(a)
The Work itself is original with Owner and no part of the Work is in the public
domain other than the extent to which historical facts are, by their nature, in the
public domain;
(b)
Owner has the right, authority and legal capacity to grant the rights granted to
Producer herein;
(c)
The work is not subject to any claim, arbitration, mediation, or litigation.
(d)
The Work does not, and no use thereof will, infringe upon or violate any personal,
proprietary or other right of any third party, including, without limitation,
Excerpted from The American Bar Association's Legal Guide to Independent Filmmaking
defamation, libel, slander or violation of any right of privacy or publicity or any
copyright in underlying material; and
(e)
Owner shall not exploit the Work in a manner inconsistent with the terms of this
Agreement, specifically, to not sell, license, exploit or transfer any rights in the
Work.
15. REMEDIES: Owner recognizes and confirms that in the event of a failure or omission by
Producer constituting a breach of its obligations under this Agreement, whether or not material,
the damage, if any, caused Owner is not irreparable or sufficient to entitle Owner to injunctive or
other equitable relief. Consequently, Owner’s rights and remedies shall be limited to the right, if
any, to obtain damages at law and Owner shall not have any right in such event to terminate or
rescind this Agreement or any of the rights granted to Producer hereunder or to enjoin or restrain
the development, production, advertising, promotion, distribution, exhibition or exploitation of
the Picture and/or any of Producer’s rights pursuant to this Agreement.
16. MISCELLANEOUS:
(a)
Arbitration. Disputes under this Agreement shall be settled pursuant to binding
arbitration under the rules of the Independent Film and Television Alliance
(“IFTA”) in [STATE]. The prevailing party will be entitled to reasonable attorney
fees and costs.
(b)
Indemnification. Owner shall indemnify and defend Producer from and against
any and all claims and damages arising from the breach of any representation or
warranty of Owner hereunder to the extent such claim or damage does not arise
out of a breach by Producer hereunder. Producer shall indemnify and defend
Owner from and against any and all claims and damages arising from the
production, distribution, exhibition or exploitation of the Picture, or any element
thereof, to the extent such claim or damage does not arise out of a breach by
Owner hereunder.
(c)
Accounting. Producer agrees to keep and maintain complete and accurate books
and records relating to the Picture and the proceeds derived therefrom.
(d)
Assignment. Owner may not assign its rights or obligations hereunder. Producer
may freely assign its rights and obligations hereunder.
(e)
Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of [STATE].
(f)
Notices. All notices under this Agreement shall be in writing addressed to the
addresses first set forth above, or at such other address as either party may
designate from time to time by written notice to the other. All notices shall be
served by facsimile and U.S. mail, electronic mail, recognized courier services
such as Federal Express or DHL or personal delivery addressed as specified
above. The date of receipt by facsimile, electronic mail or courier, as the case may

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