SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL
AGREEMENT (this “Agreement”) is made and entered into
as of this November 19, 2009 (the “Effective Date”), by and between Winder
Electric Co., Ltd., a
company organized under the laws of the People’s Republic of China (the “PRC”)
(“Licensee” or “Winder”) and individuals and entities as set forth in Schedule
A hereto (collectively, the "Licensors").
RECITALS
A. Licensors
owned patents as identified in Schedule B hereto (the “Patents”) and the owners
of the trademarks identified in Schedule C hereto (the “Trademarks”), which are
used in connection with the business of Deer Consumer Products, Inc., a Nevada
corporation (“Deer”), and its wholly owned subsidiaries, Winder, and Delta
International, Ltd, a company organized under the laws of the People’s Republic
of China (“Delta”) and a wholly owned subsidiary of Winder.
B. Licensee
and Licensors have previously entered into a series of agreements (the “Initial
Agreements”) whereby Licensors transferred the Patents and Trademarks to
Licensee.
C. Until
the transfer of the Patents and Trademarks have been approved by State
Intellectual Property Office of the PRC and the Trademark Office of the State
Administration of Industry and Commerce of the PRC (the “Official Approval”),
the Licensees have user rights with respect to such intellectual
property.
D. In
order to clarify the terms of the user rights granted to the Licensee in the
Initial Agreements, the Licensors and Licensee are entering into this
Agreement.
E. The
Licensors further want the ownership of any and all patents, trademarks,
copyrights and trade secrets, know-how, plans, designs, any other intellectual
property or proprietary rights recognized in any country or jurisdiction
worldwide, including, without limitation, moral rights and similar rights
(collectively, the “Intellectual Property”) arising out of the past or future
businesses of Winder, Delta, Deer or any other wholly owned subsidiary of Deer
(each a “Deer Entity,” collectively the “Deer Entities”) be owned exclusively by
a Deer Entity if not conveyed pursuant to the Initial Agreements.
NOW, THEREFORE, the parties,
intending to be legally bound, hereby agree as follows:
1. Transfer
of Patents and Trademarks
(a) Intent of Initial Agreements.
The parties hereto acknowledge and agree that the intent of the Initial
Agreements was to transfer the ownership of the Patents and Trademarks and any
and all of the rights attached thereto to the Licensee (“Transfer”) in exchange
for Licensee’s termination of a loan to 50HZ Electric Limited, a company
incorporated under the laws of Hong Kong SAR, in the amount of
$3,314,979. The Licensee and Licensor acknowledge that the Licensors
have user rights to the Patents and Trademarks until the Transfer of
ownership receives Official Approval at which time the ownership shall be
transferred to Licensor.
(b) Registration of the
Transfer. Licensors undertake to register the Transfer with
the State International Property Office of the PRC and the Trademark Office of
the State Administration of Industry and Commerce of the PRC respectively within
a reasonable timeframe acceptable to Licensee. Licensors further
undertake to execute any and all such further documents and take any and all
such further actions as may be required to complete the aforesaid registration
of the Transfer, with assistance as may be reasonably requested from the
Licensee.
2. Grant
of License
(a) License to Use Patents and
Trademarks. The parties hereto acknowledge and confirm that
Licensors have granted to Licensee a license (the “License”), effective from the
dates of the Initial Agreements, for the world-wide, exclusive, royalty-free, sub-licenseable,
assignable, and irrevocable right to use, reproduce, distribute (through one or
more tiers), create derivative works of, publicly perform, publicly
display, digitally perform, make, and have, in any media now known or hereafter
known, the Patents and Trademarks, all improvements, modifications and
enhancements made by Licensors, Deer or Delta, and all derivative works thereof
which may not be cancelled by the Licensors until such time as the ownership of
such Patents and Trademarks are effectively transferred to Winder pursuant to
the PRC laws.
(b) Registration of the
License. Licensors undertake to file the License with the
competent Chinese government authorities for recordal pursuant to the applicable
PRC regulations after the execution of this Agreement. Licensors
further undertake to execute any and all such further documents and take any and
all such further actions as may be required to complete the aforesaid filing of
the License, with assistance as may be reasonably requested from the
Licensee.
3. Warranties. Licensors
shall maintain the registration of the Patents and Trademarks and any other
Intellectual Property required to be registered through timely renewal and
payment of annual fees, where applicable until such time as the ownership of the
relevant Patents and Trademarks and Intellectual Property have been effectively
transferred to Winder or another Deer Entity, as the case may be, pursuant to
the PRC laws.
4. Future Intellectual
Property. Licensors agree that all Intellectual Property owned
by them arising out of the past or future operations of a Deer Entity not
transferred pursuant to the Initial Agreements shall be owned exclusively by a
Deer Entity and Licensors shall take all such steps necessary to transfer the
ownership of any such Intellectual Property not transferred pursuant to Section
1 hereof. Until the transfer of all such Intellectual Property
receives Official Approval, such Deer Entity shall have a License to such
Intellectual Property as set forth in Section 2(a).
- 2
-
5. Limitation of
Liability.
IN NO EVENT SHALL LICENSORS BE LIABLE
WITH RESPECT TO ITS OBLIGATIONS HEREUNDER OR OTHERWISE FOR INCIDENTAL, SPECIAL,
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOST
PROFITS, LOSS OF DATA, AND BUSINESS OPPORTUNITY) SUFFERED BY LICENSEE OR ANY
THIRD PARTY.
6. Term and Termination. The term
(“Term”) of this Agreement shall commence upon the Effective Date, and continue
perpetually.
7. General
Provisions.
(a) Notices. All
notices and demands hereunder shall be in writing and shall be served by
personal service or by mail at the address of the receiving party first set
forth in the preamble and in Schedule A of this Agreement (or at such different
address as may be designated by such party by written notice to the other
party). All notices or demands by mail shall be by certified or
registered mail, return receipt requested, or by nationally-recognized private
express courier, and shall be deemed complete upon receipt.
(b) Governing Law.
This
Agreement shall be governed by and construed in accordance with the substantive
laws of the PRC, without regard to principles of conflict of
laws. Licensors and Licensee each agree any dispute between the
parties arising from or in connection with to this Agreement and/or the Initial
Agreements shall be China International Economic and Trade Arbitration
Commission South China Sub-Commission for arbitration in Shenzhen in accordance
with its Arbitration Rules then in force. The arbitration award shall
be final and binding upon the parties. During the arbitration period, except for
any matters under arbitration, the parties shall continue to perform the
Agreement and/or the Initial Agreements.
(c) Force
Majeure. Neither party shall be responsible for delays or
failure of performance resulting from acts beyond the reasonable control of such
party. Such acts shall include, but not be limited to, acts of God, strikes,
walkouts, riots, acts of war, epidemics, failure of suppliers to perform,
governmental regulations, power failure(s), earthquakes, or other
disasters. Performance times shall be considered to be extended for a
period of time equivalent to the time lost because of such delay.
(d) Headings. The
titles and headings of the various sections and paragraphs in this Agreement are
intended solely for convenience of reference and are not intended for any other
purpose whatsoever or to explain, modify, or place any construction on any of
the provisions of this Agreement.
(e) All Amendments in
Writing. No supplement, modification, or amendment of this Agreement
shall be binding, unless executed in writing by a duly authorized representative
of each party to this Agreement.
- 3
-
(f) Status of Initial
Agreements. The Initial Agreements are still in full force and
effect and this Agreement does not terminate the Initial
Agreements. This Agreement supplements the Initial
Agreements.
(g) No
Waiver. A failure of either party to exercise any right
provided for herein shall not be deemed to be a waiver of any right
hereunder.
(h) Entire
Agreement. The parties have read this Agreement and agree to
be bound by its terms, and further agree that it, together with all Schedules
hereto (the terms of which are incorporated herein by this reference) and the
Initial Agreements, constitutes the complete and entire agreement of the parties
and supersedes all and merges all previous communications, oral or written, and
all other communications between them relating to the subject matter
hereof. No representations or statements of any kind made by either
party that are not expressly stated herein shall be binding on such
party. In case there is any conflict or inconsistency between this
Agreement and the Initial Agreements, this Agreement shall
prevail. In case the parties hereto execute such further documents
pursuant to Articles 1(b) and 2(b) hereof and there is any conflict or
inconsistency between such other documents and this Agreement, this Agreement
shall prevail.
(i) Severability. In
the event that any provision of this Agreement is held invalid by a court with
jurisdiction over the parties, such provision shall be deemed to be restated to
be enforceable, in a manner which reflects, as nearly as possible, the original
intentions of the parties in accordance with applicable law. The
remainder of this Agreement shall remain in full force and effect.
- 4
-
IN WITNESS WHEREOF, the
parties, intending to be legally bound, have executed this Agreement by their
duly authorized representatives as of the date set forth above.
|
WINDER
ELECTRIC CO., LTD.
|
XXXX
XX
|
|
|
By: /s/ Xxxx Xx
|
/s/Xxxx Xx
|
|
|
Name:
Xxxx Xx
|
Address:
C/o Deer Consumer Products, Inc.
|
|
|
Title:
Xxxxxxxxx
|
Xxxx
0, 0/X, Xxxxxxxx X-0,
|
|
|
Address: Industry
Development Zone
|
Central
High-Tech Industrial Park, Nanshan,
|
|
|
Area
0-0, XxxxXxxxx XxxxXxxx XXX
|
Xxxxxxxx,
Xxxxx 000000
|
|
|
FA’MIN
HE
|
Shenzhen
De Xxx Xxxx Electric Appliances Co., Ltd.
|
|
|
/s/ Fa’Min He
|
By: /s/ Xxxxx Xx
|
|
|
Address:
C/o Deer Consumer Products, Inc.
|
Name:
Xxxxx Xx
|
|
|
Xxxx
0, 0/X, Xxxxxxxx X-0,
|
Xxxxx:
Authorized Signatory
|
|
|
Central
High-Tech Industrial Park, Nanshan,
|
Address: High
Technology Industry Xxxx 0,
|
|
|
XxxxXxxx,
Xxxxx 000000
|
Heping
Town, BaoAn District, ShenZen, GuangDong PRC
|
|
|
Shenzhen
Kafu Industrial Co., Ltd.
|
||
|
By:/s/ JianWen He
|
||
|
Name:
JianWen He
|
||
|
Title:
Authorized Signatory
|
||
|
Address:
Baofeng Building, Xxxx 000-000
|
||
|
Xxxxxxx
Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, XXX
|
- 0
-
Schedule
A
LIST
OF LICENSORS
Xxxx
Xx
Fa’min
He
Shenzhen
De Xxx Xxxx Electric Appliances Co., Ltd
Shenzhen
Kafu Industrial Co., Ltd.
SCHEDULE
B
PATENTS
|
#
|
Patent
name
|
patent
number
|
expiration
date
|
From
|
cert.
number
|
|||||
|
1
|
blender
(BL7228)
|
ZL
2007 3 0174518.8
|
43019
|
Delta
|
847330
|
|||||
|
2
|
blender
(BTC-728)
|
ZL
2007 3 0134131.X
|
42885
|
Delta
|
836972
|
|||||
|
3
|
blender
(BTC-435)
|
ZL
2007 3 0134132.4
|
42885
|
Delta
|
839980
|
|||||
|
4
|
blender
(BTC-229)
|
ZL
2007 3 0134355.0
|
42893
|
Delta
|
837513
|
|||||
|
5
|
Juicer
(BTC901/BTC902)
|
ZL
2007 3 0134352.7
|
42893
|
Delta
|
839977
|
|||||
|
6
|
blender
(BTC329)
|
ZL
2006 3 0018413.9
|
42609
|
Delta
|
670174
|
|||||
|
7
|
ice
crusher (SH0148)
|
ZL
2007 3 0174407.7
|
43017
|
Delta
|
847376
|
|||||
|
8
|
blender
(BL7210)
|
ZL
2007 3 0174472.X
|
43022
|
Delta
|
867721
|
|||||
|
9
|
blender
(BL-7119)
|
ZL
2004 2 0092983.3
|
41958
|
Xxxx
Xx
|
459549
|
|||||
|
10
|
blender
lid
|
ZL
2005 3 0052902.1
|
42066
|
Xxxx
Xx
|
490527
|
|||||
|
11
|
(Blender
Express)
|
ZL
2004 3 0091954.5
|
41946
|
Xxxx
Xx
|
451033
|
|||||
|
12
|
blender
switch plate
|
ZL
2005 3 0052901.7
|
42065
|
Xxxx
Xx
|
486806
|
|||||
|
13
|
fruit chopper
(F02)
|
ZL
033623295
|
41518
|
Xxxx
Xx
|
364064
|
|||||
|
14
|
blender
(BL-757)
|
ZL
033229589
|
41381
|
Xxxx
Xx
|
357453
|
|||||
|
15
|
Juicer
(CP611)
|
ZL
033382611
|
41444
|
Xxxx
Xx
|
350356
|
|||||
|
16
|
blender
base (BL-710)
|
ZL
03 3 22954.6
|
41381
|
Xxxx
Xx
|
339758
|
|||||
|
17
|
meat
blender base (CP411)
|
ZL
03 3 38260.3
|
41444
|
Xxxx
Xx
|
340207
|
|||||
|
18
|
blender
(BL-911)
|
ZL
03 3 22959.7
|
41381
|
Xxxx
Xx
|
332350
|
|||||
|
19
|
Juicer
(JC123)
|
ZL
03 322955.4
|
41381
|
Xxxx
Xx
|
331668
|
|||||
|
20
|
home
use blender (BL999)
|
ZL
02 3 29247.4 ?
|
41058
|
Xxxx
Xx
|
283011
|
|||||
|
21
|
blender
(CP-68)
|
ZL
02 3 29248.2
|
41058
|
Xxxx
Xx
|
273965
|
|||||
|
22
|
juice
blender (JC-176)
|
ZL
02 3 29542.2
|
41058
|
Xxxx
Xx
|
273329
|
|||||
|
23
|
blender
(BL50)
|
ZL
0000 0 0000000 X
|
00000
|
Famin
He
|
574023
|
|||||
|
24
|
blender
(BL4413)
|
ZL
2005 3 0155975.3
|
42337
|
Famin
He
|
574055
|
|||||
|
25
|
blender
(BL70)
|
ZL
2005 3 0155966.4
|
42337
|
Famin
He
|
573942
|
|||||
|
26
|
blender
(BL-929/929B)
|
ZL
2005 3 0155976.8
|
42337
|
Famin
He
|
573941
|
|||||
|
27
|
blender
(BL-7718)
|
ZL
2005 3 0155967.9
|
42337
|
Famin
He
|
573918
|
|||||
|
28
|
Juicer
(JC-6888)
|
ZL
2005 3 0155963.0
|
42337
|
Famin
He
|
||||||
|
29
|
home
use blender (6108)
|
ZL
2004 3 0040191.1
|
41768
|
Famin
He
|
424900
|
|||||
|
30
|
home
use blender JR.B
|
ZL
2004 3 0040003.5
|
41758
|
Famin
He
|
415387
|
|||||
|
31
|
blender
(BL-733)
|
ZL
2003 3 0116178.5
|
2013-20-28
|
Famin
He
|
385790
|
|||||
|
32
|
blender
(BL-7708)
|
ZL
2005 3 0155968.3
|
42337
|
Famin
He
|
577653
|
|||||
|
33
|
blender
(BL-368)
|
ZL
2005 3 0155962.6
|
42337
|
Famin
He
|
577707
|
|||||
|
34
|
blender
(BL-899)
|
ZL
2005 3 0155961.1
|
42337
|
Famin
He
|
574223
|
|||||
|
35
|
food
processor (4412B)
|
ZL
2005 3 0155956.0
|
42337
|
Demei
Long
|
573943
|
|||||
|
36
|
blender
(SS303)
|
ZL
2005 3 0155977.2
|
42337
|
Demei
Long
|
573919
|
|||||
|
37
|
food
processor (4412)
|
ZL
2005 3 0155978.7
|
42337
|
Demei
Long
|
577652
|
|||||
|
38
|
blender
(BTC329)
|
ZL
2005 3 0155957.5
|
42337
|
Demei
Long
|
573917
|
|||||
|
39
|
blender
(SJRA4)
|
ZL
2004 3 0037149.4
|
41720
|
Famin
He
|
405684
|
|||||
|
40
|
blender
(BLAST)
|
ZL
2004 3 0037148.X
|
41720
|
Famin
He
|
402743
|
|||||
|
41
|
blender
(JR.A)
|
ZL
2004 3 0037147.5
|
41720
|
Famin
He
|
405575
|
|||||
|
42
|
Juicer
(BL717)
|
ZL
02 3 23548.9
|
40993
|
Xxxx
Xx
|
256261
|
|||||
|
43
|
Juicer
(BL707)
|
ZL
02 3 23547.0
|
40993
|
Xxxx
Xx
|
256179
|
|||||
|
44
|
blender
(CP-100)
|
ZL
02 3 29545.7
|
41058
|
Xxxx
Xx
|
273614
|
|||||
|
45
|
blender
(CP-56)
|
ZL
02 3 29249.0
|
41058
|
Xxxx
Xx
|
274096
|
|||||
|
46
|
Juicer
(BL-767)
|
ZL
02 3 29544.9
|
41058
|
Xxxx
Xx
|
273602
|
|||||
|
47
|
|
Juicer
(JC753)
|
|
ZL
02 3 29574.0
|
|
41059
|
|
Xxxx
Xx
|
|
273503
|
|
48
|
blander(KJ200)
|
ZL
2004 3 0043314.7
|
41810
|
Famin
He
|
435802
|
|||||
|
49
|
Juicer(BL777)
|
ZL
02 3 28147.2
|
41074
|
Xxxx
Xx
|
273860
|
|||||
|
50
|
juicer(BL-461)
|
ZL
02 3 29246.6
|
41058
|
Xxxx
Xx
|
273728
|
|||||
|
51
|
FO1
salad machine
|
ZL
02 3 29240.7
|
41058
|
Xxxx
Xx
|
273088
|
|||||
|
52
|
blander
base(BL-711)
|
ZL
2003 3 0118059.3
|
41604
|
Famin
He
|
389094
|
|||||
|
53
|
blander（BL-747）
|
ZL
03 3 22962.7
|
41381
|
Xxxx
Xx
|
340383
|
|||||
|
54
|
blander(CP-M71)
|
ZL
02 3 29251.2
|
41058
|
Xxxx
Xx
|
273212
|
|||||
|
55
|
blander(CP-M4)
|
ZL
02 3 29543.0
|
41058
|
Xxxx
Xx
|
273404
|
|||||
|
56
|
4 in
1 blander(BL-708)
|
ZL
02 3 29250.4
|
41058
|
Xxxx
Xx
|
273089
|
|||||
|
57
|
blander(BL-T1P)
|
ZL
02 3 29241.5
|
41058
|
Xxxx
Xx
|
273211
|
|||||
|
58
|
blander(BL795)
|
ZL
02 3 29245.8
|
41058
|
Xxxx
Xx
|
273613
|
|||||
|
59
|
blander(BL-721)
|
ZL
02 3 29244.X
|
41058
|
Xxxx
Xx
|
273500
|
|||||
|
60
|
ice
crusher(BL250)
|
ZL
02 3 29243.1
|
41058
|
Xxxx
Xx
|
273402
|
|||||
|
61
|
blander(BL242)
|
ZL
02 3 29242.3
|
41058
|
Xxxx
Xx
|
295778
|
|||||
|
62
|
blander(BL-T1-B)
|
ZL
02 3 29575.9
|
41059
|
Xxxx
Xx
|
273615
|
|||||
|
63
|
meat
blander(S-MINCER)
|
ZL
02 3 28148.0
|
41078
|
Xxxx
Xx
|
273956
|
|||||
|
64
|
bottle opener（ONP101）
|
ZL
03 3 22960.0
|
41381
|
Xxxx
Xx
|
330757
|
|||||
|
65
|
blander
BLAST.B
|
ZL
2004 3 0040021.3
|
41758
|
Famin
He
|
415514
|
B
1
SCHEDULE
B
PATENTS
|
Num
|
Patent Name
|
Patent Number
|
Expiration Date
|
From
|
Certificate Number
|
|||||
|
66
|
Blender
Cup
|
ZL
2006 2 0017985.X
|
2016-8-27
|
Delta
International
|
938770
|
|||||
|
67
|
Transmission
structure for blender and
juicer
|
ZL
2007 2 0121167.9
|
2017-7-1
|
Delta
International
|
1142069
|
|||||
|
68
|
High
Resistance Blender Cup
|
ZL
2006 2 0017987.9
|
2016-8-27
|
Delta
International
|
939260
|
|||||
|
69
|
Blender device with
protective mechanism (6108)
|
ZL
2005 2 0056293.1
|
3/22/15
|
Xxxx
Xx (Xxxx)
|
777620
|
|||||
|
70
|
Water-proofed
Blender mechanism
|
ZL
2005 2 0056295.0
|
3/22/15
|
Xxxx
Xx (Xxxx)
|
777993
|
|||||
|
71
|
Glass
Blender Cup
|
ZL
2005 2 0056604.4
|
3/30/15
|
Xxxx
Xx (Xxxx)
|
790242
|
|||||
|
72
|
Blender
device with protective
mechanism
|
ZL
2004 2 0095454.3
|
11/16/14
|
Xxxx
Xx (Xxxx)
|
777842
|
|||||
|
(DSNBlender)
|
||||||||||
|
73
|
Blender/Juicer
Device
|
ZL
2004 2 0094877.3
|
10/30/14
|
Xxxx
Xx (Xxxx)
|
739231
|
|||||
|
74
|
|