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PROMOTIONAL AND LICENSING AGREEMENT
THIS PROMOTIONAL AND LICENSING AGREEMENT (this "Agreement"),
dated as of November 23, 1998, is entered into by and between
The Xxxxxxx Driving, Adventure, Inc., a Florida corporation
("Company"), and Xxxxx Xxxxxxx, an individual ("Xxxxx") with
reference to the following:
A. Simultaneously with the execution and delivery of this
Agreement, (i) Company and Xxxxx are entering into a ten (10)
year agreement for Company to pay Xxxxx one million (500,000)
shares of common stock of The Xxxxxxx Driving, Adventure, Inc.,
a Florida corporation (valued at $5,000). This payment is in
return for Xxxxx granting, to Company a license to use Jason's
name and likeness in advertising, products and promotional
materials, as well as an agreed upon number of appearances per
year and an agreed upon number of radio and/or TV commercials,
to be specified within this document.
NOW, THEREFORE, in consideration of the obligations and
agreements contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. All capitalized terms used but not otherwise
defined herein shall have the meanings given to them in the
Promotion and Licensing Agreement.
1.1. Licensed Material. "Licensed Material" shall mean the
name "Xxx Xxxxxxx", copyrights and trademarks owned or
controlled by Xxxxx and any and all names, symbols, emblems,
designs, likenesses, photographs, images and visual
representations of or relating to Xxxxx that are approved by
Xxxxx in his sole and absolute discretion.
1.2. Licensed Products. "Licensed Products" shall mean any
goods, products, merchandise or other personal property that (i)
have been approved by Xxxxx in his sole and absolute discretion,
(ii) are manufactured or produced by or on behalf of Company,
(iii) contain, embody, depict, (whether in the product itself or
in the packaging, marketing or promotional materials) Licensed
Material in a manner specifically approved by Xxxxx in his sole
and absolute discretion, and (iv) are marketed, sold,
distributed or otherwise used by Company in connection with
Xxxxx under the terms of this Agreement. It is currently
contemplated that the types of products that may be approved by
Xxxxx for use as Licensed Products may include, without
limitation, some or all of the following: souvenirs,
memorabilia, clothing, personal effects, videos, books and
magazines.
2.PROMOTIONAL SERVICES.
2.1 Commercials.
(a) Agreement to Perform. During the Term (as defined in
Section 4), Xxxxx agrees to serve without charge, but subject to
applicable union and guild minimums, as the feature actor in
four (4) commercials per year promoting the Company and the
Franchise. Each such commercial shall be no longer than sixty
(60) seconds in length and shall be produced in no more than two
(2) variations. The commercials may be aired on local or
national television or radio, or both.
(b) Consultation and Approval Rights. Company shall consult with
Xxxxx with respect to the nature, content (including all audio
and visual elements) and use of any commercial proposed by
Company. Xxxxx shall also have the right to approve in his sole
and absolute discretion such nature, content and use of such
commercial. Further, Xxxxx shall have the right, in his sole
and absolute discretion, to decline to perform in any commercial
proposed by Company if he reasonably believes that the content
of such commercial would be detrimental to the value of the
Licensed Material or to his image or reputation. In addition,
Company shall not broadcast a completed commercial until such
commercial has been submitted to Xxxxx for his review and Xxxxx
has in his sole and absolute discretion approved the completed
form of the commercial and the intended broadcast forum.
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(c) Scheduling and Expenses. Company shall make best efforts to
provide Xxxxx with at least ninety (90) days advance notice of
scheduling of proposed commercials, and such scheduling shall be
subject to Jason's professional availability. All expenses
associated with the production of the commercials, including
Jason's reasonable and customary travel expenses, will be paid
for by the Company.
2.2. Appearances. Each year during the Term, Xxxxx agrees,
subject to Jason's professional availability, to appear at three
(3) events such as grand openings, annual shareholders meeting
and other promotional activities.
2.3. Additional Promotional Activities. From time to time
during the Term, Company may request that Xxxxx provide other
promotional services for the Company in addition to those set
forth herein. Xxxxx xxx decline or accept these requests in his
sole and absolute discretion.
3. LICENSE.
3.1. Grant of License. Subject to the terms of this Agreement
Xxxxx hereby grants to Company for the Term (as defined in
Section 4 below) a nonexclusive license to utilize the Licensed
Material throughout the world in connection with:
(a) The advertisement, promotion, solicitation and sale of
equity and debt investment in Company;
(b) The design, construction, development, promotion,
advertising, implementation and operation of the Xxxxxxx Driving
Adventure, Inc.
(c) The advertisement, promotion, solicitation and sale of
possible franchises.
(d) The design, manufacture, promotion, advertisement,
distribution and sale of Licensed Products in connection with
the Company.
4. TERM AND TERMINATION. The term of this agreement (the
"Term") shall be ten (10) years beginning with the opening, of
the first Xxxxxxx Driving Adventure driving school, unless
sooner terminated by the occurrence of any of the following:
(a) A material breach by Company of this Agreement which breach
has not been satisfied within thirty (30) days of receipt of
written notice from Xxxxx thereof,
(b) Upon receipt of written notice from Xxxxx if, as the result
of (i) any act or omission of Company, (ii) any claim or charge
against Company or (iii) any other occurrence or circumstances
involving Company, the continued association of Xxxxx with
Company would be detrimental to the value of the Licensed
Material or to Jason's image or reputation;
(c) The failure of Company to continually operate and manage
the business according to the policies, practices and standards
agreed to by the parties;
(d) The failure of Company to raise the Investment Capital;
(e) The failure of Company to comply with any laws and
regulations, the consequences of which are materially adverse to
Company.
5. NO COMPETITIVE PROMOTIONS. During the Term, Xxxxx shall not
directly or indirectly (whether for compensation or otherwise),
provide promotional appearances or services to any business
which competes with the Company's business of owning and
managing driving schools.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Representation and Warranties of Company. Company
represents and warrants to Xxxxx as follows:
(a) Company has the corporate power to enter into this
Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized
by its Board of Directors and no other corporate proceedings on
the part of Company are necessary to authorize this Agreement
and the transaction contemplated herein.
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(b) This Agreement has been executed and delivered by Company
and is the valid and binding obligation of Company enforceable
in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy laws or similar laws affecting
creditors' rights generally, and except in so far as the
availability of equitable remedies may be limited by applicable
law from time to time in effect.
6.2. Representations of Xxxxx. Xxxxx represents and warrants
to Company as follows:
(a) Xxxxx hereby has the right and power to grant to Company
the rights described herein and is free to enter into this
Agreement and to carry out his obligations hereunder.
(b) Xxxxx warrants that, during the Term, he will not commit
any act which brings Company into public disrepute or scandal,
or which shocks, insults or offends a substantial portion or
group of the community or reflects unfavorably on Company.
7. INDEMINIFICATION.
7.1 Indemnification Obligation. Company shall indemnify,
defend and hold harmless Xxxxx from and against any and all
claims arising out of or in connection with Jason's appearance
in commercials and performance of other promotional activities
in accordance with this Agreement.
8. MISCELLANEOUS.
8.1. Effectiveness of Agreement. This Agreement shall become
effective on and as of the date of execution of this Promotion
and Licensing Agreement.
8.2. Successors and Assigns. This Agreement shall bind and
inure to the benefit of Company and Xxxxx and their respective
successors, permitted assign heirs and legal representatives (as
the case may be) of Company and Xxxxx.
8.3. Assignment. Company may not assign its rights under this
Agreement to any purchaser or transferee without the prior
written consent of Xxxxx.
8.4. Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter
hereof and supercedes all prior and contemporaneous arrangements
or understandings with respect thereto.
8.5. Amendment and Modification: Waiver. Except as otherwise
provided herein, this Agreement may be amended, modified and
supplemented and the application of any provision of this
Agreement or any rights or obligations of any party hereunder
may be waived (either retroactively or prospectively) only by
written agreement of the parties hereto affected by such
amendment, modification, supplement or waiver. Further, any
waiver shall be effective only in the specific instance and for
the specific purpose stated in such writing.
8.6. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall
be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
8.7. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed to be a part of this Agreement.
8.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
8.9 Arbitration. Any and all disputes arising hereunder shall
be subject to resolution by arbitration.
IN WITNESS WHEREOF, the parties hereto have caused this
Promotion Agreement to be executed and delivered as of the date
first above written.
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By: Xxx Xxxxxxx
Date:2/9/99
Xxx Xxxxxxx - President
The Xxxxxxx Driving Adventure, Inc.
By: Xxxxx Xxxxxxx
Date
Xxxxx Xxxxxxx
Addendum 1.0
This Addendum 1.0 is part of the Promotional and
Licensing Agreement dated November 23, 1998 between The Xxxxxxx
Driving Adventure, Inc. (the company) and Xxxxx Xxxxxxx (Xxxxx).
It is agreed upon by both parties, that the company will
not issue any additional common shares, preferred shares or
warrants in the company's stock to insiders, directors or
affiliates without Jason's approval.
At this time there are no plans for additional
offerings, however, in the unlikely event that additional
capital for growth is needed it may become necessary to issue
additional shares. These shares would result in equal dilution
to the value of each share held by all the original shareholders
and insiders. Any and all future financings will be offered to
Xxxxx xxxxx to outside fulfillment.
Initialed by Xxx Xxxxxxx
2/9/99
Initialed by Xxxxx Xxxxxxx
12/21/98
