EXHIBIT 10
CONSULTING AND MARKETING LICENSE AGREEMENT
THIS CONSULTING AND MARKETING LICENSE AGREEMENT (this "Agreement") is
between Xxxx Xxxxxxx (the "Consultant") and the other party named on the
signature page to 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. The Consultant agrees to use
his best efforts during the term of this Agreement to market and promote 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 one (1)
year (the "Term"). Notwithstanding the foregoing, the Company or the Consultant
shall be entitled to terminate this Agreement for "cause" upon 30 days' written
notice, which written notice shall be effective upon mailing by first class mail
accompanied by facsimile transmission to the Consultant at the address and
telecopier number last provided by the Consultant to the Company. "Cause" shall
be determined solely as to the violation of any rule or regulation of any
regulatory agency, and other neglect, act or omission detrimental to the conduct
of Company or the Consultant's business, material breach of this Agreement or
any unauthorized disclosure of any of the secrets or confidential information of
Company, and dishonesty related to independent contractor status.
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 operated by the Consultant in professional racing car competitions at the
sole of discretion of the Consultant.
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(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 without the Company's prior written consent.
(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, 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 of 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: $3,000,000
The lesser of, The Thirty Day Low or:
Percentage per Share : 50% of the preceding 10 day low average
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 upon signing of this agreement 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 available), pursuant to the terms of such
registration set forth in the Non-Qualified Stock Option Agreement. The Company
shall pay to the race team an amount of stock equivalent to 5% of the total
shares issued to the Consultant, pro rata on a monthly basis.
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
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as confidential, or return to the Company copies of any confidential information
that (i) was publicly known at the time of 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
acknowledge 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 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 New York, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from this
Agreement shall be in New York City, N.Y.
(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 of 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.
Date: June 20, 2002 CONSULTANT:
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/s/
---------------------------------
Xxxx Xxxxxxx
Address for Notices:
P.O. 5629
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Xxxxxxx, Id
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83340
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COMPANY:
INTERSPACE ENTERPRISES, INC.
---------------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and C.E.O.
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EXHIBIT A
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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 to
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: $3,000,000
The lesser of the Thirty Day Low Or:
Percentage per Share : 50% of the preceding 10 day low average
2. Term. The Option and this Agreement shall expire one (1) year from the
date of this Agreement.
3. Shares Subject To Exercise. The Option shall be immediately exercisable
and shall remain exercisable for the entire Term specified 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 and/or a wire transfer made payable 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, plus
the amount of applicable federal, state and local withholding taxes, provided,
however, that such taxes may be satisfied by the withholding of Option Shares
then issuable upon the exercise of the Option pursuant to paragraph 5 of this
Agreement. Not less than one hundred (100) Option Shares may be purchased upon
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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 Shares then
issuable upon exercise of the Option. This exercise is subject to market
conditions. Only whole shares shall be issued upon exercise of the Option.
Grantee has the right to accelerate option exercise at his sole discretion at
any time.
5. Tax Withholding. As a condition to exercise of the Option, the Company
may require the Grantee to pay to the Company all applicable federal, state and
local taxes which the Company is required to withhold with respect to the
exercise of the Option. Or the Grantee is liable for filing and paying all of
his own 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 form 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 described in 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. On or before the day of this Agreement, the
Company shall, at the Company's expense, 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
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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.
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 provision
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 grated 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.
(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.
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15. Miscellaneous.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of New York, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from this
Agreement shall be in New York City, N.Y.
(c) 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.
(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)
A-4
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below.
Date: June 20, 2002 OPTIONEE:
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/s/
---------------------------------
Xxxx Xxxxxxx
Address for Notices:
X.X. Xxx 0000
---------------------------------
Xxxxxxx, Id.
---------------------------------
83340
---------------------------------
COMPANY:
INTERSPACE ENTERPRISES, INC.
---------------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title Chairman and C.E.O.
A-5
Exhibit B
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Option Exercise Schedule
$300,000 immediately upon registration and delivery of shares
Up to $300,000 every month there after to total $3,000,000
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
date set forth below.
Date: __________________ OPTIONEE:
---------------------------------
Address for Notices:
X.X. Xxx 0000
Xxxxxxx, Xx
00000
Company:
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By:
-------------------------------
Name:
Title:
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