EXHIBIT 99.2
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
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
eighteen (18) months (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.
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. The Licensed Trademark must be so used during the Term of this
Agreement, but the placement shall be 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) During the Term of this Agreement, the Company may
substitute any other logo or other Licensed Trademark for its own so
long as (i) the Consultant has no unreasonable objection and (ii) it
does not conflict with any exclusive grant of space by the Consultant
(d) 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 to this license
upon receipt of such written notice.
4. Compensation; Grant of Stock Option. 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 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 Total Dollar Amount: $3,000,000
The Thirty Day Low, but not less than $0.15.
The terms 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 attached as Exhibit A to this Agreement. 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 Non-Qualified Stock Option Agreement. In addition,
the Company shall, at the end of each month in which options are exercised,
issue to the Consultant a number of shares equal to 15% of the number of shares
purchased.
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.
(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)
IN WITNESS WHEREOF, the Parties hereto have executed or caused this
Agreement to be executed as of the date set forth below.
Date: April 17, 2003 CONSULTANT:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address for Notices:
X.X. Xxx 0000
Xxxxxxx, XX 00000
COMPANY:
Dialog Group, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Senior Vice President
Address for Notices:
Twelfth Floor
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
