Exhibit 10.4
EXCLUSIVE SALES AGREEMENT
This agreement, effective as of the 24th day of February, 1999, is by
and between LAMAZE from AMI, Inc., a Corporation organized and existing under
the laws of the State of New York, having a place of business at 000 Xxxxxxx
Xxxx Xxxx (00xx xxxxx), New York, N.Y. 10024 ("LAMI") and THE ROSE GROUP
CORPORATION of Nevada, a Corporation organized and existing under the laws of
the State of Nevada, and having a place of business at 0000 Xxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxx, 00000 ("ROSE").
WITNESSETH:
WHEREAS, LAMI represents that it has the exclusive right and license to
use the federally registered trademark LAMAZE in conjunction with the
advertising and distribution of various maternity and nursingwear products by
virtue of an existing Contribution Agreement between LAMAZE International and
LAMI, and
WHEREAS, ROSE desires to obtain the exclusive right to sell certain
products as approved by LAMI,
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and the sum of one dollar, receipt of which is hereby acknowledged,
and other good and valuable consideration, the parties mutually agree as
follows:
1. LAMI warrants and represents that it has the exclusive right and license to
use the federally registered trademark LAMAZE in conjunction with the
manufacture, offering for sale, advertising and sale and distribution of various
maternity and nursingwear products pursuant to a Contribution Agreement between
LAMI and LAMAZE International. LAMI further warrants that Xxxxx Xxxxxxxxx is
fully authorized to enter into this Agreement for and on behalf of LAMI.
2. ROSE warrants and represents that Xxxxxxx Xxxx is fully authorized to enter
into this Agreement for and on behalf of ROSE. ROSE further warrants and
represents that it has the necessary expertise, knowledge and capability to
manufacture, supply and distribute, xxxx, and collect for LAMI various products
under private label including the trademark LAMAZE, and remit and account to
LAMI for the sale of said products.
3. LAMI hereby grants to ROSE and ROSE hereby accepts from LAMI, upon the terms
and conditions hereinafter specified, the exclusive sales rights to manufacture,
supply, advertise, offer for sale, promote and sell for LAMI the products
enumerated on EXHIBIT "A" annexed hereon ("Authorized Products") within the
United States of America, its territories and possessions, for the term set
forth herein. Except as indicated herein, for the term of this Agreements, LAMI
will not grant any sales rights to any third party for the manufacture or sale
of any of the Authorized Products. LAMI retains the right to sell any Approved
Product through its own network with the Agreement of ROSE.
4. ROSE shall control and have full responsibility for the manufacture,
packaging, inventory, pricing, shipment, invoicing and collection of accounts
receivable with respect to the Authorized Products.
5. ROSE will pay to LAMI a fee equal to nine Percent (9%) of the net sales of
Authorized Products. As used throughout this Agreement, the term "net sales"
shall mean the gross sales proceeds from the sale of all Authorized Products
less any returns by customers of ROSE or damaged or defective Authorized
Products. As used throughout this Agreement, the term "annual net sales" shall
mean the net sales as defined above for the time period from january 1 through
December 31 of each year of the term of this Agreement. The fee will be due and
payable on the 15th of the month for the previous month's sales. Rose will be
considered in default and this Agreement will become null and void if payments
become more than 45 days in arrears. ROSE shall keep such records as are
necessary for LAMI to ascertain the accuracy of the statements.
6. In consideration for the exclusive sales rights granted to ROSE by LAMI in
this Agreements, ROSE shall pay to LAMI a minimum of $45,000.00 in 1999 against
sales as follows: $14,000.00 upon the execution of this Agreement, $16,000.00 by
May 15th, 1999, $10,000.00 by August 15th, 1999, and $5,000.00 by September
15th, 1999. Beginning in the year 2000 and annually thereafter, ROSE shall pay a
minimum of $45,000.00 against sales in the sum of Twenty Two Thousand Five
Hundred Dollars ($22,500.00) on January 15th of every year, and the sum of
Twenty Two Thousand Five Hundred Dollars ($22,500.00) on July 15th of every
year. All of the aforementioned payments shall be non-refundable advances on the
fee due to LAMI upon same year net annual sales of Authorized Products (the
"Advances"). The Advances shall be credited against the fees payable on sales of
Authorized Products. ROSE agrees to sell a minimum of $500,000.00 Authorized
Products annually. The failure by ROSE to realize the minimum net annual sales
levels shall constitute a material breach of the Agreement. ROSE shall provide
LAMI with annual audited financial statements.
7. LAMI acknowledges that it has examined ROSE's Maternity support hose and the
nursing shawl products and that the quality standards of the samples thereof
shown to LAMI are acceptable to LAMI. ROSE agrees that the Authorized Products
shall meet or exceed such quality standards and LAMI agrees that Authorized
Products that meet or exceed such quality standards shall be acceptable to LAMI
for purposes of this paragraph. ROSE agrees to furnish complete product
specifications to LAMI to establish a minimum quality standard for all
Authorized Products.
8. Use of "LAMAZE" Xxxx: For any use of the "LAMAZE" xxxx as allowed under this
Agreement in connection with advertising, packaging or marketing materials, it
must at lease once place the "R" letter in a circle by the "LAMAZE" xxxx, and
then in a prominent location place the following statements: "LAMAZE" is a
registered trademark of Lamaze International, Inc."
9. ROSE agrees to defend, indemnify and hold harmless LAMI, LAMAZE
International, their respective officers, Directors and shareholders from and
against any and all claims of any third party alleging that the Authorized
Products are defective or have caused injury.
10. ROSE agrees that, during the term of this agreement, it will maintain
product liability insurance having liability limits customary in the trade, but
in no event less than the amounts required by LAMAZE International to be carried
by LAMI. As of the date of this agreement, LAMAZE International is requiring
liability limits of One Million Dollars ($1,000,000.00). LAMI and
LAMAZE International shall be named as "additional insureds" on the product
liability policies held by ROSE and shall provide LAMI with a copy of the
declaration page to such policy as soon as practical after the execution of this
Agreement.
11. The term of this Agreement is until December 31, 2001 and may be renewed by
mutual agreement of the parties upon the terms agreed upon at the time of
renewal.
12. This Agreement may be terminated by either party for a material breach of
the provisions herein, upon written notice to the breaching party, if the breach
is not cured within thirty (30) days of receipt of such notice.
13. All notices herein shall be sent by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to ROSE Xx. Xxxxxxx X. Xxxx, Chairman, CEO
The Rose Group Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
If to LAMI: Xx. Xxxxx Xxxxxxxxx, President
LAMAZE from LAMI, Inc.
000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
14. ROSE expressly acknowledges the ownership by Lamaze International of the
LAMAZE xxxx, and the right of Lamaze International to pre-approve all
advertising, packaging and promotional materials with the Authorized Products
containing the LAMAZE xxxx.
15. LAMI acknowledges the proprietary rights to the tradename THE ROSE GROUP
CORPORATION in Design, and Agrees that ROSE's tradename may appear on the
authorized Products, labels attached to Authorized Products, and the packages in
which the Authorized Products are sold so long as the LAMAZE tradename remains
the dominate name appearing on the Authorized Products, its labels and
packaging. ROSE may not advertise or promote any other products which it
manufactures, now or in the future, along with an Authorized Product in such a
way as to give the appearance that the unauthorized product is in any way
connected with or endorsed by LAMAZE International or LAMI, or that the
unauthorized product is comparable to the Authorized Product.
16. The parties hereto agree to the jurisdiction of the United States District
Courts for the adjudication of disputes relating to the interpretation of or
performance under this Agreement or the improper use of the parties trademarks
or tradenames. The parties further agree that the laws of the State of New York
shall apply to the interpretation of this Agreement regardless of any prior
conflicts of law determinations.
17. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in their respective corporate names by their respective officers
thereunto duly authorized as of the day and year hereinabove first written.
LAMAZE from AMI, INC.
By: /s/ XXXXX XXXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxxx, President
THE ROSE GROUP CORPORATION
OF NEVADA
By: /s/ XXXXXXX X. XXXX
------------------------------------
Xxxxxxx X. Xxxx President
EXHIBIT "A"
To Exclusive Agreement between
LAMAZE from AMI, INC.
and
THE ROSE GROUP CORPORATION OF NEVADA
ITEM STYLE NUMBER
Maternity Support Hose 70, 80, 82, 84, 86, 88, 90,
92, 94, 96, 98
Nursing Shawl 60620
