MEMORANDUM OF AGREEMENT
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
