EXCLUSIVE LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT (the "Agreement"), dated as of the
19th day of August, 1999 (the "Effective Date") is made by and between Xxxxxxx
Xxxxxxx, an individual currently residing at 0000 Xxxxx Xxxxxx, Xxx. 000, Xxx
Xxxxxxx, XX 00000 ("X. Xxxxxxx"), Xxxx Xxxxxxx, an individual currently residing
at 0000 X.X. 00xx Xxxx, Xxxxx, XX 00000 ("X. Xxxxxxx"), Xxxxxxx Xxxxxxx
International, L.L.C., a Florida limited liability company, whose principal
office is located at 000 Xxxxxxxx Xxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000 ("BSI"),
and International Cosmetics Marketing, Co., a Florida corporation, whose
principal office is located at 000 Xxxxxxxx Xxx Xxxxx, Xxxxx 000, Xxxxx, XX
00000 ("ICM"). X. Xxxxxxx, X. Xxxxxxx, BSI and ICM are hereinafter collectively
referred to as the "Parties."
RECITALS
X. X. Xxxxxxx and BSI have previously entered into that certain
Licensing Agreement dated September 1, 1998 (the "BSI License") whereby X.
Xxxxxxx (i) granted BSI an exclusive license to use her name and likeness for
purposes of promoting skin care products, nutritional products and other
consumer goods under the name of Xxxxxxx Xxxxxxx International, and (ii) agreed
not to use her name or likeness for commercial purposes during the term of the
BSI License, other than the pet care and slimming products hereinafter described
to which she had previously licensed her name. A copy of the BSI License is
attached hereto as Exhibit A and incorporated herein by such reference.
B. BSI has developed certain skin care and cosmetic products (the "BSI
Skin Care Products") which it intended to market bearing the likeness and/or
name of X. Xxxxxxx; however, as of the date of this Agreement, BSI has not
commenced the manufacture or marketing of the BSI Skin Care Products.
C. ICM has been formed to engage in the business (the "ICM Business")
of manufacturing, marketing and distributing a broad range of consumer products
(collectively, the "ICM Products").
D. ICM desires to obtain an assignment of the BSI License, together
with an expanded license from X. Xxxxxxx and a license from X. Xxxxxxx which
will grant ICM the exclusive, worldwide license to use X. Xxxxxxx'x and X.
Xxxxxxx'x name and likeness in connection with the manufacture, market,
distribution and/or sale of ICM Products which are marketed or promoted
utilizing the likeness and/or name of X. Xxxxxxx and X. Xxxxxxx (the "ICM
Sassoon Products").
X. Xxxxxxx consents to the assignment to ICM of the rights to use her
name and likeness as granted under the BSI License and to the retention by BSI
of its obligation to pay to her all compensation obligations under the BSI
License, and is further willing to grant ICM an additional license to use her
name and likeness as hereinafter described.
F. ICM desires to obtain an exclusive, worldwide license to
manufacture, market and distribute the BSI Skin Care Products.
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G. BSI is willing to assign ICM its rights under the BSI License, and
to grant ICM an exclusive, worldwide license to manufacture, market and
distribute the BSI Skin Care Products, both as hereinafter described.
X. Xxxxxxx is a member of BSI.
NOW THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The above recitals are true, correct and are incorporated
herein.
2. Assignment of BSI License Rights and Granting of Exclusive License.
a. BSI hereby assigns to ICM all of its rights and interest in and to
BSI License, including any tradenames, trademarks, copyrights or other
intellectual property related thereto. ICM, however, shall assume no liabilities
of BSI under the terms of the BSI License including, but not limited to, the
compensation payable to Sassoon as set forth in Paragraph 2 of the BSI License.
x. Xxxxxxx grants to ICM an exclusive, worldwide license (the "ICM
Sassoon License"), with the right to grant sub-licenses, to use the name
"Xxxxxxx Xxxxxxx" or any variation thereof, as well as the image, voice,
likeness, signature and/or picture of Sassoon, and any trademarks, trade names,
copyrights or other intellectual property related thereto, through or by way of
any media known now or in the future, in connection with the advertising,
merchandising, promotion, manufacture, sale and distribution of ICM Sassoon
Products (as hereinafter defined), other than in connection with (i) the
promotion, endorsement or sale of hair care products including, but not limited
to, shampoos, conditioners, hairsprays, rinses, wigs, hair decorations and
ornaments, coloring, permanent waves, hairblowers, scissors, xxxxx and brushes
(collectively, the "Hair Care Products"); (ii) [BSI attorney: insert description
of pet care products from that license] (collectively, the "Pet Products"); or
(iii) [BSI attorney: insert description of slimming products from that license]
(collectively, the "Slimming Products").
c. BSI grants ICM the exclusive license to manufacture, contract for
manufacture, market, distribute or contract for distribution, the BSI Skin Care
Products, including the unfettered use of any trademarks, trade names,
copyrights or other intellectual property related thereto, through or by way of
any media known now or in the future, in connection with the manufacturing,
distribution, sale, advertising, merchandising or promotion, and sale of the BSI
Skin Care Products (the "ICM Manufacturing License").
d. It is the specific understanding of the Parties that the total
compensation payable by ICM to either BSI or Sassoon for the rights granted to
ICM pursuant to this Section 2 shall be as set forth in Section 6 of this
Agreement.
e. Upon the assignment of its rights under the BSI License, and
providing that this Agreement remains in full force and effect, BSI shall have
no further right to use Sassoon's name
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or likeness for the purpose of promoting the BSI Skin Care Products or
otherwise. Likewise, upon the granting of the ICM Manufacturing License, and
providing this Agreement remains in full force and effect, BSI shall have no
further right to manufacture, market or distribute, or contract for the
manufacture, marketing or distribution, of the BSI Skin Care Products.
3. Scope of the Licenses. The ICM Sassoon License and the ICM
Manufacturing License (collectively, the "ICM Licenses") grant ICM the sole and
exclusive rights to develop, manufacture, market, distribute and promote any
form of consumer product, through or by way of any media known now or in the
future, other than Hair Care Products, the Pet Products and the Slimming
Products, which incorporate either the name or image of Sassoon (collectively,
the "ICM Sassoon Products"). A copy of the license for the Pet Products is
attached hereto as Exhibit 3.1 and a copy of the license for the Slimming
Products is attached hereto as Exhibit 3.2, each of which are incorporated
herein by such reference. Except as may be set forth on Schedule 3, each such
license is in full force and effect. Upon the expiration of each such license
pursuant to its terms, or otherwise, Sassoon shall not renew either the Pet
Products license nor the Slimming Products license, nor enter into any license
or other agreement covering the products which are the subject to such licenses.
Upon such expiration, and without any further action by any Party hereto, the
ICM Sassoon License and the description of ICM Sassoon Products shall be
expanded to include [describe pet product license and slimming product licence
scope].
4. Promotional Activities.
a. In addition to the obligations of Sassoon described elsewhere
herein, Sassoon will cooperate in all manner of advertising, promotion and
publicity of the ICM Sassoon Products as may reasonably be determined by ICM,
and shall devote her full time and attention to the development of the ICM
Sassoon Products and the promotion thereof. Upon the request of ICM, Sassoon
will furnish, or cooperate with ICM in obtaining, a record of Sassoon's voice,
photographs, cuts, and slides of Sassoon, and a specimen or reproduction of
Sassoon's signature or such other actions as ICM shall reasonably request.
Sassoon acknowledges such items will be used in connection with the ICM Sassoon
Products including, but not limited to, use with endorsements and testimonials
by Sassoon exclusively for ICM with respect to the advertising, merchandising,
promotion, sale or distribution of ICM Sassoon Products. Sassoon expressly
authorizes ICM to send out sales and promotion literature and advertisements
under the name of "Xxxxxxx Xxxxxxx".
x. Xxxxxxx will cooperate on all sales and all merchandising,
promotional advertising and publicity ideas and campaigns (the "Appearances").
If Sassoon makes any personal appearance for ICM, she shall be paid for her
actual traveling in business class, food and lodging expenses, but shall not
receive a separate appearance fee. ICM shall not be liable for any cost or
expense under this Section unless such cost or expense is approved in writing by
ICM in advance of its being incurred.
5. Control by ICM of Business. Notwithstanding anything herein
to the contrary, ICM shall have the sole authority to determine, after
discussion with Sassoon, the mode and method of advertising, merchandising,
promoting, manufacturing, selling and distributing the ICM Sassoon Products or
the BSI Skin Care Products, and the sole authority to fix the process,
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discounts, and terms of sale to all purchasers, whether consumers, dealers or
distributors of any and all such products.
6. Compensation. As full and complete compensation for the services
provided and rights granted to ICM pursuant to Sections 2 and 20 hereof, ICM
shall:
a. Pay BSI an aggregate cash payment in the amount of $150,000, of
which $25,000 shall be paid upon the Effective Date of this Agreement, and the
remaining amount, in installments of $12,500, shall be due and payable on the
15th day of each month thereafter;
b. pay up to an aggregate cash payment in the amount of $50,000 which
shall be due and payable during the six (6) month period following the Effective
Date and which shall be used toward the satisfaction of the outstanding
obligations of BSI as set forth on Schedule 6(b);
c. issue to BSI an aggregate of 900,000 shares of the Common Stock, par
value $.001, of ICM (the "Shares");
d. pay BSI a royalty of the greater of (i) 2% of gross revenues of the
ICM Sassoon Products or the BSI Skin Care Products which are marketed or
distributed pursuant to the terms of this Agreement; or (ii) $25,000 per month.
For the purposes of this Section, "gross revenues" shall mean the total
revenues, monies and consideration actually received by ICM from the sale of the
subject products or through the use of the X. Xxxxxxx and/or X. Xxxxxxx names,
less rebates, discounts and returns. Such royalty payments shall be due and
payable on the 15th day of each month following the month in which ICM received
payment from the sale of the ICM Sassoon Products or the BSI Skin Care Products;
e. This Section notwithstanding, to the extent that Sassoon is unable
or unwilling to make an Appearance, ICM shall deduct from any royalty fees to
BSI for or in connection with that Appearance $5,000; and
f. Notwithstanding anything contained herein to the contrary, upon the
exercise of any options granted to Elan Sassoon to purchase 2,000,000 shares,
Xxxxxxx Xxxxxxx to purchase 2,250,000 shares or to Capital Distributors, LLC to
purchase 600,000 shares, each dated of even date herewith, the royalty payments
due hereunder and the consulting services provided in Section 20 of this
Agreement shall terminate; provided, however, that the Parties shall negotiate
in good faith and enter into employment agreements on mutually determined terms.
7. Investment Intent.
BSI is acquiring the Shares for its own account, for investment
purposes only and not with a view to resale or other distribution thereof, nor
with the intention of selling, transferring or otherwise disposing of all or any
part of such Shares, or any interest therein, for any particular event or
circumstances, except in full compliance with all applicable provisions of the
Securities Act of 1933, the Securities Exchange Act of 1934, and the Rules and
Regulations promulgated by the Securities and Exchange Commission thereunder,
all as amended. The Shares are "restricted
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securities" as that term is defined in the Securities Act of 1933, and the
certificate representing the Shares will have the following or similar legend:
"These securities have not been registered under any state
securities laws and may not be sold or otherwise transferred
or disposed of except pursuant to an effective registration
statement under any applicable state securities laws, or an
opinion of counsel satisfactory to counsel to International
Cosmetics Marketing, Co. that an exemp tion from registration
under any applicable state securities laws is available."
Notwithstanding anything contained herein to the contrary, BSI shall be
entitled to Transfer the Shares to certain of its note holders upon the consent
of ICM, and providing such note holders take such Shares subject to the
provisions of this Section 7.
8. Life Insurance on Sassoon. In the event ICM should elect to obtain a
life insurance policy on Sassoon, Sassoon shall fully cooperate with ICM in such
undertaking including, but not limited to, having a physical exam if so required
by the insurance company. All costs and expenses related to such insurance
policy shall be borne by ICM, and it shall be the sole beneficiary thereof.
9. Reports and Records.
a. ICM will furnish BSI with monthly reports of all sales of all
products subject to this Agreement by the 15th day of the month immediately
after the month in which the sale occurred, and copies of all sub-licensing
agreements ICM may grant hereunder.
b. BSI shall have the right, through a certified public accountant
acceptable to ICM, to inspect the books and records of ICM relating to sales of
all products subject to this Agreement, and to all sub-licensing agreements
hereunder. Such inspection shall not be made more frequently than once every
fiscal quarter, BSI shall give ICM 15 days prior written notice of its intent to
inspect the books and records of ICM, such inspection shall occur at the
principal offices of ICM during normal business hours and shall be at BSI's sole
cost and expense unless such inspection results in an increased adjustment to a
royalty payment in which event the cost and expense shall be paid by ICM.
10. Representations and Warranties. BSI and Sassoon, jointly and
severally, make the representations and warranties to ICM set forth below.
a. BSI is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Florida. Each of BSI and
Sassoon have the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement and to perform fully
each of their obligations hereunder. This Agreement has been duly executed and
delivered and is the valid and binding obligation of each of BSI and Sassoon,
enforceable in accordance with its terms.
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b. Each of BSI and Sassoon have all power and authority necessary to
enable them to carry out the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by it have been authorized by all necessary corporate
action on the part of BSI, including shareholder approval, if required. Neither
the execution and delivery of this Agreement by BSI or Sassoon, nor the
consummation of the transactions contemplated by this Agreement will violate,
result in a breach of, or constitute a default under, any agreement or
instrument to which either BSI or Sassoon is a party or by which either BSI or
Sassoon is bound, or any order, rule or regulation of any court or governmental
agency having jurisdiction over either BSI or Sassoon.
c. No governmental filings, authorizations, approvals or consents are
required to permit either BSI or Sassoon to fulfill all each of their
obligations under this Agreement.
d. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not (i) violate any
provision of the Articles of Incorporation or By-Laws of BSI; (ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both) a default
under any contract or other agreement to which either BSI or Sassoon is a party;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon either
BSI or Sassoon, or upon the properties or business of either BSI or Sassoon; or
(iv) violate any statute, law or regulation of any jurisdiction applicable to
either BSI or Sassoon.
e. BSI is the exclusive owner of the BSI License, that such license is
in full force and effect, enforceable against Sassoon in accordance with its
terms; the BSI License, in whole or in part, does not infringe upon or violate
the rights of any person or entity, including but not limited to, any
copyrights, trademark rights, trade secrets or any other proprietary rights; BSI
has the right to assign, and Sassoon consents to the assignment of, BSI's rights
(but not its obligations) under the BSI License as set forth elsewhere herein;
BSI has not executed any agreement in conflict herewith, and has not granted to
any other person, firm or corporation any right, license or privilege under or
in any manner relating to, directly or indirectly, the BSI License and the BSI
License is free and clear from all claims, liens, licenses, and encumbrances
whatsoever.
x. Xxxxxxx has the full right and authority, subject to the terms of
the Pet Products license and the Slimming Products license, to grant the ICM
Sassoon License and to perform her obligations thereunder. Upon the expiration
of the Pet Products license and the Slimming Products license, Sassoon has the
full right and authority to elect not to renew either such license, and to
expand the scope of the ICM Sassoon License to include such products. The ICM
Sassoon License, in whole or in part, does not infringe upon or violate the
rights of any person or entity, including but not limited to, any copyrights,
trademark rights, trade secrets or any other proprietary rights; and Sassoon has
not executed any agreement in conflict herewith, and has not granted to any
other person, firm or corporation any right, license or privilege under or in
any manner relating to, directly or indirectly, the ICM Sassoon License, other
than the BSI License which is being assigned hereunder.
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g. BSI is the exclusive owner of all rights to be granted to ICM under
the ICM Manufacturing License; the ICM Manufacturing License, in whole or in
part, does not infringe upon or violate the rights of any person or entity
including, but not limited to, any copyrights, trademark rights, trade secrets
or any other proprietary rights; BSI has the right to grant the ICM
Manufacturing License; BSI has not executed any agreement in conflict herewith,
and has not granted to any other person, firm or corporation any right, license
or privilege under or in any manner relating to, directly or indirectly, the ICM
Manufacturing License and such license is free and clear from all claims, liens,
licenses, and encumbrances whatsoever.
h. Except as set forth on Schedule 10(h) hereof, (i) there is no
outstanding order, judgment, injunction, award or decree of any court,
governmental or regulatory body or arbitration tribunal against or involving the
BSI License, or BSI or Sassoon in respect of, or in connection with, the BSI
License or the ICM Licenses; (ii) there is no action, suit, claim or legal,
administrative or arbitration proceeding or, to the best knowledge of either BSI
or Sassoon after due inquiry, any investigation (whether or not the defense
thereof or liabilities in respect thereof are covered by insurance) pending or,
to the best knowledge of either BSI or Sassoon, after due inquiry, threatened
against or involving BSI, Sassoon, the BSI License, the ICM Licenses or the
rights granted to ICM hereby; (iii) none of the actions, suits, claims,
proceedings or investigations set forth on Schedule 10(h), individually or
together with any other, will have a material adverse effect on BSI, Sassoon,
the BSI License or the ICM Licences, or the contemplated operations or condition
(financial or otherwise) of ICM taken as a whole; and (iv) except as set forth
on Schedule 10(h), to the best knowledge of BSI and Sassoon, after due inquiry,
there is no fact, event or circumstances that is likely to give rise to any
suit, action, claim, investigation or proceeding that would be required to be
set forth on Schedule 10(h) if currently pending or threatened. In the event any
information should come to the attention of either BSI or Sassoon during the
Term of this Agreement which would be required to be set forth on Schedule 10(h)
hereof if current pending or threatened, or if there is a change in the status,
from time to time, of any of the information as may be set forth on Schedule
10(h), BSI and/or Sassoon shall notify ICM in writing within ten (10) business
days of the date it first becomes aware of such event, providing ICM with
sufficient detail regarding the event so that ICM may determine, in its sole
discretion, the severity thereof. Further, BSI hereby represents and warrants
that it shall continue to provide the Company on an immediate basis with all
information concerning BSI and its principals in connection with and relating to
BSI, its business and any and all services to be performed hereunder. In
addition, upon the request of ICM, BSI and/or Sassoon shall make their attorneys
available to ICM and its counsel, at the sole cost and expense of either BSI or
Sassoon, as the case may be, and instruct such attorneys to provide ICM with
such information as ICM's counsel deems reasonably necessary in connection with
any such matters as may be set forth, from time to time, on Schedule 10(h)
hereof.
i. Schedule 10(i) sets forth any patent, trademark, service xxxx and
any application for any of the foregoing owned by BSI or Sassoon or used in
connection with the BSI License or the BSI Skin Care Products or the ICM
Licenses and which is material to the licenses granted to ICM hereunder (the
"Intellectual Property"). Except as set forth on Schedule 10(i), to the best
knowledge of BSI and Sassoon, after due inquiry, there has been no notice given
to either BSI or Sassoon of any adverse claim of any other person relating to
any of the Intellectual Property set forth on Schedule 10(i) inclusive of any
patent, trademark, service xxxx or trade name.
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j. Except as specifically set forth herein, ICM will not acquire or be
liable for direct or indirect indebtedness, liability, claim, loss, damage,
deficiency, obligation or responsibility, known or unknown, fixed or unfixed,
liquidated or unliquidated, secured or unsecured, accrued or absolute,
contingent or otherwise including, without limitation, any liability on account
of taxes, any other governmental charge or lawsuit brought, whether or not of a
kind required by generally accepted accounting principles to be set forth on a
financial statement (all of the foregoing being collectively referred to herein
as "Liabilities"), arising out of or in connection with the BSI License or the
ICM Licenses except as specifically set forth herein; and (ii) to the best
knowledge of BSI and Sassoon, after due inquiry, there is no circumstance,
condition, event or arrangement which may hereafter give rise to Liabilities not
in the ordinary course of business subsequent to the date of this Agreement.
k. No representation or warranty given by either BSI or Sassoon in this
Agreement or in any document to be delivered by the same pursuant hereto, and no
statement, list, certificate or instrument furnished or to be furnished to ICM
pursuant hereto or in connection with the negotiation, execution or performance
of this Agreement contains or will contain any untrue statement of a material
fact or omits or will omit to state any fact necessary to make any statement
herein or therein not materially misleading; and to the best knowledge of BSI
and Sassoon, there is no fact, development or threatened development which BSI
and/or Sassoon has not disclosed to ICM in writing and which materially
adversely affects or, so far as that BSI or Sassoon can now reasonably foresee,
may materially adversely affect the rights granted to ICM hereunder.
l. BSI acknowledges its understanding that (i) the Shares are a
speculative investment which involve a high degree of risk of loss; (ii) there
is no public market for the Shares and no assurances any public market will ever
develop; and (ii) that there are substantial restrictions on the transferability
of the Shares.
11. Representations and Warranties of ICM. ICM represents and warrants
to each of BSI and Sassoon as follows:
a. ICM is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida. ICM has the full legal right
and power and all authority and approval required to enter into, execute and
deliver this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of ICM enforceable in accordance with its terms.
b. ICM has all power and authority necessary to enable it to carry out
the transactions contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated by it have
been authorized by all necessary corporate action on the part of ICM, including
shareholder approval, if required. Neither the execution and delivery of this
Agreement by ICM nor the consummation of the transactions contemplated by this
Agreement will violate, result in a breach of, or constitute a default under,
any agreement or instrument to which ICM is a party or by which ICM is bound, or
any order, rule or regulation of any court or governmental agency having
jurisdiction over ICM.
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c. No governmental filings, authorizations, approvals or consents are
required to permit ICM to fulfill all its obligations under this Agreement.
d. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not (i) violate any
provision of the Articles of Incorporation or By-Laws of ICM; (ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both) a default
under any contract or other agreement to which ICM is a party; (iii) violate any
order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon ICM, or upon the
properties or business of ICM; or (iv) violate any statute, law or regulation of
any jurisdiction applicable to ICM.
13. Trademark and Copyright Notices. Sassoon covenants that she will,
subject to ICM's prior written approval, provide a legally sufficient trademark
and/or copyright notice, if applicable, on the ICM Sassoon Products and/or the
packaging, wrapping, advertising and promotional material bearing any
reproductions covered under the ICM Licenses, or such other format as ICM shall
from time to time reasonably direct.
14. Goodwill and Conduct by Sassoon.
a. The Parties hereto acknowledges that the rights granted under the
BSI License and the ICM Licenses are unique and original and that upon execution
and delivery of this Agreement by the Parties, ICM is the owner of such rights.
Neither BSI nor Sassoon shall, during the Term, or anytime thereafter, dispute
or contest, directly or indirectly, ICM's ownership of the BSI License or the
ICM Licenses, ICM's exclusive right to use such licenses, the validity of the
registrations pertaining thereto, nor shall either BSI or Sassoon assist or aid
others in doing so.
x. Xxxxxxx acknowledges that the value to ICM of the rights granted
under the BSI License and the ICM Licenses are dependent, in part, upon the
public perception of Sassoon and that her image and the trademarks and other
intellectual property rights relating to these are integral to ICM's marketing
efforts. Sassoon will use her best efforts to conduct herself at all times, and
in all situations, in a manner which shall reasonably ensure that neither her
public image nor reputation are tarnished.
15. Promotion and Advertising/Style Guidelines. All advertisements and
promotional materials which ICM intends to use to promote the ICM Sassoon
Products shall be of high quality and shall be submitted to Sassoon for her
approval prior to publication by ICM, which approval shall not be unreasonably
withheld. Sassoon shall have five (5) business days from the date of receipt of
any such materials in which to approve or reject such advertisements and
promotional materials. Once such approval is granted, it shall be deemed granted
for all continuing use of such advertising and promotional materials for
substantially the same future use by ICM, unless such approval is specifically
withdrawn by Sassoon in writing. ICM shall use its best efforts to follow the
style guidelines specified by Sassoon in advertising, labeling and promotion.
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16. Non-Disclosure of Confidential Information.
a. Each of BSI and Sassoon acknowledge that during the Term of this
Agreement, they will each have access to confidential information and trade
secrets including, but not limited to, financial information relating to ICM,
promotions, hiring plans, market and advertising plans, concepts, strategies,
new products, ICM's business decisions, technical information, plans regarding
ICM's structure, manufacturing, marketing, distribution, financing, personnel,
acquisitions, information relating to customers of ICM, pricing, technical
information or methods of doing business and other "know how" or business
information which is not in the public domain, which said information BSI and
Sassoon acknowledge to be a valuable trade asset of ICM, except for common
general practices in the industry or knowledge in the public domain. Neither BSI
nor Sassoon shall at any time during the Term of this Agreement, or at any time
after termination of this Agreement for any reason, directly or indirectly, use
for itself or others, or divulge to others any said trade secrets or
confidential information or data of ICM obtained as a result of this Agreement.
Each of BSI and Sassoon acknowledge and agree that ICM's remedy at law for a
breach or threatened breach of any of the provisions of this Section 16 would be
inadequate and the breach shall be per se deemed as causing irreparable harm to
ICM. In recognition of this fact, in the event of a breach or threatened breach
by either BSI or Sassoon of any of the provisions of this Section 16, the
breaching party agrees that, in addition to any remedy at law available to ICM,
including, but not limited to monetary damages, ICM, without posting any bond,
shall be entitled to obtain, and the breaching party agrees not to oppose ICM's
request for equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available to ICM
b. Upon termination for any reason or the natural expiration of the
Term, BSI and Sassoon shall turn over immediately to ICM any property belonging
to the ICM, including but not limited to, products, samples, computers, computer
disks and records, all business correspondence, letters, papers, reports, files,
customers' lists, financial data or any other writings; records or property in
the possession or control of BSI or Sassoon which relates to the business of the
ICM, all of which writings and records are and will continue to be the sole and
exclusive property of ICM.
17. Term and Termination.
a. Unless terminated pursuant to Sections 17(b) and 17(c) of this
Agreement , the term of the ICM License granted hereby shall commence as of the
Effective Date and shall continue for ninety-nine (99) years thereafter (the
"Term"). Notwithstanding this Section 17(a), this Agreement shall be
automatically renewed at the sole option of ICM for successive ninety-nine (99)
year periods and all provisions hereof shall remain in full force and effect.
For the purpose of this Agreement, the Term shall include all extensions and
renewals.
b. Without prejudice and in addition to any other rights, ICM shall
have the right to terminate this Agreement upon prior written notice to BSI and
Sassoon, at any time upon the occurrence of the following:
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(1) If at any time this Agreement is in effect, Sassoon
conducts herself in any manner offensive to reasonable standards of decency or
morality or resulting in public scandal including, without limitation, an arrest
or conviction of a felony;
(2) The death of Sassoon;
(3) The "disability" of Sassoon, which shall mean that Sassoon
shall be unable to perform Sassoon's duties and obligations, at any time, as
required pursuant to this Agreement;
(4) If Sassoon shall not make an Appearance; provided that
Sassoon had previously agreed to make such Appearance and Sassoon's inability to
make such Appearance is as a result of an event described in Section 17 or for
medical reasons;
(5) Any assignment of this Agreement in contravention of
Section 26;
(6) BSI or Sassoon's breach of any material provision,
representation, warranty or covenant of this Agreement, each of which is
considered to be the essence of this Agreement.
c. In addition to any other rights, BSI shall have the right to
terminate this Agreement after thirty (30) days written notice to ICM if ICM
fails to make any payments due pursuant to Section 6, unless such breach is
cured within such thirty (30) day period.
d. The licenses and rights granted under this Agreement shall terminate
thirty (30) days after mailing of such written notice unless such breach is
cured within such time period. Immediately upon the expiration or termination of
the Agreement, the rights and obligations described in this Agreement, for
whatever reason, ICM shall have no further obligations to pay any Royalties to
BSI (other than those that have occurred through the date of termination) and
subject to Section 18, ICM shall have no further rights to use the ICM License.
e. Notwithstanding anything contained herein to the contrary, ICM may
terminate the services to be provided pursuant to paragraph 20 of this Agreement
for cause, as defined herein, prior to the Termination Date upon 30 days' prior
written notice to the Consultant. In the event of such earlier termination, upon
its effective date the parties hereto will have no further obligations to each
other except as specifically set forth herein. For purposes hereof, "Cause"
shall mean (A) committing or participating in an injurious act of fraud, gross
neglect, misrepresentation, embezzlement or dishonesty against the Company; (B)
committing or participating in any other injurious act or omission wantonly,
willfully, recklessly or in a manner which was grossly negligent against the
Company, monetarily or otherwise; (C) engaging in a criminal enterprise
involving moral turpitude; (D) an act or acts (1) constituting a felony under
the laws of the United States or any state thereof; or (2) if applicable, loss
of any state or federal license required for the Consultant to perform the
Consultant's duties or responsibilities for the Company; or (E) failure to
provide services as requested by the Company.
f. This Agreement shall not be cancellable by the BSI or Sassoon,
except as expressly provided herein.
11
18. Use of Marketing Materials and ICM Products after Termination.
a. Any other provisions of this Agreement notwithstanding, for a period
of six (6) months from the expiration or termination of this Agreement, ICM
shall have the right to use up its supplies of marketing, advertising, and
promotional materials, BSI Skin Care Products and ICM Sassoon Products on which
any of rights granted under the BSI License or the ICM Licenses have been
applied prior to the date of expiration or termination of this Agreement,
provided that such use of the rights shall otherwise be in accordance with the
provisions of this Agreement.
b. In the event of the expiration, cancellation or termination of this
Agreement, ICM shall be entitled to fulfill its existing orders for BSI Skin
Care Products or ICM Sassoon Products and to sell its stock-on-hand of such
products in accordance with the provisions of this Agreement, subject to payment
to BSI of the Royalties in accordance with the provisions of this Agreement. ICM
shall not, without the prior written consent of BSI, which consent shall not be
unreasonably withheld, sell any remaining BSI Skin Care Products or ICM Sassoon
Products which incorporate the licenses granted hereunder pursuant to a
"distress sale," or other than in the ordinary course of business. For purposes
of this Section 18(b), a "distress sale" shall mean one in which either the BSI
Skin Care Products or the ICM Sassoon Products are sold for less than
seventy-five percent (75%) of the ICM's standard wholesale selling price.
19. BSI Right to Purchase Products. BSI shall have the right to
purchase, from time to time, any of the BSI Skin Care Products and ICM Sassoon
Products directly from ICM at a mutually agreed upon price, net of any Royalties
otherwise payable pursuant to this Agreement, subject to availability of such
products; provided, however, that BSI shall have no right to resell such BSI
Skin Care Products or ICM Sassoon Products to any third party, except with the
prior written approval of ICM.
20. Consulting Services. BSI is hereby retained by ICM to provide
consulting services to ICM, as said services relate to the advertising,
merchandising, marketing, promotion, manufacture, sale and distribution of the
products under the ICM License. BSI agrees to provide such consulting services
on an exclusive basis and as reasonably requested by and at the direction of ICM
during the Term of this Agreement, and to cause Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx
to devote substantially all of their time and attention to rendering such
consulting services, subject to performance of their other duties under this
Agreement. Unless otherwise agreed to by ICM, all services hereunder shall be
performed by BSI at its principal place of business or other offices.
21. Indemnification.
a. BSI and Sassoon jointly and severally agree to indemnify, defend and
hold harmless ICM and its directors, officers, employees, shareholders, agents
and affiliates, and each of their successors and assigns, from and against any
losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorneys' fees and disbursements) ("Loss")
based upon, arising out of, or otherwise due to:
12
i. Any inaccuracy in or any breach of any material
representation, warranty, covenant or agreement of BSI or Sassoon contained in
this Agreement or in any document or other writing delivered pursuant to this
Agreement;
ii. Facts or circumstances existing on or prior to the date
hereof which give rise to claims by any third parties against the BSI License or
the ICM Licenses; and
iii. Gross negligence or willful misconduct in the performance
of any activities or services performed hereunder.
b. Promptly after receipt by ICM of notice of any demand, claim or
circumstances which, with the lapse or time, would give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation (an "Asserted Liability") that may result in a Loss, ICM shall
give notice thereof (the "Claims Notice") to BSI and Sassoon. The Claims Notice
shall described the Asserted Liability in reasonable detail, and shall indicate
the amount (if stated) of the Loss that has been or may be suffered by ICM.
c. BSI and Sassoon may elect to compromise or defend, at their own
expense and by their own counsel, any Asserted Liability. If BSI and Sassoon
elect to compromise or defend such Asserted Liability, they shall, within thirty
(30) days (or sooner, if the nature of the Asserted Liability so requires),
notify ICM of their intent to do so, and ICM shall cooperate, at the expense of
BSI and Sassoon, in the compromise of, or defense against, such Asserted
Liability. ICM may elect to participate, at its own expense, in the defense of
such Asserted Liability. If BSI and Sassoon elect not to compromise or defend
the Asserted Liability, fail to notify ICM of their election as herein provided,
contest their obligations to indemnify under this Agreement, or at any time
fails to pursue in good faith the resolution of any Asserted Liability, in the
sole opinion of ICM, as the case may be, then ICM may, upon thirty (30) days'
notice to BSI and Sassoon, pay, compromise or defend any such Asserted
Liability. ICM shall have the right of offset for such amount so tendered to
pay, compromise or defend such Asserted Liability against the Royalties which
may be due and payable pursuant to Section 6 hereof. If BSI and Sassoon choose
to defend any claim, ICM shall make available to BSI and Sassoon any books,
records or other documents or personnel within its control that are necessary or
appropriate for such defense.
22. Suits for Third-Party Infringements. In the event that ICM learns
of any infringement or threatened infringement of any of the BSI License and/or
the ICM Licenses or any passing off or that any third party alleges or claims
that any of the license rights granted hereunder are liable to cause deception
or confusion to the public, or is liable to dilute or infringe any of ICM's
rights therein, ICM shall forthwith notify BSI and Sassoon or its authorized
representatives giving particulars thereof (the "Infringement Notice") and ICM
shall provide necessary information and assistance to BSI and Sassoon and/or
their authorized representatives. BSI and Sassoon shall defend any and all such
suits or actions and pay all expenses of defending such suits or actions,
including attorney's fees provided (i) notice of claim is made within two (2)
years from the Effective Date, and (ii) that the conduct of ICM has not caused
the action that gave rise to the claim.
13
23. Claims Against ICM. If a claim is presented against ICM alleging
that either the BSI License or the ICM Licenses are an infringement of the
rights of third parties, BSI and Sassoon, on behalf of ICM, shall jointly
negotiate, compromise, or settle such claim, or defend the institution of any
action thereunder. All expenses of defense in such action, including compromise
or settlement of the claim or action and attorney's fees, shall be borne by BSI
and/or Sassoon.
24. Force Majeure. If a party is prevented from performing any of its
obligations set forth in this Agreement by reason of an act of God, strike,
labor dispute, injunctions, judgments, adverse claims, fire, flood, delay in
transportation, public disaster or any other cause or reason beyond the control
of BSI and Sassoon or ICM, as the case may be, such condition shall be deemed a
valid excuse for failure on its part to perform or for delay in the performance
of such obligations, and in the event of a delay, the Term of this Agreement
shall be deemed extended for a period co-extensive with the delay caused by such
condition.
25. No Partnership or Joint Venture. This Agreement does not constitute
and shall not be construed as constituting a partnership or joint venture
between BSI and Sassoon or ICM. A party shall have no right to obligate or bind
any other party in any manner whatsoever and nothing herein contained shall give
or is intended to give any rights of any kind to any third party.
26. Remedies. All specific remedies provided for in this Agreement
shall be cumulative and shall not be exclusive of one another or any other
remedies available in law or equity. The failure of a party to insist upon the
strict performance of any of the covenants or terms hereof to be performed by
any other party shall not be construed as a waiver of such covenants or terms.
If any portion of this Agreement shall be ruled as invalid or unenforceable, the
remainder of the Agreement shall survive and be enforced as if such invalid
portion was not originally a part hereof.
27. Assignment. This Agreement is binding upon and shall inure to the
benefit of the parties and their respective representative and permitted
successors. This Agreement may not be assigned by BSI and/or Sassoon, but may be
assigned by ICM with the consent of Sassoon, which consent shall not be
unreasonably withheld.
28. Waiver and Modification. No waiver or modification of any of the
terms of this Agreement shall be valid unless in writing and signed by the
parties. No waiver by one party of a breach hereof or a default hereunder shall
be deemed a waiver by any other party of a subsequent breach or default of like
or similar nature. No delay by one party in exercising its rights hereunder
shall be deemed a waiver of such rights.
29. Notices. Whenever notice is required to be given under this
Agreement, it shall be deemed to be good and sufficient notice if in writing,
signed by an officer or an authorized agent of the party serving such notice and
sent by registered or certified mail, postage prepaid, return receipt requested,
to any other party at the address stated above, unless notification of a change
of address has been given in writing pursuant to this Section 29. Notice shall
be deemed given five (5) business days after mailing.
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30. Venue and Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
and such legal action results in a final judgment in favor of such party
("Prevailing Party"), then the party or parties against whom said final judgment
is obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred, including, but not limited to, all attorney's's
fees, court costs and other expenses incurred throughout all negotiations,
trials or appeals undertaken in order to enforce the Prevailing Party's rights
hereunder. Any suit, action or proceeding with respect to this Agreement shall
be brought in the state or federal courts located in Broward County in the State
of Florida. The parties hereto hereby accept the exclusive jurisdiction and
venue of those courts for the purpose of any such suit, action or proceeding.
The parties hereto hereby irrevocably waive, to the fullest extent permitted by
law, any objection that any of them may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any judgment entered by any court in respect thereof brought in
Broward County, Florida, and hereby further irrevocably waive any claim that any
suit, action or proceeding brought in Broward County, Florida, has been brought
in an inconvenient forum.
31. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes and
replaces any prior agreements, if any, between the parties. There are no
representations, warranties, promises, covenants or understandings other than
those contained herein.
32. Headings. Any paragraph or section heading used in this Agreement
are for reference purposes only, are not a substantive part of this Agreement
and are not to be considered in its interpretation or construction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX XXXXXXX INTERNATIONAL, LLC
By: /s/ Elan Sassoon
--------------------
Elan Sassoon, Chief Executive Officer
XXXXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxxx
-------------------
INTERNATIONAL COSMETICS MARKETING, CO.
By: /s/ Xxxxxxxxx XxXxxx
------------------------
Xxxxxxxxx XxXxxx, President
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Schedule 6(b)
Shimokochi & Xxxxxx 8,500
Xxxx Xxxxxx, Atty. 14,000
Nextel Phone 800
Xxxx South - reconnect office 2,000
Xxxx Xxxxxx 1,000
Xxxxx Xxxx 5,000
Hotels & airfare 3,000
Xxxxx X'Xxxx (expenses) 1,300
Xxxxx Xxxxxx 10,000
Xxxxxxx - apartment rental 2,000
Xxx Xxxxx - xxxxxxxxx 2,000
Xxxxx X'Xxxx - xxxxxxxxx
Schedule 10(h)
1. In the matter of International Cosmetics Company, P.D.M., Inc., Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and all persons in control of, employed
by or otherwise affiliated with those persons or entities, Cease and Desist
Order issued by the Arkansas Securities Department dated December 12, 1998
2. United States Securities and Exchange Commission v. Gateway Technologies,
Inc.; the Cheyenne Holding Corp., Xxxxxxxx X. Xxxx and Xxxxxxx X. Xxxxxxxx,
Civil Action No. 99-8378
Schedule 10(i)
1. Trademark: Xxxxxxx Xxxxxxx filed April 9, 1999
2. Trademark: Common Sense Nutrition filed June 10, 1999
