Exhibit 99.1
CONSULTING AND MARKETING LICENSING 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.
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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.
(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 tot his license upon receipt of such written notice.
4. Compensation: Grant of Shares. 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 shares of the
Company's Common Stock 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 Percentage per Share (in US$): The lesser of the
thirty day low on the OTCBB, or fifteen cents ($0.15) per share.
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 Xxxxxxx Stock Option Plan. The Company
shall pay to the race team an amount of stock equivalent to 5% of the
total shares issued to the optionee.
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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 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.
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(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 this Agreement as
of the date below
Date: January 29, 2002 CONSULTANT
/S/ XXXX XXXXXXX
___________________________________
Xxxx Xxxxxxx
Address for Notices:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, XX 00000
COMPANY:
SAFARI ASSOCIATES, INC.
/S/ XXXXXX XXXXXX
By: _______________________________
Name: Xxxxxx Xxxxxx
Title: President
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EXHIBIT A
_________
STOCK ISSUANCE AGREEMENT
THIS STOCK ISSUANCE 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: 4,000,000 shares, or $600,000
Exercise Price per Share or Percentage per Share (in US$): The lesser
of the thirty day low of on the OTCBB, or fifteen cents ($0.15) per share.
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 monthly,
not to exceed Option Shares valued at an aggregate of $50,000 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; 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 exercise of the Option at any one time
unless the number of
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Option Shares for which exercise of the Option is being made is all of the
Option Shares then issuable upon exercise of the Option. Only whole shares
shall be issued upon exercise of the Option.
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 from 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 the appropriate state securities 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.
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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 granted 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, NY.
(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)
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below.
Date: January 29, 2002 CONSULTANT
/S/ XXXX XXXXXXX
___________________________________
Xxxx Xxxxxxx
Address for Notices:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, XX 00000
COMPANY:
SAFARI ASSOCIATES
/S/ XXXXXX XXXXXX
By: __________________________________
Name: Xxxxxx Xxxxxx
Title: President
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EXHIBIT B
_________
OPTION EXERCISE SCHEDULE
$50,000 immediately upon registration, covering January, 2002;
$50,000 every month thereafter to total $600,000.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below:
Date: ____________________________ OPTIONEE:
______________________________________
Address for Notices:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, XX 00000
COMPANY:
______________________________________
By: _________________________________
Name:
Title:
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