EXHIBIT 10(q)
PROMOTION AGREEMENT
XXXXXXXX, INC., XXXXX X. XXXXX III
AND XXXXX ENTERPRISES, LTD.
THIS AGREEMENT is entered into by and among XXXXXXXX, INC. (the "Company"
or "Xxxxxxxx"), XXXXX X. XXXXX III ("Xxxxx") and XXXXX ENTERPRISES, LTD. ("Xxxxx
Enterprises"), effective as of October 31, 2002.
WHEREAS, the Company desires to retain Xxxxx and Xxxxx Enterprises to
provide certain promotional and other services and Xxxxx and Xxxxx Enterprises
are willing to provide such services on the terms and conditions set forth
herein; and
WHEREAS, the parties hereto desire to set forth in writing their agreement
as to such promotion arrangement.
NOW, THEREFORE, in consideration of mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
I.
DEFINITIONS
As used herein, the terms set forth below shall defined as follows:
1.1 ENDORSEMENT shall include only the right to use the name, any
nickname, initials, autograph, facsimile signature, photograph, portrait,
likeness, and/or endorsement of Xxxxx.
1.2 XXXXXXXX APPAREL shall mean all Xxxxxxxx(R) brand sportswear apparel
contained in the Company's present and future collections during the Term.
1.3 XXXXXXXX PRODUCTS shall mean, collectively, Xxxxxxxx Apparel and
Xxxxxxxx(R) brand hats and shoes (whether manufactured by Xxxxxxxx or
manufactured by a licensee of Xxxxxxxx).
1.4 DISABILITY shall mean mental or physical illness or condition
rendering Xxxxx incapable of fulfilling the Services (hereafter defined) to be
provided by him under this Agreement for a continuous period of at least sixty
(60) days.
1.5 PREMIUM PROGRAM shall mean any traffic builder or other program
involving the use of a premium to sell products or services other than Xxxxxxxx
Products and shall include any program primarily designed to attract the
consumer to purchase a product or service other than Xxxxxxxx Products
themselves.
1.6 CONTRACT YEAR shall mean a period of twelve (12) successive months
commencing on any first day of November during the Term, however, in the case of
the period
commencing on November 1, 2005 and ending on January 15, 2007, "Contract Year"
shall mean such fourteen (14) month and two (2) week long period.
II.
TERM OF RELATIONSHIP
2.1 GRANT AND ACCEPTANCE. The Company hereby retains Xxxxx and Xxxxx
Enterprises to provide the below described services (the "Services") and Xxxxx
and Xxxxx Enterprises agree to provide the Services upon the terms and
conditions herein set forth.
2.2 TERM. Except as otherwise provided herein, this Agreement shall
commence effective November 1, 2002, and shall continue for a term expiring
January 15, 2007 (the "Term").
III.
SERVICES
Xxxxx and Xxxxx Enterprises shall furnish the following Services.
3.1 ENDORSEMENT. Subject to the terms and conditions hereof, Xxxxx and
Xxxxx Enterprises grants to the Company the Endorsement throughout the world
during the Term in connection with the advertisement, promotion and sale by the
Company of Xxxxxxxx Products except in connection with Premium Programs.
3.2 XXXXXXXX APPAREL AND PRODUCTS. Subject to any restrictions,
contractual or otherwise, on Xxxxx or Xxxxx Enterprises for which Xxxxx or Xxxxx
Enterprises is compensated therefor (collectively, the "Restrictions"), Xxxxx
shall wear Xxxxxxxx Products, when possible and as reasonably appropriate, while
broadcasting all professional sports tournaments and other professional sports
outings, and during any professional sports clinics or instructions given by
Xxxxx or Xxxxx Enterprises; provided that the Company has provided Xxxxx, at no
charge, with sufficient amounts of Xxxxxxxx Products in styles and sizes Xxxxx
finds suitable and appropriate for his use.
3.3 LOGOS. Except as otherwise provided herein, and subject to the
Restrictions, Xxxxx and Xxxxx Enterprises agree that such Xxxxxxxx Products
used, promoted or sold in connection with the Endorsement or Services may
prominently bear the Company's logo and shall not bear any other logos.
3.4 PHOTOGRAPHY, SPEAKING AND STORE APPEARANCES. Xxxxx agrees to be
available for up to four (4) photography sessions (two (2) in Southern
California on weekdays and two (2) to be at Xxxxx'x work site locations or
tournaments), two (2) speaking engagements, and three (3) store appearances each
Contract Year, at times and places mutually convenient for Xxxxx and the Company
but in no event at times which adversely impact on the schedules of Xxxxx or
Xxxxx Enterprises. Xxxxx Enterprises shall have the right to review and reject
in good faith the use of any advertising, promotion or other programs and
materials which include Xxxxx or his image. No use shall be made of any such
programs or materials hereunder unless and until the same has been approved by
Xxxxx Enterprises. The Company agrees that each photography session shall not
exceed one and one-half (1 1/2) days and each speaking engagement and store
2
appearance shall not exceed one-half (1/2) day. The Company further understands
that failure to utilize the Services of Xxxxx pursuant to this section shall not
result in any reduction in payments to Xxxxx Enterprises hereunder, nor may the
obligations to provide the Services be carried forward from one Contract Year to
another Contract Year. The obligations of Xxxxx and Xxxxx Enterprises to provide
the Services hereunder are subject to the condition that payments to Xxxxx
Enterprises are current and up to date.
3.5 NEW ACCOUNTS, CELEBRITIES. Xxxxx agrees to assist Xxxxxxxx in locating
potential new accounts based on his professional contacts, assist Xxxxxxxx in
gaining access to celebrities and executives of CBS Broadcasting, Inc.
(including its affiliates, "CBS") which Xxxxxxxx could provide clothes for
special events and also assist in gaining access to non-golf professionals who
potentially would wear Xxxxxxxx clothes.
3.6 SPECIAL EVENTS. Xxxxx will assist Xxxxxxxx in creating, promoting and
participating in events (i.e., golf tournament, cocktail reception, etc.) to be
associated with major sporting events (i.e., PGA Championship, Masters, etc.).
3.7 INDEPENDENT CONTRACTOR. Xxxxx and Xxxxx Enterprises shall furnish the
Services as independent contractors and not as employees of the Company, and
nothing herein shall be construed to constitute Xxxxx or Xxxxx Enterprises as an
employee of the Company. The parties hereto acknowledge and agree that as
independent contractors of the Company, Xxxxx and/or Xxxxx Enterprises are only
interested in the results of the Services provided to the Company under the
terms of this Agreement, and not as to the means by which the Services are
provided. Xxxxx and Xxxxx Enterprises have no power or authority to act for,
represent, or bind the Company in any manner pursuant to this Agreement and
shall not hold themselves out as employees of the Company. Xxxxx and Xxxxx
Enterprises shall not be entitled to any benefits provided by the Company to its
employees, including, for example, workers' compensation insurance, vacation or
sick pay. Because Xxxxx and Xxxxx Enterprises are retained as independent
contractors and not as employees, the Company, Xxxxx and Xxxxx Enterprises
acknowledge and agree that no federal and state taxes or social security
contributions shall be made by the Company from the payments made to Xxxxx or
Xxxxx Enterprises pursuant to Article VII hereof and that Xxxxx and Xxxxx
Enterprises will remain solely liable for the payment of all such taxes. Xxxxx
and Xxxxx Enterprises further acknowledge that the Company will report
compensation paid pursuant to this Agreement on a Form 1099 at the end of the
year in which the Services were provided. Xxxxx and Xxxxx Enterprises hereby
expressly covenant to make such tax payments (when due) as may be required by
applicable law. Xxxxx and Xxxxx Enterprises shall indemnify the Company for any
claims, losses, costs, fees, liabilities, damages or injuries suffered by the
Company that arise out of Xxxxx'x or Xxxxx Enterprises' breach of this Section
3.7.
3.8 OTHER OBLIGATIONS. The Company acknowledges that Xxxxx'x and Xxxxx
Enterprises' obligations to CBS or any other television station or network with
which Xxxxx or Xxxxx Enterprises has a contract or arrangement shall take
precedence over any other commitments of Xxxxx or Xxxxx Enterprises under this
Agreement.
3
IV.
CONFIDENTIALITY/NONDISCLOSURE
Xxxxx and Xxxxx Enterprises each recognizes and acknowledges that the
business of the Company involves certain confidential and proprietary
information which must be protected in order to ensure the success and survival
of the Company. Xxxxx and Xxxxx Enterprises each agrees that, except as required
by law, he or it will not disclose such proprietary information or any part
thereof to any third party except for purposes within his or its scope of duties
and responsibilities hereunder or as specifically authorized or agreed to in
writing by the Company. In the event that Xxxxx or Xxxxx Enterprises is required
by applicable law or by legal process to disclose any proprietary information or
any other information concerning the Services, Xxxxx and Xxxxx Enterprises agree
that they will provide the Company with prompt notice of such requirement in
order to enable the Company to seek an appropriate protective order or other
remedy or to consult with Xxxxx and Xxxxx Enterprises with respect to the
Company taking steps to resist or narrow the scope of such requirement. In any
such event, Xxxxx and Xxxxx Enterprises will use their reasonable best efforts
to ensure that all proprietary information and other information that is so
disclosed will be accorded confidential treatment. In the event of actual or
threatened breach of this provision, the Company, in addition to any other
remedies afforded in equity or law, shall be entitled to injunctive relief
restraining Xxxxx and/or Xxxxx Enterprises from breaching this provision.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach, including
the recovery of damages, costs, and attorney fees. Xxxxx and Xxxxx Enterprises
each agrees that this provision shall continue perpetually and shall survive the
termination of this Agreement.
For the purposes of this Article IV, the term "proprietary information"
means (a) all information delivered, before or after the date of this Agreement,
in writing and designated as "proprietary," "confidential," "secret" or by
similar designation; or information (whether or not in writing) as to which
Xxxxx or Xxxxx Enterprises, prior to or essentially concurrent with such
disclosure, is made aware by the Company (or a representative of it) that
proprietary information may be or is being disclosed and (b) all information
relating to the Company's business opportunities, business plans, negotiations,
technical or business information, internal studies, manuals, documentation,
codes, software, customer lists, copyrighted or patented materials, discoveries,
inventions and manufacturing techniques. Information will not be deemed
proprietary information if (i) it is previously well known and in the public
domain without the fault of Xxxxx or Xxxxx Enterprises or (ii) it was previously
received Xxxxx or Xxxxx Enterprises from a third person under circumstances
permitting its disclosure to Xxxxx or Xxxxx Enterprises.
V.
INDEMNIFICATION
Neither Xxxxx nor Xxxxx Enterprises shall be liable for any obligations of
the Company resulting directly or indirectly from the Endorsement of Xxxxxxxx
Products. The Company shall protect, indemnify and hold harmless each of Xxxxx
and Xxxxx Enterprises against any and all expenses, damages, claims, suits,
actions, judgments and costs whatsoever, arising out of, or in any way connected
with such Endorsement, in any advertising or promotional materials furnished by
or on behalf of the Company, actions or omissions of the Company or any claim or
4
action for personal injury, death or other cause of action involving alleged
defects in Xxxxxxxx Products, including but not limited to indemnification of
reasonable legal expenses incurred in defense of all such claims. Further, Xxxxx
or Xxxxx Enterprises shall have the right to select legal counsel to represent
it or him in the event of any such claims or legal proceedings, and the costs of
such legal representation shall be paid by the Company.
VI.
INSURANCE
The Company agrees to provide and maintain, at its own expense,
advertising and product liability insurance each with limits no less than
$5,000,000 and within thirty (30) days from the date hereof, the Company will
submit to Xxxxx Enterprises a fully paid policy or certificate of insurance
naming Xxxxx and Xxxxx Enterprises as insured parties, requiring that the
insurer shall not terminate or materially modify such without written notice to
Xxxxx Enterprises at least twenty (20) days in advance thereof.
VII.
COMPENSATION AND CONSULTING FEES
As full compensation for Services, the Company shall pay Xxxxx Enterprises
the following fees:
7.1 CONSULTING FEE. The Company shall pay Xxxxx Enterprises an annual
consulting fee (payable, except for the Contract Year ending January 15, 2007 as
provided hereafter, in equal quarterly installments on or prior to the 1st day
of each December, March, June and September of each Contract Year or the
business day preceding such date if such date falls on a Saturday, Sunday or
holiday) as follows:
Contract Year Annual Fee
------------- ----------
November 1, 2002 - October 31, 2003 $235,000
November 1, 2003 - October 31, 2004 $345,000
November 1, 2004 - October 31, 2005 $345,000
November 1, 2005 - January 15, 2007 $450,000
The installments of the annual consulting fee shall be paid by Company
check payable to Xxxxx Enterprises and mailed to:
Xxxxx Enterprises, Ltd.
c/o Madigan Capital Management
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
The annual consulting fee for the Contract Year ending January 15, 2007
shall be paid in quarterly installments of $12,500 (installments due on or prior
to each of December 1, 2005;
5
March 1, 2006; June 1, 2006; and September 1, 2006) with the balance of $400,000
to be paid in full by January 15, 2007. The Company, at its sole option, may pay
all or a portion of the $400,000 balance of the annual consulting fee for the
Contract Year ending January 15, 2007 in registered common stock of the Company,
valued at the Fair Market Value (hereafter defined) on the date such stock is
issued.
For the purposes of this Section 7.1, the "Fair Market Value" of a share
of the Company's common stock as of a particular date means the arithmetic mean
of the closing sale prices of the stock for the ten (10) consecutive trading
days ending on January 5, 2007, on the primary exchange upon which the stock, as
measured by volume, trades (The Nasdaq National Market as of the date hereof),
as published in The Wall Street Journal, or, if no sale price was quoted for any
such date, then as of the next preceding date on which such a closing sale price
was quoted.
7.2 ADDITIONAL FEES. If Xxxxx agrees to participate in more than three (3)
store appearances in any given Contract Year, the Company shall pay Xxxxx
Enterprises an additional fee of $7,500 for each such additional appearance
prior to or simultaneously with such appearance.
7.3 REIMBURSEMENT OF EXPENSES. The Company, shall reimburse Xxxxx
Enterprises for expenses reasonably incurred by Xxxxx or Xxxxx Enterprises in
connection with the Services to the Company including, but not limited to,
first-class airfare, hotel accommodations, local transportation and meals. Xxxxx
Enterprises shall furnish the Company with an itemized statement from time to
time, together with, whenever possible, actual bills, receipts, and other
evidence of expenditure. Xxxxx Enterprises shall be reimbursed within thirty
(30) days after receipt by the Company of such itemized statements and
attachments.
7.4 APPAREL. The Company shall furnish Xxxxx, at no cost, with
sufficient Xxxxxxxx Products to be used by him in connection with the Services
and for the personal use of Xxxxx and his immediate family. The cost of said
Product shall not exceed $12,000 (at wholesale) during any single Contract Year.
VIII.
EXCLUSIVITY
During the Term, neither Xxxxx nor Xxxxx Enterprises shall enter into any
activity, employment, independent contract, or other business arrangement which
conflicts with Xxxxx'x or Xxxxx Enterprises' obligations under this Agreement or
perform any service which reasonably appears to be an endorsement of the
sportswear apparel, hats or shoes of a third party without the Company's prior
written approval. Xxxxx and Xxxxx Enterprises expressly agree that the
Endorsement will not be granted to anyone other than the Company for use during
the Term in connection with the advertisement and promotion of sportswear
apparel, hats and shoes. Notwithstanding the foregoing Xxxxx shall be permitted
to wear a Titleist hat or clothing logo when performing promotional services for
Titleist and to use Titleist equipment when performing any promotional services
for the Company in which equipment will be used.
6
IX.
TERMINATION
9.1 TERMINATION BY THE COMPANY OR XXXXX/XXXXX ENTERPRISES. This Agreement
may be terminated by the Company, on the one hand, or by Xxxxx and Xxxxx
Enterprises, jointly, on the other hand, in the following circumstances:
9.1.1 Upon mutual consent of the Company, on the one hand, and Xxxxx
and Xxxxx Enterprises, on the other hand;
9.1.2 Xxxxx'x Disability or death, in which event the Agreement
shall terminate on the November 1 next following such Disability or death;
9.1.3 Failure by the Company, on the one hand, or Xxxxx and/or Xxxxx
Enterprises, on the other hand, to comply with the terms and conditions of
this Agreement after being given notice thereof and, where cure is
possible, a reasonable opportunity to cure the failure (such reasonable
notice period shall be ten (10) days in the event of a failure to timely
make a payment pursuant hereto; thirty (30) days otherwise). In order to
be a sufficient notice hereunder, any such written notice shall specify in
detail each item of default, and shall specify in detail the action the
defaulting party is required to take in order to cure each items; or
9.1.4 Notwithstanding the foregoing, upon the occurrence of repeated
intentional failures to comply with the terms and conditions of this
Agreement, which have been noticed in accordance with the terms hereof
(regardless of whether such failures have been cured), the Company, on the
one hand, or Xxxxx and Xxxxx Enterprises, on the other hand, as the
non-defaulting party(ies) may immediately terminate this Agreement upon
written notice to Xxxxx and Xxxxx Enterprises, on the one hand, or the
Company, on the other hand, as the defaulting party without affording a
further opportunity to cure.
9.2 TERMINATION OF AGREEMENT WITH CAUSE. The Company shall have the right,
upon written notice to Xxxxx and Xxxxx Enterprises, to immediately terminate
this Agreement in the following circumstances:
9.2.1 Repeated misconduct of Xxxxx which subjects Xxxxx to continued
public ridicule causing a substantial loss of Xxxxx'x positive public
image;
9.2.2 Xxxxx'x conviction or plea of guilty or no contest to a felony
involving moral turpitude; or
9.2.3 Xxxxx'x or Xxxxx'x Enterprises entry into any activity,
employment, independent contract or other business arrangement which would
result in a materially adverse impact on the value of the Endorsement or
the Services to the Company.
9.3 TERMINATION OF AGREEMENT BY XXXXX/XXXXX ENTERPRISES. Xxxxx and Xxxxx
Enterprises, jointly and not individually, shall have the right, upon written
notice to the
7
Company, to immediately terminate this Agreement within thirty
(30) days following the occurrence or a finding of insolvency or bankruptcy
against the Company.
9.4 Should Xxxxx Enterprises or Xxxxx disagree with the Company as to the
existence of a condition affording the Company the right to so terminate this
Agreement, Xxxxx Enterprises or Xxxxx shall, within thirty (30) days following
the receipt of any such notice of termination, submit the matter to arbitration
pursuant to the provisions of Article XI of this Agreement.
9.5 The termination rights set forth in this Article IX shall not
constitute the exclusive remedy of the non-defaulting party hereunder, however,
and if a 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 Article IX had
been omitted from this Agreement. Termination under the provisions of this
Article IX shall be without prejudice to any rights or claims which the
terminating party may otherwise have against the defaulting party.
9.6 Subject to the provisions of Sections 9.6.1 and 9.6.2, from and after
the expiration of the Term or any early termination of this Agreement, all of
the rights of the Company to the use of the Endorsement shall cease absolutely
and the Company shall not thereafter use or refer to the Endorsement in
advertising or promotion in any manner whatsoever. The Company shall not
thereafter advertise, promote, distribute or sell any item whatsoever in
connection with the use of any name, figure, design, logo, trademark or trade
name confusingly similar to or suggestive of the Endorsement following the
termination of this Agreement.
9.6.1 Notwithstanding anything in this Agreement to the contrary,
unless this Agreement is earlier terminated pursuant to this Article IX,
following the expiration of the Term of this Agreement, the Company shall
be permitted to use the Endorsement through May, 31, 2007 to the extent
the Endorsement is embodied in photographs of Xxxxx taken on or before
October 31, 2006 in connection with the Services rendered under this
Agreement, including any text related to such photographs as may be used
in catalogs and catalog-related materials distributed to customers of the
Company through May 31, 2007.
9.6.2 Further, notwithstanding anything in this Agreement to the
contrary, following any early termination of this Agreement by Xxxxxxxx
pursuant to this Article IX, the Company shall be permitted to utilize for
a period of four (4) additional months following termination any booked
and paid print or other media space or time, and to use or sell any
supplies, inventory or other materials in existence as of the termination
date that makes use of the Endorsement if such advertising, supplies,
inventory or other materials cannot be modified without material cost to
the Company to exclude the Endorsement.
X.
ASSIGNMENT
This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Xxxxx and Xxxxx
Enterprises acknowledge that the Services to be rendered by Xxxxx and Xxxxx
Enterprises are unique and personal. Accordingly,
8
except as otherwise expressly provided below, neither Xxxxx nor Xxxxx
Enterprises shall assign any of their respective rights or delegate any of their
respective duties or obligations under this Agreement without the written
consent of the Company. Nothing herein shall prevent Xxxxx Enterprises from
assigning the monetary benefits of this Agreement to Xxxxx or as it may
otherwise so desire. Further, inasmuch as it is recognized that Xxxxx
Enterprises is the representative of Xxxxx, Xxxxx Enterprises may at any time
assign this Agreement to Xxxxx and, in such event, Xxxxx Enterprises shall have
no further obligation or liability in connection herewith and Xxxxx Enterprises'
relationship with respect to the Company in connection with this Agreement shall
be in all respects the same as if Xxxxx Enterprises had signed this Agreement as
of the Effective Date as an agent for Xxxxx rather than as a principal. In the
event Xxxxx Enterprises commences any bankruptcy proceedings, or a request for
bankruptcy relief is filed against Xxxxx Enterprises, Xxxxx will assume all of
the obligations of Xxxxx Enterprises under this Agreement and the Company will
be entitled to full performance of the obligations of Xxxxx Enterprises and
Xxxxx hereunder solely by Xxxxx. The rights granted the Company hereunder shall
be used only by it and shall not, without the prior written consent of Xxxxx or
Xxxxx Enterprises, be transferred or assigned to any other person or entity. In
the event of the merger or consolidation of the Company with any other entity,
Xxxxx Enterprises shall have the right to terminate the Agreement by so
notifying the Company in writing on or before sixty (60) days after Xxxxx
Enterprises has received notice of such merger or consolidation if and only if,
by virtue of such merger or consolidation Xxxxx or Xxxxx Enterprises would be in
default under or violating any provisions of any agreement to which he or it is
subject and had entered into prior to October 31, 2002.
XI.
ARBITRATION
Unless otherwise mutually agreed to in writing by the Company, Xxxxx and
Xxxxx Enterprises, any controversy or claim arising out of or related to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association or any successor. Each of
the Company, on the one hand, and Xxxxx and Xxxxx Enterprises, on the other
hand, shall select one arbitrator and the two so selected shall select a third.
Failing the selection of an arbitrator by either party or by the two so
selected, the claim or controversy shall be settled by the American Arbitration
Association upon the application of either party. Judgment upon any award of a
majority of the arbitrators filed in a court of competent jurisdiction shall be
binding. The parties hereby incorporate the provisions of Section 1283.05 of the
California Code of Civil Procedure regarding the right to discovery in
arbitration proceedings.
XII.
MISCELLANEOUS
12.1 NOTICES. Any and all notices acquired pursuant to this Agreement
shall be in writing and shall be deemed to have been given or made when
personally delivered or three (3) days following deposit for mailing by first
class U.S. certified or registered mail (return receipt requested), if sent by
telefax, upon confirmation of receipt of telefax transmission, at or to the
addresses and telefax numbers set forth below or such other addresses and
telefax numbers as the parties may direct by notice given as herein provided:
9
If to Xxxxxxxx: Xxxxxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President and Chief Executive Officer
Telephone: (000) 000-0000
Telefax: (000) 000-0000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
Jamboree Center
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
If to Xxxxx or
Xxxxx Enterprises: Xxxxx X. Xxxxx III
Xxxxx Enterprises, Ltd.
c/o IMG
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
12.2 GOVERNING LAW. This Agreement and its formation, operation and
performance shall be governed, construed, performed, and enforced in accordance
with the laws of the State of California, without giving effect to the
principles of conflicts of laws thereof
12.3 JURISDICTION AND VENUE. For the purposes of any dispute arising
hereunder, jurisdiction and venue shall lie in the appropriate court in
California.
12.4 ATTORNEY FEES AND EXPENSES. In any legal action or alternative
dispute resolution instituted to interpret or enforce the terms and/or
conditions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney fees and expenses.
12.5 WAIVER. A waiver by either party of any provision of this Agreement
shall not be deemed a waiver of any other portion of this Agreement. Failure to
require performance of any provision of this Agreement shall not be deemed a
continuing waiver of that provision or any other provision of this Agreement.
12.6 SEVERABILITY. In the event that any provision or any portion of any
provision of this Agreement shall be held invalid, illegal or unenforceable, the
remainder of this Agreement shall remain valid and enforceable.
12.7 CAPTION REFERENCES. All items, headings and captions are for
reference purposes only and do not in any way modify or limit the provisions set
forth thereunder.
10
12.8 FURTHER ASSURANCES. Each party agrees to promptly execute,
acknowledge and deliver such other and further instruments, writings and
documents as may reasonably be requested in writing by any other party to carry
out this Agreement. Each party agrees to use all reasonable efforts and to
exercise good faith in fulfilling its or his obligations under this Agreement.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts (including facsimile), each of which shall be deemed an original,
but all of which together will constitute one and the same agreement.
12.10 XXXXX DIRECTORSHIP. As of the date hereof, Xxxxx serves as a member
of the board of directors of the Company. It is understood by the parties hereto
that Xxxxx shall be compensated for his services and reimbursed for his expenses
as a director of the Company, consistent with the Company's policies regarding
compensation and reimbursement of other non-employee directors of the Company.
It is agreed by the parties that any director's duties or such director
compensation and reimbursement arrangements are separate and distinct from the
agreement for Services hereunder and are not governed in any respect by this
Agreement.
12.11 ENTIRE AGREEMENT. This Agreement contains the entire understandings
and agreement of the parties on the subject matter hereof and supersedes any
prior understandings and/or agreement of the parties. This Agreement may not be
modified or amended without the written consent of all parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the effective date first noted above.
Dated: February 10, 2003 XXXXXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx, Xx.
---------------------------
Name: Xxxxxxx Xxxxxx, Xx.
Title: President
Dated: February 7, 2003 XXXXX ENTERPRISES, LTD., a sole
proprietorship of Xxxxx X. Xxxxx, III
By: /s/ Xxxxx X. Xxxxx III
---------------------------
Name: Xxxxx X. Xxxxx III
Title: President
Dated: February 7, 0000 XXXXX X. XXXXX, III
/s/ Xxxxx X. Xxxxx III
-------------------------------
XXXXX X. XXXXX, III
12
