PERSONAL SERVICES AGREEMENT
This Agreement is made and deemed effective the 31st day of December, 2000, by
and between GOLFGEAR INTERNATIONAL, INC., a Nevada corporation (the "Company" or
"GolfGear"), Xxxxx Xxxxxx-Golf Ltd., a Company registered in England ("PAG") and
XXXXX XXXXXX, an individual ("Alliss").
RECITALS
WHEREAS, the Company wishes to utilize the name and likeness of Alliss as the
Company's spokesperson in the marketing of its golf clubs and related products;
WHEREAS, PAG has the sole rights to the exploitation of Alliss' name, likeness
and time and is willing to associate with the Company for the promotion of its
golf clubs and related products.
WHEREAS, Alliss is in agreement for the use of his name, likeness, time and
efforts promoting and marketing the Company's golf clubs and related products.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and
with reference to the above Recitals, the parties agree as follows:
1. ENDORSED SERVICES
PAG agrees to allow the Company to utilize Alliss' name and likeness and to act
as a spokesperson on behalf of the Company in all of its advertising, marketing
and promotion efforts, and in all mediums, including print and television, for
the Company's golf clubs and golf related products. This likeness shall be used
and services be provided in North America, Central America, South America,
Africa (including South Africa), the Middle East, Far East (including India)
(the "Designated Territory"), but it shall exclude Australia, New Zealand,
Malaysia, the United Kingdom, Northern and Southern Ireland, Europe and
Scandinavia.
2. EXCLUSIVITY
a. HIPPO AGREEMENT
Alliss agrees not to provide the same or similar services as contemplated
hereunder to any other golf club manufacturer or distributor during the
term of this Agreement. However, the parties acknowledge that there
currently exists between PAG and Hippo Holdings Ltd. of Xxxxxx Business
Park, Xxxxxx Street, Xxxxxx xxxx Xxxxx, Xxxxxxxxxxxxx, XX00 0XX, Xxxxxxx an
agreement dated September 24, 1998 (the "Hippo Agreement"), relating to
Alliss' endorsement of Hippo and Howson Golf clubs and related products in
Australia, New Zealand, Malaysia, the United Kingdom, Northern and Southern
Ireland, Europe and Scandinavia. Alliss may participate in the production
of a Hippo Golf infomercial to be broadcast inside the Designated Territory
during the year 2001 as long as it is not broadcast inside the Designated
Territory after the year 2001.
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b. TERMINATION OF HIPPO AGREEMENT
Upon the termination or cancellation of the Hippo Agreement, for any
reason, the Designated Territory shall thereafter, without further act or
additional consideration, be expanded to also include Australia, New
Zealand and Malaysia. Alliss hereby grants to the Company an exclusive
three (3) month opportunity, from the date the Company is notified that the
Hippo Agreement has terminated or will terminate, to negotiate with PAG for
the use of Alliss' likeness and service of Alliss in the United Kingdom,
Northern and Southern Ireland, Europe and Scandinavia.
3. NO BREACH OF AGREEMENT
Neither the execution of this Agreement nor any obligation imposed herein shall
constitute a breach or violation of any agreement including, but not limited to,
the Hippo Agreement. In this regard, Alliss agrees to communicate the existence
of this Agreement to Hippo Holdings Ltd. and represents and warrants that the
execution of this Agreement will not violate any covenant or restriction of the
Hippo Holdings Ltd. agreement. Notwithstanding the above, the Company
acknowledges that Alliss has prior commitments with ABC Television Network (ABC)
and the British Broadcasting Corporation (BBC) to act as a golf personality and
commentator and that ABC's and BBC's schedules will always take precedence over
Alliss' obligations to Company.
4. SALE OF GOLF CLUBS
a. SALE OF SIGNATURE CLUBS
During the term of this Agreement, and any extension or renewal thereof,
the Company shall have the exclusive right to manufacture, distribute and
sell Xxxxx Xxxxxx Signature clubs world wide within the Designated
Territory.
1. For each Signature wedge, putter or specialty club sold, Alliss
shall receive a royalty of $2.00 per club.
2. For each Signature iron sold, Alliss shall receive a royalty of
$.25 per iron.
b. SALE OF NON-SIGNATURE CLUBS
1. For all sales made through GolfGear infomercials in which Alliss
appears, Alliss shall receive a royalty of $1.00 per club
featured and sold as a direct result of a sale made from the
airing of the infomercial.
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2. In addition to royalties paid for clubs actually sold through any
infomercial as defined in Paragraph 4(b)(1) above, Alliss shall
receive a royalty of $.25 per club for all after market sales of
any club featured in any infomercial. "After market" shall be
defined as all non-infomercial sales generated in the region in
which the infomercial has been televised.
c. CHANGE IN CONTROL
In the event that Xxxxxx Xxxxxxxx ceases to be affiliated with the Company
in an executive capacity during the term of this Agreement, including any
renewal thereof, Alliss shall have the option to terminate this Agreement.
In such event, pursuant to written notice within ninety (90) days of such
change in control, the ninety (90) day period described in 4d shall not
exceed forty five (45) days.
d. POST-TERMINATION SALES
Upon termination or expiration of this Agreement, including any extension
or renewal thereof, the Company shall cease production of Alliss Signature
clubs as soon as reasonably practicable, but shall continue to have the
right to use the name and likeness of Alliss to market its existing
inventory of said clubs until all such inventory is exhausted or for a
period not to exceed 90 days, whichever is earlier. Further, the Company
shall have the right to continue to run any infomercial in which Alliss
appears for a period not to exceed 30 days. For as long as Company makes
use of the name or likeness of Alliss, PAG shall continue to receive
compensation described in Paragraph 4 as earned.
5. COMPENSATION
The Company shall pay to PAG the following compensation:
a. STOCK COMPENSATION
PAG or their nominees shall be issued 250,000 shares of the Company's
common stock. It is understood that such shares shall not be registered
with the Securities and Exchange Commission and will, therefore, be
restricted as that term is defined pursuant to Rule 144 of the Securities
Act of 1933, as amended. In addition to the rules on resale restrictions
imposed by Rule 144, PAG or its nominees agree to sell no more than 25,000
shares of common stock in any one month unless otherwise agreed by all the
parties hereto. PAG or its nominees agrees not to sell any shares in the
month of December. PAG or its nominees agrees to inform the Company of
their intention to sell any shares prior to effectuating any sale or
transaction.
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b. COMMON STOCK WARRANT COMPENSATION
PAG or its nominees shall receive a warrant to purchase 250,000 shares of
common stock of the Company, exercisable at $.50 per share for a period of
five (5) years from the date of this Agreement. This warrant shall contain
standard anti-dilution provisions and shall not have a cashless exercise
provision.
c. EXPENSES
Alliss and/or his agents shall be entitled to reimbursement of reasonable
expenses incurred in conjunction with activities as contemplated herein.
Prior to incurring such expenses, Alliss and/or his representatives shall
give prior notice and gain approval from the Company. It is acknowledged
that Alliss travels first-class and that his business manager, Xxx Xxxxxx,
travels business class unless both Alliss and Xxx Xxxxxx travel together,
in which case Xxx Xxxxxx will also travel first-class.
d. PROMOTIONAL EQUIPMENT
The Company shall supply golf clubs, golf bags and other equipment and
apparel that may be required by Alliss, either for his own use or for
promotional purposes, upon reasonable request and advance notice to the
Company. Such promotional products shall be delivered to PAG's address free
of carriage, duties and taxation of any kind.
e. WIRE TRANSFER
All cash payments to be made hereunder shall be made by wire transfer to
Barclays Bank plc, Ascot Branch, sort code 20-02-53 for the account of
Xxxxx Xxxxxx Golf Ltd., account number 00000000, or at such other place as
PAG shall designate in writing from time to time.
f. AUDIT
Company shall transmit to PAG all regularly maintained financial statements
and reports. From time to time, PAG may request reasonable financial and/or
operating information relating to matters relevant to this Agreement from
the Company and the Company shall provide such information at PAG's
offices. Additionally, PAG shall have the right, upon reasonable notice, to
inspect or audit the books and records of Company. Such inspection may be
conducted by any reasonably designated agent.
g. ADVISORY BOARD
During the term of this Agreement, the Company shall offer a seat on its
advisory board to Alliss, or his designee, as long as such person is
reasonably acceptable to the Company.
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6. CREATIVE CONTROL
Alliss shall at all times herein have the right to approve any club design that
bears his name and shall also have the right to approve any news releases,
catalogs, term sheets, publicity materials, commercials, informercials,
television or radio spots, web sites or other similar media information in which
Alliss appears, or in which Alliss' name or likeness is utilized in any manner,
prior to their public use or dissemination. Said approval shall not be
unreasonably withheld by Alliss. In this regard, the Company shall provide such
materials to Alliss in advance of their use or dissemination in order to enable
Alliss to review and approve such materials. Alliss agrees to review such
material and respond to the Company within a reasonable time and with the
understanding that a reasonable response time is of the essence.
7. INFOMERCIAL PRODUCTION
The Company shall give Alliss at least six (6) weeks prior notice in scheduling
the filming of a commercial, infomercial or catalog. The Company shall use its
best efforts to limit the total production (in all categories) to five (5) days
per year. However, the five (5) day period shall exclude partial days at tour
events at which the Company may consult with or utilize Alliss, subject to his
schedule and availability. For each day or partial day that Alliss makes
himself available for the Company's use, including, but not limited to,
infomercial filming, advertising production and/or consulting, or for the
Company's utilization at tour events or similar functions, Alliss shall be paid
$10,000 per day plus expenses.
8. TERMINATION
This Agreement shall terminate three (3) years from the date of effectiveness
hereof. Upon written notice at least one hundred and eighty (180) days prior to
expiration of this Agreement, the Company shall be given a ninety (90) day
exclusive period to negotiate an additional three (3) year agreement for the use
of Alliss' likeness subject to terms and conditions to be agreed by the parties.
Upon any termination of the Agreement, all amounts earned through the date of
termination shall be paid forthwith to PAG.
9. MUTUAL RELEASE
By and upon execution of this Agreement, PAG, Alliss and the Company hereby
forever mutually release each other from that agreement between the parties
dated January 1, 1998 (the "Prior Agreement"), and from any obligations arising
thereunder. This release shall constitute a general mutual release and by
execution of this Agreement, the parties hereby release and forever discharge
each other and any of their servants, agents and employees and all others, of
and from any and all claims, demands or actions or causes of action, known or
unknown, including all injuries, deaths, property damage and economic loss,
arising out of or in any way connected with the Prior Agreement.
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This is a full and final release applying to all unknown and unanticipated
injuries or damages arising out of the Prior Agreement, as well as to those
known or disclosed. The undersigned waives all rights and benefits which the
undersigned now has or in the future may have under the terms of Section 1542 of
the Civil Code of California, which Section reads as follows:
"A general release does not extend to the claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor."
This release shall survive termination or expiration of this Agreement.
10. ASSIGNMENT
Neither PAG, Alliss nor the Company shall have the right to grant sub-licenses
hereunder or to otherwise assign, alienate, transfer, encumber or hypothecate
any of its rights or obligations hereunder, except as set forth herein: (1) PAG
shall have the right to assign the financial benefits hereof, and the Company
hereby consents to such assignment upon receipt by the Company of written notice
thereof from PAG; and (2) the Company shall have the right to grant sub-licenses
hereunder or to otherwise assign and transfer any of its rights or obligations
hereunder, to any affiliate, related entity or subsidiary (partially or wholly
owned), if prior written consent is obtained from PAG and Alliss, which consent
shall not be unreasonably withheld.
11. ATTORNEYS' FEES AND COSTS
In the event of any litigation to interpret or enforce any provision(s) of this
Agreement, a court of competent jurisdiction may award the prevailing party
reasonable attorneys' fees and costs.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of California applicable to agreements made and to be performed
therein.
13. ARBITRATION
Any dispute arising out of or concerning this Agreement shall be handled in
accordance with the Rules and Regulations, and under the auspices, of the
American Arbitration Association. Said arbitration shall be held in Orange
County, California and shall be binding. The prevailing party shall be entitled
to, among other relief, attorney fees and costs.
14. SEVERABILITY
The holding of any provision of this Agreement to be invalid or unenforceable by
a court of competent jurisdiction shall not affect any other provision of this
Agreement, which shall remain in full force and effect.
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15. NOTICES AND COMMUNICATIONS
All notices, requests, demands, and other communications under this Agreement
shall be in writing and delivered in person or sent by certified mail, postage
prepaid or by telefax and properly addressed as follows:
If to the Company: Xxxxxx X. Xxxxxxxx, President
GolfGear International, Inc.
00000 Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Telephone (000)000-0000
Telefax (000)000-0000
E-Mail: xxxxxxxx00@xxx.xxx
and to: Xxxxx Xxxxxx - Golf Ltd.
00 Xx. Xxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxxx XX0 0XX
Telephone 000-00-000-000-0000
Telefax 011-44-125-271-7722
E-mail: xxx@xxxxxxxxxx.xxxxx.xx.xx
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until it is actually received by the
respective party hereto.
16. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any subsequent
breach by that same party.
17. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement between the parties and is intended
to merge all prior written or oral discussions or agreements with respect to its
subject matter and specifically supersedes all prior written agreements relating
to the subject matter of this Agreement. The Agreement may not be amended
except in a subsequent writing signed by both parties. No waiver of any duty
under this Agreement will be construed as a waiver of the right to demand
immediate performance, unless an extension of the time for performance is agreed
in writing. Time is of the essence in this Agreement.
18. AMENDMENTS
This Agreement may not be amended except by a writing signed by all the parties
hereto.
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19. COUNTERPARTS AND SIGNATURES
This Agreement may be executed in one or more counterparts, each of which, when
executed and delivered by facsimile transmission, shall be an original and all
of which when executed shall constitute one Agreement, by each of the parties
hereto on the dates respectively indicated in the acknowledgments of said
parties, notwithstanding that all of the parties are not signatories to the
original or the same counterpart, to be effective as of the day and year first
above written.
20. RELATIONSHIP OF THE PARTIES
This Agreement shall not constitute or be considered a partnership,
employer-employee relationship, joint venture or agency between the parties
hereto, nor by or between any of their employees or agents. Alliss shall be
deemed to be an independent contractor for purposes of this Agreement.
Dated:____________, 2000 GOLFGEAR INTERNATIONAL, INC.
_____________________________________
By: Xxxxxx X. Xxxxxxxx
Its: President
Dated:____________, 2000 Xxxxx Xxxxxx - Golf Ltd.
______________________________________
By: Xxx Xxxxxx
Its: Managing Director
Dated:______________, 2000 ______________________________________
Xxxxx Xxxxxx, an individual
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