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Exhibit 10.12
ENDORSEMENT AGREEMENT
This Endorsement Agreement is made and entered into this 19th day of December,
1996 by and between Level Best Golf, Inc. (hereinafter referred to as "Company")
and Xxxxx Xxxxxx (hereinafter referred to as BH).
WITNESSETH:
WHEREAS, BH is recognized and widely known as a highly skilled
professional golfer, and
WHEREAS, BH by virtue of his ability and extensive experience, has
acquired a secondary meaning in the mind of Company's target marketplace, and
WHEREAS, Company is engaged in the sale of golf training aids, among
other things, and is desirous of acquiring a non-exclusive right to utilize BH's
name in connection with the advertisement, promotion and sale of a Company
product, and
WHEREAS, BH has agreed to authorize such use upon the terms and
conditions hereinafter contained;
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants herein set forth and for other good and valuable consideration, it is
agreed to as follows:
1) DEFINITIONS
As used herein, the terms set forth below shall be defined as follows:
(a) "Athlete Endorsement" shall mean the name, likeness, photograph,
and written endorsement of BH. The endorsement applies to any packaging of the
product and written or print advertising. It does not apply to any other means
of advertising.
(b) "Endorsed Product" shall mean each part of the "Angle Iron" named
product manufactured, promoted, advertised and sold by Company. Other products
manufactured, promoted and advertised by Company are not considered an "Endorsed
Product" under the terms of this agreement.
(c) "Contract Territory" shall mean the entire world.
(d) "Contract Period" shall mean that period of time commencing
December 19, 1996, and concluding January 31, 1999, unless sooner terminated in
accordance with terms and conditions in paragraph 9 & 10. In the event that the
contract is terminated and sales of the Angle Iron continue, BH shall be
entitled to royalties thereon as covered in 6 (a) and (b) if the
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product in any way uses BH name or image to promote product or uses
instructional video with BH's image.
2) BH TO PROMOTE THE ENDORSED PRODUCT.
BH agrees to promote the Endorsed Product during the term of this
Agreement.
3) RETENTION OF ENDORSED RIGHTS.
Company agrees that BH shall retain all rights in and to this Athlete
Endorsement and shall not be prevented from using or permitting or licensing
others to use his name or endorsement in connection with the promotion
advertisement, or sale of any product or service in the Contract Territory
during the contract period. Company further agrees that upon termination of this
Endorsement Agreement for any reason, whatsoever, it will cease using the
Athlete Endorsement, the name "Xxxxx Xxxxxx" or any facsimile thereof, for any
purpose, provided, however, that existing printed materials may be utilized
until consumed or exhausted provided that the payments specified in Paragraph 6
hereof are made in a timely manner.
4) FILM, AND/OR PHOTO SHOOTS.
BH agrees, when requested by Company, to make himself available for a
one day production shoot on behalf of Company at a time and a place mutually
convenient to BH and Company.
(a) BH will receive $15,000 for his participation in the production of
instructional video and infomercial for Angle Iron. Said fee to be paid as
follows:
$7,500 will be due upon signing of this agreement and $7,500 will be
due upon completion of Film/Photo shoot.
(b) BH will allow LBG to use his likeness on sales materials, print
ads, packaging and videos associated with Angle Iron, provided prior approval
has been given by BH.
5) APPROVAL OF ADVERTISING.
Company agrees to provide BH for approval a copy of all advertising,
promotional, and packaging materials to be used in connection with the Athlete
Endorsement at least ten (10) days prior to their release to the general public,
and Company further agrees that the same shall not be released without the prior
approval of BH. The failure of BH to approve or disapprove within ten (10) days
shall constitute approval to use, BH agrees that he shall not unreasonably
disapprove any advertising or promotional material submitted hereunder.
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6) ROYALTY PAYMENT.
In consideration of the rights and benefits granted to Company
hereunder, Company agrees to pay BH the following compensation in addition to
the filming fee in Paragraph 4 (a):
(a) A total of $.50 for each unit of Endorsed Product sold by Company.
(b) A total of $.75 for each unit of Endorsed Product sold by Company
through use of infomercial and related advertising. Company agrees to provide
quarterly sales reports and make all royalty payments within thirty (30) days
after the end of each quarter.
7) PAYMENT TO BH.
All payments to be made to BH pursuant to the terms hereof shall be
made by check drawn in U.S. Dollars to the order of Xxxxx Xxxxxx and mailed to
him at the address set forth in Paragraph 15 below.
8) TIME OF THE ESSENCE.
Company acknowledges and agrees that time of the essence in the payment
of all compensation due Athlete hereunder.
9) SPECIAL RIGHT OF TERMINATION BY BH.
BH shall have the right to terminate this Agreement upon Company's
failure to cure within thirty (30) days of receipt of prior written notice to
Company in the event of occurrence of any of the following contingencies:
(a) If Company is adjudicated insolvent, declares bankruptcy or fails
to continue its business of selling Endorsed Services, or
(b) If Company fails to make timely payment to BH of any sums due
pursuant to this Agreement.
10) SPECIAL RIGHT OF TERMINATION BY COMPANY.
Company shall have the right to terminate this Agreement upon thirty
(30) days prior written notice to BH or his representative in the event of the
occurrence of any of the following contingencies:
(a) In the event of BH's death during the Contract Period;
(b) In the event BH is convicted of a felony.
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11) PAYMENT IN EVENT OF TERMINATION.
In the event of termination pursuant to Paragraph 10 or 11 above, the
parties agree that the compensation due BH pursuant to Paragraph 6 shall be paid
to the date of termination only, except as provided in Paragraph 3 hereof.
12) INDEMNITY.
Company agrees to protect, indemnify and hold BH harmless from and
against any and all expenses, damages, claims, suits, actions, judgments and
cost whatsoever, including attorney's fees, arising out of, or in any way
connected with any claim action which arises from the use of the Endorsed
Services, the use of the BH Endorsement, or the performance of BH's obligations
hereunder. The company agrees to purchase liability coverage which will include
"product liability" coverage and will name BH as additional named insured. Such
insurance shall remain in full force during the term of this Agreement.
13) WAIVER.
The failure of company or BH at any time or times to demand strict
performance by the other of any of the terms, covenants or conditions set forth
herein shall not be construed as continuing waiver or relinquishment thereof and
either may at any time demand strict and complete performance by the other of
said terms, covenants and conditions.
14) ASSIGNMENT.
Neither party shall have any right to grant sublicenses hereunder or to
otherwise assign, transfer, alienate, encumber or hypothecate any of its rights
or obligations hereunder without the express prior written consent of the other
party, except that BH shall have the right to assign the financial benefits
hereof and Company hereby consents to such assignment.
15) NOTICES.
All notices, statements and payments required hereunder shall be sent
by first class mail (or any form superior thereto) to the parties at the
following addresses, or to such other address as either may from time to time
designate to the other:
Xxxxx Xxxxxx Xxxxx Xxxxxx
c/o Pros Incorporated
P. O. Xxx 000
Xxxxxxxx, XX 00000
Level Best Golf, Inc. Level Best Golf, Inc.
Attn: Xxxx Xxxxxxx 00000 00xx Xx. X.
Xxxxxxxxxx, XX 00000
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16) COMPANY/BH RELATIONSHIP.
BH's performance of services for company hereunder shall be in his
capacity as an independent contractor. Accordingly, nothing contained in this
Agreement shall be construed as establishing an employer/employee, partnership
or joint venture relationship between Company and BH. BH shall be solely
responsible for payment of all taxes on compensation received hereunder.
17) RIGHT TO CONTRACT.
Each party hereto represents to the other that it is authorized to
enter into this Agreement and to provide the services to be provided hereunder
and that the exercise of the rights granted to the other party hereunder will
not conflict with any commitments or agreements previously entered into between
the party so representing and any other party.
18) GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida applicable to contracts entered into and wholly
to be performed within the State of Florida and, in the event of any litigation
arising out of this Agreement, venue shall be in the Courts of the State of
Florida.
19) SIGNIFICANCE OF PARAGRAPH HEADING.
Paragraph headings contained hereunder are solely for the purpose of
aiding in speedy location of subject matter and are not in any sense to be given
weight in the construction of this Agreement. Accordingly, in the case of any
question with respect to the construction of this Agreement, it is construed as
though such paragraph headings had been omitted.
20) SEVERABILITY.
Every provision of this Agreement is severable. If any term or
provision herein is held to be illegal for any reason whatsoever, such
illegality or invalidity shall not affect the validity of the remainder of this
Agreement or other provision.
21) ENTIRE AGREEMENT.
This agreement constitutes the entire understanding between BH and
Company, and cannot be altered or modified except by an agreement in writing
signed by both parties. Upon its execution, this Agreement shall supersede all
prior negotiations, understandings and agreements whether oral or written, such
prior agreements shall thereupon be null and void and without further legal
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
/s/ Xxxxx Xxxxxx 1/14/97
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Xxxxx Xxxxxx Date
/s/ Xxxx Xxxxxxx 1/6/97
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Xxxx Xxxxxxx, Executive Vice President Date
Level Best Golf, Inc.
