LICENSING AGREEMENT
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THIS AGREEMENT is made this 27th day of December, 2004, by and between Xxxx
Xxxxx Corporation (hereinafter "Licensee"), a New Mexico corporation and Xxxx X.
Xxxxx (hereinafter "Licensor").
RECITALS
WHEREAS, Licensor is a well-known author of several cookbooks, a chef, and
authority on food and food preparations; and
WHEREAS, Licensor desires to license to Licensee and Licensee desires to
license from Licensor the right to use Licensor's name in association with the
products marketed and sold by Licensee on the terms and conditions detailed
below and whereas, Licensor and Licensee have executed this date a
contemporaneous Employment Agreement whereby Licensee employs Licensor.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth below, the parties agree to be contractually bound as follows:
1. LICENSE OF RIGHT TO USE NAME AND LIKENESS. In consideration of the
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transfer to Licensor by Licensee of 650,000 Class A, Convertible Preferred
shares, Licensor hereby grants to Licensee an exclusive license to use
Licensor's name and likeness in association with food products manufactured,
distributed, marketed and sold by Licensee, and products/services provided by
the Licensee. The specific food products for which this License is granted are
those set forth in EXHIBIT A hereto which is incorporated herein by reference.
The specific services for which this license is granted are set forth in EXHIBIT
B which is incorporated herein by reference. The parties may modify EXHIBITS A
and/or B hereto by a writing signed by both parties; Licensor shall have and
retain the unilateral right to remove certain food and or equipment products
from EXHIBIT A. Licensor shall have and retain the unilateral right to remove
certain services from EXHIBIT B. Licensor shall and hereby does have the
unilateral right to request the removal of certain food and equipment items from
EXHIBIT A if they do not meet the Licensor's quality image. Licensor shall have
and retain the unilateral right to request the removal of certain services from
EXHIBIT B if they do not meet the Licensor's quality image. Licensee will have
thirty (30) days to correct the quality deficiencies and if not rectified to
Licensor's satisfaction the items or services in question will be removed
immediately.
2. TERM. This Agreement shall be for continuing annual periods unless
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otherwise terminated sooner in accordance with the provisions contained herein.
Nevertheless, this Agreement will only remain in effect if sales of the
Licensee's products and provided services meet levels agreed upon annually in
advance by the Licensor and the Licensee. Failure to agree will terminate this
Agreement as of the end of the disputed year. In addition, if sales do not meet
or fall within 25% of the agreed levels within any three-month period the
Licensor reserves the right to put the Licensee on written notice to the effect
that the agreed benchmarks be reached within a specific time during which the
Licensor will be free to terminate this agreement upon 30 days written notice.
3. LICENSOR'S REPRESENTATIONS AND WARRANTIES. Licensor hereby warrants and
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represents to Licensee that the Licensor has all requisite and necessary power
and authority to enter into this Agreement.
4. PAYMENTS TO LICENSOR BY LICENSEE. In consideration of the grant of
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license above and Licensor's representations and warranties to Licensee,
Licensee shall make payment to Licensor as follows:
a. On sales from January 1, 2005 and for each Licensed calendar year
calculated separately, Licensee shall pay Licensor two percent (2%) of the gross
sales until the cumulative gross sales reach $1,000,000 and two and one-half (2
1/2 %) on the excess sold over $1,000,000.
b. All royalty payments from Licensor to Licensee shall become due and
payable to Licensor on the fifteenth (15th) day of each month following the end
of the month in which such products were sold or services provided.
c. Licensee shall provide to Licensor with each payment made by Licensee to
Licensor a statement of account showing the quantities of the several products
sold or services provided for the month in which the products are sold or
services provided.
5. INSPECTION OF BOOKS AND RECORDS. Licensor, or Licensor's agents or
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employees, shall have the right to inspect the books and records of the Licensee
with regard to sales of food products and services provided and gross revenues,
during normal working hours at the location where Licensee maintains such books
and records, without disturbance to Licensee's work activities, upon ten (10)
working days advance written notice. The cost and expense of any such
inspection shall be borne entirely by the Licensor, unless and until an error in
payments is discovered, such that additional monies are due to the Licensor from
Licensee in an amount equal to the percent (5%) or more of the total payments to
Licensee in any calendar year. If such a payment is due, the cost of the
inspections shall be borne by the Licensee.
6. SAMPLES. Licensee shall provide to Licensor samples of all proposed and
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potential uses of Licensor's name and likeness at least thirty (30) days prior
to any such use without charge to Licensor. Any such proposed or potential use
which is submitted must be made and submitted in good faith and with intent of
Licensee that it will be used by Licensee.
7. APPROVAL OF LICENSED PRODUCTS. Licensor shall have 30 days after receipt
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of each of the items referenced in paragraph 6 above to approve or disapprove,
in Licensor's sole discretion, the proposed use of Licensor's name and likeness
and the product.
8. TERMINATION.
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A. DEFAULT. Each party has the right to terminate this Agreement if the
other party breaches or is in default of any obligation hereunder which default
is incapable of cure or which, being capable of cure, has not been within thirty
(30) days after receipt of written notice from the non-defaulting party
detailing the nature of the claimed default (or such additional cure period as
the non-defaulting party may authorize).
B. FORCE MAJEURE, SUSPENSION, AND TERMINATION. In the event that either
party is unable to perform any of its obligations under this Agreement, or to
enjoy any of its benefits because of acts of God, strikes, insurrection, riot,
terrorist attack, war, actions or decrees of governmental bodies, or
communication line failure, not the fault of the affected party (hereinafter
referred to as a "Force Majeure Event"), the party who has been so affected
shall immediately give notice to the other party and shall do everything
possible to resume performances. If after provision of such notice,
nonperformance continues beyond ninety (90) days from the receipt of notice of
the Force Majeure Event, the party whose ability to perform has not been so
affected may be given written notice to terminate this Agreement.
C. RIGHTS AND OBLIGATIONS OF THE PARTIES ON TERMINATION. Upon termination
of this Agreement by either party, Licensee shall cease providing all services
attached to Licensor's name and Licensee shall, for a period of three (3)
months, attempt to sell all inventory in its possession which has on it the name
or likeness of Licensor. Unsold inventory will be offered to the Licensor at no
cost or destroyed by her order. The royalty payable to Licensor shall apply
only to the revenues from the sales of these specific products until they are
sold or destroyed. Upon any termination, Licensee shall have no further right
to use Licensor's name or likeness in any manner, other than for selling
existing food inventory bearing Licensor's name or likeness as aforesaid.
D. DEATH OF LICENSOR. In the event of the death of Licensor during the term
of this Agreement, this Agreement shall be binding on the Licensee and on the
Licensor's personal representative and heirs for the remainder of the term of
the Agreement.
9. MISCELLANEOUS.
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A. ASSIGNMENT. Licensee may not assign this Agreement or any rights or
benefits accruing to it hereunder without prior written consent of the Licensor.
B. RIGHTS. All rights whether now existing or which may hereafter come into
existence which are not expressly licensed in this Agreement are hereby reserved
to and by the Licensor. This Agreement shall not be construed to assign,
transfer, convey or grant to the Licensee any proprietary rights whatsoever in
and to any copyrights, trademarks, trade names, series names, titles, insignia
devices, or other words, appellations or marks owned by the Licensor and used by
her to identify and distinguish herself and/or her products and goods.
C. GOVERNING LAW. The Agreement shall be governed by the laws of the State
of New Mexico, United States of America, applicable to contracts executed and
performed entirely therein.
D. WAIVER OF DEFAULT. Failure by either party to enforce any provisions of
this Agreement shall not be construed as a waiver of such provision or of the
right to such party thereafter to enforce such provision. No term or provision
hereof shall be deemed waived and no breach excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented.
E. MODIFICATIONS. Except as expressly set forth elsewhere in this
Agreement, this Agreement may be modified only in writing, signed by both
parties hereto.
F. INTEGRATION OF CLAUSE. This Agreement shall constitute the entire
Agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all prior correspondence and negotiations with respect
thereto.
G. GENDER/PLURAL USES. The use of a particular gender, i.e. he, she, it,
shall be interchangeable with all other genders as may be appropriate under this
Agreement. The use of the singular or plural shall be construed as the plural
or the singular to effectuate the intent of this Agreement.
H. AGREEMENT EFFECTIVE. This Agreement shall come into effect when executed
by Licensor after receipt by Licensor of two copies executed by the Licensee.
I. ATTORNEY'S FEES. The parties agree that reasonable attorney's fees and
costs shall be awarded to the prevailing party in any arbitration or litigation
between the parties in connections with this Agreement.
J. HEADINGS. The headings used in this Agreement are for ease of reference
purposes only and shall not modify, change, or otherwise alter or affect the
terms or the provisions of this Agreement.
K. ARBITRATION, JURISDICTION, VENUE. The parties hereby stipulate and
agree that this Agreement has been entered into in Albuquerque, New Mexico, and
that should any dispute arise between the parties, it will be submitted by the
parties to arbitration under the extant rules of the American Arbitration
Association and shall be heard in Albuquerque, New Mexico. During the period of
arbitration, the Licensee will deposit in escrow with the arbitrator any amounts
due to Licensor during this period of time in accordance with this Agreement.
L. NOTICES. Any notice provided for or concerning this Agreement shall be
made in writing and deemed sufficiently given when sent by Certified Mail Return
Receipt Requested, if sent to the respective address of each party as set forth
below:
To Licensee at:
XXXX XXXXX CORPORATION
000 Xxxx XX Xxxxx 000
Xxxxxxxxxxx, XX 00000
and to Licensor at:
XXXX X. XXXXX
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
M. BINDING EFFECT. This Agreement shall be binding upon the heirs,
successors, assigns, and representatives of the parties hereto.
N. CUMULATION OF REMEDIES. All remedies available to either party for
breach of this Agreement are cumulative and may be exercised concurrently or
separately, and the exercise of any one remedy shall not be deemed an election
of such remedy to the exclusion of other remedies.
O. SEVERABILITY. If any provision, in whole or in part, of this Agreement
should be found to be invalid or unenforceable, it shall not affect the validity
of any other provisions within this Agreement which shall continue to bind the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the
date first above set forth.
LICENSEE LICENSOR
XXXX XXXXX CORPORATION XXXX X. XXXXX
By: /s/ Xxxx X. Xxxxx
Witness
EXHIBIT A
FOR LICENSING AGREEMENT FOR XXXX XXXXX
WITH XXXX XXXXX CORPORATION
See attached Pecos Valley Spice Product List.
Exceptions include: BBQ SAUCE & RUB - Mac's BBQ Sauce Original and Mac's BBQ
Sauce Hot; EQUIPMENT - Tapa/Comal, Tortilla Press, Stove Top Grill, Taco Tongs,
Taco Rack.
Additional items include: Xxxx Xxxxx Aprons, Spoons and Bean Mashers.
EXHIBIT B
FOR LICENSING AGREEMENT FOR XXXX XXXXX
WITH XXXX XXXXX CORPORATION
Xxxx Xxxxx will represent Xxxx Xxxxx Corporation as a spokesperson, create and
present cooking schools, create and present talks, create and present culinary
tours and make herself available upon reasonable lead time to represent the
company and its products at professional and trade functions of various types.
Butel will provide her talent for television shows and series, creating the
concepts and overall developing the shows.
Butel will work with the company to publish cookbooks on Southwestern, Mexican
cooking and related areas.
Butel will lead as well as assist in developing new categories of business and
new product lines.
