EXHIBIT 10.3
LICENSING AGREEMENT
THIS LICENSING AGREEMENT ("Agreement") is made as of the 1st day of
March, 1997 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 0X, Xxx Xxxx, Xxx Xxxx 00000, and
Xxxxxxx Xxxxxxx ("Licensor"), an individual of full age and majority,
residing in the State of New Jersey.
WHEREAS, Licensor has the sole and exclusive right to use and to
license others to use the name and likeness of Licensor, a popular performer
in the entertainment industry, for purposes of merchandising food products;
WHEREAS, Licensee manufactures celebrity-endorsed food products and
wishes to use the name and likeness of Licensor on and in connection with the
development, manufacture, distribution, promotion, and sale of Greek
specialty food products (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 exclusive
right to use the name, photograph, depiction, characterization, likeness,
voice, image, and biographical data of Licensor and the trademarks, logos,
copyrights and all other authorized material owned or controlled by Licensor
("Licensed Subject Matter") in connection with the development, manufacture,
distribution, promotion, and sale of the Products (the "License"). This
License shall be effective worldwide from the date first stated above until
terminated in accordance with the terms and conditions of Paragraphs 9 or 10
of this Agreement; provided, however, that Licensor shall have the right to
renegotiate, and Licensee shall be obligated to negotiate in good faith, the
terms of this License in the event Licensee assigns this Agreement to any
wholly owned subsidiary, or to any person, firm, or corporation owning or
acquiring forty-two and one-half percent (42.5%) or more of Licensee's stock
or assets pursuant to Paragraph 12. In the event Licensor and Licensee are
unable to renegotiate the terms of this Agreement following good faith
negotiations, Licensor shall have the right to terminate this Agreement upon
sixty days written notice notwithstanding Paragraphs 9 and 10 of this
Agreement.
2. Licensee's Obligations. Licensee shall undertake to use its best
efforts to develop, manufacture, distribute, promote, and sell the Products,
provided, however, that Licensee shall in its sole and absolute discretion
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 pay all
costs and expenses in connection with the development, production,
manufacturing, packaging, shipping, distribution, sales, and promotion 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. Licensee
shall reimburse Licensor for all out of pocket expenses incurred in
connection with pre-approved personal appearances and other promotional
activities undertaken by the Licensor on behalf of Licensee.
3. Licensor's Obligations. Licensor shall supply the Licensed
Subject Matter and personal appearance and services of Licensor for
television commercials, point of purchase, promotional, and display
materials, print media, outdoor and transit advertisements, and at sales
meetings, press conferences, dinners, receptions, and similar events at the
reasonable request of Licensee to assist in the promotion of the Products.
Licensor shall further furnish Licensee with sufficient information about her
schedule and performances to adequately plan its promotion and sales program
and shall ensure that all services by Licensor are rendered in a professional
manner to the best of her abilities and talents. Any and all publicity
regarding the Products shall be issued only by Licensee. Licensor may make
incidental reference to Licensee or the Products so long as it shall not be
the primary purpose of the publicity, provided that Licensor shall not make
any mention of Licensee, Licensee's products, or her engagement hereunder in
a derogatory manner, nor may Licensor disclose any trade secrets or
confidential information (including without limitation the terms of this
Agreement).
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 manufacture of the Products. Licensee shall provide
Licensor with two production samples of the Products for Licensor's approval
as to quality before the Licensed Subject Matter is embodied on any
particular Product. Licensee shall further submit for Licensor's approval
the artwork, packaging design, advertising material, and all other materials
to be used in connection with the Products. Licensee agrees that it shall
not manufacture or sell the Products or use such materials without the prior
approval of Licensor. However, any sample or materials submitted to Licensor
which have not been disapproved in writing within 30 business days after its
receipt by Licensor shall be deemed to have been approved.
5. Compensation. In full and complete compensation to Licensor for
entering into and performing the terms and conditions of this Agreement, and
provided that Licensor completely performs her obligations hereunder,
Licensee shall pay Licensor a license fee (the "License Fee") in an amount
equal to five percent (5%) of all monies received by Licensee, whether in
cash or by check, note or other instrument (but if in other than cash, only
upon collection thereof), as revenue derived from sale of the Products (the
"Gross Receipts").
6. Accounting. Licensee shall render a detailed accounting to
Licensor on a quarterly basis within 60 days after the first day of January,
April, July, and October. Each accounting shall show both quarterly and
cumulative Gross Receipts for the Products and shall be accompanied by the
payment in full of the Licensee Fee then due to Licensor. Licensee shall
keep accurate books of account governing all transactions relating to the
Products, and Licensor, or her duly authorized representative, shall have the
right at any time, but in no event later than two (2) years after the date
that an accounting is rendered to Licensor, at her sole expense, to audit the
books and records of Licensee with respect to the sale of the Products upon
reasonable notice to Licensee and in a manner not to unreasonably interfere
with Licensee's business.
7. Insurance. Licensee may secure in its own name or otherwise, and
at its own expense, life, health, accident or other insurance covering
Licensor up to an amount of $ 1,000,000, and Licensor shall not have any
right, title, or interest in or to any such insurance. Licensor shall
reasonably assist Licensee in procuring such insurance by submitting to the
usual and customary medical and other examinations and to sign applications
and other instruments in writing as may be reasonably required by any
insurance company to which application for such insurance may be made.
8. Warranties and Representations. Licensor represents, warrants,
and covenants that (a) Licensor has the sole right, power and authority to
enter into and to perform this Agreement; (b) Licensor has not made, nor will
make, any agreement or commitment with any third party with respect to the
manufacture, distribution, promotion or sale of food products; (c) no rights
in the Products, their formulae and secret ingredients, or their packaging
and labeling are granted to Licensor and that Licensee reserves all rights
therein; and (d) Licensor shall cooperate fully with Licensee in the
execution, filing, and prosecution of any trademark or copyright application
that Licensee may choose to file.
9. 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 discontinues production
and distribution of the Products.
10. Licensee Termination. Licensee may terminate this Agreement upon
forty-five days written notice if (a) Licensor breaches a material term of
this Agreement and fails to remedy said breach within thirty (30) days of her
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 disrepute or scandal
that affects Licensor's image; or (e) Licensor dies or suffers any disability
impairing Licensor's ability to perform as an entertainer.
11. 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, judgments, penalties, liabilities, damages,
costs, and expenses, including, without limitation, reasonable attorneys'
fees 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.
12. 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.
13. Notices. Any notice to be hereunder shall be made in writing and
shall be sent by certified United States mail, return receipt requested,
postage prepaid. All notices to Licensor shall be sent to 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000. All notices to Licensee shall be sent to
000 Xxxx 00xx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000.
14. Relationship of the Parties. Nothing in this Agreement shall be
construed to (i) give either party the power to direct or control the day to
day activities of the other; (ii) constitute the parties as partners; joint
venturers, co-owners, or otherwise as participants in a joint and common
undertaking; or (iii) constitute Licensor, her 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 or assume any obligation on behalf of
Licensee for any purpose whatsoever.
15. Governing Law and Jurisdiction. This Agreement shall be governed
by, and construed and enforced in accordance with the laws of the State of
New York. Both parties further consent to the personal jurisdiction of the
courts of the State of New York, whether state or federal, and agree that all
actions concerning, arising out of, or based upon this Agreement shall be
brought exclusively in a state or federal court located in 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 the
other, the prevailing party shall be entitled recover from the other its
reasonable attorneys' fees in connection therewith in addition to the costs
of such action, suit, or proceeding.
16. Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to its subject matter and
supersedes any and all negotiations, representations, or agreements between
the parties. No waiver, modification, or addition to this Agreement shall be
valid unless reduced to writing and signed 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 had
not been contained therein. Notwithstanding the foregoing, in the event and
provision held void, voidable, invalid, or inoperative impairs Licensee's
right to manufacture, distribute, promote, or sell Products, then this
Agreement shall be deemed to terminate.
IN WITNESS WHEREOF, the parties have executed this agreement in New
York, New York, on the 3rd day of November, 1997.
FAMOUS FIXINS, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
XXXXXXXX XXXXXXX
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
