Exhibit 99.4(xii)
Joint Development and Marketing Agreement - Upper Deck
JOINT DEVELOPMENT AND MARKETING AGREEMENT
THIS AGREEMENT, effective as of ______________________, 1999 by and between
Upper Deck Authenticated, Ltd., a Nevada limited liability corporation, with its
principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
1989, The Upper Deck Company, LLC, a Delaware limited liability company, with
its principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter collectively referred to as "Upper Deck") and Micra
Soundcards, Inc., with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Micra").
WHEREAS, Upper Deck is the owner or licensee of the Upper Deck Proprietary Items
as defined herein below;
WHEREAS, Micra is in the business of developing, producing, distributing,
selling and otherwise utilizing sound trading cards; and
WHEREAS, Micra and Upper Deck wish to cooperate jointly and to use the Upper
Deck Proprietary Items to develop, sell or otherwise use the Products, as
defined herein below.
NOW, THEREFORE, in consideration of the following and of the premises and the
mutual promises contained herein, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
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have the following meanings:
1.1 Joint Effort - the cooperative, joint effort of Upper Deck and Micra,
subject to the terms and conditions of this Agreement, to jointly develop,
market, sell or otherwise use the Products.
1.2 Products - One (1) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ sound trading card with an edition of
approximately one hundred seven thousand five hundred (107,500) cards; provided,
however, such limited edition quantity may be increased upon the prior, written
approval of Upper Deck.
1.3 Territory - Worldwide.
1.4 Upper Deck Proprietary Items - the name, image and likeness of ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ("Jordan") and the voice of ▇▇▇ ▇▇▇▇▇▇ and the trademarks UPPER DECK(TM),
UPPER DECK AND DESIGN(TM) (as shown in Exhibit "A" attached hereto and
incorporated herein by this reference) and the UPPER DECK AUTHENTICATED(TM) logo
used in connection with the Products.
1.5 Third Party Proprietary Items - the trademarks and logos of the National
Basketball Association Properties, Inc. ("NBAP") used in connection with the
Products.
2. Joint Effort.
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2.1 Subject to the terms and conditions of this Agreement, Upper Deck and Micra
agree to collaborate and cooperate with one another during the term of this
Agreement to undertake and accomplish the Joint Effort; provided, however, that
the validity of this Agreement is conditioned upon Upper Deck obtaining the
express, written approval of NBA to use the Third Party Proprietary Items in
connection with the Joint Effort.
2.2 Upper Deck, as its contribution to the Joint Effort, hereby grants to Micra
a non-exclusive, non-transferable, non-assignable license, without the right to
grant sublicenses, to utilize the Upper Deck Proprietary Items in connection
with the sale of Products in the Territory. Without limiting the foregoing,
nothing in this Agreement shall be construed to prevent Upper Deck from granting
any other licenses or rights to other firms, companies, entities, groups or
individuals.
2.3 Micra agrees to use its best efforts to manufacture and sell the Products,
in consultation with Upper Deck and to Upper Deck's satisfaction, in the manner
and time frame as set forth herein in this Agreement.
2.4 Upper Deck shall use its best efforts to obtain the applicable third party
permissions and approvals to use the Third Party Proprietary Items and Upper
Deck Proprietary Items. Micra hereby agrees to abide by the covenants and to
fully perform the obligations contained in the agreements pertaining to any and
all such licenses, permissions and approvals and not to do or omit to do
anything which might constitute a breach under the terms of any such
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agreement. Micra shall be solely responsible for obtaining all other licenses,
permissions and approvals authorizing Micra to engage in the manufacture, sale,
distribution and advertising of the Products.
3. Representations, Warranties and Covenants.
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3.1 Micra warrants and represents that (i) Micra has the right, power and
authority to enter into this Agreement and to fully perform its obligations
hereunder; (ii) the making of this Agreement by Micra does not violate any
separate agreement existing between Micra and any other person or entity; and
(iii) all Products shall be manufactured, marketed, sold and distributed in
accordance with all applicable laws and regulations in the Territory.
3.2 Upper Deck warrants and represents that (i) Upper Deck has the right, power
and authority to enter into this Agreement and to fully perform its obligations
hereunder; (ii) the making of this Agreement by Upper Deck does not violate any
separate agreement existing between Upper Deck and any other person or entity;
and (iii) it is the owner or licensee of the Upper Deck Proprietary Items.
3.3 Micra and Upper Deck accept the rights and privileges so granted and agree
to exercise such rights and privileges strictly in accordance with the terms and
conditions of this Agreement. Micra agrees that it will utilize the Upper Deck
Proprietary Items only in, upon or in connection with the Products. Except with
the prior written consent of Upper Deck, Micra shall not use the Upper Deck
Proprietary Items for publicity purposes, combination sales, premiums or
giveaways and will not sell Products to anyone who Micra has reason to believe
will use them for publicity purposes, combination sales, premiums or giveaways.
4. Quality Standards and Manufacture of Products.
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4.1 Upper Deck desires to secure Micra or its designee to create a requested
quantity of Products. In the event Micra is not the printer of the Products,
Micra shall be, subject to the prior written approval of Upper Deck (which
approval shall not be unreasonably withheld), entitled to utilize a third party
printer of the Products, provided that such printer shall execute a letter in
the form of Exhibit "B" attached hereto and incorporated herein by this
reference. In the event Micra uses a third party manufacturer and/or printer,
Micra shall remain primarily obligated under all provisions of the Agreement.
Micra agrees that the nature and quality of all Products manufactured and
distributed hereunder shall be of the comparable quality in design, material and
workmanship of the products currently produced by Micra and shall conform to
the standards set by Upper Deck at its sole and absolute discretion. Micra
further agrees that in no event shall it have the right hereunder to use the
Upper Deck Proprietary Items or Third Party Proprietary Items, or any of them,
in any manner whatsoever (including, without limitation, on any Products, or in
connection with any publicity or promotional activities hereunder), without
obtaining Upper Deck's prior, written approval of such use in each instance,
which approval shall not be unreasonably withheld.
4.2 Micra shall retain all risk of loss or damage to the Products.
4.3 Before commencing or authorizing third parties, other than Upper Deck, to
commence the development of Products, Micra shall submit, at its sole cost, to
Upper Deck, for approval, actual proofs or final pre-production samples of the
proposed Products. Micra shall not proceed beyond the prototype or sample stage
without first securing the prior, written approval of Upper Deck. Upper Deck
has approved the production of these Products. If any derivatives of these
Products are desired, Micra shall submit samples to Upper Deck for approval.
Upper Deck shall grant such approvals within forty-five (45) days. If at the
termination of such forty-five (45) day period, Upper Deck has not granted
approval, Upper Deck shall be deemed to have withheld approval and Micra shall
either forward to Upper Deck or destroy all written materials, including, but
not limited to, written descriptions, layouts, and prototypes in connection with
the Products with such option being at Upper Deck's sole and absolute
discretion.
4.4 Upper Deck may periodically, at reasonable intervals during the term of
this Agreement, require that Micra furnish to Upper Deck a reasonable number of
items of each Product, for subsequent review of the quality of and copyright and
trademark usage and notice on same, and for any other purpose that Upper Deck
deems appropriate.
4.5 After the required approvals have been secured from Upper Deck pursuant to
Section 4.3 above, Micra shall not depart from the specifications, quality or
appearance thereof of the Products in any material respect without first
obtaining the express, written approval of Upper Deck. Micra shall make
submissions to Upper Deck and obtain approvals in the manner required above each
time new or revised concepts, layouts, descriptions, artwork, models, prototypes
or production samples are created, developed or adopted by or for Upper Deck.
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4.6 To ensure that the provisions of this Agreement are being observed, Micra
agrees that it will allow Upper Deck or its designees to enter Micra's premises
and/or the premises where the Products are being manufactured during regular
business hours and upon reasonable notice, for the purpose of inspecting the
Products and the facilities in which the Products are being manufactured. Micra
shall keep complete and accurate books and records during the term of this
Agreement, and for at least two (2) years thereafter, regarding its sale of
Products and all transactions relating to this Agreement, including without
limitation, copies of pertinent invoices, and shall advise Upper Deck of the
dates upon which each of the Products is first placed on sale or sold and the
dates of first use anywhere in the Territory. Such books and records shall be
available at Micra's place of business and free from interference for inspection
and audit during or after the term of this Agreement during reasonable business
hours and upon reasonable notice by Upper Deck. In the event that such
inspections reveals an underpayment by Micra of the actual royalty owed to Upper
Deck in excess of five percent (5%), in addition to paying the interest as set
forth in Section 6.7, Micra shall also reimburse Upper Deck for the cost of such
inspection.
4.7 In order to ensure that the Products are manufactured as set forth herein,
in the event that the quality standards and/or trademark and copyright usage and
notice requirements herein referred to are not met or are not maintained
throughout the period of manufacture of the Products hereunder, then, in
addition to any other rights available to Upper Deck under this Agreement or
otherwise, upon receipt of written notice from Upper Deck, Micra shall
immediately discontinue any and all manufacture of such Products.
4.8 Micra may produce Products in quantities to satisfy sales and warranty
replacements, as estimated in Micra's reasonable judgement. Micra will advise
Upper Deck of the quantity produced and available for warranty claims and the
number of Products used for such claims. Micra shall not be required to pay
royalties to Upper Deck for the shipment of any replacement or warranty
Products.
5. Upper Deck Proprietary Items.
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5.1 Nothing herein contained shall be construed as conferring upon Micra any
right or interest in and to the Upper Deck Proprietary Items. Micra shall
immediately discontinue the use of the Upper Deck Proprietary Items upon Upper
Deck's request and, in any event, upon expiration or termination of this
Agreement. Micra acknowledges that Upper Deck is the lawful owner or licensee
of the Upper Deck Proprietary Items and that Micra shall not contest or
challenge the ownership, validity or registration of the Upper Deck Proprietary
Items at any time during the term of this Agreement and thereafter. Micra shall
have no right or interest in or claim to the Upper Deck Proprietary Items and
shall not use the same in connection with any goods other than Products or in a
manner which might tend to defeat or dilute them.
5.2 Micra further agrees that in no event shall it have the right hereunder to
use the Upper Deck Proprietary Items in any manner whatsoever, without obtaining
Upper Deck's prior written permission of such use in each instance. Micra
agrees to use the Upper Deck Proprietary Items only in the form and manner and
with appropriate notices as prescribed in writing from time to time by Upper
Deck. Micra agrees that it will not manufacture, distribute, or sell or have
manufactured, distributed, or sold on Micra's behalf any products which do not
carry notices approved in writing by Upper Deck. The following language shall
appear on all Products:
"UPPER DECK/TM/ and the Upper Deck logos are trademarks of The Upper Deck
Company, LLC."
All Products shall bear such additional copyright, trademark and other
notices as Upper Deck shall direct from time to time. Micra shall use no
markings, legends, logos and/or notices on or in association with the Products
other than (i) those specified by Upper Deck; (ii) Micra's registered trademarks
and patents; or (iii) Micra's copyright notice, without obtaining Upper Deck's
prior, written approval.
6. Payments.
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6.1 In consideration of the mutual covenants and the license granted hereby,
Micra agrees to pay Upper Deck a royalty equal to One Dollar ($1.00) per Product
(excluding warranty replacements as set forth in Paragraph 4.8) sold or
otherwise distributed by Micra (the "Royalty Compensation").
6.2 Micra agrees to pay Upper Deck the guaranteed minimum compensation of One
Hundred Thousand Dollars ($100,000.00) (the "Minimum Compensation") which Micra
agrees to pay to Upper Deck as a minimum royalty on Net Sales of Products during
the term of this Agreement, with such sum due as follows: Twenty Thousand
Dollars ($20,000.00) within ten (10) days of Micra's execution of this
Agreement, Thirty Thousand
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Dollars ($30,000.00) due on or before March 31, 1999 and Fifty Thousand Dollars
($50,000.00) due on or before April 30, 1999. Such checks shall be made payable
to Upper Deck Authenticated, Ltd. Further, Micra agrees to pay Upper Deck Two
Thousand Dollars ($2,000.00) for ▇▇▇ ▇▇▇▇▇'▇ rights within ten (10) days of
execution.
6.3 Upper Deck shall be responsible for paying all royalties associated with
the Upper Deck Proprietary Items and the Third Party Proprietary Items. Unless
otherwise agreed, Micra shall be responsible for paying all other costs,
including but not limited to, manufacturing costs and marketing costs. Further,
Micra shall be solely responsible and liable for any payments of any and all
taxes, levies, fees, shipment costs, duties and any and all other charges
imposed by any national, state or local government authority arising from the
sale of the Products.
6.4 As used herein, the term "Net Sales" shall mean gross sales
of the Products by Micra less actual returns of such Products. No deductions
may be taken for commissions, taxes or any other expenses. Sales resulting from
sales to any party directly or indirectly related to or affiliated with Micra
shall be computed based on the regular selling price of the Products concerned
to unrelated third parties.
6.5 Within thirty (30) days after the close of each calendar
month during the term of this Agreement, Micra shall furnish to Upper Deck
complete and accurate statements showing the sales volume of each Product, gross
selling price, itemized deduction from the gross selling price and the Net Sales
of the Products distributed and sold by Micra during the preceding calendar
month and during the year to date, together with any returns made during the
preceding calendar month and during the year to date. At such time as Micra has
recouped the portion of the Minimum Compensation, as applicable, previously paid
in accordance with Section 6.2 above from the Royalty Compensation payable under
Section 6.1, Micra shall, together with each monthly statement, pay to Upper
Deck the Royalty Compensation due and payable to Upper Deck during the preceding
calendar month.
6.6 Receipt or acceptance by Upper Deck of any of the reports
furnished pursuant to this Agreement or of any sums paid hereunder shall not
preclude Upper Deck from questioning the correctness thereof. In the event that
any inconsistencies or mistakes are discovered in such statements or payments,
they shall immediately be rectified and the appropriate payments shall be made
by Micra.
6.7 Payments, if not paid in full when due, shall bear interest
on any unpaid portion at the rate of twelve percent (12%) per annum or the
maximum rate allowable by applicable law, whichever is less.
7. Term; Termination.
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7.1 Subject to the provisions of this Section, this Agreement
shall commence on the effective date of this Agreement and shall expire on
December 31, 1999.
7.2 Upper Deck shall have the right to terminate this Agreement upon the giving
of ten (10) days written notice to Micra upon the occurrence of any of the
following: (i) any breach by Micra of any of the provisions of this Agreement if
such breach has not been cured within ten (10) days from the date of the notice;
(ii) breach of representations and warranties or covenants of Micra contained
herein if such breach has not been cured within ten (10) days from the date of
the notice; (iii) the appointment of any receiver or trustee to take possession
of the properties or assets of Micra; (iv) the sale of Micra; (v) the insolvency
of or filing of a voluntary petition in bankruptcy by Micra, the filing of a
petition or commencement of any proceeding to have Micra declared bankrupt or
insolvent, the appointment of a receiver or trustee for, or the execution by
Micra of an assignment for benefit of creditors, or failure or inability by
Micra to pay its debts as they become due; (vi) Micra acquires any interest in a
business in competition with Upper Deck or is in any way taken over by a
competing business; or (vii) Micra undergoes a significant change in its
ownership and Micra is not the surviving entity. In the event Micra breaches the
Agreement, by (1) advertising or promoting the Products without the express,
prior written approval of Upper Deck or (2) producing Products in excess of the
limited edition size without the express prior written approval of Upper Deck,
Micra shall immediately pay to Upper Deck One Hundred Thousand Dollars
($100,000.00) per breach.
7.3 Following any termination of this Agreement, Micra shall cease all
manufacture, distribution and sale of Products.
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8. Indemnification.
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8.1 Micra shall indemnify and hold harmless Upper Deck, its subsidiaries,
affiliates, related companies, assigns, directors, officers, agents and
employees from any and all losses, damages, liabilities, claims, actions,
disbursements, and legal costs and attorneys' fees arising out of or connected
with (a) any breach or alleged breach of Micra's representations or warranties,
or covenants contained herein, (b) any claim or suit relating to an actual or
alleged defect in the Products manufactured or prepared by or for Upper Deck,
(c) any alleged unauthorized use of any copyrights, trademarks or logos, or (d)
any claim or suit for personal injuries or damage to property arising from or in
connection with the sale or use of the Products.
8.2 Upper Deck shall indemnify and hold harmless Micra, its subsidiaries,
affiliates, related companies, assigns, directors, officers, agents and
employees from any and all losses, damages, liabilities, claims, actions,
disbursements, and legal costs and attorneys' fees arising out of or connected
with (a) any breach or alleged breach of Upper Deck's representations or
warranties, or covenants contained herein, (b) any claim or suit relating to or
resulting from the failure by Upper Deck to pay any and all royalties, licensing
fees or other payments due to third parties in connection with the Upper Deck
Proprietary Items; and (c) any failure by Upper Deck to obtain all necessary
consents, approvals, licenses or similar rights to use the Upper Deck
Proprietary Items.
8.3 Upper Deck agrees to give Micra notice of any action, suit, proceeding,
claim, demand, inquiry or investigation that creates an obligation to indemnify
as required under this Section. Said notice shall tender defense of any said
claim to Micra. If Micra refuses to timely provide a defense to said claim,
Upper Deck may elect to undertake the defense of any such claim without in any
way diminishing the duty of Micra to indemnify Upper Deck.
8.4 The indemnifications set forth in Sections 8.1 and 8.2 shall survive the
expiration or termination of this Agreement.
9. Insurance. Micra agrees to obtain, at its own cost and expense, a
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comprehensive general liability insurance policy, including product liability
insurance and advertisers liability insurance, to be in force at all times
during the term of this Agreement and thereafter for as long as Micra shall be
responsible hereunder for loss or damage. Such insurance policy shall be
obtained from an insurance company and on a policy form acceptable to Upper
Deck, providing adequate protection to Upper Deck in an amount no less than Two
Million Dollars ($2,000,000.00) combined single limits for each single
occurrence for bodily injury and One Hundred Thousand Dollars ($100,000U.S.) for
property damage. The amount of coverage under the advertiser's liability policy
shall be a minimum of $500,000/$1,000,000U.S. Within thirty (30) days from the
effective date of this Agreement, Micra shall submit to Upper Deck a certificate
of insurance naming Upper Deck as an additional insured party and require that
the insurer shall not terminate or materially modify such insurance certificate
or coverage without written notice to Upper Deck at least thirty (30) days in
advance thereof. In the event Micra does not obtain and maintain the insurance
coverage set forth herein, Upper Deck shall have the right, but not the
obligation, to purchase such insurance in Micra's name and at Micra's sole
expense.
10. Non-Disclosure. The parties agree that all information, materials,
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documentation, data and reproductions relating to either the terms of this
Agreement, Upper Deck's business, Micra's business, trademarks or the Upper Deck
Proprietary Items (the "Confidential Information") shall be held in strict
confidence by the parties. The nature and contents of the Confidential
Information shall not be disclosed to any employee, person, firm or entity
(other than on a "need-to-know" basis), or used without the prior written
permission of the other party. It is agreed that Confidential Information shall
not include any information or data which (a) is already known, independent of
the party providing the Confidential Information; (b) is or becomes publicly
known through no wrongful act of the other party; or (c) is independently
developed by the party without reference to any Confidential Information
provided by the other party. The parties acknowledge that a breach of any of
the promises and covenants set forth herein will have a material and adverse
effect upon the other party and that damages arising from said breach may be
difficult to ascertain. Consequently, the other party agrees that in addition
to, and without limiting any other remedy or right the other party may have, the
non-breaching party shall have the right to an immediate injunction enjoining
such breach.
11. Notices. All notifications, requests or other communications required or
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permitted by this Agreement shall be in writing and directed as indicated below.
Any such notice shall be deemed given and effective when (a)
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delivered personally, by Telex or facsimile, or by overnight courier, or (b)
three (3) days after the postmark date if mailed by certified or registered
mail, postage prepaid, return receipt requested and addressed as follows:
If Sent to Upper Deck, Address to:
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THE UPPER DECK COMPANY, LLC
UPPER DECK AUTHENTICATED, LTD.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
If Sent to Micra, Address to:
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Micra Soundcards, Inc. Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Addresses may be modified at any time by written notification from one party to
the other party.
12. No Assignment. Upper Deck shall have the right to transfer, assign or
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sublicense all or any part of this Agreement to any entity, including, without
limitation to, Upper Deck International, LLC, without the prior, written consent
of Micra. Micra shall not delegate any duties, nor assign any rights or claims
under this Agreement without the prior written consent of Upper Deck, and any
such attempted delegation or assignment shall be void. Notwithstanding the
foregoing, the obligations created by this Agreement are binding upon and insure
to the benefit of successors or assign of either of the parties.
13. Non-Waiver and Amendment. Failure by either party to enforce or take
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advantage of any provision of this Agreement shall not constitute a waiver of
the right subsequently to enforce or take advantage of such provision. Except
as otherwise provided herein, this Agreement or any of the terms and provisions
thereof may not be changed, amended or waived, in any manner whatsoever, except
by written agreement executed by an authorized officer of each party.
14. Governing Law; Jurisdiction This Agreement shall be governed by and
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construed in accordance with the laws of the State of California. Any action
brought to resolve a dispute arising from the interpretation or construction of
or to enforce this Agreement shall be brought in a court of appropriate
jurisdiction in San Diego, California and both parties hereby consent to the
personal jurisdiction of any such court.
15. Relationship between the Parties. This Agreement shall not give rise to
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any relationship of employment, commission agency, agency, partnership, joint
venture or company between Upper Deck and Micra. Micra shall have no power to
represent Upper Deck or have the authority, whether express or implied, to
assume or create any obligation on behalf of Upper Deck.
16. Severability. If any provision is prohibited by or under the laws of any
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jurisdiction in which this Agreement may be used or to which it may be
applicable, said provision shall be, as to said jurisdiction, ineffective to the
extent of such prohibition, without invalidating thereby any of the remaining
provisions of this Agreement.
17. Force Majeure. If the performance of this Agreement or of any obligation
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hereunder, except the making of payments, is prevented, restricted, or
interfered with by reason of fire or other casualty or accident; strikes or
labor disputes; inability to procure raw materials, power, or supplies; war or
other violence; any law, order, proclamation, regulation, ordinance, demand, or
requirement of any governmental agency; or any other act or condition whatsoever
beyond the reasonable control of the parties hereto; the party so affected, upon
giving prompt notice to the other party, shall be excused from such performance
to the extent of such prevention, restriction, or interference. The party so
affected, however, shall make its best efforts to avoid or remove such causes of
nonperformance and shall continue performance hereunder with the utmost dispatch
whenever such causes are removed.
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18. Section References and Captions. Any reference in this Agreement to a
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section or subsection shall be deemed to include a reference to any subsidiary
sections whenever the context requires. The captions of the sections and
subsidiary sections of this Agreement are included for reference purposes only
and are not intended to be a part of the Agreement or in any way to define,
limit or describe the scope or intent of the particular provision to which they
refer.
19. Entire Agreement. This Agreement, including any attachments, exhibits or
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appendices attached hereto, sets forth all of the promises, agreements,
conditions and understandings, written or oral, between the parties hereto with
respect to the subject matter hereof and constitutes the entire agreement
between the parties, superseding any prior or contemporaneous oral or written
agreements or understandings.
20. Validity. This Agreement shall not be effective until it is signed by
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Micra and counter-signed by Upper Deck.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
copies on the day and year first above set forth.
MICRA SOUNDCARDS, INC. THE UPPER DECK COMPANY, LLC
By: (signed) "▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇") By: (signed) "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇"
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President Title: Chief Executive Officer
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Date: Date:
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UPPER DECK AUTHENTICATED, LTD.
By: (signed) "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇"
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chairman and Chief Executive Officer
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Date:
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EXHIBIT "A"
[LOGO OF UPPER DECK]
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EXHIBIT "B"
Date:
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The Upper Deck Company, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Upper Deck Authenticated, Ltd.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chairman and Chief Executive
Gentlemen/Ladies:
This letter will serve as notice to you that pursuant to Section 4.1 of the
Agreement dated _________ between Micra Soundcards, Inc., The Upper Deck
Company, LLC and Upper Deck Authenticated, Ltd. (the "Agreement"), we have been
engaged as the manufacturer for Micra Soundcards, Inc. in connection with the
manufacture of the Products as defined in the Agreement. We hereby acknowledge
that we have received a copy and are cognizant of the terms and conditions set
forth in the Agreement and hereby agree to observe and be bound by the
provisions of the Agreement. It is understood that this engagement is on a
royalty free basis.
We understand that our engagement as the manufacturer for Micra Soundcards,
Inc. is subject to your written approval. We request, therefore, that you sign
in the space below, thereby showing your acceptance of our engagements as
aforesaid.
Very truly yours,
MANUFACTURER:
(Name Here)
By:
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Name:
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Title:
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AGREED TO AND ACCEPTED:
THE UPPER DECK COMPANY, LLC UPPER DECK AUTHENTICATED, LTD.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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