NONCIRCUMVENTION
AGREEMENT
This agreement
(the "Agreement") is made by and between
,
, its officers, directors, shareholders,
employees, agents, associates, successors and assigns (“PRODUCER”), and
(“INTERMEDIARY”) on this the
day of
, (collectively,
the “Parties”).
WHEREAS,
PRODUCER has certain film and television projects in development (the “Projects”),
and has various development materials and confidential business information,
including graphic artwork, legal and financial documents, and other textual
material (the "Documents");
WHEREAS,
INTERMEDIARY wishes to review the Documents and discuss the Projects with
potential investors, distributors and financiers (the “Financiers”) for possible
investment or other business involvement. INTERMEDIARY is interested in executive producing one or more of
the Projects, including obtaining financial commitments, talent agreements
and distribution arrangements;
NOW, THEREFORE,
for good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the parties to this Noncircumvention Agreement agree
as follows:
1. Noncircumvention. Subject to the exclusions and limitations
contained in paragraphs IV and V, below, PRODUCER agrees, during the term
of this Agreement, not directly or indirectly to approach any of the Financiers,
nor to disclose the identity of the Financiers to third parties for the purposes
of obtaining investment capital, loans, contracts or other valuable interests,
commitments, instruments, or property which PRODUCER might utilize in the
development, packaging, financing, production, distribution or other advancement
or exploitation of the Projects. INTERMEDIARY shall disclose the identity of the Financiers to PRODUCER
concurrently with or within reasonable time after commencing discussions regarding
the Projects with such Financiers. PRODUCER acknowledges and agrees that the Financiers
are and shall remain for the duration of this Agreement, proprietary to INTERMEDIARY,
subject to the exclusions provided in paragraph IV, below.
The Parties acknowledge and agree that the contents of this Agreement
are confidential, and each agrees to treat the information contained herein
as confidential, subject to disclosures that may become necessary for: the
preparation and execution of subsequent confidential documents; and the protection
of the parties’ respective interests, rights and obligations arising from
or related to the Agreement.
2. Term. The term of this Agreement shall commence as
of the date first indicated above, shall extend for three (3) years from same,
and shall automatically renew for subsequent three (3) year periods from the
date of any transaction that involves the Financiers and which is related
to the Projects, without regard to success of the Projects, or the complete
performance of either party to such
transaction, excluding only full execution of binding, contractual documents.
3. INTERMEDIARY’S Consideration. If during the term, PRODUCER successfully obtains whole or partial
financing for any of the Projects from any of the Financiers, then INTERMEDIARY
shall be paid a consulting fee equivalent to five-percent (5%) of the gross
proceeds received by PRODUCER, with other customary terms to be negotiated
in good faith, including an Executive Producer credit on the Project(s) which
are partially or wholly financed by the Financier(s).
4. Excluded
Persons. For purposes
of this Agreement, the Financiers shall not include those persons or entities
itemized on Appendix A, Excluded Financiers, which is attached and incorporated
herein by reference, unless INTERMEDIARY and PRODUCER expressly agree otherwise
in writing.
5. Miscellaneous. This Agreement includes
the entire understanding of the Parties with respect to the subject matter
hereof, and all prior and concurrent oral agreements, and all prior written
agreements with respect to such subject matter have been merged herein. This
Agreement may not be modified, except in a written instrument signed by the
parties. Any
dispute relating to this agreement shall be resolved by final and binding
arbitration under the rules of the American Arbitration Association in Los
Angeles, California, and judgment upon the award of the arbitrator(s) may
be entered in any court having jurisdiction, with the prevailing party entitled
to recover reasonable attorney's fees and costs of enforcement. The arbitrator
may grant any remedy or relief that is fair and equitable, including the award
of attorney’s fees and costs, including costs of enforcement, and judgment
rendered by the arbitrator may be entered in any court having jurisdiction
thereof, it being agreed that the State District Courts in Los Angeles County,
California have jurisdiction and venue over any dispute involving this Agreement. If any provision contained in this Agreement
is found to be unenforceable or invalid, such provision shall be unenforceable
or invalid only to the extent necessary to bring it within the legal requirements,
and all other provisions contained herein shall remain in full force and effect.
Nothing herein shall be construed so as to require the commission of
any act contrary to law, and if there is any conflict between any provision
of this Agreement and any applicable law, the latter shall prevail, but then
any provision of this Agreement so affected shall be limited only to the extent
necessary to bring it within the legal requirements, and other provisions
of this Agreement not so contrary shall remain in full force and effect.
This Agreement shall be governed by the laws of the State of California
applicable to contracts fully performed and executed therein.
ACKNOWLEDGED AND AGREED this
day of
, .
(“INTERMEDIARY”)
(“PRODUCER”)
By:
By:
Its:
Its:
APPENDIX A
Excluded Financiers
Individuals
Companies