EXHIBIT 4.4
THIS AGREEMENT is made by and between Genius Products, Inc. ("Client")
located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx and Xxxxx
XxXxxxxx Associates, Inc. ("Consultant"), located at 000 Xx. Xxxxxxxxx Xxxxx, Xx
Xxxxxx, California.
In consideration of the mutual covenants and promises contained in this
Agreement as set forth below, the Client and the Consultant agree as follows:
SECTION 1. DESCRIPTION OF WORK. The services provided by the Consultant
shall be provided on an as-needed basis. The Client shall have sole discretion
to determine the need for continuing these services. The Client shall have sole
discretion to establish the minimum qualifications necessary for the performance
of any service rendered by the Consultant under this Agreement.
The Consultant shall perform such services as may be requested by the Client,
including:
o Provide direction to licensing strategy for Baby Genius
products, including oversight of existing and future efforts
by Global Icons, the Client's licensing agent for Baby Genius.
This will include: sub-category licensing strategies,
evaluation and selection of new licensees, and management of
existing licensees.
o Develop integrated retail plans for Client's licensing
efforts. This will include: contact and work with key
retailers and licensees, set key meetings and strategies,
direct process of retail sales, merchandising and promotion
proposals to retailers.
o Where possible, create opportunities to sell Baby Genius
direct product (CD's and videos) into new sales channels or
accounts.
The Consultant will determine the method, details, and means of performing the
services.
SECTION 2. COMPENSATION. The Client agrees to pay the Consultant for
services provided under this Agreement as follows: $6,000.00 per month, payable
as $3,000.00 in cash, and $3,000.00 worth of shares of free trading common stock
of Genius Products, Inc., payable prior to the 10th day of each month. The
price/share of the stock is to be determined by the average daily closing price
of GNPI over the 20 trading days of the prior month.
In addition, the Client agrees to pay the Consultant a percentage of
gross licensing revenue for the calendar year 2003, as follows:
3% if the gross licensing revenue is 0-$500,000
4% if the gross licensing revenue is $500,000-$1,000,000
5% if the gross licensing revenue is above $1,000,000
Payment will be quarterly, payable within 30 days after the close of
each quarterly accounting period, but not later than 75 days after the close of
each quarter. Payment will be in
cash or shares of free trading common stock of Genius Products, Inc. at the sole
discretion of the Client. If paid in stock, the stock price/share will be based
on the average closing price calculations as described above, computed
quarterly.
Should Consultant's efforts result in sales of Baby Genius direct
product (CD's or videos) into any new sales channels or accounts, Client agrees
to pay Consultant a sales commission of 5% of net sales (wholesale sales less
standard returns) on those sales, and on subsequent sales to that new customer
for at least the next two sales quarters.
Finally, Client shall issue to Consultant an option to purchase 40,000
shares of restricted stock in Genius Products, Inc. with an exercise price of
$0.63/share on the earlier of the date of execution of this contract, or May 1,
2002. Such options are fully vested to Consultant upon issuance, but subject to
the same restrictions as the Client's recent PPM. The option will be valid for
five years from the date of issuance.
SECTION 3. RELATIONSHIP OF THE PARTIES. The Consultant shall be deemed
independent not an employee, partner, agent, or joint venturer of the Client.
Consistent with the foregoing, the Client shall not deduct withholding taxes,
social security taxes, or any other taxes required to be deducted by an
employer. Further, the Consultant shall not be entitled to any fringe benefits,
pension, retirement, profit sharing or any other benefits accruing to the
Client's employees.
SECTION 4. TERM OF EMPLOYMENT. This Agreement will become effective on
May 1, 2002, and will continue for a period of twelve months. .
SECTION 5. RESPONSIBILITIES OF THE CONSULTANT. The Consultant agrees to
devote a minimum of 35 hours per month to performance of the above-described
services. The Consultant may represent, perform services for, and be employed by
such additional clients, persons, or companies as the Consultant, in the
Consultant's sole discretion, shall determine. The Consultant will supply all
tools, supplies, and instrumentalities required to perform the services under
this Agreement. The Consultant further agrees to provide workers' compensation
insurance for the Consultant's employees and agents and agrees to hold harmless
and indemnify the Client for any and all claims arising out of any injury,
disability, or death of any of the Consultant's employees or agents.
SECTION 6. RESPONSIBILITIES OF THE CLIENT. The Client agrees to comply
with all reasonable requests of the Consultant necessary to the performance of
the Consultant's duties under this Agreement if requested by the Consultant. The
Client agrees to furnish space on the Client's premises for use by the
Consultant while performing the above-described services.
SECTION 7. CONSULTANT'S EMPLOYEES. The Consultant may, at the
Consultant's own expense, employ such assistants, consultants, employees, and
other Consultants as the Consultant deems necessary to perform the services
required of the Consultant by this Agreement, and the Client may not control,
direct, or supervise them in the performance of those services.
SECTION 8. LIABILITY. The Client will not be liable to the Consultant,
or to anyone who may claim any right due to a relationship with the Consultant,
for any acts or omissions in the performance of services under the terms of this
Agreement or on the part of the employees or agents of the Client unless such
acts or omissions are due to willful misconduct.
SECTION 9. CONFIDENTIALITY.
The Consultant agrees that:
a.) all knowledge and information that the Consultant may receive from
the Client in any manner whatsoever relating to inventions, products,
processes, machinery, apparatus, prices, customer lists, discounts,
costs, business affairs, future plans, or technical data that belong to
the Client and
b.) all information provided by the Consultant to the Client in
reports, together with any other information acquired as a direct
result of the Agreement, shall for all time and for all purposes be
regarded by the Consultant as strictly confidential and held by the
Consultant in confidence and solely for the Clients' benefit and use.
Such knowledge and information shall not be used by the Consultant nor
disclosed by the Consultant to any party whatsoever except to the
Client or with the Client's prior written permission.
SECTION 10. INDEMNITY, REPRESENTATIONS AND WARRANTIES OF CLIENT, AND
LIMITATION OF DAMAGES. The Consultant will indemnify and hold the Client free
and harmless from any obligations, debts, suits, costs, claims, judgments,
liabilities, attorneys' fees, liens and attachments arising from, growing out
of, or in any way connected with the services rendered under the terms of this
Agreement. Further, Client represents and warrants to CDA that Client holds all
rights, title, and interest necessary for the licensing of the intellectual
property that is the object of this agreement. Client will defend, indemnify,
and hold CDA harmless against each, every, any, and all claims against CDA in
connection with the licensing of the intellectual property as contemplated by
this agreement. Client hereby waives any and all rights to economic or other
consequential damages arising in connection with CDA's acts or omissions in
connection with CDA's performance of this agreement. CDA's liability to Client
shall in no event exceed its then future (accrued or accruing) compensation
hereunder. CDA disclaims all implied warranties, if any. CDA specifically
disclaims any and all liability, and shall have none to Client, arising in
connection to Client's business transactions with manufacturers, retailers or
other third parties to whom CDA may introduce Client in connection with CDA's
services hereunder. CDA makes these introductions for Client's benefit only. CDA
makes no representations or warranties with respect to the performance or
actions of third parties.
SECTION 11. TERMINATION OF AGREEMENT. Either party may terminate this
Agreement at any time by giving thirty (30) days written notice to the other
party. Further, this Agreement shall terminate upon the occurrence of any of the
following events:
a. Bankruptcy or insolvency of either party.
b. Death of either party (if the party is an individual).
c. Breach of a substantial nature of any provision of this Agreement.
In the event of early termination of this agreement by either party for any
reason, the Client will remain obligated to pay the Consultant a percentage of
its gross licensing revenue for 2003, as described above in Section 2.
SECTION 12. EFFECT OF PARTIAL INVALIDITY. The invalidity of any portion
of this Agreement shall not affect the validity of any other provision. In the
event that any provision of this Agreement is held to be invalid, the parties
agree that the remaining provisions shall remain in full force and effect.
SECTION 13. ENTIRE AGREEMENT. This Agreement contains the complete
Agreement between the parties and shall supersede all other agreements, either
oral or written, between the parties. The parties stipulate that neither of them
has made any representations except as are specifically set forth in this
Agreement and each of the parties acknowledges that they have relied on their
own judgment in entering into this Agreement.
SECTION 14. ASSIGNMENT. Neither party to this Agreement may assign
their rights under this Agreement unless the other party so consents to the
assignment in writing.
SECTION 15. NOTICES. All notices, requests, demands, and other
communications shall be in writing and shall be given by registered or certified
mail, postage prepaid, to the addresses shown on the first page of this
Agreement, or to such subsequent addresses as the parties shall so designate in
writing.
SECTION 16. ARBITRATION. Any controversy or claim arising out of this
Agreement, or the breach of this Agreement shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator may be
entered in any court having jurisdiction.
SECTION 17. ATTORNEY'S FEES. If any action at law or in equity,
including an action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees as determined by the court in the same action.
SECTION 18. AMENDMENT. Any modification, amendment or change of this
Agreement will be effective only if it is in a writing signed by both parties.
SECTION 19. GOVERNING LAW. This Agreement, and all transactions
contemplated by this Agreement, shall be governed by, construed, and enforced in
accordance with the laws of the State of California.
SECTION 20. HEADINGS. The titles to the paragraphs of this Agreement
are solely for the convenience of the parties and shall not affect in any way
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
third day of January, 2002.
CONSULTANT: CLIENT:
/S/ XXXXX XXXXXXXX /S/ XXXXX XXXXXXX
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Xxxxx XxXxxxxx Associates, Inc. Genius Products, Inc.
By: XXXXX XXXXXXXX By: X. XXXXXXX
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Its: PRESIDENT Its: CEO
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