Item 8: Exhibit 10.32/Consulting Agreement dated March 26, 2001 between the
Company and Xxxx Xxxxxxx
CONSULTING AND MARKETING LICENSE AGREEMENT
THIS CONSULTING AND MARKETING LICENSE AGREEMENT (this "AGREEMENT") is
between XXXX XXXXXXX and or assigns (the "CONSULTANT") and TCPI, Inc., a Florida
Corporation (the "COMPANY"). Each of the Consultant and the Company are also
referred to in this agreement as the "PARTIES."
WHEREAS, the Company intends to develop a market for the Company's
products and services offered from time to time by the Company (the "PRODUCTS
AND SERVICES") for potential customers of the Products and Services who are
racing car enthusiasts; and
WHEREAS, the Consultant is a professional race car driver with name
recognition in the racing car industry; and
WHEREAS, the Company desires to utilize the services of the Consultant to
promote and develop a market for the Company's Products and Services; and
WHEREAS, in connection with the services to be provided by the Consultant
pursuant to this Agreement, the Company desires to grant the Consultant a
non-exclusive license for the limited use of the Company's tradename, trademark
or logo, or any other tradename, trademark or logo of the Company, as may be
agreed upon by the Parties, (the "LICENSED TRADEMARKS"). The initial licensed
trademarks shall include TCPI and HealthCheck(R) diagnostic tests.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Scope of Services. The Company hereby retains the Consultant to
promote and develop a market for the Products and Services. The Consultant
agrees to use his best efforts during the term of this Agreement to market and
promote the Products and Services.
2. Term. This Agreement shall become effective as of the date set forth
on the signature page of this Agreement, and shall continue for a period of one
(1) year (the "TERM") with automatic renewals on a year to year basis on the
anniversary date, unless either Party gives the other sixty (60) days written
notice prior to the anniversary date of the non-renewal of this Agreement.
Notwithstanding the foregoing, the Company or the Consultant shall be entitled
to terminate this Agreement for "cause" upon 30 days' written notice, which
written notice shall be effective upon mailing by first class mail accompanied
by facsimile transmission to the Consultant at the address and telecopier number
last provided by the Consultant to the Company and to the Company at the
Company's address, attention President. "CAUSE" shall be determined solely as
the violation of any rule or regulation of any regulatory agency, and other
neglect, act or omission detrimental to the conduct of Company or the
Consultant's business, material breach of this Agreement or any unauthorized
disclosure of any of the secrets or confidential information of Company, and
dishonesty related to independent contractor status.
3. Grant of Non-exclusive License. Subject to the terms of this
Agreement, the Company hereby grants to the Consultant, and the Consultant
hereby accepts, the non-exclusive license to use the Licensed Trademarks on the
Consultant's racing cars, and on the Consultants racing equipment and clothing,
which shall be owned by the Consultant and shall be operated by the Consultant
in professional racing car competitions at the sole of discretion of the
Consultant. The Company shall supply all camera-ready artwork either on disc or
via e-mail.
(a) During the Term of this Agreement the Consultant shall not
negotiate or enter into any license, sub-license agreement of
sub-contract or similar agreement with any third parties in
respect of the Licensed Trademarks, or any right or interest
granted by the Company to the Consultant pursuant to this
Agreement, and the Consultant shall further refrain from
directly or indirectly, on his own behalf, licensing,
sub-licensing or sub-contracting the Licensed Trademarks, or
other right or interest granted by the Company to the Consultant
to such third parties other than
the operating company that manages the racecars without the
Company's prior written consent.
(b) No license or right is granted by the Company to the
Consultant, either expressly or by implication, under any licenses or
rights owned or controlled by the Company, except as expressly set
forth in this Agreement.
(c) The license granted pursuant to this Agreement shall expire
simultaneously with the Term of this Agreement, and shall be
revocable at will by the Company upon written notice to the
Consultant, and the Consultant shall immediately refrain from
the use of any rights granted by the Company to the Consultant
with respect to this license upon receipt of such written
notice.
4. Compensation; Grant of Stock Option. In consideration for the services
to be provided by the Consultant to the Company under the terms of this
Agreement, the Company agrees to grant to the Consultant upon the execution of
this Agreement a non-qualified stock option (the "Option") to purchase up to
$350,000 of shares of the Company's common stock (the "Common Stock") as set
forth below which shall fully vest immediately upon execution of this Agreement,
at an exercise price as set forth below:
Number of Shares or Total Dollar Amount: $350,000
Exercise Price (in US$): 35% discount from the average closing bid price
for the ten trading days immediately prior to the exercise of the Option.
The terms of the Option shall otherwise be set forth in a Non-Qualified
Stock Option Agreement between the Company and the Consultant, substantially in
the form attached as Exhibit A to this Agreement. The Company agrees to use its
best efforts to register the Shares for resale under the Securities Act of 1933,
as amended, pursuant to a registration statement filed with the Securities and
Exchange Commission on Form S-8 (or, if Form S-8 is not then available, such
other form of registration statement then available), pursuant to the terms of
such registration set forth in the Non-Qualified Stock Option Agreement.
5. Confidentiality. The Consultant covenants that all information
concerning the Company, including proprietary information, which it obtains as a
result of the services rendered pursuant to this Agreement shall be kept
confidential and shall not be used by the Consultant except for the direct
benefit of the Company nor shall the confidential information be disclosed by
the Consultant to any third party without the prior written approval of the
Company, PROVIDED, HOWEVER, that the Consultant shall not be obligated to treat
as confidential, or return to the Company copies of any information that (i) was
publicly known at the time of disclosure to Consultant, (ii) becomes publicly
known or available thereafter other than by any means in violation of this
Agreement or any other duty owed to the Company by the Consultant, or (iii) is
lawfully disclosed to the Consultant by a third party.
6. Independent Contractor. The Consultant and the Company hereby
acknowledge that the Consultant is an independent contractor. The Consultant
agrees not to hold himself out as, nor shall he take any action from which
others might reasonably infer that the Consultant is a partner or agent of, or a
joint venturer with the Company. In addition, the Consultant shall take no
action which, to the knowledge of the Consultant, binds, or purports to bind,
the Company to any contract or agreement.
7. Miscellaneous.
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(a) Entire Agreement. This Agreement contains the entire
agreement between the Parties, and may not be waived, amended, modified
or supplemented except by agreement in writing signed by the Party
against whom enforcement of any waiver, amendment, modification or
supplement is sought. Waiver of or failure to exercise any rights
provided by this Agreement in any respect shall not be deemed a waiver of
any further or future rights.
(b) Governing Law. This Agreement shall be construed under the
internal laws of the State of New York; and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from
this Agreement shall be in New York City, New York.
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(c) Successors and Assigns. This Agreement shall be binding upon
the Parties, their successors and assigns, PROVIDED, HOWEVER, that the
Consultant shall not permit any other person or entity to assume these
obligations hereunder without the prior written approval of the Company
which approved shall not be unreasonably withheld and written notice of
the Company's position shall be given within ten (10) days after approval
has been requested.
(d) Indemnification. The Company shall indemnify the Consultant
for all losses or damages sustained (including reasonable attorney fees
and disbursements) as incurred by the Consultant arising from the
Consultant performing services under this Agreement. Consultant shall
indemnify Company for any claims, losses, demands, actions and
proceedings (including reasonable attorneys fees and disbursements) as
incurred made against Company by reason of Consultant's actions under
this Agreement, including but not limited to, the operation of a motor
vehicle.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(f) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
IN WITNESS WHEREOF, the Parties hereto have executed or caused this Agreement to
be executed as of the date set forth below.
Date: Xxxxx 00, 0000 XXXXXXXXXX:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Address of Notices:
X.X. Xxx 0000
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Xxxxxxx, XX 00000
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COMPANY:
TCPI, Inc.
By: /s/ Xxxxxxx Block, Ph.D.
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Xxxxxxx Block, Ph.D.
President
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