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EXHIBIT 10.10
ENDORSEMENT AGREEMENT
THIS
ENDORSEMENT AGREEMENT ("Agreement") is effective as of this 1st
day
of December 2003, by and between GREG
NORMAN, of 501 North A1A, Jupiter, FL
33477 ("Norman") AND RITZ INTERACTIVE, a
Delaware Corporation with offices at
2010 Main Street, Suite 400, Irvine,
California 92614 ("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 Norman in connection with the
advertisement and promotion of RII's
e-commerce website.
The
endorsement by Norman of RII's e-commerce website and business is
of
commercial value.
RII and
Norman 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, Norman
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) "NORMAN
IDENTIFICATION" shall mean any words, symbols, photographic
or graphic representations, and Norman's signature, statements
by
Norman or combination thereof which identify Norman such as,
for
example, Norman's name, voice, nickname, likeness, and anything
else
that identifies Norman. Subject to the terms of Paragraph 2
hereof,
the Norman Identification shall not include the Shark Logo owned
by
Great
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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, Norman will provide and
make available to RII the services, initiatives and programs
described in Schedule B attached hereto (the "Endorsement
Services"); and
b) Norman grants to RII
the exclusive right and license (the "License
Rights") to use the Norman 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 Norman 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. Norman expressly agrees and
undertakes that:
a)
The right
to use the Norman 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)
Norman
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 Norman
Identification, Norman providing services similar to the Norman
Services, or otherwise) during the Contract Period within the
Contract Territory. Notwithstanding the foregoing, it is
understood
that Norman will be free to enter into an affiliation with
interactive groups/entities which are predominantly content
based,
i.e., Sportsline, AOL, and further that Norman 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 Norman 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 Norman an option (the
"Stock Option Agreement") entitling
Norman, 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 faith Norman's involvement in
additional activities not covered by this
Agreement, which could be of mutual
benefit.
6. PAYMENTS.
Norman 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 Norman or its designated
entities and delivered to Bessemer Trust
Company of Florida, 222 Royal Palm Way,
West Palm Beach, FL 33480. 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,
Norman 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 Norman 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, Norman 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 Norman and
RII.
(c) To the extent that RII
requests that Norman make an Outside Personal
Appearance
in connection with the performance of the Endorsement Services
specified
in Paragraph 2 of Schedule B, Norman 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 Norman and subject to further compensation as
agreed
between
Norman 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 Norman for all reasonable first class
out-of-pocket expenses incurred by Norman. Without limitation to
the
foregoing, RII will reimburse Norman 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. Norman shall be provided with superior hotel suite
accommodation and standard rooms for four (4) members of
Norman's
staff.
ii)
RII shall give
Norman not less than thirty (30) days' nor more than
sixty (60) days notice of the time and place RII desires Norman
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 Norman make an Outside Personal
Appearance
in connection with the performance of the Endorsement Services
specified
in Paragraph 1 of Schedule B, Norman 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 Norman 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 501 North A1A,
Jupiter,
FL 33477.
8. NORMAN'S COOPERATION.
In addition to the Endorsement Services, to
the extent agreed upon in advance by
both RII and Norman (i) Norman will cause
his personnel and the personnel of
Great White Shark Enterprises and it
Affiliates (collectively, "Norman
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/Norman:
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a)
Shall not
be involved in any conduct or activity that brings
Norman/RII into disrepute;
b)
Shall not
be involved in any conduct or activity that may harm
RII/Norman 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 Norman 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
Norman Identification. It is understood
that RII shall not acquire and shall not
claim title to the Norman Identification
adverse to Norman: by virtue of
Norman's performance of the Endorsement
Services or the License Rights granted
to RII; or through RII's use of the Norman
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 Norman Identification
only in such a form and manner as is
specifically approved by Norman and, upon
the reasonable request by Norman,
shall use any reasonable legends, markings,
and notices of trademark rights or
registration reasonably specified by
Norman, or any other notice of Norman's
ownership, including copyright. RII agrees
that all use of the Norman
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 Norman
and such use has been approved by
Norman or Norman's authorized
representative. Norman 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. Norman agrees that any material
submitted would only be disapproved if such
material breached any law or is
likely to bring Norman 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 Norman 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 Norman
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 Norman
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 NORMAN
IDENTIFICATION.
a)
REGISTRATION. Norman shall be solely responsible for obtaining
and
maintaining, to the extent possible, trademark registrations in
his
own name for the Norman 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 Norman Identification, including without
limitation,
Greg Norman, Great White Shark Enterprises, or any mark, design
or
logo intended to make reference to the Norman Identification,
without the express written consent of Norman 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 Norman and shall be at the cost of RII. RII shall
cooperate
with Norman in the registration of the Norman Identification
and
provide any necessary use, information, or specimens; provided,
however, Norman 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.
