PRODUCT PROMOTION AGREEMENT
This Agreement is made and entered into this day of April, 1997, and
between XXXXXXX ENTERPRISES (hereinafter, "ENTERPRISES") f/s/o XXXXX XXXXXXX
(hereinafter, "XXXXXXX"), an individual residing at, c/o Xxxxx Xxxxxxx, Xxxxxxx
Xxxxxx Agency, Inc. 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
XXXX XXXXXXX SEL-LEB MARKETING, INC. (hereinafter, "BEAU") a New York
corporation.
RECITALS
WHEREAS, XXXXXXX is a well known television personality who is the
sole proprietor of ENTERPRISES; and,
WHEREAS, ENTERPRISES has the right to provide for the services of
XXXXXXX as provided for hereunder; and
WHEREAS, BEAU and ENTERPRISES wish to enter into an agreement
pursuant to which ENTERPRISES shall provide the services of XXXXXXX who will
endorse and promote products within the product categories of mens apparel and
accessories (the "Product" or "Products") in accordance with the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements hereinafter set forth, the parties agree as follows:
1. Promotional Services.
(a) Live Appearances on Electronic Retailer's Programming
Services.
During the term of this Agreement, ENTERPRISES agrees to make
XXXXXXX available to travel to an Electronic Retailer's ("QVC") facilities, in
West Chester, Pennsylvania, and from time to time, subject to his approval to
other locations, wherever they are located subject to XXXXXXX'x availability
(the "Visits") to appear live on QVC's Programming Services to promote and
otherwise assist in the marketing of the Products. ENTERPRISES agrees to make
XXXXXXX available for a minimum of five (5) annual Visits, which dates are set
forth in Exhibit A. ENTERPRISES agrees to make XXXXXXX available to make
additional Visits if ENTERPRISES, XXXXXXX and BEAU mutually agree that they are
necessary or desirable to promote and/or otherwise market the Products, subject
to XXXXXXX'x availability and additional compensation to be negotiated in good
faith between the parties. In all cases the specific days for such Visits shall
be selected by mutual agreement of the parties. The number of live appearances
made by Xxxxxxx on the Programming Services during each Visit shall be
determined and scheduled throughout such days at the sole discretion of QVC, all
within the minimum number of Visits. For the purpose of clarification, each
Visit shall consist of one (1) to two (2) consecutive days, including travel
days, more specifically, Friday and Saturday.
(b) Print and Video Promotional Spots.
In addition to the Visits described and Section 1(a),
ENTERPRISES agrees to make XXXXXXX available from time to time to render
services to produce television commercials or promotional spots and print
photography to be used in connection with promotion of the Visits and marketing
of the Products on QVC. The specific days for production shall by determined by
mutual agreement of the parties, subject to Xxxxxxx'x reasonable availability,
and whenever possible, will be scheduled to coincide with the schedule for
Visits under Section 1(a).
(c) Use of Promotional Segments.
As to each of the Visits described in Section 1(a) and the
promotional spots produced pursuant to Section 1(b), BEAU shall have, subject to
Section 1(f), the right to make or cause to have made such number of excerpts
and modifications as BEAU may elect by editing, dubbing, adding to, subtracting
from and integrating any or all of XXXXXXX'x performances hereunder
(collectively referred to herein as the "Promotional Segments") for use only
with regard to the promotion of the Visits and sale of the Products on QVC,
provided that XXXXXXX will not be required to render any services in connection
with the production of such modifications or variations. During the term of this
Agreement, BEAU shall have the right to the unlimited use and reuse of any and
all of the Promotional Segments, as BEAU may elect, in connection with the
promotion and advertising of the Visits and distribution of the Products via
QVC, including but not limited to, use as spot announcements on QVC's
Programming Services, in connection with the general promotion of the Visits and
Xxxxxxx'x appearances on QVC.
(d) Use of Name and Likeness.
Subject to Section 1(f), ENTERPRISES hereby grants permission
to BEAU and its subsidiaries and affiliates to use, during the term of this
Agreement, XXXXXXX'x name, autograph and likeness in connection with the
packaging, promotion, advertising and distribution of the Products.
(e) Right of Approval.
XXXXXXX shall have all rights of approval, which shall not be
unreasonably withheld, on the Products endorsed and/or promoted by him and the
use of any Promotional Segment or XXXXXXX'x name, autograph or likeness or other
results of XXXXXXX'x services. Such approval shall be deemed to have been given
if XXXXXXX or XXXXXXX'x representative designated herein does not disapprove in
writing within fourteen (14) days of receiving a request therefore. BEAU
acknowledges that a withholding of approval by XXXXXXX shall not be deemed
unreasonable if XXXXXXX applies aesthetic standards in making such decision,
consistent with XXXXXXX'x application of such standards in his other business
relationships.
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2. BEAU's Marketing Rights.
XXXXXXX agrees that, during the term of this Agreement, BEAU
and its subsidiaries and affiliates shall have the right to market and sell the
Products only on QVC's Programming Services.
3. Term.
The term of this Agreement shall commence on the date hereof
and shall continue, unless sooner terminated as provided herein, up to and
including one (1) year from the date XXXXXXX'x first Visit hereunder is
completed, now scheduled for May 16-17, 1997 (the "Initial Term").
4. Termination.
(a) Either party may terminate this Agreement in the event of
a default by the other party in the performance of any of its material
obligations hereunder by giving the defaulting party written notice setting out
the nature of such event of default and provided such event of default is not
cured within thirty (30) days following such notice.
(b) BEAU may terminate this Agreement at any time following
the time that BEAU becomes aware that XXXXXXX has committed any act or become
involved in any situation or occurrence which brings XXXXXXX into public
disrepute, scandal or ridicule, or shocks or offends the community, or derogates
from the public image or reflects unfavorably upon XXXXXXX or the Products by
giving written notice to XXXXXXX of such termination.
(b) ENTERPRISES may terminate this Agreement at any time
following the time that ENTERPRISES becomes aware that BEAU has committed any
act or become involved in any situation or occurrence which brings BEAU into
public disrepute, scandal or ridicule, or shocks or offends the community, or
derogates from the public image or reflects unfavorably upon BEAU or the
Products by giving written notice to BEAU of such termination.
5. Compensation.
(a) Royalty.
As compensation for the services provided herein, BEAU shall
pay to ENTERPRISES ten percent (10%) of the gross revenues derived from the
sales of Products promoted by him. For the purposes of this Agreement, gross
sales are defined as actual monies paid to BEAU by QVC or any other authorized
customers for the Products less approved credits. Notwithstanding the foregoing,
BEAU guarantees to pay ENTERPRISES no less than Fifty Thousand Dollars
($50,000.00) in royalties within fifteen (15) business days following each Visit
made by Xxxxxxx during the term of this Agreement, for a total guarantee of Two
Hundred and Fifty Thousand Dollars (the "Guarantee").
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(i) Termination. In the event QVC submits a purchase
order to BEAU for any particular Visit which is not sufficient enough to
generate royalties to ENTERPRISES greater than or equal to Fifty Thousand
Dollars ($50,000.00), BEAU may at its option terminate this Agreement effective
immediately by giving ENTERPRISES written notice of such termination. In the
event BEAU terminates this Agreement as provided for in this Section 5(a)(i),
the Guarantee shall be reduced proportionately by the number of Visits made by
Xxxxxxx prior to said termination.
(b) Payment.
All sums due and payable to ENTERPRISES hereunder shall be
paid by BEAU within fifteen (15) business days following each Visit. Payment
shall be accompanied by a detailed statement setting forth sales of Products by
BEAU.
(c) Further Consideration.
(i) ENTERPRISES shall receive a two and one-half percent
(2.5%) override on the Gross Sales of any other celebrity signed by BEAU to
promote products (other than Xxx Xxxxxxx), which celebrity was introduced to
BEAU by ENTERPRISES and/or XXXXXXX or anyone connected with them.
6. Travel and Other Expenses.
BEAU shall be responsible for the following reasonable costs
and expenses relating to XXXXXXX'x travel to the QVC's studios, wherever they
are located in connection with the Visits and other promotional services: first
class airfare or other transportation for XXXXXXX and anyone accompanying
XXXXXXX, first class transport for XXXXXXX to and from the airports, hotel and
QVC's studios, and first-class lodging (including a one (1) bedroom suite and
one (1) regular room).
7. Best Efforts.
(a) XXXXXXX.
XXXXXXX warrants that XXXXXXX is free to enter into this
Agreement and render services pursuant hereto and that XXXXXXX does not have and
will not have any agreements or commitments which would prevent or interfere in
any way with the full performance of the services or the rights granted to BEAU
hereunder. XXXXXXX agrees to use XXXXXXX'x best efforts in rendering services
hereunder by coordinating his schedule and other business commitments so as not
to conflict with his performance hereunder. XXXXXXX further agrees that XXXXXXX
will attend and participate in pre-production conferences and meetings, make-up
and other activities necessary or appropriate for the proper performance of
services to be rendered hereunder.
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(b) BEAU.
BEAU will use its best efforts to promote and market the
Products to QVC so as to maximize the compensation to XXXXXXX.
8. Ownership of Certain Rights.
(a) It is understood and agreed that BEAU is the sole and
exclusive owner of all right, title and interest in and to the trade names,
trade marks, service marks and other property interests relating to the Products
(the "Property Rights"). Nothing contained in this Agreement shall be construed
as an assignment to XXXXXXX of any right, title or interest in and to the
Property Rights. XXXXXXX recognizes the value of the goodwill which exists or
will be developed in connection with the Products. It is understood that the
Property Rights attach only to those Products actually promoted or endorsed
hereunder, and not to any products or property rights otherwise owned or
exploited by XXXXXXX. XXXXXXX acknowledges that all rights therein and the
goodwill pertaining thereto belong exclusively to BEAU.
(b) BEAU shall own and XXXXXXX hereby grants all rights of
every kind and nature to all results and proceeds of XXXXXXX'x services
hereunder, worldwide, in perpetuity, subject to the limitations on BEAU provided
in Section 2 hereof. In connection therewith, XXXXXXX acknowledges that
XXXXXXX'x services hereunder are specially ordered and commissioned by BEAU as a
"work made for hire" for the sole and exclusive benefit of BEAU. Not
withstanding the foregoing, there shall be no use by BEAU of the results and
proceeds of Xxxxxxx'x services hereunder following the termination or expiration
of the term hereof.
9. Restrictive Covenant.
(a) During the term of this Agreement ENTERPRISES and XXXXXXX
agree that XXXXXXX will not promote, market, authorize or permit XXXXXXX'x name
and/or likeness to be used to promote, market or otherwise endorse, directly or
indirectly, in North America any menswear, men's apparel or men's accessories
via direct response television marketing including, but not limited to, any
electronic or video retailing programming services.
(b) In addition, ENTERPRISES and XXXXXXX agree that XXXXXXX
will not, during the term of this Agreement render services to, furnish
materials to or authorize or permit the use of XXXXXXX'x name, likeness, voice,
or endorsements by any other entity for or on or behalf of or in connection with
any product which is competitive with the Products.
(c) In the event BEAU desires to continue its relationship
with ENTERPRISES following the expiration of the term hereof, it will so notify
ENTERPRISES, no less than ninety (90) days prior to the expiration of the term
hereof of its intent to negotiate for an additional term. Upon receipt by
ENTERPRISES of such notice, it and XXXXXXX agree to negotiate exclusively and in
good faith with BEAU for a period of thirty (30) days. If an agreement between
the parties is not reached during the aforementioned thirty (30) day negotiation
period,
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ENTERPRISES and XXXXXXX agree that they (i) shall not enter into an agreement
with any entity for XXXXXXX to promote and/or endorse menswear and accessories,
for the remaining Sixty (60) days of the term hereof and for the first thirty
(30) day period following expiration of the term hereof without first affording
BEAU the opportunity to match the terms of any bona fide offer received by them;
and (ii) shall not enter into an agreement with any other entity for XXXXXXX to
promote and/or endorse any products to be sold via electronic retailing,
infomercials, or direct response television advertising for the remaining Sixty
(60) days of the term hereof and for the first sixty (60) day period following
expiration of the term hereof without first affording BEAU the opportunity to
match the terms of any bona fide offer received by them.
(d) ENTERPRISES and XXXXXXX acknowledge that the services and
rights which are granted BEAU hereunder are extraordinary and unique and cannot
be replaced or adequately compensated in monetary damages, and any breach by
ENTERPRISES or XXXXXXX of this Agreement will cause irreparable injury to BEAU.
Therefore, ENTERPRISES and XXXXXXX agree that in the event of a breach of this
Section 9, BEAU, in addition to any other remedies that might be available to
it, shall be entitled, in addition to bringing suit at law or equity for
monetary or other damages, to seek injunctive or other equitable relief and,
where appropriate, prevent the violation of any of the provisions of this
Section 9, prevent XXXXXXX from performing similar services for, furnishing
material to or granting conflicting rights to others. In any action to enforce
the provisions of this Agreement, ENTERPRISES and XXXXXXX shall waive the
defense that there is an adequate remedy at law and agrees that BEAU shall have
the right to obtain injunctive or other equitable relief without being required
to prove actual damages.
10. Indemnification.
(a) XXXXXXX agrees to indemnify, defend and hold harmless BEAU
and its subsidiaries and affiliates, and the directors, officers, employees and
agents of each of them, from all demands, claims, actions, or causes of action,
assessments losses, damages, liabilities, costs and expenses, including, without
limitation, interest, penalties, court costs and reasonable attorneys' fees and
expenses, asserted against, resulting to or incurred, directly or indirectly,
with respect to any failure by XXXXXXX to perform any of XXXXXXX'x obligations
under this Agreement.
(b) BEAU agrees to indemnify, defend and hold harmless XXXXXXX
from all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties, court costs and reasonable attorneys' fees and expenses,
asserted against, resulting to or incurred by XXXXXXX, directly or indirectly,
with respect to: (i) any failure by BEAU to perform any of its obligations under
this Agreement; and, (ii) any claims in connection with the advertising, sale
and/or use of the Products.
(c) A party seeking indemnification (the "Indemnified Party")
shall give prompt written notice to the other party (the "Indemnifying Party")
of any claim, suit or action to which said indemnification may relate. The
Indemnifying Party may not settle, or appeal, any claim, suite or action or
otherwise compromise the approval, which shall not be unreasonably withheld.
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The Indemnified Party at its own expense, shall have the right to participate in
the defense of any claims, suits, or actions. The above indemnities are and will
be deemed and construed to be continuing indemnities and will survive for a
period of five (5) years following the termination of expiration of this
Agreement.
11. Confidentiality.
(a) As of the date of this Agreement, a confidential
relationship shall arise and exist between the parties. During and for three (3)
years following the expiration or termination of the this Agreement, ENTERPRISES
shall hold (and shall require its agents, employees and representatives to hold)
in confidence any Confidential Information (as hereinafter defined) disclosed to
them by BEAU or any of its subsidiaries or affiliates. Without limiting the
generality of the foregoing, ENTERPRISES shall be under a continuing,
nondelegable, duty not to disclose, directly or indirectly, or permit the
disclosure, directly or indirectly, of such Confidential Information to any
third party, and not to knowingly use or permit the use of such Confidential
Information for a purpose not covered by this Agreement.
(b) For purposes of this Agreement, "Confidential Information"
means all information relating to BEAU (and its affiliates) existing and
proposed business(es) which they deem to be proprietary and confidential,
including without limitation, the terms of this Agreement, all know-how,
technology, trade secrets, product formulas or design specifications, packaging
designs, procedures, formats, data, customer lists, market research, market
strategies and the like whether disclosed orally, in writing or by inspection.
Notwithstanding anything to the contrary hereinabove stated, the provisions of
the Uniform Trade Secrets Act ("UTSA") shall govern.
(c) In the event ENTERPRISES (or any of ENTERPRISES'
employees, agents or representatives, to whom Confidential Information is
disclosed) breaches this Agreement, BEAU shall be entitled to bring suit to
recover any and all damages, both direct and consequential, that may be
sustained and, in addition, shall be entitled to seek specific performance
and/or a temporary or permanent injunction prohibiting and enjoining the further
violation of this Agreement. The enumeration of any remedy or remedies herein
shall not prevent BEAU from obtaining other damages or remedies allowable or
available to it under the law.
12. Commissions or Other Fees.
ENTERPRISES represents that it (a) has not used the services
of or incurred any obligations to an agent, broker, or finder in connection with
the transactions contemplated by this Agreement; or, (b) if ENTERPRISES has used
the services of or incurred any obligations to an agent broker or finder, that
ENTERPRISES shall be liable to such person and BEAU shall be under no obligation
for payment to such person on account of this Agreement, unless so stated in
writing signed by an officer of BEAU.
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13. Independent Contractor Status.
ENTERPRISES agrees that ENTERPRISES is an independent
contractor; that any and all contracts of employment made by ENTERPRISES and any
and all other contracts which may be made by ENTERPRISES, for and in connection
with its performance under this Agreement, shall be made by ENTERPRISES as
principal and not as an agent of BEAU; and that ENTERPRISES will make full
payment of compensation and other amounts payable in connection with any matter
on XXXXXXX'x part to be performed under any such arrangement.
14. Insurance.
(a) ENTERPRISES hereby grants BEAU the right to purchase
Non-Appearance Insurance ("Insurance") which shall serve to insure BEAU in the
event XXXXXXX is unable to perform his obligations hereunder due to illness,
accident, or death.
(b) BEAU shall name ENTERPRISES and XXXXXXX as additional
insured parties under its existing product liability insurance, shall keep such
policy in existence for the term of this Agreement, and shall provide
ENTERPRISES with a certificate evidencing same.
15. Attorneys' Fees.
If any litigation or other proceeding is commenced to enforce
any provision of this Agreement or to seek a declaration of the rights of the
parties hereunder, the prevailing party shall be entitled to recover from the
non-prevailing party all of its costs and expenses incurred in connection with
such litigation or proceeding, including without limitation reasonable
attorneys' fees.
16. Waiver.
No waiver, delay, omission or forbearance in exercising any
right, option, duty or power under this Agreement shall affect or impair any
party's rights in respect of any default or breach of any of the provisions of
this Agreement or any subsequent default or breach of the same or a different
kind.
17. Binding Effect; Non-Assignability.
This Agreement is binding on the parties and their respective
executors, administrators, legal representatives and successors. This Agreement
and the respective duties and responsibilities of the parties hereunder are not
assignable, in whole or in part, without the prior written consent of the other
party.
18. Captions.
The captions for the various provisions of this Agreement are
provided for
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convenience of reference only and shall not be used in interpreting any such
provision.
19. Notices.
All notices or other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been given
on the date five (5) business days after having been mailed postage prepaid to
the recipient party by United States registered or certified mail and addressed
as follows:
If to BEAU: If to ENTERPRISES:
Xxxx Xxxxxxx Sel-Leb Marketing, Inc. Xxxxxxx Enterprises
000 Xxxx Xxxxxxxx x/x Xxxxx X. Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Executive Vice President and Director
Xxxxxxx Xxxxxx Agency, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxxxx Roshco & Xxxxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
or to such address for a party set forth in a notice given to the other party in
accordance with this Section 18; provided, however, that notice given in any
other manner shall be deemed effective upon receipt by the recipient. Delivery
of the copies shall not be necessary for effective notice.
20. Governing Law; Jurisdiction.
This Agreement and the legal relationship among the parties
shall be governed by and construed in accordance with the internal laws of the
State of New York, without regard to conflicts of law principles. Any legal
action or proceeding with respect to this Agreement may be brought in the Courts
of the State of New York, County of New York, or of the United States of America
for the Southern District of New York, and by execution and delivery of this
Agreement, XXXXXXX hereby accepts the jurisdiction of the aforesaid courts.
XXXXXXX hereby irrevocably waives, in connection with any such action or
proceeding, any objection including without limitation any objection to the
laying of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to be bringing of any such action or proceeding in such
respective jurisdictions.
21. Severability.
If any provision of this Agreement is declared invalid or
otherwise determined to be unenforceable for any reason, such provision shall be
deemed to be severable from the
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remaining provisions, which shall otherwise remain in full force and effect.
22. Entire Agreement; Amendment & Modification.
This Agreement sets forth the entire understanding and
agreement of the parties with respect to the subject matter covered herein,
superseding all prior and contemporaneous understandings and agreements, whether
oral or written. This Agreement may not be modified or amended except by a
written instrument executed by both parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date and year first written above.
XXXX XXXXXXX SEL-LEB MARKETING, INC.
/s/ Xxxxxxx Xxxxxx
------------------------------------
By: Xxxxxxx Xxxxxx
Its: President
XXXXXXX ENTERPRISES
/s/ Xxxxx Xxxxxxx
------------------------------------
By: Xxxxx Xxxxxxx
UNDERTAKING BY XXXXX XXXXXXX:
To induce Xxxx Xxxxxxx Sel-Leb Marketing, Inc. to enter into the
foregoing Agreement with Xxxxxxx Enterprises I acknowledge that I have read the
foregoing Agreement and I hereby approve its terms. Further, I agree to perform
the obligations and abide by the restrictions contained therein which are
applicable to me. I confirm that Xxxxxxx Enterprises is authorized and empowered
to act on my behalf in connection with the foregoing Agreement and that any
compensation due me for my services to be performed hereunder are solely the
responsibility of Xxxxxxx Enterprises and not of Xxxx Xxxxxxx Sel-Leb Marketing,
Inc.
/s/ Xxxxx Xxxxxxx
------------------------------------
XXXXX XXXXXXX
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EXHIBIT A
XXXXXXX agrees to travel to QVC's facilities in West Chester,
Pennsylvania, or wherever they may be located, to make the annual Visits
referred to in Section 1 on the following days:
1. Father's Day: May 16-17, 1997
2. Winter: October 24-25, 1997
3. Christmas: December 5-6, 1997
4. Valentine's Day: To be determined: mid to late January,
1998
5. Spring 1998: To be determined: mid
March, 1998
In the event XXXXXXX is unable to make any of the aforementioned
scheduled Visits, XXXXXXX shall notify BEAU of such no less than sixty (60) days
prior to that Visit and shall identify two (2) alternate dates for such Visit
(such alternate dates shall be within two (2) calendar weeks of such Visit).
Notwithstanding the foregoing, if the scheduling of "Live With Regis and Xxxxx
Xxx" prevents Xxxxxxx from appearing for any particular Visit, ENTERPRISES shall
notify BEAU of XXXXXXX'x unavailability no less than one (1) day following the
date it becomes aware of said unavailability, but under no circumstances less
than three (3) business days prior to that Visit.
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