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EXHIBIT 10.4
ENDORSEMENT AGREEMENT
THIS AGREEMENT is entered into as of August ___, 1999 by and between
XxxXxx.Xxx, Inc. ("AcuBid" or "the Company"), a Delaware domesticated
corporation whose address is 0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 on the one hand, and Xxxxxxxx (Yogi) Berra ("Xxxx Xxxxx") and
LTD Enterprises, a Delaware Corporation whose mailing address is
_________________, on the other hand.
W I T N E S S E T H
WHEREAS, Xxxx Xxxxx is a well-known athletic personality having
consumer recognization through television and other media exposure;
WHEREAS, AcuBid is in the business of conducting an internet auction
house for high-end collectibles, specifically, sports memorabilia;
WHEREAS, AcuBid desires to obtain Xxxx Xxxxx'x services and to use Xxxx
Xxxxx'x name and likeness in connection with a planned television and
multi-media advertising campaign to promote AcuBid's high-end sports memorabilia
auctions; and,
WHEREAS, Xxxx Xxxxx wishes to provide such services and grants AcuBid
the use of his name and likeness in connection with such promotion and
endorsement of AcuBid's on-line sports memorabilia auctions.
NOW THEREFORE, for and in consideration of the promises and mutual
covenants contained herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, it is agreed as follows:
1. Definitions. As used herein, the terms set forth below shall be
defined as follows:
(a) "Endorsement" shall mean the right to use the name, nickname,
character, visual representation, likeness, videotapes, photographs, voice or
endorsement.
(b) "Contract Period" shall mean that period of time commencing
August ___, 1999 and concluding August ____, 2001.
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(c) "Contract Territory" shall be worldwide, including the
world wide reach of the internet.
2. Services Provided and Rights Granted by Xxxx Xxxxx. Xxxx Xxxxx
agrees to provide the following services and grants the following rights to
AcuBid:
(a) Chat Room. During the term of the contact Xxxx Xxxxx shall
make himself available six hours per calendar quarter to participate in live
"chat room" discussions on the Company's internet site. In no event shall any
single "chat room" sitting exceed one (1) hour.
(b) Film Sessions. Xxxx Xxxxx shall be available for one (1)
day(s) of film\tape and such further sessions as both Xxxx Xxxxx and AcuBid
mutually agree for creation of films or tapes of him to be used in connection
with the advertising, promotion and endorsement of the AcuBid website and
high-end sports memorabilia auctions, specifically for the production of a
television commercial.
(c) Voice Over. Xxxx Xxxxx shall be available for one (1) day
of voice over taping sessions to be used in connection with the television
commercial for the advertising, promotion, and endorsement of the AcuBid website
and its high-end sports memorabilia auctions.
(d) Photography Session. Xxxx Xxxxx shall be available for one
(1) day for photograph session(s) and such further sessions as Xxxx Xxxxx and
AcuBid mutually agree for the creation of photographs of him to be used in
connection with advertising, promotion and endorsement of the XxxXxx.Xxx, Inc.
and its sports memorabilia auction, including, without limitation, trade
brochures and other point of sale materials. One day, for the purpose of this
Section 2, shall be limited to eight hours.
(e) Advisory Board. Xxxx Xxxxx will join and participate in
the advisory board of XxxXxx.Xxx for the contract period.
(f) Xxxx Xxxxx shall be available for such additional
photographic and film/tape sessions and appearances in the future as the parties
shall mutually agree.
(g) All expenses incurred by Xx. Xxxxx in conjunction with
this Paragraph 2 will be borne by AcuBid and paid in advance or promptly
reimbursed. All travel will be First Class including, but not limited to, air
and ground travel and hotel lodgings.
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3. Grant of Endorsement Rights. Xxxx Xxxxx hereby grants AcuBid the
exclusive right and license within the Contract Territory during the Contract
Period to use his endorsement in connection with the promotion, advertising,
marketing and sale of XxxXxx.Xxx and its on-line auctions. Xxxx Xxxxx further
covenants and agrees that he will not, during the Contract Period, endorse any
other on-line auctions.
4. Approval of Advertising. It is understood and agreed that AcuBid
will supply Xxxx Xxxxx with all advertising copy, and material generated in
connection with the production of any television commercial provided for in
paragraph 2 above used or to be used in connection with his endorsement and that
such copy and material will be so supplied prior to the use thereof insofar as
AcuBid can conveniently do so, but in any event, be supplied as soon thereafter
as possible. AcuBid further agrees that it will prevent the use or further use,
as the case may be, of any such advertising copy or materials in connection with
such commercial as is at any time expressly disapproved by Xxxx Xxxxx. Xxxx
Xxxxx agrees that he will not unreasonably disapprove or reject any such
advertising material. If Xxxx Xxxxx does not disapprove any advertising copy or
other materials associated with such commercial, submitted to him for approval
within three (3) days after the receipt thereof, said materials shall deem to
have been approved hereunder. Use of all advertising materials developed
hereunder shall be limited in use to the duration of this Agreement
5. No Conflicting Agreements. Xxxx Xxxxx represents and warrants that
he has made no prior agreements regarding endorsement of any other internet
on-line auctions or websites which would be effective at any period of time
during the contract period, and that he is free to enter into this Agreement and
to be bound by the terms herein. Xxxx Xxxxx further represents and warrants that
he has no knowledge of any rule, regulations, or policies of any organization
which would prohibit or limit his power and right to enter into and be bound by
the terms of this Agreement. Xxxx Xxxxx further agrees that during the Contract
Period he will not authorize or permit the use of his name, picture, portraits,
performance, likeness, voice, biographical material or endorsement by any other
person, firm, or entity other than AcuBid in connection with the advertising,
promotion or sale of internet or on-line auctions or websites.
6. Company to Purchase Sports Memorabilia. During the Contract Period,
AcuBid may, from time to time, purchase sports memorabilia from LTD Enterprises,
a company owned by Xxxx Xxxxx and the Berra family, at wholesale not retail
prices.
7. Additional Promotion. During the Contract Period, both Xxxx Xxxxx
and AcuBid agree that it would be of mutual benefit for Xxxx Xxxxx to promote
AcuBid's online auctions and
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websites whenever the opportunity for such promotion arises as specifically
agreed to by the parties.
8. Compensation. For the rights and benefits granted to AcuBid pursuant
to this Agreement, AcuBid agrees to transfer Thirty Thousand (30,000) shares of
its Common Stock to Xxxx Xxxxx and or his designees in accordance with
instructions provided by Xxxx Xxxxx, the family or their company LTD
Enterprises. In accordance therewith, the Company represents and warrants as
follows:
Pursuant to Rule 6530 and 6540 of the Marketplace Rules of the NASDAQ
Stock Market, the Company must undertake all acts required by law and the
Marketplace Rules by December 1, 1999 to become a reporting company within the
meaning of Section 13 of the Securities Exchange Act of 1934. Once the Company
becomes a reporting company, the Company will be eligible to register the shares
of its employee and consultants, including the shares covered by this Agreement,
on Form S-8 promulgated under the Securities Act of 1933, which is a summary
form of registration. The Company will use its best efforts to file a Form 10 or
Form 10SB registration, the first act required to become a reporting company,
not later than September 1, 1999 and thereafter will assist Xxxx Xxxxx, the
Xxxxx family and/or LTD Enterprises in processing the registration of its shares
on Form S-8. The purpose of this provision is to insure the fastest and most
complete marketability of the shares transferred under this Paragraph 8 as
registered shares which may be freely traded.
9. No Obligation. Xxxx Xxxxx acknowledges that AcuBid has no obligation
to produce or use any of the promotional, advertising, or endorsement materials
referred to herein, its entire obligation hereunder being fulfilled by conveying
and transferring the Thirty Thousand (30,000) shares of stock.
10. Union Membership. Xxxx Xxxxx agrees that if any of the services
rendered by him hereunder necessitate his membership in any union(s) having
jurisdiction, and he is not a member in good standing of such union(s), he will
immediately take all necessary steps to secure and maintain such membership at
the cost and expense of, and with the assistance of, AcuBid.
11. Injunctive Relief. Xxxx Xxxxx acknowledges that the services and
rights he is performing and granting hereunder are unique and of peculiar value
and impossible to replace, and thus, any breach of this Agreement will cause
irreparable damage to AcuBid. Xxxx Xxxxx therefore agrees AcuBid shall be
entitled as a matter of right to seek the enforcement of this Agreement and all
if its terms by way of an injunction or other relief in a court of equity in
addition to such other and further relief as AcuBid shall be entitled to at law.
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12. Indemnification. AcuBid agrees to protect, indemnify, and save
harmless Xxxx Xxxxx, the Berra family and the Berra entity LTD Enterprises from
and against any and all expenses, damages, claims, suits, actions, judgments,
and costs whatsoever, including reasonable attorneys fees, arising out of or in
any way connected with any claim or action relating to AcuBid's online auctions,
its website or its chat room, and the memorabilia that is the subject of such
auctions. This indemnification specifically excludes any action by Xxxx Xxxxx,
the Xxxxx family, or LTD Enterprises that may arise in connection with their
trading of AcuBid stock after they receive the shares provided for in Paragraph
8.
13. Right of Termination of AcuBid and Xxxx Xxxxx. (a) In the event of:
(1) any material breach by Xxxx Xxxxx of any of the terms or provisions of this
Agreement; or, (2) in the event that Xxxx Xxxxx shall cease for any reason (such
as resignation, termination, death, disability or otherwise) to be a well known
athletic personalty; or, (3) fails, refuses, neglects or is unable to render
services contemplated herein or fulfill the obligations of this Agreement
because of willful failure to cooperate with AcuBid; or, (4) suffers any mental
or physical disability or illness or substantial change of appearance, including
facial or bodily disfigurement; and, such breach, cessation, failure or physical
or mental impairment is not cured within fifteen (15) days after written notice
thereof from AcuBid to Xxxx Xxxxx, AcuBid shall have the right in its sole
discretion to terminate this Agreement upon fifteen (15) days' prior written
notice to Xxxx Xxxxx, such termination to be effective upon the expiration of
such notice period. AcuBid may elect in its sole discretion not to terminate the
contract, should any of the events of termination described in this paragraph
13(a) occur.
(b) In the event AcuBid shall materially breach of any of the
terms or provisions of this Agreement, and such non-payment or breach has not
been cured within fifteen (15) days' after written notice thereof from Xxxx
Xxxxx to AcuBid, Xxxx Xxxxx shall have the right to terminate this Agreement
upon ten (10) days' prior written notice to AcuBid, such termination to be
effective upon the expiration of such notice period.
14. Use of Name in Conjunction with Likeness. AcuBid agrees to display
Xxxx Xxxxx'x name in reasonable proximity to any use of his likeness in
connection with the promotion, advertisement or endorsement of AcuBid online
auction or website in the form of print, script, Xxxx Xxxxx'x signature and/or
any other legible form, at AcuBid's discretion. Xxxx Xxxxx agrees to provide
AcuBid with a sample of his signature for such purpose if AcuBid so requests.
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15. Competitive Products. During the term of this Agreement and until
July ___, 2001, Xxxx Xxxxx agrees that he will not furnish services or
materials, or authorize or permit the use of his name, pictures, portraits,
performances, likeness, voice, biographical material or endorsement by any
person, firm or entity other than AcuBid in connection with the advertising,
promotion, endorsement or sale of internet/online auction services including,
but not limited, to those relating to sports memorabilia, other than AcuBid's.
16. Agreement to Negotiate. Xxxx Xxxxx and AcuBid agree at the end of
the Contract Period to negotiate in good faith any extension, or modification of
this Agreement or such new agreement as the parties in good xxxxx xxxx
applicable.
17. Confidentiality of Agreement. The substance of this Agreement shall
not be divulged by Xxxx Xxxxx or his representatives, agents, or attorneys,
except to any person in the course of any legal proceeding to which any of the
parties to this Agreement is a party for the purpose of securing compliance with
this Agreement.
18. Notices. All statements, notices and mailings of any nature
contemplated hereunder shall be sufficient if mailed certified mail, return
receipt requested, postage prepaid, addressed to the respective parties at the
addresses set forth below, unless a party notifies the other by such notice of a
new address, in which event such new address shall be employed for all
subsequent mailings:
To XxxXxx.Xxx, Inc.: XxxXxx.Xxx, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
With a copy to: Xxxxxxx X. Xxxx
Law Offices of Xxxxxxx X. Xxxx
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
To Xxxx Xxxxx:
To the Agent: Xxx Xxxxx
LTD Enterprises
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19. Significance of Headings. Paragraph headings contained herein 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.
20. Entire Agreement. This Agreement embodies the entire agreement
between the parties as of the date hereof, and no modifications, amendments or
variations therefrom shall be of any effect unless in writing signed by a duly
authorized office of the Partners and by Xxxx Xxxxx.
21. No Partnership, Etc. This Agreement does not constitute and shall
not be construed as constituting a partnership or joint venture between AcuBid
and Xxxx Xxxxx.
22. Bind and Inure. This Agreement shall bind against and inure to the
benefit of any successor and assign of AcuBid. The parties hereto expressly
agree that in view of the personal services contemplated pursuant to this
Agreement, Xxxx Xxxxx, shall have no right to assign his obligations or
covenants hereunder to any third party without the express written approval of a
duly authorized officer of AcuBid.
23. Controlling Law. This Agreement shall be deemed to be a contract
made under, governed by and construed in accordance with the laws of the State
of California and venue shall be in San Diego, California.
24. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Any arbitration hereunder shall be conducted in San Diego,
California.
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25. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which when so executed and delivered shall be
taken to be an original; but such counterparts shall together constitute but one
and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XxxXxx.Xxx, Inc.
By: /s/ XXXXXXXX XXXXXXXX
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Xxxxxxxx Xxxxxxxx, President
Xxxxxxxx (Yogi) Berra
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By: /s/ XXXXXXXX XXXXX
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Xxxxxxxx (Yogi) Berra, an individual
LTD Enterprises
By: [SIGNATURE ILLEGIBLE]
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Pres. L.T.D.
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(Name and Title)
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