THIS ("Agreement") is made and entered into as of
this 1st day of January, 1997, by and between HYDRON TECHNOLOGIES, INC., a New
York corporation with its principal offices located at 0000 Xxxxxx Xxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000, ("Hydron") and MIAMI DOLPHINS, LTD., a Florida
limited partnership with its principal offices located at 0000 Xxxxxxxxx 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 ("Dolphins").
WHEREAS, the Dolphins own and operate the Miami Dolphins, a
professional football team and member of the National Football League, which
presently is scheduled to play its home games at Pro Player Stadium in Miami,
Florida (the "Stadium"); and Hydron desires to be a sponsor of the Miami
Dolphins for certain entertainment and promotional purposes in connection with
the Miami Dolphins including its home games during the term of this Agreement;
and
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, Hydron and the Dolphins hereby agree as follows:
1. TERM OF AGREEMENT
1.1 The term of this Agreement shall commence on the date
hereof and terminate upon the conclusion of the week following the conclusion of
the Dolphins 2000 regular season or post season, if applicable (the "Term" or
"Initial Term"). However, this Agreement may be earlier terminated in accordance
with the provisions hereof.
1.2 Hydron shall have the right to terminate this Agreement
upon written notice to Dolphins at any time between November 1, 1997 and
December 15, 1997, in which event this Agreement shall be terminated following
the Dolphins last 1997 regular or post-season game, if any. If Hydron does not
timely exercise its right to terminate this Agreement, then Hydron agrees that
this Agreement shall continue for the entire four (4) year term unless earlier
terminated pursuant to Section 8 of this Agreement.
2. SPONSORSHIP RIGHTS
2.1 For the Term of this Agreement, the Dolphins will provide
Hydron with certain advertising and promotional benefits as are set forth in and
in accordance with Exhibit "A" attached hereto and made a part hereof (the
"Sponsorship Rights").
2.2 For the Term of this Agreement, Hydron shall be designated
as a sponsor of the Dolphins in the Sunscreen/Skin Care Category (as defined
below) and a licensee of the Marks (as defined below) in the Sunscreen/Skin
Category by the Dolphins. For purposes of this Agreement, the term
"Sunscreen/Skin Care Category" means the product category consisting of
sunscreen, sun protection and similar skin care products.
2.3 The Sponsorship Rights granted by the Dolphins to
Hydron are subject to
termination in whole or in part at any time upon written notice to Hydron if
such Sponsorship Rights conflict with any exclusive advertising rights granted
by NFL Properties, Inc. to one of its advertisers or sponsors. In the event of
any such termination of exclusivity, the non-terminated Sponsorship Rights
granted to Hydron by the Dolphins shall nonetheless continue for the remainder
of the Term and the provisions of Section 8.2 shall apply. As of the date
hereof, the Dolphins have no knowledge of any claim by NFL Properties that the
Sponsorship Rights violate or conflict with exclusive rights granted by NFL
Properties.
3. CONSIDERATION
3.1 In consideration of the Sponsorship Rights granted to
Hydron hereunder:
(a) Hydron shall pay to the Dolphins an aggregate
amount of $96,000 (plus any applicable sales and other taxes) as follows: Hydron
shall pay Dolphins the sum of $24,000 (plus any applicable sales and other
taxes) on July 1, 1997, July 1, 1998, July 1, 1999 and July 1, 2000.
3.2 In the event that the consideration is not paid by Hydron
on or before the applicable payment due date, said failure to pay shall be
considered a material breach by Hydron, and the Dolphins may elect to charge
Hydron a late fee of 1.5% per month of the payment then due and owing until it
is paid in full. The Dolphins agree to provide written notice to Hydron of the
failure to receive any payment, and Hydron shall have a five (5) business day
period following delivery of written notice in which to cure the payment default
before the Dolphins may elect to terminate this Agreement and pursue applicable
remedies. It is agreed by Hydron that any such election of remedies does not
waive any other remedies for breach of contract available to the Dolphins.
3.3 Except as otherwise specifically provided in this
Agreement, including Exhibit "A", each of the parties shall pay its own expenses
of performing its obligations under this Agreement.
4. USE OF MARKS
4.1 Hydron and the Dolphins may use the name, logos, colors,
trademarks, service marks, or other identifying features ("Marks") of the other,
as specifically contemplated in connection with the Sponsorship Rights, subject
to any limitations set forth in this Agreement.
4.2 All advertising material and any use of the other parties'
Marks by a party is subject to the prior written approval of the Xxxx owner.
Either party shall submit all such materials or proposed usage of a Xxxx to the
other party at least two weeks prior to its intended use. The Xxxx owner shall
have the right to inspect and require changes or deletions (including the right
to disapprove of such advertisement or use of Marks in their entirety) of
advertising and promotional copy or material that the Xxxx owner may deem to be
contrary to its policies or best interests. Such requirements will not be
unreasonably imposed, and the foregoing approvals and
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requirements will be consistently given and imposed on all sponsors or users of
the Marks, as the case may be.
4.3 Any and all public announcements or press releases by or
on behalf of the other party regarding the Sponsorship Rights or the details of
this Agreement shall be subject to the consent of the other party, and each
party shall have the right to approve in advance the contents and timing
thereof. Notwithstanding the foregoing, the Dolphins acknowledge that Hydron, as
a publicly held company, has disclosure obligations pursuant to the federal
securities laws. Hydron agrees to take the comments of the Dolphins into account
in preparing and disseminating such disclosure, but notwithstanding comments
from the Dolphins, Hydron shall make such disclosure as may be required by law.
4.4 For purposes of this Agreement, the Dolphins and Hydron
expressly recognize that the Marks are the unique, valid and exclusive property
of the respective owner of the Xxxx. The Dolphins and Hydron agree that they
shall not, either during the term of this Agreement or thereafter, directly or
indirectly, contest the validity of the other's Marks or any of the
registrations pertaining thereto, in the United States or elsewhere, nor adopt
the other's Marks or any term, word, xxxx or designation which is in any aspect
confusingly similar to the other's Marks. The Dolphins and Hydron specifically
acknowledges that any use of the Marks pursuant to this Agreement shall not
create for the Dolphins or Hydron any right, title or interest in the other's
Marks. The Dolphins and Hydron further agree that they will not at any time do
or cause to be done any act or thing, directly or indirectly, which contests or
in any way impairs or tends to impair any part of the right, title and interest
of the other in its Marks; and the Dolphins and Hydron shall not, in any manner,
represent that it has any ownership interest in the other's Marks or the
registrations therefor. Upon termination of this Agreement, the Dolphins and
Hydron shall immediately terminate all use of the other's Marks.
4.5 Hydron expressly recognizes that the Dolphins have
previously granted the exclusive rights to license and sublicense its Marks to
NFL Properties, Inc., and that the grant to Hydron of the right to use the Marks
is subject to the prior approval of NFL Properties, Inc. In the event that such
approval is not so given by NFL Properties, Inc., then such usage rights of
Hydron shall immediately terminate. The Dolphins represent that they will use
reasonable efforts to obtain the consent of NFL Properties, Inc. to the
execution and performance of this Agreement prior to their execution hereof. In
any such event, the provisions of Section 8.2 will apply.
5. STADIUM POLICY; GOVERNING LEAGUE POLICIES
5.1 Hydron and the Dolphins agree that this Agreement shall be
performed in accordance with rules and policies of the Stadium as may be
applicable to this Agreement, if any. The Dolphins will advise Hydron of any
development of or changes in these rules and policies that might adversely
affect the terms of this Agreement.
5.2 The parties agree that this Agreement shall automatically
be subject to any new or amended National Football League (the "NFL") rules or
regulations applicable to advertising or promotional benefits provided by NFL
member teams to its sponsors effective as
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of the date such regulation shall take effect and that this Agreement shall
incorporate and be subject to the Constitution, By-Laws, rules and regulations,
the duly authorized resolutions of the governing body, the decrees and rulings
of the commissioner and the terms and conditions of any and all agreements to
which the NFL is a party and as to which the NFL has bound its member clubs
(collectively all of such regulations, resolutions, decrees and agreements are
referred to as the "Governing League Policies"). The Dolphins shall advise
Hydron of any changes therein which may materially and adversely affect the
Sponsorship Rights. As of the date hereof, the Dolphins have no knowledge of any
claim by the NFL that the Sponsorship Rights violate any Governing League Rules.
5.3 Without limiting any other potential uses of the Dolphins'
Marks, Hydron agrees that the Dolphins may allow or authorize any League Sponsor
(as defined below) to engage in advertising and promotional activities in the
Dolphins' local market (including, without limitation, the Stadium), or
otherwise provide benefits to such League Sponsor, if such League Sponsor is
entitled to engage in such activities or receive such benefits pursuant to any
sponsorship or promotional licensing arrangement now or hereafter entered into
between such League Sponsor and the NFL or any of its affiliates (including,
without limitation, NFL Properties, Inc., NFL Enterprises, Inc. and XXX Xxxxx,
Inc.). For purposes of this Agreement the term, "League Sponsor" shall mean any
person or entity which currently is, or at any time becomes a sponsor or
promotional licensee of or with respect to any NFL event or program now or
hereafter in existence. By way of illustration only and without limiting the
generality of the foregoing, League Sponsors may place advertising and
promotional materials (including displays) in the Stadium, in connection with a
League event, such as the Super Bowl.
5.4 If any rule or regulation of the Stadium, or any Governing
League Policy as described in Sections 5.1, 5.2 or 5.3 requires the termination
or revision of any Sponsorship Right, such Sponsorship Right shall be revised or
terminated upon written notice to Hydron and the provisions of Section 8.2 shall
apply to such termination or revisions.
6. REPRESENTATIONS AND WARRANTIES
6.1 Hydron represents and warrants to the Dolphins the
following, all of which representations and warranties shall apply during the
Term of this Agreement.
(a) Hydron is a corporation in good standing under
the laws of the state of New York and is duly authorized to transact business in
Florida, with full power and authority to enter into and fully perform its
obligations under this Agreement. The execution and delivery of this Agreement
on behalf of Hydron has been duly authorized by Hydron and this Agreement
constitutes a valid, binding and enforceable obligation of Hydron.
(b) Neither this Agreement nor anything required to
be done hereunder by Hydron violates or shall violate any corporate charter,
contract or other document to which Hydron is a party or by which it is
otherwise bound.
6.2 The Dolphins represents and warrants to Hydron the
following, all of
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which representations and warranties shall apply during the Term of this
Agreement
(a) The Dolphins is a Florida limited partnership in
good standing under the laws of the State of Florida and the Dolphins is duly
authorized to transact business in Florida, with full power and authority to
enter into and fully perform its obligations under this Agreement. The execution
and delivery of this Agreement on behalf of the Dolphins has been duly
authorized by the Dolphins and this Agreement constitutes a valid, binding and
enforceable obligation thereof.
(b) Neither this Agreement nor anything required to
be done hereunder by the Dolphins violates or shall violate any partnership
agreement, corporate charter, contract or other document to which the Dolphins
is a party or by which it is otherwise bound.
7. HOLD HARMLESS AND INDEMNIFICATION
7.1 Each of the parties shall indemnify and hold harmless the
other, and their respective partners, shareholders, officers, employees, agents
and representatives (collectively, the "Indemnitees") from and against any and
all claims, orders, damages, liabilities, costs and expenses, including
reasonable attorney's fees, arising out of the other party's negligent actions
or omissions with respect to this Agreement, or such party's wilful misconduct
or breach of any representation, warranty or agreement in this Agreement
applicable to it. Neither party shall have an obligation to indemnify or hold
harmless an Indemnitees from any claim arising from or related to the
Indemnitees negligence or misconduct. Each party hereto shall promptly notify
the other of any claim or litigation to which the indemnity set forth in this
paragraph applies. Each of the parties agree to defend all actions to which such
indemnity applies and to conduct the defense thereof at its expense and by
qualified counsel, which counsel shall be reasonably satisfactory to the
Indemnitees. Each of the parties agree that the foregoing indemnities also apply
for the benefit of the NFL (and its affiliates), South Florida Stadium
Corporation, the owner and operator of Pro Player Stadium and their respective
officials, officers, partners, agents and employees, who shall be deemed third
party beneficiaries of this Agreement for the purpose of enforcing these
indemnity obligations. These indemnity obligations shall survive the termination
or expiration of this Agreement.
7.2 Insurance. The Dolphins shall, at its own expense,
maintain in effect throughout the term of this Agreement, comprehensive general
liability insurance policies with carriers of recognized standing, with limits
of liability of at least One Million Dollars ($1,000,000), governing any and all
property damage and person injury (including death) arising out of activities
covered by this Agreement. Hydron shall, at its own expense, maintain in effect
throughout the term of this Agreement, comprehensive general liability insurance
policies with carriers of recognized standing, with limits of liability of at
least One Million Dollars ($1,000,000), covering any and all property damage and
personal injury (including death) arising out of activities covered by this
Agreement and shall obtain and maintain such additional insurance coverage as
the Dolphins shall reasonably require with respect to any Sponsored Events or
similar activities.
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8. TERMINATION
8.1(a) Without prejudice to any other rights, the Dolphins
shall have the right to terminate this Agreement upon written notice to Hydron
if Hydron fails to perform or comply with any term or condition of this
Agreement within five (5) business days following delivery of written notice for
a payment default or within thirty (30) days following written notice of any
other breach of this Agreement sent to Hydron stating such failure or failures;
provided that any such failure remains uncured at the end of such period.
(b) Without notice to any rights, Hydron shall have
the right to terminate this Agreement upon written notice to Dolphins, if
Dolphins fail to perform or comply with any material terms or conditions of this
Agreement within thirty (30) days following delivery of written notice to
Dolphins stating such failure or failures; provided that any failure remains
uncured at the end of such period.
8.2 This Agreement may be terminated by the Dolphins or
modified to reduce or eliminate certain promotional benefits (such as use of
Marks or Sponsorship Rights), as described in Sections 2.3, 4.5 and 5.4 hereof.
Upon any such termination or modification, the Dolphins will in good faith
attempt to substitute a promotional benefit of equivalent promotional value for
any benefits that the Dolphins was forced to eliminate; or, if the Dolphins is
unable to substitute a promotional benefit of similar magnitude, then the
Dolphins and Hydron shall attempt, in good faith, to agree upon an adjustment in
the amount of fees payable by Hydron to the Dolphins under this Agreement. If
the Dolphins and Hydron cannot agree upon an adjustment in the amount of fees
payable hereunder, then Dolphins and Hydron agree to arbitrate the adjustment in
fees and to be bound by the decision of the arbitrators. Any such arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association.
8.3 Upon termination of this Agreement, all rights and
privileges granted to Hydron hereunder shall automatically revert to the
Dolphins. Upon termination of this Agreement by the Dolphins pursuant to
paragraph 8.1(a), any and all payments then or later due to the Dolphins shall
become due and payable in full immediately, and no portion of any prior payments
made to the Dolphins shall be refundable.
8.4 In the event that Hydron terminates this Agreement
pursuant to the provisions of Section 8.1(b), then the fees paid, if any, for
the balance of the term of this Agreement shall be immediately refunded to
Hydron provided Hydron has not received sponsorship rights or benefits equal to
such fees.
9. MISCELLANEOUS
9.1 The parties hereto agree to maintain in confidence the
terms and conditions of this Agreement, except to the extent that a proposed
disclosure by a party of any specifications or conditions hereof is authorized
in advance by the other party pursuant to Section 4.3 or is otherwise required
by law.
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9.2 It is mutually understood and agreed that Hydron and the
Dolphins, and their respective partners, officers, employees, representatives
and agents are, at all times, herein, acting and performing separately and
independently of each other and are in no way or manner to represent themselves
as agents or employees of the other party. As such, no party shall incur any
expenses or create any liens or encumbrances in another party's name or against
another party's interests. This Agreement shall not create a joint venture,
partnership, or a relationship of principal and agent, or of employer and
employee, between the parties.
9.3 All notices required to be given hereunder shall be
properly served if in writing and delivered either by (i) personal delivery,
(ii) certified or registered mail, postage prepaid, facsimile, or (iii) by
recognized overnight courier service which delivers only upon the signed receipt
of the addressee, which in any case shall be delivered to the respective
addresses set forth at the beginning of this Agreement or such other addresses
as may be designated by written notice by such party. Notice shall be deemed
given on the date of delivery of such notice to the recipient or the date of
refusal to accept delivery of such notice by the addressee or its agent.
9.4 In connection with any action arising from or in
connection with the enforcement of this Agreement, the prevailing party shall be
entitled to an award of its expenses, including reasonable attorneys' fees and
disbursements, incurred or paid before and at trial or any other proceeding
which may be instituted, at any tribunal level, and whether or not suit or any
other proceeding is instituted.
9.5 This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Jurisdiction and venue for any
legal proceedings arising out of this Agreement shall exclusively lie in the
state and federal courts situate in Broward County, Florida.
9.6 No party may assign any of its rights or obligations
hereunder without the prior written consent of the other party, except that
Hydron may assign its rights and obligations under this Agreement to its parent,
its successor or to an affiliate (as such term is defined under the rules and
regulations promulgated under the federal securities laws of the U.S.) upon the
reasonable consent of the Dolphins that such affiliate assignee has the
financial means and corporate authority to perform such obligations and Hydron
may not withhold its consent to an assignment of this Agreement in the event of
a merger or reorganization of the Dolphins, a sale of all or substantially all
of the Dolphins' assets or a consolidation of the Dolphins with any of its
affiliates or related parties.
9.7 In the event that the performance of this Agreement is
prevented because of an act of nature or force majeure or if the exhibition of
any scheduled home games of the Dolphins is canceled because of strike, lockout,
labor dispute or other cause of similar nature beyond the reasonable control of
the Dolphins, the same shall not constitute a breach of this Agreement. The
Dolphins hereby agree, in good faith, to attempt to reschedule any aspect of the
Sponsorship Rights which is prevented from occurring as scheduled, at such date
as may be
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reasonably agreeable to the Dolphins and Hydron. If one or more events or
benefits are unable to be rescheduled during the Term of this Agreement, the
provisions of Section 8.2 shall apply in the same manner as if such failure to
reschedule caused a termination of a Sponsorship Right. Nothing stated in this
Agreement grants Hydron any sponsorship, promotional or other rights with
respect to any Super Bowl, Pro Bowl or NFL conference championship or play-off
games or any other football game(s) which are not part of the preseason or
regular season schedule of games to be played at home by the Miami Dolphins.
9.8 This Agreement (including Exhibit "A") sets forth the
entire understanding and agreement of the parties hereto with respect to its
subject matter and supersedes all prior under standings or agreements between
the parties relating to the same subject matter. Any amendments or modifications
to this Agreement shall be in writing, as mutually agreed upon by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized representatives, effective as of the
date first shown above.
HYDRON TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
President and Chairman
Date:
------------------------------
MIAMI DOLPHINS, LTD., a Florida limited
partnership
By: SOUTH FLORIDA FOOTBALL
CORPORATION, its General Partner
By: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx, President
Date:
------------------------------
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EXHIBIT A
MIAMI DOLPHINS/HYDRON TECHNOLOGIES, INC.
SPONSORSHIP RIGHTS
Season-Long Merchandising
PRINT ADVERTISING
The Dolphins will provide to Hydron:
o One full page, four (4) color
advertisement for Hydron in all ten (10)
issues of GameDay Magazine, the official
publication of the National Football
League and the Miami Dolphins distributed
at Pro Player Stadium during each year
during the Term.
PROMOTIONAL MEDIA
In connection with this Agreement, Dolphins will provide the following
promotional media:
1996 BENEFITS PROVIDED TO HYDRON
o Executive Suite: 320A. Use of the
executive suite for the December 8, 1996
game vs. the New York Giants. The game
will include twelve (12) tickets and two
(2) parking passes.
o Stadium Signage: Hydron sign will be in
place on the West Scoreboard - Secondary
Tri-Vision Panel for the December 8, 1996
game vs. the New York Giants and the
December 16, 1996 game vs. the Buffalo
Bills.
o Product Sampling: Hydron will provide ten
thousand (10,000) sunscreen samples which
will be distributed to club level patrons
prior to and during the December 8, 1996
game vs. the New York Giants. The Dolphins
will permit Hydron to set up four (4)
display booths which will be staffed by
Hydron employees to distribute the
sunscreen.
1997-2000 BENEFITS TO HYDRON
o "Defensive Play of the Week" Promotion: Hydron will be the title
sponsor of the 30-second Jumbtron video "Defensive Player of the Week"
promotion which will be displayed during each Miami Dolphins home game.
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o Product Sampling: The Dolphins will permit Hydron to distribute
sunscreen product samples to fans in attendance at one (1) home game
during each contract year. Hydron will set up four (4) display booths
and will staff them with Hydron employees. The Dolphins will also
permit Hydron to distribute sunscreen product samples during the first
two (2) weeks of training camp at the Dolphins training facility in
Davie during each contract year.
o Team Affiliation: Hydron will be permitted to advertise itself as a
"Proud Sponsor of the Miami Dolphins" in the skin care category.
o Easements: The Miami Dolphins will use reasonable efforts to provide
endorsements of Hydron sunscreen/skin protection products from its
training staff.
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