Either You're in or You're in the Way

by Logan Miller

  “How much money have you guys raised?” Brian asked.

  “We have three hundred thousand committed.”

  “Committed?”

  “Yeah, committed.”

  “Is it in the bank?”

  “No, not yet…It’s from people we know…Friends. They’re good for it.”

  “I’m sure they are,” Brian said, amused. “Do you have a signed contract from Ed Harris?”

  “No. Not yet.”

  “So how long do you think that will take?”

  “He’s doing our movie. He gave us his word. We shook on it.”

  Brian looked across his desk at Mike, skeptical. We were a couple of naive kids sitting in front of men who negotiate $100 million deals on vacation.

  “Ed is doing our movie,” Noah continued. “We shook on it. He’s a good guy. A contract is only as good as the man’s word behind it, and Ed is a good man. Anyone can sign a contract and then violate it.”

  “But it’s better to have a contract than not have one,” Brian said.

  Then Mike asked, “How long will it take to get Ed signed?”

  We knew this would come up. It had to if their interest was genuine.

  “Ed shook on it,” Noah repeated.

  “Come on guys, a handshake?” Brian said. “This isn’t 1850.”

  “How much would you be willing to invest?” Noah asked.

  “I’ll take down whatever you guys have left,” Brian said in an offhand, nonchalant manner. He checked his watch.

  “Whatever we have left?”

  “Yeah, whatever you have left…So the total budget minus…what did you say you have committed, three hundred thousand?”

  “Well…uhm, it’s not exactly committed for sure…”

  In theory, under the best circumstances and generosity, we could round up $300,000. These were informal commitments made to us by blue-collared folks, not savvy investors. Could they come up with their commitment? Would they come up with their commitment when the hour came? Fifty-fifty at best. We only said this because nobody wants to be the first money in the game—nobody, that is, except for a ballsy, confident, instinctive, risk-taking investor like Brian Vail. Guys like Brian Vail listen to their gut. They don’t wait for the verdict, they make the verdict.

  “Whatever it is, I’ll take down the rest.” Brian said.

  “You’re not blowing smoke up our asses, are you?” Noah asked. “We’ve had a lot of people blow smoke up our asses. We’re choking on it. We don’t need any more of it.”

  The meeting had changed so abruptly that we questioned Brian’s sincerity. In a few minutes it had gone from a nightmarish jabberfest to the genie rising out of the lamp.

  “I’m serious guys. I think it’s a great investment. With all the help from Panavision and Kodak, and all those other people, I figure I’m getting a lot on my dollar…And the chart on your business plan makes the investment even more attractive. Hey, I know it’s risky.”

  He was referring to a chart listing the box office grosses of movies starring Ed Harris that we found on the Internet and inserted into our business plan. We felt the chart was one of our strongest selling points. Movies starring Ed Harris averaged $36 million in domestic box office receipts. The investment we were selling was a fraction of his average draw.

  Brian checked his watch again. Mike was writing on his notepad, head down. “Guys, I got another meeting.”

  “So what’s the next step?”

  “We’ll get back to you.”

  “When?”

  “Soon.

  SOON IS SOON

  Two hours later Mike Walker sent us an e-mail.

  The speed of their proposal shocked us.

  The first salvo of the negotiation had been fired.

  On our way home from Sacramento we stopped at a fruit stand along I-80 near Davis, ate some almonds, walnuts, and dried apricots under the shade of an oak tree, and stopped by our buddy’s house two hours after we left Brian’s office, not expecting to hear from Brian or Mike for at least a few days.

  We checked our e-mail on our buddy’s computer and saw their proposal. We said goodbye and raced back to our house. The speed of the negotiation would be dictated by our response.

  We printed their proposal, marked it up with red pens and highlighters, and called Gordon to discuss. Some of their terms we could accept immediately. They had all the leverage and were being surprisingly fair with us. Movie financiers are notorious for cutting pounds of flesh from struggling filmmakers, and they weren’t.

  Most of their terms were win-win. They had a long-range vision for our relationship. But there was one condition that could potentially sink the deal: a signed contract from Ed Harris. This could take months. As our attorney Matthew Fladell said, “Ed probably won’t be signed until next January.”

  CAA was not going to let Ed sign a contract until he was done filming. Why? Because the agency did not want him to do our movie. They certainly prayed he would pull out somewhere between now (late June) and Thanksgiving. The odds were in CAA’s favor. If they waited us out, somewhere along the line we’d fail.

  “Guys, you have a tough negotiation ahead of you,” Gordon said, referring to Brian’s proposed terms. “But this is a good sign…I would say you’ll be lucky if you can close this in eight to twelve weeks.”

  “We don’t have eight weeks. We got two, maybe three.”

  “It ain’t gonna happen, guys. You have to let negotiations work through certain steps, rhythms. You have to be patient. Nobody closes this type of money with first-time directors and producers in two weeks. Nobody. I’ve never heard of it. So be patient.”

  “We have only two weeks, Gordon. We gotta close the financing in two weeks.”

  Gordon is the counterbalance to our financial impulses. He wasn’t trying to discourage us. He’s pragmatic, gives you the hard reality. And that’s why we go toe-to-toe with him all the time. The volatile contrast between his personality and ours often erupts into a verbal slugfest. But we love him for it.

  “Be patient,” Gordon said. “It may take longer than that. It could take months…It most likely won’t happen. That’s the reality. You need to continue searching for other prospective investors.”

  “Gordon, this is our guy. We have to make it work. Have to. Two weeks is all we got.”

  “You’re insane, guys. Get out of that dream world you live in. You want to hang yourself? Closing financing is an intricate, tricky negotiation. You have to work through the steps.”

  “We got two weeks.”

  DRIVING TO BE HEARD

  In order to drive the negotiation, we physically drove back to Sacramento the next day—220 miles round-trip. Of course, it was more convenient to conduct the negotiation over the phone or e-mail. But we weren’t looking for convenience. We were looking to close the deal.

  After our first meeting, Brian told us that Mike would exclusively handle the negotiation; we probably wouldn’t talk to Brian again until we reached an agreement. And if we didn’t, good luck.

  We met Mike in the conference room and sat at a long wood table. There were abstract canvases on the wall and a huge six-foot-by-eight-foot satellite image of Sacramento, a patchwork of neighborhoods, golf courses, and industry. Brian Vail owned half of it.

  We started going over the contract, point by point. For us, creative control was the most important condition, a nonstarter. We needed 100 percent. We couldn’t have the financier interfering with our vision. “Hey, my cousin is an actor. He’s gonna be the bartender,” or “You need a sex scene. I want to see some tits.” Whatever went onscreen started and ended with us. Good or bad. If the movie failed, we’d bear the burden. If it succeeded, we’d probably get another chance to make one.

  “We’ll let you guys do your job,” Mike said. “Frankly, we don’t know anything about making movies. We’re investors. We invest in people and let them do what they’re good at.”

  “We need to have creative control over the budget as w
ell,” Noah said.

  “What do you mean?”

  “We need to be able to allocate monies freely, to shift around cash and not be fixed to a specific amount for each line item. Some line items are going to be cheaper than our current budget indicates, and others are going to be more expensive. We may be able to get certain locations for free, locations that we’ve set aside several thousand dollars for. Other locations will cost more than anticipated.”

  There was a condition in their proposal that would not allow any line item in our preliminary budget to exceed 110 percent of its anticipated cost. This would have crippled us. Movie budgets are massive spreadsheets, sometimes hundreds of pages, with thousands of line items and figures. On a small budget like ours, non-union, everything was negotiable. We needed that economic freedom.

  Noah said, “The budget needs to be viewed in the aggregate, not by each line item or department. These are just estimates, figures that we’ll do our best to stay within. But so many aspects on the financial side shift daily. For example, if we have to shoot more film in order to get it right, then we will. We’ll pull money from another department, and vice versa. This will cause some line items to exceed their initial estimate, some will be lower, and some will be eliminated entirely. The only thing that matters is that we don’t exceed the entire budget, the aggregate. If we deliver the movie without overages, what does it matter how we allocate specific line items? It’s the whole that counts. Ultimately, we are going to put as much money as possible onscreen. We won’t pay ourselves a dime until the movie is finished. Nothing.”

  We weren’t taking 10 percent in salaries off the top, a reasonable amount for writing, producing, acting, directing, raising the money, and everything else we were doing. They took comfort in knowing the only way we’d get paid was if we brought in the movie on budget.

  The line item provision, however, was a sticking point for Mike. To him, it was a reasonable way to control the budget. But we couldn’t produce the movie under that limitation. It was all improvisation. And we needed the financial freedom to improvise. An hour later he conceded the point.

  Three hours later we had agreed on most of the terms. But we remained deadlocked on two issues: a signed contract from Ed Harris and the amount of interest we’d pay on Brian’s money. They wanted a rolling interest rate. We wanted it capped.

  Mike was worn out. So we ended negotiations for the day.

  “I’ll discuss the remaining issues with Brian.”

  “How long until you get back to us, Mike?”

  “I’ll get back to you tomorrow.”

  We called Gordon. He was shocked.

  “I can’t believe you guys were able to come to an agreement on most of the issues.” He paused. No one pauses longer than Gordon on the phone. “Still, getting a signature and the money is a long ways off. Guys, you have to stay firm on the Ed Harris contract provision and the amount of interest you’ll pay on the money. Keep hammering them. Let Brian and Mike know that it’s unrealistic for Ed to be signed by the time you start filming. This is the way it works in Hollywood…Personally, though, I would never start a production without an actor signed, never did. But you guys are the producers, and in this case, I don’t see it happening. Furthermore, you don’t want to engage Ed’s people at a precarious time like this…And regarding the interest, you’re insane if you agree to a rolling interest rate. Insane. You have to cap it. Otherwise you may never pay it off. Stay firm. Remember, it’s going to take resoluteness, integrity, consistency, and strength. Good show.”

  CAN’T TAKE NOTHING FROM NOTHING

  “YOU’RE INSANE IF you sign this contract,” Gordon said. “Don’t do it.”

  “Gordon, we have to.”

  “No you don’t. You don’t have to sign anything.”

  “We can’t forget the ultimate goal here. We can’t lose sight of that. The goal is to make our movie. And we need money to do that.”

  Two and a half weeks after our first meeting with Brian and Mike, they were ready to escrow several million dollars into a joint account at Borel Private Bank and Trust in San Francisco—without a signed agreement from Ed to appear in our movie. (This took a lifetime’s worth of finessing.) However, Brian was not obligated to release the full amount of money without a signed contract from Ed. This was a huge concern of ours. We could shoot half our movie in September, and Brian could pull the plug at any time. It was a massive risk.

  (Remember, we had elected to break up our shooting schedule: three weeks in September, without Ed Harris, then a two-month hiatus, returning in December for two weeks with Ed, Brad Dourif, and Robert Forster.)

  Gordon and our attorney, Matthew Fladell, thought the deal would collapse. Gordon was most concerned with the rolling interest rate, which we hadn’t managed to overcome, while Matthew was most concerned with the full release of monies contingent on a signed contract from Ed.

  Here’s what we heard from them daily:

  Gordon: “Ed is a mensch. He’s doing your movie. Stop worrying about Ed…But the interest rate is driving me nuts!”

  Matthew: “Stop telling me Ed will show up and do your movie. You don’t know that. He has not signed a contract. He’s not legally bound.”

  “He shook on it. He’s a good guy,” we’d reply, attempting to convince him as well as ourselves.

  Matthew: “A handshake doesn’t mean shit in this business. You guys gotta stop being so damn naive.”

  Both Gordon and Matthew: “If Brian decides to pull the plug halfway through and fails to finance the entire movie because Ed backs out or you don’t get him signed before, let’s say, the real estate market tanks, or any number of variables, then you guys will be faced with the harsh and very real prospect of lawsuits. You will be sued! You will owe hundreds of thousands of dollars on unfulfilled contracts. What’s more, Brian could sue you guys for fraud and misrepresentation.”

  What they were saying was true, but wrong.

  “Who cares if we get sued?!” Noah yelled at Gordon and Matthew on a conference call. “We don’t own anything. You can’t take nothing from nothing!”

  “I’m against you signing this contract…I strongly advise against it,” Gordon said.

  “It’s taken us too long to get here,” Logan said. “We gotta move now.”

  Mike had sent us a revised contract that morning. Brian was prepared to sign. We were sitting in our stifling room with no windows. Gordon was beating us up over the phone. “Insane!” We had come so far in such a short time, exceeding all the experts’ wisdom and experience in negotiating the terms of the financial agreement. We had wrangled face-to-face with Mike almost every day, driving the 220 mile round-trip to Sacramento. We’d battled over the phone, been picked up and slammed down repeatedly. Mike is a fierce negotiator. His tactics are the opposite of ours. We use many words. He uses few. As we would get hot, he would get cold. We were on the brink of realizing our dream.

  All we needed was the money. All we needed to do was sign the contract.

  We called Mike one last time to see if they would concede on the interest rate. They were firm. It was a deal breaker for them. We stepped outside and went for a long walk in the woods. Our guts still contradicted our advisors. We felt that we were losing sight of our goal. Our goal was to make our movie. Three months earlier, if placed in this situation, we would have signed the contract the moment it was thrown on the table.

  We sat on the ridge overlooking the valley. Oak trees and redwoods covered the hills and ravines. It was hot summer and the forest was quiet. About a half mile down we could see the patch of scotch broom where our dad’s hideout was.

  We remembered what he told us, sitting on his tailgate, eating peanut butter sandwiches when we were seven or eight years old, simple wisdom we’ve carried with us. It was a wet Saturday afternoon, wintertime, a light rain coming and going. Our dad had four dollars to his name. He pulled his truck into a grocery store parking lot and bought a loaf of bread and a jar of peanut butter to last
us through the weekend. He let down the tailgate and made us sandwiches with a metal spoon he had in his glove box.

  “I know it ain’t much boys, but right now it’s all we got,” he said.

  It started drizzling, and we sat there with our feet dangling off the tailgate, eating peanut butter sandwiches, hanging out with Dad. He wasn’t drinking. And we were happy…

  “So we gotta pay interest,” Noah said. “So what? No money is free. And if we don’t make any money off the movie, then we don’t pay any interest. Don’t see the problem there. We gotta look at the situation from our perspective. Both the guys giving us advice own homes, have lucrative careers, have lots of money. The interest rate is a rich person’s problem, and the last time I checked, we were still broke…Their wisdom and experience is getting in the way…What would Dad say?”

  “Make your movie.”

  “We can’t forget our game,” Noah said. “We’ve already gone all in, passed that point a long time ago. We don’t know how to play the nickel-and-dime tables. It’s not our style. We’ve never had any success that way…Signing the financial agreement makes our movie possible. And don’t forget, we still owe forty-five grand from Tucson. We sign this deal and we pay that off, move out of Mom’s house…Brian’s offer is all we got right now and I’m damn happy we got it.”

  We walked down the hill and back to our room. The wooden box with our dad’s ashes inside was sitting on the shelf.

  We called Mike. “Let’s do it.”

  AND AWAY WE GO

  “We want to sign the financing agreement in person…Before Brian hops on the jet.”

  “He takes off at 9:30 A.M.,” Mike said. “But he gets back at 3 P.M. Wouldn’t it be a lot easier on you guys to just meet him at the office in the afternoon?”

  There was no way we were going to risk Brian getting on that flight without the financial agreement signed. What if he crashed? As soon as we heard the word “flight” we became uneasy—head him off at the airport before the plane leaves the ground.

  Of course, with modern technology and all its conveniences, we didn’t need to drive to Sacramento and sign the agreement in person. We could have exchanged signatures by fax or e-mail. But we wanted to make sure Brian signed the financial agreement BEFORE he hopped on his jet. And the only way to guarantee that was to be in his face with the contract before he flew away. Brian certainly wasn’t thinking about the grim prospects of his jet going down and the consequences that would have on our movie. But we were…Or, less tragic to Brian, but no less tragic to us, what if the plane didn’t go down and Brian changed his mind by the afternoon—perhaps the stock market crashed or an investment of his went belly up and he no longer wanted to plunge into the dice game.