EXHIBIT 4.7
MEDIA PRODUCTION AGREEMENT
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This
Media Production
Agreement ("Agreement") is entered into as of the __
day of February, 2004, (the "Effective
Date") by and between The Bulletin Board
Productions, LLC., a Florida Limited Liability Client
(hereinafter referred to
as "Producer") and FoneFriend, Inc., a Delaware corporation, (hereinafter
referred to as "Client").
WITNESSETH:
WHEREAS,
Client has worldwide rights to and
desires to market the Product
(as defined in this Agreement); and
WHEREAS,
Producer is in the business of producing, among other
things,
short form commercials (as defined in this
Agreement) including all scripting,
casting, pre-production, production and
post-production (including editing) work
necessary to complete the short form
commercial as a finished product. Suitable
to be aired on television and other
media to promote and advertise the Product;
and
WHEREAS,
Client desires to
utilize the services of Producer to produce and
exhibit, through television media, various versions of televised
commercials
designed to advertise and sell the Product
and, further, to utilize the services
of Producer to design and develop the Client's
web site in such a manner that
will make it capable of marketing and selling
(electronically) the Product;
NOW,
THEREFORE,
in consideration of the mutual covenants and
conditions
contained herein, the parties agree as follows:
1. DEFINITIONS.
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The following terms as used herein shall have the following meanings:
(a) "Commercial"
means three (3) first-class broadcast
quality direct
response, television spots, cut to two-minute, one-minute and thirty
second
lengths, fully-edited and leadered (with
all front and end titles and credits),
with product ordering information and in generic form (in order that
product
ordering information can be easily changed or edited) television
commercial
designed to sell the Product by means of
direct response. The Commercial will be
produced with a "national feel" and in English and Spanish languages.
(b) "Media"
means any and all media now or hereafter known,
in all
languages, including without limitation, motion picture, television, radio,
digital television, video and computer games,
videocassette and video or laser
disc, any computer-assisted media
(including, but not limited to, CD-ROM, CD-I
and similar disc systems, interactive media and multi-media and any other
devices or methods now existing or hereinafter devised), and the
Internet.
(c) "Product"
means the product currently known as
"FoneFriend" which
will be marketed and offered for sale in the
Commercial produced hereunder as
well as any usage fees charged for
phone time, tolls, monthly rentals, etc. and
or any advertising revenues collected to mask dial up noises.
(d) "Work"
means the results and proceeds of any and all services
rendered by Producer in connection with this Agreement including, but not
limited to, all aspects of:
(i)
creation of
an original script and the development,
production, and post-production of the
Commercial, including without limitation
all videotapes, other video, film and audio footage;
(ii) all
other constituent
elements of the Commercial, whether or
not included in the final edited Commercial,
both tangible and intangible; and
(iii) the
design and development of the Client's web site,
identified as www.myfonefriend.com, in such a manner that will facilitate
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electronic commerce in connection with the
marketing and selling of the Client's
Product, and will provide limited customer support and account
management.
2. THE
COMMERCIAL.
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Producer is hereby engaged to develop and design the concept for, write
an
original script for, produce, supervise,
direct, for the commercial, all subject
to the prior approval of client, for television test/airing.
(a) The services of
Producer and Producer's employees shall be rendered
in an artistic, conscientious, efficient
and punctual manner to the best ability
of Producer and in accordance with the highest
industry standards.
Producer's
services during all periods provided for in this Agreement shall be
non-exclusive.
(b) Client
shall provide all samples of Product to be used in the
Commercial.
(c) With
respect to persons appearing in the Commercial on-screen:
(i)
Producer shall
furnish and pay any and all non-celebrity
talent referred to or appearing in the Commercial,
furnish and reimburse the
expenses of any local persons giving
testimonials in the Commercial, obtain from
all the aforesaid persons all necessary or
desirable agreements, permissions and
releases.
(ii)
Producer shall
not pay compensation due to any
celebrities
appearing in the Commercial, but shall
obtain from all celebrities all necessary
agreements, permissions and releases.
(d) Client
acknowledges
and agrees that it is
well-informed about the
risks associated with the direct response
advertising industry and that Producer
makes no warranty, expressed or implied, as to the degree of success to
be
achieved by the Commercial. Nor shall Client assert that any
warranties, either
express or implied, have been made in this
regard. Neither Client
nor Producer
has made, and neither does not hereby make
to the other, any representation or
warranty with respect to the level of sales and revenue to be derived
as a
result of the Commercial.
3. WEB SITE
REDESIGN.
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The Producer is hereby engaged to design and develop the entire
web site of
www.myfonefriend.com for the Client, including the development of
e-commerce
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capability that will enable the Client to market and
sell its Product through
the web site and a web interface that will
allow the Client to manage and view
(on-line) customer accounts and provide limited support services.
4. OWNERSHIP.
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(a) The Work shall be deemed a work-made-for-hire (as that term
is
defined in the United States Copyright Code)
specially ordered or commissioned
by Client. Client shall exclusively own all now known or hereafter
existing
rights of every kind and nature in and to the Work including, without
limitation, all copyrights (and renewals and
extensions thereof) in and to any
scripts and the Commercial, and the
exclusive right to exploit the Work and any
portion thereof throughout the World in
perpetuity by and in any and all Media,
character, sequel, remake, merchandising, allied, subsidiary, and ancillary
rights therein. If, and to the extent any portion
of the Work is deemed not to
be a work-made-for-hire, this Agreement
constitutes an irrevocable, exclusive,
perpetual assignment throughout the World to Client by Producer of
all of the
rights set forth above in this paragraph 4(a).
(b) Notwithstanding
the foregoing, Producer shall have the right to use
the Commercial in Producer's promotional reel and to enter the
Commercial in
industry competitions, festivals and shows for Producer's publicity and
promotional purposes.
5. APPROVALS.
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(a) Client
shall have the right to approve in writing the
shooting
script before the commencement of
principal videotaping or filming, as the case
may be, of the Commercial. Producer shall submit to Client a
proposed copy of
the script for Client's approval.
Client shall submit
its proposed changes to
Producer. Producer shall incorporate
Client's changes and resubmit the proposed
script to Client within a reasonable time, so as not to alter or delay
the
production schedule. Client's approval of the shooting script,
in whole or in
part, and any changes made thereto, shall
constitute Client's verification and
representation that to the best of Client's
knowledge, the statements and claims
concerning the Product made in the script are truthful and accurate.
(b) Client
shall have the right
to approve in writing the rough-cut of
the Commercial (that is, prior to commencement of
on-line editing).
Client's
approval of the rough cut of the
Commercial, and any changes made thereto, shall
constitute Client's verification and representation that, to the best of
Client's knowledge, the statements and
claims concerning the Product made in the
Commercial are truthful and accurate. Client has right to be present at
all
editing sessions.
(c) Client shall
have the right to approve in writing the design of its
web site prior to its placement on the Internet.
6. PRODUCTION AND
DELIVERY OF THEWORK; CONDITION PRECEDENT.
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Upon execution of this Agreement, Producer shall commence Work and
related
services on the design and development of
the Client's web site.
However, as a
condition precedent to commencing Work and
related services on the production of
the Client's Commercial, and earning compensation
therefore, the Client shall
have first received financing of at least One Million
Dollars ($1,000,000) in
immediately available funds. Upon Client's
receipt of such financing, the Client
agrees that it will immediately notify Producer, and Producer agrees to
immediately start production and deliver
the completed Commercial to Client in a
timely manner. In the event that Client does not
receive said financing within
three months from the date hereof, Client shall have
the right to cancel this
Agreement.
7.
COMPENSATIONEARNED BY PRODUCER.
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For all Work and related services to be performed
by Producer hereunder, the
Producer hereby agrees to accept compensation in the form of shares of the
common stock of FoneFriend, Inc. (the
"Shares"). Said Shares
will be endorsed
with a restrictive legend in accordance
with Rule 144 of the Securities Act and
will be included in the Client's registration
statement to be filed with the
Securities and Exchange Commission as soon as
possible. Upon
execution of this
Agreement, the Client shall deliver 350,000 Shares to be held in an escrow
account established with The Law Offices of Harold Martin and released
periodically to Producer by written instruction
from the Client when Shares are
deemed to be earned by Producer in accordance with the following terms:
(a) Web Site Design. For all Work and services relating
to the design
and development of the Client's web
site, Client shall compensate Producer with
a fee of 25,000 Shares. These Shares shall
be released from escrow and delivered
to Producer on the effective date of
Client's registration statement; provided,
however, that said fee shall not be deemed
earned by Producer until Client has
approved Producer's Work relating to the web site.
(b) Commercial
Production
Fee. Provided that the condition
precedent
contained in paragraph 6 has been satisfied,
for all Work and services relating
to the development and production of the Commercial,
Client shall compensate
Producer with a fee of 100,000 Shares. Client
agrees to advance 50,000 Shares
from escrow upon commencement of the production of the
Commercial; provided,
however, that 25,000 Shares shall be deemed
earned by the Producer upon Client's
approval of the script for the Commercial
and an additional 50,000 Shares shall
be earned by the Producer upon Client's approval of the rough cut of the
Commercial. The balance of the fee (i.e., 25,000 Shares) shall be
earned by
Producer and released from escrow upon Producer's
delivery of all elements of
the master of the Commercial (in all forms) to Client.
(c) Media
Placement Fee. Client agrees to pay Producer a media
placement fee of up to 225,000 Shares in
consideration of Producer's purchase of
media time for the airing or
broadcasting of the Commercial. Client shall have
the right to approve the selection of media prior to purchase by
Producer.
These Shares shall be deemed earned by Producer and
released from escrow upon
Producer's submission of an actual invoice for the purchase of media
time.
Client and Producer acknowledge and understand that the amount of
media time
purchased will depend upon the price of the
Client's Shares. The parties agree
that the Shares will be released to Producer at a value
equal to the closing
price of the Shares on the date of invoice for the purchase
of media time.
Client reserves the right to increase the number of
Shares (above 225,000) in
the event the Client desires Producer to
purchase more media time than can be
purchased for the 225,000 Shares provided for under this sub-paragraph.
8. REPRESENTATIONS
AND WARRANTIES.
Producer hereby represents, warrants and
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covenants and agrees with the Client as follows:
(a) Investment
Intent. Producer is receiving the Shares for its
own
account, for investment only and not with a view towards, or for sale in
connection with, a distribution thereof or
any part thereof, within the meaning
of the Securities Act, and the rules and
regulations promulgated there under, or
any applicable state securities or blue-sky laws;
(b) Intent
to Transfer. Producer is not party to or subject to or
bound by any contract, undertaking,
agreement or arrangement with any person to
sell or pledge the Shares, any part thereof to
any person, and has no present
intention to enter into such a contract,
undertaking, agreement or arrangement.
(c) Sophistication
of Producer.
Producer has evaluated
the merits and
risks of acquiring the Shares, that has such knowledge and experience in
financial and business matters that the
undersigned is capable of evaluating the
merits
