EXHIBIT 4.1
TALENT AGREEMENT
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THIS AGREEMENT (”AGREEMENT”) BY AND BETWEEN THE ZKID NETWORK (THE
“COMPANY”) AND BRIAN URLACHER (”URLACHER”) WHO SHALL ACT AS SPOKESPERSON FOR THE
ZKID NETWORK AND ITS WEBSITE (”PRODUCT”) IN WHICH THE PARTIES AGREE TO THE
FOLLOWING:
URLACHER REPRESENTS, WARRANTS AND COVENANTS THAT HE WILL EXERCISE HIS BEST
REASONABLE EFFORTS FOR AND ON BEHALF OF THE COMPANY IN CONNECTION WITH ALL
SERVICES TO BE PERFORMED PURSUANT TO THIS AGREEMENT. ALL SERVICES TO BE
PERFORMED BY URLACHER IN EXECUTION OF THIS AGREEMENT SHALL BE PERFORMED IN THE
UNITED STATES, ITS TERRITORIES AND POSSESSIONS, PUERTO RICO AND CANADA
(HEREINAFTER REFERRED TO AS “TERRITORY”), WITH THE EXCEPTION OF THE INTERNET,
WHICH IS WORLDWIDE.
1. PROMOTIONAL RIGHTS AND SERVICE DAYS
Urlacher grants to the Company the following rights during the Term:
The right to use Urlacher and Urlacher’s name, reputation and still image
only, in the Territory, for the Product as part of any materials produced to
support the Product; in all approved materials (i.e., billboards, subway/bus
ads) all Point-of-Sale (POS) advertising displays materials used for in-store
support (stand-ups, counter cards, posters, etc.), print advertising and printed
promotional materials for Product; and all print, press and public relations
printed materials regarding the Product (collectively hereinafter referred to as
the “Promotional Materials”). Except as set forth otherwise in this Paragraph,
use by the Company shall cease upon termination of this Agreement. It is
understood and agreed however, that a It is understood that after Promotional
Materials have been issued by the Company to third parties, how and when the
Promotional Materials are used by unrelated third parties is no longer under
their control, so that media usage may occur outside the Term and is not the
responsibility of the Company.
a) Urlacher shall have the right to approve all commercial copy, layouts and
depiction of his likeness and any use of his name or image prior to any use
thereof. Approval shall not be unreasonably withheld. Urlacher agrees to respond
to all requests for approval within ten (10) business days of receipt of
request, or such request shall be deemed approved.
b) Urlacher agrees to make reasonable efforts to be available during the NFL
regular season for services requested in the Chicagoland area.
c) All service days shall be non-consecutive during the Term and do not
include travel.
d) The Company will limit its use of the Urlacher name, likeness, reputation
and image to the products and in accordance with the terms of this Agreement and
in a way that is not, in any way, an endorsement of any other company, product
or service. This includes, but is not limited to use of the Urlacher name,
likeness, voice, reputation and image for the In-Store Studio Network (”ISSN”).
2. TERM
The Term (”Term”) of this agreement will begin on March 1, 2004 and terminate on
February 28, 2005. In the event both parties mutually agree to extend the term
of this Agreement, a document reflecting the terms of that extension must be
executed no later than December 1, 2004.
3. PRINT ONLY (INCLUDING INTERNET IMAGES)
Urlacher’s time requirement for the above activities shall be the
following:
a) Urlacher agrees to be available for one (1) shooting day for up to two
(2) hours per day (not including travel) for the following: Print production and
all edits and versions.
b) The date and location of the shoot date to be mutually agreed upon
between the parties.
4. PERSONAL APPEARANCES
a) During the Term, Urlacher agrees to be available for two (2) appearances,
for one (1) hour each appearance, where Urlacher will meet/greet and pose for
photos at Chicago area schools for the Company (Company promotion/ computer
donation).
b) The date, time and location of each appearance to be mutually agreed upon
between the parties.
5. ADDITIONAL CONSIDERATION AND AUTOGRAPHS
a) Urlacher agrees to allow Company to place a link on his website
(Brianurlacher.com), directing website viewers to the Company’s website or a
designated website promoting the Product. Any link proposed for direction to,
must first be approved by Urlacher or his authorized representatives.
b) Urlacher agrees to sign twenty-five (25) additional items per year for
Company. The Company shall bear all costs related to providing the items for
Urlacher to sign. The Company agrees they will not sell any items autographed by
Urlacher.
6. MORALS CLAUSE
This Agreement is for Urlacher’s personal services and use of his name, likeness
and image. The Company may terminate this Agreement if Urlacher is convicted for
a non-traffic crime or alcohol related crime and no further payment shall be
made on or after that date except for any sums due and outstanding. All fees
paid to Urlacher for services not yet rendered or usages to the extent already
received by Urlacher shall be due back to the Company.
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7. CONSIDERATION/COMPENSATION
In consideration of Urlacher’s performance of personal services provided in
support of the Product, including use of his likeness, reputation and image,
Company agrees to pay Urlacher according to the following schedule:
a) An initial payment of thirty thousand dollars ($30,000.00) due upon
execution of this Agreement. Payment shall be in the form of a Company check.
b) A second payment of one hundred twenty thousand dollars ($120,000.00) due
within sixty (60) days the execution of this Agreement. Payment shall be in the
form of a Company check.
c) Also upon execution of this Agreement, Urlacher is to receive two million
(2,000,000) restricted shares of the common stock of the Company’s stock (ZKID -
OTCBB). These shares shall only be restricted with respect to time, such time
period shall not restrict Urlacher from selling or trading these shares for a
period longer than one year from the execution of this Agreement.
* Upon the expiration of the restricted period (one year from the execution
of this Agreement) the Company agrees to guarantee that Urlacher’s cumulative
restricted stock holdings have a minimum market value of three hundred fifty
thousand dollars ($350,000.00). In the event that Urlacher’s two million
(2,000,000) shares do not have a market value of three hundred fifty thousand
dollars ($350,000.00), the Company shall immediately issue Urlacher an amount of
unrestricted shares of the Company’s common stock to bring Urlacher’s cumulative
holdings to a market value of three hundred fifty thousand dollars
($350,000.00).
All payments for Urlacher are to be made to Brian Urlacher c/o BU Enterprises
(Fed ID# 68-0492287) and sent to Brian Urlacher at 301 Belle Foret, Lake Bluff,
IL 60044.
8. TERMINATION
a) The Company shall not be required to request Urlacher or Urlacher’s
services or the product of those services, it being understood that its only
obligation shall be to make the payments required pursuant to the provisions of
this Agreement. The Company shall also have the right to terminate this
Agreement in the event Urlacher is convicted with a felony or publicly
disparages the Company and/or its products in any form of widely circulated
media (e.g., newspapers, magazines, televisions, etc.). All fees paid to
Urlacher for services not yet rendered to the extent already received by
Urlacher shall be due back to Company.
b) In the event that the Company cancels this Agreement for any other reason
than force majeure or breach by Urlacher, Urlacher is to receive, as liquidated
damages, a one-time payment of two hundred fifty thousand dollars ($250,000.00),
this payment is due immediately upon Company’s cancellation of this Agreement.
c) If Urlacher wishes to terminate this Agreement prior to the full course of
its Term for any reason other than force majeure, mutually acceptable terms or
breach by Company, he shall compensate Company in an amount equal to eighty
percent (80%) of all compensation already received from Company up to the point
of termination, this includes 80% of the present value of the restricted stock.
Upon the Company’s receipt of Urlacher’s notice of termination, this Agreement
shall immediately terminate with payment due in thirty (30) days.
9. INDEPENDENT CONTRACTOR
In performing services under this Agreement, Urlacher shall operate as, and have
the status of, an independent contractor and shall not act as or be an agent or
employee of Company. As an independent contractor, Urlacher shall be solely
responsible for determining the means, manner and method for performing said
services. Company shall have no right to control or to exercise any supervision
over Urlacher as to performance under this Agreement. Urlacher is not entitled
to worker’s compensation benefits and Urlacher is obligated to pay all taxes on
all amounts earned pursuant to this Agreement.
10. TRADEMARKS, TRADE NAMES AND COPYRIGHTABLE MATERIALS
Urlacher shall not have the right to use Company’s trademarks, trade names,
service marks, logos or any copyrightable materials containing said trademarks
or names without Company’s prior written consent. The form of all usage of said
trademarks, trade names or copyrightable materials shall be under the strict
control and supervision of Company and subject to Company’s prior approval.
11. INDEMNIFICATION/ INSURANCE
a) Company hereby agrees to indemnify, defend and hold Urlacher, Urlacher’s
heirs and Urlacher’s agents and employees, harmless from and against any and all
claims losses, damages, cost, and expenses (including reasonable attorney’s
fees), liabilities, judgments, fines and penalties resulting from any claims,
proceedings or actions (whether or not finally adjudicated and including any
settlement thereof) arising out of or relating to, in connection with, or on
account of; (a) any breach or alleged breach by Company of any warranty,
representation, obligation or covenant hereof, unless the result of Urlacher’s
gross negligence or willful misconduct or (b) out of Company’s use of the
Promotional Materials produced hereunder (which shall be subject to Urlacher’s
prior written approval) and or (c) personal injury or death resulting from the
use of the products advertised therein or the duties stated above; provided
however, that Urlacher agrees to give Company written notice of any claim or
litigation to which the indemnification set forth in this Section applies.
b) Urlacher hereby agrees to indemnify, defend and hold Company, its officers,
and employees, harmless from and against any and all claims losses, damages,
cost, and expenses (including reasonable attorney’s fees), liabilities,
judgments, fines and penalties resulting from any claims, proceedings or actions
(whether or not finally adjudicated and including any settlement thereof)
arising out of or relating to, in connection with, or on account of breach or
alleged breach by Urlacher of any warranty, representation, obligation or
covenant hereof, out of provided however, that Company agrees to give Urlacher
written notice of any claim or litigation to which the indemnification set forth
in this Section applies.
c) Company shall add Urlacher as an additional insured to Company’s general
liability and product liability policies and upon request of Urlacher or his
agents or employees shall deliver to Urlacher a certificate evidencing such
insurance.
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12. EXPENSES
Company shall provide and pay for Urlacher’s travel related expenses related to
the services for this Agreement. For the purpose of this Agreement, expenses
shall mean: two first class round-trip air fares, first class ground
transportation related to all services, first class hotel, with Urlacher’s
requested appearances, including any travel days. Company shall also be
responsible for hair & makeup.
13. CONFIDENTIALITY
The parties acknowledge and agree that all terms and conditions of this
Agreement, as well as any non-public information received by either party with
respect to the other, are strictly confidential and shall not be disclosed.
14. INCAPACITY, DEFAULT, FORCE MAJEURE
In the event of Urlacher’s incapacity including, without imitation, any
disfigurement, physical or mental disability, or such illness as causes Urlacher
to be unable to render the services provided herein, at any time during the Term
of this Agreement, or if Company is unable to use the Services or the
Promotional Materials because of war, act of God, strike, labor dispute, or some
other force majeure event then the parties hereto shall be excused from further
performance hereunder for the duration of such event, and the excused services
will be rescheduled and provided at a date, time and location mutually agreed
upon by the parties. In addition, the Term hereof shall be extended for a length
of time equal to the period of excused performance, but no longer than one (1)
year.
15. GOVERNING LAW AND VENUE
This Agreement shall be deemed to have been made and accepted in Illinois and
the parties agree that the laws of the State of Illinois shall govern this
Agreement and any interpretations or construction thereof. Any action pertaining
to this Agreement shall be commenced and prosecuted in the courts of Cook
County, Illinois, and each party hereby submits to the jurisdiction of said
courts and waives the right to change venue.
16. NOTICE
Notice required under this Agreement shall be made in writing by personal
delivery, telecopy with confirmation of receipt, facsimile transmission or
certified mail. In case of notice to Company, notice shall be made to ZKID
Network c/o Jon A. Darmstader, 666 Dundee Road, Northbrook, IL 60062. In case of
notice to Urlacher, notice shall be made to: Thomas Raines, Esq., 1 South Wacker
Drive, Suite 3890, Chicago, IL 60606.
17. ABILITY TO CONTRACT
Urlacher represents that he is not subject to any restrictive obligations
imposed by former clients or any other person that would impair his best efforts
for and on behalf of Company in connection with services to be performed
pursuant to this Agreement. Urlacher, in signing this agreement represents and
warrants to Company he has the ability to contract on his own behalf. The
representative of Company in signing this Agreement represents and warrants to
Urlacher that he or she has the ability to contract on Company’s behalf.
18. AMENDMENT
This Agreement may not be amended except in writing and properly executed by the
parties hereto. Except as specifically amended, this Agreement shall remain in
full force and effect.
19. ENTIRE AGREEMENT
There are no understandings between the parties hereto as to the subject matter
of this Agreement other than as herein set forth. All previous communications
concerning the subject matter of this Agreement are hereby superseded and this
Agreement shall constitute the entire and integrated Agreement between the
parties.
ACKNOWLEDGED AND ACCEPTED BY:
ZKID NETWORK BRIAN URLACHER
/S/ Jon Darmstadter /S/ Brian Urlacher
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By JON DARMSTADTER By BRIAN URLACHER
Date February 27, 2004
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