MARKETING AGREEMENT
This Marketing Agreement (the "Agreement") is entered into
effective this 4th day of June, 1999 by and between Xxxxx Xxxxxxxx
Entertainment, Inc., a Colorado corporation ("JNE") and ieXe
("ieXe"). JNE and ieXe shall be collectively referred to herein as
the parties.
RECITALS
WHEREAS, JNE, through its GoOn-line Kiosk division, desires
assistance in the marketing and placement of its advertising kiosks
("Kiosks").
WHEREAS, ieXe desires to assist JNE as set forth herein.
NOW, THEREFORE, for good and adequate consideration, the
receipt of which is hereby acknowledged, the parties hereby agree as
follows:
1.Exclusive Territory. ieXe will have the exclusive rights to
market the Kiosks to hotels and/or motels throughout Canada and to
those additional hotels identified on Exhibit A attached hereto and
made a part hereof (the "Exclusive Territory").
2.Guaranteed Installations. ieXe guarantees, for a period of five
(5) years from the date hereof (the "Guarantee Period"), the
installation of Kiosks at a rate of a minimum of twenty (20) Kiosks
per month (the "Kiosk Guarantee"). ieXe's performance under the
Kiosk Guarantee shall be measured on a quarterly basis (i.e., at the
end of each calendar quarter, ieXe guarantees the installation of at
least 60 Kiosks).
Both JNE and ieXe hereby acknowledge and agree that each Kiosk
installed shall meet the following minimum requirements ("Minimum
Requirements"): (i) the Kiosk shall be installed pursuant to a
"site agreement" with a minimum term of at least four (4) years, and
(ii) the Kiosks shall be installed only in hotels and/or motels
within the Exclusive Territory that have a minimum of One Hundred
(100) rooms.
At the end of each calendar quarter, ieXe's performance under the
Kiosk Guarantee will be evaluated. In the event that ieXe is unable
to satisfy the Kiosk Guarantee as set forth above, then the
exclusivity described in Paragraph 1 hereof will be terminated until
such time as ieXe is able to satisfy the Kiosk Guarantee.
3.Consideration to ieXe. As consideration for their obligations
hereunder, ieXe shall receive consideration as follows:
A. Cash Consideration. ieXe shall begin receiving cash
consideration in accordance with the schedule set forth on Exhibit B
attached hereto once it has installed a minimum of forty (40) Kiosks
which meet the Minimum Requirements.
B. Options.
(1) Immediately upon the installation of Three Hundred
(300) Kiosks meeting the Minimum Requirements, ieXe shall be granted
an option, exercisable for a period of one (1) year from the grant
thereof, to acquire 100,000 shares of JNE common stock at a price of
$0.75 per share.
(2) Immediately upon the installation of Seven Hundred
Fifty (750) Kiosks meeting the Minimum Requirements, ieXe shall be
granted an option, exercisable for a period of one (1) year from the
grant thereof, to acquire 100,000 shares of JNE common stock at a
price of $1.00 per share.
(3) Immediately upon the installation of One Thousand
(1000) Kiosks meeting the Minimum Requirements, ieXe shall be
granted an option, exercisable for a period of one (1) year from the
grant thereof, to acquire 250,000 shares of JNE common stock at a
price of $1.50 per share.
All shares of JNE common stock acquired as a result of the exercise
of the options will be "restricted" securities as that term is
defined under Rule 144 of the Securities Act of 1933 and may not be
sold for a period of at least twelve (12) months.
4. Additional Terms.
A. JNE will manufacture, deliver, and install the Kiosks at
no cost to ieXe. Both JNE and ieXe agree that JNE shall have a
reasonable time to deliver the Kiosks following the receipt of
orders to do so.
B. JNE will provide ieXe with training aids. In addition,
all leads generated in the Exclusive Territory shall be given to
ieXe for follow-up at ieXe's discretion and expense.
C. This Agreement shall be in full force and effect for the
term of the Guarantee Period. At the end of the Guarantee Period,
this Agreement, and all the obligations of the parties hereunder,
shall automatically terminate.
5. Nondisclosure. Each party hereto agrees to keep the terms of this
Agreement and the transactions contemplated hereby as confidential
and shall not disclose such information to any third party, other
than professional advisors utilized to negotiate and consummate the
transactions contemplated hereby. The parties hereto agree that in
the event there is a breach of the foregoing confidentiality
provision, the damage to the parties hereto would be difficult to
estimate and as a result, in the event of such a breach, the
non-breaching party, in addition to any and all other remedies
allowed by law, would be entitled to injunctive relief enjoining the
actions of the breaching party.
6. Representations and Warranties.
Each party hereby represents, warrants and covenants as
follows:
A. When executed and delivered, the terms hereof shall constitute a
valid and legally binding agreement enforceable in accordance with
its terms, except as may be limited by bankruptcy, insolvency or
other laws affecting generally the enforceability of creditors
rights and by limitations on the availability of equitable remedies.
B. Neither the execution and delivery of this Agreement nor
the consummation or performance of the transactions contemplated
herein will violate any law, rule, regulation, writ, judgment,
injunction, decree, determination, or other order of any court,
government or governmental agency or instrumentality, domestic or
foreign, or conflict with or result in any breach of any of the
terms of or the creation or imposition of any mortgage, deed of
trust, pledge, lien, security interest or other charge or
encumbrance of any nature pursuant to the terms of any contract or
agreement.
7. Severability. If any portion of this Agreement is found by a
court of competent jurisdiction to be void or unenforceable, that
portion shall be deemed to be reformed to the extent necessary to
cause such portion to be enforceable and the same shall not affect
the remainder of this Agreement, which shall be given full force and
effect without regard to the invalid or unenforceable portions.
8. Entire Agreement. This Agreement along with the exhibits attached
hereto, which may be signed in duplicate or counterparts, replaces
and supersedes all previous Agreements between the parties hereto,
and contains the entire understanding between the parties, and may
not be changed, altered, amended, or modified, except in writing,
duly executed by each of the parties.
9. Assignment. This Agreement may not be assigned or transferred by
either party hereto without the prior written consent of all other
parties hereto.
10. Notices. All notices, requests, instruments or documents
hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, or by facsimile
transmission, telegraphic or similar conveyance:
If to JNE:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Facsimile (000) 000-0000
If to ieXe:
ieXe
Xxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X0X0
Attn: Xxx X. Xxxxx
Facsimile ( )
If delivered personally, the date on which a notice, request,
instruction or document is delivered shall be the date on which
delivery is made, and, if delivered by mail, the date on which such
notice, request, instruction or document is deposited in the mail
shall be the date of delivery. Each notice, request, instruction or
document shall bear the date on which it is delivered.
11. Governing Law; Venue. This Agreement shall be governed by the
laws of the State of California, United States of America. Any
cause of action brought by an party hereunder shall be brought in
the court of proper jurisdiction in Orange County, California.
12. Attorney's Fees. Should any action be commenced between the
parties to this Agreement concerning the matters set forth in this
Agreement or the rights and duties of either in relation thereto,
the prevailing party in such action shall be entitled, in addition
to such other relief as may be granted, to a reasonable sum as and
for its Attorney's Fees and Costs.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first
written above.
XXXXX XXXXXXXX ENTERTAINMENT, INC.
/s/Xxxxxx Xxxxxxxx
By: Xxxxxx Xxxxxxxx
Its: President
ieXe
/s/Xxx X. Xxxxx
By: Xxx X. Xxxxx
Its:
EXHIBIT A
HOTELS/MOTELS PART OF EXCLUSIVE TERRITORY
EXHIBIT B
SCHEDULE OF CASH CONSIDERATION
Beginning sixty (60) days following the installation of the
minimum number of Kiosks meeting the Minimum Requirements as
identified in column A below, ieXe shall be paid the monthly
consideration as identified in column B below. The consideration
set forth in column B shall not be cumulative (i.e. upon the
installation of 80 Kiosks, the total cash consideration paid to ieXe
will be the sum of $7,200 per month until the termination of this
Agreement or until the next milestone is met).
Column A Column B
(Number of Kiosks Installed) (Monthly Cash Consideration ($))
40 $ 3,600
80 7,200
120 10,800
160 14,400
200 18,000
250 26,250
300 31,500
400 44,500
500 55,500
600 70,200
700 81,900
800 93,600
900 135,000
1,000 150,000
