PRODUCER AGREEMENT
Exhibit
10.5
This
PRODUCER AGREEMENT (“Agreement”) is entered into and effective as August 1, 2007
between Buzz Kill, Inc. whose principal place of business is ▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (“Company”), and ▇▇▇▇▇▇ ▇▇▇▇▇, who resides
at ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
(“Producer”).
1. ENGAGEMENT: Company
hereby engages the services of Producer upon the terms and conditions set forth
herein to render producing services in connection with the feature-length
theatrical motion picture tentatively entitled “Buzz Kill” (the
“Picture”).
2. ABANDONMENT: Company
may (at its sole discretion) abandon the Picture at any time without further
obligation to Producer other than payment of any compensation then accrued and
earned by Producer pursuant to Paragraph 4.1 below.
3. SERVICES
3.1 Preparatory Services:
Commencing on the date hereof, Producer agrees to provide its services in
connection with the preparation of the Picture. Producer's preparatory services
shall include, without limitation, scouting and securing locations, preparing
boards and budgets, assisting with casting, organizing the selection and hiring
of crew members (subject to Company’s mutual approval), and such other services
as are required by Company in connection with the preparation of the
Picture.
3.2 Production and Post-
Production Services: If Company sets the Picture for production, Company
shall
engage Producer to furnish general producing services; it being understood that
the Picture shall be deemed “set for production” when the final screenplay and
budget have been approved by Company, the principal cast and creative personnel
have been engaged and a definite start date has been scheduled by the Company
for commencement of principal photography. Producer shall render nonexclusive
services commencing two (2) weeks prior to the scheduled starting date of
principal photography and shall continue thereafter until such time as Producer
has completed all services in connection with "wrapping" the Picture. Producer
shall not render any outside services that would interfere with the completion
of the Picture within the time required by Company.
4. COMPENSATION: On
condition that Producer fully and faithfully performs all of the services,
duties and obligations required to be performed hereunder and that Producer is
not in material default hereunder, and subject to Company’s rights of suspension
and/or termination on account of Producer's disability or default or an event of
force majeure (as more particularly set forth in Exhibit “A” attached hereto),
and subject to Company’s right of suspension and/or termination on account of
Producer’s default, disability or an event of force majeure, Producer shall
become “pay and play” upon the earlier to occur of : (i) commencement of
principal photography of the Picture, or (ii) Company’s receipt of a
fully-executed copy of the Agreement. Company agrees to pay to Producer and
Producer agrees to accept, as full and complete compensation for all
undertakings and services of Producer hereunder and for all of the rights
granted to Company hereunder, the following
compensation:
4.1 Compensation for Production
Services: An amount equal to five percent (5%) of the actualized budget
for the Picture, which shall be paid as follows: fifty percent (50%) upon
"wrapping" of the Picture; and fifty percent (50%) upon delivery of the Picture.
In the event the Company does not have the funds to pay Producer in accordance
with the foregoing sentence, any amounts owed Producer shall be paid to Producer
as Deferral to due and payable in accordance with the Definition and Application
of Proceeds to be attached herein as Exhibit "B".
The
foregoing compensation is an all-inclusive flat fees and no additional
compensation
shall be payable by reason of added days, re-shoots, overtime, weekend work,
holidays,
etc.
4.2 Deferral: A deferral
(a "Deferral") in the amount of One Hundred Fifty Thousand Dollars ($150,000)
which shall be due and payable in accordance with the Definition and Application
of Proceeds to be attached hereto: as Exhibit "B".
4.3 Contingent
Compensation: An amount equal to the remaining percentage of any "Net
Proceeds" generated by the Picture after deducting “off-the-top" of all third
party profit participations, including, without limitation, profit
participations to the financiers, writer/director, producers, talent and crew,
if any, in consideration services rendered with respect to the Picture. “Net
Proceeds" shall be defined, computed, accounted for and paid in accordance with
Company’s standard definition of Net Proceeds which is attached hereto as
Exhibit "C" and made a part hereof, but in no event in a manner less favorable
than for any other party receiving "Net Proceeds" or any other form of
contingent compensation. Company makes no representation that the Picture will
generate any Net Proceeds, or any particular amount Net
Proceeds.
5. TRAVEL EXPENSES: If
Company requires Producer to render services in connection with the Picture at
an overnight location more than fifty (50) miles from such person’s principal
residence, Company shall: (i) furnish, or reimburse the Producer for the cost of
(at Company’s election), one (1) round trip transportation, by air if
appropriate, in the class no less favorable than for director or any other
producer, between such residence (or from wherever
Producer then may be, if closer) and where such services arc required; (ii)
reasonable accommodations (room and tax only); (iii) exclusive ground
transportation; and (iv) a per diem allowance (which allowance shall be
inclusive of all of Producer’s living and other expenses) in an amount which
shall be determined in Company's good faith discretion but which in no event
shall be less favorable than the per diem allowance payable to any individual in
connection with the Picture.
6. CREDIT:
(a) a “Produced by” credit in substantially the following
form: "Produced By: ▇▇▇▇▇▇ ▇▇▇▇▇" which shall appear (i) on screen, in the main
titles of the Picture, in first position and (ii) in paid advertising whenever
the writer and/or director’s credit appears (subject to the customary
exclusions) and in a size, style and appearance of type no less than 100% of
that accorded the writer and/or director). Company's obligation hereunder to
accord credit in paid advertising shall be subject to usual and customary
exclusions of Company (and/or any third party distributors) of the Picture.
Notwithstanding the foregoing, Producer shall receive credit in any so-called
"Excluded Advertising" in which any other producer and/or executive producer
receives credit (except award, nomination and/or congratulatory advertisements
where the honoree is the only individual named).
(b) A
production credit in substantially the following form: “[TBD] Production” (i) on
screen, on a single card, immediately following the Presentation/In association
credit(s) and immediately preceding the "film by" credit, if any, accorded the
writer/director of the Picture in the main titles of the Picture; (ii) in all
paid advertising whenever the full billing block of credits appear (subject to
the customary exclusions); and (iii) Producer’s “static logo" shall appear in
the billing box for the Picture.
(c) Except
as provided herein, all aspects of the above credits to be accorded Producer
shall be in the Company's sole discretion. No casual or inadvertent failure of
the Company to comply with the provisions of this Agreement regarding credit,
and no failure of any third party to comply with such obligations, shall
constitute a breach of this Agreement by the Company, however, Company shall use
good faith efforts to contractually obligate third parties, including, without
limitation, the distributor(s) of the Picture, to comply with the provisions
contained in this paragraph. Upon receipt of written notice from Producer of any
failure by the Company to comply with any applicable credit provisions, the
Company shall use good faith efforts to cure prospectively or to cause a
prospective cure of any such failure. In no event shall the Company be liable or
responsible for any acts or omissions with respect to credits by any independent
exhibitor, non-subsidiary distributor or sub-distributor, newspaper, magazine,
television station, record company or any other independent person, firm or
entity, provided, however, that upon receipt
of written notice from Producer the Company shall use good faith efforts to
cause any of the foregoing to cure prospectively any such failure to
comply.
7. NOTICES AND PAYMENTS:
All notices and payments required hereunder shall be in writing and shall be
given either by personal delivery, facsimile (with reasonable confirmation of
delivery), telegram or telex (toll prepaid) or by registered or certified mail
(postage prepaid), and shall be deemed given hereunder on the date delivered,
telefaxed, telegraphed or telexed or a date forty eight (48) hours after the
date mailed if posted to an address within the country of posting and five (5)
days if otherwise. Until further notice, the addresses of the parties shall be
as follows:
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PRODUCER
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COMPANY
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Attn:
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With a copy
to:
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With a copy
to:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, PLLC
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Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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8. PREMIERES/FESTIVALS:
Upon condition that Producer performs all material services and obligations
required to be performed by Producer hereunder, and provided that Producer is
not in material default hereunder, Company shall invite Producer and one (1)
guest to attend all celebrity premieres, and all major film festivals, if any,
of the Picture or at which the Picture is screened. In the event such
premiere(s) or festival(s) is more than fifty (50) miles from Producer’s then
current place of residence, Company shall use reasonable good faith efforts to
require the distributor of the Picture to provide Producer with the following:
(i) two (2) round-trip, first-class air transportation, if available and if
used; (ii) first-class hotel accommodations (room and tax only); (iii) exclusive
ground transportation; and (iv) reasonable expenses incurred in connection with
or arising from the attendance of Producer at any such premiere or festival.
Notwithstanding the foregoing, in the event that the Company provides
transportation, accommodation or a per diem for any other person to attend any
of the foregoing, Company shall provide the same to Producer on terms no less
favorable than those provided to any other person.
9. DVD COPY FOR PRIVATE
USE: Upon condition that Producer shall substantially perform all of the
material services and obligations required to be performed by Producer hereunder
and that Producer is not in material default hereunder. Company shall furnish
Producer (for Producers private, non-commercial use) with one (1) DVD copy of
the Picture, when the same is manufactured and generally commercially
available.
10. APPROVALS: Producer
and Company acknowledge and agree that Producer and Company shall have all
mutual approval over all aspect of production, including, without limitation,
with respect to the key creative elements, key crew, the budget, editing and the
distribution/theatrical release of the Picture.
11. STANDARD TERMS AND
CONDITIONS: All other terms and conditions of Lender’s and Producers
engagement hereunder are set forth in the Standard Terms and Conditions attached
hereto as Exhibit "A," which Standard Terms and Conditions are by this reference
incorporated herein and made a part of this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day
and
year
first above written.
BUZZ KILL, INC.:
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇
An Authorized Signatory
/s/▇▇▇▇▇▇
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