wydi10q20100331ex10-1.htm


    Exhibit 10.1

    
      

      

    

    


    MARKETING AND REPRESENTATION
AGREEMENT

    


    This
Marketing and Representation Agreement (the “Agreement”) is made and entered
into effective April 20, 2010, by and between Who’s Your Daddy, Inc., a Nevada
corporation (the “Company”) and Sports 1 Marketing LLC, a Delaware limited
liability company (the “Consultant”) (individually, a “Party”; collectively, the
“Parties”).

    


    


    RECITALS

    


    WHEREAS, the Company and LSSE,
LLC, an Iowa limited liability company (“LSSE”), entered into an Amended and
Restated Marketing and Lead Generation Agreement (the “Original Agreement”)
effective August 21, 2009; and

    


    WHEREAS, on November 25, 2009
the Company was informed by LSSE that, due to changes within their organization,
LSSE would not be able to fulfill their obligations under the Original
Agreement; and

    


    WHEREAS, the Company and LSSE
determined that the Company should rework the LSSE Agreement, under the same
terms and conditions, with Consultant, which is a company owned by NFL Hall of
Fame quarterback, Warren Moon (“Mr. Moon”), since Mr. Moon has the same athlete
and media contacts to be able to perform the consulting services outlined in the
Original Agreement; and

    


    WHEREAS, Consultant has
significant experience in the areas of marketing, branding, licensing and
furthering business transactions and relationships; and

    


    WHEREAS, Consultant has
extensive business relationships with affiliates whose expertise is website
design, internet lead generation, and creation and optimization of product
offerings through the internet.

    


    NOW, THEREFORE, in
consideration of the mutual promises herein contained, the Parties hereto hereby
agree as follows:

    


    1.         CONSULTING
SERVICES

    


    Attached
hereto as Exhibit A and incorporated herein by this reference is a description
of the services to be provided by Consultant hereunder (the “Consulting
Services”).  Consultant hereby agrees to utilize its best efforts in
performing the Consulting Services, however, Consultant makes no warranties,
representations, or guarantees regarding any corporate strategies attempted by
the Company or the eventual effectiveness of the Consulting
Services.

    


    2.         TERM
OF AGREEMENT

    


    This
Agreement shall be in full force and effect commencing upon the date hereof and
shall have a term of 24 months therefrom.  Either Party hereto shall
have the right to terminate this Agreement without notice in the event of the
death, bankruptcy, insolvency, or assignment for the
benefit of creditors of the other Party.  Consultant shall have the
right to terminate this Agreement if Company fails to comply with the terms of
this Agreement and such failure continues unremedied for a period of 30 days
after written notice to the Company by Consultant. The Company shall have the
right to terminate this Agreement upon delivery to Consultant of notice setting
forth with specificity facts comprising a material breach of this Agreement by
Consultant, including Consultant’s inability to perform the Consulting
Services.


    
      
         


      

      
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    3.         TIME
DEVOTED BY CONSULTANT

    


    It is anticipated that the Consultant
shall spend as much time as deemed necessary by the Consultant in order to
perform the obligations of Consultant hereunder.  The Company
understands that this amount of time may vary and that the Consultant may
perform Consulting Services for other companies.

    


    
      4.         PLACE
WHERE SERVICES WILL BE PERFORMED

    

    


    The
Consultant will perform most Consulting Services in accordance with this
Agreement at Consultant’s offices.  In addition, the Consultant will
perform Consulting Services on the telephone and at such other place(s) as
necessary to perform these services in accordance with this
Agreement.

    


    5.         INDEPENDENT
CONTRACTOR

    


    Both
Company and the Consultant agree that the Consultant will act as an independent
contractor in the performance of his duties under this
Agreement.  Nothing contained in this Agreement shall be construed to
imply that Consultant, or any employee, agent or other authorized representative
of Consultant, is a partner, joint venturer, agent, officer or employee of
Company.

    


    6.         COMPENSATION
TO CONSULTANT

    


    The
Consultant's compensation for the Consulting Services shall be as set forth in
Exhibit B attached hereto and incorporated herein by this
reference.  The Consultant will be solely responsible for all tax
returns and payments required to be filed with or made to any federal, state or
local tax authority with respect to the Consultant’s performance of services and
receipt of fees under this Agreement.  The Company will regularly
report amounts paid, if any, to the Consultant by filing Form 1099-MISC and/or
other appropriate form with the Internal Revenue Service as required by
law.  Because the Consultant is an independent contractor, the Company
will not withhold or make payments for social security; make contract insurance
or disability insurance contributions; or obtain worker’s compensation insurance
on the Consultant’s behalf.  The Consultant agrees to accept exclusive
liability for complying with all applicable state and federal laws governing
self-employed individuals, including obligations such as payment of taxes,
social security, disability and other contributions based on fees paid to the
Consultant under this Agreement.  The Consultant hereby agrees to
indemnify and defend the Company against any and all such taxes or
contributions, including penalties and interest.

    


    5.         CONFIDENTIAL
INFORMATION


    
      
         


      

      
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    The
Consultant and the Company acknowledge that each will have access to proprietary
information regarding the business operations of the other and agree to keep all
such information secret and confidential and not to use or disclose any such
information to any individual or organization without the non-disclosing Parties
prior written consent.  It is hereby agreed that from time to time
Consultant and the Company may designate certain disclosed information as
confidential for purposes of this Agreement.

    


    8.         INDEMNIFICATION

    


    Each Party (the “Indemnifying Party”)
agrees to indemnify, defend, and hold harmless the other Party (the “Indemnified
Party”) from and against any and all claims, damages, and liabilities, including
any and all expense and costs, legal or otherwise, caused by the negligent act
or omission of the Indemnifying Party, its subcontractors, agents, or employees,
incurred by the Indemnified Party in the investigation and defense of any claim,
demand, or action arising out of the work performed under this Agreement;
including breach of the Indemnifying Party of this Agreement.  The
Indemnifying Party shall not be liable for any claims, damages, or liabilities
caused by the sole negligence of the Indemnified Party, its subcontractors,
agents, or employees.

    


    The
Indemnified Party shall notify promptly the Indemnifying Party of the existence
of any claim, demand, or other matter to which the Indemnifying Party’s
indemnification obligations would apply, and shall give them a reasonable
opportunity to settle or defend the same at their own expense and with counsel
of their own selection, provided that the Indemnified Party shall at all times
also have the right to fully participate in the defense.  If the
Indemnifying Party, within a reasonable time after this notice, fails to take
appropriate steps to settle or defend the claim, demand, or the matter, the
Indemnified Party shall, upon written notice, have the right, but not the
obligation, to undertake such settlement or defense and to compromise or settle
the claim, demand, or other matter on behalf, for the account, and at the risk,
of the Indemnifying Party.

    


    The
rights and obligations of the Parties under this Article shall be binding upon
and inure to the benefit of any successors, assigns, and heirs of the
Parties.

    


    9.         COVENANTS
OF CONSULTANT

    


    Consultant
covenants and agrees with the Company that, in performing Consulting Services
under this Agreement, Consultant will:

    


    (a)                 Comply
with all federal and state laws;

    


    (b)                 Not
make any representations other than those authorized by the Company;
and

    


    (c)                 Not
publish, circulate or otherwise use any materials or documents other than
materials provided by or otherwise approved by the Company.

    


    10.         COVENANTS
OF COMPANY

    


    Both
Parties agree that the Company has considerable existing debt, is in need of
investment and corporate restructure.  Therefore, Consultant requires
that the Company agree to the
following which Consultant deems to be in the best interests of the long-term
future of the Company:


    
      
         


      

      
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    (a)                 To
maintain stability and continuity, the Company will continue to employ its
current CEO, Michael R. Dunn, and its current Controller, Robert E. Crowson,
Jr.  The Company will also hire any other employee designated by
Michael R. Dunn; and

    


    (b)                 Company
will continue to retain Rand Scott, MD as the Company’s principal medical expert
to, among other things, create product formulations and research the safety and
medical efficacy of the Company’s products and ingredients making sure no
product claims are made which are not validated by science or published third
party medical studies; and

    


    (c)                 Company
will maintain a structure whereby all operating and invested cash will be
protected against existing creditor claims.

    


    11.         MISCELLANEOUS

    


    (A)         This
Agreement shall be constructed and interpreted in accordance with and the
governed by the laws of the State of California.

    


    (B)         The
Parties agree that the Courts of the County of Orange, State of California shall
have sole and exclusive jurisdiction and venue for the resolution of all
disputes arising under the terms of this Agreement and the transactions
contemplated herein.

    


    (C)         If
either Party to this Agreement brings an action on this Agreement, the
prevailing Party shall be entitled to reasonable expenses therefore, including,
but not limited to, attorneys’ fees and expenses and court costs.

    


    (D)         This
Agreement shall inure to the benefit of the Parties hereto, their administrators
and successors in interest.  This Agreement shall not be assignable by
either Party hereto without the prior written consent of the other.

    


    (E)         This
Agreement contains the entire understanding of the Parties and supersedes all
prior agreement between them, including any and all prior agreements or
arrangements with Mr. Moon personally.

    


    (F)         No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the Parties.  No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver.  No waiver shall be binding unless executed in
writing by the Party making the waiver.

    


    (G)         If
any provision hereof is held to be illegal, invalid or unenforceable under
present or future laws effective during the term hereof, such provision shall be
fully severable.  This Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof, and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.


    
      
         


      

      
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    IN WITNESS WHEREOF, the
Parties hereto have placed their signatures hereon on the day and year first
above written.

    


    
      	
              COMPANY:

            	
              CONSULTANT:

            
	 
      	 
      
	
              WHO’S
      YOUR DADDY, INC.

            	
              SPORTS
      1 MARKETING LLC

            
	
              a
      Nevada corporation

            	
              a
      Delaware limited liability company

            
	 
      	 
      
	 
      	 
      
	
              /s/ Michael R.
      Dunn                     
      

            	
              /s/ Warren
      Moon                                
      

            
	
              By:
      Michael R. Dunn

            	
              By:  Warren
      Moon

            
	
              Its:  Chief
      Executive Officer

            	
              Its:
      Principal

            


    

     
 


    
      
         


      

      
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    EXHIBIT
A

    


    DESCRIPTION OF CONSULTING
SERVICES

    


    


    The
Consulting Services shall include, but not be limited to, the following,
pursuant to the terms of this Agreement:

    


    
      	
               
      

            	
              ·

            	
              Identify
      and contract with two (2) or more high-profile celebrities and athletes
      (“Endorsing Athletes”) in addition to Mr. Moon, with appropriate Company
      approval, for the marketing, promotion, sponsorship and other
      exposure-increasing opportunities of the Company’s
    products.

            


    

    


    
      	
               
      

            	
              ·

            	
              Identify
      media marketing opportunities and assist the Company, where applicable, in
      contracting with various media to increase exposure of the Company’s
      F.I.T.T. Energy With Resveratrol
product.

            


    

    


    
      	
               
      

            	
              ·

            	
              Identify
      and introduce the Company to new distribution
  outlets.

            


    

    


    
      	
               
      

            	
              ·

            	
              Identify
      and introduce the Company to charitable foundations and develop programs,
      with appropriate Company approval, which allow the Company and its
      athlete/celebrity endorsers to forge a synergistic relationship with each
      foundation.

            


    

    


    
      	
               
      

            	
              ·

            	
              Have
      Mr. Moon and other athlete/celebrity endorsers appear in the Company’s
      infomercial for F.I.T.T. Energy With
  Resveratrol.

            


    

    


    
      	
               
      

            	
              ·

            	
              Introduce
      the Company to contacts with expertise in creating infomercials and advise
      the Company as to infomercial strategy and
  content.

            


    

    


    
      	
               
      

            	
              ·

            	
              Introduce
      the Company to organizations with expertise in providing retail buying and
      market support for publicly traded
stocks.

            


    

    


    
      	
               
      

            	
              ·

            	
              Ongoing
      marketing consulting services.

            


    

    


     

    
      
         


      

      
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    EXHIBIT
B

    


    TERMS OF
COMPENSATION

    


    The
Consultant’s compensation hereunder shall be as follows:

    


    1.         ISSUANCE
OF COMMON STOCK.  As compensation for the Consulting Services,
and subject to the terms and conditions of this Agreement, Company will issue
shares of its common stock (the “Shares”) as follows:

    


    
      	
              Issued
      To

            	
              No. Of
      Shares

            
	
              Mr.
      Moon

            	
              1,000,000

            
	
              Consultant
      – contracting with Endorsing Athletes

            	
              2,000,000

            
	
              Consultant
      – all other

            	
                7,000,000

            
	
              Total
      Shares

            	
              10,000,000

            


    

    


    All
Shares to be issued under this Agreement will be immediately vested and issued
on the effective date of this Agreement.  The Shares to be issued to
Mr. Moon will be immediately released to him upon execution of this
Agreement.

    


    The
number of Shares issued for the contracting with each of the Endorsing Athletes
shall be mutually agreed between the Company and Consultant.  The
Shares will be immediately released to Consultant for each Endorsing Athlete on
the effective date of any agreement reached between the Company and the
Endorsing Athlete in the amount of Shares agreed to between the Company and
Consultant.  Consultant shall have the right to instruct the Company
to re-issue Shares for the contracting with each Endorsing Athlete directly to
such athlete or such athlete’s designee.  In no case shall the total
number of Shares to be issued for the contracting with Endorsing Athletes exceed
2,000,000.  If it is determined that the number of Shares released for
the contracting with Endorsing Athletes is less than 2,000,000, the difference
between 2,000,000 Shares and the actual number of Shares released shall then be
released to Consultant on a pro-rata monthly basis over the remaining term of
this Agreement.  For example, if it is determined in month 4 of the
Agreement that only 1,500,000 Shares will be released for the contracting with
Endorsing Athletes, the remaining 500,000 shares will be released to Consultant
on a pro-rata monthly basis over a the remaining 20 months of the Agreement
(25,000 shares per month).

    


    All other
Shares issued to Consultant will be released to Consultant on the following
schedule:  330,000 Shares on the effective date of this Agreement,
with the remaining Shares released on a pro-rata monthly basis over a remaining
23 months of this Agreement (290,000 shares per month), with the first such
issuance being one month from the effective date of this Agreement.

    


    2.         EXPENSES.  Consultant
shall be reimbursed for all out-of-pocket expenses upon submission of receipts
or accounting to the Company, including, but not limited to, all travel
expenses, research material and charges, computer charges, long-distance
telephone charges, facsimile costs, copy charges, messenger services, mail
expenses and such other Company related charges as may occur exclusively in
relation to the Company’s business as substantiated by
documentation.  Any expenditure above $500 will require oral or
written pre-approval of the Company.

    


    


    
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