Exhibit 10.17
Amended and Restated License Agreement
AMENDED AND RESTATED LICENSE AGREEMENT
This amended and restated license agreement is dated this 10th day of
December, 2002 by and between OLD WHISKEY RIVER DISTILLING COMPANY, LLC a Hawaii
limited liability company, whose principal place of business is 0000 Xxxxx Xxxxx
Xxxx, Xxxxx, Xxxx, Xxxxxx ("Licensee"), and Xxxxxx Xxxxxx, c/o Xxxx Xxxxxxxx,
Xxxx Xxxxxxxx & Associates, 00 Xxxx Xxxxx Xxxx, Xx. 000, Danbury, Connecticut
("Licensor").
RECITALS. Licensee is a Hawaii limited liability company formed for the
purpose of producing and marketing whiskey branded with the trademark and
tradename "Old Whiskey River", which brand name Licensee is currently seeking
trademark and copyright approval (the "Product"). The purpose of this agreement
is to set forth the understanding of the parties concerning the use by Licensee
of Licensor's name, picture and participation in the advertising, sale and
distribution of the Product.
This Amended and Restated License Agreement is executed pursuant to the
Agreement RE: Exercise of Option and Reorganization of Old Whiskey River
Distilling Company, LLC.
AGREEMENT: For valuable consideration, receipt of which by each party is
hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. License. Licensor grants to Licensee an exclusive world-wide license,
with a right to grant sublicenses, to use the name and approved picture of
Licensor solely in connection with the advertising, promotion, sale and
distribution of the Product world-wide, upon all of the terms and conditions of
this agreement, including the right to use Licensor's signature on guitar picks
to be attached to each bottle of the Product.
2. Marketing and Promotion Participation. Licensor agrees to provide
reasonable participation in marketing of the Product from time to time by
publicly endorsing the Product; provided, however, such marketing responsibility
shall be subject to Licensor's prior professional commitments and subject to
Licensor's prior written approval. Such marketing and promotion participation
shall be:
a. Photo session or the provision of artwork, acceptable to Licensee
and Licensor, to be used in connection with the marketing of the
Product;
b. Ten posters signed by Licensor relating to the Product at each
live concert date;
c. Tour sponsorship, whereby Licensor shall provide his reasonable
efforts to have all concerts and tours engaged by Licensor to
provide artwork such that the concert or tour is marketed to the
public as "presented by" Old Whiskey River as a sponsor, provided,
however, the failure of Licensor to have such concerts and tours to
provide such artwork so that the concert or tour is presented by
"Old Whiskey River" as sponsor, shall not be a breach of this
Agreement by Licensor;
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d. Throughout the term of this Agreement, Licensor must, in writing,
pre-approve the use of Licensor's name and likeness that in any way
associates Licensor to the Product;
e. Licensor will use his best efforts to provide 10 tickets per
concert without cost to Licensee and will provide to Licensee the
opportunity to buy 30 additional tickets per concert, provided,
however, if Licensor is not able to provide such tickets to Licensee
such failure shall not be a breach of this Agreement by Licensor.
Except as set forth herein, Licensor shall not receive separate
compensation for the use of his picture or the use of his endorsements in the
marketing or promotion of the Product. Licensor will furnish and permit the use
of approved photographs, cuts and slides of Licensor, a specimen or reproduction
of Licensor's signature for use solely in connection with advertising,
endorsements. Licensee will have the final approval as to all production,
marketing ad advertising decisions, provided; however, Licensor shall have final
written approval over any image or other intellectual property of Licensee and
final written approval over any particular use of such intellectual property
contained in Licensee marketing plan.
3. Licensor's Approval of the Product. Licensor has approved the Product,
including the bottle, packaging and the Bourbon itself, and Licensee agrees to
make no changes to the Product (including the bottle, packaging and Bourbon),
without Licensor's prior written approval for same. Throughout the term of this
Agreement, Licensor must pre-approve, in writing, the use of Licensor's name and
likeness that in any ways associates Licensor to the Product.
4. Transfers. Licensee may sublicense or transfer any or all of Licensee's
rights and interests under this agreement so long as Licensee provides written
notice of the same to Licensor.
5. Prior Review by Licensor of Product and Use of Licensor's Intellectual
Property Right. Any depiction of Licensor's name, image, or signature shall be
created by Licensee through professionals on such matters and shall be subject
to Licensor's prior review, comment and written approval. Further, Licensor
shall have the right to approve the Product prior to general distribution to the
Public, provided, however, once Licensor has approve the Product, Licensee shall
be obligated to maintain the quality of the Product and maintain quality
controls with regard to the Product in order that the Product maintains
standards approved by the Licensor. Notwithstanding the foregoing, in no event
are any of Licensor's intellectual property rights transferred to Licensee.
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6. Certain Restrictions. Licensor may not incur any expense or perform any
business function on Licensee's behalf without Licensee's prior approval. During
the term of this Agreement, Licensor will not engage in any business or license
his name or picture to any other business involved in the manufacture, sale or
marketing of whiskey. Licensor will maintain the confidentiality of
manufacturing, marketing strategy, trade secrets and other proprietary materials
of Licensee.
7. Term. This Agreement shall begin on the date hereof and shall continue
unless terminated under this Section 7, or under Section 11 below.
If Licensee shall reasonably determine that the continued manufacturing,
marketing and selling of Product is no longer financially feasible, the Licensee
may terminate this agreement on 30 days' written notice to Licensor, provided
all payments owing to Licensor shall have been made prior to such Termination,
provided further, no rights granted hereunder by Licensor to Licensee shall
survive the end of the term. Provided, however, at the termination of this
Agreement, the grant of rights provided under this Agreement shall terminate and
Licensee shall have no further right to continue the use of said rights after
the date of termination, Licensee shall have the right, after termination, to
market and sell the then existing inventory of Product, provided Licensee shall
complete said sale within 120 days after termination.
8. Indemnity. Licensee agrees and covenants with Licensor that Licensee
will and does hereby assume all risks of loss or damage(s) by whomsoever
concerning the production and sale of the Product, and the Licensee hereby
agrees to and does indemnify and save and hold harmless the Licensor, its
affiliates and associates, director, employees, agents, offices, including
Xxxxxx Xxxxxx against and from any and all claims for personal injury, product
liability, tort, negligence, or wrongful death by third persons, including all
claims for loss or damage caused or resulting from nay such claim or demand or
action or proceeding brought against Licensor wand will reimburse the Licensor
for all of Licensor's cost and expenses, including reasonable attorneys' fees
incurred in connection with the defense of any such claim.
9. Insurance. The Licensee shall procure and maintain comprehensive and
general liability insurance, including product and contractual liabilities, in
coverage amounts as approved by Licensor in writing (but in no event less that
$5,000,000 per occurrence), to cover all liability risks concerning its
operations and activities, including but not limited to the processing and sale
of the Product, and Licensor shall be named as an additional insured on all such
insurance policies and shall provide Licensor with certificates of insurance for
all coverages provided hereunder.
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10. Liquor Laws. Licensee agrees that Licensee, at its sole cost and
expense, shall comply and shall cause Licensee's agents to comply with all
federal, state and local law, ordinances and regulations, and all rules,
licenses, permits, and the like relating to liquor as applicable to the Product.
11. Licensor's Termination Right - If Licensee Becomes Debtor Under
Bankruptcy Code. The parties agree that the Licensor shall have the right to
terminate this Agreement by providing written notice to the Licensee in the
event that Licensee becomes a debtor in any case filed under the Bankruptcy Code
(Chapter 7 and/or 11) or similar laws providing relief to bankrupt or insolvent
debtors.
12. Notices: Any notice from one party to the other shall be deemed
effective upon hand delivery or actual receipt of said notice by the recipient;
or if said notice is mailed, three days after said notice shall have been
mailed, postage prepaid, to the addressee at his or its address set forth at the
beginning of this agreement, or such other address as the addressee shall have
notified the sender in writing, provided, however, with regard to any notice to
Licensor, a copy shall be sent to Xx. Xxxx Xxxxx, Xxxxxxxxx Xxxxxxx, LLC, 0000
Xxxxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx 00000 and with regard to any
notice to Licensee, a copy shall be sent to Xxxx X. Xxxxxxx, Esq., Xxxxxxx,
Xxxxxxx & Xxxxx, 00 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx 00000.
13. Miscellaneous. This agreement shall be governed by the laws of the
State of California. In the vent of any disagreement between the parties which
cannot be resolved by good faith negotiation, the parties agree to submit the
matter to binding arbitration in Los Angeles, California, under the commercial
Arbitration Rules of the American Arbitration Association. Facsimile copies of
the executed Agreement shall be fully binding and effective for all purposes.
Facsimile signatures on documents will be treated the same as original
signatures. The Agreement may be executed in counterparts, and said execution
shall have the same effect as if all parties executed in counterparts, and said
execution shall have the same effect as if all parties executed the same
original copy hereof.
This Agreement shall be binding upon and shall inure to the benefit of,
the named parties hereto and their heirs, executors, successors and assigns
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Executed the day and year first above written.
OLD WHISKEY RIVER DISTILLING COMPANY LLC
By /s/__________________
Xxxx Xxxxxx
Its Managing Member
/s/__________________
XXXXXX XXXXXX
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