Exhibit 10.1
CONSULTING AND MARKETING LICENSE AGREEMENT
THIS 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 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 the Company or the Consultant's business, material breach of this Agreement
or any unauthorized disclosure of any of the secrets or confidential information
of the 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 Consultant's 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 discretion of the Consultant.
The Company shall deliver all camera-ready artwork either on disc or via e-mail
to Performance Motor Racing at: email address provided by Consultant
(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.
(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 : 500,000
Exercise Price in US$ $ 40,000
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 this 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
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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 disclosure to Consultant, (ii)
becomes publicly known or available thereafter other than by any means in
violation of this Agreement or any other duty owned to the Company by the
Consultant, or (iii) is lawfully disclosed 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 other
might reasonably infer that the Consultant is a partner or agent of, or a joint
venture with the Company. In addition, the Consultant shall take on 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 by 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 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.
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IN WITNESS WHEREOF, the Parties hereby have executed or caused this
Agreement to be executed as of the date set forth below.
Date: 8-22-01 CONSULTANT:
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address for Notices:
00 X. Xxxxxxx Xxxxxx #000
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Xxxx, Xxxxxx 00000
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Fax: 000-000-0000 and 000-000-0000
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COMPANY:
GETGO INC.
Address for Notices:
0000 X. Xxxxxx Xxxxxx #000
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Xxxxxx, Xxxxxxxx 00000
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By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman
and CEO
Fax: 000-000-0000 and 303-296-8880
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