Exhibit No. 25
XxxxxxXxxxxx.xxx, Inc.
Form 10-KSB/ 2000
File No. 0-26917
AGREEMENT
THIS AGREEMENT is made and entered into, and shall be
effective as of, this 25th day of April, 2000, by and between
BUYERS XXXXXX.XXX, a Delaware corporation ("Buyers") and OLIVE
ENTERPRISES, INC., a Pennsylvania corporation ("OEI"), relative
to the services of XXXX XXXXX ("Xxxxx") as a spokesperson for
Buyers in connection with its marketing, through direct response
television, print advertisements, retail and/or other marketing
means, of a consumer buying club.
NOW THEREFORE, in consideration of the mutual covenants and
conditions as set forth hereinbelow, the parties agree as
follows:
1. Production of Commercials and Testing:
1. Product Line: The Product Line shall be defined as a
consumer buying club providing an array of services in
communications and entertainment, as well as hard goods,
including (but not limited to) some or all of the following: (i)
telecommunications and Internet-related services, utilities,
insurance, financial services, groceries, fuel, and other
household-related services, and (ii) durable goods, including
electronics, appliances, home furnishings, lawn and garden,
automobile, travel, and books and tapes.
2. Production of Commercials: Xxxxx will be available for, and
appear in, one thirty (30) minute infomercial, a series of :30,
:60, and :120 second commercials, and still photography,
promoting the Product Line, the dates and times of which sessions
shall be agreed upon in good faith by the parties and shall not
exceed two days in total for all of the foregoing services. In
connection with the foregoing, Xxxxx shall have those rights of
approval as are set forth in Paragraph 17, below. The parties
agree that Xxxxx'x services are unique in character and,
therefore, may not be delegated for any purposes under this
Agreement. Buyers will become an AFTRA signatory prior to
production of the infomercial and commercials and will remain as
such for the duration of the Term of this Agreement.
3. Compensation: Buyers shall pay OEI, in consideration for
the services of Xxxxx as set forth hereinabove, the sum of
$50,000.00 (the "Session Fee"), said sum to be credited against
all union minimum payments due under this Agreement and to be
paid upon commencement of the infomercial/commercial shoot. The
Session Fee shall be non-refundable, but it shall be recoupable
against the Royalty due OEI pursuant to Paragraph 2F(1), below,
and the Guaranty due OEI pursuant to Paragraph 2F(3), below.
Buyers shall make or cause to be made payment on behalf of OEI of
all sums required to be paid to the applicable pension, health
and welfare funds arising out of Xxxxx'x services referenced
hereinabove. OEI agrees to pay any required income, employment
or other taxes relating to the compensation paid to OEI by Buyers
hereunder. In the event that the infomercial or commercials are
shot outside of the greater Los Angeles area, Buyers shall
provide OEI with first class, round trip air fare, hotel
accommodations and ground transportation for two people, and a
per diem of $150.00 per person, all of the foregoing in
connection with Xxxxx'x travel to and from the shoot.
4. Usage During Test Phase: The infomercial and/or commercials
will test, at the discretion
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of Buyers, on cable stations,
network affiliates, and independent stations for a period not to
exceed ninety (90) days (the "Test Phase"). Buyers shall pay OEI
the Royalty, as defined in Paragraph 2F, on Product Line
membership activations generated during the Test Phase in direct
response to the infomercial and/or commercials (but not on such
activations generated thereafter unless Buyers proceeds with a
Roll-Out as referenced in Xxxxxxxxx 0X, xxxxx). OEI and Xxxxx
consent to the use of Xxxxx'x name, image, likeness, photograph,
voice, signature and reputation (collectively the "Endorsement")
for such purpose, subject to OEI's approval rights as set forth
in Paragraph 17, below. OEI and Xxxxx agree to provide Xxxxx'x
on-camera services, if requested by Buyers, during the Test Phase
(at dates and times to be mutually agreed upon by the parties and
not to exceed eight hours in total) to reshoot footage for the
infomercial and/or commercials for purposes of enabling Buyers to
test or retest the material. In consideration for such services,
Buyers will pay OEI the minimum session fee due in accordance
with the applicable collective bargaining agreement (such fee to
be in addition to the Session Fee referenced in Paragraph 1C,
above).
2. Marketing:
1. Option: Buyers will have the option (the "Option"),
exercisable in writing within one hundred twenty (120) days
following completion of the Test Phase, to elect to proceed with
and to commence a Roll-Out of the infomercial, commercials and/or
the still photography containing Xxxxx'x Endorsement in
connection with the marketing of the Product Line. The term
"Roll-Out" shall be defined as the exhibition of the commercials
and/or still photography following the Test Phase and shall be
deemed to have commenced (if at all) upon the first such
exhibition. It is specifically understood and agreed by the
parties hereto that Buyers shall have the right not to exercise
such Option, for any reason whatsoever or for no reason, and that
neither party shall have any liability whatsoever to the other
arising solely out of Buyers' election not to exercise the
Option.
2. Term:
(1) The term ("Term") of this Agreement shall commence upon
execution hereof and shall, thereafter, continue in full force
and effect for a period of one year (the "Initial One Year Term")
beginning on the date of a Roll-Out, if any, subject to renewal
thereafter for successive one year terms ("Renewal Terms")
pursuant to Paragraph 3, below.
(2) Notwithstanding the foregoing, this Agreement will terminate
("Early Termination") in the event, and at such time as, Buyers
elects not to proceed with a Roll-Out. In the event of such
Early Termination, there shall be no further use by Buyers of
Xxxxx'x Endorsement in any manner.
3. Area of Use: The area of use for the advertising materials
shall be the United States and its commonwealths, territories and
possessions (the "Territory"), and shall include all manner,
media, and methods of distribution.
4. Consent: In the event of a Roll-Out, OEI and Xxxxx consent
to the use of Xxxxx'x Endorsement in connection therewith for the
duration of the Initial One Year Term and all Renewal Terms.
Such consent shall extend to all uses incident to Buyers'
marketing of the Product Line, inclusive of the infomercial,
commercials, print advertisements (e.g.: advertisements in
newspapers, magazines, catalogs, and other periodicals; credit
card inserts; and direct mail), product packaging and inserts,
sales literature and corporate promotional materials, through any
and all manner, media, and channels of distribution throughout
the Territory, including direct response, electronic media, the
Internet, and
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retail distribution (including, but not limited to,
retail kiosks). In connection with the foregoing, OEI and Xxxxx
shall have those rights of approval as are set forth in Paragraph
17, below. Buyers agrees that Xxxxx'x Endorsement shall not be
used in connection with any sexually-explicit, politically-
oriented, or violent material, nor in connection with material
which contains firearms, feminine hygiene products or tobacco.
In addition, Xxxxx'x Endorsement shall not be directed to
specific endorsements of individual products, but rather shall be
directed to the Product Line as a consumer buying club (although
reference will be made within the advertising materials to the
variety of products being offered by Buyers). Notwithstanding
this, in the event that Buyers desires to have Xxxxx endorse
individual products, Buyers will negotiate with OEI and Xxxxx
regarding the possible terms for Xxxxx'x endorsement of the
products, and OEI and Xxxxx shall have the right to agree or not
agree to such additional endorsement.
5. Additional Services: In the event of a Roll-Out, and at the
option and upon the request of Buyers, OEI will provide Xxxxx'x
services during the Initial One Year Term (following a Roll-Out)
and each Renewal Term thereafter, at specific dates, times, and
places to be mutually agreed upon by the parties, not to exceed
two days in total - not necessarily consecutive - during each one
year term, for the purpose of shooting additional footage to
update the infomercial, commercials, including still photography,
or for shooting footage for a new infomercial or new commercials,
including still photography. The updated or new infomercial,
commercials and still photography may be tested on air either
prior to expiration of the then current one year term or
following renewal thereof, and may then be aired on a Roll-Out
basis as a replacement for the originally-produced advertising
materials. OEI and Xxxxx consent to the use of such materials to
the full extent set forth in subparagraph D, above, subject to
the rights of approval as are set forth in Paragraph 17, below.
In consideration for the foregoing services, Buyers will pay OEI
an additional session fee of $50,000.00 during each one year term
in which such services are utilized, and such session fee shall
be treated in the same manner as the Session Fee referenced in
Paragraph 1C with respect to crediting, non-refundability and
recoupability.
6. Compensation:
(1) Royalty Payable to OEI: In the event of a Roll-Out, Buyers
shall pay to OEI, for the duration of the Term (and thereafter as
specifically provided below), a royalty (the "Royalty") equal to
the following:
(1) $2.50 shall be earned for each Product Line membership
activated during the Term;
(2) $1.25 shall be earned upon commencement of the second
successive year of membership of each Product Line membership
originally activated during the Term (regardless of whether such
second year commences during or after expiration of the Term);
(3) $0.65 shall be earned upon commencement of the third
successive year of membership of each Product Line membership
originally activated during the Term (regardless of whether such
third year commences during or after expiration of the Term).
Notwithstanding the foregoing, no Royalty
shall be paid on membership activations
generated: (i) as a result of member
referrals, or (ii) through QVC marketing of
the Product Line (unless the parties
subsequently agree in writing that Xxxxx
shall appear as a spokesperson for the
Product Line on QVC and Xxxxx, in fact,
appears on QVC, in which event OEI shall be
paid in accordance
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with the provisions of
such separate written agreement; however, in
the absence of such an agreement, Xxxxx'x
Endorsement shall not be used in connection
with QVC marketing of the Product Line). In
this regard, Buyers agrees to maintain in
effect for the duration of the Term a system
for tracking the source of all member
activations in order to accurately determine
which activations are the result of member
referrals.
In addition, for purposes of clarification,
OEI and Xxxxx acknowledge that Product Line
members may purchase over time a variety of
different products and services from Buyers,
but that no Royalty shall be paid in
connection with such purchases (the Royalty
being earned only in connection with original
membership activations occurring during the
Term and the first two years of sustained
membership of each such activation).
(2) Payment Schedule: The foregoing Royalty shall be due and
payable to OEI on a quarterly basis within forty-five (45) days
following the close of each calendar year quarter. Each payment
shall be accompanied by a statement of accounting setting forth a
summary of Product Line activations occurring during such
calendar year quarter, and successive years of membership
commencing during such quarter (subject to examination by OEI
pursuant to Paragraph 6, below). Buyers shall be entitled to
recoup its Guaranty payment due under subparagraph 2F(3), below,
against all Royalty payments otherwise due under this
subparagraph 2F(2).
(3) Guaranty: In the event of a Roll-Out, Buyers guarantees to
OEI that the total compensation paid to OEI in connection with
the Initial One Year Term (including the Session Fee and any
Royalty payments made in connection with the Test Phase) and each
Renewal Term shall not be less than $1,500,000, payable as
follows:
(a) For the Initial One Year Term:
$325,000 payable upon Roll-Out and $375,000
payable ten (10) days prior to commencement
of the second, third, and fourth calendar
year quarters following the Roll-Out ($50,000
having already been paid as a Session Fee
pursuant to Xxxxxxxxx 0X, xxxxx); and
(b) For each Renewal Term: $375,000
payable ten (10) days prior to commencement
of the Renewal Term and $375,000 payable ten
(10) days prior to commencement of the
second, third, and fourth calendar year
quarters following commencement of the
Renewal Term.
Each Guaranty payment shall constitute a non-
refundable but recoupable advance against all
sums due OEI under this Agreement. To the
extent that the amount paid to OEI in
connection with any calendar year quarter
during the Initial One Year Term or any
Renewal Term exceeds the Guaranty installment
due for such quarter, the amount in excess of
the Guaranty installment shall be applied as
a credit against the Guaranty installment due
OEI for the next succeeding calendar year
quarter. Further, at such time as the total
amount paid to OEI in connection with the
Initial One Year Term (including the Session
Fee and Test Phase Royalty payments), or any
Renewal Term, equals $1,500,000, no further
Guaranty payments shall be due for the
remainder of such period.
Payment of the foregoing Guaranty shall be
secured by a standby letter of credit to be
obtained by Buyers for the benefit of OEI
after completion of the Test Phase (and only
in the event of an affirmative election to
proceed with a Roll-
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Out). The letter of
credit shall be irrevocable and shall be
posted prior to commencement of a Roll-Out,
and shall be in a form acceptable to Buyers
and OEI. Upon issuance of the letter of
credit, a copy of same shall be attached to
this Agreement as Exhibit 1. The amount of
the letter of credit upon initial issuance
shall be $1,125,000, and OEI shall be
entitled to draw against such letter of
credit only if, and to the extent that,
Buyers shall fail to make payment of the
second, third and/or fourth quarterly
Guaranty installments when due OEI as set
forth above. During the Initial Term, the
initial amount of the letter of credit shall
be reduced by and to the extent of all
Guaranty payments made by Buyers to OEI, as
well as by and to the extent of any draws
against such letter of credit made by OEI.
Prior to commencement of each Renewal Term,
Buyers shall renew or extend the term of the
letter of credit for the duration of such
Renewal Term in the amount of $1,125,000, and
OEI shall again be entitled to draw against
such letter of credit only if, and to the
extent that, Buyers shall fail to make
payment of the second, third and fourth
quarterly Guaranty installments when due OEI
(with the amount of the letter of credit
being again reduced by and to the extent of
all Guaranty payments made by Buyers to OEI,
as well as by and to the extent of any draws
against such letter of credit made by OEI).
It is understood that if the letter of credit
is not posted in a form reasonably acceptable
to OEI either prior to commencement of a Roll-
Out or prior to commencement of any Renewal
Term, this Agreement shall terminate and
Buyers shall immediately cease the use of
Xxxxx'x Endorsement.
(4) Crediting of Payments: All compensation as referenced above
shall be credited against any and all union minimum payments due
under this Agreement (excluding pension, health and welfare fund
contributions). OEI agrees to pay any required income,
employment or other taxes relating to the compensation paid to
OEI by Buyers hereunder.
3. Renewal: Buyers shall have the sole right, but not the
obligation, to renew this Agreement for a maximum of two (2)
successive one year terms (each being designated a "Renewal
Term") upon the same terms and conditions, exercisable in writing
not less than ten (10) days prior to the expiration of the then
current one year term.
4. Representations and Warranties:
1. OEI and Xxxxx warrant and represent that:
(1) they have the right to enter into this Agreement and to
grant the rights as set forth hereinabove;
(2) there are no contractual obligations preventing the
fulfillment of this Agreement;
(3) neither this Agreement nor the transactions contemplated
hereby will cause a violation of any other agreement to which OEI
or Xxxxx is a party; and
(4) OEI and Xxxxx have not, and will not, either themselves or
by granting authority to any other person or entity, exercise any
right or take any action which derogates or impairs the rights
granted to Buyers hereunder (subject, however, to the provisions
of Xxxxxxxxx 0, xxxxx), or derogates the names or reputations of
Buyers, the Product Line, or any of the officers, directors, or
shareholders of Buyers.
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2. Buyers warrants and represents that:
(1) it has the right to enter into this Agreement and to grant
the rights as set forth hereinabove;
(2) there are no contractual obligations preventing the
fulfillment of this Agreement;
(3) neither this Agreement nor the transactions contemplated
hereby will cause a violation of any other agreement to which
Buyers or any of its affiliated companies is a party.
5. Indemnity:
1. OEI shall indemnify and hold Buyers, and its officers,
directors and shareholders (collectively "Indemnitees") harmless
from and against any and all losses, costs, damages, charges,
claims, legal fees, recoveries, judgments, penalties and/or
reasonable expenses (collectively "Losses") which may be obtained
against, imposed upon, or suffered by Indemnitees by reason of
any breach of any representation or warranty made by OEI and/or
Xxxxx under this Agreement, or by reason of any breach of any
other provision hereof. The foregoing obligation of OEI to
indemnify and hold Indemnitees harmless shall survive termination
or expiration of this Agreement.
2. Buyers shall indemnify and hold OEI and Xxxxx, and each of
them, harmless from and against any and all Losses which may be
obtained against, imposed upon, or suffered by OEI and/or Xxxxx
by reason of the exhibition of the advertising materials produced
hereunder or the sale or use of the Product Line advertised
therein, or by reason of any breach of any representation or
warranty made by Buyers under this Agreement or of any other
provision hereof. The foregoing obligation of Buyers to
indemnify and hold OEI and Xxxxx harmless shall survive
termination or expiration of this Agreement. For the duration of
the Term of this Agreement, and thereafter for so long as the
Product Line is marketed by Buyers (or by any Buyers affiliate,
subsidiary, successor, or assign) and the insurance coverage
described herein is available, Buyers shall include OEI and Xxxxx
as additional named insureds on Buyers's commercial general
liability insurance policy (including coverage for product
liability) and advertising liability policy with combined limits
of not less than $3,000,000, and shall provide OEI and Xxxxx,
upon request, with certificates of insurance evidencing such
coverage.
6. Right to Examination: At any time within eighteen (18)
months after a statement is rendered hereunder, OEI shall have
the right to examine Buyers' books and records evidencing its
Product Line membership activations and membership statuses for
the subject period solely for the purpose of determining the
accuracy of such statement. The examination (i) shall be
conducted by a CPA firm selected by the OEI which is a member in
good standing of the AICPA and the State society, after
reasonable advance written notice from OEI to Buyers, (ii) shall
be commenced and conducted during Buyers' normal business hours
at the offices of Buyers or its accounting representative, and
(iii) shall be conducted at OEI's sole cost and expense. There
shall not be more than one examination during each year of the
Term. Notwithstanding clause (iii), above, in the event it is
mutually determined by Buyers and OEI, or by arbitration pursuant
to Paragraph 10, below, that OEI has been underpaid in an amount
in excess of four (4%) percent of the contract rate of
compensation, Buyers shall pay the reasonable costs of such
examination (excluding travel, living and other personal expenses
of the examiner). All statements rendered by Buyers under this
Agreement shall be final and binding on OEI, unless specific
objections thereto are made and delivered in writing within
eighteen (18) months from the date any such statement is
delivered to OEI. Once the records for any accounting period
have been inspected by OEI, such records shall not be the subject
of a later inspection. Further, with respect to each inspection,
OEI must notify Buyers within ninety (90) days following
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completion of the inspection of any claim it asserts for money
due and owing it as a result of a prior underpayment, in the
absence of which Buyers' accounting statements for the examined
period shall be deemed accurate and any claim of OEI for money
due and owing in connection therewith shall be deemed waived.
Buyers shall have the right to condition disclosure of
information to OEI and its agents, in connection with any
inspection under this paragraph, upon Buyers's receipt of a non-
disclosure agreement, acceptable in form and content to Buyers
and duly executed by OEI and any agent of OEI receiving such
information.
7. No Warranty Re Revenues: The parties understand and agree
that there is a substantial risk in any new venture and that
neither party is making any warranty or representation regarding
the total amount of revenues which will ultimately be generated
pursuant to this Agreement, other than the Guaranty set forth in
Paragraph 2F(3), above.
8. Successors and Assigns: Subject to the restrictions on
delegation of duties contained elsewhere in this Agreement, this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective executors, administrators,
heirs, successors, and assigns, as the case may be.
9. Exclusivity: Commencing upon execution of this Agreement
and continuing thereafter through the Initial One Year Term and
each Renewal Term, neither OEI nor Xxxxx shall in any way
develop, manufacture, endorse, or market, or appear in any form
of advertisement of any kind for the purpose of endorsing or
marketing, any other consumer buying club (as described in
paragraph 1A, above). For purposes of clarification, this
Paragraph shall not prohibit Xxxxx from: (i) appearing in
advertisements for individual products competitive in category
with individual products marketed by Buyers, provided that Xxxxx
does not thereby (directly or indirectly) endorse another
consumer buying club, or (ii) continuing to operate his own Web
site.
10. Attorney's Fees: In the event that any legal proceeding is
commenced to enforce any term of this Agreement or to seek
recovery for any breach thereof, the prevailing party in such
action shall be entitled to recovery of its reasonable attorney's
fees and actual costs incurred in such action. Any controversy
or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by an expedited arbitration to
be conducted by the American Arbitration Association (utilizing
one arbitrator) in the City of Los Angeles, State of California,
and judgment on the award rendered by the arbitrator, which shall
be prompt and timely, may be entered in any Court having
jurisdiction thereof. In order to accomplish the foregoing, the
parties hereby consent to jurisdiction of this matter in the
County of Los Angeles, State of California. The parties shall
have the right to engage in reasonable discovery in connection
with any such arbitration. The arbitrator shall be entitled to
award expenses to the prevailing party, inclusive of reasonable
attorney's fees. The parties shall endeavor, to the extent
reasonably feasible, to keep any dispute arising hereunder
confidential, and the arbitrator shall have authority to enforce
and interpret this duty of reasonable confidentiality.
11. Controlling Law: This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
12. Entire Agreement: This Agreement contains the entire
agreement of the parties and supersedes any prior agreements,
understandings and memoranda relating thereto. This Agreement
may not be changed, altered or modified in any way except by a
writing signed by the parties hereto.
13. Severability: If any clause or provision of this Agreement
shall be adjudged to be invalid or unenforceable, such
adjudication shall not affect the validity of any other clause or
provision of this Agreement, which shall remain in full force and
effect.
14. Consent in the Event of Death: The parties agree that, in
the event of Xxxxx'x death during the Initial One Year Term or
any Renewal Term, Buyers shall have the option to continue
marketing the Product Line utilizing Xxxxx'x Endorsement in
connection therewith for the duration of the Initial One Year
Term and all Renewal Terms (if any) under the same terms and
conditions as set forth in this Agreement. In the event that
Buyers shall instead elect to terminate such marketing, Buyers
shall pay to OEI the Royalty as provided in Paragraph 2F(1),
above, on each Product Line origination or renewal generated
through the date of termination (and on each Product Line
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origination or renewal generated thereafter in response to any
direct response advertisements which utilized Xxxxx'x
Endorsement, but on no other Product Line sales), and the
Guaranty provided in Paragraph 2F(3) shall be prorated to date of
termination.
15. Ownership of Product Line and Advertising Materials: The
Product Line and all advertising materials produced hereunder
will be and remain the absolute property of Buyers forever,
including, but not limited to, all intellectual property
interests therein. OEI and Xxxxx acknowledge that they have no
right, title, or interest in or to same and hereby assign all
rights to the Product Line and advertising materials to Buyers.
To the extent required under the applicable copyright laws
regarding ownership of any advertising materials produced
hereunder or the content or use thereof, the product of the
services of OEI and Xxxxx hereunder will be considered works made
for hire or, if not legally capable of being considered as such,
then and in such event OEI and Xxxxx hereby assign to Buyers any
and all right, title or interest they may have in or to such
advertising materials. Notwithstanding the foregoing, it is
agreed that, except as otherwise permitted herein, Buyers may not
use Xxxxx'x Endorsement after the termination or expiration of
this Agreement.
16. Independent Contractor: It is understood and agreed that
the relationship of OEI and Xxxxx to Buyers is that of an
independent contractor, and nothing contained in this Agreement
shall be construed to create any partnership, joint venture,
principal/ agent relationship, or any other fiduciary
relationship between the parties hereto. The parties expressly
disclaim the existence of any third party beneficiaries to this
Agreement.
17. Approvals: OEI and Xxxxx shall have the right of approval
over all images, signatures, photographs and likenesses of Xxxxx,
and all other references to Xxxxx, utilized in the infomercial,
commercials, print advertisements or otherwise; the infomercial
and commercial scripts; and any press releases relating to a Roll-
Out. Once an item has been approved by OEI and/or Xxxxx under
this Paragraph, it need not again be submitted by Buyers for
approval for subsequent consistent uses, so long as no material
changes are made with respect to such item or the use thereof.
All rights of approval shall be exercised in a fair and
reasonable manner, with no such approval being unreasonably
withheld. In all instances where the right of approval is
provided, same shall be given, or the reasons for objection shall
be given, within five (5) business days following receipt by OEI
and/or Xxxxx (as the case may be) of a written request for
approval. In order to facilitate the processing of approvals,
OEI and Xxxxx agree to reasonably advise Buyers of their travel
plans during time periods when requests for approval are likely
to be forthcoming.
18. Confidentiality: The parties acknowledge that the terms and
provisions of this Agreement, and any disputes arising hereunder,
are confidential in nature and, therefore, agree not to disclose
the content or substance thereof to any third parties other than
their attorneys (unless affiliated by common ownership,
employment, or other form of agency relationship), other than as
may be reasonably required in order to comply with any
obligations imposed by the Agreement, or to comply with any
statute, ordinance, rule, regulation, other law, court order or
civil proceeding.
19. Notices: All notices to be sent pursuant to this Agreement
shall be sent via Federal Express, Express Mail, or confirmed
facsimile transmission, to the persons identified below at the
designated addresses (or at such new addresses as the parties may
hereinafter notify each other in writing):
Buyers Xxxxxx.xxx Mr. Xxx Xxxxx
Buyers Xxxxxx.xxx
00 Xxxx Xxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
(000) 000-0000 - telephone
(000) 000-0000 - facsimile
D. Xxxx Xxxxxxxxxxx, Esq.
Hall Xxxxxxx Xxxx Xxxxxxxx & Xxxx
0000 Xxxxxxx Xxxx Xxxx
X-00
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
(000) 000-0000 - telephone
(000) 000-0000 - facsimile
Olive Enterprises, Inc. Xx. Xxxx XxXxxxx
and Xxxx Xxxxx: Olive Enterprises, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
(000) 000-0000 - telephone
(000) 000-0000 - facsimile
Xx. Xxxxxx X. Xxxxx
Xxxxx Enterprises, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
(000) 000-0000 - telephone
(000) 000-0000 - facsimile
Behr Xxxxxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxx Xxxx, Esq.
(000) 000-0000 - telephone
(000) 000-0000 - facsimile
20. Force Majeure: If, for any reason, such as strikes,
boycotts, war, weather, other acts of God, riots, delays of
commercial carriers, restraints of public authority, or for any
other reason beyond the control of Buyers and outside the normal
scope of commercial restraints (collectively "Force Majeure"),
Buyers is unable to air the infomercial and/or commercials at all
during any part of the Initial One Year Term or any Renewal Term
hereof, then Buyers shall have the right to extend the affected
Term for an equivalent period (not to exceed ninety (90) days in
total) without payment of any additional compensation to OEI or
Xxxxx (but with payment of the Royalty pursuant to Paragraph 2F).
In the event such Force Majeure causes the prevention, suspension
or postponement of any production session for the infomercial,
commercials or still photography to be produced under this
Agreement, the time for completion of such session(s) shall be
extended, at the election of Buyers and with no additional
compensation being payable to OEI or Xxxxx in connection
therewith, by the number of days equal to the number of days for
which the production session was prevented, suspended, or
postponed (but not to exceed ninety (90) days in total and, in
any event, only to the extent not prohibited by the applicable
union contract having jurisdiction over the production).
21. Applicable Union Agreements: This Agreement is subject to
all of the terms and conditions of the representative contracts
of the union(s) having jurisdiction over the services covered by
this Agreement, except as same may be, and are hereby,
superseded, amended, or supplemented.
22. Agency Fees: Each party hereby represents to the other that
no agent, broker or finder is entitled to any fee or commission
in connection with this Agreement or the transaction contemplated
hereby.
23. Representation by Counsel: Each party represents and
warrants that it has been represented by legal counsel of its own
choosing in the negotiation and drafting of this Agreement; that
it has read this Agreement; that it understands all of its terms;
that the contents of this Agreement have been explained to it by
its counsel; and that this Agreement is executed voluntarily and
with full knowledge of its significance.
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Buyers Xxxxxx.xxx Olive Enterprises, Inc.
By: By:
Mr. Xxx Xxxxx
I hereby represent and warrant that Olive Enterprises, Inc. is
authorized to grant and assign the rights, and furnish my
services, as hereinabove set forth in this Agreement, and I agree
to be bound by the terms and conditions of this Agreement.
Xxxx Xxxxx
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