Collaboration Agreement

Agreement dated April 20, 2000 between Winston James (Bookwriter) Dara Chan (Lyricist), Gladys Smith (Composer) and Sidney Keene (Keene).

Whereas, the parties desire to collaborate in the creation of a dramatico musical work presently entitled THE CLOWN AND MR. SCARY (hereinafter referred to and the Play) which is based on the Jane Maidwell play (The Underlying Material) and to set forth their arrangements with respect thereto;

Now, therefore, the parties agree as follows:

  1. The music for the Play shall be written by Gladys Smith, the book shall be written by Winston James, and lyrics shall be written by Dara Chan, who including Sidney Keene shall collectively be called Author.
  2. (a.)   Except to the extent that the material is in the public domain in the United States, each of the parties represents and warrants that the material written by such party for the Play shall be original with such party and shall not violate or infringe the copyright, common law copyright, right of privacy, or any other personal or property right whatsoever of any person or entity, or constitute a libel or slander, and that such party fully owns and controls such material and all rights therein and has the full right to enter into this Agreement. Sidney Keene warrants that he has acquired the rights to The Underlying Material in the name of all persons constituting the Author. Such document shall be attached hereto as Exhibit A.

    (b.)    Each of the parties hereto will indemnify and hold harmless the other parties and the other parties' heirs, successors and permitted assigns against any and all losses, costs, expenses (including reasonable attorneys' fees), damages and recoveries (including payments made in settlement but only if the indemnitor consents thereto in writing) caused by or arising out of any adjudicated breach of any of the indemnifying parties' representations, warranties or other agreements set forth herein.

  3. (a.)    Upon the official opening of the Play in a theatre of 199 seats or more, all dramatic, dramatico-musical rights, and all other rights of every kind and nature in the Play, other than the small performing rights, shall be merged for all proposes and said rights shall be controlled according to the terms herein by the parties hereto, and the terms of this agreement will be co-extensive with the life of the copyright in and to the Play. The parties agree to use all reasonable efforts and to act in good faith in cooperation with each other in order to exploit the Play and all of the rights therein. In the event that by -------------- (the Termination Date) there has been no official opening of the Play in a theatre of 199 seats or more, then as of the Termination Date this agreement shall in all respects terminate as defined in paragraph 3.B. herein, and each of the parties hereto shall continue to own his respective contribution to the Play free and clear of any interest therein of the other parties hereto, provided however, that if on -------------------, an agreement is in effect pursuant to which a producer has the right to produce a production of the Play in the manner described in this paragraph, then the termination date shall be extended until the expiration of the producer's rights under said agreement but not later than.

    Upon merger, Chan, James, Smith and Keene will jointly register and own the copyright in the book, music and lyrics for the Play with the only exception being the following.

    Upon merger, any rejected material shall revert in full to the respective copyright owner thereof, free and clear of any claims or rights of the others and each may deal with his or her own rejected material without accounting to the other parties.

    Notwithstanding the foregoing, each of the parties agree that if after which time as the Play is presented as a workshop which shall be no later than June 30, 2000, and after a consultation period of 30 days from the date of that workshop, between the Authors and ________________, cannot agree upon revisions in the Play, then merger shall not occur and the terms of paragraph 3.B. herein shall apply.

    (b.)    In the event that there is no merger, for any reason whatsoever, within 2 years from the date hereof, any party hereto shall have the right, upon written notice to the others, to terminate this agreement. In the event of such notice, this agreement, other than Section 15. (But only in the event of any dispute over monies due or contributions made while this agreement is in effect) shall terminate and shall be of no further force or effect whatsoever and all rights in the book, music and lyrics shall revert in full to the respective copyright owner thereof free and clear of any claims or rights of the others (including, without limitation, any claim that any party's work constitutes or was intended to constitute a joint work) and, subject to the foregoing, each may deal with his or her own contribution without accounting to the other parties.

  4. At any time prior to merger, any two collaborative units may reject the third unit as a whole. It is agreed and understood that upon such rejection, and subject to subsection (a) below, all rights and material contributed by the rejected unit shall revert to him or her effective immediately upon rejection. In this event, the rejected unit shall choose one of the following:

      (a.)    If the remaining units so agree and upon payment of an amount agreed upon by all units including the rejected unit, the rejected unit will be entitle to use his or her own material only insofar as such use does not in any way compete and/or interfere with the Play; or

      (b.)    If no such agreement is reached, the rejected unit shall be entitled to use his or her own material at will, and no such uses shall be deemed competitive with the Play.

  5. Unless this agreement is terminated pursuant to paragraph 3 above, there shall be no disposition of the Play or any part thereof except upon the approval of all parties hereto and all agreements disposing of any rights in the Play shall require the written agreement of all of the parties.
  6. (a.)    The Author's share of the proceeds from the disposition of the Play and any and all rights therein shall be divided between the parties hereto as follows:
    28 2/3% to James
    28 2/3% to Chan
    28 2/3% to Smith
    14% to Keene

    (b.)    Net receipts from (i) the publication, mechanical reproduction synchronization and small performing rights of the separate music and lyrics contained in the Musical Play, (ii) any rights granted in and to such separate music and lyrics and (iii) any use of any kind and nature of such separate music and lyrics for motion picture, television, radio; video, cast albums, phonorecordings, compact disc and any other audio or audio visual format or device for reproducing sound alone or sound with images, whether now known or hereafter developed, shall be divided 50% to the Lyricist and 50% to the Composer if both music and lyrics are used, 95% to the Lyricist and 5% to the Composer if only such lyrics are used, and 95% to the Composer and 5% to the Lyricist if only such music is used. [The Bookwriter and Keene shall in no event receive any net receipts from such rights except in the case of a cast album, in which case the Bookwriter and Keene shall each receive 10% of such net receipts.] References in this agreement to separate music and lyrics shall be deemed to refer to the separate and independent use of any music and lyrics contained in the Musical Play which does not use any other element of the Musical Play including, by way of example and without limitation, the book (other than as set forth in this Section 4), staging, and sets and costumes. The disposal of all such other rights derived from the Musical Play that entails such other element or elements shall be governed by section 6.a.

    If, however, the music and lyrics are not included in any publication of the Musical Play, the net receipts therefrom shall be divided as follows: 90% to the Bookwriter, 3 1/3% to the Composer, 3 1/3% to the Lyricist and 3 1/3% to Keene. If only the lyrics are included in the publication of the book of the Musical Play, the net receipts therefrom shall be divided [pro-rata] between the Bookwriter and the Lyricist after the deduction of 5% to the Composer and 5% to Keene. If the music and lyrics are included in the publication of the book of the Musical Play, the net receipts therefrom shall be divided among the Composer, the Lyricist, the Bookwriter and Keene as set forth in section 6.a.
  7. Each party shall be responsible for his/her own expenses.
  8. (a.)    With respect to all rights of approval as regards any artistic/creative elements of the Play, each of them shall have an equal vote. In the case of a tie, the decision shall be made by a third party designated by a unanimous vote among the entities constituting the Author.

    (b.)   All contracts for the production, presentation or publication of the Play, or the disposition of all rights therewith connected shall require the signature thereto of all the parties to this agreement. Powers of Attorney may, however, be granted by one party to another (or to a third party) by written instrument, setting forth the specific conditions under which said power of attorney shall be valid. For services rendered under this power of attorney, whether in conducting negotiations, consummating a contract or otherwise, no agency fee or extra compensation shall be provided.

  9. Billing shall be as follows:
    THE CLOWN AND MR. SCARY
    Book by Winston James
    Music by Gladys Smith
    Lyrics by Dara Chan

    Conceived by Sidney Keene
    Based on the Play THE CLOWN AND MR. SCARY by Jane Maidwell

    The Keene credit and the Jane Maidwell credit shall be 50% of the credit give to Bookwriter, Composer, and Lyricist. It is expressly agreed, however, that in no event shall any party constituting the Author be billed without the other.
  10. The enclosed agency clause(s) shall be deemed a part of this agreement.
  11. In the event of the death of any of the parties to this Agreement during the existence of this Agreement, the survivors of the parties shall have the right to change any part of the music or libretto of the Play, negotiate and enter into contracts with regard to the disposition thereof, and act generally with regard hereto as though they were the co-authors thereof. However, in such event, the name of the deceased party shall nonetheless always appear as provided in Paragraph 9 of this Agreement, and the survivors shall cause to be paid to the heirs or legal representatives of the deceased party the agreed upon proportion of the receipts of the Play as set forth in this Agreement, and shall furnish true copies of all agreements to the personal representatives of such deceased party.

    With respect to artistic approvals (paragraph 8.(a) herein), it is agreed that the deceased party's estate shall have an equal vote.
  12. No change or alteration shall be made in the music of the Play without the written consent of Smith. No change or alteration shall be made in the book of the Play without the written consent of James. No change or alteration shall be made in the lyrics of the Play without the consent of Chan.
  13. (a.)   In the event that any party hereto desires to sell, pledge, lease or assign, or otherwise dispose of or encumber his respective share of income derived from royalty, stock or subsidiary interests, motion picture interests, foreign interests or the like, or any part or portion thereof, (other than the small performing rights and publishing and recording rights reserved to each) it is agreed that such party (called the "selling party") shall give to the other (called the "buying party") in a written notice with full particulars, sent by certified mail, an option for a period of fourteen (14) days during which the buying party may purchase the net receipts for such rights in the Play as may be offered, at a price and upon such terms as stated in such written notice. Should the buying party fail, within such fourteen (14) days, to exercise such option in writing, or if the option is exercised, fail to complete the purchase upon the terms and conditions stated in such notice, then the selling party may sell such rights to any other person at the price and upon the identical terms stated is such notice, subject to the conditions set forth in Paragraph 13(b) of this Agreement. No such disposition shall be effective to grant any party rights hereunder other than the right to receive net receipts as provided for herein.

    (b.)    Before the consummation of the sale of net receipts to any other person, the selling party must give the other parties to this Agreement written notice containing the name of all conditions of the proposed sale to such fourth party, and must give the other parties to this agreement ten (10) business days within which to match such offer in all respects. If such offer is not matched within such period, then the selling party may complete the sale to the fourth party upon such terms and conditions, and a copy of the contract for the sale of such rights shall be sent to the other parties hereto. No such disposition shall be effective to grant any party rights hereunder other than the right to receive net receipts as provided for herein.
  14. No party to this Agreement may assign this Agreement or any rights herein without the prior written consent of the other parties, except that any party may freely assign his/her financial interest in this Agreement in accordance with the provisions of paragraph 13 hereof, provided such assignment shall not relieve the assigning party of his/her duties and obligation herein provided.
  15. Any claim, dispute, misunderstanding, controversy or charge of unfair dealing arising under, in connection with, or out of this Agreement, or the breach thereof, shall be submitted to arbitration in New York County, New York before one arbitrator, to be held under the Commercial Arbitration rules and regulations of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of any forum, State or Federal, having jurisdiction. The arbitrator is directed to award to the prevailing party reasonable attorney's fees, costs and disbursements including reimbursement for the cost of witnesses, travel and subsistence during the arbitration hearings. Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered by the appropriate court of the forum having jurisdiction.
  16. This Agreement, regardless of its place of execution, shall be construed, interpreted and enforced in accordance with the laws of the State of New York applicable to agreements executed, delivered and to be performed within such State.
  17. All notices to any party shall be in writing and given by personal delivery, certified or registered mail (return receipt requested), and shall be deemed given when so personally delivered or received, and shall be given in each case to all parties hereto. Notices by mail shall be addressed to each party's address as given below, or to such other address as such party may hereafter specify by notice duly given.
      Winston James
      c/o The Paul Goodman Agency
      1700 Broadway, #1000
      New York, NY 10036
      Attention: Paul Goodman


      Dara Chan
      c/o The Paul Goodman Agency
      1700 Broadway, #1000
      New York, NY 10036
      Attention: Paul Goodman

      Gladys Smith

      c/o

      Sidney Keene
      c/o

  18. This is the entire agreement between the parties. This agreement shall not be amended, modified or supplemented except by a written agreement signed by all the parties. In the event all of the parties agree to add another party as collaborator, each such additional persona shall be deemed a party hereto for all purposes upon signing of an additional signature page hereto, with the written consent of all the then current parties hereto. Such additional collaborator shall not be entitled to any monies received prior to such signature in connection with the Play unless specifically set forth on such signature page.
  19. This agreement shall be binding on the parties hereto and on their executors, administrators, personal representatives, successors and assigns.
    IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.



    _____________________________ _____________________________
    Winston James Gladys Smith
    ________________________________ ________________________________
    Dara Chan Sidney Keene