PERSONAL SERVICES AGREEMENT
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THIS AGREEMENT is entered into as of the 14th day of September 1996, by
and between M.D. Labs, Inc. ("M.D. Labs"), a Delaware corporation with offices
located at, 0000 Xxxx Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, and Xxx
X. Xxxxxxxx, Inc., a California business located at 0000 Xxx Xxxxxx, Xxxxx 0,
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Xxxxxxxx, Inc.").
WITNESSETH:
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WHEREAS, M.D. Labs packages, markets and distributes sports nutrition,
fitness foods and supplements, natural food and dietary supplements, vitamins,
and weight loss and management products (collectively, the "M.D. Labs
Products"); and
WHEREAS, Xxx X. Xxxxxxxx ("Xxxxxxxx") has appeared as "Hawk" of the
television show "American Gladiators" and is otherwise active, in his own
persona, in the sporting and fitness industry; and
WHEREAS, M.D. Labs desires to obtain the right to use the name,
likeness and endorsement of Xxxxxxxx in connection with the advertisement,
promotion and sale of the M.D. Labs Products; and
WHEREAS, Xxxxxxxx, Inc. has the authority to grant the right to use
Xxxxxxxx'x name, likeness, and endorsement to M.D. Labs in connection with the
advertisement, promotion and sale of the M.D. Labs Products and desires to do
so; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Term of Agreement. The term of this Agreement shall commence
on the date of execution of this Agreement and shall continue for a period of
two years therefrom (the "Term"), unless terminated earlier as provided in
Paragraph 11 below.
a. The Term can be renewed at M.D. Labs's option and M.D. Labs
shall have the right of first refusal for such renewal on the same terms and
conditions for an additional one (1) year period upon M.D. Labs giving Xxxxxxxx
at least thirty (30) days prior written notice of its intent to renew before the
end of the initial term.
2. Services to Be Rendered.
a. During the Term of this Agreement, Xxxxxxxx, Inc.
agrees to make Xxxxxxxx available to render his services in connection with his
endorsement of M.D. Labs Products when and where required by M.D. Labs for the
advertisement, promotion and sale of the M.D. Labs Products in the following
fields and media: (i) print, point of sale and mail-order advertising; (ii)
tie-in promotions; (iii) publicity; (iv) radio and television
programs and commercials (live, recorded and/or filmed); (v) labeling, packaging
and displays; and (vi) organizational, dealer, sales, industry and public
meetings, conventions and sales clinics, trade shows, and personal appearances.
b. During the Term of this Agreement, subject to
Xxxxxxxx'x bona fide prior commitments, Xxxxxxxx, Inc. agrees to cause Xxxxxxxx
to make at least fifteen (15) personal appearances at trade shows and/or
company-related functions on M.D. Labs' behalf at M.D. Labs' request
(hereinafter referred to as a "Personal Appearance"). M.D. Labs will give
Xxxxxxxx, Inc. 28 days notice of the date of any Personal Appearance and
Xxxxxxxx, Inc. will respond within seven days if Xxxxxxxx is not available on
the designated date. Failure to respond within seven days will constitute
Xxxxxxxx, Inc.'s acceptance of the designated date.
x. Xxxxxxxx, Inc. agrees to cause Xxxxxxxx to render his
services hereunder in a positive, competent and painstaking manner as directed
by M.D. Labs. Xxxxxxxx will have concept approval prior to performance primarily
for the purpose of insuring that the advertising and promotional materials
produced hereunder are consistent and compatible with Xxxxxxxx'x current image,
which approval will not be unreasonably withheld.
x. Xxxxxxxx, Inc. shall allow M.D. Labs to advertise and
promote its relationship with Xxxxxxxx in a manner and by means as determined by
M.D. Labs in its sole discretion and Xxxxxxxx, Inc. agrees that Xxxxxxxx shall
participate in all media production events that M.D. Labs requests of Xxxxxxxx.
e. During the Term of this Agreement, if M.D. Labs
requests it, Xxxxxxxx, Inc. agrees to cause Xxxxxxxx to wear a costume designed
and provided embodying a character designed by M.D. Labs to represent and
promote the M.D. Labs Products, subject to Xxxxxxxx'x review and approval of the
character and/or costume design, primarily for the purpose of ensuring that the
costume design is consistent and compatible with Xxxxxxxx'x current image, which
approval will not be unreasonably withheld.
x. Xxxxxxxx, Inc. covenants that Xxxxxxxx will utilize
M.D. Labs Products whenever possible.
3. Compensation.
a. In consideration of the services to be performed
by Xxxxxxxx, Inc. and Xxxxxxxx hereunder in connection with the production of
and M.D. Labs' rights to use the advertising and promotional materials produced
during the Term of this Agreement and for all rights, privileges and options
herein granted to us by you, M.D. Labs agrees to pay to Xxxxxxxx, Inc.'s sole
employee and officer, Xxx X. Xxxxxxxx, and Xxxxxxxx, Inc. and its sole employee
and officer, Xxx X. Xxxxxxxx, agree to accept warrants to purchase 14,000 shares
of M.D. Labs' common stock at $6.00 per share, such warrants to vest in equal
parts at the end of each year of the two year Term of this Agreement. Such
warrants shall be in the form attached as Schedule A.
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b. As compensation for each Personal Appearance made by
Xxxxxxxx pursuant to Paragraph 2(b) M.D. Labs agrees to pay Xxxxxxxx, Inc. $1000
per day for each day on which Xxxxxxxx makes such a Personal Appearance.
c. M.D. Labs further agrees to reimburse Xxxxxxxx, Inc.
for all reasonable preapproved travel expenses incurred by Xxxxxxxx and paid by
Xxxxxxxx, Inc. in connection with Xxxxxxxx, Inc.'s and Xxxxxxxx'x duties
hereunder (the "Travel Expenses"). M.D. Labs has the right to request reasonable
substantiation of such Travel Expenses and deny payment if satisfactory
substantiation is not provided.
d. The Travel Expenses shall be payable thirty (30) days
after receipt by M.D. Labs of an invoice from Xxxxxxxx, Inc. itemizing and
documenting, to an extent reasonably acceptable to M.D. Labs, expenses
associated with Personal Appearances and other appearances and all other
allowable expenses.
4. Payments. All payments hereunder shall be deemed to include
all applicable taxes, duties and charges. Xxxxxxxx shall be responsible for
paying all withholding, FICA, FUTA and similar taxes applicable to the
compensation received under this Agreement.
5. Right to Use Name and Likeness; Property of M.D. Labs.
x. Xxxxxxxx, Inc. hereby grants to M.D. Labs the
irrevocable right to use and reproduce Xxxxxxxx'x name, voice and any and all
photographs, likenesses, sketches, motion pictures, audio or visual recordings
and biographies taken or made of Xxxxxxxx in connection with his appearances and
activities related to this Agreement or in connection with trade or consumer
promotions of the M.D. Labs Products.
x. Xxxxxxxx, Inc. agrees that all pictures, prints,
motion pictures, audio or visual tapes, artists' renderings, plans, ideas,
concepts and other things which may relate to the marketing, advertising or
promotion of any product or service by M.D. Labs and which may be prepared for
or submitted to M.D. Labs or its agents in connection with this Agreement shall,
from the commencement of this Agreement and thereafter, become and remain solely
and exclusively the property of M.D. Labs, except as may be otherwise agreed to
in writing by Xxxxxxxx, Inc. and M.D. Labs.
c. M.D. Labs shall have the right to obtain, register
and otherwise perfect its sole and exclusive ownership of any of the
aforementioned items, by means of copyright, trademark, service xxxx, or other
proprietary interest, anywhere and at any time, and shall have the right to use
any such items in any manner, when and where it may designate, without any claim
on the part of Xxxxxxxx to any rights of ownership or rights to additional
compensation, and Xxxxxxxx shall assist and cooperate with M.D. Labs in
perfecting its ownership and rights to use such items upon request.
x. Xxxxxxxx, Inc., on behalf of Xxxxxxxx, his heirs,
executors, administrators, assigns and next of kin, hereby releases M.D. Labs
and its parent, agents, officers, directors, employees, successors, assigns,
subsidiary companies, affiliated companies and the advertising agencies of any
of the foregoing from any and all claims for
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damages based on the reasonable use of Xxxxxxxx'x name, voice, signature and any
and all photographs, likenesses, sketches, motion pictures and biographies,
including, but not limited to, libel, slander, invasion or rights of privacy, or
any other claim.
6. Covenant. Xxxxxxxx, Inc. agrees that while this Agreement is in
force, it will not authorize or permit Xxxxxxxx, so far as it is within its
control, to render his services or permit the use of his name, recorded voice,
likeness, photograph or biography in advertising or publicizing or otherwise
endorse any products that compete with the M.D. Labs Products, including but not
limited to, any natural foods or dietary supplements, vitamins, or weight loss
or management products other than the M.D. Labs's Products, except that for a
period of six months from the date of this Agreement, Xxxxxxxx may continue to
endorse the products and services of Met-rx, Inc.
7. Xxxxxxxx'x Reputation. If Xxxxxxxx, at any time while this
Agreement is in force, shall commit any act or become involved in any situation
or occurrence which brings him into public disrepute, contempt, scandal or
ridicule or which tends to shock, insult or offend the community or any group or
class thereof which reflects unfavorably upon the reputation of M.D. Labs or its
products, then M.D. Labs shall have the right to terminate this Agreement
without further obligation to Xxxxxxxx, Inc., except to pay it such sums as may
have become due under this Agreement prior to such act, situation or occurrence.
8. Inability to Perform. In the event that, during the term of
this Agreement, Xxxxxxxx dies, is injured, or for any other reason beyond his
control, other than while performing a M.D. Labs contracted function, he is
unable to adequately, in the sole judgment of M.D. Labs, render the services
referred to herein within thirty (30) days after M.D. Labs's request, then M.D.
Labs shall have the right at its sole option to either extend the term of this
Agreement for a period of time equivalent to Xxxxxxxx'x failure to render
services or cancel this Agreement without obligation to make any further
payments to Xxxxxxxx, except that M.D. Labs shall be obligated to pay to
Xxxxxxxx or his legal representative all unpaid reimbursement sums which shall
have accrued to the date of such injury or death injury or death, provided M.D.
Labs has had some usage of Xxxxxxxx'x services during the year in question. Upon
payment of such sum(s) to Xxxxxxxx, M.D. Labs shall be relieved of any further
obligations hereunder.
9. Confidential Information. Xxxxxxxx, Inc. agrees that it shall
not, without M.D. Labs's prior written consent, disclose to any person or
entity:
a. Any of M.D. Labs's marketing, advertising or
promotional activities, information, data or ideas which may be of a proprietary
or confidential nature; or
b. Any of M.D. Labs's trade secrets or contemplated
trademarks which may originate or be produced or developed under this Agreement
or which Xxxxxxxx, Inc. may learn of as a result of this Agreement.
x. Xxxxxxxx, Inc. further agrees to prohibit Xxxxxxxx
from disclosing any of the information listed in sub-paragraphs 9(a) or (b)
above and agrees to indemnify
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M.D. Labs against any damages it may incur as a result of any such disclosure by
Xxxxxxxx.
10. Proprietary Rights. M.D. Labs shall have the opportunity to
review and preapprove all uses of its names, marks and/or logo(s) in connection
with this Agreement. Upon termination of this Agreement, Xxxxxxxx shall cease
all use of such names, marks and logo(s). All use of the names marks, logos,
characters, costume designs and other identifications and symbols used in
connection with this Agreement shall remain the exclusive property of M.D. Labs,
and shall inure to the benefit of M.D. Labs.
11. Termination. This Agreement shall terminate, at M.D. Labs's
discretion, if a default or breach of this Agreement by Xxxxxxxx, Inc. occurs.
If M.D. Labs is prohibited by law or regulations from engaging in or utilizing
any of the activities described in this Agreement, M.D. Labs, in its sole
discretion may either terminate this Agreement in its entirety, or continue
under the Agreement to the extent permissible by law. Otherwise, this Agreement
shall terminate at the end of the initial term or, if renewed, at the end of the
renewal term.
12. Notices. All notices required or permitted to be given under
the terms of this Agreement shall be in writing, and shall be deemed to be
given, as of the date of delivery if hand delivered or as of the postmark if
sent by United States certified or registered mail return receipt requested,
postage full prepaid, to the applicable address set forth above, or to such
other person or address as the receiving party may have designated by written
notice to the other. An extra copy of all notices to M.D. Labs shall be sent to
M.D. Labs's Legal Counsel in order for the notice to be binding on M.D. Labs.
13. Broadcast of Advertisements. M.D. Labs shall be under no
obligation to cause any commercials, advertisements or other promotional
materials produced pursuant to this Agreement to be broadcast, or in any other
way displayed, published or aired, it being understood that the only obligation
of M.D. Labs is to make such payments as are required under this Agreement.
14. Commissions. M.D. Labs shall be under no obligation for the
payment of any commissions to Xxxxxxxx, Inc. or Xxxxxxxx on account of this
Agreement.
15. Ownership of Material. Xxxxxxxx, Inc. agrees that neither it
nor Xxxxxxxx have nor shall claim to have, either under this Agreement or
otherwise, any right, title or interest of any kind or nature in and to any
advertising ideas, announcements, phrases, titles, characters, costume design,
music or words originated and supplied by M.D. Labs and used, and that all
rights therein are recognized to be in M.D. Labs. Both during and after the term
of this Agreement, M.D. Labs shall have the right to the unlimited use and reuse
of any and all of the advertising and promotional materials produced hereunder,
as it may elect, on any or all network and local television and radio programs
broadcast under the full or partial sponsorship of M.D. Labs, its affiliates and
subsidiaries, and as spot announcements on television and radio, and for the
sales training and trade development purposes of M.D. Labs, its employees,
retailers, affiliates and subsidiaries (including distribution to trade and
consumer groups).
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16. Warranty. Xxxxxxxx Inc. warrants and represents that it has
the right and power to enter into and to perform this Agreement on behalf of
Xxxxxxxx.
17. Product Statements. Xxxxxxxx, Inc. understands that product
claims, marketing and advertising of the M.D. Labs Products is heavily regulated
in the United States by one or more federal, state and local agencies and
authorities. Xxxxxxxx, Inc. agrees that Xxxxxxxx will not make any claims
concerning the structure, function, purpose, or effect of any products of M.D.
Labs without prior written approval of M.D. Labs.
18. Indemnification. Both during and after this Agreement,
Xxxxxxxx shall indemnify, defend and hold M.D. Labs, its parent corporation,
officers, directors, employees, customers, distributors, suppliers, agents,
successors and assigns harmless from and against all actions, suits,
proceedings, judgments, demands or claims (whether valid or invalid),
liabilities, losses or expenses whatsoever (including reasonable attorneys'
fees) incurred in connection with or arising from Xxxxxxxx, Inc.'s breach,
misrepresentation or nonperformance under this Agreement.
19. Relationship of the Parties.
a. All operations by each party under the terms of this
Agreement shall be carried on by it as an independent contractor and not as an
agent for the other.
b. It is understood and agreed that since Xxxxxxxx is an
independent contractor, M.D. Labs will not carry insurance covering any aspect
of Xxxxxxxx'x appearances, travel or promotional efforts, and Xxxxxxxx, Inc., on
behalf of Xxxxxxxx, his heirs, legatees, personal representatives, and all those
claiming by or through him, consents to and hereby discharges and releases M.D.
Labs, its employees and agents, from any and all claims, actions, losses,
damages, or expenses for personal or bodily injury, including death, and
property damage, of whatever nature or cause, arising out of or in any way
connected with this Agreement or with Xxxxxxxx'x appearances hereunder.
20. Nature of Services. It is mutually agreed that the services
contracted hereunder are special, unique and extraordinary and have peculiar
value to M.D. Labs. In the event of any breach of this Agreement, M.D. Labs
shall be entitled, in addition to any other remedies available to it, to obtain
equitable relief by way of temporary or permanent injunction.
21. Assignment. Xxxxxxxx, Inc. may not assign, transfer, or
subcontract any of its rights or obligations under this Agreement without M.D.
Labs's prior written consent.
22. Severability. If any provision of this Agreement (or any
portion thereof) shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remainder of this Agreement shall
not in any way be affected or impaired thereby; any such provision shall be
modified to the minimum extent necessary to make it valid and enforceable, but
if it cannot be so modified, it shall be severed and the remainder of the
Agreement shall be interpreted to provide for the maximum enforceability allowed
by law.
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23. Entire Agreement; Amendment. This Agreement embodies the
entire agreement between the parties regarding the subject matter hereof, and
neither the Agreement nor any term, provisions, covenant or condition hereof may
be waived, amended, modified, revised, extended or supplemented in any manner
whatsoever except by an express prior written agreement executed by fully
authorized representatives of both M.D. Labs and Xxxxxxxx, Inc.
24. Attorneys' Fees and Costs. Should either party be required
to enforce its rights hereunder, the prevailing party in an action for such
enforcement shall be entitled to recover its reasonable costs and expenses,
including without limitation attorneys' fees, to be determined by the court and
not a jury.
25. Captions and Headings. The paragraph captions in this
Agreement are for convenience only and are not intended to limit or interpret
the provisions hereof.
26. Governing Law. This Agreement shall be governed by and
construed and enforced under the laws of the State of Arizona, which state shall
have exclusive jurisdiction of the subject matter hereof. Both parties agree
that any action to enforce any provision of this Agreement shall be brought only
in courts located in Maricopa County, Arizona.
27. Waiver. The failure of either party hereto to insist in any
instance upon the strict performance of any provision of this Agreement or to
exercise any election contained herein shall not be construed as a waiver or
relinquishment for the future of such provision or election. No waiver or
modification by any party shall have been deemed to have been made unless
expressed in writing by such party.
28. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
M.D. LABS, INC.
By: Signature Illegible
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Title: CFO
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Date: 10/8/96
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XXX X. XXXXXXXX, INC.
By: Signature Illegible
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Its: President
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Date: 9/27/96
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2120 The Strand #3
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Business Address
Xxxxxxxxx Xxxxx, XX 00000
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City, State Zip Code
I hereby guarantee performance of all personal service obligations of
Xxxxxxxx, Inc. hereunder.
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
###-##-####
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Social Security No.
2120 The Strand #3
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Residential Address
Xxxxxxxxx Xxxxx, XX 00000
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City, State, Zip Code
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