EP Agreement - Black Moth
THIS AGREEMENT, made and entered into as of October 22, 2020 (“Effective Date”), by and between Gilded Cinema, LLC represented by Alex Darke and Trevor L. Nelson (altogether “Executive Producers”) located at 600 S. Spring St. #212 Los Angeles, CA 90014 and (“Owner”) represented by , located at with respect to the following facts:
WHEREAS, Owner has been authorized by rights holders to produce a motion picture based on the screenplay tentatively entitled “ ” written by (“Screenplay”; altogether the “Picture”). It is known that Owner is the legal entity or holding company that owns the Screenplay, the Picture in all its versions, and all elements of the foregoing. In the event that rights of ownership for the Picture are transferred to another holding company during the Term defined below, Owner agrees to furnish to Executive Producers the relative particulars of the holding company once it has been formed.
WHEREAS, Gilded Cinema, LLC is a company engaged in financing, consultation, and distribution activities in the motion picture business.
WHEREAS, The parties want to enter an agreement whereby Executive Producers would be encouraged to introduce Owner to bona fide investors or entertainment company third parties (herein “Financier(s)”) who may be interested in lending for, investing in, or in any other way financing all or a portion of development and/or production funds for the Picture.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND REPRESENTATIONS ABOVE AND HEREINAFTER STATED, AND IN CONSIDERATION OF THE MUTUAL OBLIGATIONS AND COVENANTS SET FORTH IN THIS AGREEMENT THE PARTIES HERETO AGREE AS FOLLOWS:
1. SERVICES; TERM: This Agreement is in effect for one (1) year from the Effective Date (the “Term”), and applies to any and all non-securities or securities transactions, including but not limited to any subsequent follow-ups, repeat, extended, or re-negotiated transaction(s) for the Picture during the Term between Owner and any of the same Financier(s) to whom Executive Producers had introduced Owner and with whom Owner had executed a financing agreement during the Term. Executive Producers shall use best efforts to introduce Owner to Financier(s) throughout the Term, and shall seek and obtain Owner’s prior written consent prior to submitting the project to any industry contacts (ie, entertainment companies or known entertainment- focused financing companies such as media funds). Executive Producers acknowledges that Owner may have third parties provide similar services, and that Owner has the prerogative to finance the Picture without any particular Financier, and without any of the Financiers.
It is agreed and understood that Executive Producers' services shall be limited to introducing Owner to Financier(s), and that the approval of each and every Financier for negotiations shall be at Owner’s sole and absolute discretion, with no obligation hereunder on Owner’s part. Only Owner shall have any right to enter into or execute any financing or other agreement related hereto or to the Picture, and Executive Producers has no authority to bind Owner or to transfer or encumber any rights in the Screenplay or Picture or any element thereof.
2. COMPENSATION: If at any time during the Term, Owner enters into any agreement with any Financier(s) that invest in, lend for, or finance all or a portion of the Picture (herein “Financing”), which Financier was introduced to Owner by Executive Producers (for clarity, any Financier at which Owner already had a contact is excluded herefrom), then:
a.) Executive Producers shall receive an amount equal to five percent (5%) of the amount of the Financing obtained by Owner from said Financier through Executive Producers' efforts (the “Executive Producers' Fee”), provided Owner has also received from any sources 100% of the monies which Owner determines in its sole and absolute discretion it needs to produce the Picture (“Shooting Budget”), which Executive Producers' Fee shall be paid by 14 calendar days after the date upon which Owner has received and has the right to use the Financing, but in no event earlier than commencement of principal photography of the Picture by Owner;
b.) Executive Producers shall have a right to receive five percent (5%) of the Producers’ Share of the defined Net Proceeds pari passu with Owner’s share of Net Proceeds subject to proration in proportion to and commensurate with the amount of financing obtained for the Picture through Executive Producers' efforts (the “Profit Participation” or “Backend”). By way of example, should Executive Producers be directly responsible (via the introduction described in this Section) for obtaining 50% of the total eventual actual budget of the Picture determined upon completion thereof (“Final Budget”) then Executive Producers will be entitled to 2.5% of the Producers’ Share of the defined Net Proceeds. The Backend, if any, shall be paid upon Owner’s usual schedule for such participation payments.
If at any time during the Term, Owner enters into any agreement with any Above The Line Talent (herein “Talent”) introduced to Owner by Executive Producers (for clarity, any Talent at which Owner already had a contact is excluded herefrom), then:
c.) Executive Producers shall receive a total amount equal to one percent (1%) of the Producers’ Share of the defined Net Proceeds (the “Profit Participation” or “Backend”). The Backend, if any, shall be paid upon Owner’s usual schedule for such participation payments.
If at any time during the Term, Owner enters into any agreement with any Sales Agent of Distributor (herein “Distributor”) introduced to Owner by Executive Producers (for clarity, any Distributor at which Owner already had a contact is excluded herefrom), then:
d.) Executive Producers shall receive a total amount equal to one percent (1%) of the Producers’ Share of the defined Net Proceeds (the “Profit Participation” or “Backend”). The Backend, if any, shall be paid upon Owner’s usual schedule for such participation payments.
a.) If Executive Producers will have been directly responsible for Financing of at least ten percent (10%) of the Final Budget and/or are directly responsible for the hiring of Talent, Executive Producers shall receive the two (2) “Executive Producers” onscreen credits described below, including in paid ads issued by or under Owner’s control, subject to customary exclusions such as congratulatory ads mentioning only the honoree, with size, type, and placement not substantially less favorable than that given to any other executive producer. These individual onscreen credits shall occur in the main titles, with a static company logo (if applicable) in the logo section of the end credits.
Alex Darke – Executive Producer
Trevor L. Nelson – Executive Producer
b.) If Executive Producers will have been directly responsible for Financing of at least twenty percent (20%) of the Final Budget, then in addition to the aforementioned individual credits Gilded Cinema shall receive an “In Association with Gilded Cinema” credit in the main titles, as part of the company credits.
c.) If Executive Producers will have been directly responsible for Financing of at least fifty percent (50%) of the Final Budget, then in addition to the aforementioned individual credits Gilded Cinema shall receive an “Presentation” credit, with a static or animated company logo, as part of the company credits.
d.) If Executive Producers will have been directly responsible for Financing of between seven and a half percent (7.5%) and nine and ninety-nine hundredths percent (9.99%) of the Final Budget, Executive Producers shall receive the two (2) “Co-Executive Producers” onscreen credits described below in the end credits.
Alex Darke – Co-Executive Producer
Trevor L. Nelson – Co-Executive Producer
e.) If Executive Producers will have been directly responsible for Financing of between two and a half percent (2.5%) and seven and forty-nine hundredths percent (7.49%) of the Final Budget, Executive Producers shall receive the two (2) “Co-Producer” onscreen credits described below in the end credits.
Alex Darke – Co-Producer
Trevor L. Nelson – Co-Producer
f.) If Executive Producers will have been directly responsible for Financing of between one percent (1%) and two and forty-nine hundredths percent (2.49%) of the Final Budget, Executive Producers shall receive the two (2) “This film was made possible with the support of” onscreen credits described below in the end credits.
Alex Darke – “This film was made possible with the support of”
Trevor L. Nelson – “This film was made possible with the support of”
g.) Except as otherwise provided herein, the size, duration, placement, and all other aspects of credit shall be at Owner’s discretion, and shall also be subject to the requirements of the relevant distributor. Any inadvertent omission or error regarding credit shall not constitute breach of this Agreement or other basis of claim.
4. NO OBLIGATION: Nothing in this agreement shall obligate Owner to enter into an agreement with any Financier(s), or to continue to develop, produce, or exploit the Screenplay, Picture, or any element thereof.
5. DISCLAIMER OF GUARANTEE: Nothing in this Agreement and nothing in Executive Producers' or Owner’s statements to the other party will be construed as a promise or guarantee about the outcome or the results of, respectively, Executive Producers' services hereunder or, the Picture or this Agreement. In particular, Owner makes no guarantee that the Picture will be commenced or completed, be critically received, be accepted by festivals or distributors, or generate any revenue or any specific amount thereof. Each party understands and acknowledges that the motion picture business is risky and unpredictable. Executive Producers' or Owner’s comments about the outcome or the results of, respectively, Executive Producers' services hereunder, or the Picture or this Agreement, are expressions of opinion only.
6. GOOD FAITH: It is understood that Executive Producers' contacts and sources are comprised of both industry and non-industry sources. Owner shall retain the right to be the sole party to any negotiations and/or agreements with any contacts from any source, and to dictate the budget, financing structure, director, cast, and all other creative, financial, and other elements. Nothing herein shall restrict either party from engaging any contact at any source which it may encounter at any time, except to the extent expressly provided herein.
7. REMEDIES: In the event of any material breach of this Agreement by Owner, Executive Producers' remedies shall be limited to an action at law for damages totaling up to double the Executive Producers' Fee, if so awarded by arbitration as set forth below, and Executive Producers hereby waives any rights it may have to seek injunctive or other equitable relief. Any delay or failure of payment by Owner, or any other breach claimed by Executive Producers, shall not constitute breach unless Owner receives written notice thereof from Executive Producers and fails to cure said breach within ten (10) days.
8. NON-CIRCUMVENT/NON-DISCLOSE/NON-COMPETE: During the Term, Owner agrees not to circumvent Executive Producers and arrange for Financing with any of the Financier(s) that Executive Producers has introduced Owner to without abiding by the terms of this Agreement. During the Term, Executive Producers agrees not to circumvent Owner and arrange for financing of Executive Producers' other projects by any of the other potential or actual financiers of the Picture. During the Term Owner shall not disclose the fact of Executive Producers' Financier(s) being a potential or actual Financier of the Picture without Executive Producers' written consent, or if such is contained in a pitch deck or other materials reviewed by Executive Producers, or to the extent otherwise reasonably required for Owner to seek financing for the Picture, such as to show potential investors interest or commitment from the Financier(s).
Executive Producers shall maintain as strictly confidential at all times, including after the release of the Picture if any, any and all info it may receive about the Picture or any other projects of Owner, such as the loglines, treatments, and screenplays thereof and their elements, and the casting, financing, distribution, and other plans, business practices, and contacts and contact info.
9. ADDITIONAL DOCUMENTS; COMPLIANCE: This Agreement sets forth the basic terms and conditions of the Agreement contemplated by the parties hereto. In connection herewith, both parties agree to execute and complete any and all other documentation that may be reasonably necessary to effectuate the purposes and intent of this Agreement, however, this Agreement shall be binding on the parties hereto. Executive Producers hereby acknowledges that it/he is not and will not be deemed a potential or actual investor and is not purchasing securities in connection herewith, and that all relevant laws and regulations are and will be deemed as having been complied with by Owner.
10. ARBITRATION: Any and all disputes under this Agreement will be resolved by final and binding arbitration under the Rules of International Arbitration of the Independent Film & Television Alliance in effect when the arbitration is filed (the “IFTA Rules”). Each party waives the right to adjudicate any dispute in any other court or forum except that a Party may seek interim relief before the start of arbitration as allowed by IFTA Rules and nothing herein shall prevent Owner from availing itself of injunctive or other relief in any court such as to prevent unauthorized exploitation of the Screenplay, Picture, or any elements thereof. The arbitration will be held in the Los Angeles, California area (“the Forum”). The Parties will abide by any decision in the arbitration and any court having competent jurisdiction may enforce it. The parties submit to the jurisdiction of the courts in the Forum to compel arbitration or to confirm any arbitration award. The Parties agree to accept service of process in accordance with the IFTA Rules. Any court having competent jurisdiction to enforce the arbitration award shall also have the right to vacate, modify, or correct the arbitration award on any ground specified in the Federal Arbitration Act, if applicable, or the IFTA Rules, or where the findings of fact were not supported by the evidence, or where the tribunal’s conclusions of law were erroneous. The prevailing party will be entitled to its reasonable outside attorney’s fees and dispute resolution costs.
11. OWNERSHIP: Executive Producers acknowledges that the Screenplay in all its versions, and all elements thereof, and the Picture in all its versions, and all elements thereof, is and shall remain the exclusive property of Owner. Any contributions by Executive Producers at any time, such as script notes, revisions, suggestions for plot, dialogue, characters, or other elements, whether formal or informal, oral or written, and all other results and proceeds of Executive Producers' involvement, shall constitute a work made for hire commissioned by Owner, and therefore Owner shall be the exclusive owner of all copyright and all other rights therein. To the extent any aspect is deemed not to be a work for hire, Executive Producers hereby exclusively assigns to Owner any and all rights therein in perpetuity throughout the universe in all present and future media, including but not limited to internet, mobile and other devices of all platforms. Executive Producers agrees not to enforce any moral or similar rights or any right to terminate an assignment of copyright. Owner shall have the right to use Executive Producers' name, any nickname, likeness, and biographical info in connection with the Picture.
12. SECTION HEADINGS: The headings of paragraphs, sections and other subdivisions of this agreement are for convenient reference only. They shall not be used in any way to govern, limit, modify, construe this agreement or any part or provision thereof or otherwise be given any legal effect.
13. ENTIRE AGREEMENT: This agreement contains the full and complete understanding and agreement between the parties with respect to the within subject matter, and supersedes all other agreements between the parties whether written or oral relating thereto, and may not be modified or amended except by written instrument executed by both of the parties hereto. This agreement shall in all respects be subject to the laws of the state of California applicable to agreements executed and wholly performed within such state.
14. RELATIONSHIP OF THE PARTIES: Executive Producers is an independent contractor and shall not act as, and shall not be deemed, an employee, agent or broker of Owner. There is and shall not be deemed any partnership or joint venture between or among Executive Producers and Owner or their respective principals or personnel.
15. COUNTERPARTS; EXECUTION: This Agreement may be executed in one or more counterparts, and by facsimile, scan, PDF, or other digital signature, which shall be deemed valid, each of which counterparts shall be an original, and all of which shall together constitute the same instrument.
AGREED TO AND ACCEPTED by their respective authorized signatories:
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Document Name: EP Agreement - Black Moth
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