EXHIBIT 10.10
ENDORSEMENT AGREEMENT
THIS ENDORSEMENT AGREEMENT ("Agreement") is effective as of this 1st day
of December 2003, by and between XXXX XXXXXX, of 000 Xxxxx X0X, Xxxxxxx, XX
00000 ("Xxxxxx") AND RITZ INTERACTIVE, a Delaware Corporation with offices at
0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 ("RII"). (Each or both of
which shall hereinafter be referred to as the "PARTY" or "PARTIES,"
respectively).
RECITALS:
RII desires to obtain the right to use the name, likeness, and endorsement
services of Xxxxxx in connection with the advertisement and promotion of RII's
e-commerce website.
The endorsement by Xxxxxx of RII's e-commerce website and business is of
commercial value.
RII and Xxxxxx wish to enter into an agreement to cooperate and coordinate
the marketing of Norman's endorsement with RII's e-commerce website and
business.
NOW, THEREFORE for and in consideration of the foregoing, and the mutual
covenants and agreements set forth herein, the Parties hereby agree as follows:
1. DEFINITIONS.
The following terms shall be defined in the Agreement as follows:
a) "CONTRACT PERIOD" means that period of time commencing on December
1, 2003 and terminating on November 30, 2008 unless sooner
terminated or extended under this Agreement.
b) "CONTRACT YEAR" means a 365 (or 366 if applicable) day period,
commencing on December 1, 2003.
c) "CONTRACT TERRITORY" shall be worldwide.
d) "E-COMMERCE PORTAL" shall mean, any e-commerce websites owned and/or
operated by RII during the Contract Period, including, but not
limited to, those websites ("Existing Websites") listed in Schedule
A attached hereto; provided, however, except for the Existing
Websites (which will always be deemed included within the E-commerce
Portal), the E-commerce Portal shall not include any non Existing
Websites of RII ("Future Websites") to the extent such Future
Websites are competitive with any websites owned or operated by
parties with whom, after the date of this Agreement, Xxxxxx enters
into a business relationship as to the sale of goods, products or
services competitive with goods, products or services offered for
sale on the Future Websites.
e) "XXXXXX IDENTIFICATION" shall mean any words, symbols, photographic
or graphic representations, and Norman's signature, statements by
Xxxxxx or combination thereof which identify Xxxxxx such as, for
example, Norman's name, voice, nickname, likeness, and anything else
that identifies Xxxxxx. Subject to the terms of Paragraph 2 hereof,
the Xxxxxx Identification shall not include the Shark Logo owned by
Great
White Shark Enterprises, Inc, and exclusively licensed to Reebok
International Ltd.
f) "RIGHTS" shall mean all of the endorsement rights, services and
other rights and benefits granted to RII in this Agreement
(including the right of personal and advertising services as stated
in Paragraph 7 of this Agreement).
g) "RII COMPETITOR" is any person or entity that in any way competes
with the RII E-commerce Portal.
h) "RII PARTIES" is RII, Ritz Camera Centers, Inc., and any Affiliates
of RII. For purposes of this Agreement, "AFFILIATES" means any other
person or entity that directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with, RII.
i) "$" shall mean the lawful currency of the United States of America
unless otherwise specified.
2. ENDORSEMENT AND GRANT OF RIGHTS. During the Contract Period:
a) Subject to the terms of Paragraph 7 below, Xxxxxx will provide and
make available to RII the services, initiatives and programs
described in Schedule B attached hereto (the "Endorsement
Services"); and
b) Xxxxxx grants to RII the exclusive right and license (the "License
Rights") to use the Xxxxxx Identification during the Contract Period
and throughout the Contract Territory in connection with the
advertisement and promotion of RII and the E-commerce Portal;
RII acknowledges that those companies whose products RII sells
through its E-commerce Portal, i.e., Nikon, Shimano, (or private
label), are not permitted to utilize the Xxxxxx Identification, in
either a direct or implied fashion, to suggest that Norman endorses
their products or services. The License Rights are exclusive to RII
and the E-commerce Portal.
3. EXCLUSIVITY. Xxxxxx expressly agrees and undertakes that:
a) The right to use the Xxxxxx Identification has not been previously
granted nor will it be granted to anyone other than RII for use
during the Contract Period within the Contract Territory in
connection with the advertisement, promotion and sale of products
and services which are the same as or similar to any of the
E-commerce website listed in Schedule A;
b) Xxxxxx will not enter into any arrangement or agreement, which
enables any RII Competitor to sponsor or in any way to be seen to
support or be endorsed by Norman (whether by using the Xxxxxx
Identification, Norman providing services similar to the Xxxxxx
Services, or otherwise) during the Contract Period within the
Contract Territory. Notwithstanding the foregoing, it is understood
that Xxxxxx will be free to enter into an affiliation with
interactive groups/entities which are predominantly content based,
i.e., Sportsline, AOL, and further that Xxxxxx shall be free to
enter into an affiliation with companies whose products RII sells
through its E-commerce Portal;
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Anything herein to the contrary notwithstanding, RII shall not have the right to
utilize the Xxxxxx Identification except to the extent specifically authorized
by this Agreement.
4. GRANT OF RII STOCK OPTIONS. Concurrent with the execution of this Agreement,
RII will grant to Xxxxxx an option (the "Stock Option Agreement") entitling
Xxxxxx, upon Norman's full vesting under the terms and conditions described
therein, to purchase one million five hundred thousand (1,500,000) shares of the
common stock of RII, which amount represents approximately five percent (5%) of
the issued and outstanding shares of the capital stock of RII determined on a
fully diluted basis as of the date of this Agreement.
5. FURTHER ENDORSEMENT RELATIONSHIPS.
Without limiting any aspects of this Agreement, the Parties agree to discuss in
good xxxxx Xxxxxx'x involvement in additional activities not covered by this
Agreement, which could be of mutual benefit.
6. PAYMENTS.
Xxxxxx may elect to have payments due Norman hereunder made by check, wire
transfer, or bank transfer. Unless such election is made in writing, all
payments shall be made by check, drawn to the order of Xxxxxx or its designated
entities and delivered to Bessemer Trust Company of Florida, 000 Xxxxx Xxxx Xxx,
Xxxx Xxxx Xxxxx, XX 00000. Past due payments (i.e., payments due more than
thirty (30) days after RII's receipt of the applicable invoice) shall bear
interest at the rate of one (1%) percent per month.
7. NORMAN'S ENDORSEMENT SERVICES AND OUTSIDE PERSONAL APPEARANCES.
(a) Subject to Norman's schedule (taking into account his professional golfing
and other business and personal activities) and Paragraphs 7 (b) and (c)
below, Xxxxxx shall make himself and Norman's Personnel (as defined below)
available from time to time during the Contract Period at his Principal
Place of Business (as defined below) in connection with the performance of
Endorsement Services.
(b) To the extent that RII requests that Xxxxxx appear at a location other
than his Principal Place of Business (an "Outside Personal Appearance") in
connection with the performance of Endorsement Services other than those
specified in Paragraphs 1 and 2 of Schedule B, Xxxxxx will make himself
available to RII for one (1) full day each Contract Year. The timing and
place of such Outside Personal Appearance(s), and any personal and service
days in addition to those stated herein shall be at the discretion of
Norman and subject to further compensation as agreed between Xxxxxx and
RII.
(c) To the extent that RII requests that Xxxxxx make an Outside Personal
Appearance in connection with the performance of the Endorsement Services
specified in Paragraph 2 of Schedule B, Xxxxxx will make himself available
to RII for up to five (5) full days during the term of this Agreement. Any
personal and service days in addition to those stated herein shall be at
the discretion of Xxxxxx and subject to further compensation as agreed
between Xxxxxx and RII.
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(d) For each Outside Personal Appearance to be made by Norman under Paragraphs
(b) and (c) of this Paragraph 7:
i) RII shall reimburse Xxxxxx for all reasonable first class
out-of-pocket expenses incurred by Norman. Without limitation to the
foregoing, RII will reimburse Xxxxxx for his air travel expenses (A)
which for purposes of Outside Personal Appearances made by Norman
under Paragraph (b) of this Paragraph 7, shall be calculated at a
rate of either (1) four thousand ($4,000) dollars per hour for
operation of Norman's private aircraft or (2) one thousand five
hundred ($1,500) dollars per hour for operation of Norman's private
helicopter and (B) which for purposes of Outside Personal
Appearances made by Norman under Paragraph (c) of this Paragraph 7,
shall (unless otherwise agreed) be calculated at a first class
ticket rate. Xxxxxx shall be provided with superior hotel suite
accommodation and standard rooms for four (4) members of Norman's
staff.
ii) RII shall give Xxxxxx not less than thirty (30) days' nor more than
sixty (60) days notice of the time and place RII desires Xxxxxx to
appear at an Outside Personal Appearance.
iii) No such Outside Personal Appearance day shall exceed a total of
twelve (12) hours including travel time.
(e) To the extent that RII requests that Xxxxxx make an Outside Personal
Appearance in connection with the performance of the Endorsement Services
specified in Paragraph 1 of Schedule B, Xxxxxx will make himself available
so as to be able to properly discharge (in accordance with good corporate
practices) his duties as a member of RII's Board of Director. RII
represents that prior to the effective date of this Agreement, whenever
possible and subject to legal requirements, it has attempted to schedule
its Board of Directors' meetings at times and places which take into
consideration the availability and outside business demands of its
directors. For each Outside Personal Appearance to be made by Norman under
Paragraph 1 of Schedule B, RII shall reimburse Xxxxxx for all reasonable
out-of-pocket expenses incurred by Norman consistent with the
reimbursement policy applicable to the other members of its Board of
Directors.
(f) For purposes of this Agreement, Norman's Principal Place of Business,
shall mean any location within twenty (20) miles of 000 Xxxxx X0X,
Xxxxxxx, XX 00000.
8. NORMAN'S COOPERATION.
In addition to the Endorsement Services, to the extent agreed upon in advance by
both RII and Xxxxxx (i) Xxxxxx will cause his personnel and the personnel of
Great White Shark Enterprises and it Affiliates (collectively, "Xxxxxx
Personnel") to assist RII in furthering business-to-business related
opportunities and (ii) the expenses of the Norman Personnel will be reimbursed
and shared with other client activities that may be visited at the same time.
9. GENERAL OBLIGATIONS.
During the contract period, RII/Xxxxxx:
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a) Shall not be involved in any conduct or activity that brings
Xxxxxx/RII into disrepute;
b) Shall not be involved in any conduct or activity that may harm
RII/Xxxxxx or its name or reputation;
c) Will perform obligations under this Agreement to the best of
Norman's/RII's ability and in accordance with RII's/Norman's
reasonable discretion.
10. NORMAN'S TITLE.
Norman's title to the Xxxxxx Identification shall at no time suffer by any act
of RII or thing that will in anyway impair the rights of Norman in and to the
Xxxxxx Identification. It is understood that RII shall not acquire and shall not
claim title to the Xxxxxx Identification adverse to Xxxxxx: by virtue of
Norman's performance of the Endorsement Services or the License Rights granted
to RII; or through RII's use of the Xxxxxx Identification by RII at common law;
or under any provision of law in which a claim would accrue to Norman. RII shall
undertake all actions that may be necessary or appropriate to ensure that such
accrual shall be duly recognized.
11. NORMAN'S APPROVAL.
RII shall use the Xxxxxx Identification only in such a form and manner as is
specifically approved by Norman and, upon the reasonable request by Xxxxxx,
shall use any reasonable legends, markings, and notices of trademark rights or
registration reasonably specified by Xxxxxx, or any other notice of Norman's
ownership, including copyright. RII agrees that all use of the Xxxxxx
Identification in connection with advertising, displays, and other materials and
all advertising shall not be made unless and until finished samples of such
proposed use have been provided to Xxxxxx and such use has been approved by
Xxxxxx or Xxxxxx'x authorized representative. Xxxxxx agrees that any material
advertising or other, submitted for approval as provided herein will be deemed
to have been approved by Norman if the same is not disapproved in writing within
ten (10) business days after receipt thereof. Xxxxxx agrees that any material
submitted would only be disapproved if such material breached any law or is
likely to bring Xxxxxx into disrepute or ridicule or damages Norman's name and
image and, if disapproved, RII shall be advised of the specific grounds for
disapproval. Subject to this Agreement, RII agrees to follow Norman's reasonable
instructions and guidelines regarding proper usage of the Xxxxxx Identification
in all respects as may have been reasonable notified to RII by the Norman.
12. QUALITY AND COOPERATION.
In addition to the objectives listed above, all Parties acknowledge that Xxxxxx
is of legendary status in the game of golf. RII shall ensure that the
presentation and operation of its E-commerce Portal is consistent with the high
quality and image associated with Xxxxxx and reflect a quality brand of products
and services.
13. CONFIDENTIALITY.
Each party agrees: (i) that it will not disclose to any third party or use any
Confidential Information disclosed to it by the other party except as expressly
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permitted in this Agreement; and (ii) that it will take all reasonable measures
to maintain the confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be less than the
measures it uses to maintain the confidentiality of its own information of
similar importance.
14. PROTECTION OF THE XXXXXX IDENTIFICATION.
a) REGISTRATION. Xxxxxx shall be solely responsible for obtaining and
maintaining, to the extent possible, trademark registrations in his
own name for the Xxxxxx Identification in Contract Territory. RII
agrees that it will not file, during the Contract Period or
thereafter, any application for trademark or otherwise obtain or
attempt to obtain for trademark registration or otherwise obtain or
attempt to obtain ownership of any trademark registration or
otherwise obtain ownership of any trademark or trade name anywhere
in the world which consists in whole or in part of any constituent
element of the Xxxxxx Identification, including without limitation,
Xxxx Xxxxxx, Great White Shark Enterprises, or any xxxx, design or
logo intended to make reference to the Xxxxxx Identification,
without the express written consent of Xxxxxx which may be within in
Norman's sole and absolute discretion. In the event that such
consent is given, all applications for registration shall be in the
name of Xxxxxx and shall be at the cost of RII. RII shall cooperate
with Xxxxxx in the registration of the Xxxxxx Identification and
provide any necessary use, information, or specimens; provided,
however, Xxxxxx shall reimburse RII for any reasonable out-of-pocket
expenses incurred by RII in so providing such cooperation.
b) ENFORCEMENT. If either Party discovers that the registered trademark
Rights set forth in Paragraph 14(a) are infringed, that Party shall
communicate the details to the other Party. RII shall cooperate
fully with Xxxxxx in the defense and protection of the Xxxxxx
Identification (provided, however, RII shall not be obligated to
incur any out-of-pocket expenses in so providing such cooperation),
and agrees to notify Xxxxxx of any adverse use in the Contract
Territory of marks identical with or confusingly similar to the
Xxxxxx Identification which come to RII's attention, or any other
activity which RII reasonably determines may implicate the rights
included in the Xxxxxx Identification, including without limitation
Norman's right to publicity and/or privacy. Decisions involving the
protection and defense of the Xxxxxx Identification and Norman's
right to publicity and/or privacy shall be solely in the discretion
of Xxxxxx; RII shall take no actions in this regard without the
express written permission of Xxxxxx, which approval shall not be
unreasonably withheld (for example, if an RII Competitor falsely
represents that it has an association with Xxxxxx in the Contract
Territory within the Contract Period, RII may want to take action
against the RII Competitor alleging, among other things, false and
misleading conduct, in which case Xxxxxx will consent to such
action). Xxxxxx reserves the right to prosecute, defend, and conduct
at its own expense all proceedings involving the Xxxxxx
Identification and Norman's right to publicity and
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privacy, and to take any action or institute any proceedings that it
may deem proper or necessary for the protection of the Xxxxxx
Identification and Norman's right of publicity and/or privacy.
Xxxxxx may, at Norman's sole option, conduct proceedings in his own
name and RII agrees that it will not claim or reserve any rights
against Xxxxxx as a result of any such action or proceeding. If
Xxxxxx conducts such proceedings solely at his expense then any
damages, which may be recovered as a result of any such proceeding,
shall vest solely in Xxxxxx. However, if RII contributes to the cost
of such proceedings, Xxxxxx agrees to pay to RII such proportion of
those damages recovered by Norman as contributed by RII.
Furthermore, RII shall not be entitled to grant permission to any
other person or entity to apply the Xxxxxx Identification to any
goods or services, otherwise than as permitted by this Agreement.
15. TERMINATION AND DEFAULT.
a) TERMINATION FOR BREACH. Either Party shall have the right, without
prejudice to any other rights it may have, to terminate this
Agreement if the other Party materially breaches its obligations
hereunder and such breach remains uncured.
A material breach occurs if either Party (i) fails to make any
payment, or (ii) fails to observe or perform any of the covenants,
agreements, or obligations (other than payments of money). Upon the
breach of either of the above conditions, the non-defaulting party
may terminate this Agreement as follows: (A) as to a default under
clause (i) above, if payment is not made within ten (10) days after
the defaulting party shall have received written notice of such
failure to make payment; or (B) as to a default under clause (ii)
above, 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 and such action the
defaulting party must take in order to cure each such item of
default.
b) TERMINATION DUE TO INSOLVENCY. If either Party (the "Bankrupt
Party"), (i) commences or becomes the subject of any case or
proceeding under the bankruptcy or insolvency laws; (ii) has
appointed for it or for any substantial part of its property a
court-appointed receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official; (iii) makes an assignment
for the benefit of its credits; (iv) fails generally to pay its
debts as they become due; or (v) takes corporate action in
furtherance of any of the foregoing (collectively, herein referred
to as "Events of Insolvency"), then, in each case, the Bankrupt
Party shall immediately give notice of such event to the other
Party. Whether or not such notice is given, the other Party shall
have the right, to the fullest extent permitted under applicable
law, following the occurrence of any Event of Insolvency and without
prejudice to any other rights it may have, at any time thereafter to
terminate this Agreement, effective immediately upon giving notice
to the Bankrupt Party.
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c) TERMINATION UPON CHANGES OF BUSINESS. If either in a single
transaction or in a series of related transactions, and either
directly or indirectly: (i) RII sells, or otherwise disposes of, all
or substantially all of its business or assets (except for "ordinary
course" inventory sales); (ii) prior to the effective date of the
first registration statement for a public offering of securities of
the Company (other than a registration statement relating to either
the sale of securities to employees of the Company pursuant to a
stock option, stock purchase or similar plan or a SEC Rule 145
transaction) (an "IPO"), the shareholders of RII as of the date of
this Agreement (measured on a fully diluted basis) no longer own at
least fifty percent (50%) of the shares of its capital stock
entitled to vote in the election of directors, or (iii) after an
IPO, the shareholders of RII as of the date of this Agreement
(measured on a fully diluted basis) no longer own at least
twenty-five percent (25%) of the shares of its capital stock
entitled to vote in the election of directors, then Xxxxxx shall
have the right, without prejudice to any other rights Xxxxxx may
have, at any time thereafter to terminate this Agreement, effective
immediately upon giving notice to RII, provided that Xxxxxx gives
RII such notice not later than sixty (60) days following the date on
which RII notifies it of such event.
d) EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason (i) all payments that have accrued prior to
the termination or expiration of this Agreement will be payable in
full within thirty (30) days thereof; (ii) except as otherwise
provided herein, each party shall promptly cease all use of any of
the other party's displays, documents, artwork, symbols, logos,
trademarks, trade names, photographic or graphic representations,
depictions and/or other materials (including, but not limited to,
advertising and/or promotional materials), which in any way or form
(hard copy, electronic or otherwise) refer to or identify the other
party or the other party's proprietary assets (collectively,
"Materials"), except as otherwise set forth herein; (iii) except as
otherwise provided herein, each party shall promptly remove all
links and references to the other party's website and Materials from
its own website; and (iv) each Party shall promptly deliver to the
other Party all originals and copies of the other party's Materials
then in its possession or control, and shall promptly take
reasonable steps to erase all of the foregoing from all computer
memories and storage devices within its possession or control, and
certify in writing, signed by an officer of that party, that such
reasonable steps have been taken. Notwithstanding the foregoing, if
the Agreement is terminated for any reason other than RII's material
breach, then for thirty (30) days following such termination, RII
may continue to use any printed material already produced under this
Agreement. At the conclusion of this period, RII's use of the
printed material will cease. It is further agreed that, with respect
to either party, any use of the other party's Materials after the
termination or expiration of this Agreement by third parties shall
not be deemed a breach by such party of this paragraph, as long as
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such third parties received such materials in accordance with the
terms hereof and such party takes reasonable steps to have such
third parties discontinue use of the other party's materials after
the termination or expiration of this Agreement.
16. TERMINATION BY RII.
RII may terminate this Agreement immediately by giving Xxxxxx notice if (i)
Xxxxxx dies or is prevented by injury or illness from satisfactorily performing
the obligations required by this Agreement; (ii) Xxxxxx is convicted of a
serious criminal offense or criminal offense involving dishonesty or fraud.
17. OTHER REMEDIES AND RIGHTS.
The termination rights set forth in Paragraphs 15 and 16 shall not constitute
the exclusive remedy of the non-defaulting party, however, if default is made by
either Party, the other may resort to such other remedies as such party would
have been entitled to if Paragraphs 15 and 16 were omitted from this Agreement.
Termination under the provisions of Paragraphs 15 and 16 shall be without
prejudice to any rights or claims, which the terminating party may otherwise
have against the defaulting party. In the event of any arbitration or
litigation, including breach, enforcement or interpretation, arising out of this
Agreement, the prevailing party of such litigation shall be entitled to recover
reasonable attorney's fees, costs, and expenses, including pre-litigation and
appellate attorneys' fees and costs.
18. MISCELLANEOUS PROVISIONS.
If any provision(s) of this Agreement shall be determined to be void, ambiguous,
or unenforceable, the same shall be stricken from this Agreement and in no way
shall affect other provisions of, or the validity or enforceability of this
Agreement. The Parties understand that the contents of this Agreement are
confidential, and that disclosure of same to any third party could be
detrimental to the interests of one or both Parties. Therefore, the Parties
agree not to disclose the terms of this Agreement, without the prior written
permission of the other party, other than to business advisors, legal and
financial representatives.
19. NOTICES.
All notices required hereunder shall be sent by overnight mail or first class
mail, or by confirmed electronic mail to the parties at the following addresses,
or such other addresses as the parties may designate in writing to each other
from time to time:
If to Xxxxxx: Great White Shark Enterprises, Inc.
000 Xxxxx X0X
Xxxxxxx, XX 00000
If to RII: Ritz Interactive
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn.: Xxxx X. Xxxxxx
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All notices and submission shall be delivered to Xxxxxx at no charge to Norman.
In the event that Xxxxxx pays for any such charges, for example customs or
shipping charges, RII agrees to reimburse Xxxxxx for such charges.
20. FORCE MAJEUR.
Notwithstanding anything else contained in this Agreement, neither Party will be
liable for any delay in the performance of any of its obligations if such delay
is caused by any reason wholly outside the control of the Party so delaying (a
"Force Majeur Event") subject to the obligation of the Party so delaying
promptly notifying the other Party in writing of the reasons for the delay and
the likely duration of the delay. The performance of such Party's obligations
will be suspended during the period that the Force Majeur Event persists and
such Party will be granted an extension of time for performance equal to the
period of the delay. If the delay referred to above exceeds sixty (60) days (or
such other reasonable period taking into consideration the nature and cause of
the delay), either Party may forthwith terminate this Agreement whereupon the
Parties shall cease to be bound by their respective obligations under this
Agreement in respect of the period after termination and the Parties rights
granted under this Agreement shall cease.
21. ENTIRE AGREEMENT.
This Agreement, along with the Technical Services Agreement and Stock Option
Agreement, constitute the entire agreement of the parties and cannot be altered
or modified except by an agreement in writing signed by both parties. Upon its
execution, this Agreement shall supersede all prior negotiations, understandings
and agreements, whether oral or written, and such prior agreements shall
thereupon be null and void and without further legal effect.
22. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida, applicable to contracts entered into and to be wholly
performed within the State of Florida.
23. JOINT VENTURE.
Nothing contained in this Agreement shall be construed as establishing an
employer/employee relationship between Xxxxxx and RII. Accordingly, there shall
be no withholding for tax purposes from any payments due Norman hereunder and
Xxxxxx shall be responsible for any and all income and other tax payments
required by Norman. Nothing contained in this Agreement shall be construed to
place the parties in the relationship of legal representatives, partners or
joint ventures. Neither Party shall have any power to bind the other in any
manner whatsoever, other than as otherwise stated in this Agreement. This
paragraph shall survive termination of this Agreement.
24. REPRESENTATIONS AND WARRANTIES.
a) Xxxxxx represents and warrants to RII that:
(i) Xxxxxx is able to enter into and perform under this Agreement;
(ii) by entering into and performing under this Agreement Xxxxxx is
not, and shall not be in conflict with any prior obligations
to third parties;
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(iii) that Xxxxxx will not assign or transfer any of the License
Rights described in Paragraph 2.
b) RII represents and warrants to Xxxxxx that:
(i) it is able to enter into and perform this Agreement;
(ii) by entering into and performing under this Agreement, it is
not, and shall not be in conflict with any prior obligations
to third parties.
25. INDEMNITY AND INSURANCE.
a) INDEMNIFICATION BY RII. RII shall indemnify and hold Xxxxxx and each
of its directors, officers, employees, agents and Affiliates
harmless from and against any and all claims, actions, suits,
proceedings, losses, damages and expenses (including, without
limitation, reasonable attorneys', consultants' and experts' fees)
(collectively, "Claims") arising out of or relating to any
inaccuracy or breach of RII's representations, warranties, covenants
or any claim or action for products liability, personal injury,
death or other cause of action arising out of or in connection with
this Agreement, including actions based upon negligence of RII under
this Agreement, provided that RII shall be given prompt notice of
any such action or claim. RII shall provide and maintain at its own
expense a comprehensive general and products liability insurance
with aggregate limits no less than $2,000,000 and RII shall submit
to Xxxxxx a copy of the said insurance policy which shall name
Xxxxxx as an additional insured party.
b) INDEMNIFICATION BY XXXXXX. Xxxxxx shall indemnify and hold RII and
each of its directors, officers, employees, agents, distributors and
Affiliates harmless from and against any and all Claims arising out
of or relating to: (i) any inaccuracy or breach of Norman's
representations, warranties, covenants or other obligations
hereunder, and (ii) the use of the Xxxxxx Identification.
c) INDEMNIFICATION PROCEDURES. In the event that any Claim is made as a
result of which a party or any of its directors, officers,
employees, agents, distributors or affiliates (collectively, an
"Indemnified Party") may become entitled to indemnification by the
other party (an "Indemnifying Party) pursuant to clauses (a) or (b)
above, the Indemnifying Party shall, at its expense, have the right
to participate in, and, at its option, to assume the defense of such
claim with counsel reasonably satisfactory to the Indemnified Party.
Promptly upon becoming aware of such Claim, the Indemnified Party
shall give the Indemnifying Party notice thereof; provided, however,
that the omission to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability that it may have to the
Indemnified Party, except to the extent that the Indemnifying Party
is actually prejudiced by such omission. If the Indemnifying Party
elects so to assume the defense of such Claim, following its notice
of such election to the Indemnified Party, the Indemnifying Party
shall not be liable to the Indemnified Party in connection with the
cost of the defense of such Claim, except to the extent otherwise
provided below. Any settlement of any Claim shall require the mutual
consent of the
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Indemnifying Party and the Indemnified Party and shall include as an
unconditional term thereof the giving by the claimant or plaintiff
to the Indemnified Party of a release from all liability with
respect to such Claim. Notwithstanding the right of the Indemnifying
Party to assume the defense of any Claim to which the Indemnified
Party may become a party or target, the Indemnified Party shall have
the right to employ separate counsel and to participate in the
defense of such action. The Indemnifying Party shall bear the
reasonable fees, costs and expenses of such separate counsel, if:
(i) the use of the counsel chosen by the Indemnifying Party to
represent the Indemnified Party would present such counsel with a
conflict of interest; (ii) in the Indemnified Party's reasonable
judgment, the Indemnifying Party shall not have employed
satisfactory counsel to represent the Indemnified Party within a
reasonable time after notice of the institution of such Claim
26. WAIVER.
The failure of Xxxxxx or RII 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 either may
at any time demand strict and complete performance by the other of said terms,
covenants and conditions.
27. ASSIGNMENT.
This Agreement shall bind and inure to the benefit of Xxxxxx and his successors
and permitted assigns. Nothing herein shall prevent Xxxxxx form assigning the
monetary benefits (but not the obligations) of this Agreement, as he may so
desire. RII may not assign this Agreement, in whole or in part, without Norman's
written consent. In the case of reorganization, merger, consolidation, or sale
of all or substantially all of its assets, any attempt to assign this Agreement
other than as permitted above will be null and void.
28. SIGNIFICANCE OF HEADING.
Paragraph headings contained in this Agreement are solely for the purpose of
aiding 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 paragraph headings had been omitted.
29. INVALIDITY.
If any term, covenant, condition or provision of this Agreement or the
application thereof to any person or circumstance, shall to any extent be held
to be invalid, illegal, or unenforceable in any respect, the remainder of this
Agreement, or application of such term or provision to a person or circumstance
other than to those as to which it is held invalid, illegal, or unenforceable,
shall not be affected thereby, and each term, covenant, condition or provision
of this Agreement shall be valid and shall be enforced to the fullest extent
provided by law.
30. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which will constitute together a single
document.
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31. CONSTRUCTION.
The Parties acknowledge that this Agreement was negotiated between them and
shall not be construed against either Party on the grounds of authorship.
32. ARBITRATION.
Any dispute or difference between the parties hereto arising out of or relating
to this Agreement shall be settled by arbitration in accordance with the
Commercial Rules of the American Arbitration Association by a panel of three
qualified arbitrators. RII and Xxxxxx shall each choose an arbitrator and the
two arbitrators so chosen shall choose the third. If either RII or Xxxxxx fails
to choose an arbitrator within 30 days after notice of commencement of
arbitration or if the two arbitrators fail to choose a third arbitrator within
30 days after their appointment, the American Arbitration Association shall,
upon the request of any party to the dispute or difference, appoint the
arbitrator or arbitrators to constitute or complete the panel as the case may
be. Arbitration proceedings hereunder may be initiated by either RII or Xxxxxx
making a written request to the American Arbitration Association, together with
any appropriate filing fee, at the office of the American Arbitration
Association in the county in which proceedings are to be held pursuant to the
terms of the following sentence. All arbitration proceedings or litigation (to
the extent the remedy requested is not, by law, available through arbitration
[e.g., injunctive relief]) relating to any claims or disputes arising under or
relating to this Agreement shall be brought in the county in which the principal
executive office of the party not initiating such action or proceeding (i.e. the
defendant or responding party) is located. The parties irrevocably submit and
consent to the exercise of subject matter jurisdiction and personal jurisdiction
over each of the parties by the federal and/or state courts in such jurisdiction
(the "Selected Jurisdiction"). The parties hereby irrevocably waive any and all
objections that any party may now or hereafter have to the exercise of personal
and subject matter jurisdiction in the Selected Jurisdiction and to the laying
of venue of any such proceeding or action brought in the Selected Jurisdiction.
Any order or determination of the arbitral tribunal shall be final and binding
upon the parties to the arbitration and may be entered in any court having
jurisdiction.
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IN WITNESS WHEREOF, the Parties execute this Agreement intending to be legally
bound.
RITZ INTERACTIVE, INC XXXX XXXXXX
/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxxx
---------------------------------- --------------------------------
Signature Signature
/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxxx
---------------------------------- --------------------------------
Print Name Print Name
12/1/03 1 - Dec - 2003
---------------------------------- --------------------------------
Date Date
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SCHEDULE A
XxxxXxxxxx.xxx
XxxxXxxxxx.xxx
Xxxxxxxxxxx.xxx
XxxxxxXxxxx.xxx
XxxxXxx.xxx
XxxxxXxxxx.xxx
XxxxXxxxxx.xxx
XxxxxxXxxxXxx.xxx
Xxxxxx'xXxxxxx.xxx
XxxxxxxXxxxx.xxx
XxxxxXxxxxXxxxxxxxxx.xxx
XxxxxxxXxxx.xxx
XxxxxxxXxxx.xxx
XxxxXxxxxxxxxxx.xxx
XxxxXxxxxxXxxxxxxx.xxx
XxxxXxxxxxXXX.xxx
XxxXxxxxXxxxxxx.xxx
XxxxxxxXxxxxXxxxxxxx.xxx
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SCHEDULE B
1. If nominated and elected, Xxxxxx will serve on the Ritz Interactive, Inc.,
("RII") board of directors.
2. Xxxxxx will participate in "road show events" leading to the initial public
offering of the common stock of RII.
3. Advertising initiatives may include Norman's participation in consumer
promotion including print campaigns, on-line advertising or corporate videos.
4. RII may utilize Xxxxxx and the Xxxxxx Identification in collateral materials
and special merchandise offers to its vendors and/or database of consumers.
5. RII may utilize Norman's lifestyle branding activities as content for its E-
commerce Portal, including, but not limited to, XxxxxxxXxxxx.xxx,
XxxxxxxXxxx.xxx, XxxxxxxXxxx.xxx.
6. Xxxxxx will make available to RII syndicated articles that can be used in
newsletters to RII's database, including, but not limited to, articles regarding
Norman's travels, tips for travel, fishing tips, photography tips, restaurants,
hotels, updates on his activities throughout the year, golf instruction and
general musings, etc.
7. Xxxxxx will act as host to targeted events, which involve golf outings or
augmenting RII's existing customer/vendor entertainment program(s) or trade
shows.
8. RII or its designed (the "Sponsor") will have the option to become a sponsor
of Norman's flagship tournament, the Franklin Xxxxxxxxx Shootout (November
10-16) in Naples, Florida. As part of this package, the Sponsor would receive
certain entitlements including Pro-Am spots, which can be used for business
development/customer entertainment.
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