EXHIBIT 10.6
[Letterhead of The Tufton Group]
April 1, 1999
Xx. Xxxxx Xxxxx
President
Famous Fixins, Inc.
000 Xxxx 00xx Xx. Xxx. 0000
Xxx Xxxx, X.X. 10107
Re: The Tufton Group/Famous Fixins
Dear Xxxxx:
This letter will confirm the Agreement between The Tufton Group
("Tufton") and Famous Fixins, Inc., under the terms of which Tufton will
furnish the name and likeness of Xxxxxx X. Xxxxxx, Xx. ("Xxxxxx"). The
Agreement is as follows,
1. This Agreement shall commence as of April 1, 1999 and end on
April 1, 2000, unless Famous Fixins sells One Million (1,000,000) units of
the Product (Cal's Classic O's), in which case the Agreement automatically
extends for another year, until April 1, 2001.
2. The Licensed Product ("Product") will include the design,
manufacture, packaging, merchandising, distribution and sale of Cal's Classic
O's Honey Nut Toasted Oat Cereal and related merchandise sold on the back
panel. Famous Fixins shall not use the Licensed Property for any other
purpose other than as expressly herein defined and shall not use the Licensed
Property to endorse any product or service other than the Licensed Product.
3. Tufton hereby grants to Famous Fixins the non-exclusive right,
license, and privilege to utilize the name, picture, visual representation,
biography, performance statistics, facsimile signature, nickname and
photographic image of Xxxxxx for use on the Product.
4. Tufton shall have final and absolute approval of the Product and
of all advertising, packaging and promotional material to be used during all
stages of the development thereof. Famous Fixins agrees to furnish Tufton
(via certified mail or Federal Express), free of cost, at least thirty (30)
business days before the release of the Product [and advertising related to
the Product] to the general public, samples of the Product, as well as
samples of all advertising and promotions that display or picture Ripken. If
a response is not received by Famous Fixins within ten (10) business days
following receipt of the samples, the samples shall be deemed approved. All
samples will be sent to Xxx X. Xxxxxxx, The Tufton Group, 0000 Xxxx Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000.
5. A. During the term of this Agreement, Famous Fixins shall have
the right to sell the Product as well as publish all printed and promotional
materials outlined hereunder, but only in the following geographical
marketing area: The World. However, this geographical market may be limited
by any third party contracts entered into by Famous Fixins including but not
limited to Major League Baseball.
B. Upon expiration or termination, no use or re-use of the
Product, advertising, or promotional materials produced hereunder will be
made without the express written consent of Tufton.
6. A. Famous Fixins agrees to pay Xxxxxx [ ] Percent
([ ]%) of Gross Sales derived from Cal's Classic O's, less slotting fees.
All royalties due to Tufton will be paid to Tufton within thirty (30) days
after the end of each calendar quarter.
B. Famous Fixins shall pay to Tufton [ ] Percent
([ ]%) of net profits from the sale of all related merchandise advertised
on the back panel. All royalties due to Tufton will be paid to Tufton within
thirty (30) days of the end of each calendar quarter.
C. Famous Fixins shall issue Tufton warrants exercisable into
[ ] shares of Famous Fixins stock at an exercise price of [ ]
($[ ]) per share, exercisable for up to Five (5) years from the start
of this Agreement, April 1, 1999.
D. Famous Fixins will donate one side panel of the cereal box
for a personal message from The Xxxxx & Xxx Xxxxxx, Xx. Foundation with
information for the public to contact the foundation for additional
donations.
E. If Famous Fixins sells at least one million (1,000,000)
units of the product and the contract automatically extends for another year,
Famous Fixins shall issue Tufton additional warrants exercisable into [ ]
shares of Famous Fixins stock at an exercisable price of F[ ]
($[ ]) per share, exercisable for up to Five (5) years.
7. X. Xxxxxx shall have the right to terminate this Agreement
upon written notice, by the occurrence of any one or more of the following
events (herein called ("Defaults"), and Famous Fixins failure to cure any
Default completely within fifteen (15) business days from Famous Fixins
receipt of written notice from Tufton specifying the nature of such Default:
(i) If Famous Fixins fails to make any payment due hereunder on
the date due;
(ii) If Famous Fixins fails to deliver the statements when due;
(iii) If Famous Fixins at any time breaches any material term of
this Agreement.
If Tufton terminates this Agreement pursuant to this section, all
rights, licenses, and privileges granted to Famous Fixins hereunder shall
automatically revert to Tufton and Famous Fixins shall cease manufacturing
and sales of the Product. Any and all payments and all inventory of the
Product shall become promptly due and payable in full to Tufton.
B. Famous Fixins shall have the right to terminate this
Agreement upon written notice, by the occurrence of a material breach by
Xxxxxx and Xxxxxx's failure to cure such breach within five (5) business days
from Tufton's receipt of written notice from Famous Fixins specifying the
nature of such default.
8. Tufton shall have the right to inspect the books and records of
Famous Fixins regarding the Product upon reasonable notice.
9. Famous Fixins shall furnish to Tufton within Thirty (30) days
after each calendar quarter, a complete and accurate statement of accounting
showing the description/design and gross sales of the Product during the
preceding calendar quarter and for the project to date.
10. Whenever notice, payment, or other submissions are required to be
given to Ripken under this Agreement, such notices shall be sent to the
following address: Xxx Xxxxxxx, The Tufton Group, 0000 Xxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000.
Whenever submissions are required to be given to Famous Fixins
under this Agreement, such notices shall be sent to the following address:
Xxxxx Xxxxx, Famous Fixins, Inc., 000 X. 00xx Xx., Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx, 00000.
11. Famous Fixins acknowledges that the rights to be granted pursuant
to this Agreement are subject to a previous and ongoing grant of rights to
the Major League Baseball Player's Association. Famous Fixins further
acknowledges that the rights granted hereunder do not include the rights
referred to in this paragraph. Famous Fixins hereby covenants, that it will,
at its own expense, obtain all rights from third parties that will be
necessary, including but not limited to, the right to use the "Orioles" or
other team logo, insignia, and other team related rights or intangible
property.
12. Famous Fixins hereby covenants and agrees to defend, indemnify
and hold Xxxxxx and Xxxxxx jointly and severally harmless from and against
any claims, losses, suits, liabilities, obligations, costs and expenses
(including reasonable attorneys' fees) arising, in any way, out of or in
connection with this Agreement, all materials prepared by Famous Fixins under
the terms of this Agreement, the use of such materials, the transmission,
publication, and/or broadcasting of such materials, or the provision of any
of Famous Fixins services,
13. Famous Fixins agrees to maintain, at Famous Fixins own cost and
expense, comprehensive general liability, insurance from an insurance company
acceptable to Tufton and Ripken, providing adequate protection for Tufton and
Ripken, against any claims or suits arising out of or in connection with this
Agreement, in an amount no less than ONE MILLION DOLLARS ($1,000,000.00) per
incident or occurrence, or Famous Fixins standard insurance policy limits,
whichever is greater. Within fifteen (15) days from the date hereof, Famous
Fixins will submit to Tufton and Ripken a fully paid policy or certificate of
insurance, naming Tufton and Ripken as additional insured parties and
requiring that the insurer shall not terminate or materially modify such
policy or certificate of insurance without written notice to Tufton and
Ripken at least thirty (30) days in advance thereof.
14. Upon expiration or termination of this Agreement, Famous Fixins
shall have one hundred ten (110) days to dispose of and liquidate all
inventory of the Product, unless stated otherwise herein. The inventory
shall not be available to the consumers after the one hundred ten (110) day
period. At which time, all remaining inventory shall be delivered
immediately, at Famous Fixins expense, to the Tufton Group along with all
royalties accrued to such time, as well as a final accounting report.
15. In the event a dispute or controversy arises under this agreement
which cannot be resolved first through good faith negotiations, such dispute
or controversy shall be submitted to arbitration and resolved by a single
arbitrator (who shall be a lawyer) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect.
All such arbitration shall take place at the office of the American
Arbitration Association located in or closest to Baltimore, Maryland. Each
party is entitled to depose one (1) fact witness and any expert witness
retained by the other party, and to conduct such other discovery as the
arbitrator deems appropriate. The arbitrator has the authority to award
attorneys' fees. The award or decision by the arbitrator shall be final,
binding, and conclusive, and judgment may be entered upon such award by any
court of law.
16. This agreement shall be governed by, and its provisions construed
in accordance with, the laws of the State of Maryland.
17. Notwithstanding anything to the contrary herein,. in the event
Famous Fixins incurs any expenses, damages or other liabilities, (including,
without limitation, reasonable attorney's fees and court costs) in connection
with the breach of any term or provision hereof, Xxxxxx's and Xxxxxx'x
liability to Famous Fixins shall not exceed the fees actually paid under the
terms hereunder. UNDER NO CIRCUMSTANCES WILL TUFTON OR RIPKEN BE LIABLE TO
FAMOUS FIXINS FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT DAMAGES, LOSS OF GOOD
WILL OR BUSINESS PROFITS, OR EXEMPLARY OR PUNITIVE OR ANY OTHER DAMAGES.
18. Famous Fixins represents and warrants that Famous Fixins has the
legal right, authority, and capacity to enter into this agreement and to make
the representations herein. This includes, but is not limited to, Famous
Fixins assurances that Famous Fixins has acquired all necessary licenses and
rights, at Famous Fixins expense, required to manufacture the Product.
Tufton represents and warrants that Tufton has the legal right,
authority, and capacity to enter into this agreement and to make the
representations herein.
19. This agreement shall be binding upon the parties, their partners,
successors, assigns and legal representatives. This agreement shall not be
assigned or transferred by either party without the prior written consent of
the other party. If either party hereto attempts to make such an assignment
without consent, that party shall nevertheless remain legally responsible for
all obligations under this agreement.
20. Ripken and Famous Fixins are independent contractors under this
agreement, and it is not their intent to form any agency relationship,
partnership or joint venture. Except as specifically provided in this
agreement, each party will exercise full power and authority to select the
means, methods and manner of performing all obligations required under this
agreement. Except as provided herein, neither party will have any right or
authority and will not attempt to enter into any contract, commitment or
agreement, or incur any debt or liability of any nature, in the name or on
behalf of the other party.
21. This writing embodies the entire agreement between the parties
regarding the services of Tufton and Ripken, thereby superseding all other
agreements, whether written or verbal, which may, exist between the parties.
This letter will not be considered an agreement or contract nor will it
create any obligation on the part of Famous Fixins or Tufton, until it has
been signed by the parties below.
Please indicate your agreement with the above terms by signing both
Agreements in the space below and returning both executed copies to my
attention. Upon receipt, I will sign and return an original executed copy to
you for your file. Xxx and I look forward to working with you.
Kindest Regards.
Sincerely,
Xxx X. Xxxxxxx
General Counsel
Famous Fixins, Inc. The Tufton Group
By: /s/ Xxxxx Xxxxx By: /s/ Xxx X. Xxxxxxxx
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Xxxxx Xxxxx Xxx X. Xxxxxxx
President Chief Operating Officer
