Exhibit 10.1
AGREEMENT
AGREEMENT made on June 28, 2002 between THE SPORTSMAN'S GUIDE, INC., a
Minnesota corporation (the "Company") and XXXX XXXX ("Xxxx") under the following
circumstances:
A. The Company has used Olen's name, picture and likeness in its
business pursuant to an Agreement dated July 1, 1992 between
the Company and Xxxx (the "Original Agreement").
B. The Company desires to obtain the exclusive right to use
Olen's name, image and likeness in connection with its
business and retain Xxxx to provide services, and Xxxx is
willing to license such rights and provide such services, on
the terms and conditions stated herein.
In consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
1. License of Publicity Rights. Xxxx hereby grants to the Company, for
the term of this Agreement, the exclusive right and license to use his name,
signature, picture, voice, image, persona and likeness (the "Publicity Rights")
in connection with the promotion and sale of clothing and accessories, footwear,
hunting and shooting accessories, camping and outdoor recreation products,
optics, electronics, personal accessories, furniture, novelty and collectibles,
military surplus, sporting goods, home and garden products, tools, automotive
products, fishing, archery, marine and hiking products, and other consumer
products (the "Market"), in all media and formats, worldwide.
2. Services. During the term of this Agreement, Xxxx shall (i) make
himself available at the Company's photo studio on dates designated by the
Company to be photographed for the Company's catalogs, (ii) make himself
available at additional times and places which are mutually convenient to be
photographed, filmed, videotaped and recorded, and to participate in other
advertising and promotional activities, in connection with the Company's
business as the Company may from time to time request and (iii) be available to
consult with and advise the senior management of the Company during normal
business hours when and as requested by the Company. Xxxx shall provide these
services as a full-time employee of the Company.
3. Term. This Agreement shall commence on July 1, 2002, shall continue
for a term of five years, and shall automatically renew for additional one-year
terms unless either party gives written notice of nonrenewal at least one year
prior to expiration of the original term or any renewal term, or unless earlier
terminated as provided herein.
4. Compensation.
(a) The Company shall pay Xxxx $50,000 per year for the rights
granted, services provided and covenants made under this Agreement, payable in
accordance with the Company's customary payroll policies. On July 1 of each year
beginning 2003, Olen's annual compensation shall be adjusted in proportion to
changes in the cost of living as evidenced by changes in the Consumer Price
Index, All Urban Consumers, of the U.S. Bureau of Labor Statistics, or successor
index.
(b) During the term of this Agreement, Xxxx shall be entitled to (i)
participate in, under the same terms offered to executive officers, medical
insurance, dental insurance, disability insurance and life insurance programs
then in effect for executive officers of the Company, (ii) purchase merchandise
from the Company at executive pricing and (iii) reimbursement for ordinary and
necessary business expenses reasonably incurred by Xxxx in performing services
hereunder which have been pre-approved by the Company.
5. Restrictive Covenants.
(a) During the term of this Agreement, Xxxx shall not use or license
his name, signature, picture, voice, image, persona or likeness for use by any
third party in connection with (i) the design, manufacture, marketing, sale or
distribution, at wholesale or retail, of products which are the same as or
similar to products offered for sale by the Company or (ii) any product,
service, business or activity detrimental to the Company, its business,
reputation or interests.
(b) During the term of this Agreement, Xxxx shall not engage,
directly or indirectly, individually or as agent, employee, consultant, officer,
director, shareholder, partner, member or otherwise in any business activity
competitive with the business of the Company.
(c) Notwithstanding Olen's covenants in Sections 5(a) and 5(b), Xxxx
may engage in the design, manufacture and wholesale distribution of products
which are the same as or similar to the products offered for sale by the
Company.
6. Waiver and Release. Xxxx hereby waives all rights and releases the
Company, its employees, agents, licensees and assigns from, and shall not xxx
nor bring any proceeding against any such persons for, any claim or cause of
action for defamation, invasion of right to privacy, publicity, personality or
similar matter, based upon or relating to the use and exploitation of the
Publicity Rights.
7. Representations and Warranties.
(a) Xxxx represents and warrants that (i) he has full right, title
and interest in the Publicity Rights; (ii) he has full right and power to enter
into this Agreement and to fully perform all of his obligations hereunder; (iii)
the Publicity Rights are free and clear of any claims, liens or rights of third
parties; (iv) there are no other agreements, written or oral, with any third
party in conflict with this Agreement; and (v) there are no claims, litigation
or other
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proceedings pending or threatened which would adversely affect any Publicity
Rights or the Company's rights under this Agreement.
(b) The Company represents and warrants that it has full right and
power to enter into this Agreement and to fully perform all of its obligations
hereunder.
8. Indemnification. Each party shall indemnify and hold the other
harmless from and against any claims, demands, actions or proceedings which may
be threatened or instituted by any person against the Company or Xxxx which are
in any way related to or in connection with the representations and warranties
set forth in this Agreement.
9. Infringement.
(a) Xxxx shall defend, indemnify and hold harmless the Company with
respect to any claim, demand, cause of action, debt or liability (a "Claim"),
including reasonable attorneys' fees and expenses, to the extent the Claim is
based upon a claim that the Publicity Rights in the Market infringe or violate
any patents, trademarks, copyrights, trade secrets, license or other property
right of any third party or any right of privacy, publicity or contract right.
The Company may, at its own expense, assist in or take control of the defense
and any settlement negotiations with respect to any Claim. The Company shall
promptly notify Xxxx of any claim which the Company believes falls within the
scope of this section. Xxxx will not settle any Claim without the Company's
prior written consent.
(b) The Company shall have the right, in its sole discretion, to
institute and prosecute all legal action against third parties for infringement
of the Publicity Rights. Any such legal action shall be prosecuted at the cost
and expense of the Company and all sums recovered in any such legal action,
whether by judgment, settlement or otherwise, shall accrue to the Company. Upon
request of the Company, Xxxx shall execute all documents, testify and otherwise
fully cooperate in the prosecution of any such legal action. The Company will
reimburse Xxxx for the reasonable expenses incurred by him as a result of such
cooperation.
10. Early Termination.
(a) Either party may terminate this Agreement upon 30 days written
notice to the other party in the event of a breach of a material provision of
this Agreement by the other party, provided that, during the 30-day period, the
breaching party fails to cure the breach.
(b) The Company may terminate this Agreement immediately in the
event Xxxx engages in (i) conduct resulting in his indictment or conviction of a
crime which constitutes (A) a felony or (B) a misdemeanor involving moral
turpitude or (ii) any other conduct or activity, public or private, involving
moral turpitude or which, in the Company's judgment, has or may reasonably be
expected to have a material adverse effect on, or be detrimental to, the
Company, its business, reputation or interests.
11. Rights Upon Early Termination.
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(a) Upon termination of this Agreement by Xxxx pursuant to Section
10(a) all rights granted to the Company to use the Publicity Rights shall
terminate.
(b) Upon termination of this Agreement by the Company pursuant to
Section 10(a) or 10(b), (i) the Company shall have no further obligation to pay
Xxxx compensation under this Agreement and (ii) the Company shall be entitled to
use the Publicity Rights in the Market for one year.
12. Postmortem Rights. The Company's right and license to use the
Publicity Rights shall survive Olen's death. Upon the death of Xxxx during the
term of this Agreement, this Agreement shall continue in effect and the Company
shall pay the compensation provided in Section 3(a) to Olen's estate, heirs or
legal representatives.
13. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter and supersedes and
cancels all prior agreements, promises, proposals, representations,
understandings and negotiations between the parties in connection therewith
including, without limitation, the Original Agreement.
(b) Assignment. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective heirs, legal
representatives, successors and assigns. This Agreement is personal to Xxxx and
he may not delegate his duties or assign his rights hereunder without the prior
written consent of the Company.
(c) Notices. All notices hereunder shall be in writing and delivered
personally, or by overnight courier service or mailed by certified or registered
mail, return receipt, postage prepaid, to the party at the address set forth
below, or at such other address as the party may have given by previous notice.
The Company: The Sportsman's Guide, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xx. Xxxx, XX 00000
Xxxx: Xxxx Xxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000-0000
(d) Modification. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless evidenced by a written
instrument duly signed by both parties.
(e) Waiver. Failure by either party to insist upon strict compliance
with any of the terms, covenants or conditions of this Agreement shall not be
deemed a waiver of such term, covenant or condition nor shall any waiver or
relinquishment of any right or power hereunder at
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any one time or times be deemed a waiver or relinquishment of such right or
power at any other time or times.
(f) Severability. The provisions of this Agreement are severable. If
any provision is deemed invalid or unenforceable under applicable law, such
provision shall be modified to the extent necessary to render it valid and
enforceable without affecting the other provisions of this Agreement which shall
continue in full force and effect.
(g) Captions. The captions of the various sections of this Agreement
have been inserted for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first above written.
THE SPORTSMAN'S GUIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President/CEO
XXXX XXXX
/s/ Xxxx Xxxx
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Xxxx Xxxx
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