Producer’s Representative Letterhead
DATE
[NAME]
Personal & Confidential
[COMPANY]
[ADDRESS, ETC.]
Re: Engagement Agreement for Producer’s Representative
Services
Dear
[NAME]:
This Agreement (the “Agreement”) will
confirm our understanding on the date indicated above, of the relationship
between you (“Client”) and me (“Representative”) in connection with the motion
picture project titled (the “Picture” or the “Project”).
1.
Services. You hereby engage my nonexclusive
services as Producer’s Representative for the Picture. I agree to provide Producer’s Representative
services of the kind that are customarily and usually provided in connection
with motion picture productions similar to the Picture, which services may
include: consultation with you on various aspects of development, packaging,
producing, financing and distributing the Project; attempting to secure contractual
relationships relating to the Project(s) with financiers, investors, distributors
and other licensees; drafting, review, negotiation, and comment on distribution
and license agreements; the services described in paragraph 5 below; and other
Producer’s Representative services (collectively, the “Services”).
Representative shall have the sole and exclusive right: to contact
and deal with distribution and/or foreign sales companies/entities with respect
to the Project; to arrange for distribution, licensing and commercial exploitation
of the Picture; and to draft, review, negotiate agreements for said distribution,
licensing and exploitation (collectively, the “Licensing Agreements”) (collectively,
the “Exclusive Services”). Client
shall not circumvent, arrange for completion financing, or negotiate or execute
the Licensing Agreements except through Representative. It is expressly agreed and understood that nothing in this Agreement
shall prevent Client from arranging for financing, distribution or licensing
of the Project; provided, however, that all such efforts: shall be made in
consultation with Representative, shall not involve any third party undertaking
the Exclusive Services, shall be subject to the terms of this Agreement, and
any transactions which arise out of such financing, distribution or licensing
efforts shall be subject to Representative’s fee as set forth below. Further,
we expressly agree that you shall have final approval over all Licensing Agreements
and financing arrangements entered into with regard to the Project, which
approval shall not be unreasonably withheld. You understand that the Services
are nonexclusive to you, and that I may represent other filmmakers in similar
capacities.
2. Fees.
For and in consideration of the Services, I agree to accept: (a) a flat
fee advance payment of dollars, recoupable
from a (b) contingency fee of -percent
( %) of one-
hundred
percent (100%) of Adjusted Gross Revenues for the Project. For purposes of this Agreement, Adjusted Gross
Revenues shall mean the sum of: all license fees, sales prices, advances,
deposits or other consideration (including, without limitation, any post-production
or completion funding obtained after full-execution of this Agreement, or
other goods and services) derived from the worldwide exploitation of the Project
in any and all markets and media received by Client at any time; less $
(for
partial recoupment of negative cost).[ENDNOTE 1] The above described contingency fee is not set by law and is negotiable
between you and me. The Fees do not include reimbursement for Expenses, described
below in paragraph 6.
3.
Credit.
For the Services, Representative shall receive a credit (“Producer’s Representative
– ”).
4.
Term. The
Initial Term of this Agreement shall be one (1) year from the date of its
full execution; provided, however, that in the event I am in negotiations
with a distributor or other licensee for distribution or license of the Project,
the Initial Term shall automatically renew for an additional ninety (90) days.
Upon expiration of the Initial Term, either of us may terminate at any time
upon thirty (30) days advance written notice. Until this Agreement is terminated
by such notice, its Term shall be automatically extended. Upon termination,
Representative shall no longer have the right to provide the Services or the
Soundtrack Services. However, all other of Client’s obligations under the
Agreement, including without limitation Client’s representations and warranties,
Representative’s compensation, and AFMA arbitration shall survive the termination
of the Agreement.
5.
Soundtrack. In addition to the Services described above in paragraph 1, I will provide
the following film soundtrack related services: advise and consult with respect
to selection of Music Supervisor; advise and consult with respect to the commissioning
of soundtrack compositions by songwriters and artists; advise and consult
with respect to obtaining soundtrack production budget from potential film
distributors and soundtrack record labels; and advise and consult with respect
to your financial participation in soundtrack recording royalties (record,
mechanical, performance and other), and ownership interest in and administration
of soundtrack recordings (such participation in royalties, ownership and administration,
hereafter “Soundtrack Revenues”) (collectively, the “Soundtrack Services”).
The Soundtrack Services Fee shall be an amount to be mutually agreed upon
at a later date, but shall not be less than twenty-percent (20%) of Client’s
total revenues from the soundtrack. It is expressly understood and agreed
that legal drafting and review of soundtrack related contracts are legal services
not provided for by this Agreement; however, Representative agrees to negotiate
in good faith for the provision of such legal services to Client, subject
to my availability. [ENDNOTE 2][
8.
Further Documents. Client shall, upon written request, execute and deliver such further
documents and instruments and do such further acts and things as Representative
may reasonably request to confirm, establish, and perfect Representative’s
rights and interests pursuant to this Agreement, and to effect its purposes
and intentions.
13.
Relationship of Parties. Representative
is an independent contractor, not an employee, agent, joint venturer, or partner
of Client. The Services are not provided on an exclusive basis, and Representative
will provide services similar to those provided Client, to other parties during
the Term. Client agrees that Representative will not perform any functions
of a “broker,” “dealer,” or “investment advisor” as those terms are defined
for purposes of federal or state securities laws, or otherwise subject Representative
to regulation under such laws or enabling regulations.
14.
Miscellaneous. It is contemplated that more
formal agreements inclusive of customary provisions shall be negotiated and
executed by the parties hereto, but unless and until the same are prepared
and executed this Agreement shall constitute the binding agreement of the
parties with respect to the Picture. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes any prior oral or written representations with respect thereto,
any such representations having been merged herein.
Any amendment to this Agreement must be in writing and signed by both
parties. No provision of the Agreement may be waived
except in writing signed by the party against whom enforcement of the waiver
is sought. If any provision contained in this Agreement is found in a court
having jurisdiction or dispute resolution proceeding, including arbitration,
to be unenforceable or invalid, such provision shall be unenforceable or invalid
and all other provisions contained herein shall remain in full force and effect
and enforceable according to their terms. In the event of any dispute relating
to this Agreement agreement, Representative and Client agree that the same
will be submitted to and resolved by final and binding arbitration in Los
Angeles under the rules of the AFMA, as amended from time to time, before
a single arbitrator. The arbitrator may make any interim order, decision,
determinations, or award he or she deems necessary to preserve the status
quo until able to render a final order, decision, determination or award.
Judgment upon the arbitrator’s order, decision, determinations, or award may
be entered in any court having jurisdiction, with the prevailing party entitled
to recover reasonable attorney’s fees and costs of enforcing this Agreement.
This Agreement shall be governed by the laws of the State of California applicable
to contracts fully performed and executed therein. A mutually executed fax
copy may be used for all purposes as an original; however, Client and Representative
each agree to provide, and shall provide the other a fully executed original
counterpart upon request.
If
the above accurately states the terms of our Agreement, please so indicate
by placing your signature in the space provided below and returning a fully
executed original counterpart of this document to my office.
CLIENT
Date
PRODUCER’S REPRESENTATIVE
Date
NOTES
1. By way of example, given
ten (10) license contracts for $1M each, Adjusted Gross Revenues shall equal
the sum of: $10M; less $250,000, for total Adjusted Gross Revenues of $9.75M.
Thus, Representative’s Fee, given such contracts, shall equal 15% of $9.75M,
for a total of $1,462,500.
2. In the event such legal services are requested of Representative,
those services will be provided under, and charged at the rates provided in
.
3. Expenses will be paid to Representative
following calculation of the contingency fee. Thus, in the example
contained in footnote 1, given total expenses of $2500.00, Representative’s
compensation and reimbursement shall equal $1,462,500 + $2500, for a total
of $1,465,000. Expenses relating to the Soundtrack Services shall be reimbursed
in a like manner.
4. “Collateral” shall mean: any and all
Gross Revenues and Adjusted Gross Revenues, whether such monies are paid with
or without arbitration, litigation, settlement, or other dispute resolution;
distribution agreements, license agreements and other contracts and instruments
providing for the commercial exploitation of the Picture and for Soundtrack
Revenues; and all claims and causes of action that are the subject to, or
arise from or subsist in Representative’s provision of the Services and related
circumstances.