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EXHIBIT 10.3
Agreement made and entered as of February 16, 1999 by and between:
PANACHE INC., a California corporation ("Corporation"), f/s/o XXXXXX XXXX
("Artist"), Crofton Management Group, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxx
Xxxxxxx, XX. 00000; and
INTERNATIONAL TRADING & MANUFACTURING, a Nevada corporation ("ITM"), 0000
Xxxxx Xxxxxx Xxxxxx #0000, Xxxxxx Xxxx, Xxxxxx 00000.
ITM hereby agrees to engage Corporation and Corporation accepts such
engagement and agrees to furnish the services of Artist as a spokesperson for
those Baby Genius and Little Genius products, including any new products
introduced during the Term, set forth on Schedule "A", attached hereto and
incorporated herein by reference (collectively, the "Products") of ITM, on the
following terms and conditions:
1. SERVICES:
A. Corporation shall furnish the services of Artist:
(i) as an on-camera performer in one (1) thirty minute (30)
infomercial ("Infomercial");
(ii) as an on-camera performer in one (1) two (2) minute television
commercial ("Commercial");
(iii) as a spokesperson, the specific show(s) to be mutually agreed
upon, limited to national television shows such as Xxxxx X'Xxxxxxx and Oprah
("Personal Appearance"); and,
(iv) as a voice-over performer in two (2) radio commercials ("Radio
Commercial"), one Radio Commercial not to exceed sixty seconds (60) and the
other thirty seconds (30) in running time.
No Commercial, Infomercial or Radio Commercial shall be scheduled to
air opposite Days of Our Lives.
B. Corporation shall furnish the services of Artist for the number of
days specified below (exclusive of travel time) in order to fulfill the
requirements of this Agreement:
(i) For production (including rehearsal time) of the Infomercial -
Up to two (2) production days [each day not to exceed twelve (12) hours].
(ii) For production (including rehearsal time) of the Commercial -
One (1) production day [not to exceed twelve (12) hours].
(iii) For each Personal Appearance - One (1) day.
(iv) For production of the Radio Commercial - two (2) hours.
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The scheduling of days on which Artist shall render services will be
mutually agreed to between ITM and Artist, subject to the other professional
commitments of the Artist.
C. Artist shall make herself available to the extent reasonably necessary
to participate in those activities normally required in connection with the
production of a Commercial and Infomercial. The services of Artist shall be
rendered to the best of Artist's ability. Artist shall have the right to review
and reasonably approve (i) the script for the Commercial and Infomercial, (ii)
the content, station and time placement of the Radio Spot ("Radio Spot
Approval"), (iii) any likeness or still photographs ("Photograph") of Artist to
be used in the marketing, advertising, promotion, distribution and sale of the
Products and (iv) any related press or publicity material ("Related Material").
The Artist will be deemed to have approved a script, Photograph, Radio Spot
Approval or Related Materials unless the Artist objects within five (5)
business days of receipt of the script, Photograph, Radio Spot Approval or
Related Materials.
2. TERM:
The term of this Agreement shall commence on the date hereof and shall
continue for a period of One (1) year from March 1, 1999. Corporation and ITM
shall enter into good faith negotiations thirty (30) days prior to the
expiration of the Term to determine whether or not to extend the Term for an
additional year ("First Additional Term"). If there is a First Additional Term
then the parties hereby agree to enter into good faith negotiations thirty (30)
days prior to the expiration of the First Additional Term to determine whether
or not to extend the First Additional Term for a Second Additional Term.
3. AREA OF USE; NO USE BEYOND TERM:
A. During the Term hereof, the materials produced hereunder may be used
Worldwide.
B. The right to use any materials produced under this Agreement shall
cease upon the expiration or earlier termination of the Term hereof. ITM is
hereby granted the right to sell-off any existing inventory of Products for a
six (6) month period following termination of the Agreement, provided that ITM
shall not manufacture any new Products thirty (30) days prior to the
termination of the Agreement.
4. COMPENSATION:
A. As full compensation for Artist's services, use of the materials
produced hereunder and any other rights granted and obligations assumed by
Corporation and Artist hereunder, ITM shall compensate (cumulatively, the
"Compensation") Corporation as follows:
(i) Payment of One Hundred Thousand Dollars ($100,000.00), non
refundable, payable as follows: (a) Fifty Thousand Dollars ($50,000.00)
immediately following full execution of this Agreement and (b) Fifty Thousand
Dollars ($50,000.00) on or before September 1, 1999; and,
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(ii) Grant to Corporation Two Hundred Thousand (200,000) Shares of
Capital Stock ("Shares") of "Restricted Securities" (as that term is defined
under Rule 144 of the Securities Act of 1933) of ITM, and/or any successor
company. Certificates representing the amount of the Shares are to be issued as
follows: (a) Eighty Thousand (80,000) Shares immediately following full
execution of this Agreement; (b) Sixty Thousand (60,000) Shares on or before
September 1, 1999; and (c) Sixty Thousand (60,000) Shares on or before
March 1, 2000. The Shares are not subject to any so-called vesting period, the
sole restriction as to the sale and/or transfer of the Shares shall be that the
Shares must be held for One (1) year from the date of each issuance (the,
"Restriction Period"). The Corporation is hereby granted a most favored nation
provision ("Most Favored Nation") with respect to anti-dilution
("Anti-Dilution") of the Shares. Most Favored Nation shall apply if any
employee, officer or director of ITM, any person, company, trust, agent or
entity (collectively, the "Person") either has been granted or is subsequently
granted during the Term hereof (as it may or may not be extended, but in any
event not prior to the expiration of the Restriction Period), anti-dilution
protection with respect to any shares, including but not limited to options,
warrants or other similar instruments, previously or subsequently issued by or
on behalf of ITM.
B. Ninety (90%) percent of the Compensation to be paid hereunder shall
be payable to Panache, Inc. f/s/o Xxxxxx Xxxx and sent to Crofton Management
Company ("Crofton"). The remaining Ten (10%) percent agency fee due from
Panache to Xxxxx Xxxxxxx and Associates, Inc. ("Shapira") shall be paid
directly to Shapira. Payments shall be made to the addresses set forth in this
Agreement. A copy of the check to Shapira will accompany the check sent to
Crofton. Payment to Crofton and Shapira shall be deemed payment to Panache.
Ninety (90%) percent of the Shares to be issued shall be issued directly to
Panache, Inc. and Ten (10%) percent of the Shares shall be issued directly to
Shapira.
C. ITM hereby agrees to pay directly to the appropriate union office
within thirty (30) days of receipt of notice from Corporation the amount due of
all requisite pension and health/welfare contributions on the above
compensation pursuant to the applicable union contract. Corporation will
furnish ITM with all appropriate information in connection therewith.
5. EXCLUSIVITY:
A. During the term of this Agreement, Artist shall not render services,
nor authorize the use of Artist's name, likeness or testimonial in connection
with the advertising or promotion of the Products, other than those of ITM
(herein collectively called "Competitive Products"). This exclusivity shall
extend to any other products added to the Baby Genius and Little Genius product
line, provided that written notice naming the new product(s) has been furnished
to Corporation.
B. Corporation represents that Artist has not heretofore rendered
services directly or indirectly, in advertising or promotion in any medium of
any Competitive Products, the utilization of which may occur within the term
hereof.
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6. USE OF NAME AND LIKENESS:
ITM shall have the right during the term of this Agreement to use and to
authorize the use of Artist's name, likeness and biographical materials on
Products to its licensees/distributors, successors, permitted assigns,
authorized television media and advertising representatives and in connection
with the services to be performed pursuant to paragraph 1. herein, solely for
the sale of the Products and for the purpose of promoting and publicizing to the
trade Artist's services hereunder.
7. TRAVEL EXPENSES:
When commercial airlines are available, if Artist is required to travel
more than fifty (50) miles from her residence, in order to render services
hereunder, ITM will furnish Artist with two (2) first class round trip airline
tickets, first class exclusive ground transportation to and from the applicable
airports and between the hotel and the facility where Artists services are to be
rendered and first class hotel accommodations. Artist shall also receive a
living expense (Per Diem") for each day which Artist's services are required,
the amount of the Per Diem to be negotiated in good faith with Artist's Agent,
Xxxxx Xxxxxxx.
8. MAKEUP AND HAIRDRESSING SERVICES:
ITM shall provide, in connection with each appearance by Artist on camera,
at a photography session or at a live appearance, the services of a hairdresser
and makeup person, subject to Artist's reasonable approval of the personnel.
9. OWNERSHIP:
All advertising materials produced hereunder shall be and remain the sole
and absolute property of ITM and neither Corporation nor Artist shall have any
right, title or interest of any kind in or to said advertising materials or any
component part, element of reproduction thereof.
10. EDITING:
Corporation agrees that ITM shall have, subject to the applicable guild
agreements having jurisdiction over Artist's services hereunder, full and
complete right to edit Artist's Commercial and Infomercial performance, provided
such editing does not alter in a material respect the content of any materials
previously approved by Artist.
11. PAY OR PLAY:
ITM shall not be under any obligation to make or use any advertising
materials, it being understood that ITM's entire liability hereunder may be
discharged by payment of the Compensation set forth in paragraph 4.A. (i) and
issuance of the Shares set forth in paragraph 4.A. (ii) herein.
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12. UNION BENEFITS:
ITM hereby agrees to abide by all applicable guild rules and regulations.
13. MORALS:
In the event Artist shall have been convicted of any crime involving moral
turpitude, or a morals breach occurs as defined in the Days of Our Lives
Contract with Panache which causes a termination of Artist's participation in
that show, ITM shall have the right to terminate this Agreement, unless Panache
prevails in its dispute with Days of Our Lives.
14. INJUNCTIVE RELIEF:
ITM shall be entitled, in addition to any other rights which it may have
to damages or otherwise, to seek injunctive and other equitable relief against
Corporation to restrain, enjoin or prevent the violation or breach by
Corporation of any provision of this Agreement.
15. INDEPENDENT PARTIES:
Each party to this Agreement is dealing with the other as independent
contractors. This Agreement does not create nor is it intended in any way to
create, a joint venture, partnership or employer/employee relationship between
the Corporation/Artist and ITM nor does it create nor is it intended in any way
to create any such relationship between the Corporation/Artist and ITM other
than as independent contractors.
16. TAXES:
ITM and the Corporation shall be responsible for payment of all of its own
Federal, State and local taxes of any kind or nature whatsoever. Without
limiting the generality of the foregoing, Corporation assumes sole and
exclusive responsibility for the payment of all employer and employee
contributions and taxes relating to the Artist under all applicable laws now in
effect or hereafter enacted.
17. WARRANTIES AND REPRESENTATIONS OF THE CORPORATION:
Corporation hereby warrants and represents that:
A. Corporation is duly organized, validly existing and in good standing
under the laws of the State of California and has the corporate power to own
its assets and properties and to carry on its business as now being and
heretofore conducted.
B. Corporation has the full right and authority to enter into this
Agreement with respect to Artist's services.
C. Neither Artist nor Corporation has made or will make any agreement or
commitment
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which would prevent or interfere in any manner with the full performance of
Artist's services hereunder.
D. In the making or performance of this Agreement, Artist will not
knowingly violate any laws, orders or regulations, or the rights, legal or
equitable of anyone.
E. Artist has the full ability and right to do any and all things called
for by this Agreement.
F. Corporation is, and during the term of this Agreement will remain,
signatory to the applicable guild agreements of the unions having jurisdiction
over the services to be rendered by Artist hereunder.
G. Artist is, and during the term of this Agreement, shall remain, an
employee of Corporation for the purposes of this Agreement and Corporation
shall discharge all obligations imposed by any union code, federal, state or
local law or regulation now or hereafter in force with respect to employees,
including, but not limited to the withholding of taxes, the filing of all
returns and reports and the payment of all assessments, taxes, contributions
(except for any pension and welfare contributions made directly by ITM) and
other sums required to be withheld, filed and/or paid by employers.
18. COVENANTS OF THE CORPORATION:
The Corporation hereby covenants to ITM as follows:
The Corporation shall defend, indemnify and hold harmless ITM and its
respective directors, officers, employees, affiliates and agents from any and
all costs (including reasonable attorneys' fees, expenses and other court
costs), expenses, damages, or other liabilities to third parties arising from a
breach of the Corporation's material representations and warrants contained
herein, including without limitation, relating to the use of the name, voice
and likeness of the Artist.
19. WARRANTIES AND REPRESENTATIONS OF ITM:
ITM hereby warrants and represents that:
A. It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has the corporate power to
own its assets and properties and carry on its business as now being and
heretofore conducted.
B. It has the full right and authority to enter into this Agreement.
C. It has not made nor will it make any agreement or commitment which
would prevent or interfere in any manner with the full performance of its
obligations hereunder.
D. In the making or performance of this Agreement, it will not knowingly
violate any laws,
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orders or regulations, or the rights, legal or equitable, of anyone.
E. It has the full ability and right to do any and all things called for
by this Agreement.
F. Trademark protection pursuant to The Trademark Act of 1946, as amended,
has been obtained for the Products through the United States Patent and
Trademark Office.
G. No Person has been granted Anti-Dilution rights with respect to the
issuance of additional shares, including but not limited to options, warrants
and any similar instruments of ITM, ITM has not covenanted to grant
Anti-Dilution to any Person.
20. COVENANTS OF ITM:
ITM hereby covenants to Corporation and Artist as follows:
ITM shall defend, indemnify and hold harmless the Corporation and Artist
from any and all costs (including reasonable attorneys' fees and expenses and
other court costs), expenses, damages, or other liabilities to third parties
arising from a breach of ITM's material representations and warranties
contained herein, claims in the nature of product liability or defects inherent
in the Products, claims in the nature of alleged deceptive or misleading
advertising or promotion or any other claims involving the Commercial,
Infomercial, Radio Spot, any Related Materials or the Products. ITM shall cause
the Corporation and Artist to be named as additional insureds on any policies
of product liability or errors and omission insurance maintained by ITM in
respect of the Products. In the event ITM doesn't presently carry comprehensive
general liability insurance policies ("Insurance"), including but not limited
to products liability and advertising/endorsement liability coverage, then ITM
shall obtain such Insurance with a policy limit of One Million Dollars
($1,000,000). The Insurance shall be maintained for a period of three (3) years
following the end of the term. ITM, within thirty (30) days of the date hereof,
shall furnish the Corporation with a Certificate of Insurance naming the
Corporation and Artist as additional insureds.
21. FORCE MAJEURE:
In the event of failure of performance of this Agreement by either party,
such failure shall not be deemed a breach of this Agreement if such failure
arises from a cause which is beyond the control of and without the negligence
of the party failing to perform. Such force majeure causes include, but are not
limited to, acts of God, acts of governments, wars, hostilities, insurrections,
riots, strikes or labor disputes, or natural catastrophes.
22. ASSIGNMENT:
Corporation hereby consents to the assignment of this Agreement by ITM to
any of its affiliates or to an entity that acquires all or substantially all of
the assets of ITM. The assignment shall become effective upon receipt by the
Corporation of written notice of the assignment and the assignee assuming
responsibility in writing for all of ITM's obligations to the
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Corporation. Other than as provided herein, this Agreement may not be assigned
by ITM without the prior written consent of the Corporation, which consent
shall not be unreasonably withheld.
23. NOTICES:
Any notice, request or other communication required or permitted under
this Agreement shall be in writing and given or made by facsimile, physical
delivery, or by registered or certified mail, postage prepaid, return receipt
requested or by overnight carrier addressed to the appropriate party. Mailed
notices shall be deemed to have been received five (5) days after being
deposited in the United States mail, or if by overnight mail, on the next
working day following the sending thereof, or if by any other means upon
receipt. Any party may change the person and addresses to which notices,
requests or other communications are sent by giving a written notice of such
change to the other party in the manner provided herein for giving notice, said
notice to be effective upon receipt. All notices shall be addressed as follows:
If to the Corporation:
Panache, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX. 00000
Fax Number (000) 000-0000
With a copy to:
Xxxx Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX. 00000
Fax Number (000) 000-0000
If to ITM:
International Trading & Manufacturing
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX. 00000
Attn: Xxxxx Xxxxxxx
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With copy to:
Xxxxxx Xxxxxxxxxx, Esq.
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, XX. 00000
Fax Number (000) 000-0000
24. ATTORNEYS' FEES:
If either party brings an action to enforce the terms hereof or declare
rights hereunder the prevailing party in any such action, on trial or appeal,
shall be entitled to recover reasonable attorneys' fees to be paid by the losing
party as fixed by the court.
25. HEADINGS:
The headings of the various paragraphs and subparagraphs of this Agreement
are for convenience and easy reference only and do not define, limit, augment or
describe the scope, content, or intent of this Agreement or any part or parts of
this Agreement.
26. CUMULATIVE REMEDIES:
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
27. CONSTRUCTION OF AGREEMENT:
No one party shall be deemed to be the drafter of this Agreement. This
Agreement shall not be construed in favor of or against any party hereto; it
shall be construed as if all parties prepared this Agreement.
28. WAIVER:
The failure of either party to this Agreement to object to or to take
affirmative action with respect to any conduct of the other which is in
violation of the terms of this Agreement shall not be construed as a waiver
thereof or of any future breach or subsequent wrongful conduct. No waiver by
either party, whether express or implied, of any provisions of this Agreement or
of the breach or default shall constitute a continuing waiver of such provision
or of any other provision of this Agreement.
29. CONFIDENTIALITY
A. ITM hereby agrees to hold confidential and not disclose at any time to
the media or to any person, any personal, private or proprietary information
which ITM learns through the association with Corporation and/or Artist which
pertains to the business, personal or private affairs of Corporation and/or
Artist (Confidential Information) excluding from the foregoing, any
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disclosure ITM may be required to make by judicial process from a court of
competent jurisdiction or otherwise as a matter of law.
B. Corporation and Artist agree to hold all information given to them by
ITM or any of its affiliates, agents or assigns pertaining to the Products
(also Confidential Information) in strict confidence and not to release,
disclose or disseminate any such information without prior written approval of
ITM, excluding from the foregoing any disclosure Corporation or Artist may be
required to make by judicial process from a court of competent jurisdiction or
otherwise as a matter of law.
C. The Confidential Information may be disclosed to agents, employees or
professional advisors of Corporation, Artist or ITM, who need to have access to
the Confidential Information to develop, enhance or promote the Products or
business contemplated thereby, provided that all such persons shall be informed
of and agree to the confidential nature of the information.
D. A party to this Agreement may disclose the Confidential Information
to the extent required by applicable law or regulations. In the event a party
is requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or other
process) do disclose any Confidential Information, it is agreed that party will
provide the other parties with prompt notice of any such request or requirement
so that the party may, should it desire to do so, seek an appropriate
protective order or waive the party's compliance with the provisions of this
Agreement. Failing the entry of a protective order or the receipt of a waiver
hereunder, a party may disclose that portion of the Confidential Information
requested.
E. The term "Confidential Information" and the provisions of this
Agreement relating thereto shall not apply to any information which (i) becomes
generally available to the public, other than as a result of a disclosure by a
party in violation of this Agreement, (ii) becomes available to a party on a
non-confidential basis from a source other than a party or its representatives,
(iii) was available to a party on a non-confidential basis prior to this
contract independently and is not based upon or derived from Confidential
Information, and (iv) becomes generally available by a party's own actions.
F. ITM and the Corporation agree that with, with respect to any breach
by such party of the provisions of this Paragraph 29, the non-breaching party
shall have the right to seek to obtain an injunction to be issued by any
tribunal of competent jurisdiction restricting the breaching party from
continuing to breach the provisions of Paragraph 29. The provisions of this
Paragraph 29. shall survive termination (for whatever reason) of this Agreement.
30. DEATH OR INCAPACITY OF ARTIST:
In the event of Artist's death or incapacity during the Term hereof,
Corporation shall be entitled to receive the Compensation set forth in
Paragraph 4. above, provided Artist has completed performance of the
Infomercial, Commercial and one (1) Personal Appearance.
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31. ENTIRE AGREEMENT:
This writing contains the entire Agreement of the parties with respect to
any matter mentioned in this Agreement. No prior agreement or understanding
pertaining to any such matter shall be effective. No representations were made
or relied upon by either party, other than those that are expressly set forth
in this Agreement. No agent, employee, or other representative of either party
is empowered to alter any of the terms hereof, unless done in writing and
signed by the party, and if a party is a corporation, by an executive officer
thereof.
32. GOVERNING LAW:
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of California applicable to agreements made and to be
performed within that State. The parties agree and consent that jurisdiction
and venue of all matters relating to this Agreement shall be vested exclusively
in the Federal, state and local courts located in Orange County within the
State of California.
33. SEVERABILITY:
If any provision of this Agreement, as applied to either party or to any
circumstances, finally shall be determined by a court to be void or
unenforceable, the same shall be stricken from this Agreement and shall in no
way affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
34. BANKRUPTCY:
In the event ITM or Corporation files a petition in bankruptcy or is
adjudicated a bankrupt, or if a petition in bankruptcy is filed against ITM or
Corporation, or if ITM or Corporation becomes insolvent, or makes an assignment
for the benefit of ITM's or Corporation's creditors, or any arrangement
pursuant to any bankruptcy law, or if a receiver is appointed for ITM or the
Corporation, or their respective businesses, then ITM or the Corporation, as
the case may be, may at ITM's or the Corporation's sole election terminate this
Agreement upon thirty (30) days written notice to ITM or the Corporation.
35. CORPORATION'S RIGHT TO PURCHASE PRODUCTS:
Corporation may from time to time purchase Products from ITM for purposes
of gifts for Artist's immediate family and close friends and not for resale by
Corporation or the donee. The purchase price payable by Corporation shall be
ITM's manufacturing cost, plus tax and freight.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
INTERNATIONAL TRADE & MANUFACTURING
By: /s/ XXXXX XXXXXXX
-------------------------------
XXXXX XXXXXXX
Its Director
PANACHE, INC.
By: /s/ XXXXXX XXXX
--------------------------------
XXXXXX XXXX
Its President
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as of February 16, 1999
International Trade & Manufacturing
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx #0000
Xxxxxx Xxxx, Xxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
Dear Xx. Xxxxxxx:
Reference is made to the Agreement made as of February 16, 1999 between
Panache, Inc., a California corporation (herein called the "Lender") and
International Trade & Manufacturing, a Nevada corporation (herein called "ITM")
with regard to Lender's providing and lending the undersigned's services to
ITM.
As an inducement to ITM to enter into the Agreement and as a material part of
the consideration for ITM entering into the Agreement, the undersigned hereby
represents, warrants and agrees as follows, effective on the date first set
forth above:
1. That the undersigned has heretofore entered into an agreement (herein
called the "Employment Agreement") with Lender covering the rendition of the
undersigned's services for Lender and that Lender has the right and authority
to enter into the Agreement and to furnish to ITM the rights and services of
the undersigned upon the terms and conditions therein specified.
2. That the undersigned is familiar with each and all of the terms,
covenants and conditions of the Agreement and hereby consents to the execution
thereof; that the undersigned shall perform and comply with all of the terms,
covenants and conditions of the Agreement to be performed and complied with by
the undersigned, even if the Employment Agreement should hereafter expire, be
terminated (whether by the undersigned or the Lender) or be suspended; that the
representations and warranties of Lender contained in the Agreement are true;
and that the undersigned has granted to Lender all of the rights granted to ITM
under the Agreement.
3. That the undersigned is under no obligation or disability by law or
otherwise which would prevent or restrict the undersigned from performing and
complying with all of the terms, covenants and conditions of the Agreement to
be performed or complied with by the undersigned.
4. That to the undersigned's actual knowledge there are no actions, suits
or proceedings pending or threatened before any court, arbitrator or government
body involving the undersigned
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personally, or which might adversely affect the carrying out by Lender of its
obligations under the Agreement.
5. That the undersigned will look solely to Lender and not to ITM for
all compensation and other renumeration for any and all services which the
undersigned may render and all rights which Lender may grant to ITM under the
Agreement.
6. That ITM shall be entitled to, in addition to any other rights which
ITM may have to damages or otherwise, to seek injunctive and other equitable
relief against the undersigned to restrain, enjoin and/or prevent the violation
or breach by the undersigned of any obligation of the undersigned to be
performed as provided in the Agreement and/or the violation or breach by the
undersigned of any obligations or agreements under this instrument.
7. That if Lender shall be dissolved or should otherwise cease to exist
or for any reason whatsoever should fail, be unable, neglect or refuse to
perform and observe each and all conditions of the Agreement by Lender or by
the undersigned, ITM shall be entitled to seek legal and equitable relief by
way of injunction or otherwise against Lender or against the undersigned or
against both of us at ITM's discretion, without the necessity of first
resorting to rights or remedies which you may have against Lender; all of the
foregoing to be to the same extent and with the same force and effect as if the
undersigned were a direct employee of ITM, and as if, in the Agreement, the
undersigned had personally agreed to render the services therein provided to be
rendered by the undersigned and to perform and observe each and all of the
terms and conditions of the Agreement requiring performance or compliance on
the part of Lender or the undersigned or both of us.
8. If ITM shall serve Lender with any notices, demands or instruments
relating to the Agreement or the rendition of the services of the undersigned
thereunder, such delivery shall constitute notice to the undersigned.
Very truly yours,
/s/ XXXXXX XXXX
XXXXXX XXXX
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SCHEDULE "A"
1. Baby Genius and Little Genius CDs
2. Baby Genius and Little Genius Coloring Books
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ADDENDUM
Reference is made to the agreement ("Agreement") entered into as of February 16,
1999, by and between Panache, Inc., a California corporation ("Corporation")
f/s/o Xxxxxx Xxxx and International Trading & Manufacturing, a Nevada
corporation ("ITM"). In exchange for good and valuable consideration receipt of
which is hereby acknowledged, the parties hereby agree as of April 8, 1999 to
amend the Agreement as follows:
In paragraph 4 (a) (ii), line 9, of the Agreement following ("Restriction
Period") the following new sentence is added:
"Notwithstanding anything to the contrary contained herein ITM hereby
agrees to send the Shares to its transfer agent, currently Interwest Transfer
Co., Inc. with instructions for the restrictive legend ("Not Registered") which
appears on the face of the Shares to be removed on the earlier of the
registration of any unregistered shares, the filing of any Public Offering by or
on behalf of ITM or the expiration of each twelve (12) month period following
the issuance of the Shares."
All of the other terms, covenants and conditions of the Agreement are
hereby affirmed and remain in full force and effect.
INTERNATIONAL TRADING & MANUFACTURING
By: /s/ XXXXX XXXXXXX
--------------------------------
XXXXX XXXXXXX,
its President
PANACHE, INC.
By: /s/ XXXXXX XXXX
--------------------------------
XXXXXX XXXX,
its President
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[PANACHE, INC. LETTERHEAD]
VIA FACSIMILE (000) 000-0000 AND U.S MAIL
March 22, 1999
Xx. Xxxxx Xxxxxxx
International Trading & Manufacturing
00000 Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX. 00000
Re: Radio Commercial
Dear Klaus:
Please be advised that with respect to my recording additional radio
commercials ("Further Services") for International Trading & Manufacturing, I
agree to meet with you to discuss Further Services approximately ninety (90)
days following completion of recording two (2) radio commercials pursuant to
the Agreement, dated February 16, 1999.
Very truly yours,
/s/ XXXXXX XXXX
XXXXXX XXXX
