EXHIBIT 10.6
ENDORSEMENT AGREEMENT
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THIS ENDORSEMENT AGREEMENT (this "Agreement"), effective as of this 9th day
of August, 1996, is made by and between PACIFICHEALTH LABORATORIES, INC.
("Company") and BIG SKY, INC., c/o International Management Group, Xxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxx 00000 ("Big Sky").
WITNESSETH:
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WHEREAS, Company desires to obtain the right to, subject to the terms of
this Agreement, use the name, voice, picture, biographical information, likeness
and/or endorsement of Xxx Xxxxxxx ("Montana") in all approved media in
connection with the advertisement, promotion and sale of Company's "Products"
(hereinafter defined);
WHEREAS, Montana has granted such rights to Big Sky together with the right
to sublicense such rights; and
WHEREAS, Big Sky desires to grant to Company the right to use the name,
voice, picture, biographical information, likeness and/or endorsement of
Montana, subject to the terms of this Agreement, in all approved media in
connection with the advertisement, promotion and sale of Company's Products.
NOW, THEREFORE, for and in consideration of the premises and of the mutual
promises and conditions herein contained, the parties do hereby agree as
follows:
1. Definitions. As used herein, the following terms shall be defined as set
forth below:
(a) "Montana Identification" shall mean any words or symbols or
photographic or graphic representations or combinations thereof which
identify Montana such as, for example, Montana's name and likeness.
(b) "Products" shall mean nutrition or dietary supplements consisting of
various forms including but not limited to: capsule, tablet, liquid
filled capsule, soft gel, drink or bar, and which are used for
improving exercise performance, building endurance, increasing the
metabolism of fat, reducing body fat, delaying the onset of muscle
fatigue during exercise and speeding recovery following exercise (it
being explicitly understood that the definition of "Products" does not
include sport drinks such as Gatorade since sports drinks are not
nutrition or dietary supplements which contain all of the qualities
set forth above in this Paragraph 1(b)).
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(c) "Endorsed Products" shall mean the Endurox line of Company's Products
which are advertised or promoted in connection with Montana
Identification.
(d) "Contract Territory" shall mean North America.
(e) "Contract Period" shall mean that period of time commencing on the
date hereof and concluding August 31, 1999.
(f) "Contract Year" shall mean a period of twelve (12) successive months
commencing on any first day of September during the Contract Period
(except that the first Contract Year shall commence on the date hereof
and shall conclude on August 31, 1997).
(g) "Premium Program" shall mean any traffic builder, tie-in program or
other program involving the use of a premium and shall include any
program primarily designed to attract the consumer to purchase a
product or service other than Endorsed Products themselves.
2. Grant of Endorsement Rights. (a) Subject to all of the terms of this
Agreement, Big Sky grants to Company the exclusive right and license to use
Montana Identification within the Contract Territory during the Contract Period
in connection
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with the advertisement and promotion by Company of Endorsed Products except in
connection with Premium Programs (although it is acknowledged that, subject to
all of the terms of this Agreement, Company may use the Montana Identification
on certain generic items (e.g., baseball caps)). Anything herein to the contrary
notwithstanding, Company shall not have the right to distribute photographs of
Montana which are larger than 8" x 10" (although it is acknowledged that Company
may, subject to all of the terms of this Agreement, use the Montana
Identification in connection with non-commercial, promotional posters and point
of sale items).
(b) During the Contract Period, Company shall have a one time right of
first refusal for the Montana Identification and his services in connection with
the endorsement and promotion of sports drinks (e.g., Gatorade, Powerade, etc.).
Therefore, if Big Sky receives a third party offer during the Contract Period
(excluding, however, the final six (6) months) for the use of the Montana
Identification in connection with the endorsement and promotion of sports
drinks, Big Sky agrees to notify Company in writing of said offer. Company shall
have five (5) days from its receipt of said offer to notify Big Sky that it will
pay Big Sky an amount of money/consideration at least equal to the
money/consideration set forth in the third party offer and, if Company matches
or beats said third party offer, Big Sky will reject said third party offer. If
Company fails to notify Big
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Sky in a timely manner of its agreement to match or best said third party offer,
Big Sky shall thereafter be free to enter into said third party deal.
3. Quality of Endorsed Products. Company agrees that Big Sky shall have the
right to approve or disapprove the quality of all Endorsed Products (but only if
the use of the Endorsed Product or the components of the Endorsed Products
change in any manner after the date hereof) and to approve or disapprove any
endorsement, trademark or trade name used in connection therewith. Big Sky
agrees that any item submitted for approval as provided herein may be deemed by
Company to have been approved hereunder if the same is not disapproved in
writing within fourteen (14) days after receipt thereof. Big Sky agrees that any
item submitted will not be unreasonably disapproved and, if it is disapproved,
that Company will be advised of the grounds therefor.
4. Approvals. Company agrees that no use whatsoever of Montana
Identification nor any item used in connection with Montana Identification
(including, without limitation, advertisements) will be made hereunder unless
and until the same has been approved by Big Sky. Big Sky agrees that any
material, advertising or otherwise, submitted for approval as provided herein
may be deemed by Company to have been approved hereunder if the same is not
disapproved in writing within fourteen (14)
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days after receipt thereof; except that, with respect to the first advertising
materials submitted to Big Sky immediately subsequent to the execution of this
Agreement, Big Sky shall be deemed to have approved said materials if Big Sky
has not disapproved same in writing within three (3) business days after Xxxxx
Xxxxxxx'x confirmed receipt thereof. Big Sky agrees that any material submitted
hereunder will not be unreasonably disapproved and, if it is disapproved, that
Company will be advised of the specific grounds therefor. Company agrees to
protect, indemnify and save harmless Big Sky and Montana, or either of them,
from and against any and all expenses, damages, claims, suits, actions,
judgments and costs whatsoever, arising out of, or in any way connected with,
any advertising material furnished by, or on behalf of, Company.
5. Compensation. In full consideration of Big Sky's and Montana's
performance of the provisions of this Agreement and for all of the rights
granted to Company by Big Sky hereunder, Company agrees to pay and Big Sky
agrees to accept the consideration as set forth below in this Paragraph 5.
(a) On or before the first day of each Contract Year and the first day of
March of each Contract Year, Company shall pay to Big Sky an installment of
$150,000 each (for a guaranteed total of Three Hundred Thousand Dollars
($300,000) per each Contract Year), except that the first installment of
$150,000 for
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the first Contract Year shall be made contemporaneously with the execution and
delivery of this Agreement.
(b) In further consideration of the rights granted and services provided by
Big Sky hereunder, Company will grant Big Sky options to purchase 25,000 shares
of common stock of Company subject to the terms and conditions of an Option
Agreement (the "Option Agreement") being entered into simultaneously with the
execution hereof.
(c) If Company uses any performance or service of Montana hereunder in any
way that is subject to the jurisdiction of any applicable artists' union, guild
or other organization (including, without limitation, SAG and AFTRA), the
guaranteed sums for each Contract Year set forth in subparagraph (a) above shall
be an advance against the applicable minimum union scale payments earned during
such time period as provided for in the respective contracts with the several
unions having jurisdiction over the production, use and reuse of any commercials
produced hereunder (including session, use, reuse and holding fees). Company
shall make no additional payments to Big Sky unless they exceed the guaranteed
sums set forth in subparagraph (a) above.
(d) Company shall pay directly to the Pension and Health Fund of SAG and/or
AFTRA (or other appropriate/applicable union, guild or organization) the
appropriate union pension or welfare
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fund payments arising under or by way of this Agreement, which payments shall be
in addition to any other payments provided for herein. The parties acknowledge
that $65,000 of the guaranteed sum payable each Contract Year to Big Sky shall
be allocated to television.
6. Notices and Submissions. Big Sky hereby designates International
Merchandising Corporation, Xxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxx
00000, Attention: Xxxxx Xxxxxxx, as Big Sky's authorized agent for all purposes
hereunder. All notices or submissions to be made or delivered by Company to Big
Sky pursuant to this Agreement shall be delivered to said address free of all
charges such as, for example, shipping charges and customs charges. In the event
that any such charges are paid by Big Sky or by Big Sky's authorized agent,
Company agrees to make prompt reimbursement.
7. Payments. Big Sky may elect to have payments made by check, wire
transfer or bank transfer. Unless such election has been made in writing, all
payments shall be made by check drawn to the order of "Big Sky, Inc." and
delivered to Big Sky's accountant, Xxx Xxxxxx at: Xxxxxxxx, Xxxxxx & Xxxxxxxx,
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000. Past due
payments hereunder shall bear interest at the rate of (i) one and one-half
percent (1-1/2%) per month, or (ii) the maximum interest rate permissible under
law, whichever is less.
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8. Products for the Use of Montana. During the Contract Period, Company
shall supply Montana with such amounts of Company's Products as Montana may
reasonably request for his personal use and the use of his family. Company
agrees to pay all charges in connection with the delivery of its Products to
Montana, including shipping charges, air freight charges and customs charges.
Company agrees to reimburse Montana's authorized agent for all such expenses
incurred by it in connection with the transfer of its Products to Montana.
9. Labels. Anything herein to the contrary notwithstanding, it is
understood that Company shall not have the right to affix or attach Montana
Identification in any manner to Endorsed Products themselves or to the packaging
therefor, except that, subject to all of the terms of this Agreement, it shall
be understood that the foregoing provision does not preclude Company's use of
Montana Identification in connection with certain point of purchase materials.
During the Contract Period or thereafter, Company understands that it does not
have the right to, and agrees that it will not, file any application for
trademark registration or otherwise obtain or attempt to obtain ownership of any
trademark or trade name within the Contract Territory or in any other country of
the world which consists of Montana Identification or any xxxx, design or logo
intended to make reference to Montana or to identify products endorsed by
Montana.
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10. Services of Montana. If Company desires to utilize the services of
Montana in the production of advertising materials for Company (which are
subject always to Paragraph 4 above) including, but not limited to, television
and/or radio advertisements as an on-camera or voice-over performer or as model,
in connection with photographs or drawings for print advertising, point of
purchase displays, billboards, trade literature, trade advertising, promotional
material and consumer literature or for personal appearances, Big Sky agrees, at
the request of Company and upon adequate notice, to provide the services of
Montana upon days and at places reasonably convenient to the schedule of Montana
(although it is agreed that all production days must take place in the San
Francisco Bay area). Company agrees that it will reimburse Big Sky for all
reasonable travel expenses (including first class air fare, lodging and meals)
incurred by Montana and one traveling companion designated by Montana. Company
understands that if services are requested hereunder, such services may be
coordinated with similar services for others entitled to the use of Montana
Identification in other connections. Company further understands that such
services may be required not more than three (3) times at only one location each
time (only one of which may be for a production day, although it is agreed that,
subject to Montana's schedule, Company will have the option to use a second
service day as a production day) during any Contract Year on occasions not
exceeding three (3) hours (but, upon Company's reasonable request
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and subject to Big Sky's approval, four (4) hours may be acceptable) (eight (8)
hours for production days) in duration unless otherwise agreed upon. Big Sky
agrees that Company is entitled to use advertisements for the Endorsed Products
containing Montana Identification on its Internet Web Site (subject always to
Paragraph 4 above) and Big Sky also agrees to provide a limited amount of
materials (e.g., articles by Montana regarding the NFL post-season, analysis of
games, etc.) that can be displayed on Company's Web Site (subject always to
Paragraph 4 above). Company's Web Site shall be focused on Company and/or
Company's products and shall not be marketed or advertised as a Montana Web
Site. Company shall not use any domain name that refers to Montana or Big Sky in
any way. Company acknowledges that Montana has an arrangement with a
sports-oriented Internet service provider to transmit a "Montana Web Site" and
Company agrees, subject to its prior approval of the Montana Web Site (which
approval shall not be unreasonably withheld or conditioned or delayed), during
the Contract Period, to cause a graphical "icon" to appear on its Web Site
designed to link on-line users to Montana's Web Site when such icon is
highlighted (the form of such icon subject to mutual approval). Further, subject
to Montana's schedule, Big Sky agrees to use its commercially reasonable best
efforts so that Montana can be available from time to time to participate in
certain Company-related promotional activities (e.g., brief telephone calls with
senior executives from key retailers, participation in certain on-line
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promotional consumer activities (subject to all third party agreements), etc.).
In the event that Company elects to use the services of Montana in connection
with television advertising, Company shall make all required union scale and
union pension and welfare payments. Company further understands that failure to
utilize services of Montana pursuant to this section shall not result in any
reduction in payments to Big Sky hereunder, nor may the obligation to provide
services be carried forward from one Contract Year to another Contract Year nor
past the Contract Period. The obligations of Big Sky to provide the services of
Montana hereunder are subject to the condition that payments to Big Sky are
current and up to date. Although recognized by the parties not to be a material
term hereunder, Big Sky nonetheless agrees that, upon Company's reasonable
request, Big Sky will use its commercially reasonable efforts to assist Company,
if necessary, in purchasing pieces of authentic Montana autographed memorabilia
from Upper Deck (all of which shall be subject to Upper Deck's prior approval
and all of which must be secured by Company at Company's cost).
11. Default. If either party at any time during the Contract Period shall
(a) fail to make any payment of any sum of money herein specified to be made, or
(b) fail to observe or perform any of the covenants, agreements or obligations
hereunder (other than the payment of money), the non-defaulting party may
terminate this Agreement as follows: as to subparagraph (a) if
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such payment is not made within ten (10) days after the defaulting party shall
have received written notice of such failure to make payment, or as to
sub-paragraph (b) if such default is not cured within thirty (30) days after the
defaulting party shall have received written notice specifying in reasonable
detail the nature of such default. In order to be a sufficient notice hereunder,
any such written notice shall specify in detail each item of default and shall
specify the provision of this Agreement which applies to each item of default,
and shall specify in detail the action the defaulting party must take in order
to cure each such item of default. The termination rights set forth in this
section shall not constitute the exclusive remedy of the non-defaulting party
hereunder, however, and if default is made by either party hereunder, the other
may resort to such other remedies as said party would have been entitled to if
this section had been omitted from this Agreement. Termination under the
provisions of this section shall be without prejudice to any rights or claims
which the terminating party may otherwise have against the defaulting party.
12. Termination. From and after the termination of the Contract Period, all
of the rights of Company to the use of Montana Identification shall cease
absolutely and Company shall not thereafter use or refer to Montana
Identification in advertising or promotion in any manner whatsoever it being
understood by Company that Montana Identification may be used at
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any time by others in connection with the advertisement and promotion of
Products the shipment of which is completed after the termination of the
Contract Period. It is further agreed that following termination of the Contract
Period, Company shall not advertise, promote, distribute or sell any item
whatsoever in connection with the use of any name, figure, design, logo,
trademark or trade name similar to or suggestive of Montana Identification.
13. Indemnity. Company agrees to protect, indemnify and save harmless Big
Sky and Montana, or either of them, from and against any and all expenses,
damages, claims, suits, actions, judgments and costs whatsoever, including
reasonable attorneys' fees, arising out of, or in any way connected with this
Agreement, actions or omissions of Company or any claim or action for personal
injury, death or otherwise involving alleged defects in any of Company's
products and/or services, provided that Company shall be given prompt notice of
any such action or claim. Company agrees to provide and maintain, at its own
expense, product liability and general commercial liability insurance with
limits of no less than $5,000,000 and $2,000,000 respectively and within thirty
(30) days from the date hereof, Company will submit to Big Sky a fully paid
policy or certificate of insurance naming Big Sky and Montana as insured
parties, requiring that the insurer shall not terminate or materially modify
such without
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written notice to Big Sky at least twenty (20) days in advance thereof.
14. Waiver. The failure of either party at any time or times to demand
strict performance by the other of any of the terms, covenants or conditions set
forth herein shall not be construed as a continuing waiver or relinquishment
thereof and each may at any time demand strict and complete performance by the
other of said terms, covenants and conditions.
15. Bankruptcy. If Company shall become bankrupt or insolvent, or if
Company's business shall be placed in the hands of a Receiver, Assignee or
Trustee, whether by voluntary act of Company or otherwise, the Contract Period
shall, at the option of Big Sky, immediately terminate.
16. Assignment. This Agreement shall bind and inure to the benefit of Big
Sky and the successors and assigns of Big Sky. Nothing herein shall prevent Big
Sky from assigning the monetary benefits of this Agreement as it may so desire.
Further, inasmuch as it is recognized that Big Sky is the representative of
Montana, Big Sky may at any time assign this Agreement to Montana and, in such
event, Big Sky shall have no further obligation or liability in connection
herewith and Big Sky's position vis-a-vis Company in connection herewith shall
be in all respects the same as if Big Sky had signed this Agreement as
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agent rather than as principal from the beginning. The rights granted Company
hereunder shall be used only by it and shall not, without the prior written
consent of Big Sky, be transferred or assigned to any other. If the Company is
purchased in whole or substantially in whole by another entity or, in the event
of Company's merger or consolidation with any other entity in which Company is
not the surviving entity or if in any of the foregoing scenarios senior
management (including Xx. Xxxxxx Xxxxxxx) is significantly altered, Big Sky
shall have the right to terminate the Contract Period by so notifying Company in
writing on or before sixty (60) days after Big Sky has received notice of such
purchase, merger or consolidation. In the event Big Sky terminates this
Agreement pursuant to this Paragraph 16, and if the initial public offering of
the Company's stock had not occurred as of the date of such termination, then,
if both of the foregoing events occur, Big Sky shall forfeit all of its rights
in and to its option with respect to Company's stock except as set forth in the
Option Agreement.
17. Arbitration. In the event a dispute arises under this Agreement and/or
the Option Agreement which cannot be resolved, such dispute shall be submitted
to arbitration and resolved by a single arbitrator (who shall be a lawyer) in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. Each party is entitled to depose one (1) fact
witness and any expert witness designated by the other
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party, and to conduct such other discovery as the arbitrator deems appropriate.
All such arbitration shall take place at the office of the American Arbitration
Association located in or nearest to San Jose, California. The award or decision
rendered by the arbitrator shall be final, binding and conclusive and judgment
may be entered upon such award by any court.
18. Forge Majeure. If at any time during this Agreement, any party
hereunder (i.e., Big Sky, Montana and/or Company) is prevented from or hampered
or interrupted or interfered with in any manner whatever in fully performing
their respective duties hereunder, by reason of any present or future statute,
law, ordinance, regulation, order, judgment or decree, whether legislative,
executive or judicial (whether or not valid), act of God, earthquake, flood,
fire, epidemic, accident, explosion, casualty, lockout, boycott, strike, labor
controversy (including but not limited to threat of lockout, boycott or strike),
riot, civil disturbance, war or armed conflict (whether or not there has been an
official declaration of war or official statement as to the existence of a state
of war), invasion, occupation, intervention of military forces, act of public
enemy, embargo, delay of a common carrier, inability without fault on the part
of Big Sky and/or Montana and/or Company to obtain sufficient material, labor,
transportation, power or other essential commodity required in the conduct of
business; or by reason of any event beyond the reasonable control of Big Sky,
Montana
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and/or Company, as the case may be (e.g., illness, family emergency, etc.); or
by reason of any other cause or causes of any similar nature (all of the
foregoing being herein referred to as an "event of force majeure"), then the
respective obligations of Big Sky, Montana and/or Company (as the case may be)
hereunder shall be suspended as often as any such event occurs and during such
periods of time as such events exist and such nonperformance shall not be deemed
to be a breach of this Agreement.
19. Significance of Headings. Section headings contained herein are solely
for the purpose of aiding in speedy location of subject matter and are not in
any sense to be given weight in the construction of this Agreement. Accordingly,
in case of any question with respect to the construction of this Agreement, it
is to be construed as though such section headings had been omitted.
20. Entire Agreement. This writing constitutes the entire agreement between
the parties hereto and may not be changed or modified except by a writing signed
by the party or parties to be charged thereby.
21. Governing Law. This Agreement shall be governed and construed according
to the law of California.
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22. Reservation of Rights. All rights not herein specifically granted to
Company shall remain the property of Big Sky to be used in any manner Big Sky
deems appropriate. Company understands that Big Sky has reserved to itself the
right to authorize others to use Big Sky Identification within the Contract
Territory and during the Contract Period in connection with all tangible and
intangible items and services other than Products themselves.
23. No Joint Venture. This Agreement does not constitute and shall not be
construed as constituting a partnership or joint venture between Big Sky and
Company. Neither party shall have any right to obligate or bind the other party
in any manner whatsoever, and nothing herein contained shall give, or is
intended to give, any rights of any kind to any third person.
24. Authorization. The execution, delivery and performance of this
Agreement by Company and by Big Sky has been duly authorized and approved by the
Board of Directors of Company and by the Board of Directors of Big Sky and
constitutes a valid and binding obligation of Company and of Big Sky enforceable
in accordance with its terms.
25. Limitation of Liability. Notwithstanding anything to the contrary
herein, in the event Company incurs any expenses, damages or other liabilities
(including, without limitation,
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reasonable attorneys' fees) in connection with the breach of any term or
provision hereof, Big Sky's and Montana's liability to Company shall not exceed
the amount of monies (but not to ever exceed two (2) annual retainers),
excluding the reimbursement of expenses, actually paid to Big Sky (or Montana,
as the case may be), by Company hereunder.
26. Special Rights of Termination. If, during the Contract Period, any of
the following events occur, Company shall have the right to terminate this
Agreement effective upon Big Sky's receipt of Company's written notice thereof,
and Company shall thereafter have no obligation to make any future payments to
Big Sky otherwise due hereunder:
(a) Either Big Sky or Montana commits any act that is a criminal
offense involving moral turpitude under federal, state or local laws which
brings Big Sky, Montana, or Company into public disrepute, contempt,
scandal, or ridicule; or
(b) Montana dies; or
(c) Montana becomes permanently disabled (i.e., for at least 12
consecutive months) so that Montana is unable to perform his services as
required hereunder during such period.
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27. Most Favored Nation. If, at any time during the Contract Period,
Company enters into any agreement for the production, distribution and sale of
Products using the name, likeness, photographic representation or signature of
any other professional athlete (active or retired), which agreement provides for
the payment to such individual of compensation in excess of that set forth above
(provided similar services and obligations are required), then Company agrees it
will immediately so notify Big Sky and, at the same time, shall increase the
rate of compensation paid to Big Sky hereunder up to the highest then-current
rate paid by Company to any such professional athlete (active or retired).
28. NFL Trademarks. Nothing contained herein shall be construed to convey
to Company any rights to use the trademarks, logos or uniform of the San
Francisco Forty Niners, the Kansas City Chiefs Football Club, the National
Football League or any other professional or amateur football association
(including any member clubs or teams of such association) in conjunction with
the rights granted hereunder. All rights to the use of such trademarks, logos or
team identification must be acquired from the San Francisco Forty Niners, the
Kansas City Chiefs Football Club, the National Football league or any other
appropriate rights holder.
29. Ownership, Use and Territory.
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(a) All materials produced in connection with this Agreement which do not
incorporate any element of the Montana Identification, including advertising
ideas, phrases or words, will be and remain the absolute and exclusive property
of Company forever. Big Sky acknowledges that neither Big Sky nor Montana now
have, nor in the future will either of them assert any right, title or interest
of any kind or nature whatsoever in such materials, or in or to any component
part, element, character or characterization thereof (provided, of course, that
said materials do not contain any element of the Montana Identification
whatsoever).
(b) Except as otherwise provided herein, Company shall have the full and
complete right, during the Contract Period (but not thereafter), to broadcast,
use, reproduce, publish, copyright, and/or exhibit any television and/or radio
commercials produced and approved hereunder whether produced in the then current
Contract Year or any earlier Contract Year, throughout North America, including
the right to use the same at any conventions or sales, distributor or
institutional meetings sponsored or attended by Company or its dealers or
distributors.
30. Competitive Protection. Big Sky represents and warrants that it has not
authorized and that from this date to the expiration of the Contract Period will
not authorize the use during the Contract Period of Montana's name, picture,
likeness,
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endorsement, voice or biographical material, nor will Big Sky authorize Montana
to render services in connection therewith, in connection with radio or
television commercial or print advertising or any other manner of related
commercial promotion for the purpose of advertising or promoting any products
which compete during the Contract Period with Company's Products, specifically
including dietary or nutritional supplements used for improving endurance;
increasing metabolism of fat; improving exercise performance; reducing body fat;
preventing muscle fatigue; and improving recovery following exercise.
31. Union Membership. Big Sky warrants and represents that Montana is, or
Big Sky will cause, Montana to become and remain, during the Contract Period, a
member in good standing of SAG, AFTRA, SEG or any other organization having
jurisdiction over Montana's services hereunder. This Agreement is subject to all
of the terms and conditions of the collective bargaining agreements with SAG,
SEG and AFTRA and any other union agreements or codes having jurisdiction over
Montana's services hereunder, and Company shall be entitled to all benefits
applicable to producers and sponsors thereunder. To the extent that any
applicable Collective Bargaining Agreement shall require any additional
compensation to Big Sky with respect to Montana's services, whether for travel,
rehearsal time, wardrobe fittings, makeup or any or all other types of
compensation now or in the future contained in said agreements, such
compensation shall be
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deemed paid by the guaranteed sums provided above with respect to the respective
Contract Years (unless, of course, such amounts exceed said guaranteed sums, in
which case Big Sky shall be paid promptly all said excess compensation).
32. Execution and Delivery. This instrument shall not be considered to be
an agreement or contract nor shall it create any obligation whatsoever on the
part of Big Sky and Company, or either of them, unless and until it has been
personally signed by a representative of Big Sky and by a representative of
Company and delivery has been made of a fully signed original. Acceptance of the
offer made herein is expressly limited to the terms of the offer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PACIFICHEALTH LABORATORIES, INC. BIG SKY, INC.
By /s/ Xxxxxx Xxxxxxx By: /s/ Xxx Xxxxxxx
-------------------------------- ----------------------------
Name Xxxxxx Xxxxxxx Xxx Xxxxxxx
Title President President
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August 14, 1996
PacificHealth Laboratories, Inc.
0000 Xxxxx 0 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
I have been advised of an agreement (the "Agreement") among PacificHealth
Laboratories, Inc. ("Company") and Big Sky, Inc. ("Big Sky") in which Big Sky
grants Company certain rights to use, among other things, my name and likeness.
This letter is to advise you that Big Sky has all of the authority necessary to
make the commitments made by it and to grant the rights granted by it in the
Agreement and that I, for my part, in consideration of Company having entered
into the Agreement with Big Sky, agree to fully and completely perform all of
the services which Big Sky is required thereby to cause me to perform pursuant
to the terms of the Agreement.
Sincerely yours,
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
