Exhibit 99.4(xi)
Ficel Marketing Agreement
AGREEMENT
B E T W E E N:
FICEL MARKETING CORP., an Ontario
corporation with offices
at 0-0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
(hereinafter called "Ficel")
- and -
MICRA SOUNDCARDS INC., an Ontario corporation
with offices at 000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
(hereinafter called "Micra")
WHEREAS Micra holds two patents and has several patents pending on a product
generally referred to as "Talking Trading Cards";
WHEREAS Ficel holds the rights to the likeness and image of Xxxx Xxxxxxxxx and
holds the rights to the voice of Xxxxxx Xxxxxx as he called the winning goal in
game 8 of the Canada vs. Soviet Union series in 1972;
WHEREAS Micra wishes to produce "player" cards and "stand-alone" cards with the
likeness and image of Xxxx Xxxxxxxxx scoring the winning goal in game 8 of the
0000 Xxxxxx vs. The Soviet Union series, complete with the voice of Xxxxxx
Xxxxxx as he called the play;
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, both parties hereby agree to the following:
1. Micra will produce 2,000 "stand-alone" cards, 2,000 players and 2,000
"player" "Talking Trading Cards" utilizing the image of Xxxx Xxxxxxxxx. Micra
will retain 1,000 of each of these items to be used strictly as selling
samples/giveaways to potential customers and investors in Micra. They are not
to be utilized for sale by Micra. The remaining 1,000 "stand-alone" cards,
1,000 "player" cards and 1,000 players will be provided to Ficel to be used as
Ficel wishes; provided, however, that if Ficel breaches or otherwise fails to
comply with the terms of section 2 of this Agreement, Ficel will forthwith
return such "stand-alone" cards, "player" cards and players to Micra. The costs
of production of the cards and players will be Micra's costs in its totality.
2. Ficel will provide the approval to Micra for the use in both the production
and distribution of "Talking Trading Cards" of the image of Xxxx Xxxxxxxxx and
of the winning call by Xxxxxx Xxxxxx of the goal scored by Xxxx Xxxxxxxxx in
game 8 of the 0000 Xxxxxx vs. The Soviet Union series. Ficel represents and
warrants to Micra, and acknowledges that Micra is relying on such representation
and warranty in entering into this Agreement, that it has the rights for the use
of the image of Xxxx Xxxxxxxxx as described and the use of the "call" of the
goal and the authority to license, assign or otherwise transfer such rights to
Micra as herein contemplated.
3. The parties acknowledge that Ficel has provided final press sheets of the
front and back of the cards, and all work up to that point was approved by
Micra.
4. Ficel will only deal with Micra for the production of "Heritage Hockey
Talking Trading Cards" during the term of this Agreement. "Heritage Hockey" is
defined as all hockey players and personalities who have retired for at least 12
months from the NHL. Ficel hereby covenants and agrees to use its best efforts
to obtain and provide to Micra the right
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to use images and sounds of such other "Heritage Hockey" players and
personalities as Ficel and Micra may from time to time mutually agree. Subject
to section 6 of this Agreement, Micra will provide to Ficel world-wide and
exclusive rights to market and sell "Heritage Hockey Talking Trading Cards",
where the sound is manufactured by Micra. Any royalties that may have to be paid
to the NHL, the NHLPA or any other person or entity will be the sole
responsibility of Ficel. Ficel will indemnify and forever hold Micra harmless
from and against any and all claims respecting the use of the images or sounds
related to any "Heritage Hockey" players or personalities where royalties are
payable to the NHL , the NHLPA or any other person or entity.
5. Ficel will indemnify and forever hold Micra harmless from and against any
and all further claims respecting the use of the image of Xxxx Xxxxxxxxx as
provided for in the playing cards and the "call" of Xxxxxx Xxxxxx as provided in
the playing cards as set out above and for any and all claims respecting the use
of images and sounds of other "Heritage Hockey" players and personalities
provided by Ficel for use by Micra in the production, marketing and distribution
of "Heritage Hockey Talking Trading Cards". Ficel does not warrant that there
is any value to the cards or the "call" and does not guarantee any minimum price
that any individual will pay for such a card.
6. In the event that a customer of Micra wishes Micra to produce "Heritage
Hockey Talking Trading Cards" on its behalf, Micra shall be entitled to do so
provided that Micra has discussed each and every occurrence with Ficel and
agreed to pay Ficel a reasonable royalty or commission to be negotiated in good
faith by Ficel and Micra. If the customer wishes to retain the services of
Ficel for negotiations and other creative services, Micra will introduce Ficel
to the customer as part of the team, however, Micra will not be entitled to any
royalties as a result of such introduction.
7. The term of this Agreement (other than the indemnities set forth in sections
4 and 5 which shall not be limited) shall be for a period of three (3) years
from June 1, 1998, which term shall automatically renew for a further period of
two (2) years, provided Ficel has ordered a total of 600,000 "Talking Trading
Cards" on or before June 1, 2001. If Ficel does not achieve this goal, then
this Agreement will automatically terminate on May 31, 2001, unless it is
further extended in writing between Ficel and Micra.
8. Micra's selling price to Ficel on all orders that Ficel may place for
"Heritage Hockey Talking Trading Cards" is subject to the final quotes but will
be at a substantial, and not for publication, discount over the selling price
quoted to trading card companies. The formula employed will be finished cost
FOB Richmond Hill plus 15 percent profit. Ficel has the right to inspect the
quote to determine that the components that make up the quote are actual costs
to Micra. Ficel acknowledges that the finished cost shall include the cost of
any letters of credit that Micra is required to issue or cause to be issued to
its offshore suppliers. Payment terms will be negotiated in good faith by Ficel
and Micra for each order. In such negotiations, due consideration shall be
given to Micra's standard payment terms as dictated by its offshore suppliers,
namely payment of 20% of the aggregate purchase price payable in cash
concurrently with delivery of the order accompanied by a letter of credit posted
by a financial institution acceptable to Micra for the balance.
9. Each party agrees, both during and after the term of this Agreement, to
maintain in strict confidence all confidential and proprietary information
obtained from the other both pursuant to this Agreement and prior to it and all
other information that it may acquire from the other in the course of this
Agreement, to respect the other's proprietary rights therein, to use the same
exclusively for the purposes of this Agreement, and to disclose the same only to
those of its employees and contractors pursuant to this Agreement (if any) to
whom and to the extent that such disclosure is reasonably necessary for the
purpose of this Agreement. The foregoing obligations shall not apply to
confidential or proprietary information which:
(a) prior to receipt thereof from one party was in the possession of the other
and at its free disposal;
(b) is subsequently disclosed to the recipient party without any obligations of
confidence by a third party who has not derived it directly or indirectly from
the other;
(c) is or becomes generally available to the public through no act or default
of the recipient party or its agents or employees;
(d) is required to be disclosed as a matter of law or by a judicial or
regulatory body having jurisdiction over the recipient party; or
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(e) is reasonably required to be disclosed to actual or potential customers to
promote the sale or use of "Talking Trading Cards".
Each party shall also ensure that all its employees and contractors pursuant to
this Agreement (if any) who have access to any information of the other to which
the obligations of this section 9 apply shall be made aware of and subject to
these obligations.
10. During the term of this Agreement, Ficel agrees that it shall not be
engaged in, own, manage, operate or control any business that is engaged in the
production or manufacture of "Talking Trading Cards".
11. (a) Ficel hereby covenants and agrees not to do or permit to be done
any act which would or might jeopardize or invalidate Micra's operations or any
registration of Micra's patents or trademarks nor to do any act which might
assist or give rise to an application remove or invalidate any of Micra's
patents or trademarks or which might prejudice the right or title of Micra in or
to any of its patents or trademarks. Ficel further covenants and agrees that it
will not make any representation or do any act which may be taken to indicate
that it has any right, title or interest in or to the ownership or use of any of
Micra's patents or trademarks except under the terms of this Agreement, and
acknowledges that nothing contained in this Agreement shall give Ficel any
right, title or interest in or to Micra's patents or trademarks or other
property and assets save as granted hereby.
(b) Micra hereby covenants and agrees not to do or permit to be done any act
which would or might jeopardize or invalidate any of Ficel's operations and
acknowledges that nothing contained in this Agreement shall give Micra any
right, title or interest in or to Ficel's property and assets save as granted
hereby.
12. This Agreement shall immediately and automatically terminate, without
notice or other act,
(a) upon the commencement or happening of any occurrence connected with
insolvency, bankruptcy, dissolution and liquidation of either party to this
Agreement;
(b) if, in the opinion of Ficel, Micra has failed to provide working "Talking
Trading Cards" within thirty (30) days of notice by Ficel that the cards that
have been supplied are either malfunctioning or are not fit for the purpose for
which they are intended, and Micra has not corrected such defects;
(c) if either party breaches or otherwise fails to comply with any term or
provision of this Agreement and such breach or failure remains unremedied for a
period of thirty (30) days or longer; or
(d) upon the mutual agreement of Ficel and Micra.
13. Micra will indemnify and forever hold Ficel harmless from and against any
claims that are made against Ficel for any manufacturing defects respecting the
"Talking Trading Cards".
14. This Agreement will be binding upon Micra and Ficel, notwithstanding any
change of ownership of either of the companies and will be binding upon any
subsequent purchaser of either the assets of the companies or the companies in
whole.
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15. Any notice given by each of the parties to this Agreement should be well
and sufficiently given if mailed or delivered to the addresses as follows:
Notice to Ficel: 0000 Xxxxxxxx Xxxxx, Xxxx 00
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Notice to Micra: 000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
Notice of change of address to each of the companies will be effective five (5)
days from the date of mailing.
16. Nothing in this Agreement shall be construed to constitute Ficel as a
partner, employee, or agent of Micra; nor shall either party have the authority
to bind the other in any respect, it being intended that Ficel and Micra are,
and shall remain independent contractors.
17. This Agreement (i) shall not be assigned by either party hereto without the
prior written consent of the other party; and (ii) shall enure to the benefit of
and be binding upon the respective successors and permitted assigns of the
parties.
18. Time shall in all respects be of the essence in this Agreement.
19. The parties agree to execute and deliver to each other such further
instruments and other written assurances and to do or cause to be done such
further acts or things as may be necessary or convenient to carry out and give
effect to the provisions of this Agreement or as either of the parties may
reasonably request in order to carry out the transactions contemplated herein.
20. This Agreement sets forth the entire agreement among the parties hereto
pertaining to the specific subject matter hereof and replaces and supersedes all
prior Agreements, understandings, negotiations and discussions, whether oral or
written, of the parties hereto, and there are no warranties, representations or
other agreements, whether oral or written, express or implied, statutory or
otherwise, between the parties hereto in connection with the subject matter
hereof except as specifically set forth herein.
21. No supplement, modification, waiver or termination of this Agreement shall
be binding unless executed in writing by the party to be bound thereby.
22. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein.
23. This Agreement may be executed in one or more counterparts and delivered
via facsimile transmission, each of which counterparts when taken together shall
constitute one and the same legal, valid and binding agreement.
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IN WITNESS WHEREOF the parties have set their hands and seals this day 4th
of June, 1998.
SIGNED, SEALED AND DELIVERED )
in the presence of )
) FICEL MARKETING CORP.
)
) Per: (signed) "Xxxxxxx"
) ------------------
) I have authority to bind the corporation
)
)
)
) MICRA SOUNDCARDS INC.
)
) Per: (signed) "Xxxxxx Xxxxxxxxxx"
) ----------------------------
) I have authority to bind the corporation
