EXHIBIT 99.1
AMENDED AND RESTATED
CONSULTING AND MARKETING LICENSE AGREEMENT
THIS AMENDED AND RESTATED CONSULTING AND MARKETING LICENSE AGREEMENT
(this "Agreement") is between Xxxx Xxxxxxx and or assigns (the "Consultant") and
the other party named on the signature page of this Agreement (the "Company").
Each of the Consultant and the Company are also referred to in this Agreement as
the "Parties."
WHEREAS, the Company intends to develop a market for the Company's
products and services offered from time to time by the Company (the "Products
and Services") for potential customers of the Products and Services who are
racing car enthusiasts; and
WHEREAS, the Consultant is a professional race car driver with name
recognition in the racing car industry; and
WHEREAS, the Company desires to utilize the services of the Consultant
to promote and develop a market for the Company's Products and Services; and
WHEREAS, in connection with the services to be provided by the
Consultant pursuant to this Agreement, the Company desires to grant the
Consultant a non-exclusive license for the limited use of the Company's
tradename, trademark or logo, or any other tradename, trademark or logo of the
Company, as may be agreed upon by the Parties (the "Licensed Trademarks").
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the Parties hereby agree as follows:
1. Scope of Services. The Company hereby retains the Consultant
to promote and develop a market for the Products and Services.
2. Term. This Agreement shall become effective as of the date
set forth on the signature page of this Agreement, and shall continue for a
period of sixty (60) days (the "Term").
3. Grant of Non-exclusive License. Subject to the terms of this
Agreement, the Company hereby grants to the Consultant, and the Consultant
hereby accepts, the non-exclusive license to use the Licensed Trademarks on the
Consultant's racing cars, and on the Consultants racing equipment and clothing,
which shall be owned by the Consultant and shall be operated by the Consultant
in professional racing car competitions at the sole of discretion of the
Consultant. The Company shall supply all camera ready artwork either on disc or
via e-mail.
(a) During the Term of this Agreement the Consultant shall not
negotiate or enter into any license, sub-license agreement of
sub-contract or similar agreement with any third parties in respect of
the Licensed Trademarks, or any right or interest granted by the
Company to the Consultant pursuant to this Agreement, and the
Consultant shall further refrain from directly or indirectly, on his
own behalf, licensing, sub-licensing or sub-contracting the Licensed
Trademarks, or other right or interest granted by the Company to the
Consultant to such third parties other than the operating company that
manages the race cars without the Company's prior written consent.
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(b) No license or right is granted by the Company to the
Consultant, either expressly or by implication, under any licenses or
rights owned or controlled by the Company, or except as expressly set
forth in this Agreement.
(c) The license granted pursuant to this Agreement shall
expire simultaneously with the Term of this Agreement, and shall be
revocable at will by the Company upon written notice to the Consultant,
and the Consultant shall immediately refrain from the use of any rights
granted by the Company to the Consultant with respect to this license
upon receipt of such written notice.
4. Compensation; Grant to Stock Option. In consideration for the
services to be provided by the Consultant to the Company under the terms of this
Agreement, the Company agrees to grant to the Consultant upon the execution of
this Agreement a non-qualified stock option (the "Option") to purchase up to the
number of shares (the "Shares") of the Company's common stock (the "Common
Stock") as set forth below which shall fully vest immediately upon execution of
this Agreement, at an exercise price as set forth below:
Number of Shares or Total Dollar Amount: One Hundred Thousand Dollars
($100,00.00)
Exercise Price or Percentage per Share (in US$): Four Cents ($0.04)
The terms of the Option shall otherwise be set forth in a Non-Qualified Stock
Option Agreement between the Company and the Consultant, substantially in the
form attached as Exhibit "A" to this Agreement. The Company agrees to register
the Shares for resale under the Securities Act of 1933, as amended, pursuant to
a registration statement filed with the Securities and Exchange Commission on
Form S-8 (or, if Form S-8 is not then available, such other form of registration
statement then available), pursuant to the terms of such registration set forth
in the Non-Qualified Stock Option Agreement.
5. Confidentiality. The Consultant covenants that all information
concerning the Company, including proprietary information, which it obtains as a
result of the services rendered pursuant to this Agreement shall be kept
confidential and shall not be used by the Consultant except for the direct
benefit of the Company nor shall the confidential information be disclosed by
the Consultant to any third party without the prior written approval of the
Company, provided, however, that the Consultant shall not be obligated to treat
as confidential, or return to the Company copies of any confidential information
that (i) was publicly known at the time of the disclosure to Consultant, (ii)
becomes publicly known or available thereafter other than by any means in
violation of this Agreement or any other duty owed to the Company by the
Consultant, or (iii) is lawfully disclosed to the Consultant by a third party.
6. Independent Contractor. The Consultant and the Company hereby ack-
nowledge that the Consultant is an independent contractor. The Consultant agrees
not to hold himself out as, nor shall he take any action from which others might
reasonably infer that the Consultant is a partner or agent of, or a joint
venturer with the Company. In addition, the Consultant shall take
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no action which, to the knowledge of the Consultant, binds, or purports to bind,
the Company to any contract or agreement.
7. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
agreement between the Parties, and may not be waived, amended, modified
or supplemented except by agreement in writing signed by the Party
against whom enforcement of any waiver, amendment, modification or
supplement is sought. Waiver of or failure to exercise any rights
provided by this Agreement in any respect shall not be deemed a waiver
of any further or future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of California, and the Parties agree that
the exclusive jurisdiction for any litigation or arbitration arising
from this Agreement shall be in Los Angeles, California, or New York
City, New York to be mutually agreed upon the both parties.
(c) Successors and Assigns. This Agreement shall be binding
upon the Parties, their successors and assigns, provided, however, that
the Consultant shall not permit any other person or entity to assume
these obligations hereunder without the prior written approval of the
Company which approval shall not be unreasonably withheld and written
notice f the Company's position shall be given within ten (10) days
after approval has been requested.
(d) Indemnification. The Company shall indemnify the
Consultant for all losses or damages sustained (including reasonable
attorney fees and disbursements) as incurred by the Consultant arising
from the Consultant performing services under this Agreement.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but which
when taken together shall constitute one agreement.
(f) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the Parties hereto have executed or caused this
Agreement to be executed as of the date set forth below.
Dated: July 2, 2001 CONSULTANT:
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address for Notices:
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Dated: July 2, 2001 COMPANY:
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SPORTSNUTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: President
S-1
EXHIBIT "A"
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is between
Xxxx Xxxxxxx (the "Grantee") and the other party named on the signature page of
this Agreement (the "Company"). Each of the Grantee and the Company are also
referred to in this Agreement as the "Parties."
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") has authorized the grant to the Grantee, for services to be rendered
by the Grantee as a consultant to the Company pursuant to the terms of a
Consulting and Marketing License Agreement (the "Consulting Agreement") between
the Company and the Grantee, of a non-qualified stock option (the "Option") to
purchase the number of shares of the Company's common stock (the "Common Stock")
specified in paragraph 1 of this Agreement, at the price specified in paragraph
1 of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
Board of Directors, the Company hereby grants to the Grantee, in consideration
of consulting services to be performed for the benefit of the Company pursuant
to the Consulting Agreement, an option ("Option") to purchase the number of
common shares ("Option Shares") of Common Stock set forth below, at the exercise
price set forth below:
Number of Shares or Total Dollar amount: One Hundred Thousand Dollars
($100,000.00)
Exercise Price or Percentage per Share (in US$): Four Cents ($0.04)
2. Term. The Option and this Agreement shall expire ten (10) years
from the date of this Agreement.
3. Shares Subject to Exercise. The Option and this Agreement shall be
immediately exercisable and shall remain exercisable for the entire Term speci-
fied in Paragraph 2 of this Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole or
from time to time in part by written notice delivered to the Company stating the
number of Option Shares with respect to which the Option is then being
exercised, together with a check or wire to the Company in the amount equal to
the Exercise Price multiplied by the number of Option Shares then being issued
pursuant to the written notice of exercise. Not less than one hundred (100)
Option Shares may be purchased upon exercise of the Option at any one time
unless the number of Option Shares for which exercise of the Option is being
made is all of the Option
Exhibit A - 1
Shares then issuable upon exercise of the Option. Only whole shares shall be
issued upon exercise of the Option.
5. Tax Withholding. As a condition to exercise of the options
Grantee shall be liable to pay to all applicable federal, state and local taxes.
6. Exercise Following Termination of Consulting Agreement. The Option
shall not terminate as a result of the termination of Grantee's services as a
consultant to the Company pursuant to the Consulting Agreement.
7. Transferability. The Option and this Agreement may not be assigned
or transferred except by will or by the laws of descent and distribution, and
with consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
shareholder with respect to the Option Shares issued from time to time upon
exercise of the Option until the earlier of: (1) the date of issuance of a stock
certificate or stock certificates to the Grantee applicable to the Option Shares
then issuable to the Grantee upon exercise of the Option and (2) the date on
which the Grantee or his nominee is recorded as owner of such Option Shares on
the Company's stock ledger by the Company's registrar and transfer agent, which
may be the Company. Except as set forth in paragraph 13 of this Agreement, no
adjustment will be made for dividends or other rights for which the record date
is prior to the earlier of the events describe din clauses (1) and (2) of this
paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that,
upon the Grantee's exercise of the Option in whole or in part, unless there is
in effect at that time under the Securities Act of 1933 a registration statement
relating to the Option Shares, the Grantee will acquire the Option Shares for
the purpose of investment and not with a view to their resale or further
distribution, and that upon such exercise hereof, the Grantee will furnish to
the Company a written statement to such effect, satisfactory to the Company in
form and substance.
10. Shares Qualified for Listing. Company represents that its Common
Stock is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including, without the NASDAQ
Bulletin Board, and for trading with the California Department of Corporations
or such other applicable jurisdictions.
11. Registration Rights. Upon signing this Agreement, the Company shall
immediately, at the Company's expense, use its best efforts to file with the
Securities and Exchange Commission ("SEC"), a registration statement
("Registration Statement") on Form S-8 or other comparable form, or if such form
is not then available, such other form of registration statement then available,
in such form as to comply with applicable federal and state laws for the purpose
of registering or qualifying the Option Shares for public resale by the Grantee,
and prepare and file with the appropriate state securities regulatory
authorities the documents reasonably necessary to register or qualify the Option
Shares, subject to the ability of the Company to register or qualify the Option
Shares under applicable state law.
Exhibit A - 2
12. Notices. All notices to the Company shall be addressed to the
Company at the principal office of the Company at the address and facsimile
number set forth on the signature page of this Agreement, and all notices to the
Grantee shall be addressed to the Grantee at the address and facsimile number of
the grantee set forth on the signature page of this Agreement or, if different,
the last address and facsimile number on file with the Company, or to such other
address and facsimile number as either may designate to the other in writing. A
notice shall be deemed to be duly given if and when enclosed in a properly
addressed sealed envelope deposited, postage prepaid and followed by facsimile
to the addressee. In lieu of giving notice by mail as aforesaid, written notices
under this Agreement may be given by personal delivery to the Grantee or to the
Company (as the case may be) by nationally recognized courier or overnight
delivery service.
13. Adjustments. If there is any change in the capitalization of the
Company after the date of this Agreement affecting in any manner the number of
kind of outstanding shares of Common Stock of the Company, whether by stock
dividend, stock split, reclassification or recapitalization of such stock, or
because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate pursuant to
paragraph 14 of this Agreement), then the number and kind of shares then subject
to the Option and the exercise price to be paid for the Option Shares shall be
appropriately adjusted by the Board of Directors; provided however, that in no
event shall any such adjustment result in the Company being required to sell or
issue any fractional shares. Any such adjustment shall be made without change in
the aggregate exercise price applicable to the unexercised portion of the
Option, but with an appropriate adjustment to the exercise price of each Option
Share or other unit of security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other
provisions of this Agreement, in the event of the reorganization, merger or
consolidation of the Company with one or more corporations as a result of which
the Company is not the surviving corporation, or the sale of substantially all
the assets of the Company or of more than fifty percent (50%) of the then
outstanding stock of the Company to another corporation or other entity in a
single transaction, the Option granted hereunder shall terminate, provided
however, that not later than five (5) days before the effective date of such
merger or consolidation or sale of assets in which the Company is not the
surviving corporation, the surviving corporation may, but shall not be so
obligated to, tender to the Grantee an option to purchase a number of shares of
capital stock of the surviving corporation equal to the number of Option Shares
then issuable upon exercise of the Option, and such new option or options for
shares of the surviving corporation shall contain such terms, conditions and
provisions as shall be required substantially to preserve the rights and
benefits of the Option and this Agreement.
15. Miscellaneous.
(a) Entire Agreement. This Agreement and the Consulting
Agreement contain the entire agreement between the Parties, and may not
be waived, amended, modified or supplemented except by agreement in
writing signed by the Party against whom enforcement of any waiver,
amendment, modification or supplement is sought. Waiver of or failure
to exercise any rights provided by this Agreement and the Consulting
Agreement in any respect shall not be deemed a waiver of any further or
future rights.
Exhibit A - 3
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of California, and the Parties agree that
the exclusive jurisdiction for any litigation or arbitration arising
from this Agreement shall be in Los Angeles, California or New York
City, New York to be mutually agreed upon by both parties.
(c) Counterpart. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(d) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
(SIGNATURE PAGE FOLLOWS)
Exhibit A - 4
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date set forth below.
DATED: July 2, 2001
OPTIONEE:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Social Security Number
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Address for Notices:
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COMPANY:
SPORTSNUTS, INC.
By:/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Its: President
Exhibit A - S-2
