EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQEUSTED BY FAMOUS FIXINS, INC.
Confidential treatment has been requested for certain confidential portions
of this exhibit pursuant to Rule 24(b)(2) under the Exchange Act. In
accordance with Rule 24(b)(2), these confidential portions have been omitted
from this exhibit and filed separately with the Commission.
LICENSE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 29th day of April 1999,
by and between Famous Fixins, Inc. ("Licensee"), a corporation organized
under the laws of the State of New York, having its principal place of
business at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, and
Xxx Xxxxxxxx, Xxxxx Xxxxxx, and Xxxx Xxxxxxx (individually a "Licensor" and
collectively "Licensors"), each an individual of full age and majority.
WHEREAS, Licensee manufactures celebrity food products and has been
granted the exclusive right to the use of the names and likenesses of
Licensors on and in connection with the development, manufacture,
distribution, promotion, and sale of a line of limited edition cereal
products endorsed by Licensors (the "Products").
NOW THEREFORE, in consideration of the mutual promises and undertakings
contained herein, and for other good and valuable consideration the receipt
of which is hereby acknowledged, the parties agree as follows:
1. Grant of License.
(a) Licensors hereby grant Licensee the right to use the name,
photograph, characterization, likeness, voice, image, and biographical data
of Licensors, and the trademarks, logos, copyrights and all other authorized
material owned or controlled by the Licensors (the "Licensed Subject Matter")
in connection with the development, manufacture, distribution, promotion, and
sale of the Products, more specifically, cereal and related merchandise (the
"License"). This License shall be effective worldwide beginning on April 29,
1999 and continuing for the term of one year until April 20, 2000, (the
"License Term"), unless terminated in accordance with the terms and
conditions of Paragraphs 8 or 9 of this Agreement. If sales of the Products
reach a total of 1,000,000 boxes, the License Term shall be automatically
extended, and shall end on April 30, 2001.
(b) For the License Term, Licensors also grant Licensee the
right to develop, design, produce, manufacture, distribute, promote and sell
merchandise related to the Products ("Related Merchandise"). Related
Merchandise is defined as hats and T-shirts bearing the name and logo of the
cereal (with no use of the name, likeness, image, photograph, signature or
characterization of any of the individual Licensors) and to be sold only by
way of direct sales through cereal box redemption programs, mail order,
Internet, or print advertising.
2. Licensee's Obligations.
(a) Licensee shall undertake to use its best efforts to
develop, manufacture, distribute, promote, and sell the Products, more
specifically, cereal, provided however, that Licensee shall have the right to
determine: (a) the type and quantity of Products developed and manufactured;
(b) the markets in which the Products are distributed and sold; (c) the
manner of distribution and sale of the Products; and (d) the volume and
nature of advertising for the
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Products. Licensee shall submit for Licensors' approval the type of cereal,
the name of cereal, the packaging design, advertising material, and all other
materials to be used in connection with the Products approval of which shall
not be unreasonably delayed or withheld. Licensee shall pay all costs and
expenses in connection with the development, promotion, manufacturing,
packaging, shipping, distribution, sales and promotion of the Products.
Licensee shall handle all fulfillment (including all check, money order and
credit card transactions) and tracking responsibilities from the sale of
other Related Merchandise from the back panel or elsewhere on the packaging
or promotional materials of the Products. All rights, titles, and interests
in and to the Products, their formulae and secret ingredients, and their
packaging and labeling shall be, and they are specifically and entirely,
reserved to Licensee and may be fully exploited without regard to the extent
to which such rights may be competitive with this Agreement or the rights
granted hereunder.
(b) Licensee agrees that prior to the use, production, or
publication of any materials for the Products or Related Merchandise under
this Agreement, it will submit to each Licensor and/or his representative
(Xxxx Xxxxx for Xx. Xxxxxxxx, and Xxxxx Xxxxxxx for Messrs. Xxxxxxx and
Xxxxxx) a copy of the proposed material for review and for approval.
Approval rights must be exercised by each Licensor within seventy-two (72)
hours of receipt of copy by Licensor or his representative, and failure of a
Licensor to respond within said time period shall be deemed approval of said
copy. Licensee agrees that it will not depict any Licensor in any
embarrassing or derogatory light and that the materials shall not be released
without prior approval of each Licensor or his representative as stated
above. Licensee agrees that complimentary duplicates of all of such
materials featuring Licensors or their endorsement shall be delivered to each
Licensor's representative for non-commercial use. Such materials may
include, but are not limited to, photographs, transparencies, slides, cereal
boxes, posters and video tapes of Licensors.
(c) Licensee shall be responsible for, and use commercially
reasonable efforts in, obtaining the permission and/or rights from Major
League Baseball Properties, Major League Baseball Players Association, and/or
the Houston Astros for the Products and Related Merchandise, if necessary to
prevent infringement by the Products and Related Merchandise of the
license(s) held by these entities. Licensee shall bear the costs and related
expenses in connection with obtaining such permission and/or rights from
these entities.
3. Licensors' Obligation.
(a) Each Licensor shall be obligated to make a total of two
personal appearances (which may be in the form of a photo shoot or press
conference), each of which appearance shall last no longer than one hour for
each Licensor. Any additional participation is at the sole discretion of
each Licensor. Licensors shall further furnish Licensee with sufficient
information about the Licensors' schedule to allow Licensee to adequately
plan its promotions and sales programs. Any and all publicity regarding the
Products shall be issued only by Licensee. Licensors shall not be shown in
uniform without the express written consent of Major League Baseball.
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(b) Licensee agrees the personal appearances by Licensors shall
be at or in the vicinity of the Astrodome and on dates and at times
reasonably convenient to Licensors. No appearances shall be scheduled on
off-days. Licensee agrees to provide desired appearance dates as much in
advance as is reasonably possible. Licensee and Licensors shall cooperate in
good faith and use their best respective efforts to select mutually agreeable
dates and times for rendition of Licensors' obligations under this Agreement.
In the event of a schedule conflict, Licensors will advise Licensee of the
earliest possible date on which Licensors can render their obligations
hereunder without conflicting with prior bona fide commitments.
4. Quality Assurance. Licensee agrees that all use of the Licensed
Subject Matter shall be only upon the Products manufactured by or for
Licensee in accordance with quality standards approved by Licensors prior to
the commencement of manufacturing of the Products. Licensee shall submit for
Licensors' approvals the type of cereal, the name of cereal, the packaging
design, advertising material, and all other materials to be used in
connection with the Products, approval of which shall not be unreasonably
delayed or withheld.
5. Compensation. As full and complete compensation to Licensors for
entering into and performing the terms and conditions of the Agreement, and
provided that Licensors completely performs their obligations hereunder,
Licensee shall pay Licensors collectively a license fee via cashier's check
or wire transfer (the "Licensing Fee") in an amount equal to a total of
***** percent (*****%) of all monies received by Licensee as revenue
derived from the sale of the Products ("Gross Receipts" less up to $50,000 in
slotting fees). Licensee shall also pay Licensors collectively a total of
***** percent (*****%) of net sales from the sale of all related
merchandise from the back panel and other promotional materials. In
addition, as further consideration for this Agreement, upon the signing and
delivery of this Agreement, each Licensor will receive a warrant to purchase
***** shares of the Company's unregistered common stock exercisable at the
purchase price of $***** per share (the "exercise price") with an expiration
date of five (5) years from the date hereof. If the Licensed Term is
automatically extended as defined in Paragraph 1, each Licensor will be
entitled to an additional warrant for an additional ***** shares of common
stock exercisable at the fair market value of the common stock at the time of
issuance of said additional warrant, and otherwise using the same terms as
defined above.
6. Accounting. Licensee shall render a detailed accounting to
Licensors on a quarterly basis. Each accounting shall show both period and
cumulative Gross Receipts for the Products and shall be accompanied by the
payment in full then due to the Licensors. Payment for Xxx Xxxxxxxx shall
be sent to Xxxx Xxxxx and payment for Xxxxx Xxxxxx and Xxxx Xxxxxxx shall be
sent to Xxxxx Xxxxxxx. Licensors, or Licensors' representative, shall have
the right at reasonable times and on reasonable notice to inspect and make
copies of Licensee's books and records in so far as they relate to the
computation of royalties to be paid to Licensors thereunder and the shipment
of endorsed products and Related Merchandise pursuant to this Agreement.
Such examination shall be at Licensors' expense, unless errors amounting to
five percent (5%) or more of the total sums due Licensors hereunder shall be
found and are to Licensors' disadvantage, in which circumstance the
reasonable cost of the examination shall be borne by Licensee.
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***** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
7. Insurance. Licensee maintains $8,000,000 in product liability
insurance, which cover all products produced by Licensee bearing Licensors
name and likeness. Licensee agrees to immediately include each Licensor as
an additional named insured on its general liability insurance policy and to
provide Licensors with certificates of insurance evidencing this action.
8. Licensors' Termination. Licensors may terminate this Agreement
upon forty-five (45) days written notice if (a) Licensee breaches a material
term of this Agreement and fails to remedy said breach within thirty (30) days
of its receipt of written notice of the breach; (b) Licensee becomes
insolvent or files a petition in bankruptcy or (c) Licensee permanently
discontinues production and distribution of the Products.
9. Licensee' Termination. Licensee may terminate this agreement
upon forty-five (45) days written notice if (a) any Licensor breaches a
material term of this Agreement and fails to remedy said breach within thirty
(30) days of his receipt of written notice of the breach; (b) any Licensor
becomes insolvent or files a petition in bankruptcy; (c) Licensee determines,
in its sole and absolute discretion, to discontinue production and
distribution of the Products; (d) any Licensor becomes the subject of public
dispute or scandal that affects Licensors image. Injury(ies) or illness of
said Licensors shall not in any way affect the validity of this Agreement.
10. Indemnification.
(a) Licensee agrees to protect, defend, indemnify and hold
harmless Licensors from and against any and all expenses, damages, claims,
suits, actions, judgments and costs whatsoever, including attorneys' fees and
other costs of defense, arising out of, or in any way connected with, any
claim or action for personal injury, wrongful death, product liability, or
any other injury or damage resulting from promotion, advertisement,
endorsement, manufacture, distribution, marketing, sale, or use of any
product available through or from Licensee
(b) Licensors agree to protect, defend, indemnify and hold
harmless Licensee and its respective directors, officers, employees,
licensees, agents, and assigns harmless from and against any and all
expenses, damages, claims, suits, actions, judgments, production costs, or
non-cancelable media expenditures and any other costs and expenses, including
attorneys' fees and other costs of defense, arising out of any breach by
Licensors of any warranty or agreement made by each said Licensor herein or
in the performance of Licensors' obligations hereunder.
(c) Any party hereto seeking indemnification agrees to notify
the party from whom indemnification is sought as soon as possible after a
claim has been made. The party from whom indemnification is sought may then
elect to defend; otherwise, such party will reimburse the other party for its
costs of defense.
11. Assignment. Neither Licensors nor Licensee shall assign this
Agreement without the prior written consent of the other party, except that
Licensee shall have the right to assign this Agreement to any wholly owned
subsidiary, or to any person, firm, or corporation owning or acquiring a
substantial portion of Licensee's stock or assets.
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12. Notices. Any notice to be hereunder shall be made in writing and
shall be sent by certified U.S. mail, return receipt requested, postage paid.
All notices to Licensors shall be sent to:
Xxxx Xxxxx
0000 Xxxxxx Xxx, #00
Xxx Xxxxxxx, XX 00000
and to:
Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxx., Xxxxx X
Xxxxxxxxx, XX 00000
All notices to Licensee shall be sent to:
Xxxxx Xxxxx
Famous Fixins
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
with a copy to:
Law Offices of Xxx Xxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000.
13. Relationship of the Parties. Nothing in this Agreement shall be
construed to (a) give either party the power to direct or control the day to
day activities of the other; (b) constitute the parties as partners, joint
ventures, co-owners, or otherwise as participants in a joint and common
undertaking; or (c) constitute Licensors, its agents, or employees as the
agents or employees of Licensee or to grant them any power or authority to
act for, bind or otherwise create any obligation on behalf of Licensee for
any purposes whatsoever.
14. Governing Law and Jurisdiction. This Agreement shall be
construed and enforced in the County of New York in accordance with the laws
of the State of New York. In the event of any action, suit, or proceeding
concerning, arising out of, or based upon this Agreement brought by either
party against each other, the prevailing party shall be entitled to recover
from the other its reasonable attorney's fees in connection therewith in
addition to the costs of such action, suit or proceeding.
15. Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to its subject matter. No waiver,
modification, or addition to this agreement shall be valid unless reduced to
writing and signing by both parties. If any provision of this Agreement
shall be held void, voidable, invalid, or inoperative, no other provision of
this
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Agreement shall be affected as a result thereof, and, accordingly, the
remaining provisions of this Agreement shall remain in full force and effect
as though such void, voidable, invalid, or inoperative provision had not been
contained therein. Notwithstanding the foregoing, in the event any provision
is held void, voidable, invalid, or inoperative and impairs Licensee's right
to manufacture, distribute, promote, or sell the Products, then Licensee may,
upon notice to Licensors, terminate this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement in New
York, New York, on the day and year first above written.
LICENSEE: FAMOUS FIXINS, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
LICENSORS: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
/s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
