CONSULTING AND MAKKETING LICENSE AGREEMENT
THIS CONSULTING AND MARKETING LICENSE AGREEWENT (this "AGREEMENT") is between
▇▇▇▇ ▇▇▇▇▇▇▇ (the "CONSULTANT") and the other party named on the signature page
to this Agreement (the "COMPANY"). Each of the Consultant and the Company are
also referred to in this agreement as the "PARTIES."
WHEREAS, the Company intends to develop a market for the Company's products and
services offered from time to time by the Company (the "PRODUCTS AND SERVICES")
for potential customers of the Products and Services who are racing car
enthusiasts; and
WHEREAS, the Consultant is a professional race car driver with name recognition
in the racing car industry; and
WHEREAS, the Company desires to utilize the services of the Consultant to
promote and develop a market for the Company's Products and Services; and
WHEREAS, in connection with the services to be provided by the Consultant
pursuant to this Agreement, the Company desires to grant the Consultant a
non-exclusive license for the limited use of the Company's tradename, trademark
or logo, or any other tradename, trademark or logo of the Company, as may be
agreed upon by the Parties (the "LICENSED TRADEMARKS").
NOW THEREFORE, in consideration of the premises and mutual covenants set forth
in this Agreement, the Parties hereby agree as follows:
1. Scope of Services. The Company hereby retains the Consultant to promote and
develop a market for the Products and Services. The Consultant agrees to use his
best efforts during the term of this Agreement to market and promote the
Products and Services.
2. Term. `This Agreement shall become effective as of the date set forth on the
signature page of this Agreement, and shall continue for a period of one (1)
year (the "TERM"). Notwithstanding the foregoing, the Company or the Consultant
shall be entitled to terminate this Agreement for "cause" upon 30 days' written
notice, which written notice shall be effective upon mailing by first class mail
accompanied by facsimile transmission to the Consultant at the address and
telecopier number last provided by the Consultant to the Company. "Cause" shall
be determined solely as to the violation of any rule or regulation of any
regulatory agency, and other neglect, act or omission d h e u t a l to the
conduct of Company or the Consultant's business, material breach of this
Agreement or any unauthorized disclosure of any of the secrets or confidential
information of Company, and dishonesty related to independent contractor status.
3. Grant of Non-exclusive License. Subject to the terms of this Agreement, the
Company hereby grants to the Consultant, and the Consultant hereby accepts, the
non-exclusive license to use the Licensed Trademarks on the Consultant's racing
cars, and on the Consultants racing equipment and clothing, which shall be
operated by the Consultant in professional racing car competitions at the sole
of discretion of the Consultant.
(a) During the Term of this Agreement the Consultant shall not negotiate or
enter into my license, sub-license agreement of sub-contract or similar
agreement with any third parties in respect of the Licensed Trademarks, or any
right or interest granted by the Company to the Consultant pursuant to this
Agreement, and the Consultant shall further refrain from directly or indirectly,
on his own behalf licensing, sub-licensing or sub-contracting the Licensed
Trademark, or other right or interest granted by
the Company to the Consultant to such third parties without the Company's prior
written consent.
(b) No license or right is granted by the Company to the Consultant, either
expressly or by implication, under any licenses or rights owned or controlled by
the Company, except as expressly set forth in this Agreement.
(c) The license granted pursuant to this Agreement shall expire simultaneously
with the Term of this Agreement, and shall be revocable at will by the Company
upon written notice to the Consultant and the Consultant shall immediately
refrain from the use of any rights granted by the Company to the Consultant with
respect to this license upon receipt of such written notice.
4. Compensation; Grant of Stock Option. In consideration for the Services to be
provided by the Consultant to the Company under the terms of this Agreement, the
Company agrees to grant to the Consultant upon the execution of this Agreement a
non-qualified stock option (the "OPTION") to purchase up to the number of shares
(the "SHARES") of the Company's common stock (the "COMMON STOCK") as set forth
below which shall fully vest immediately upon execution of this Agreement, at an
exercise price as set forth below:
Number of Shares or Total Dollar Amount: $300,000
The lesser of, The Thirty Day Low or:
Exercise Price per Share or Percentage per Share (in US$): 50 % of the preceding
thirty day low.
The terms of the Option shall otherwise be set forth in a Non-Qualified Stock
Option Agreement between the Company and the Consultant, substantially in the
form attached as Exhibit A to this Agreement. The Company agrees to register the
Shares upon signing of this agreement for resale under the Securities Act of
1933, as amended, pursuant to a registration statement filed with the Securities
and Exchange Commission on Form S-8 (or, if form S-8 is not then available such
other form of registration statement available), pursuant to the terms of such
registration set forth in the Non-Qualified Stock Option Agreement. The Company
shall pay to the race team an amount of stock equivalent to 5% of the total
shares issued to the Consultant, pro rata on a monthly basis.
5. Confidentiality. The Consultant covenants that all information concerning the
Company, including proprietary information, which it obtains as a result of the
services rendered pursuant to this Agreement shall be kept confidential and
shall not be used by the Consultant except for the direct benefit of the Company
nor shall the confidential information be disclosed by the Consultant to any
third party without the prior written approval of the Company, provided,
however, that the Consultant hall not be obligated to treat as confidential, or
return to the Company copies of any confidential information that (i) was
publicly known at the time of disclosure to Consultant, (ii) becomes publicly
known or available thereafter other than by any means in Violation of this
Agreement or any other duty owed to the Company by the Consultant, or (iii) is
lawfully disclosed to the Consultant by a third party.
6. Independent Contractor. The Consultant and the Company hereby acknowledge
that the Consultant is an independent contractor. The Consultant agrees not to
hold himself out as, nor shall he take any action from which others might
reasonably infer that the Consultant is a partner or agent of or a joint
venturer with the Company. In addition, the Consultant shall take no action,
which, to the knowledge of the Consultant, binds, or purports to bind, the
Company to any contract or agreement.
7. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement between the
Parties, and may not be waived, amended, modified or supplemented except by
agreement in writing signed by the Party against whom enforcement of any waiver,
amendment, modification or supplement is sought. Waiver of or failure to
exercise any rights provided by this Agreement in any respect shall not be
deemed a waiver of any further or future rights.
(b) Governing Law. This Agreement shall be construed under the internal laws of
the State of New York, and the Parties agree that the exclusive jurisdiction for
any litigation or arbitration arising from this Agreement shall be in New York
City, N.Y.
(c) Successors and Assigns. This Agreement shall be binding upon the Parties,
their successors and assigns, provided, however, that the Consultant shall not
permit any other person or entity to assume these obligations hereunder without
the prior written approval of the Company which approval shall not be
unreasonably withheld and written notice of the Company's position shall be
given within ten (10) days after approval has been requested.
(d) Indemnification. The Company shall indemnify the Consultant for all losses
or damages sustained (including reasonable attorney fees and disbursements) as
incurred by the Consultant arising from the Consultant performing services under
this Agreement.
(e) Counterparts. This Agreement m y be executed in two or more counterparts,
each of which shall be deemed an original, but which when taken together shall
constitute one agreement.
(f) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were excluded and shall be enforceable in accordance with its terms.
(Signature Page Follows)
IN WITNESS WHEREOF, the Parties hereto have executed or caused this Agreement to
be executed as of the date set forth below.
Date: 1/15/03 CONSULTANT:
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\s\ ▇▇▇▇ ▇▇▇▇▇▇▇
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Address for Notices:
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COMPANY:
ECOM Corporation
By: \S\ Rounsevelle Schaum
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Name: Rounevelle Schaum
Title: Chief Executive Officer
EXHIBIT A
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALJFIED STOCK OPTION AGREEMENT (this "AGREEMENT") is between ▇▇▇▇
▇▇▇▇▇▇▇ (the "GRANTEE") and the other party named on the signature page to this
Agreement (the "COMPANY"). Each of the Grantee and the Company are also referred
to in this agreement as the "PARTIES"
WHEREAS, the Board of Directors of the Company (the "BOARD OF DIRECTORS") has
authorized the grant to the Grantee, for services to be rendered by the Grantee
as a consultant to the Company pursuant to the terms of a Consulting and
Marketing License Agreement (the `'CONSULTING AGREEMENT') between the Company
and the Grantee, of a nonqualified stock option (the "OPTION") to purchase the
number of shares of the Company's common stock (the "COMMON STOCK) specified in
paragraph 1 of this Agreement, at the price specified in paragraph 1 of this
Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set forth
in this Agreement, the Parties hereby agree follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the Board of
Directors, the Company hereby grants to the Grantee, in consideration of
consulting services to be performed for the benefit of the Company pursuant to
the Consulting Agreement, an option ("OPTION") to purchase the number of common
shares ("OPTION Stock) of Common Stock set forth below, at the exercise price
set forth below:
Number of Shares or total Dollar Amount: $300,000
The lesser of the Thirty Day Low or:
Exercise Price per Share or Percentage per Share (in US$): 50% of the preceding
thirty day low.
2. Term. The Option and this Agreement shall expire ten (10) years from the date
of this Agreement.
3. Shares Subject To Exercise. The Option shall be immediately exercisable and
shall remain exercisable for the entire Term specified in Paragraph 2 of this
Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole or from the
to time in part by written notice delivered to the Company stating the number of
Option Shares with respect to which the Option is then being exercised, together
with a check and/or a wire transfer made payable to the Company in the amount
equal to the Exercise Price multiplied by the number of Option Shares then being
issued pursuant to the written notice of exercise, plus the amount of applicable
federal, state and local withholding taxes, provided, however, that such taxes
may be satisfied by the withholding of Option Shares then issuable upon the
exercise of the
Option pursuant to paragraph 5 of this Agreement. Not less than one hundred
(100) Option Shares may be purchased upon exercise of the Option at any one time
unless the number of Option Shares for which exercise of the Option is being
made is all of the Option Shares then issuable upon exercise of the Option.
Options may be exercised at any time at the sole discretion of the Grantee. Only
whole shares shall be issued upon exercise of the Option.
5. Tax Withholding. As a condition to exercise of the Option, the Company may
require the Grantee to pay to the Company all applicable federal, state and
local taxes which the Company is required to withhold with respect to the
exercise of the Option or the Grantee is liable for filing and paying all of his
own taxes.
6. Exercise Following Termination of Consulting Agreement. The Option shall not
terminate as a result of the termination of Grantee's services as a consultant
to the Company pursuant to the Consulting Agreement.
7. Transferability. The Option and this Agreement may not be assigned or
transferred except by will or by the laws of descent and distribution, and with
consent of the Company.
8. Grantee Not a Shareholder The Grantee shall have no rights as a shareholder
with respect to the Option Shares issued form time to time upon exercise of the
Option until the earlier of: (1) the date of issuance of a stock certificate or
stock certificates to the Grantee applicable to the Option Shares then issuable
to the Grantee upon exercise of the Option and (2) the date on which the Grantee
or his nominee is recorded as owner of such Option Shares on the Company's stock
ledger by the Company's registrar and transfer agent, which may be the Company.
Except as set forth in paragraph 13 of this Agreement, no adjustment will be
made for dividends or other rights for which the record date is prior to the
earlier of the events described in clauses (1) and (2) of this paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that, upon the
Grantee's exercise of the Option in whole or in part unless there is in effect
at that time under the Securities Act of 1933 a registration statement relating
to the Option Shares, the Grantee will acquire the Option Shares for the purpose
of investment and not with a view to their resale or further distribution, and
that upon such exercise hereof; the Grantee Will furnish to the Company a
Written statement to such effect, satisfactory to the Company in form and
substance.
10. Shares Qualified for Listing. Company represents that its Common Stock is
qualified for trading or quotation on a nationally recognized securities
exchange or stock quotation system, including, without the NASDAQ Bulletin
Board, and for trading with the California Department of Corporations or such
other applicable jurisdictions.
11. Registration Rights. On or before the day of this Agreement, the Company
shall, at the Company's expense, file with the Securities and Exchange
Commission ("SEC), a registration statement ("REGISTRATION STATEMENT") on Form
S-8 or other comparable form, or if such form is not then available, such other
form of registration statement then available, in such form as to comply with
applicable federal and state laws for the purpose of registering or qualifying
the Option Shares for public resale by the Grantee, and prepare and file with
the appropriate state securities regulatory authorities the documents reasonably
necessary to register or qualify the Option Shares, subject to the ability of
the Company to register or qualify the Option Shares under applicable state law.
12. Notices. All notices to the Company shall be addressed to the Company at the
principal office of the Company at the address and facsimile number set forth on
the signature page of this Agreement, and all notices to the Grantee shall be
addressed to the Grantee at the address and facsimile number of the Grantee set
forth on the signature page of this Agreement or, if different, the last address
and facsimile number on file with the Company, or to such other address and
facsimile number as either may designate to the other in Writing. A notice shall
be deemed to be duly given if and when enclosed in a properly addressed sealed
envelope deposited., postage prepaid and followed by facsimile to the addressee.
In lieu of giving notice by mail as aforesaid, written notices under this
Agreement may be given by personal delivery to the Grantee or to the Company (as
the case may be) by nationally recognized courier or overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the Company
after the date of this Agreement affecting in any manner the number of kind of
outstanding shares of Common Stock of the Company, whether by stock dividend,
stock split, reclassification or recapitalization of such stock, or because the
Company has merged or consolidated with one or more other corporations (and
provided the Option does not thereby terminate pursuant to paragraph 14 of this
Agreement), then the number and kind of shares then subject to the Option and
the exercise price to be paid for the Option Shares shall be appropriately
adjusted by the Board of Directors; provided, however, that in no event shall
any such adjustment result in the Company being required to sell or issue any
fractional shares. Any such adjustment shall be made without change in the
aggregate exercise price applicable to the unexercised portion of the Option,
but with an appropriate adjustment to the exercise price of each Option Share or
other unit of security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other provision of
this Agreement, in the event of the reorganization, merger or consolidation of
the Company with one or more corporations as a result of which the Company is
not the surviving corporation, or the sale of substantially all the assets of
the Company or of more than fifty percent (50%) of the then outstanding stock of
the Company to another corporation or other entity in a single transaction, the
Option grated hereunder shall terminate, provided, however, that not later than
five (5) days before the effective date of such merger or consolidation or sale
of assets in which the Company is not the surviving corporation, the surviving
corporation may, but shall not be so obligated to, tender to the Grantee an
option to purchase a number of shares of capital stock of the surviving
corporation equal to the number of Option Shares then issuable upon exercise of
the Option, and such new option or options h r shares of the surviving
corporation shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the Option and
this Agreement.
(a) Entire Agreement. This Agreement and the Consulting Agreement contain the
entire agreement between the Parties, and may not be waived, amended, modified
or supplemented except by agreement in writing signed by the Party against whom
enforcement of any waiver, amendment, modification or supplement is sought.
Waiver of or failure to exercise any rights provided by this Agreement and the
Consulting Agreement in any respect shall not be deemed a waiver of any further
or future rights.
15. Miscellaneous.
(a) Governing Law. This Agreement shall be corned under the internal laws of
the State of New York and the Parties agree that the exclusive jurisdiction
for any litigation or arbitration arising from this Agreement shall be in
New York City, N.Y.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but which when taken together
shall constitute one agreement.
(c) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted
as if such provision were excluded and shall be enforceable in accordance
with its terms.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the Parties hereto have executed or caused this Agreement to
be executed as of the date set forth below.
Date: OPTIONEE:
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Address for Notices:
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▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
COMPANY:
By:
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Name:
Title:
EXHIBIT B
OPTION EXERCISE SCHEDULE
$45,000 immediately upon registration and delivery of shares
Up to $100,000 every month there after to total $300,000
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth below.
Date: OPTIONEE:
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Address for Notices:
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Company:
By:
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Name:
Title:
B-1