EXHIBIT 10.8
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 AGREENMNT
THHS AGREENENT ("Agreement") is made as of the 12th 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, XX 00000, IMS and
KKSM F/S/0 Xxxxx Xxxx ("Licensor"), 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 name and likeness of Licensor
on and in connection with the development, manufacture, distribution,
promotion, and sale of a line of limited edition cereal products (to include
no more than 2 editions) endorsed by Licensor ("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. Licensor hereby grants Licensee the right to
use the name, photograph, characterization, likeness, voice, image, and
biographical data of Licensor, and the trademarks, logos, copyrights and all
other authorized material owned or controlled by the Licensor (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 in
North America and the Caribbean beginning on April 12, 1999 and continuing
for the term of one year until April 14, 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 1,000,000 boxes, the
License Term shall be automatically extended, and shall end on April 14,
2001.
2. Licensee's Obligations. Licensee shall undertake to use its best
efforts to develop, manufacture, distribute, promote, and sell the Products,
more specifically, cereal and related merchandise, 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 Products.
Licensee shall submit for Licensor's approval the type of cereal, the name of
cereal, the packaging design, advertising material, press materials 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.
Initial distribution markets to include New York, Chicago, Florida,
California, and the Dominican Republic, with National distribution following.
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.
3. Licensor's Obligation. Licensor shall supply the Licensed
Subject Matter and press conference appearance, which will last no longer
than one hour. Press conference will be held in the city of Chicago on a
mutually agreeable date and location. Any additional participation is at the
sole discretion of Licensor. If the Licensee requests further participation
by Licensor, Licensee shall provide first class airline tickets,
accommodations and travel for Xxxxx Xxxx and a guest for any appearances
outside a fifty (50) mile radius from Chicago, as well as additional
reasonable compensation to be determined based on the additional requested
appearances). Licensor shall further furnish Licensee with sufficient
information about the Licensor's 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. Licensor shall not be shown
in uniform without the express written consent of MLB. Licensor shall
source, purchase, design and print all related merchandise for back panel and
other promotional materials to be supplied to fulfillment house.
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 Licensor prior to
the commencement of manufacturing of the Products. Licensee shall submit for
Licensor's approval the type of cereal, the name of cereal, the packaging
design, advertising material, press materials 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 Licensor for
entering into and performing the terms and conditions of the Agreement, and
provided that Licensor completely performs his obligations hereunder,
Licensee shall pay Licensor a license fee via cashier's check or wire
transfer (the "Licensing Fee") in an amount equal to ***** percent (*****%)
of all monies received by Licensee as revenue derived from the sale of the
Products ("Gross Receipts" less slotting fees). Licensor will also receive
***** percent (*****%) of related merchandise gross sales (not including
shipping & handling fees) less *****% of Gross Profits (Gross sales less cost
of goods sold) from the sale of all related merchandise from the back panel
and other promotional materials. In addition, as further consideration for
this Agreement, Licensor will receive a warrant to purchase ***** shares of
the Company's unregistered common stock at the purchase price of $***** per
share (the "exercise price") with an expiration date of five (5) years from
the date hereof upon the signing of this Agreement.
6. Accounting. Licensee shall render a detailed accounting to
Licensor on a quarterly basis on February 1st, April 1st, July 1st, November
1st. Each accounting shall show both quarterly and cumulative Gross Receipts
for the Products and related merchandise and shall be accompanied by the
payment in full then due to the Licensor. Licensee agrees that it will keep
accurate and complete records and books of account showing all endorsed
products and merchandise shipped by it and prices thereof related to
Licensor. Licensor, or Licensor's representative shall have the right at
reasonable times and on reasonable notice to inspect and make copies of the
Licensee books and records of company, at Licensor's expense, in so far as
they relate to the computation of royalties to be paid to Licensor thereunder
and the shipment of endorsed products and related merchandise pursuant to
this Agreement.
7. Insurance. Licensee maintains $8,000,000 in product liability
insurance, which cover all products produced by Licensee bearing Licensor's
name and likeness. Licensee will supply evidence of product liability
insurance on a timely basis (i.e. Certificate of Insurance).
8. Licensor Termination. Licensor 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. License Termination. Licensee may terminate this agreement upon
forty-five (45) days written notice if (a) 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) 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) Licensor becomes the subject of public dispute or scandal that
affects Licensor's image. Injury(ies) or illness of said Licensor shall not
in any way affect the validity of this Agreement.
10. Indemnification. The parties hereto shall indemnify, defend,
protect, and save and hold each other harmless from and against any and all
actions, claims, suits, losses, judgements, penalties,
liabilities, damages, costs and expenses, including, without limitation,
reasonable attorney's fees
2
***** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
and court costs, of whatever kind and nature imposed on, incurred by, or
asserted, made, brought, or made against each other arising out of a party's
breach of any of its representations, warranties, or obligations made pursuant
to this Agreement or through the gross negligence or intentional acts of its
officers, directors, employees, or representatives.
11. Assignment. Neither Licensor 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.
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 Licensor shall be sent to Xxxxx Xxxx, c/o Xxxx Xxxxxxx,
c/o Integrated Marketing Solutions, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, XX 00000, All notices to Licensee shall be sent to Xxxxx Xxxxx,
c/o Famous Fixins, 000 Xxxx 00xx Xx., Xxxxx 0000, 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 Licensor, 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 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 Licensor, 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
------------------------
Xxxxx Xxxxx, President
LICENSOR: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
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