CONSULTING AND MARKETING LICENSE
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
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 race 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 trade
name, or logo, or any other trade name, trade xxxx 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
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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 date set forth on the
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signature page of this Agreement, and shall continue for a period of one
(1) year (the "Term"). Not without standing 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 transition 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 unauthorized disclosure of any
of the secrets or confidential information of Company, and dishonesty
related to independent contractor status.
3. GRANT OF NON-EXCLUSIVE LICENSE Subjects to the terms of this Agreement, the
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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 owned by the Consultant and shall be operated by
the Consultant in professional racing car competitions at the sole of
discretion of the Consultant. The Company shall supply all cameras ready at
work either on disc or via e- mail.
(a) During the Term of this Agreement the Consultant shall not
negotiate or enter into any license, sub-license of sub-contract
or similar agreements 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 directly or indirectly, on his
own behalf, licensing, sub-licensing or Company to the Consultant
to such third parties other than the operating company that
manages the race cars without the Company's prior written
consent.
(b) No license or right is granted by the Company to the Consultant,
either expressly or by implication, under any license 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, add the Consultant shall immediately refrain from the
use of any rights granted by the Company to the Consultant with
respect to this license upon receipt of such written notice.
4. COMPENSATION: Grant of Stock Option: In consideration for the services to
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be provided by the Consultant to the Company under the terms of this
Agreement, he Company agrees to grant to the Consultant upon the executive
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 stocks
(the Common Stocks") 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 Total Dollar Amount:$1,000,000.00
Exercise Price or Percentage per Share (in Us): 15% discount of the average
trading price
The term of the Option shall otherwise be set forth in a Non- Qualified Stock
Option Agreement between the Company and the Consultant, substantially in the
form attach as Exhibit A to this Agreement. The Company agrees to register the
Shares 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 then available) pursuant to the term of such registration set forth in
the Non- Qualified Stock Option Agreement.
5. CONFIDENTIALLY The Consultant covenants that all information concerning the
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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 ant 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 (1) was publicly known at the time of disclosure to
Consultant, (2) 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 (3) is lawfully disclosed to the Consultant
by the third party.
6. INDEPENDENT CONTRACTOR The Consultant and the Company hereby acknowledge
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that the Consultant is an independent contractor. The Consultant agrees not
to hold himself out as, nor shall be taken any action from which others
might reasonably infer that the Consultant is a partner or agent of or a
joint venture with the Company. In addition, the Consultant shall take no
action which, to the knowledge of the Consultant, binds, or purports to
bid, 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 to provide by this Agreement in any respect shall not be
deemed a waiver of any further or future rights.
b) GOVERNING LAW This Agreement shall be construed under the
internal laws of the State of California, and the Parties agrees
that the exclusive jurisdiction for any litigation or arbitration
arising from this Agreement shall be in Los Angeles, California
or New York City, New York to be mutually agreed upon by both
parties.
c) SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the
Parties, their successors and assigns, provided, however, that
the Consultant shall not permit any other person or city to
assume these obligations hereunder without the prior written
approval of the Company which approval shall be unreasonably
withheld and written notice of the Company's position shall be
given within ten (10) days after approval has been requested.
d) INDEMNIFICATION The Company shall indemnify the Consultant for
all losses or damages sustained (including reasonable attorney
fees and disbursements) as incurred by the Consultant arising
from the Consultant performing services under this Agreement.
e) COUNTERPARTS. This Agreement may be excused in two or more
counterparts, each of which shall be deemed on 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.
EXHIBIT A
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is between Xxxx
Xxxxxxx (the "Grantee") and 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."
WHERAS, 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 convents 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
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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:
o Number of Shares or Total Dollar amount: $ 1,000,000.00
o Exercise Price or Percentage per Share in (US$) 15 % disc
2. TERM The Option and this Agreement shall expire ten (10) years from the
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date of this Agreement.
3. SHARES SUBJECT TO EXERCISE The Option shall be immediately exercisable and
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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 in whole or from
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time to time in part by written notice delivered to the Company stating the
number of Option Shares with respect to which the Option is then being
exercised, together with a check or wire 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. Not less than one
hundred (100) Option Shares may be purchased upon exercise of the Option at
any one time unless the number of 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 options Grantee shall be
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liable to pay to all applicable federal, state and local taxes.
6. EXERCISE FOLLOWING TERMINATION OF CONSULTING AGREEMENT The Option shall not
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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
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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
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with respect to the Option Shares issued from time to time upon exercise of
the Option until the carrier of (1) the date issuance of a stock
certificate or stock certificates to the Grantee applicable to the Option
Shares 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 AND TRANSFER The Grantee represents and agrees that, upon the
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Grantee's exercise of the Option in the whole part 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
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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 Upon signing this Agreement, the Company shall
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immediately, at the Company's expense, uses its best efforts to 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 law
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 regulatory authorities and 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.
12. NOTICES All notices to the Company shall be addressed to the Company at the
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principal office of the Company at the address and facsimile set forth on
the signature page of this Agreement, and all notices to the Grantee set
forth on the signature page of this Agreement or, different, the last
address and facsimile number on the file with the Company, or to such other
address and facsimile numbers as either may designated to the other in
writing. A notice shall be deemed to be duly given if and when enclosed in
a property 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. ADJUSTMENT If there is any change in the capitalization of the Company
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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 recapitulation 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 Not with standing any other provisions of
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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 surviving corporation, or the outstanding stock of the
Company to another corporation or other entity in a single transaction,
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
such new 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 for shares for the
surviving corporation shall contain such terms, condition and provisions as
shall be required substantially to preserve the right and benefits of the
Option and this Agreement.
15. MISCELLANEOUS
(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 top
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.
(b) GOVERNING LAW This Agreement shall be construed under the internal
laws of the state of California, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from
this Agreement shall be in Los Angeles, California or New York City,
New York to be mutually agreed upon by both parties.
(c) COUNTERPART 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) SEVER ABILITY If one or more provisions of this Agreement are help 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 provisions were excluded and shall be
enforceable in accordance with its terms.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
date set forth below.
Date: 3-08-01Optionee
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
SOCIAL SECURITY NUMBER ###-##-####
ADDRESS FOR NOTICES:
X.X. Xxx 0000
Xxxxxxx Xx
00000
COMPANY:
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BY: /s/ Xxxxxx Xxxxxxxxxxx
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Name:
TITLE: President
