ENDORSEMENT AND REPRESENTATION AGREEMENT
Xxxxxx Technologies, Inc., which is headquartered at 0000 Xxxxxx Xxxx Xxxx,
Xxxxxxx-Xxxxx, XX 00000, XXX 11706, (hereinafter called the Company) has agreed
with Maximum Marketing, Inc., which has offices at 00 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxx Xxxxxx 00000, and has the rights to deliver the services of
Xxxx Xxxxxx (hereinafter called the Endorser), that the Endorser shall be the
non-exclusive Endorser of the Product, as defined herein, that is made and
marketed by the Company, under the terms stated in this Agreement.
IT IS, THEREFORE, AGREED AS FOLLOWS:
1. DEFINITIONS:
a. Product shall mean all ROO hand warmer products manufactured and sold
by the Company under a NFL license and as the `Xxxx Xxxxxx Signature
Edition' model.
b. Sales shall mean all sales of Product, net of returns, made by the
Company after the Effective Date of this Agreement sales revenues are
calculated on the wholesale selling price.
c. Effective Date shall mean the date this agreement has been duly signed
by both of the parties.
d. Termination Date shall mean the date thirty (30) days after the day of
the issuance of written notice of termination as provided in Section
6.
e. Territory shall mean the New York metropolitan area, which will also
include the states of New York, New Jersey and Connecticut. This
Territory may be expanded from time to time, subject to the written
agreement of the parties.
2. AGREEMENT
a. The Company and Endorser agree that the Endorser shall be a
non-exclusive Endorser of the Product during the term of this
agreement.
b. This Agreement, unless terminated pursuant to Paragraph 6 below, shall
expire two years from the Effective Date, unless otherwise agreed and
extended by the mutual agreement of the parties.
3. ENDORSER DUTIES
a. The Endorser shall diligently promote and help market the Product in
all reasonable and proper ways, including:
1. Wearing the Product during all cold weather games and at all
other appropriate times on or off the field during the term of
the Agreement,
2. Agreeing to appear on behalf of the Product at a minimum of three
(3) Company requested appearances at such times and places that
the Company reasonably requests, during each year of the
Agreement,
3. Referencing the Product in all appropriate interviews, media
accounts and appearances during the agreement term,
4. Authorizing the Company to use the Endorser's name, likeness
and/or football number in advertisements and promotional
materials for the Product, as well as in any promotional or
corporate materials of the Company, during the agreement term,
5. Reasonably assisting the Company in identifying and contacting
other potential regional endorsers and on-field wearers of the
Product during the agreement term,
6. Agreeing to support the Company as part of a Sports Advisory
Board, once established, to help provide inputs on new products,
new applications and other corporate matters, as appropriate.
(Sports Advisory Board members will receive TBD annual option
grants for their participation).
b. Any advertising, promotional and like material of a third party which
includes the Endorser for publication, whether written or electronic,
which also contains the name or likeness of the Product, or the
Company's brands shall, be submitted to the Company for approval prior
to publication.
c. The Endorser shall routinely provide the Company with any updates on
the status of any prospective promotion and marketing opportunities
and the results of any such completed efforts.
4. COMPANY DUTIES
a. The Company shall furnish the Endorser pertinent Product and corporate
information on as current a basis as is practicable.
b. The Company shall furnish the Endorser with appropriate promotional
devices and materials to assist the Endorser in identifying with the
Company in a professional way.
c. The Company shall compensate the Endorser as set forth herein.
5. COMPENSATION
a. Upon contract signing, the Endorser will be granted 16,000 five-year
options, with an exercise price equal to the closing Nasdaq price on
the Effective Date, for Common Stock in the Company, which will vest
upon the attainment of the following milestones and cumulative Sales
attainment levels during the Agreement term:
At Contract signing 3,000 options vested
At $150,000 of Sales 3,500 options vested
At $400,000 of Sales 4,500 options vested
At $800,000 of Sales 5,000 options vested
b. The Endorser shall be responsible for all costs incurred by him in
performing his services under this Agreement, with the exception of
Company requested promotional appearances that require air travel and
accommodations.
6. TERMINATION
a. This Agreement may be terminated at any time, by either party hereto,
without cause, by the issuance of a written Notice of Termination to
the other party.
b. Upon termination by the Company, the ability to attain vesting
milestones per Paragraph 5 shall continue for six (6) months after the
Termination Date.
c. Upon termination by the Endorser, the ability to attain vesting
milestones per Paragraph 5 shall continue for two (2) months after the
Termination Date.
d. During the period that this Agreement is in effect, the Endorser shall
not perform service for, nor shall it otherwise represent, any
business which directly competes with the Product, including gloves,
nor shall the Endorser engage in any activity which might adversely
affect the business of the Company. If the Company believes that the
Endorser has failed to comply with this, then the Company shall give
the Endorser written notice thereof. The Endorser shall cease any
prohibited activity or cure such nonperformance within ten (10) days
after receipt of such notice, completion of which shall terminate any
claim for Termination for Cause. Failure to cease such activity shall
be grounds for Termination for Cause. If Terminated for Cause, the
e. Company shall be required to credit all Sales towards vesting for six
(6) months after the Termination Date.
f. Upon termination, the Endorser shall forthwith return to the Company
all property of the Company in the Endorser's possession, custody or
control, and it forthwith shall desist from holding itself out as the
sales Endorser of the Product.
7. LEGAL STATUS
The Endorser's legal status under this Agreement shall be that of an independent
contractor. He shall not represent himself to be an employee of the Company.
8. HOLD HARMLESS
The Company shall hold the Endorser harmless from and against and indemnify the
Endorser for all liability, loss, costs, expenses or damages howsoever caused by
reason of any Product (whether or not effective) or any act or omission of the
Company including but not limited to any injury (whether to body, property, or
personal or business character or reputation) sustained by any person or to
property, and for the infringement of any patent rights or other rights of third
parties, and for any violation of municipal, state or federal laws or
regulations governing the Products or their sale, which may result from the
sale, rental, license, delivery, or use of the Product by the Endorser
hereunder.
9. FORMAL ADDRESS
Wherever in this Agreement the words "Written Notice" is used, it shall be
understood to mean written notice by registered or certified mail to the last
regular address used in the course of business by the party to which such notice
is given.
10. APPLICABLE LAWS
This Agreement shall be construed in accordance with the laws of the State of
North Carolina. In the event of a dispute hereunder, the parties agree to submit
to binding arbitration in accordance with the rules of the American Arbitration
Association in effect at the time a demand for arbitration is filed.
11. ENTIRE AGREEMENT
This Agreement represents the Sales Endorser Agreement between the Company and
the Endorser and is hereby agreed to this day of signing.
XXXXXX TECHNOLOGIES, INC. MAXIMUM MARKETING, INC.
On behalf of Xxxx Xxxxxx
By:/s/ Xxxx Xxxxxx By:/s/ Xxxx Xxxxxxxxx
--------------- ------------------
Xxxx Xxxxxx Xxxx Xxxxxxxxx
Chairman and CEO President
Date: 7/26/00 Date: 7/27/00
