MEMORANDUM OF AGREEMENT
Exhibit
10.3
THIS
MEMORANDUM OF AGREEMENT (the "Agreement") is made as of April 17, 2006 by and
between Buzz Kill, Inc. ("Producer") and Xxxxx Xxxxxxx, an individual, whose
principal place of residence is 000 Xxxxx Xx., Xxxxxx Xxxx,
XX 00000 ("Finder").
WHEREAS,
the parties hereto desire to establish the terms and conditions as between
themselves and as to their relationship with regard to the financing of a
feature-length motion picture (the "Picture") based upon the upon the script
currently entitled "Buzz Kill" written by Xxxx Xxxxxxx and Xxxxxx Xxxxxxxx (the
"Property");
NOW,
THEREFORE, in consideration of the mutual promises herein contained and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
l. SERVICES: Finder
hereby undertakes to use Finder’s reasonable best efforts, on a non-exclusive
basis, to introduce Producer to third parties which are listed on the Schedule
of Financiers attached hereto as Exhibit "A" and made a part hereof (herein
referred to individually or collectively, respectively, as the "Financier" or
Financiers"), who may be interested in lending for, investing in, or in any
other way financing all or a portion of the development and/or production of the
Picture. For the purposes of this Agreement, the terms "Financier" or
"Financiers" shall only refer to investors, lenders or financiers who are
directly introduced to Producer by Finder and who are listed on Exhibit "A"
attached hereto. Finder shall be responsible for all costs associated with
Finders services hereunder. Additionally, Finder shall render all services as
are required by Producer hereunder and all services as are customarily rendered
by producers of first-class feature length theatrical motion pictures in the
United States motion picture industry, as, when and where required by Producer,
and Finder shall comply with all reasonable directions, requests rules and
regulations of Producer in connection therewith, whether or not the same involve
matters of artistic taste or judgment. Finder shall cause the Picture to be
produced in accordance with the approved budget and production schedule for the
Picture. Finder shall be given meaningful consultation with respect to all "key
elements", department heads and creative issues with respect to the Picture,
with the Producer decision being final and prevailing in all such matters.
2. TERM: Commencing on
the date hereof, and continuing until the earlier of (a) termination by either
party to this Agreement, or (b) the concluding of an agreement between Producer
(or any designee, assignee, transferee, or other successor-in-interest of
Producer in or to the Picture and/or Property, collectively referred to
hereinafter as "Producer") and a Financier or Financiers for the provision of
monies for the production of the Picture. The foregoing period of time is
hereinafter referred to as the "Term."
3.
COMPENSATION:
Upon condition that Finder fully performs all the services, duties and
obligations required to be performed by Finder as a producer hereunder and that
Finder is not in default hereunder, and subject to Producer’s right of
suspension and/or termination on account of Finder’s disability or default or an
event of force majeure, Finder shall receive the following
compensation:
(a) Contingent
Compensation: Finder shall be entitled to receive an amount equal to five
percent (5%) of Producer’s share of the "net proceeds" of the Picture. "Net
Proceeds" shall be defined, computed, accounted for and paid in accordance with
Producer’s standard definition of net proceeds. Producer makes no representation
that the Picture will generate any net proceeds, or any particular amount of net
proceeds.
4. CREDIT: Upon
condition that Finder shall fully perform all of the services and obligations
required to be performed by Finder as a producer hereunder, that Finder is not
in default hereunder, and that Producer has not engaged the services of any
other producer with respect to the Picture, Producer shall accord Finder the
following credit:
(a) a
"producer" credit on screen, in the main titles of the Picture (or in the end
titles if all other credits appear in the end titles), on a separate card, in no
less than third position, on all positive prints of the Picture and in paid
advertising issued by or under Producer’s direct control whenever the full
billing block of credits appear.
All other
matters with respect to Finder’s credit shall be determined in Producer’s sole
discretion. Finder’s credit in paid advertising, if any, shall be subject to the
customary exclusions and practices of Producer, and/or any third party
distributors of the Picture. No casual or inadvertent failure by Producer to
comply with the provisions of this paragraph nor any failure by third parties to
so comply shall constitute a breach of this Agreement by Producer.
5. CONSULTATION:
Throughout the Term, Producer agrees to consult and cooperate with Finder with
respect to the Picture for the purpose of maximizing the opportunity of Finder
to interest Financiers in the Picture and of entering into agreement(s) with
Financier(s). Finder agrees to notify Producer no less than two (2) business
days prior to approaching any potential Financier and the parties hereto shall
coordinate their approach to such Financier in the event each party has a
current and/or prior relationship with such potential Financier.
6. FEES/CREDIT: If at
any time during the Term, Producer enters into any agreement with any Financier
to invest in, lend for, or finance production of the Picture, and provided such
monies are used by Producer for the production of the Picture, in consideration
of Finders services hereunder, the sufficiency of which is hereby acknowledged,
then Finder shall receive: (i) (a) an amount equal to five percent (5%) of any
amounts actually received by Producer from the Financier or Financiers.
Notwithstanding the foregoing, Producer acknowledges that Finder is owed Forty
Thousand Dollars ($40,000), which represents the amount equal to five percent
(5%) of any amounts actually received by Producer from the Financier due to
Finder's services. Further, Finder acknowledges that the receipt of Twenty
Thousand Dollars ($20,000) from Financier and the remaining Twenty Thousand
Dollars ($20,000) shall be paid by Producer as a Deferral which shall be due and
payable in accordance with the Definition and Application of Proceeds to be
attached hereto as Exhibit "B". In consideration of Finder's producer services
with respect to the Picture, Finder shall be paid an additional Deferral of
Fifty Thousand Dollars ($50,000) which shall be due and payable in accordance
with the Definition and Application of Proceeds to be attached hereto as Exhibit
"B"; and (ii) the following credit(s):
(a) In
the event a Financier or Financiers enter into an agreement with Producer to
provide financing for the Picture in an amount of no less than twenty to twenty
five percent (20-25%) of the final "going in" budget of the Picture, Finder or
its designee(s) shall be accorded an associate producer credit in substantially
the following form:
"Associate
Producer: Xxxxx Xxxxxxx";
(b) In
the event a Financier or Financiers enter into an agreement with Producer to
provide financing for the Picture in an amount of twenty six to fifty
percent (26-50%) of the final "going in" budget of the Picture,
Finder or its designee(s) shall be accorded a co-producer credit in
substantially the following form:
"Co-Producer:
Xxxxx Xxxxxxx"; and
(c) In
the event a Financier or Financiers enter into an agreement with Producer to
provide financing for the Picture in the amount of fifty one to one hundred
percent (51-100%) of the final "going in" budget of the Picture, Finder or its
designee(s) shall be accorded a Executive Producer credit in substantially the
following form:
"Executive
Producer: Xxxxx Xxxxxxx".
Such
credit(s) shall appear in the main titles of all positive prints of the Picture,
on a separate or shared card to be determined by Producer in Producer's sole
discretion and shall appear in all paid advertising for the Picture where credit
is given to the Producer, subject to customary exclusions.
Except as
provided herein, all aspects of the above credits to be accorded Finder shall be
in the Producer's sole discretion.
8. NO OBLIGATION:
Nothing in this Agreement shall obligate Finder to obtain any Financiers, nor
shall anything in this Agreement obligate Producer to accept funding from any
Financiers nor to enter into an agreement with any Financiers. Nothing in this
Agreement shall obligate Producer to enter into any additional agreement(s) with
Finder or to provide Finder with any additional compensation whatsoever for any
motion pictures, sequels, pre-quels, remakes, television series, programs or
projects which may be produced by Producer in the future regardless of the
source of financing for such motion pictures, series, programs or
projects.
9. NO SALE OF
SECURITIES: Finder acknowledges that Finder is acting solely in the
capacity of a "finder" and shall not sell or offer to sell securities related to
investing in the development and/or production of the Picture. Finder agrees to
comply with all applicable state and federal securities laws. Finder agrees to
indemnify and hold harmless Producer from any and all claims, losses, expense or
damage (including reasonable attorneys' fees) resulting from any breach or claim
of breach of this provision.
10. RELATIONSHIP OF
PARTIES: Finder is an independent contractor. Nothing herein contained
shall be construed to place Finder and Producer in the relationship of principal
and agent, master and servant, partners, joint venturers or employer and
employee, and neither party shall have, or expressly or by implication,
represent themselves as having, any authority to make contracts in the name of
or binding on the other, or to obligate or bind the other in any manner
whatsoever.
ll. ENTIRE
AGREEMENT/AMENDMENT: This Agreement constitutes the entire agreement
between the parties with reference to this matter, and supersedes all prior
agreements written or oral. This Agreement cannot be amended except by written
instrument signed by the parties.
l2. GOVERNING
LAW/JURISDICTION: This Agreement is made and is to be construed under the
laws of the State of New York. The parties hereby agree that any action arising
out of or relating to this Agreement, its performance, enforcement or breach,
the Picture and/or the Property shall be filed in the United States Southern
District of New York and all parties submit themselves to the personal
jurisdiction of said courts for all
such purposes.
13. ASSIGNMENT: Finder
may not assign Finder's obligations hereunder. Producer may assign Producer's
rights and obligations hereunder freely, including, without limitation, to a
corporation in which Producer serves as an officer and principal shareholder and
in the event of such assignment, Finder agrees to look solely to such assignee
for performance of Producer's obligations hereunder.
14. SEVERABILITY: If any
provision of this Agreement shall be found invalid or unenforceable, then such
provision shall not invalidate or in any way affect the enforceability of the
remainder of this Agreement.
15. REMEDY: The remedy
for any breach or alleged breach of this Agreement shall be limited to the
right, if any, to recover money damages at law and Finder irrevocably waives any
right to equitable or injunctive relief.
16. NON-DISCLOSURE/PUBLICITY:
Finder recognizes and acknowledges that: (i) the proprietary, confidential and
competitive nature of screenplay for the Picture (the "Property"), any
information and/or materials provided to Finder with respect to the Property and
the Picture (collectively, the “Materials”) and the damage that could result to
the Producer if the Materials, or any information contained therein, is
disclosed to any third party, and (ii) that the Materials which are shown or
provided to Finder are the property of the Producer and shall be considered
proprietary information, whether or not any portion thereof is or may be validly
copyrighted. Accordingly, Finder will not, without the prior written consent of
the Producer, directly or indirectly, disclose all or any portion of the
Materials, or the substance thereof, to any third party except to the extent
required by applicable law or legal process. Finder warrants and agrees that
Finder shall not authorize the publication of any news story, magazine article
or other publicity or information of any kind or nature relating to: (a) the
Picture; (b) the Property; (c) Finder’s services hereunder; (d) the Producer; or
(e) to any exhibitor or any distributor of the Picture, without the prior
written consent of Producer in each instance.
17. PREMIERE/FESTIVALS:
Upon condition that Finder fully performs all services and material obligations
required to be performed by Finder hereunder, and provided that Finder is not in
material uncured default hereunder, and provided that any other individual
rendering producing receives the following, then Producer shall invite Finder
and one (1) guest to attend the first major “celebrity” premiere of the Picture
and any “first-tier” film festival screenings of the Picture. In the event the
“first-tier” film festival or premiere is more than fifty (50) miles from
Finder’s then current place of residence, Company shall use best efforts to
require the distributor of the Picture to provide Employee with the following:
(a) one (1) round-trip, coach-class air transportation, if available and if
used, for each of Finder and Finder’s guest; (b) non-exclusive ground
transportation between the airport and hotel; and (c) reasonable hotel
accommodations (room and tax only).
18. DVD: Upon
the condition that Finder fully performs all of the material services and
obligations required to be performed by Finder hereunder and that Finder is not
in material uncured default hereunder, Finder shall be entitled to one (1) DVD
copy of the Picture upon commercial availability of the same.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
BUZZ
KILL, INC.:
/s/ Xxxxxx
Xxxxx
An
Authorized Signatory
/s/
Xxxxx
Xxxxxxx
XXXXX
XXXXXXX
.
