Exhibit 10.1
August 29, 2008
Xxxxxxxxx Xxxxxx
President & CEO
Mymetics Corporation
Xxx xx xx Xxxxxxxxxx 00
XX 0000 XXXX
Xxxxxxxxxxx
By email: Xxxxxxxxx.xxxxxx@xxxxxxxx.xxx
Dear Christian,
Pursuant to our various discussions, this letter ("Agreement") will serve as a
binding letter of agreement between P.S. StarGames, LLC ("StarGames"), a a
Virginia Limited Liability Company with principal place of business in
Lynnfield, MA, and Mymetics Corporation, a Delaware corporation with principal
place of business in Nyon, Switzerland ("Mymetics" or "Sponsor"), or its
assignee, for certain sponsorship and advertising activities in conjunction with
StarGames' scheduled tennis event featuring world class female and/or male
players who have qualified for the event by winning Grand Slam singles
championships. StarGames understands that Mymetics will make the initial $60,000
payment below since Dream Vaccines Foundation ("DVF") has not yet established a
bank account and that Mymetics intends to assign its sponsorship to another
entity unrelated to Mymetics or DVF that will reimburse Mymetics for the initial
$60,000 payment and assume its rights and obligations under this Agreement. Any
assignment by Mymetics of its rights, obligations or legal responsibilities
under the Agreement shall be made pursuant to Section 1 below. The event will
take place at Madison Square Garden in New York City on March 2, 2009 and a
similar date in future years (hereafter referred to as the "Event").
It is my understanding that we have agreed to the following terms and
conditions:
A. Sponsor will receive the following benefits in conjunction with the Event:
1. Exclusivity: Mymetics will be named the Official Research & Development
sponsor of the Event and have exclusivity in its product category. Subject to
StarGames reason able right of approval, in its sole discretion, Sponsor shall
have the right to replace Mymetics as the corporate sponsor of the Event with
another corporate sponsor on the same terms and conditions as provided for
herein, provided that such replacement sponsor shall not be in conflict with any
other sponsor of Event. Mymetics shall notify StarGames of its intent to involve
a replacement sponsor no later than one hundred twenty days prior to the Event
with the understanding that certain benefits may no longer be available to such
replacement sponsor (i.e. logo on posters, etc.). Following Mymetics
notification of its intention to assign, StarGames shall inform Mymetics in a
reasonable time should it object for any reason to the proposed assignee. Should
Mymetics be unable to assign its rights and obligations under this Agreement to
another entity for whatever reason, including exercise by StarGames of its right
to reasonable right of approval of assignment, Mymetics agrees that it will be
responsible for all rights, obligations and legal responsibilities under the
Agreement for the entire Term, as defined below, of the Agreement.
2. Signage: Sponsor will receive one (1) on-court billboard, on each sideline
(minimum size 3' x 6') with at least one (1) being in television camera range.
3. Program Advertisement: Sponsor will receive one (1) full page color
advertisements in the Event program (artwork to be supplied by Mymetics no later
than forty five days prior to the Event).
4. Advertising Rights: Sponsor shall have the right to promote its association
with the Event in all forms of media; however, there can be no implied
endorsement of any kind of any product or service provided by Sponsor by any
player in the Event without their express written permission which can be
withheld for any reason. All such advertising shall be subject to StarGames
review and approval and shall also include the official name of the Event as
well as a reference to the Event date and site (Madison Square Garden-The
World's Greatest Arena). Sponsor agrees to promote the Event and their
affiliation with the Event on their website(s) and provide a link to the Event
website.
5. Arena Media: Madison Square Garden offers two (2) forms of arena media, which
shall include exposure for Sponsor. The Hi-definition JumboTron will play
Sponsor's recorded content/TV advertisements throughout the evening including
but not limited to pre-match and post-match. The Hi-definition LED Board will
display Sponsor's name and logo from time to time throughout the Event. All
materials for in arena media shall be supplied by Sponsor at its expense no
later than February 1, 2008 (StarGames to provide all specifications).
6. Concourse Display Area: Sponsor, at its own expense, shall have the right to
up a display booth in the arena concourse for promotional giveaways or displays.
All such materials and displays shall be subject to StarGames' and Madison
Square Garden's review and approval.
7. Promotional Material: Sponsor, at its expense, shall have the right to create
and distribute promotional materials related to the Event. All promotional
material may contain Sponsor logos and details of the match; however, there will
be no implied endorsement of any kind of any products or services of Sponsor by
any players participating in the Event, StarGames or Madison Square Garden
without their express written permission, which can be withheld for any reason.
All such promotional materials shall be subject to StarGames' review and
approval and shall also include the official name of the Event as well as a
reference to the Event date and site (Madison Square Garden-The World's Greatest
Arena).
8. Event Advertising: Sponsor's name and/or logo (as applicable) shall appear in
certain Event promotional and advertising materials as is standard for an
official sponsor of the Event. It is anticipated that there will be an
advertising budget of no less than $500,000 (cash and trade) to support the
Event.
9. Tickets: A total of one-hundred and fifty (150) seats shall be made available
to Sponsor in the 100 level and better with a mix of tickets to be determined by
StarGames in consultation with Sponsor. In this connection, StarGames shall use
commercially reasonable efforts to place all Sponsor tickets in the same area,
provided however, that Sponsor understands that any seats provided to Sponsor in
the front row may not be contiguous to any other seats. Sponsor shall also
receive 25 upper level tickets to be used for charitable give aways.
10. VIP/Hospitality: A VIP hospitality area will be provided to Sponsor for a
client entertainment function/party (food, beverage and decoration to be paid
separately by Sponsor). Sponsor shall provide StarGames at least sixty (60) days
notice of its desire to have a hospitality event on site.
11. Television: The Event will be televised nationally in the United States and
in other parts of the world on a live or tape delayed basis.
B. Sponsorship Cost: The cost to Sponsor for the rights and benefits outlined
herein is $300,000USD which shall be payable in three installments as follows:
* Twenty percent (20%) or $60,000USD shall be payable on signing this
Agreement with such payment being made by wire transfer to StarGames'
account at Bank of America; Account # 00000000 with a routing number of
000000000.
* $140,000USD shall be payable on or before December 15, 2008 by wire
transfer to the above account
* $100,000 payable on or before February 15, 2009 also by wire transfer to
the above account.
* Should the Option to Renewal, as set forth below, be exercised for the 2010
and/or 2011 Events, the payment schedule shall be identical to that
outlined above with the understanding that the first payment of $60,000
shall be due and payable on June 15 in each year.
C. Other:
1. Limit of Liability. Subject to the caveats herinebelow, neither party shall
be liable to the other party for any lost profits or any indirect,
consequential, special, exemplary or incidental damages, whether in contract,
tort or otherwise, arising from or relating to this Agreement and/or the Event.
2. Assignment. Other than Mymetics right to assign their rights to a substitute
sponsor, as defined above, neither Sponsor nor StarGames shall have the right to
grant sublicenses with respect to this Agreement or to otherwise assign,
alienate, transfer, encumber, or hypothecate any of its rights or obligations
under this Agreement other than as outlined herein without written approval,
such approval to not be unreasonably withheld. Sponsor acknowledges that the
assignment by StarGames of certain obligations to Madison Square Garden or a
broadcast outlet shall not be considered a breach of this Agreement.
3. Severability. If any provision of this Agreement shall be declared illegal,
invalid, void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
4. Force Mejeure. If StarGames is prevented from performing its obligations
hereunder and the Event cannot, therefore, take place, in whole or in part,
because of an Act of God, national emergency, war, acts of terrorism (or related
security or safety concerns), strike, lockout or other labor disputes or any
other similar or dissimilar cause beyond the reasonable control of StarGames,
StarGames shall have no obligation or liability to Sponsor as a result thereof.
In addition, with respect to any and all rights and services, whether furnished
by StarGames to Sponsor with or without charge, StarGames shall in no event be
liable for a failure to provide such rights or services, or for the acts or
omissions of any person or entity with respect to such rights or services,
resulting from strikes, lockouts or other labor disputes, accidents or any other
causes whatsoever beyond the reasonable control of StarGames. Should the Event
be canceled under the terms of this provision and not rescheduled, StarGames
shall refund to Sponsor any fees already paid to StarGames hereunder.
Notwithstanding anything to the contrary herein, should the Event be canceled
for any reason, StarGames shall have the right to reschedule the Event with all
terms and conditions herein remaining in full force and effect.
5. Insurance. Both StarGames and Sponsor shall each obtain from an insurance
carrier having a rating of at least A- by A.M. Best & Co. or other rating
satisfactory to StarGames, and thereafter maintain, Commercial General Liability
insurance, including product, advertising and contractual liability insurance.
Such insurance coverage shall provide adequate protection for the Sponsor
Indemnities and StarGames Indemnities (as defined below) whom shall be included
as additional insured parties on StarGames' and Sponsor's policies against any
claims, demands, or causes of action and damages, including reasonable
attorney's fees, arising out of any breach of this Agreement or any occurrence
during the Event. Such insurance policy shall not be canceled or materially
changed in form without at least thirty (30) days written notice to the other
party. Each party shall furnish the other with a certificate of such insurance
and endorsements in the form prescribed by StarGames. Such insurance policy or
policies shall provide coverage of no less than three million dollars
($3,000,000) for personal and advertising injury, bodily injury and property
damage arising out of each occurrence.
6. Indemnification.
a. StarGames agrees to indemnify and hold harmless Sponsor and its directors,
officers, shareholders, employees, distributors and/or agents (collectively the
"Sponsor Indemnitees") from any and all claims, demands, costs, causes of
action, suits, judgments, harm, liabilities, losses, expenses and damages
(including attorneys' fees, costs and expert witness fees) actually incurred,
sustained or suffered by any Sponsor Indemnitees arising from the breach of or
non-compliance on the part of StarGames of its representations or warranties set
forth above.
b. Sponsor agrees to indemnify and hold harmless StarGames, and its respective
directors, officers, employees and/or agents, Madison Square Garden, Xxxx Xxxxx
and Xxxxxx Xxxx Xxxx (collectively the "StarGames Indemnitees") from any and all
claims, demands, costs, causes of action, suits, judgments, harm, liabilities,
losses, expenses and damages (including attorneys' fees, costs and expert
witness fees) actually incurred, sustained or suffered by any of the StarGames
Indemnitees arising from, or otherwise attributable to: (i) Sponsor's (or its
agents' or representatives') breach of or non-compliance with any of its
representations or warranties set forth above or (ii) any unauthorized use of
any copyright or trademark of any third party in connection with the Event. In
the event of an assignment of this Agreement by Sponsor, subject to Section 1
above, any assignee of Sponsor shall abide by the terms of this indemnification
without right to alter or amend.
c. The terms of this Section 6 shall survive the termination of this Agreement.
7. Default; Corrective Actions; Termination: Sponsor's and/or StarGames' failure
to fully comply with each provision of this Agreement shall be deemed a default
under the Agreement. The defaulting party will be given notice of such default
by the non-defaulting party within five (5) business days of the discovery of
the default. If the default is curable, the defaulting party shall have ten (10)
days from the date the notice is delivered to cure such default unless such
default is reasonably considered more time sensitive; in which instance the
defaulting party must take corrective action immediately upon notice.
8. Liquidated Damages: Sponsor acknowledges that the obligations of Sponsor to
be rendered hereunder are unique and cannot be timely replaced, and the loss of
the benefits associated with the Sponsor obligations as defined herein will
cause irreparable injury to StarGames or its assigns. Therefore, in the event of
a breach of this Agreement by Sponsor or any assignee pursuant to the terms of
Section 1 above, StarGames shall be entitled, in addition to all other remedies
available to it, to obtain equitable relief by way of temporary and permanent
injunction or otherwise. Provided, however, Stargames will not be entitled to
receive more than $300,000USD in monetary damages.
9. Governing Law and Arbitration. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
without regard to its principles of conflicts of law. If a dispute arises under
this Agreement which cannot be resolved, the dispute shall be submitted to
arbitration in the Commonwealth of Massachusetts and resolved by a single
arbitrator (who shall be a lawyer admitted for no less than ten years to
practice law in the Commonwealth of Massachusetts) in accordance with the
Commercial Arbitration Rules of the American Arbitration Association located in
Boston, Mass. The arbitration proceeding shall be confidential. Each party is
entitled to depose fact witnesses and any expert witness retained by any other
party, and to conduct other discovery as the arbitrator deems appropriate. The
decision rendered by the arbitrator shall be final, binding and conclusive and
judgment may be entered upon any award by any court of competent jurisdiction.
The arbitrator shall not have the authority to award attorneys' fees,
disbursements or related charges or fees to any party. By way of this section,
all parties waive any objection of any kind to jurisdiction or venue in the
United States of America or the Commonwealth of Massachusetts.
10. Significance of Headings. Section headings are solely for the purpose of
aiding in 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 the section headings had been omitted.
11. Entire Agreement. This writing constitutes the entire agreement between the
parties and may not be changed or modified except by a writing signed by the
party or parties to be charged thereby. These terms and conditions supersede any
and all prior agreements and understandings between the parties.
12. Independent Contractor Status. The parties recognize that StarGames is an
independent contractor and not an employee, agent, co-venturer, or
representative of Sponsor. This Agreement does not constitute a partnership or
joint venture between StarGames and Sponsor. Neither party shall have any right
to obligate or bind the other party in any manner whatsoever other than those
rights granted hereunder. Further, nothing contained herein shall be construed
to grant Sponsor any ownership in the Event or any rights to the endorsement of
any player participating in the Event.
13. Notices. All notices or other communications and deliveries required or
permitted under this Agreement, or permitted or desired to be given or made by
any party to the other, shall be in written form and given or made by hand
delivery or by mail (certified or registered, return receipt requested) at or to
the address set forth below. Any notice shall be deemed received on the date
that it is hand delivered, or, in the event such notice is mailed, on the date
which is the earlier of (a) five (5) business days subsequent to the date it is
deposited with the United States Postal Service, or (b) the date of actual
receipt. Notices shall be sent to:
To StarGames: 00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
To Mymetics: Xxxxxxxxx Xxxxxx
President & CEO
Mymetics Corporation
Xxx xx xx Xxxxxxxxxx 00
XX 0000 XXXX
Xxxxxxxxxxx
In the case of a legal dispute, mediation, arbitration or any other legal
proceeding arising out of this contract and/or any of its provisions, Mymetics
hereby assents to service in the United States via the representative listed
below, with a duplicate copy to be delivered to the addressee listed above:
Xxxxxx X. Xxxxx, Esq.
Seyfarth Xxxx, LLP
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000x
14. Option to Renew. Mymetics or its assignee shall have the option, exercisable
by written notice to StarGames by no later than sixty (60) days following the
2009 Event (the "First Option"), to renew the terms of this Agreement to provide
corporate sponsorship to an event with the same format as the Event, to take
place at Madison Square Garden in New York City in March 2010 (the "2010
Event"). Should Mymetics have assigned its interest in this Agreement, StarGames
shall have the option, exercisable by written notice to assignee within ten (10)
business days of the receipt of the written notice to renew, to decline the
First Option for any reason. Should StarGames exercise its right to decline the
First Option, Mymetics shall have a period of thirty (30) days to identify a
replacement sponsor to serve as assignee of the rights and obligations under the
Agreement as renewed via the First Option. Such assignment shall be subject to
StarGames reason able right of approval, in its sole discretion. StarGames shall
have ten (10) business days to approve such assignment or inform Mymetics of the
declination of the First Option. Should the First Option be exercised by either
Mymetics or an approved assignee, the parties shall have the same rights and
obligations to the 2010 Event as the Event, including a Sponsorship Fee in the
amount of Three Hundred Thousand Dollars ($300,000), which shall be payable as
outlined above.
15. If Mymetics or its assignee exercises the First Option with the approval of
StarGames, Mymetics or assignee shall have the option, exercisable by written
notice to StarGames by no later than sixty (60) days following the 2010 Event
(the "Second Option"), to renew the terms of this Agreement to provide corporate
sponsorship to an event with the same format as the Event, to take place at
Madison Square Garden in New York City in March 2011 (the "2011 Event"). Should
Mymetics have assigned its interest in this Agreement, StarGames shall have the
option, exercisable by written notice to assignee within ten (10) business days
of the receipt of the written notice to renew, to decline the Second Option for
any reason. Should StarGames exercise its right to decline the Second Option,
Mymetics shall have a period of thirty (30) days to identify a replacement
sponsor to serve as assignee of the rights and obligations under the Agreement
as renewed via the Second Option. Such assignment shall be subject to StarGames
reason able right of approval, in its sole discretion. StarGames shall have ten
(10) business days to approve such assignment or inform Mymetics of the
declination of the Second Option. Should the Second Option be exercised by
either Mymetics or an approved assignee, the parties shall have the same rights
and obligations to the 2011 Event as the 2010 Event, including a Sponsorship Fee
in the amount of Three Hundred Thousand Dollars ($300,000), which shall be
payable as outlined above.
16. Confidentiality. It is agreed that the financial terms and conditions of
this Agreement are confidential and, therefore, shall not, except as may be
necessary to comply with any applicable law or court order, be made available to
any third parties (other than agents, partners, counsel, or accountants of the
parties) without the prior written consent of either written consent of the
other party.
This Agreement shall serve as a binding agreement between the parties. If you
agree that this Agreement accurately summarizes the terms of our understanding
please so indicate by signing in the space provided for below and returning a
copy to me for execution. On behalf of StarGames, I am looking forward to
working with you. If you have any questions on the above, please give me a call
at your earliest convenience.
Regards,
Xxxxx Xxxxxxx
President, StarGames
ACCEPTED AND AGREED:
------------------------------------
Mymetics
Xxxxxxxxx Xxxxxx, President & CEO
Xxx xx xx Xxxxxxxxxx 00
XX 0000 XXXX
