EXCLUSIVE LICENSE AGREEMENT
EXHIBIT
10.1
THIS EXCLUSIVE LICENSE
AGREEMENT (the “Agreement”) is made as of the 4th day of
October, 2007, by and between Dragon’s Lair Health Products, Inc., a Florida
corporation (the “Licensee”), and Xxxxx Xxxxxxx (the “Licensor”).
RECITALS
WHEREAS, Licensor has developed a
unique recipe for an herbal pain remedy product;
WHEREAS, Licensor presently owns all
right, title and interest in and
to such
recipe and the trademark, trade name and logo SORE-EEZ associated with such
recipe;
WHEREAS, Licensee desires to obtain the
right to manufacture and sell products which are the subject of the recipe and
to become the exclusive world-wide licensee of the recipe and the trademark,
trade name and logo SORE-EEZ; and
WHEREAS, Licensor is willing to license
the recipe and the trademark, trade name and logo SORE-EEZ to Licensee upon the
terms and conditions set forth herein below.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
AGREEMENT
ARTICLE
I
DEFINITIONS
As used herein, the following terms are
defined as set forth below:
1.01 “Recipe”
shall mean the recipe for the manufacture of the herbal pain remedy product, a
sample of which has been provided by Licensor to Licensee. It is the
intention of the parties to grant Licensee broad discretion to market products
embodying the Recipe by such means as it deems appropriate, including
modifications to the recipe for the products as Licensee deems appropriate and
changes in the form of the recipe such that such products may be produced in
liniment, oil, cream, salve, balm or such other form as Licensee deems
appropriate.
1.02 “Licensed
Know-How” means all technical, economic, commercial and regulatory information
now owned by Licensor and useful or necessary to make, have made, use or sell
the Recipe.
1.03 “Marks”
mean the trademark, trade name and logo SORE-EEZ and the rights associated
therewith.
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ARTICLE
II
EXCLUSIVE
LICENSE
2.01 Licensor
hereby grants to Licensee a license (the “License”) to make, have made, use and
sell and otherwise deal in products embodying the subject matter of the Recipe,
the Marks and the Licensed Know-How throughout the world during the term of this
Agreement, said License being exclusive as to Licensee as set forth
herein.
2.02 Licensee
agrees to use its best efforts to maintain the quality of all products embodying
the subject matter of the Recipe and shall be responsible for assuring that all
products manufactured under this Agreement shall meet all applicable
requirements for safety and labeling.
ARTICLE
III
COMPENSATION
3.01 Licensee
agrees to pay Licensor a royalty of 975,000 shares of common stock, no par
value, of Dragon’s Lair Holdings, Inc., a Florida corporation (“Parent”), as
consideration for the License. Licensor acknowledges that Parent and Licensee
are newly-formed corporations which have no financial or operating history and
there can be no assurance of the return which Licensor may receive on her
investment in such shares. Licensor acknowledges that she is an “accredited
investor” within the meaning of Rule 501 promulgated under the Securities Act of
1933, as amended (the “Securities Act”). and is able to evaluate the
risks and merits of her investment in such shares. Licensor further acknowledges
that the shares have not been registered under the Securities Act of 1933, as
amended, and she may have to hold such shares indefinitely.
ARTICLE
IV
COMPLIANCE
4.01 Licensee
shall perform all procedures and comply with all statutes and regulations
imposed by any agency or instrumentality of any governmental body relative to
the manufacture and sale of the products embodying the Recipe, including all
“labeling” as contemplated by the Federal Food, Drug and Cosmetic Act, as
amended, and any other applicable law, rule and regulation. Licensee shall, at
its own expense, perform such testing and validation that it deems necessary or
appropriate to determine the safety and labeling requirements of all products
made under this Agreement.
ARTICLE
V
REQUIREMENTS
OF COMMERCIAL SALE
5.01 Licensor
may cancel and terminate the License in the event that Licensor has not
introduced one or more products into the commercial marketplace based on the
Recipe and recognized revenues of $400,000 from sale of such products based on
the Recipe by October 4, 2012. In the event of the termination of the
License pursuant to this Article V, Licensor shall not be required to return the
shares of Common Stock issued to Licensor pursuant to Article III hereof and the
foregoing shall be Licensor’s sole and exclusive remedy in the event the
Licensee is unable to reach such sales requirements.
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ARTICLE
VI
TERM
AND TERMINATION
6.01 The
License granted herein shall, unless sooner terminated as herein provided,
remain in full force, so long as Licensor is actively selling a product based on
the Recipe.
6.02 Licensor
hereby represents and warrants that she has the full right, power and authority
to grant the License to Licensee in the manner and form herein expressed, free
and clear of any adverse assignment, grant or other encumbrance inconsistent
herewith. Licensor represents and warrants that she is not aware of
any existing or threatened claims that her rights to the Recipe, Licensed
Know-How and Marks are infringing on any rights of others. Except as
set forth herein, Licensor makes no further representations or warranties with
regard to the Recipe. Licensee shall be responsible for determining the safety
of the products made with the Recipe. The Licensor makes no representations or
warranties with respect to the safety of the products made with the
Recipe.
6.03 If
either party to this Agreement defaults or materially breaches the terms hereof,
the other party shall have the right to terminate the License by stating the
facts forming the basis for default or breach in a written notice to the
defaulting party 60 days in advance of the date of termination specified in the
notice. If, however, such default or breach is cured within 60 days
after the notice of termination has been mailed, by certified or registered
mail, the notice of termination will not be operative and the
Agreement
shall remain in full force and effect.
6.04 Except
as set forth herein, the termination of the License for any reason shall be
without prejudice to the remedy of either party hereto in respect of any
previous breach of any of the covenants herein contained.
6.05 At
any time during the term of this Agreement either party may at its option
terminate the Agreement on notice to the other party upon (i) the bankruptcy or
insolvency of the other party; (ii) the filing by the other party of a petition
for bankruptcy or dissolution; (iii) the making by the other party of an
assignment for the benefit of creditors; (iv) the appointment of a receiver of
the other party over any of its assets, which appointment shall not be vacated
within 60 days thereafter; (v) the filing of any other petition based upon the
alleged bankruptcy or insolvency of the other party
which
shall not be dismissed within 90 days thereafter or (vi) any exchange of stock,
sale or other disposition of all or substantially all of the assets of the
Licensee or Parent, or any reorganization, consolidation, or merger of the
Licensee or Parent where the holders of the Parent’s or Licensee’s securities
before the transaction beneficially own less than 50% of the outstanding voting
securities of the surviving entity after the transaction.
6.06 Licensee
may terminate the License at any time upon giving written notice to
Licensor.
ARTICLE
VII
MISCELLANEOUS
7.01 This
Agreement and the covenants contained herein shall be binding upon and inure to
the benefit of the parties hereto. Licensee shall not have the right
to sublicense or assign any rights under this Agreement.
7.02 Licensee
agrees to protect, defend and indemnify Licensor from any claims
and expenses for personal injury or products liability arising out of the use of
the products sold by Licensee.
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7.03 Nothing
contained in this Agreement will be deemed to constitute the
parties hereto as partners or to create a joint venture, nor does this Agreement
constitute either Licensee or Licensor as the agent or legal representative of
the other. Neither Licensor nor Licensee shall have the right or authority to
create any obligation express or implied in the name of the other or to bind the
other in any manner except as otherwise provided herein.
7.04 Any
provision of this Agreement held invalid or unenforceable under any
law, rule, regulation or interpretation thereof, shall not affect the validity
or enforceability of any other provisions of this Agreement or any part thereof
not held invalid or unenforceable.
7.05 This
Agreement contains the entire understanding of the parties with respect to the
subject matter herein contained and supersedes all previous agreements, if any,
on this subject matter executed by the parties. The parties hereto may, from
time to time during the continuance of this Agreement, modify or amend any of
the provisions of the Agreement only by an instrument duly executed by the
parties hereto. It is expressly understood that there has been made to Licensee
or Licensor no other inducement, either oral or written, to enter into this
Agreement other than the terms hereof.
7.06 Licensee
and Licensor agree to submit any dispute arising hereunder to binding
arbitration in the event that good faith efforts on behalf of the parties do not
result in resolution of such dispute. Such arbitration to be in Miami-Dade
County, Florida in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association.
7.07 This
Agreement shall be construed in accordance with the laws of the State
of Florida; that, if any sentence, paragraph, clause or combination of same is
in violation of any state or federal law, said sentences, paragraphs, clauses or
combination of the same shall be inoperative and the remainder of this Agreement
shall remain binding upon the parties hereto.
7.08 Any
notice, payment or other communication required or permitted to be given by
either party to the other pursuant to this Agreement shall be in writing and
shall be deemed to have been given if delivered by hand, or sent by certified
mail, postage prepaid to the parties mailing address. Either party
may change its mailing address by giving the other party notification in the
manner set forth above.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
LICENSOR:
/s/ Xxxxx
Xxxxxxx
XXXXX XXXXXXX
LICENSEE:
DRAGON’S LAIR HEALTH PRODUCTS,
INC.
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx, President
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