AGREEMENT
This Agreement is made and entered into this 30th day of June, 1995,
by and between SkyBox International Inc. with offices at 000 Xxxxx Xxxx Xxxxxx,
X.X. Xxx 00000, Xxxxxx, XX 00000-0000 (hereinafter "Licensee"), and NATIONAL
FOOTBALL LEAGUE PLAYERS INCORPORATED, a corporation with offices at 0000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 (hereinafter "Players Inc" or "Licensor").
This Agreement shall be effective as of March 1, 1995.
WITNESSETH:
1. REPRESENTATIONS.
(A) Players Inc represents that it has been duly appointed and is
acting on behalf of the football players of the National Football League who
have entered into a Group Licensing Authorization which has been assigned to
Players Inc, either in the form attached hereto as Attachment "A" or through
the assignment contained in Paragraph 4(b) of the NFL Player Contract, and that
in such capacity it has the right to negotiate this contract and the right to
grant rights and licenses described herein. Licensee acknowledges that Players
Inc also on occasion secures authorization for inclusion in Players Inc
licensing programs from players who have not entered into such Group Licensing
Authorization, but who, nevertheless, authorize Players Inc to represent such
players for xxxxxxxxxx Xxxxxxx Inc licensed programs.
(B) Players Inc makes no representation that it has the authority to
grant, nor does it grant herein, the right to utilize any symbols, insignias,
logos, or other identifying names or marks of the National Football League
(hereinafter "NFL") and/or any of its member clubs. Accordingly, it is
understood by the parties hereto that if likenesses of players are to be used
by Licensee in conjunction with any symbols, insignia, or logos of the NFL or
any of its member clubs, in the exercise of the License granted hereunder, it
will be the responsibility of Licensee to obtain such permission as may be
necessary for the use of such material from the NFL or the club(s) in question.
Licensor retains all rights not expressly and exclusively granted to Licensee
hereunder.
2. GRANT OF LICENSE.
(A) Upon the terms and conditions hereinafter set forth, Players Inc
hereby grants to Licensee and Licensee hereby accepts the non-exclusive right,
license and privilege of utilizing the logo(s), name(s), and symbol(s) of
Players Inc and the names, likenesses, pictures, photographs, voices, facsimile
signatures, descriptions, and/or biographical sketches of the NFL players
listed in Attachment "B", for product(s) in the form of football player trading
cards and collector's aids products (hereinafter referred to as "the licensed
product(s)"). Provided, however, that the specific manner in which the rights
licensed hereunder are to be used on the licensed product(s) in question shall
require the prior written consent of Players Inc.
(B) The rights, licenses and privileges granted by Players Inc
hereunder shall not constitute, or be used by Licensee as a testimonial or an
endorsement of any or product, service, or event by all or any of the players,
or by Players Inc. In the event Licensee is interested in securing an
individual player's personal endorsement, Licensee agrees and acknowledges that
such endorsement will require the personal approval of the individual player
and Players Inc and a separate payment made through Players Inc to such player.
Licensee agrees and acknowledges that any player who is committed individually
by contract for products or services competitive with those of Licensee may be
required to cease from further inclusion in this Agreement.
3. RETAIL LICENSE ONLY. The above-referenced Grant of Rights applies only to
the manufacture and distribution of licensed product(s) for retail sale, and
shall not permit the use of licensed product(s) as "premium items" to be
included with non-licensed product(s), services or events to promote the sale
of such non-licensed product(s), services or events; provided, however, that
Licensee shall be permitted to promote the sale of licensed product(s), subject
to prior written approval by Players Inc and in a manner consistent with the
provisions of the Agreement. Any such premium promotion using the licensed
product(s) herein shall require a separate agreement between Players Inc and
any sponsor of the promotion, with separate terms and conditions, and nothing
contained herein shall obligate either Players Inc or Licensee to enter into
such an agreement.
4. TERRITORY. Licensee shall have the right to utilize the rights granted
hereunder for distribution of the licensed product(s) in the following
territory: United States, its territories and possessions, and Canada.
5. TERM.
(A) The term of this Agreement shall extend from March 1, 1995 to
February 28, 1997 (hereinafter referred to as Original License Period) unless
terminated in accordance with the provisions hereof. Licensee may renew this
Agreement for an Additional License Period from March 1, 1997 to February 28,
1998, provided Licensee has faithfully fulfilled its obligations hereunder in
the Original License Period. Notice of desire to renew shall be given by
Licensee no later than January 1, 1997 in the Original License Period.
(B) Licensee acknowledges and agrees that Licensee has and shall have
no right to extend or renew this Agreement beyond the term and renewal options,
if any, stated herein. No conduct by either Licensor or Licensee (including
without limitation, any approvals granted pursuant to Paragraph 12 hereof)
shall create, imply or infer a new license agreement or an extension of the
stated term and renewal options, if any, of this Agreement, unless same is
specifically set forth in a written agreement signed by both Licensor and
Licensee. Licensee's agreement that this Agreement is subject to the term and
renewal options, if any, stated herein, in all events whatsoever, is a material
inducement for Licensor to enter into this Agreement.
6. ROYALTY PAYMENT.
(A) Licensee agrees to pay Players Inc a guaranteed royalty of
[CONFIDENTIAL TREATMENT REQUESTED] for its use of the rights licensed hereunder
for the Original License Period and a guaranteed royalty of [CONFIDENTIAL
TREATMENT REQUESTED] the Additional License Period, if applicable. The
guaranteed royalty shall be paid as follows:
(i) For the Original License Period, [CONFIDENTIAL TREATMENT
REQUESTED] upon the execution of this Agreement,
[CONFIDENTIAL TREATMENT REQUESTED] on or before [CONFIDENTIAL
TREATMENT REQUESTED] on or before [CONFIDENTIAL TREATMENT
REQUESTED] on or before [CONFIDENTIAL TREATMENT REQUESTED] on
or before [CONFIDENTIAL TREATMENT REQUESTED].
(ii) For the Additional License Period, if applicable,
$650,000 on or before March 1, 1997, and $650,000 on or
before September 1, 1997.
(B) Such guaranteed royalty payments shall be made by Licensee as
specified hereinabove whether or not Licensee uses the rights licensed
hereunder, and no part of such guaranteed payments shall be repayable to
Licensee.
(C) Licensee shall also pay to Players Inc an amount equal to
[CONFIDENTIAL TREATMENT REQUESTED]. The guaranteed payments for the Original
License Period shall be calculated annually and
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separately [CONFIDENTIAL TREATMENT REQUESTED]. For example, the [CONFIDENTIAL
TREATMENT REQUESTED]. Royalties shall be calculated on a quarterly basis and
shall be due as of the last day of each May, August, November, and February of
this Agreement and must be paid no later than fifteen (15) days following such
due dates. Gross sales shall be calculated based on the standard price(s)
charged by Licensee to the retailer directly or to the wholesaler in an arms
length transaction. Licensee shall transact no sale, the effect of which is to
reduce the royalty paid by Licensee to Players; provided, however, that
Licensee shall be permitted to provide arms length discounts, allowances and
returns which are normal and customary. Gross sales shall exclude only such
normal and customary discounts, allowances and returns. In addition to all
other rights contained in this Agreement, Players Inc shall be entitled to
collect and Licensee shall [CONFIDENTIAL TREATMENT REQUESTED] on all guarantee
or royalty payments not timely made to Players Inc by Licensee.
7. PERIODIC STATEMENTS.
(A) Licensee shall furnish to Players Inc, no later than fifteen (15)
days following the last day of each May, August, November, and February of this
Agreement, a complete and accurate statement certified to be accurate by an
officer of Licensee, showing the number, description and gross purchase price,
of the licensed product(s) distributed by Licensee during the preceding
quarterly reporting period described in Paragraph 6(C) herein, together with
any returns made during such reporting period. Once in every twelve-month
period, Licensee shall furnish Players Inc with a detailed statement certified
by an officer of Licensee, showing the number of gross sales of the licensed
product(s) covered by this Agreement.
(B) Such statements shall be furnished to Players Inc whether or not
any of the licensed product(s) have been purchased during the reporting period
for which such statement is due. The receipt or acceptance by Players Inc of
any statement or of any royalty paid hereunder (or the cashing of any royalty
check paid hereunder) shall not preclude Players Inc from questioning the
correctness thereof at any time, and in the event any inconsistencies or
mistakes are discovered in connection therewith, they shall immediately be
rectified and the appropriate payment made by Licensee.
8. BOOKS AND RECORDS.
(A) For a period of two (2) years following the termination or
expiration of this Agreement, Licensee shall maintain accurate books and
records for itself and any subsidiary or affiliated entity with respect to its
sale of licensed product(s) under this Agreement. Said books and records shall
be subject to inspection and audit by Players Inc or its duly authorized
representative at reasonable times upon reasonable notice from Players Inc to
Licensee. In addition and similarly, Licensee shall cause any entity from which
it contracts for services or production of product to cause its books and
records to be available for audit and inspection by Players Inc to the extent
necessary to confirm the audit of Licensee. Licensee shall not interfere with
such inspections and audits in any way.
(B) The cost of such inspections and audits shall be paid by Licensee
if the result of such inspections and audits indicates a difference of 2% or
more, when compared to the statement certified to be accurate by an officer of
Licensee, as required by Paragraph 7(A) of this Agreement, for the twelve month
period covered by such statement, or shall be paid by Players Inc if such
difference is less than 2%.
(C) In the event any inconsistencies or mistakes are discovered as a
result of such inspections and audits, they shall immediately be rectified and
the appropriate payment made by Licensee.
9. PAYMENT AND NOTICES: All transactions under this Agreement, including
without limitation all payment of royalties and all notices, reports,
statements, approvals and other communications, shall be with or made payable
in the name of NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED, 0000 X Xxxxxx,
X.X.,
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Xxxxxxxxxx, X.X. 00000, or its assignee where applicable. All correspondence,
notices, approvals and other communications to Licensee shall be with SkyBox
International Inc., Executive Plaza, Suite 300, 0000 Xxxxx 00, Xx. Xxxxxx, XX
00000.
10. INDEMNIFICATION.
(A) Licensee agrees that it will not during the term of this
Agreement, or thereafter, attack the rights of Players Inc in and to the
logo(s), name(s) and symbol(s) of Players Inc or any of the rights licensed
hereunder, or attack the validity of this Agreement.
(B) Licensee further agrees to assist Players Inc to the extent
necessary in the procurement of any protection or to protect any of the rights
conveyed hereunder, and Players Inc, if it so desires, may commence or
prosecute at its own expense any claims or suits in its own name or in the name
of Licensee or join Licensee as a party thereto. Licensee shall notify Players
Inc in writing of any infringement by others of the rights covered by this
Agreement which may come to Licensee's attention, and Players Inc shall have
the sole right to determine whether or not any action shall be taken on account
of any such infringement. Licensee shall not institute any suit or take any
action on account of any such infringement without first obtaining the written
consent of Players Inc to do so and Players Inc shall reasonably consider any
such request.
(C) Licensee for its own acts hereby indemnities Players Inc and
undertakes to defend Players Inc from and against any claims, suits, losses,
damages, and expenses (including reasonable attorney's fees and expenses)
arising out of the manufacture, marketing, sale, distribution, or use of the
licensed product(s) which are the subject of this Agreement. Licensee agrees to
obtain, at its own expense, product liability insurance, providing adequate
protection for Licensee and Players Inc against any such claims or suits in
amounts not less than Three Million Dollars ($3,000,000.00). Within thirty (30)
days from the date hereof, Licensee shall submit to Players Inc a fully paid
policy or certificate of insurance naming Players Inc as an insured party,
requiring that insurer will not terminate or materially modify such without
written notice to Players Inc at least twenty (20) days in advance thereof.
(D) Players Inc hereby indemnities Licensee and undertakes to defend
Licensee against, and hold Licensee harmless from any liabilities, losses,
damages, and expenses (including reasonable attorney's fees and expenses)
resulting from claims made or suits brought against Licensee based upon the use
by Licensee of the logo or the rights strictly as authorized in this Agreement.
11. COPYRIGHT AND TRADEMARK NOTICES.
(A) Licensee shall prominently place or cause to be placed Licensor's
registered trademark on the licensed products and on packaging, wrapping,
advertising (both print and media), and any other material, including trade
show booths and exhibits in connection with such licensed product(s) publicly
distributed under this Agreement.
(B) Licensor's registered trademark appearing on the licensed
product(s) and on all materials in connection with the licensed product(s)
shall be the xxxx provided to Licensee by Licensor in precisely the form
supplied, without variation, with the letter R enclosed within a circle.
Further, Licensee shall provide to Licensor the date of the first use of such
licensed product(s) in intrastate and interstate commerce.
(C) Additionally, Licensee shall imprint or cause to be imprinted the
following text on any such licensed product(s) and/or materials therefor:
"Officially Licensed Product of the
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National Football League Players",
or
"Officially Licensed Product of
Players Inc"
The specific text imprinted shall be subject to Licensor's sole
discretion.
12. APPROVALS.
(A) Attachment "B" hereto shall be established and may be modified in
the following manner:
(i) Upon execution of this Agreement, and thereafter annually
by December 15 of each calendar year covered by this
Agreement, Licensee shall submit to Players Inc a proposed
list of players' names for inclusion in Attachment "B" for
the upcoming football season.
(ii) Players Inc shall respond to such submissions in writing
to Licensee, signifying approval or disapproval in the case
of each player's name so requested.
(iii) Licensee may submit requests in writing to Players Inc
for additions, deletions, or substitutions of players' names
contained in Attachment "B" and Players Inc shall respond to
such requests within a reasonable period of time.
(B) The Licensee agrees to furnish Players Inc free of cost for its
written approval as to quality and style, samples of each of the licensed
product(s), together with their packaging, hangtags, and wrapping material,
before their manufacture, sale or distribution, whichever occurs first, and no
licensed product(s) shall be manufactured, sold or distributed by the Licensee
without such written approval. Players Inc shall respond in writing to requests
for such approval from Licensee within 15 business days. Any request by
Licensee for such approval which is received by Players Inc and is not
responded to within 15 business days shall be deemed approved by Players Inc.
Subsequent to final approval, a reasonable number of production samples of
licensed product(s) will periodically be sent to Players Inc to insure quality
control, and should Players Inc require additional samples for any reason,
Players Inc may purchase such at Licensee's cost.
Licensee shall also provide to Players Inc free of charge the
following:
(i) Prior to December 1 of each License Period, for each
player included in Attachment "B", 100 copies of his
individual card and one complete set of all player cards
produced for that License Period;
(ii) Prior to December 1 of each License Period for Players
Inc, three (3) cases of count goods and two (2) dozen
complete sets of all player cards produced for that License
Period.
(C) Licensee may choose to use player names and/or likenesses on or in
any material pertaining to packaging, hangtags, wrapping material, print ads,
flyers, point-of-purchase displays, press releases, catalogues, trade show
booths and exhibits or any other written material which incorporates player
names and/or likenesses; provided, however, that such use shall require the
prior written approval of Players Inc. The number of players included in any
such use, if approved, shall be a minimum of six and a maximum of twenty, and
shall be selected from Attachment "B". Player names and/or likenesses so used
shall be written or displayed with equal prominence.
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(D) Licensee may choose to use player names and/or likenesses
(including, without limitation, action footage) in radio or television
commercials; provided, however, that such use shall require the prior written
approval of Players Inc. The number of players included in such commercials, if
approved, shall be a minimum of six and a maximum of twenty and shall be
selected from Attachment "B". The players used in such commercials shall be
shown with equal prominence. Licensee agrees to furnish Players Inc all scripts
and story boards for proposed radio and television commercials in connection
with the promotion of the licensed product(s), and the content of such scripts
and story boards shall require the prior written approval of Players Inc before
any commercials shall be made or shall be contracted for by Licensee.
(E) Players whose names and/or likenesses are used in accordance with
this Paragraph 12, in any radio or television commercials, print ads,
point-of-purchase displays, packaging, hangtags, wrapping material, press
releases, catalogues, flyers, trade show booths and exhibits or any other
written material or medium, to promote licensed product(s), shall be paid
individually, separate from and in addition to any guarantees or royalty
payments contained in this Agreement. The amount of such payment shall be
subject to mutual agreement by Players Inc and Licensee and payment shall be
sent to Players Inc. All contacts with such players or their agents shall be
made by Players Inc.
(F) Notwithstanding anything to the contrary hereinabove, Licensee
shall be permitted, without additional separate payment to Players Inc for
players, to show on counter card boxes: (1) six or more examples of the
football trading cards licensed herein, and/or (2) a list of six or more
players' names whose images or likenesses are used on the football trading
cards licensed herein; provided, however, that such cards are shown with equal
prominence, and provided further, however, that Players Inc shall retain all
rights to prior written approval contained hereinabove.
(G) In the event Licensee wishes to secure individual players to make
appearances to promote licensed product(s) or to autograph licensed product(s)
the selection of such player(s) and the separate fee to be paid to such
player(s) shall be subject to mutual agreement between Licensee and Players
Inc. Players Inc will attempt to secure the services of player(s) requested,
and all contact with requested player(s) or their agents shall be made by
Players Inc. Once the player(s) has made the appearance, payment shall be made
to Players Inc. Any such payments to player(s) shall be separate from and in
addition to any royalties paid by Licensee under this Agreement.
13. NON-INTERFERENCE. Licensee agrees and acknowledges that it shall not secure
or seek to secure, directly from any player who is under contract or seeking to
become under contract to an NFL club, or from such player's agent, permission
or authorization for the use of such player's name, facsimile signature, image,
likeness, photograph or biography in conjunction with the licensed product(s)
herein.
14. GOODWILL.
(A) Licensee recognizes the great value of the goodwill associated
with the logo(s), name(s), and symbol(s) of Player Inc, and acknowledges that
such goodwill belongs exclusively to Players Inc and that said logo(s),
name(s), and symbol(s) have a secondary meaning in the mind of the public.
(B) Licensee agrees that all elements (including all material of any
nature utilizing in any way the rights licensed hereunder, including but not by
way of limitation, all packages, cartons, point of sale material, newspaper and
magazine advertisements) of the licensed product(s) shall be of high standard
and of such style, appearance and quality as to be adequate and suited to the
best advantage and to the protection and enhancements of such rights; that the
marketing of the licensed product(s) will be conducted in accordance with all
applicable federal, state and local laws; and that the licensed product(s) and
their exploitation shall be of high standard and to the best advantage and that
the same in no manner reflect adversely upon the good name of Players Inc.
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15. SPECIFIC UNDERTAKINGS OF LICENSEE.
(A) Licensee agrees that every use of the rights licensed hereunder by
Licensee shall inure to the benefit of Players Inc and that Licensee shall not
at any time acquire any title or interest in such rights by virtue of any use
Licensee may make of such rights hereunder.
(B) All rights relating to the rights licensed hereunder are
specifically reserved by Players Inc except for the License herein granted to
Licensee to use the rights as specifically and expressly provided in this
Agreement.
(C) Upon expiration or termination of this Agreement, all rights
granted hereunder shall immediately revert to Players Inc, and Licensee will
refrain from further use of such rights or any further reference thereto,
direct or indirect, except as provided in Paragraph 16(E) below. Licensee
acknowledges that its failure to cease the use of such rights at the
termination or expiration of this Agreement will result in immediate and
irreparable damage to Licensor, and/or individual National Football League
player(s), and to the rights of any subsequent licensee(s).
(D) Licensee agrees to spend the following total amounts on activities
which stimulate and promote the market for licensed product(s), subject to
prior written approval by Players Inc of such activities:
[CONFIDENTIAL TREATMENT REQUESTED].
Such activities shall include, but not be limited to, sponsorships,
promotions, player appearances, and special events. Licensee shall provide
documentation that such approved expenditures have been made. The expenditure
documentation shall be provided on a quarterly basis and shall be certified by
an officer of Licensee. Such documentation shall be subject to inspection and
audit by Players Inc on the same basis as Licensee's books and records.
16. TERMINATION BY PLAYERS INC
(A) In the event Licensee does not commence in good faith to cause the
manufacture, distribution, and sale of the licensed product(s), in substantial
quantities on or before August 1, 1995, Player Inc, in addition to all other
remedies available to it shall have the option to terminate the License granted
hereunder upon written notice of such termination to Licensee.
(B) In the event Licensee files a petition in bankruptcy or is
adjudicated as bankrupt, or if a petition in bankruptcy is filed against
Licensee or if Licensee becomes insolvent, or makes an assignment for the
benefit of its creditors or an arrangement pursuant to any bankruptcy laws, or
if Licensee discontinues its business, or if a receiver is appointed for it or
its business, all rights granted hereunder, without notice, shall terminate
automatically upon the occurrence of any such event. In the event of such
termination, neither Licensee nor its receivers, representatives, trustees,
agents, administrators, successors, and/or assigns shall have any right to
sell, exploit or in any way deal with the rights granted hereunder or with any
licensed product(s), or any carton, container, packaging or wrapping material,
advertising, promotional or display material pertaining to any licensed
product(s).
(C) If Licensee shall violate any of its other obligations under the
terms of this Agreement, Players Inc shall have the right to terminate this
Agreement upon fifteen (15) days' notice in writing, and such notice of
termination shall become effective unless Licensee shall completely remedy the
violation within the fifteen (15) day period and shall provide reasonable proof
to Players Inc that such violation has been remedied. If this Agreement is
terminated under this paragraph, all royalties theretofore accrued shall become
due and payable immediately to Players Inc, and Players Inc shall not be
obligated to reimburse Licensee for any royalties paid by Licensee to Players
Inc.
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(D) Failure to resort to any remedies referred to herein shall not be
construed as a waiver of any other rights and remedies to which Players Inc is
entitled under this Agreement or otherwise.
(E) Upon termination of this Agreement, Licensee shall have ninety
(90) days to dispose of and liquidate all inventory. This inventory shall not
be available for retail distribution to consumers after this ninety (90) day
period expires. Such disposition shall conform to this Agreement in all
respects. Players Inc shall have right to conduct a physical inventory at the
time of termination if it so elects.
17. PARTNERSHIP. Nothing herein contained shall be construed to place Players
Inc and Licensee in the rela- tionship of partners or joint venturers, and
Licensee shall have no power to obligate or bind Players Inc in any manner
whatsoever.
18. WAIVER AND/OR MODIFICATION. None of the terms of this Agreement shall be
waived or modified except by an express agreement in writing signed by both
parties. There are no representations, promises, warran- ties, covenants or
undertakings other than those contained in this Agreement, which represents the
entire understanding of the parties. No written waiver shall excuse the
performance of an act other than those specified therein. The failure of either
party hereto to enforce, or delay by either party in enforcing any of its
rights under this Agreement shall not be deemed a continuing waiver or
modification thereof and either party may, within the time provided by
applicable law, commence appropriate legal proceedings(s) to enforce any or all
of such rights.
19. NON-ASSIGNABILITY. This Agreement and all rights and duties hereunder are
personal to Licensee and shall not, without written consent of Players Inc, be
assigned, mortgaged, sublicensed or otherwise encumbered by Licensee or by
operation of law to any other person, or entity. Upon any such attempted
unapproved assignment, mortgage, license, sublicense or other encumbrance this
Agreement shall terminate and all rights granted to Licensee hereunder shall
immediately revert to Players Inc. In addition, Players Inc may terminate this
Agreement, at its sole discretion, in the event that Licensee is merged,
consolidated, transfers all or substantially all of its assets, or implements
or suffers any material change in executive management or control, or upon any
transfer of more than twenty-five percent (25%) of its voting control. If, in
its sole discretion, Players Inc shall exercise such termination, all rights
granted to Licensee hereunder shall immediately revert to Players Inc.
20. CONSTRUCTION. This Agreement is made within the District of Columbia and
shall be construed in accordance with the laws of the District of Columbia and
the United States of America.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day
and date written first above.
The Foregoing is Acknowledged:
NATIONAL FOOTBALL LEAGUE SKYBOX INTERNATIONAL INC.
PLAYERS INCORPORATED
By: By:
---------------------------- --------------------------
Title: Title:
---------------------------- --------------------------
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ATTACHMENT "A"
TEAM:
----------------------------
NFL PLAYERS ASSOCIATION
GROUP LICENSING ASSIGNMENT
The undersigned player, a member of the National Football League
Players Association ("NFLPA"), hereby assigns to the NFLPA and its licensing
affiliates, if any, the exclusive right to use and to grant to persons, firms
or corporations (collectively "licensees") the right to use his name, signature
facsimile, voice, picture, photograph, likeness and/or biographical information
(collectively "image") in group licensing program. Group licensing programs are
defined as those licensing programs in which a licensee utilizes a total of six
(6) or more NFL player images in conjunction with or on products that are sold
at retail or used as promotional or premium items. The undersigned player
retains the right to grant permission to a licensee to utilize his image if
that licensee is not concurrently utilizing the images of five (5) or more
other NFL players in conjunction with or on products that are sold at retail or
are used as promotional or premium items. If the undersigned player's inclusion
in a particular NFLPA program is precluded by an individual exclusive
endorsement agreement, and the undersigned player provides the NFLPA with
timely notice of that preclusion, the NFLPA agrees to exclude the undersigned
player from that particular program.
In consideration for this assignment of right, the NFLPA agrees to use
the revenues it receives from group licensing programs to support the
objectives as set forth in the By-laws of the NFLPA. The NFLPA further agrees
to use its best efforts to promote the use of NFL player image in group
licensing programs, to provide group licensing opportunities to all NFL players
and to ensure that no entity engages in a group licensing program without first
obtaining a license from the NFLPA. The NFLPA makes no representations
regarding group licensing other than those expressed herein. This agreement
shall be construed under New York law.
This assignment shall expire on December 31, 1998 and may not
be revoked or terminated by the undersigned player until such date.
Dated:
-------------------------------- --------------------------------
Player's Signature
Agreed to by the NFLPA: --------------------------------
Player's Name (PLEASE PRINT)
--------------------------------
Name
--------------------------------
Title
--------------------------------
--------------------------------
Player's Autograph
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AMENDMENT TO LICENSE AGREEMENT
This Amendment is made and entered into as of this 30th day of June, 1995
by and between SkyBox International Inc. ("Licensee") and National Football
League Players Incorporated. ("Players Inc").
1. This Amendment shall serve as an amendment,to the License
Agreement entered into by Licensee and Players Inc on June 30th, 1995 (the
"License Agreement"). This Amendment shall be effective as of March 1, 1995 and
shall expire on February 29, 1996.
2. Licensee hereby reaffirms that Paragraph 13 of the License
Agreement, titled Non-Interference, (hereinafter referenced as the
"Non-Interference Clause") has been, and continues to be, a valid and binding
provision of the License Agreement. Nothing set forth in this Amendment shall
be construed in any way as a waiver, repudiation, or nullification of the
Non-interference Clause by Players Inc or Licensee.
3. In accordance with the settlement of an action brought by
the NFLPA against NFL Properties in Federal Court in The Southern District of
New York, styled National Football League Players Association v. National
Football League Properties, et al., 90 Civ. 4244 (MJL), Players Inc agrees that
Licensee may, pursuant to and without thereby violating the License Agreement,
manufacture, market, distribute, and sell the licensed product(s) as defined in
the License Agreement, for the current license period utilizing the image,
likeness, photograph, facsimile signature and/or biographical information of
the members of the NFL Quarterback Club listed in Exhibit A hereto in
conjunction with the licensed products; provided, however, that any licensed
products produced by Licensee which contain players listed on Exhibit A hereto
are subject to the terms contained in the License Agreement, including, but not
limited to, Paragraph 12 -- APPROVALS. All such licensed products must relate
directly to the 1995 football season. NFL Properties has agreed, as part of the
settlement of the Properties action, to license the players listed on Exhibit A
hereto to Licensee on a royalty free basis.
4. Licensee shall pay the full royalties owed to Players Inc
in accordance with the License Agreement, including, without limitation,
royalties for any licensed products sold by Licensee that utilize the
identities of the players listed in Exhibit A hereto and, subject only to
Paragraph 6 of the License Agreement, shall make no deduction nor pro-ration,
of those royalties for any reason whatsoever.
5. Licensee expressly warrants and represents that prior to
inclusion in licensed products of the players listed on Exhibit A for the
current license period, it will obtain from NFL Properties, agent for the NFL
Quarterback Club, the non-exclusive right to utilize the image, likeness,
photograph, facsimile signature and/or biographical information of the players
listed in Exhibit A hereto. To obtain such right Licensee must: (i) deal
directly with NFL Properties, on behalf of the NFL Quarterback Club; and (ii)
accept NFL Properties standard form licensing agreement for NFL Quarterback
Club licenses; provided, however, that such form licensing agreement shall not
provide for or require Licensee to make any payment to any entity or person for
such right.
6. Licensee indemnifies Players Inc and undertakes to defend
Players Inc against, and hold Players Inc harmless from any liabilities,
losses, damages and expenses (including reasonable attorney's fees and cost of
suit) resulting from any and all claims, causes of action or suits brought
against Players Inc based upon the exercise by Licensee of the rights obtained
by it to manufacture, market and sell any licensed products utilizing the
players listed on Exhibit A hereto. Players Inc shall have the right to approve
of counsel selected pursuant to this Paragraph 6, which approval shall not
unreasonably be withheld.
7. Licensee agrees that it will continue to abide by all
terms of the License Agreement.
8. It is hereby agreed that to the extent that this Amendment
shall conflict with the License Agreement, the terms of this Amendment shall
govern. In all other respects, the parties hereto agree that the License
Agreement shall remain in full force and effect.
9. Each party hereto acknowledges: (i) that it is voluntarily
entering into this Amendment; (ii) that it has had the benefit of counsel of
its choice in connection with the negotiation and execution of this Amendment;
and (iii) that it has neither sought nor obtained any inducements or other
consideration beyond that which is contained herein.
10. This Amendment may not be amended, modified or altered
except by a writing executed by duly-authorized officers of each party.
11. This Amendment shall be governed by, and construed in
accordance with, the law of the District of Columbia. Any dispute or litigation
arising out of relating to this Amendment may be brought in the Superior Court
of the District of Columbia, which the parties hereby agree shall have
jurisdiction and venue over any such claim.
12. If any portion of this Amendment is deemed void or
unenforceable for any reason whatsoever, the remaining terms and conditions of
this Amendment shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and date written first above.
SKYBOX INTERNATIONAL INC.
By:
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Title:
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NATIONAL FOOTBALL LEAGUE
PLAYERS INC
By:
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Title:
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