Exhibit 10.64
PURCHASE AND SALE AGREEMENT, dated March 28, 2003, by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC, a New Jersey limited liability company with an
office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Buyer") and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Inc., a Delaware corporation with an office at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"). Capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
assigned thereto in Appendix A.
W I T N E S S E T H:
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WHEREAS, Seller owns or holds certain assets, including inventories,
technology, technical information, know-how, copyrights, trademarks and
contractual rights used, useful or held for use in the manufacture and marketing
of cosmetics, fragrances and related products; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, certain of the assets of Seller used, useful or held for use in the
manufacture and marketing of cosmetics, fragrances and related products as more
particularly defined herein and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants and agreements contained herein and other good, valuable
and sufficient consideration, the receipt of which is hereby acknowledged,
Seller and Buyer (collectively, the "Parties" and each sometimes, individually,
a "Party"), intending to be legally bound, hereby agree as follows:
Article 1 - PURCHASE AND SALE OF ASSETS; CLOSING
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1.1 Closing. The closing of the transactions contemplated hereby (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as Seller and Buyer may
mutually agree, on March 28, 2003, or such other date as Seller and Buyer may
mutually agree, (the "Closing Date") and, subject to completion, shall be deemed
to have been consummated and become effective for all purposes as of 5:00 p.m.
on the Closing Date. Subject to the provisions of Article 7, failure to
consummate the purchase and sale provided for in this Agreement on the date and
at the time and place determined pursuant to this Article 1 will not result in
the termination of this Agreement and will not relieve any party of any
obligations under this Agreement.
1.2 Transfer of Assets. Subject to the terms and conditions set forth
herein, at the Closing, Seller shall sell, assign, transfer and convey to Buyer,
and Buyer shall purchase and accept from Seller, all of Seller's right, title
and interest in and to the following assets, which are used or held for use by
Seller in connection with the manufacture and marketing of Products, with such
changes therein, additions thereto and deletions therefrom as may occur from the
date hereof through the Closing Date in the ordinary course of business or as
may be permitted or required pursuant to the terms hereof (collectively, the
"Purchased Assets"):
(i) the Molds;
(ii) the Inventory;
(iii) the Know-How;
(iv) the rights of Seller and its Affiliates in, to and under
the Purchase Commitments; and
(v) all customer and vendor lists of Seller which relate to
the Products; and such other business and financial information
relating exclusively to the Products as Seller may reasonably request.
1.3 Excluded Assets. Only those assets, rights, interests and
properties of Seller and its Affiliates which are expressly set forth in Article
1.2 are to be sold, assigned, transferred and conveyed to Buyer hereunder,
directly or indirectly, and all other assets, rights, interests and properties
of Seller and its Affiliates (including any inventories of Products owned by E
Com Ventures, Inc. and its wholly-owned subsidiaries) shall be specifically
excluded from the transactions contemplated by this Agreement (collectively, the
"Excluded Assets").
1.4 Trademark Sublicense. On the Closing Date, Seller shall grant to
Buyer an exclusive sublicense of all of Seller's rights to the Trademarks for
use on cosmetics, fragrances and similar products, including, without
limitation, the Products (the "Trademark Sublicense"). Such sublicense shall be
substantially in the form of Annex A.
1.5 Consideration. In consideration for the sale, assignment, transfer
and conveyance of the Purchased Assets to Buyer by Seller in accordance with and
upon the terms and conditions set forth in this Agreement, Buyer shall (i) pay
to Seller a purchase price of Four Million Thirty-Two Thousand Two Hundred
Seventy-One Dollars ($4,032,271), subject to adjustment in accordance with the
provisions of Article 1.13 (the "Purchase Price"), and (ii) assume the Assumed
Liabilities in accordance with Article 1.7.
1.6 Payment. At the Closing, Buyer shall pay the Purchase Price to
Seller in the following manner: (i) Two Million Dollars ($2,000,000) in cash by
wire transfer of immediately available funds to an account of GMACCF in
accordance with wire instructions to be provided to Buyer by Seller in writing
at least two (2) business days prior to the Closing, and (ii) Two Million
Thirty-Two Thousand Two Hundred Seventy-One Dollars ($2,032,271) as a promissory
note payable to Seller in substantially the form of Annex B (the "Promissory
Note"). The obligations of Buyer under the Promissory Note will be secured by a
Security Agreement, in substantially the Form of Annex C, to be entered into by
Buyer and Seller on the Closing Date (the "Security Agreement"). In accordance
with the GMACCF Letter (as hereafter defined), Seller will endorse the
Promissory Note, and assign its rights under the Security Agreement, to GMACCF
and Buyer will make all payments of principal and interest on the Promissory
Note directly to GMACCF in accordance with the wire instructions referred to
above.
1.7 Assumption of Certain Liabilities and Obligations by Buyer. Subject
to the provisions of Article 9, upon, from, and after the Closing, Buyer shall
assume and agree to pay, perform and discharge when due, and shall indemnify
Seller and its Affiliates against and hold them harmless from, the following,
and only the following, obligations and liabilities of Seller (the "Assumed
Liabilities"): all obligations arising from and after the Closing Date under the
Purchase Commitments listed on Schedule 3.8 hereto, but excluding (i) any
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obligations arising or accruing thereunder on or prior to the Closing Date (even
if payment therefor is not due until after the Closing), (ii) any obligations or
liabilities arising from claims of breach of, or otherwise arising out of but
not specifically set forth in, the Purchase Commitments and relating to the
period prior to the Closing Date.
1.8 Retained Liabilities. Except as expressly provided in Article 1.7,
Seller or its Affiliates, as the case may be, shall, without any responsibility
or liability of, or recourse to, Buyer, absolutely and irrevocably retain and be
solely liable and responsible for any and all Liabilities of any kind or nature
asserted against or incurred or sustained by Buyer rising out of, related to, or
associated with Seller, or any Affiliate of Seller, the business of Seller or
its Affiliates (including, without limitation the ownership, leasing or use of
the Purchased Assets), whether foreseen or unforeseen, known or unknown,
existing or which may arise in the future, fixed or contingent, matured or
unmatured, regardless of whether they are reflected in any of the Schedules
attached hereto, regardless of whether they arise out of, relate to, or are
associated with events occurring or circumstances existing before or after the
Closing, regardless of whether they are asserted, incurred, or sustained, before
or after the Closing, regardless of when they became fixed or known, regardless
of whom they are asserted by or against, regardless of where they are asserted,
incurred, or sustained, and regardless of whether they arise out of, relate to,
or are associated with, health, safety, the environment, personal injury,
contracts, property damage, employment, negligence, recklessness, violation of
law, rule or regulation, misrepresentation, strict liability or product
liability including, without limitation, all liabilities for product liability
claims relating to Products manufactured by Seller on or prior to the Closing
Date (collectively, the "Retained Liabilities").
1.9 Closing Obligations and Deliveries of Seller. At the Closing,
Seller shall deliver, or cause to be delivered, to Buyer:
(a) one executed ▇▇▇▇ of Sale and Assignment, in form
acceptable to Buyer, with respect to the Molds, the Inventory, the Know-How, the
rights of Seller and its Affiliates under the Purchase Commitments and any other
Purchased Assets;
(b) one executed Trademark Sublicense;
(c) one executed Security Agreement;
(d) except as provided in Article l.12 hereof, all Consents
listed on Schedule 3.3;
(e) the certificate of an officer of Seller provided for in
Articles 5(iii) and 5(v);
(f) one counterpart, executed on behalf of Seller, Parlux Ltd.
and GMACCF, of a letter, in substantially the form of Annex D (the "GMACCF
Letter"), pursuant to which GMACCF consents to the consummation of the
transactions contemplated hereby and agrees to release the GMACCF Lien upon
payment by Buyer to GMACCF of the Purchase Price in accordance with the terms of
such letter; and
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(g) a certified copy of resolutions duly adopted by the Board
of Directors (and, if required, the shareholders) of Seller evidencing the
authorization described in Article 3.1.
1.10 Closing Obligations and Deliveries of Buyer. At the Closing, Buyer
shall deliver, or cause to be delivered, to Seller:
(a) one executed Assumption Agreement, in a form acceptable to
Seller, with respect to the Purchase Commitments;
(b) one executed Trademark Sublicense;
(c) one executed Security Agreement;
(d) the certificate of an officer of Buyer provided for in
Articles 6(iii) and 6(iv); and
(e) the Purchase Price, payable in accordance with the
provisions of Article 1.6.
1.11 Recording of Documents. Buyer shall be responsible, at Buyer's
sole cost and expense, for the filing or recording of such deeds, assignments,
instruments or documents delivered by Seller hereunder, however effected, and
for the preparation and recording of such additional assignments, instruments or
documents as may be necessary or appropriate to perfect Buyer's right or title
to, or interest in, the Purchased Assets.
1.12 Assignment of Assets.
(a) Nonassignability. To the extent that any Purchased Asset
described in Article 1.2 to be sold, assigned, transferred or conveyed to Buyer,
or any claim, right or benefit arising thereunder or resulting therefrom (the
"Interests"), is not capable of being assigned, transferred or conveyed without
the Consent of any other party thereto (including any Governmental
Authorization), or if such assignment, transfer or conveyance or attempted
assignment, transfer or conveyance would constitute a breach thereof, this
Agreement shall not constitute an assignment, transfer or conveyance thereof, or
an attempted assignment, transfer or conveyance thereof, until such obstacles
have been removed.
(b) Reasonable Efforts. Notwithstanding anything in this
Agreement to the contrary, neither Seller nor any of its Affiliates is obligated
to assign, transfer or convey to Buyer any of its rights and obligations in and
to any of the Interests without first obtaining all necessary Consents. Seller
shall use all reasonable efforts, and Buyer shall cooperate with Seller and its
Affiliates, to obtain all necessary Consents, or to resolve any
impracticabilities of, or impediments or threatened impediments to, transfer
referred to in Article 1.12(a), necessary to convey to Buyer each such Interest
as soon as reasonably practicable.
(c) If Consents Cannot be Obtained. To the extent any of the
Consents referred to in Article l.12(a) have not been obtained as of the
Closing, or until any impracticabilities of, or impediments to, transfer
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referred to in Article 1.12(a) are resolved, Seller shall use all reasonable
efforts (at its sole cost and expense) during the remaining term of such
Interest to: (i) obtain the Consent of any such third party; (ii) cooperate with
Buyer in any reasonable and lawful arrangements designed to provide the benefits
of such Interest to Buyer (including, but not limited to, continued performance
by Seller or its Affiliate of a contractual obligation or service for the
benefit of Buyer until required Consents for the transfer of that contract or
service to Buyer are obtained and effected) so long as Buyer fully cooperates
with Seller and such Affiliate in such arrangements (including reimbursement for
expenses and the granting of any required subcontracts or authorization by Buyer
to enable Seller or such Affiliate to so perform) and (iii) enforce, or cause to
be enforced, at the request of Buyer and at the expense and for the account of
Buyer, any rights of Seller or any of its Affiliates arising from such Interest
against any other party or parties thereto (including the right to elect to
terminate any such Interest in accordance with the terms thereof upon the advice
of Buyer).
1.13 Adjustment to Purchase Price. The Purchase Price shall be subject
to adjustment only in accordance with the provisions of this Section 1.13.
(a) The Inventory has been valued at Four Million Thirty-Two
Thousand Two Hundred Seventy-One Dollars ($4,032,271.00) (the "Initial Inventory
Value") based upon the Inventory expected to be existing and on hand at the
Closing. The Purchase Price shall be adjusted up or down after the Closing by
the difference, if any, between the Initial Inventory Value and the value of the
Inventory determined in accordance with this Section 1.13 (the "Final Inventory
Value").
(b) Seller shall make all such Inventory available at Seller's
warehouse for loading onto Buyer's selected mode of transportation as of the
opening of business on a date to be mutually agreed by Buyer and Seller which
date shall be no later than fourteen (14) days following the Closing Date. Such
persons as designated by Seller and to whom Buyer has no reasonable objection
(with the right in Buyer to designate a person or persons to observe to whom
Seller has no reasonable objection) shall conduct a physical count of the
Inventory simultaneously with the loading. All Inventory in the hands of third
persons will be verified by Seller (and, if so desired by Buyer, a
representative of Buyer) and included as part of the Final Inventory Value. If,
at the time of the physical count, there is significant physical damage or
deterioration to specific Inventory items, such items will be excluded from the
physical count. All other Inventory items will be included in the physical count
and recognized as part of the Final Inventory Value. Seller shall determine the
Final Inventory Value based on such physical count in accordance with Section
1.13(c) below and shall prepare and deliver to Buyer within thirty (30) days
following the Closing Date a written statement stating such Final Inventory
Value and the difference between such Final Inventory Value and the Initial
Inventory Value.
(c) The Final Inventory Value will be calculated by Seller as
follows: (i) raw materials valued at Seller's actual cost determined on a FIFO
basis; (ii) work-in-process and finished goods Inventory valued at the standard
costs therefor as set forth on Schedule 3.6, (iii) all other Inventory, valued
at Seller's actual cost determined on a FIFO basis and (iv) an absorption charge
of 7.134%.
(d) Within fourteen (14) days of receipt by Buyer of the
written statement to be provided by Seller pursuant to Article 1.13(b), if the
Final Inventory Value is greater than the Initial Inventory Value, the Buyer
shall promptly pay to the Seller the difference in immediately available funds
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by wire transfer to the account of GMACCF specified in Seller's written wire
instructions delivered pursuant to Section 1.6, and if the Final Inventory Value
is less than the Initial Inventory Value, Buyer shall have an automatic right of
set-off against the Purchase Price and may set-off the difference in accordance
with Article 9.6.
Article 2 - REPRESENTATIONS AND WARRANTIES REGARDING BUYER
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2.1 Organization. Buyer is a limited liability company duly organized
and validly existing under the laws of the State of New Jersey. Buyer has all
limited liability company power and authority necessary to (i) execute, deliver
and perform its obligations under this Agreement and (ii) consummate the
transactions contemplated hereby. 2.2 Authorization. The execution and delivery
by Buyer of this Agreement, the performance by Buyer of its obligations
hereunder and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by all necessary limited liability company action on
the part of Buyer. This Agreement constitutes a legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
2.3 No Breach. The execution and delivery by Buyer of this Agreement,
the performance by Buyer of its obligations hereunder and the consummation by
Buyer of the transactions contemplated hereby will not (i) conflict with, result
in any violation of or constitute a default under the Organizational Documents
of Buyer, (ii) constitute a default under, result in a violation or breach of,
result in the cancellation or termination of, accelerate the performance
required under, or result in the creation of any Encumbrance upon any of the
properties of Buyer pursuant to, any Contract to which Buyer is a party or by
which any of such properties is bound or (iii) result in a violation of, or
conflict with, any Legal Requirement or Order applicable to Buyer or any of its
properties.
2.4 Consents. No consent, approval, exemption or authorization is
required to be obtained from, no notice is required to be given to, and no
filing is required to be made with, any third party (including, without
limitation, any Governmental Authority) by Buyer in order (i) for this Agreement
to constitute a legal, valid and binding obligation of Buyer or (ii) to
authorize or permit the consummation by Buyer of the transactions contemplated
hereby.
Article 3 - REPRESENTATIONS AND WARRANTIES REGARDING SELLER
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3.1 Organization and Authorization. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Seller has all corporate power and authority necessary to (i) execute,
deliver and perform its obligations under this Agreement and the Trademark
Sublicense, and (ii) consummate the transactions contemplated hereby and
thereby. The execution and delivery by Seller of this Agreement and the
Trademark Sublicense, the performance by Seller of its obligations hereunder and
thereunder and the consummation by Seller of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of Seller. This Agreement constitutes and, when executed and
delivered by Seller in accordance with the provisions of Article 1.4 and 1.9(b)
the Trademark Sublicense will constitute, a legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with their respective terms.
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3.2 No Breach. The execution and delivery by Seller of this Agreement
and the Trademark Sublicense, the performance by Seller of its obligations
hereunder and thereunder and the consummation by Seller of the transactions
contemplated hereby and thereby will not, directly or indirectly, (with or
without notice or lapse of time) (i) contravene, conflict with, result in a
violation or breach of, or constitute a default under, the Organizational
Documents of Seller, (ii) contravene, constitute a default under, result in a
violation or breach of, result in the cancellation or termination of, accelerate
the performance required under, or result in the creation of, any Encumbrance
upon any of the properties of Seller, pursuant to any Contract to which Seller
is a party or by which any of such properties is bound, including, without
limitation, the FHBH Agreement, (iii) contravene, conflict with, or result in a
violation of, or give any Governmental Authority or other person the right to
challenge any of the transactions contemplated hereby or thereby, or to exercise
any remedy, or obtain any relief, under any Legal Requirement or any Order to
which Seller, or any of the Purchased Assets may be subject.
3.3 Consents. Except as set forth on Schedule 3.3, no consent approval,
exemption or authorization is required to be obtained from, no notice is
required to be given to, and no filing is required to be made with, any third
party (including, without limitation, any Governmental Authority) by Seller in
order (i) for this Agreement and the Trademark Sublicense to constitute legal,
valid and binding obligations of Seller or (ii) to authorize or permit the
consummation by Seller of the transactions contemplated hereby or thereby.
3.4 Standard Costs. The Seller's standard costs relating to the
Products set forth on Schedule 3.6, are true and correct and consistent with
Seller's past practices.
3.5 Molds. Schedule 3.5 contains a true, correct and complete list of
all Molds owned or used by Seller in connection with the manufacture or
marketing of Products and sets forth the current location of each. The Molds
constitute all such devices or similar items necessary for the manufacture or
marketing of Products on a basis consistent with the kind, quality and
quantities previously manufactured and marketed by Seller. All Molds are in good
operating condition, reasonable wear and tear excepted, and are suitable for the
manufacture of the Products.
3.6 Inventory. Schedule 3.6 contains a true, correct and complete list
of Seller's Inventory related to each of the Products. All items of Inventory
are in good and merchantable condition, of first quality and in conformance to
the specifications for such Products, saleable or usable in the ordinary course
of business for the purposes for which intended and have been carried on the
books and records of Seller on a consistent basis.
3.7 Title to Owned Properties. Seller has good and marketable title to
all of the Purchased Assets, free and clear of all Encumbrances other than the
GMACCF Lien.
3.8 Purchase Commitments. Schedule 3.8 contains a true, correct and
complete list of all Purchase Commitments. Seller has previously delivered or
caused to be delivered to Buyer a true, correct and complete copy of each
Purchase Commitment.
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3.9 Performance Under Purchase Commitments. All of the Purchase
Commitments are legal, valid, and binding upon the parties thereto in accordance
with their respective terms and are in full force and effect. Seller is not in
breach or default, nor has it received notice of any default or any event which,
with or without notice or lapse of time, would constitute a breach or default by
Seller, under any such Purchase Commitment. To Seller's knowledge, none of the
other parties to any such Purchase Commitment is in breach or default
thereunder. To Seller's knowledge, there does not exist any condition nor has
there occurred any event which, with or without notice or lapse of time, would
constitute a breach or default under any such Purchase Commitment. There is no
reasonable basis for any party to such Purchase Commitment to make any claim
against Buyer with respect to any such Purchase Commitment to the extent the
same relates to the period prior to the Closing Date.
3.10 Intellectual Property.
(a) Schedule 3.10(a) sets forth a true and correct list of all
of the trademarks, service marks, imprints, logos, trade dress and tradenames
licensed to Seller pursuant to the FHBH Agreement (as defined below). All
Trademarks have been duly registered in, filed in or issued by the appropriate
Governmental Authority where such registration, filing or issuance is reasonably
necessary or appropriate for the sale of the Products as presently conducted by
Seller. Seller has the sole and exclusive right to use, execute, reproduce,
display, distribute and sublicense, without payment to any other Person, all
such Trademarks and the consummation of the transactions contemplated by this
Agreement and the Trademark Sublicense do not and will not in any respect
conflict with, alter or impair any such rights. Neither Seller, nor any
Affiliate of Seller, has received any written or oral communication from any
Person asserting any ownership interest in any such Trademarks, other than ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hills, Inc. ("FHBH"). The Asset Purchase agreement, dated June
15, 1994, by and between ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hills, Inc. and Seller (the "FHBH
Agreement"), a true, correct and complete copy of which has previously been
delivered to Buyer by Seller, sets forth the entire agreement and understanding
between FHBH and Seller with respect to the Trademarks and the Products, and the
same has not been amended or otherwise modified in any way. Seller has performed
all of its obligations under the FHBH Agreement and the license provided for
therein remains in full force and effect. Seller has the right under the FHBH
Agreement to grant to Buyer the sublicense provided for in the Trademark
Sublicense and the execution and delivery of the Trademark Sublicense by Seller
does not conflict with and will not result in a breach of the FHBH Agreement or
permit FHBH to cancel the license to Seller provided for therein.
(b) Seller has not granted any license of any kind relating to
the Trademarks or Know-How to any other person. The manufacture and marketing of
the Products as presently conducted by Seller and its Affiliates does not
violate, conflict with or infringe in any respect the Intellectual Property of
any other Person. No claims are pending or threatened against Seller or any of
its Affiliates by any person with respect to the ownership, validity,
enforceability, effectiveness or use of the Trademarks or Know-How. Neither
Seller nor any of its Affiliates has received any written or oral communication
alleging that Seller or any such Affiliate has in the conduct of its business
related to the Products, violated any rights relating to Intellectual Property
of any person.
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(c) All Know-How has been maintained in confidence in
accordance with protection procedures customarily used in the industry to
protect rights of like importance. No former or current Technical Personnel have
any claim against Seller in connection with such Person's involvement in the
conception and development of any Know-How and no such claim has been asserted
or is threatened. None of the current officers and employees of Seller has any
patents issued or applications pending for any device, process, design or
invention of any kind now used or needed by Seller in the manufacture of
Products, which patents or applications have not been assigned to Seller, with
such assignment duly recorded in the United States Patent and Trademark Office.
3.11 Proceedings; Orders. There are no Proceedings or Orders presently
outstanding, pending or, to Seller's knowledge, threatened against Seller which
relate in any way to the Trademarks, the Know-How or the Products.
3.12 Health and Safety Conditions. Schedule 3.12 sets forth or
describes in reasonable detail all relevant facts pertaining to the substance
of, or Seller has delivered, or caused to be delivered, to Buyer, copies of all
current safety data sheets relating to the Products and the chemical substances
or mixtures currently used by Seller in the manufacture of Products.
3.13 Customers, Distributors and Independent Sales Representatives.
Schedule 3.13 contains a true, correct and complete list of (i) the distributors
to which Seller sold Products during the period commencing on April 1, 2002 and
ending on February 28, 2003, (ii) the independent sales representative who acted
on behalf of Seller in the Caribbean area during such period and (iii) the
suppliers from which Seller purchased raw materials, components and packaging
for the Products during such period. Seller is not a party to any agreement or
other arrangement with any distributor or independent sales representative
(whether or not listed on Schedule 3.13) which would require Buyer to continue
to distribute Products through any such distributor or representative following
the Closing and Buyer will incur no liability to any such distributor or
representative should Seller determine not to continue to distribute or sell
Products through any such distributor or representative after the Closing.
3.14 Full Disclosure. Neither this Agreement nor any agreement,
document, instrument, certificate or statement made or furnished to Buyer in
connection with this Agreement, the Trademark Sublicense and the transactions
contemplated hereby or thereby contains any untrue statement of a material fact
or omits the statement of a material fact required to be stated in order to make
the statements contained herein and therein not misleading.
Article 4 - Pre-Closing Covenants
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4.1 Conduct By Buyer. From the date hereof until the Closing, Buyer
shall not take any action which would cause any representation or warranty
contained in Article 2 hereof to be untrue or incorrect in any respect as of the
Closing.
4.2 Conduct by Seller. From the date hereof until the Closing, Seller
shall not take any action which would cause any representation or warranty
contained in Article 3 hereof to be untrue or incorrect in any respect as of the
Closing.
4.3 Conduct of the Business. From the date hereof until the Closing,
Seller shall:
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(i) maintain levels of Inventory of each of the Products
consistent with past practice;
(ii) notify Buyer of the occurrence of any event or the
existence of any condition which would have been required to be
disclosed on the date hereof in order to make the representations and
warranties contained in Article 3 hereof true and correct had such
event then occurred or condition then existed; and
(iii) use its best efforts to preserve its business of
manufacturing and marketing Products intact and preserve for Buyer the
goodwill of the suppliers, distributors, customers and others having a
business relationship with Seller with respect to the Products.
4.4 Fulfillment of Conditions. Each Party shall use all reasonable
efforts to fulfill or cause to be fulfilled the conditions set forth in Articles
5 and 6 hereof.
Article 5 - BUYER'S CONDITIONS TO CLOSING
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The obligations of Buyer to consummate the transactions contemplated
hereby are, unless waived by Buyer, subject to the fulfillment, at or before the
Closing, of each of the following conditions:
(i) No Legal Requirement of a Governmental Authority shall be
in effect which prohibits, restricts or enjoins or otherwise materially
adversely affects the consummation of the transactions contemplated by
this Agreement.
(ii) No Proceeding shall be pending or threatened (A) which
seeks to prohibit, restrict, enjoin, nullify, seek material damages
with respect to, or otherwise materially adversely affect the
consummation of the transactions contemplated by this Agreement or (B)
which if adversely determined would materially and adversely affect the
value of the Purchased Assets or materially and adversely interfere
with the ability of Buyer to manufacture and market the Products under
the Trademarks.
(iii) Each representation and warranty of Seller set forth in
this Agreement shall be true and correct as of the date hereof and as
of the Closing Date as though made on and as of the Closing Date,
except that, representations and warranties that by their terms speak
only as of the date hereof or some other specific date need be true and
correct only as of such date, and Seller shall have delivered to Buyer
a certificate approved by Buyer dated the Closing Date executed by a
duly authorized officer of Seller to such effect.
(iv) Seller shall have obtained, or to the reasonable
satisfaction of Buyer obviated the need to obtain, all Consents and
Governmental Authorizations, if any, required to consummate the
transactions contemplated by this Agreement.
10
(v) Seller shall have performed and complied with all
covenants and agreements required to be performed or complied with by
Seller under this Agreement prior to or concurrently with the Closing,
and Seller shall have delivered to Buyer a certificate approved by
Buyer dated the Closing Date executed by a duly authorized officer of
Seller to such effect.
(vi) Buyer shall have received all certificates and other
documents required to be delivered to Buyer at or before the Closing
pursuant to this Agreement duly executed by all necessary persons
(other than Buyer).
Article 6 - SELLER'S CONDITIONS TO CLOSING
------------------------------------------
The obligations of Seller to consummate the transactions contemplated
hereby are, unless waived by Seller, subject to the fulfillment, at or before
the Closing, of each of the following conditions:
(i) No Legal Requirement of a Governmental Authority shall be
in effect which prohibits, restricts or enjoins or otherwise materially
adversely affects the consummation of the transactions contemplated by
this Agreement.
(ii) No suit, action or proceeding shall be pending or
threatened which seeks to prohibit, restrict, enjoin, nullify, seek
material damages with respect to, or otherwise materially adversely
affect the consummation of the transactions contemplated by this
Agreement.
(iii) Each representation and warranty of Buyer set forth in
this Agreement shall be true and correct as of the date hereof and as
of the Closing Date as though made on and as of the Closing Date,
except that, representations and warranties that by their terms speak
only as of the date hereof or some other specific date need be true and
correct only as of such date, and Buyer shall have delivered to Seller
a certificate dated the Closing Date executed by a duly authorized
officer of Buyer to such effect.
(iv) Buyer shall have performed and complied with all
covenants and agreements required to be performed or complied with by
Buyer under this Agreement prior to or concurrently with the Closing
and Buyer shall have delivered to Seller a certificate, dated the
Closing Date, executed by a duly authorized officer of Buyer to such
effect.
(v) Seller shall have received all certificates and other
documents required to be delivered to Seller at or before the Closing
pursuant to this Agreement duly executed by all necessary persons
(other than Seller).
(vi) Seller shall have received the Purchase Price in
accordance with Article 1.6 hereof.
11
Article 7 - TERMINATION; SURVIVAL OF AGREEMENT
----------------------------------------------
7.1 Termination. Notwithstanding anything contained herein to the
contrary, this Agreement may be terminated:
(i) at the Closing or at any time prior thereto, by mutual
written consent of Seller and Buyer;
(ii) at the Closing, by Buyer, if any of the conditions set
forth in Article 5 hereof shall not have been fulfilled and shall not
have been waived by Buyer at or prior to the Closing;
(iii) at the Closing, by Seller, if any of the conditions set
forth in Article 6 hereof shall not have been fulfilled and shall not
have been waived by Seller at or prior to the Closing.
Article 8 - TAX MATTERS; POST-CLOSING COVENANTS
-----------------------------------------------
8.1 Transactional Taxes. Seller shall be responsible for Transactional
Taxes. If Buyer shall be required to pay any of the Transactional Taxes, Seller
shall promptly reimburse Buyer therefor. Seller shall indemnify Buyer for, and
shall hold Buyer harmless from, any and all Liabilities asserted against or
incurred or sustained by Buyer relating to Transactional Taxes pursuant to the
procedure set forth in Article 9.5 hereof.
8.2 Further Assurances. At any time and from time to time after the
Closing, the Parties shall execute, deliver and acknowledge such other documents
and instruments of transfer, assignment or conveyance and do such further acts
and things as may be reasonably required in order to consummate the transactions
contemplated hereby.
8.3 FHBH Agreement. Following the Closing, Seller shall fulfill all of
its obligations under the FHBH Agreement so as to keep available to Buyer all of
the rights with respect to the Trademarks licensed to Buyer pursuant to the
Trademark Sublicense. If Buyer's rights under the Trademark Sublicense are
terminated at any time prior to March 31, 2008 as a result of the termination of
the license granted to Seller in the FHBH Agreement, for any reason whatsoever,
Seller will, if so requested by Buyer within 60 days of such termination,
immediately purchase all of Buyer's then existing inventory of Products at
Buyer's cost in the case of raw materials, components and packaging and Buyer's
standard cost in the case of finished goods.
8.4 License to Use Molds and Know-How. Buyer hereby grants to Seller a
royalty-free right and license to continue to utilize the Molds and the Know-How
in connection with the manufacture of products to be marketed by Seller under
the "273 INDIGO" trademark and under any "New Marks" as such term is defined in
the Trademark Sublicense.
8.5 Deliveries to GMACCF. As promptly as practicable following the
Closing, Seller will endorse and deliver the Promissory Note to GMACCF and
execute and deliver to GMACCF an assignment of all security interests granted in
favor of Seller by Buyer under this Agreement, the Security Agreement and the
Trademark Sublicense.
12
Article 9 - SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
--------------------------------------------------------
9.1 Survival of Representations and Covenants of Buyer. The
representations and warranties of Buyer set forth in Article 2 hereof shall
survive the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
9.2 Survival of Representations and Covenants of Seller. The
representations and warranties of Seller set forth in Article 3 hereof shall
survive the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
9.3 Indemnification by Buyer. Subject to Articles 9.5 and 18 hereof,
Buyer shall indemnify Seller for, and shall hold Seller harmless from, any and
all Liabilities asserted against or incurred or sustained by Seller arising out
of, related to or associated with (i) any breach of any covenant or agreement
contained in this Agreement by Buyer or (ii) any breach by Buyer of any of the
warranties or representations set forth in Article 2 hereof.
9.4 Indemnification by Seller. Subject to Articles 9.5 and 18 hereof,
Seller shall indemnify Buyer for, and shall hold the Buyer harmless from, any
and all Liabilities asserted against or incurred or sustained by Buyer arising
out of: (i) any breach of any covenant or agreement contained in this Agreement
by Seller; (ii) any breach by Seller of any of the warranties or representations
set forth in Article 3 hereof, (iii) any of the Retained Liabilities.
9.5 Indemnification Procedure.
(a) Indemnitee shall promptly give the Indemnitor written
notice of any Loss (as defined in Article 9.5(b) hereof) which the Indemnitee
has determined has given or could give rise to a claim for indemnification
hereunder (a "Notice of Claim"). A Notice of Claim shall specify in reasonable
detail the nature and all known particulars related to a Loss. The Indemnitor
shall perform its indemnification obligations in respect of a Loss described in
a Notice of Claim under Articles 9.3 or 9.4 hereof, as the case may be, within
thirty (30) days after the Indemnitor shall have received such Notice of Claim;
provided, however, such obligation shall be suspended so long as the Indemnitor
is in good faith performing its obligations under Article 9.5(c) hereof with
respect to such Loss.
(b) As used in this Article 9.5, the term "Loss" shall mean a
liability described in Article 8.1, 9.3, or 9.4 hereof, or a fee, commission,
compensation or payment described in Article 11.1, as the case may be.
(c) With respect to a Loss (i) which constitutes a third party
claim, demand, suit, action or proceeding, (ii) which is the subject of a Notice
of Claim, (iii) which is a Liability solely for money damages and (iv) in
respect of which the Indemnitor shall have given written notice to the
Indemnitee acknowledging an indemnification obligation under Article 9.3 or 9.4
hereof, as the case may be, the Indemnitor shall have the sole and exclusive
right and obligation, in good faith and at its own cost and expense, to defend,
contest or otherwise oppose any third party claim, demand, suit, action or
proceeding which gives rise to a Loss in respect of which a Notice of Claim has
been given with legal counsel selected by it. The Indemnitor shall (i) promptly
13
inform the Indemnitee of all material developments related to any such event or
circumstance and (ii) inform the Indemnitee promptly after the Indemnitor has
made a good faith determination, based on the facts alleged in such Notice of
Claim or which have otherwise become known to the Indemnitor, either that the
Indemnitor acknowledges that it has an indemnification obligation hereunder in
respect of such Loss or that the Indemnitor has made a good faith determination
that it has no indemnification obligation hereunder in respect of such Loss.
Notwithstanding anything contained herein to the contrary, the Indemnitee shall
have the right, but not the obligation, to participate, at its own cost and
expense, in the defense, contest or other opposition of any such third party
claim, demand, suit, action or proceeding through legal counsel selected by it
and shall have the right, but not the obligation, to assert any and all
cross-claims or counterclaims which it may have. So long as the Indemnitor is in
good faith performing its obligations under this Article 9.5(c), the Indemnitee
shall (i) at all times, at its own cost and expense, cooperate in all reasonable
ways with, make its relevant files and records available for inspection and
copying by, make its employees reasonably available to and otherwise render
reasonable assistance to the Indemnitor upon request and (ii) not compromise or
settle any such claim, demand, suit, action or proceeding without the prior
written consent of the Indemnitor. If the Indemnitor fails to perform its
obligations under this Article 9.5(c), or if the Indemnitor shall have informed
the Indemnitee in writing in accordance with the second sentence of this Article
9.5(c) that the Indemnitor does not have an indemnification obligation hereunder
in respect of such Loss, then the Indemnitee shall have the right, but not the
obligation, to take the actions which the Indemnitor would have had the right to
take in connection with the performance of such obligations and, if the
Indemnitee is entitled to indemnification hereunder in respect of the event or
circumstance as to which the Indemnitee takes such actions, then the Indemnitor
shall, in addition to indemnifying Indemnitee for the Loss, indemnify the
Indemnitee for all of the legal, accounting and other costs, fees and expenses
reasonably and actually incurred in connection therewith. If the Indemnitor
proposes to settle or compromise any such third party action, demand, claim,
suit or proceeding, the Indemnitor shall give written notice to that effect
(together with a statement in reasonable detail of the terms and conditions of
such settlement or compromise) to the Indemnitee a reasonable time prior to
effecting such settlement or compromise. Notwithstanding anything contained
herein to the contrary, the Indemnitee shall have the right (i) to object to the
settlement or compromise of any such third party action, demand, claim, suit or
proceeding whereupon (A) the Indemnitee will assume the defense, contest or
other opposition of any such third party action, demand, claim, suit or
proceeding for its own account and as if it were the Indemnitor and (B) the
Indemnitor shall be released from any and all liability with respect to any such
third party action, demand, claim, suit or proceeding to the extent that such
liability exceeds the liability which the Indemnitor would have had in respect
of such a settlement or compromise, or (ii) to assume, at any time by giving
written notice to that effect to the Indemnitor, the cure, mitigation,
remediation, remedy or other handling of such event or circumstance and the
defense, contest or other opposition of any such third party action, demand,
claim, suit or proceeding for its own account whereupon the Indemnitor shall be
released from any and all liability with respect to such event or circumstance
and such third party action, demand, claim, suit or proceeding.
(d) Notwithstanding anything contained herein to the contrary,
each Party shall use, and shall cause its subsidiaries and Affiliates to use,
all reasonable efforts to mitigate any and all damages, losses, liabilities,
costs and expenses in respect of which it may be entitled to indemnification
hereunder.
14
9.6 Right of Set-Off. Upon notice to Seller specifying in reasonable
detail the basis for such set-off, Buyer may set off any amount to which it may
be entitled under Article 1.13(d) and under this Article 9 against amounts
otherwise payable under the Promissory Note. The exercise of such right of
set-off by Buyer in good faith, whether or not ultimately determined to be
justified, will not constitute an event of default under the Promissory Note or
any instrument securing a Promissory Note. Neither the exercise of, nor the
failure to exercise, such right of set-off will constitute an election of
remedies or limit Buyer in any manner in the enforcement of any other remedies
that may be available.
Article 10 - NOTICES
--------------------
All notices required or permitted to be given pursuant to this
Agreement shall be given in writing in the English language, shall be
transmitted by personal delivery, by registered or certified mail, return
receipt requested, postage prepaid, or by telecopier or other electronic means
and shall be addressed as follows:
When Seller is the intended recipient:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Chairman and Chief Executive Officer
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
Tower 56
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
When Buyer is the intended recipient:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
15
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
A Party may designate a new address to which notices required or permitted to be
given pursuant to this Agreement shall thereafter be transmitted by giving
written notice to that effect to the other Parties. Each notice transmitted in
the manner described in this Article 10 shall be deemed to have been given,
received and become effective for all purposes at the time it shall have been
(i) delivered to the addressee as indicated by the return receipt (if
transmitted by mail), the affidavit of the messenger (if transmitted by personal
delivery) or the answer back or call back (if transmitted by telecopier or other
electronic means) or (ii) presented for delivery to the addressee as so
indicated during normal business hours, if such delivery shall have been refused
for any reason.
Article 11 - BROKERAGE FEES; CERTAIN EXPENSES
---------------------------------------------
11.1 Brokerage Fees.
(a) Seller agrees to indemnify Buyer, and to hold Buyer
harmless from, any claim or liability for any fee, commission, compensation or
other payment by any broker, finder or similar agent who claims to have been, or
who was in fact, engaged by or on behalf of Seller in connection with the
transactions contemplated by this Agreement in accordance with the procedure set
forth in Article 9.5 hereof.
(b) Buyer agrees to indemnify Seller, and to hold Seller
harmless from, any claim or liability for any fee, commission, compensation or
other payment by any broker, finder or similar agent who claims to have been, or
who was in fact, engaged by or on behalf of Buyer in connection with the
transactions contemplated by this Agreement in accordance with the procedure set
forth in Article 9.5 hereof.
11.2 Certain Expenses. Except as otherwise provided in this Agreement
and regardless of whether the transactions contemplated by this Agreement are
consummated, each Party agrees to pay all expenses, fees and costs (including,
without limitation, legal, accounting and consulting expenses) incurred by it in
connection with the transactions contemplated hereby.
Article 12 - GOVERNING LAW; FORUM
---------------------------------
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Florida (without giving
effect to the laws, rules or principles of the State of Florida regarding
conflicts of laws). Each Party agrees that any proceeding arising out of or
relating to this Agreement or the breach or threatened breach of this Agreement
shall be commenced and prosecuted in a court in the State of Florida. Each Party
16
consents and submits to the non-exclusive personal jurisdiction of any court in
the State of Florida in respect of any such proceeding. Each Party consents to
service of process upon it with respect to any such proceeding by registered
mail, return receipt requested, and by any other means permitted by applicable
laws and rules. Each Party waives any objection that it may now or hereafter
have to the laying of venue of any such proceeding in any court in the State of
Florida and any claim that it may now or hereafter have that any such proceeding
in any court in the State of Florida has been brought in an inconvenient forum.
Each Party waives trial by jury in any such proceeding.
Article 13 - BINDING EFFECT; ASSIGNMENT; THIRD PARTY BENEFICIARIES
------------------------------------------------------------------
This Agreement shall be binding upon the Parties and their respective
successors and assigns and shall inure to the benefit of the Parties and their
respective successors and permitted assigns. Neither Seller nor Buyer shall
assign any of its rights or delegate any of its duties under this Agreement (by
operation of law or otherwise) without the prior written consent of the other of
them. Any assignment of rights or delegation of duties under this Agreement by a
Party without the prior written consent of the other Parties, if such consent is
required hereby, shall be void. No person shall be, or be deemed to be, a third
party beneficiary of this Agreement.
Article 14 - ENTIRE AGREEMENT
-----------------------------
This Agreement together with the Appendices, Annexes and Schedules
attached hereto constitute the entire contract among the Parties with respect to
the subject matter hereof and cancel and supersede all of the previous or
contemporaneous contracts, representations, warranties and understandings
(whether oral or written) by, between or among the Parties with respect to the
subject matter hereof. Nothing contained in any document or instrument of
conveyance, transfer, assignment or delivery executed or delivered at the
Closing pursuant to this Agreement shall amend, extend, modify, renew or alter
in any manner any representation, warranty, covenant, agreement or indemnity
contained herein. Nothing contained in this Agreement or in any of the
Appendices, Annexes and Schedules attached hereto shall constitute or be
interpreted or construed as an admission by any Party or any of its Affiliates
of liability to third parties, under any Legal Requirement or otherwise, or as
an admission that any Party or any of its Affiliates are in violation of or have
ever violated any such Legal Requirement.
Article 15 - FURTHER ASSURANCES
-------------------------------
At any time and from time to time after the Closing, the Parties shall
execute, deliver and acknowledge such other documents and take such further
actions as may be reasonably required in order to consummate the transactions
contemplated hereby.
Article 16 - AMENDMENTS
-----------------------
No addition to, and no cancellation, renewal, extension, modification
or amendment of, this Agreement shall be binding upon a Party unless such
addition, cancellation, renewal, extension, modification or amendment is set
forth in a written instrument which states that it adds to, amends, cancels,
renews, extends or modifies this Agreement and which is executed and delivered
on behalf of each Party by an officer of, or attorney-in-fact for, such Party.
17
Article 17 - WAIVERS
--------------------
No waiver of any provision of this Agreement shall be binding upon a
Party unless such waiver is expressly set forth in a written instrument which is
executed and delivered on behalf of such Party by an officer of, or
attorney-in-fact for, such Party. Such waiver shall be effective only to the
extent specifically set forth in such written instrument. Neither the exercise
(from time to time and at any time) by a Party of, nor the delay or failure (at
any time or for any period of time) to exercise, any right, power or remedy
shall constitute a waiver of the right to exercise, or impair, limit or restrict
the exercise of, such right, power or remedy or any other right, power or remedy
at any time and from time to time thereafter. No waiver of any right, power or
remedy of a Party shall be deemed to be a waiver of any other right, power or
remedy of such Party or shall, except to the extent so waived, impair, limit or
restrict the exercise of such right, power or remedy.
Article 18 - REMEDIES
---------------------
The rights, powers and remedies of the Parties set forth herein for a
breach of or default under this Agreement (including, without limitation, a
breach of or default under any of the representations, warranties, covenants or
agreements contained in this Agreement) are cumulative and in addition to, and
not in lieu of, any rights or remedies that any Party may otherwise have under
this Agreement, at law or in equity.
Article 19 - HEADINGS; COUNTERPARTS
-----------------------------------
The headings set forth in this Agreement have been inserted for
convenience of reference only, shall not be considered a part of this Agreement
and shall not limit, modify or affect in any way the meaning or interpretation
of this Agreement. This Agreement may be signed in any number of counterparts,
each of which (when executed and delivered) shall constitute an original
instrument, but all of which together shall constitute one and the same
instrument. This Agreement shall become effective and be deemed to have been
executed and delivered by all of the Parties at such time as counterparts shall
have been executed and delivered by each of the Parties, regardless of whether
each of the Parties has executed the same counterpart. It shall not be necessary
when making proof of this Agreement to account for any counterparts other than a
sufficient number of counterparts which, when taken together, contain signatures
of all of the Parties.
Article 20 - SEVERABILITY
-------------------------
If any provision of this Agreement shall hereafter be held to be
invalid, unenforceable or illegal, in whole or in part, in any jurisdiction
under any circumstances for any reason, (i) such provision shall be reformed to
the minimum extent necessary to cause such provision to be valid, enforceable
and legal while preserving the intent of the Parties as expressed in, and the
benefits to the Parties provided by, this Agreement or (ii) if such provision
cannot be so reformed, such provision shall be severed from this Agreement and
an equitable adjustment shall be made to this Agreement (including, without
limitation, addition of necessary further provisions to this Agreement) so as to
give effect to the intent as so expressed and the benefits so provided. Such
holding shall not affect or impair the validity, enforceability or legality of
such provision in any other jurisdiction or under any other circumstances.
Neither such holding nor such reformation or severance shall affect or impair
the legality, validity or enforceability of any other provision of this
Agreement.
18
Article 21 - BULK SALES
-----------------------
Buyer waives compliance with any applicable bulk sales and similar laws
and statutes which may be applicable to the consummation of the transactions
contemplated by this Agreement, including the provisions of the Uniform
Commercial Code and Seller agrees to indemnify, defend and hold Buyer harmless
from any and all claims, losses, damages, judgments, penalties, expenses and
reasonable attorneys' fees Buyer may suffer as a result of such non-compliance.
Article 22 - CERTAIN REFERENCES
-------------------------------
22.1 Person. As used herein, references to a "person" shall mean an
individual or an entity, including, without limitation, a corporation,
partnership, joint venture, trust, joint stock company, association,
unincorporated organization or group acting in concert.
22.2 Affiliate. As used herein, references to an "Affiliate" shall
mean, with respect to any person, any other person which, directly or
indirectly, controls, is controlled by or is under common control with such
person. For purposes of the preceding sentence, "control" shall include the
power to vote or direct the voting of more than twenty percent (20%) of the
voting shares, general partnership interests or other voting equity interests of
a person.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the date first above written.
SELLER
By: /s/ ▇▇▇▇▇ ▇. Buttavacoli
------------------------------------
Name: ▇▇▇▇▇ ▇. Buttavacoli
Title: Executive Vice President/Chief
Operating Officer/Chief Financial Officer
BUYER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
19
APPENDIX A
----------
"Affiliate" has the meaning assigned in Article 22.2.
"Assumed Liabilities" has the meaning assigned in Article 1.7.
"Buyer" has the meaning assigned in the preamble.
"Closing" has the meaning assigned in Article 1.1.
"Closing Date" has the meaning assigned in Article 1.1.
"Consent" means any consent, approval, exemption, authorization or
waiver by any third party other than a Governmental Authorization.
"Contract" means, with respect to any person, any oral or written
agreement, indenture, undertaking, debt instrument, contract, lease,
understanding, arrangement, or commitment to which such person is a party or by
which it is bound or to which any of its properties are subject.
"Encumbrance" means any charge, mortgage, claim, community property
interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, preemptive right or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or
exercise of any other attribute of ownership (other than a restriction on
transfer arising under the Securities Laws), except for liens incurred in the
ordinary course of business in respect of Taxes for which adequate reserves have
been established.
"Excluded Assets" has the meaning assigned in Article 1.3.
"FHBH" has the meaning assigned in Article 3.10(a).
"FHBH Agreement" has the meaning assigned in Article 3.10(a).
"Final Inventory Value" has the meaning assigned in Article 1.13(a).
"GMACCF" means GMAC Commercial Finance LLC.
"GMACCF Letter" has the meaning assigned in Article 1.9(f).
"GMACCF Lien" means the lien of GMACCF on the assets of Seller pursuant
to that certain Revolving Credit and Security Agreement, dated July 20, 2001, by
and between Seller and GMACCF, as amended.
"Governmental Authorization" means any approval, consent, license,
permit, waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Authority pursuant to
any Legal Requirement.
"Governmental Authority" means any nation, state, county, city, town,
village, district, or other jurisdiction of any nature; federal, state, local,
municipal, foreign, or other government; governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department,
1
official, or entity and any court or other tribunal); multi-national
organization or body; or body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
"Indemnitee" means a person who may be entitled to indemnification
hereunder.
"Indemnitor" means the person who may be obligated to provide
indemnification hereunder.
"Initial Inventory Value" has the meaning assigned in Article 1.13(a).
"Intellectual Property" means patents, trademarks, copyrights, and
technology, owned, used, filed by or licensed to Seller and used, held for use
or intended to be used primarily in the manufacture and marketing of the
Products and patent and technology licenses and trademark licenses used, held
for use or intended to be used primarily in the manufacture and marketing of the
Products.
"Interests" has the meaning assigned in Section 1.12(a).
"Inventory" means any and all inventories (including finished goods,
work-in-process, raw and packaging materials, stores, manufacturing supplies and
spare parts) which are owned by Seller and used or held for use in the
manufacture or marketing of Products, including all inventories set forth on
Schedule 3.6.
"Know-How" means all technical information, knowledge with respect to
procedures, processes, trade secrets, inventions, formulae for the perfume oil,
production methods, practices, techniques, diagrams, drawings, specifications,
blueprints, lists of materials and components, production manuals and all other
data relating to the design, manufacture, production, inspection and testing of
the Products known by, available to, owned or used by Seller, including all
patents, copyrights, trade secrets and other intellectual property rights with
respect thereto.
"Legal Requirement" means any federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principal of common law, regulation, statute, or
treaty.
"Liability" means any and all claims, liabilities, obligations, losses,
costs, expenses (including, without limitation, reasonable legal, accounting and
other expenses), litigation, proceedings, fines, taxes, levies, imposts, duties,
deficiencies, assessments, charges, penalties, allegations, demands, damages
(including, without limitation, actual, punitive or consequential, foreseen or
unforeseen, known or unknown damages), settlements or judgments of any kind or
nature whatsoever.
"Loss" has the meaning assigned in Article 9.5(b) hereof.
"Molds" means all molds, test and production dies and other mechanical
devices, and all components thereof, used to produce bottles, caps and other
packaging components for the Products.
2
"New Marks" has the meaning assigned in Article 8.4.
"Notice of Claim" has the meaning assigned in Article 9.5(a) hereof.
"Order" means any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any Governmental
Authority or by any arbitrator.
"Organizational Documents" means the articles or certificate of
incorporation and the bylaws of a corporation; the certificate of formation and
the operating agreement or limited liability company agreement of a limited
liability company; the partnership agreement and any statement of partnership or
a general partnership; the limited partnership agreement and the certificate of
limited partnership of a limited partnership; any charter or similar document
adopted or filed in connection with the creation, formation, or organization of
a person; and any amendment to any of the foregoing.
"Party" and "Parties" shall have the respective meanings assigned in
the preamble.
"Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
investigative, or informal) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Authority or arbitrator.
"Products" means those cosmetic, fragrance and other products marketed
by Seller under the Trademarks.
"Promissory Note" has the meaning assigned in Article 1.6.
"Purchase Commitments" means Seller's outstanding commitments for the
purchase of Products and related raw materials and supplies, as set forth on
Schedule 3.8.
"Purchased Assets" has the meaning assigned in Article1.2.
"Purchase Price" has the meaning assigned in Article 1.5.
"Retained Liabilities" has the meaning assigned in Article 1.8.
"Security Agreement" has the meaning assigned in Article 1.6.
"Seller" has the meaning assigned in the preamble.
"Tax" means any tax (including, without limitation, income, payroll, ad
valorem, real and personal property, gross receipts, sales, use, franchise and
stamp taxes) imposed by any Governmental Authority together with any interest or
penalties thereon.
"Technical Personnel" means all former and current members of
management and key personnel of Seller, including all current employees, agents,
consultants and independent contractors who have contributed to or participated
in the conception and development of Know-How.
3
"Technology" means the process, products, apparatus, formulas, trade
secrets, know-how, discoveries, inventions and design, manufacturing,
engineering and other technical information which are owned by the Seller and
used, held for use or intended to be used primarily in the manufacture and
marketing of the Products.
"Trademarks" means the U.S. and foreign trademarks, service marks,
imprints, logos, trade dress and trade names whether or not registered and all
issued registrations, pending applications, and any other rights of Seller
relating to the names "▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HILLS", "▇▇▇▇ ▇▇▇▇▇▇'▇ HOLLYWOOD,"
"▇▇▇▇ ▇▇▇▇▇▇'▇ TOUCH," and "273" (excluding "273 INDIGO") set forth on Schedule
3.10(a) and all other names, designs, logos, trademarks, trade names and the
like used on or in connection with Products bearing any of the names set forth
on Schedule 3.10(a).
"Trademark Sublicense" has the meaning assigned in Article 1.4.
"Transactional Taxes" means any transfer, conveyance, excise, stamp,
documentary and other governmental taxes, duties, charges, fees, imposts and
assessments, and all interest and penalties thereon, imposed at any time by any
taxing authority with respect to this Agreement, the transfer, assignment,
conveyance or delivery of the Purchased Assets or the consummation of the
transactions contemplated hereby.
4
ANNEX A
FORM OF TRADEMARK SUBLICENSE
SUBLICENSE AGREEMENT
--------------------
THIS AGREEMENT made and entered into as of the 28TH DAY OF MARCH, 2003,
by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC., a Delaware corporation with offices at
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensor"), and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC, a New Jersey limited liability company, with an office
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Sublicensee").
W I T N E S S E T H :
WHEREAS, Licensor has used and currently is using, directly and through
licenses, the Sublicensed Marks (as hereinafter defined) for a variety of
products; and
WHEREAS, the Licensor is willing to grant the Sublicensee and
Sublicensee desires to obtain from Licensor, the exclusive right and Sublicense
to use the Sublicensed Marks in the Territory (as hereinafter defined) for use
on and in connection with the manufacture, promotion, distribution and sale of
Articles (as hereinafter defined).
NOW, THEREFORE, for good and valuable consideration and in
consideration of the promises and mutual agreements contained herein, the
parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS
-----------
The following definitions shall apply:
A. Territory. The term "Territory" hereunder shall include and mean the
entire world, including but not limited to, all duty-free shops, ships,
airplanes, military bases and diplomatic missions of every country of the world.
B. Articles. The term "Articles" hereunder shall include and mean any
and all men's and women's fragrances, cosmetics, skin care products and bath and
related personal beauty care products, or any and all other items included in
International Class 003, as listed in the United States Patent and Trademark
Office's (the "PTO") Acceptable Identification of Goods and Services Manual, or
other applicable rules, regulations and/or procedure of the PTO and/or analogous
agencies in countries throughout the world, which products are manufactured,
produced, sold, distributed, promoted and advertised by or on behalf of
Sublicensee and which bear the Marks under this Sublicense Agreement.
C. Sublicensed Marks. The term "Old Marks" hereunder shall include and
mean the trademarks "▇▇▇▇ ▇▇▇▇▇▇", "▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HILLS", "▇▇▇▇ ▇▇▇▇▇▇'▇
HOLLYWOOD", "▇▇▇▇ ▇▇▇▇▇▇'▇ TOUCH", "FH", "HOLLYWOOD", "▇▇▇▇ ▇▇▇▇▇▇'▇ TOUCH",
"273", and "273 RODEO DRIVE", either individually or collectively, for the
Articles, except for new marks consisting of or incorporating the designation
"273" as set forth below. The foregoing Old Marks shall include but not be
limited to those marks set forth on Exhibit "A" attached hereto. The term "New
Marks" shall include trademarks for the Articles that are, from time to time,
developed by or on behalf of Licensor, including but not limited to the marks
"273 INDIGO" and "273 BURGANDY". New Marks consisting of or incorporating the
designation "273" shall not include the marks "273" and "273 RODEO DRIVE" set
forth on Exhibit A. The trademark ▇▇▇▇ ▇▇▇▇▇▇'▇ SPECIAL TOUCH will be adopted
and used for an Article distributed and sold hereunder and shall also be
considered an "Old ▇▇▇▇" for purposes of this Agreement.
(i) After a period of twelve (12) months following the
development of each New ▇▇▇▇, Licensor shall license
each such New ▇▇▇▇ on the same terms and conditions
as set forth hereunder. Sublicensee shall purchase
the existing inventory of Articles bearing each New
▇▇▇▇, provided, however, that Sublicensee shall not
be obligated to purchase in excess of five hundred
thousand ($500,000) U.S. dollars worth of such
inventory. This inventory shall be valued at cost
plus an absorption charge of no greater than 7.134
percent.
(ii) The Old Marks and any and all New Marks sublicensed
to Sublicensee hereunder as set forth in paragraph
C(i) of Article 1 above, shall be referred to
hereunder collectively as the Sublicensed Marks or,
individually, Sublicensed ▇▇▇▇.
D. Net Sales. The term "Net Sales" shall include and mean sales price
at which Sublicensee, Subsidiary, Affiliate or Related Party, as hereinafter
defined, invoices its customers for Articles bearing the Sublicensed Marks, less
all returns, including but not limited to damaged or defective merchandise. Net
sales shall not include insurance, freight or any legitimate documented charge
backs from customers.
E. Subsidiary/Subsidiaries. The term "Subsidiary/Subsidiaries"
hereunder shall include and mean: any corporation or other entity which is 100%
directly or indirectly owned by Sublicensee, or its subcontracted manufacturer
of the Articles; any corporation or other entity which is substantially
controlled by ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") or is an Affiliate or Related Party as such
terms are defined hereunder.
F. Affiliate/Affiliates. The term "Affiliate(s)" hereunder shall
include and mean any party that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
Sublicensee or ▇▇▇▇▇.
G. Related Parties. The term "Related Parties" hereunder shall include
and mean: affiliates of the Sublicensee; entities that are managed by or under
the trusteeship of Sublicensee's management; principal owners of the
Sublicensee; its management; members of the immediate family of principal owners
of the Sublicensee and its management; and other parties with which the
Sublicensee may deal if one party controls or can significantly influence the
management or operating policies of the other.
ARTICLE 2
GRANT OF LICENSE
----------------
Upon the terms and conditions of this Agreement, Licensor hereby grants
to Sublicensee, during the term of this Agreement, a sole and exclusive,
non-transferable, non-sublicensable (except as expressly otherwise provided
below in Article 16) non-assignable right and license to use the Sublicensed
Marks in the Territory in connection with the manufacture, advertisement,
promotion, sale and distribution of the Articles. Sublicensee will not use the
Sublicensed Marks on or in connection with goods or services other than the
Articles and such other goods and services as to which such usage has been
expressly approved by Licensor in writing. Sublicensee acknowledges that the
rights granted to it hereunder do not include the right to operate a retail
store outlet under the Sublicensed Marks or any variation or simulation thereof.
All rights in the Sublicensed Marks other than those specifically granted in
this Agreement are reserved by Licensor for its own use and benefit.
2
ARTICLE 3
EXCLUSIVITY OF LICENSE
----------------------
A. Licensor will not grant any other license or sublicense effective
during the term of this Agreement and any and all renewals hereof for the use of
the Sublicensed Marks on or in connection with the Articles in the Territory.
Licensor acknowledges that Sublicensee presently, or may in the future,
manufacture(s), produce(s), sell(s), distribute(s), promote(s), and advertise(s)
in the Territory, or parts thereof, articles identical, similar, or related to
the Articles covered by this Agreement hereof which bear trademarks other than
the Sublicensed Marks and marks that may be sublicensed in the future. Licensor
agrees that it will not object to or otherwise contest the foregoing usage of
other trademarks and that such usage of other trademarks does not constitute a
breach of this Agreement or any and all renewals hereof. Licensor further
acknowledges and consents to the Sublicensee obtaining other additional licenses
for the manufacture, production, sale, distribution, promotion, and
advertisement of articles identical, similar or related to the Articles during
the term of this Agreement and any and all renewals hereof. Sublicensee, during
the term of this Agreement and any and all renewals hereof and thereafter, will
not attack either Licensor's title in and to the Sublicensed Marks.
B. Licensor further agrees that it will not manufacture, produce, sell,
distribute, promote, or advertise or authorize any third party to manufacture,
produce, sell, distribute, promote, or advertise: (i) any product that is
identical, similar, or related to the Articles bearing any of the Sublicensed
Marks or any other ▇▇▇▇ that is confusingly similar to the Sublicensed Marks; or
(ii) any product that bears confusingly similar names, smells, or fragrance oils
to the Sublicensed Marks.
ARTICLE 4
TERM OF AGREEMENT
-----------------
The original term of this Agreement shall be for five (5) years and
three (3) days, commencing effective as of March 28, 2003 and continuing through
March 31, 2008. Thereafter, Sublicensee shall have the option, in its sole
discretion, to renew this Agreement as provided in Article 17 below until the
expiration date of Licensor's license.
ARTICLE 5
CONFIDENTIALITY
---------------
Both parties acknowledge and agree that: (i) all information relating
to the business and operations of either party, including but not limited to
customer lists, pricing, and marketing plans, which they either learn or have
learned during or prior to the term of this Agreement and any and all renewals
hereof is confidential; (ii) the aforesaid information shall be maintained in
confidentiality and secrecy and not disclosed to any third party; (iii) that
each party shall take all necessary steps to preserve the confidentiality and
secrecy of the aforesaid information; and (iv) that neither party shall use the
aforesaid information other than to give effect to the intent and purposes of
this Agreement and all renewals hereof. The provisions of this paragraph shall
not apply with respect to any information which has entered the public domain
through no fault of either party or the disclosure of which has been mandated by
a court of competent jurisdiction. The provisions of this paragraph and
Sublicensee's obligations hereunder shall survive the expiration or termination
of this Agreement.
3
ARTICLE 6
DUTIES OF SUBLICENSEE
---------------------
A. Reasonable Efforts. During the term of this Agreement and all
renewals hereof, Sublicensee will use reasonable commercial efforts to exploit
the rights herein granted throughout the Territory and to sell the commercially
reasonable quantity of Articles bearing the Sublicensed Marks.
B. Design and Sample-Making. During the term of this Agreement and all
renewals hereof, Licensor shall not be responsible for the production, design or
sample-making of the Articles bearing the Sublicensed Marks and Sublicensee
shall bear all costs related thereto.
ARTICLE 7
QUALITY STANDARDS
-----------------
A. Manufacture of Articles; Quality Control.
(i) The contents and workmanship of Articles bearing the
Sublicensed Marks, and labeling, packaging and sales
materials therefor, shall be of a quality consistent
with the reputation, image and prestige of the
Articles bearing Sublicensed Marks that has been
established by Licensor.
(ii) All Articles bearing the Sublicensed Marks shall be
manufactured, labeled, sold, distributed and
advertised in accordance with all applicable
national, state and local laws and regulations.
(iii) Licensor and its duly authorized representatives
shall have the right, upon reasonable advance notice
and during normal business hours, at Licensor's
expense, to examine Articles bearing or intended to
bear the Sublicensed Marks in the process of being
manufactured and to inspect all facilities utilized
by Sublicensee in connection therewith.
B. Distribution. In order to maintain the reputation, image and
prestige of the Sublicensed Marks, Sublicensee shall distribute and sell
Articles bearing the Sublicensed Marks in a commercially reasonable manner
consistent with the manner of distribution established by Licensor. Sublicensee
agrees that it will not use the Sublicensed Marks on Articles in any manner that
is reasonably likely, directly or indirectly, to derogate such Sublicensed Marks
or bring the reputation associated therewith into disrepute.
C. Sales Force. During the term of this Agreement and all renewals
hereof, Sublicensee shall maintain a non-exclusive sales force in accordance
with commercially reasonable standard suitable to carry out the intent and
purposes of this Agreement.
ARTICLE 8
GUARANTEED MINIMUM ROYALTY
--------------------------
A. In consideration of both the license granted and the services to be
performed by Licensor hereunder, Sublicensee shall pay to Licensor a Guaranteed
Minimum Royalty in consideration for the use of all the Sublicensed Marks each
Annual Period as follows:
4
GUARANTEED
ANNUAL PERIOD MINIMUM ROYALTY
------------- ---------------
First 3/28/03 - 12/31/04 $50,000
Second to Fifth 1/1/05 - 12/31/08 $50,000 each year
Each Annual Period of
Renewal Term(s), if any $50,000 each year
B. The Guaranteed Minimum Royalty payable for each Annual Period as set
forth above shall be paid to Licensor as follows:
(i) First Annual Period: $12,500 on the first day each of
January 2004, April 2004, July 2004 and October 2004.
(ii) Second to Fifth Annual Period and Each Annual Period of
Renewal Term, if any: $12,500 on the first day each of January, April,
July and October during such period.
C. The Guaranteed Minimum Royalty for each Annual Period shall be
credited against the applicable Sales Royalty for the same Annual Period as
provided in Article 9 below.
ARTICLE 9
SALES ROYALTY
-------------
A. For each Annual Period of this Agreement and all Renewal Terms, if
any, Sublicensee shall pay to Licensor a Sales Royalty as follows:
(i) On the first two and one-half million of Net Sales, a
Sales Royalty of two percent (2%);
(ii) On the second two and one-half million of Net Sales,
a Sales Royalty of two and one-half percent (2.5%);
(iii) On Net Sales in excess of five million, a Sales
Royalty of two percent (2.0%).
Notwithstanding the foregoing, there shall not be any Sales
Royalty payable with respect to Net Sales during the period March 28, 2003
through December 31, 2003.
B. The Sales Royalty hereunder shall be accounted for and paid within
forty-five (45) days after the close of each Annual Period and shall be computed
on the basis of Net Sales during such Annual Period, with a credit to
Sublicensee for any Guaranteed Minimum Royalty made to Licensor for said Annual
Period.
C. The applicable Sales Royalty shall be accounted for and paid solely
on Net Sales made by Sublicensee, either directly or indirectly, by or through
its Affiliates, Subsidiaries or Related Parties to an entity not "owned",
"controlled", or "substantially controlled," by Sublicensee, its Affiliates,
Subsidiaries, or Related Parties.
5
ARTICLE 10
SALES STATEMENT; BOOKS AND RECORDS; AUDITS
------------------------------------------
A. Sales Statement. Sublicensee shall deliver to Licensor at the time
each Sales Royalty is to be accounted for and paid, a statement indicating by
month: (i) the number, description and invoice price of all Articles bearing the
Sublicensed Marks actually sold and distributed during the period covered by
such Sales Royalty payment; (ii) the amount of returns, discounts and credits
from gross sales which may be deducted therefrom pursuant to this Agreement and
any and all renewals hereof; and (iii) a computation of the amount of Sales
Royalty for the applicable Annual Period. Such statement shall be furnished to
Licensor whether or not any Articles have been actually sold and distributed
during the Annual Period as to which such statement applies.
B. Signed Officer Statement. Sublicensee shall deliver to Licensor, not
later than sixty (60) days after the close of each Annual Period during the term
of this Agreement and any and all renewals hereof (or portion thereof in the
event of prior termination for any reason), a statement signed by a duly
authorized officer relating to said Annual Period, setting forth the same
information required to be submitted by Sublicensee in accordance with the first
paragraph of this Article.
C. Books and Records; Audits. The Sales Statements to be supplied
hereunder shall be prepared in accordance with generally accepted accounting
principles and complete and accurate books reflecting the information contained
in such Sales Statement (specifically including without limitation the originals
or copies of documents supporting entries in the books of account) shall be
maintained in accordance therewith. Sublicensee, Affiliates, Subsidiaries and
Related Parties shall not be required to reflect in the aforesaid books,
records, and documents such sales or other information as related to articles or
matters other than Articles bearing the Sublicensed Marks which are the subject
of this Agreement, and may, in Sublicensee's discretion, keep separate books,
records, and documents for such other articles and matters. Licensor and its
duly authorized representatives shall have the right, for the duration of this
Agreement and any and all renewals hereof and for three (3) year thereafter,
during regular business hours and upon seven (7) business days advance notice
(unless a shorter period is appropriate in the circumstances), to audit books of
account and records pertaining to sales of Articles bearing the Sublicensed
Marks and examine all other documents and material in the possession or under
the control of Sublicensee, Affiliates, Subsidiaries and Related Parties
relating to the subject matter and the terms of this Agreement, including,
without limitation, invoices, credits and shipping documents, and to make copies
of any and all of the above. All such books of account, records, documents and
materials shall be kept available by Sublicensee for at least three (3) years
after the end of the Annual Period to which they relate.
D. If, as a result of any audit of Sublicensee's books and records, it
is shown that Sublicensee's payments were less than the amount which should have
been paid by an amount equal to five (5%) percent or more of the payments
actually made with respect to sales occurring during the period in question,
Sublicensee shall reimburse Licensor for the cost of such audit within ten (10)
days after Licensor's demand therefor.
ARTICLE 11
INDEMNIFICATION AND INSURANCE
-----------------------------
A. Indemnification of The Parties.
a. Licensor hereby agrees to save and hold harmless of
and from and to indemnify Sublicensee, its
Affiliates, Subsidiaries, and Related Parties, and
their respective agents, servants, officers,
employees, and assigns, against any and all claims,
6
suits, injuries, losses, liabilities, demands,
damages and expenses (including reasonable attorneys
and expenses) which the aforesaid may incur, become
liable for, or be obligated to pay, in any action,
claim or proceeding against it, for or by reason of
any acts, whether of omission or commission, that may
be committed by Licensor, its agents, servants,
officers, employees, and assigns in connection with
the performance of this Agreement, or failure of
performance hereof, or for breach of any of
Licensor's representations or warrantees hereunder or
any act of Licensor that is not expressly authorized
hereunder. The provisions of this paragraph and the
obligations hereunder shall survive the expiration or
termination of this Agreement.
b. Sublicensee hereby agrees to save and hold harmless
of and from and to indemnify Licensor and its agents,
servants, officers, employees, and assigns, against
any and all claims, suits, injuries, losses,
liabilities, demands, damages and expenses (including
reasonable attorneys and expenses) which the
aforesaid may incur, become liable for, or be
obligated to pay, in any action, claim or proceeding
against it, for or by reason of any acts, whether of
omission or commission, that may be committed by
Sublicensee, its agents, servants, officers,
employees, and assigns in connection with the
performance of this Agreement, or failure of
performance hereof, or for breach of any of
Sublicensee's representations or warrantees hereunder
or any act of Sublicensee that is not expressly
authorized hereunder. The provisions of this
paragraph and the obligations hereunder shall survive
the expiration or termination of this Agreement.
B. Insurance Policy. Sublicensee shall procure and maintain at its own
expense in full force and effect at all times during which Articles are being
sold, with a responsible insurance carrier acceptable to Licensor, a public
liability insurance policy including products liability coverage with respect to
Articles with a limit of liability not less than two millions dollars
($2,000,000). It shall be acceptable if such coverage is provided by a product
liability policy and an additional umbrella policy. Such insurance policies
shall be written for the benefit of Sublicensee and Licensor and shall provide
for at least thirty (30) days prior written notice to said parties of the
cancellation or substantial modification thereof. Licensor shall be a named
additional insured on each such policy. Such insurance may be obtained by
Sublicensee in conjunction with a policy which covers products other than
Articles.
C. Evidence of Insurance. Sublicensee shall, from time to time upon
reasonable request by Licensor, promptly furnish or cause to be furnished to
Licensor evidence in form and substance satisfactory to Licensor of the
maintenance of the insurance required by subparagraph B above, including, but
not limited to, copies of policies, certificates of insurance (with applicable
riders and endorsements) and proof of premium payments. Nothing contained in
this paragraph shall be deemed to limit in any way the indemnification
provisions of the Paragraph A above.
D. Notice. If either party receives notice of any action, claim, suit
or proceeding in respect of which indemnification may be sought, prompt notice
shall be given to the other party along with a demand that said party defend
such action, claim, suit or proceeding on behalf of both parties. In the event
appropriate action is not taken within twenty (20) days after receipt of notice,
then the notifying party shall have the right, but not the obligation, to defend
such action, claim, suit or proceeding. In any case, the Licensor and the
Sublicensee shall keep each other fully advised of all developments and shall
cooperate fully with each other in all respects in connection with any such
defense as is made.
7
ARTICLE 12
THE SUBLICENSED MARKS
---------------------
A. Sublicensee acknowledges the validity of the Sublicensed Marks, the
secondary meaning associated with the Sublicensed Marks, and the rights of
Licensor with respect to the Sublicensed Marks in the Territory in any form or
embodiment thereof and the goodwill attached or which shall become attached to
the Sublicensed Marks in connection with the business and goods in relation to
which the same has been, is or shall be used. Sales by Sublicensee shall be
deemed to have been made by Licensor for purposes of trademark registration and
all uses of the Sublicensed Marks by Sublicensee shall inure to the benefit of
Licensor. Sublicensee shall not, at any time, do or suffer to be done, any act
or thing which may in any way adversely affect any rights of Licensor in and to
the Sublicensed Marks or any registrations thereof or which, directly or
indirectly, may reduce the value of the Sublicensed Marks or detract from its
reputation.
B. Licensor represents and warrants that, at its own expense, it shall
maintain, in full force and effect, any and all trademark registrations for the
Sublicensed Marks registered in International Class 003, throughout the term of
this Agreement and any and all renewals thereof, and, shall use commercially
reasonable efforts to file trademark applications and obtain trademark
applications for such New Marks as become subject to this Agreement in the same
countries in which the Old Marks are presently registered. Licensor further
agrees (a) to instruct its local trademark and patent agent(s) to keep
Sublicensee fully and completely informed of all actions taken or scheduled to
be taken in respect of the Sublicensed Marks and to cooperate with Sublicensee
to take such actions as need be taken to maintain such Sublicensed Marks, and
(b) to notify Sublicensee at the time it makes an application for a patent or
trademark or acquires any right in a patent or trademark which is or becomes
subject to the terms of this Agreement. If Sublicensee wishes to sell Articles
bearing the Sublicensed Marks in countries where the Sublicensed Marks are not
presently registered, Sublicensee shall notify Licensor which shall use its
reasonable efforts to register said marks in said countries at Sublicensee's
expense.
C. Sublicensee shall use commercially reasonable efforts to use the
Sublicensed Marks in the Territory in compliance with applicable legal
requirements and shall use such markings in connection therewith as may be
required by applicable legal provisions. Sublicensee shall cause to appear on
all Articles bearing the Sublicensed Marks and on all materials on or in
connection with which the Sublicensed Marks are used, such legends, markings and
notices as may be reasonably necessary in order to give appropriate notice of
any trademark, trade name or other rights therein or pertaining thereto.
D. In the event that Sublicensee or Licensor learns of any
infringement, likelihood of infringement, or imitation of the Sublicensed Marks
or of any use by any person of a trademark identical or similar to the
Sublicensed Marks, it promptly shall notify the other party as to such
infringement, likelihood of infringement, or imitation. In no event, however,
shall Licensor be required to take any action if it deems it inadvisable to do
so. In the event that Licensor chooses not to take any action, the Sublicensee
is hereby authorized to pursue the action at its own option and Licensor shall
reimburse Sublicensee for any and all costs and fees, including but not limited
to reasonable attorneys' fees, incurred by Sublicensee in conjunction with the
foregoing.
E. Licensor represents and warrants that it is the sole and exclusive
licensee of the New Marks and intends to be the sole and exclusive licensee of
the New Marks for the initial term of this Agreement and is not aware of any
rights superior to the rights of Licensor in the Sublicensed Marks and that it
is fully capable of and authorized to convey all rights herein conveyed and
licensed to Sublicensee. Licensor further represents and warrants that it is not
aware of any infringement or likelihood of infringement of the Sublicensed Marks
8
and shall protect, indemnify and hold harmless Sublicensee, its Affiliates,
Subsidiaries and Related Parties from and against any and all claims, suits,
injuries, losses, liability, demands, damages and expenses (including reasonable
attorneys' fees and expenses) which may be suffered or incurred by Sublicensee,
its Affiliates, Subsidiaries and Related Parties as a result of any infringement
or allegation of infringement relating to or involving any or all of the
Sublicensed Marks by any other person, firm, corporation or entity. ARTICLE 13
COPYRIGHT
Any copyright which may be created in any sketch, design, packaging,
label, tag or the like designed or approved by Licensor shall be the property of
Licensor. However, if said sketches, designs, or other artwork created by the
Sublicensee can be used without the Sublicensed Marks, then Sublicensee shall
have the right to do so. This right shall survive the termination or
cancellation of this Agreement. Sublicensee shall not, at any time, do or suffer
to be done, any act or thing which may adversely affect any rights of Licensor
in such sketches, designs, packaging, labels, containers, tags and the like,
including, without limitation, filing any application in its name to record any
claims to copyrights in Articles, and shall do all things reasonably required in
writing by Licensor, at Licensor's expense, to preserve and protect said rights,
including, without limitation, placing the copyright notice specified by the
Universal Copyright Convention on all Articles bearing the Sublicensed Marks and
the packaging, labels and tags therefor.
ARTICLE 14
DEFAULTS; TERMINATION
---------------------
A. The following conditions and occurrences shall constitute "Events of
Default" by Sublicensee:
1. the failure to pay Licensor the full amount due it
under any of the provisions of this Agreement by the
prescribed date for such payment;
2. the failure to deliver full and accurate reports
pursuant to any of the provisions of this Agreement
by the prescribed due date therefor;
3. the making or furnishing of a knowingly false
statement in connection with or as part of any
material aspect of a report, notice or request
rendered pursuant to this Agreement;
4. the failure to maintain the insurance required by
Article 11;
5. the attempted or actual assignment, transfer or
sublicense of Sublicensee's rights under this
Agreement except as otherwise permitted hereunder;
6. the commencement against Sublicensee of any
proceeding in bankruptcy, or similar law, seeking
reorganization, liquidation, dissolution,
arrangement, readjustment, discharge of debt, or
seeking the appointment of a receiver, trustee or
custodian of all or any substantial part of
Sublicensee's property, not contested within sixty
(60) days, or Sublicensee's making of an assignment
for the benefit of creditors, filing of a bankruptcy
petition, its acknowledgment of its insolvency or
inability to pay debts, or taking advantage of any
other provision of the bankruptcy laws;
7. a merger or consolidation of Sublicensee where
Sublicensee does not survive which is not approved by
Licensor, which approval shall not be unreasonably
withheld except that any merger or consolidation or
other transaction where control of Sublicensee is
transferred to another corporation, firm or entity
that is controlled by ▇▇▇▇▇ shall not constitute an
Event of Default hereunder;
9
8. the material breach of any other material promise of
the Agreement.
B. In the event of (i) an Event of Default under A.3, A.5, A.6, A.7, or
A.8; (ii) Sublicensee fails to cure any other Event of Default within sixty (60)
days after written notice of default is transmitted to Sublicensee, this
Agreement and any and all renewals hereof shall, at Licensor's option, be
terminated, on notice to Sublicensee, and the remaining Guaranteed Minimum
Royalties for all Annual Periods under the current term as in Article 8 above
shall become due, without prejudice to Licensor's right to receive other
payments due or owing to Licensor under this Agreement and any and all renewals
hereof or to any other right of Licensor, including the right to damages and/or
equitable relief.
C. Upon the termination of this Agreement, in the event this Agreement
is not renewed as provided in Article 17 below, or in the event of the
termination or expiration of a renewal term of this Agreement, Sublicensee,
except as specified below, will immediately discontinue use of the Sublicensed
Marks, will not resume the use thereof or adopt any colorable imitation of the
Sublicensed Marks or any of its parts. Upon request by Licensor, Sublicensee
shall assign to Licensor such rights as Sublicensee may have acquired in the
Sublicensed Marks. In the event that this Agreement and any and all renewals
hereof expires or is terminated, Licensor shall have an option, but not an
obligation, to purchase the bottle molds and tooling, and all plates,
engravings, silk-screens, or the like, used to make or reproduce the Sublicensed
Marks, and the Designs for the Articles, free of all liens and other
encumbrances, at a price equal to Sublicensee's cost for same established by
submission of ▇▇▇▇(s) from supplier and satisfactory proof of payment for same
less its allocated depreciation.
D. Licensor shall pay the costs set forth in Article 14 (C) above as
follows: twenty-five percent (25%) at closing and the balance payable in six (6)
equal monthly payments. Licensor shall, at the time it exercises its purchase
option, enter into a security agreement with Sublicensee with respect to the
molds, which shall entitle Sublicensee to foreclose on its security interest in
the molds in the event Licensor fails to make any installment payment due within
fifteen (15) days after receiving notice of default. Licensor shall exercise its
aforesaid option within thirty (30) days after Sublicensee's submission of
documents establishing cost. Notwithstanding the foregoing, if Licensor has
terminated this Agreement and any and all renewals hereof due to Sublicensee's
default, Licensor, at its option, shall be entitled, in exercising its purchase
option, to deduct from the cost price an amount equal to the sales and
guaranteed minimum royalties Licensor is entitled to recover, for which
deduction Sublicensee shall receive a credit. In the event Licensor exercises
its aforesaid option, Sublicensee shall be precluded forever from using the
bottle molds or tools and from selling or otherwise transferring or licensing
any rights whatsoever in the molds or tools to any third party. In the event
that Licensor does not exercise its aforesaid option, Sublicensee shall not use
the bottle molds or tools or sell or otherwise transfer or license any rights
whatsoever in the bottle molds or tools to any third party for a period of three
(3) years after the determination of the fair market value. In the event of any
permitted use of the bottle molds and/or tools by Sublicensee, Sublicensee shall
not use in connection therewith the Sublicensed Marks, any trademark confusingly
similar thereto, any advertising or promotional materials used in connection
with the Articles or any other markings or materials which would cause a
reasonable consumer to believe that any new items sold using the bottle molds
and tools are authorized by Licensor or in some way associated with the
Sublicensed Marks. Any permitted sale or license of the bottle molds and/or
tools by Sublicensee shall prohibit in writing the purchaser or Sublicensee from
using the Sublicensed Marks, and confusingly similar trademark, advertising,
promotional materials, markings or other materials and shall expressly make
Licensor a third party beneficiary of such provision.
10
ARTICLE 15
RIGHTS ON EXPIRATION OR TERMINATION
-----------------------------------
A. If this Agreement and any and all renewals hereof expires or is
terminated, Sublicensee shall cease to manufacture Articles (except for work in
process or to balance component inventory) but shall be entitled, except upon a
termination by Licensor pursuant to Article 14 above, for an additional period
of twelve (12) months only, on a non-exclusive basis, to sell, promote,
advertise, distribute, and dispose of its inventory subject, however, to the
provisions of paragraph D of this Article. Such sales shall be made subject to
all of the provisions of this Agreement and any and all renewals hereof and to
an accounting for and the payment of Sales Royalty thereon but not to the
payment of Guaranteed Minimum Royalties. Such accounting and payment shall be
made monthly and shall be made within ten (10) days of the last day of the
applicable monthly period.
B. In the event of termination in accordance with Article 14 above,
Sublicensee shall pay to Licensor, the Sales Royalty then owed to it pursuant to
this Agreement and any and all renewals hereof or otherwise.
C. Notwithstanding any termination in accordance with Article 14 above,
Licensor shall have and hereby reserve all rights and remedies which it has, or
which are granted to it by operation of law, to enjoin the unlawful or
unauthorized use of the Sublicensed Marks, and to collect royalties payable by
Sublicensee pursuant to this Agreement and any and all renewals hereof and to be
compensated for damages for breach of this Agreement.
D. Upon the expiration or termination of this Agreement, Sublicensee
shall deliver to Licensor a complete and accurate schedule of Sublicensee's
inventory of Articles and of related work in process then on hand (including any
such items held by Subsidiaries, Affiliates, Related Parties or others on behalf
of Sublicensee) (hereinafter referred to as "Inventory). Such schedule shall be
prepared as of the close of business on the date of such expiration or
termination and shall reflect Sublicensee's cost of each such item.
Notwithstanding anything contained to the contrary in this Agreement, Licensor
thereupon shall have the option, but not an obligation, exercisable by notice in
writing delivered to Sublicensee within thirty (30) days after its receipt of
the complete Inventory schedule, to purchase any or all of the Inventory, free
of all liens and other encumbrances, for an amount equal to Sublicensee's cost.
In the event such notice is sent by Licensor, Sublicensee shall deliver to
Licensor or its designee all of the Inventory referred to therein within thirty
(30) days after Licensor's said notice and, in respect of any Inventory so
purchased, assign to Licensor all outstanding orders to Sublicensee from its
customers. Licensor shall pay Sublicensee for such Inventory after the delivery
of such Inventory to Licensor in six (6) equal monthly installments, without
interest. No Sales Royalty shall be payable to Licensor with respect to any such
inventory purchased by Licensor.
E. In addition to the option afforded Licensor by paragraph D in this
Article, if, at any time after the termination of this Agreement, Sublicensee is
willing to sell all or substantially all of its remaining Inventory to a single
purchaser or group of related purchasers, Sublicensee will advise Licensor of
the identity of the prospective purchaser(s) and the price and terms of the
proposed sale and the Licensor or its designee will have the right of first
refusal to buy the remaining Inventory at that price and on those terms and
shall have the right to an assignment and assumption of any and all then
outstanding orders from Sublicensee to its suppliers and from Sublicensee's
customers to Sublicensee for the Articles bearing the Sublicensed Marks.
11
ARTICLE 16
SUBLICENSING AND DISTRIBUTION
-----------------------------
A. This Agreement may not be assigned, sublicensed or transferred by
Sublicensee except to: (i) a Subsidiary, Affiliate or Related Party or to any
other corporation, firm or other entity controlled or substantially controlled
by ▇▇▇▇▇; or (ii) to a person, firm, corporation or other entity not expressly
set forth herein provided that such assignment, sublicense or other transfer is
prior approved by Licensor in writing, which approval shall not be unreasonably
withheld. In the event that Sublicensee should assign, sublicense or transfer,
as permitted by the constraints of this Article 16, Sublicensee hereby
acknowledges and agrees that it shall be wholly and ultimately responsible for
all of the terms and conditions for the remainder of the then current term of
this Agreement, including financial commitments as provided herein.
B. Sublicensee shall be entitled to use distributors in connection with
its sale of Articles under this Agreement and any and all renewals hereof
without approval of Licensor. No such distributor, however, shall be entitled to
exercise any of Sublicensee's rights hereunder except for the promotion,
advertisement, sale and further distribution of Articles bearing the Sublicensed
Marks which have been approved by Licensor hereunder unless such distributor is
assigned rights in accordance with the express terms of this Article 16.
ARTICLE 17
RENEWALS
--------
A. Provided Sublicensee is not in default of any obligation owed
Licensor hereunder or cancelled at the end of the period by Sublicensee, and the
Agreement (including any renewals hereof) has not been previously terminated by
Licensor due to an event of default, as defined in Article 14 (a) above, this
Agreement will automatically renew for an additional five (5) year term. The
first renewal term will commence on April 1, 2008 and expire on March 31, 2013.
Notwithstanding anything contained to the contrary in this Agreement, in the
event the Agreement is terminated by Licensor due to a default by Sublicensee
during the first renewal term, Sublicensee shall pay Licensor all monies due for
the remainder of that term.
B. At the end of the first renewal term, provided Sublicensee is not in
default of any obligation owed Licensor hereunder and the Agreement has not been
cancelled at the end of the period by Sublicensee, and the Agreement (including
any renewals thereof) has not been previously terminated by Licensor, this
Agreement and any and all renewals hereof will automatically renew every five
(5) years until June 2049, when Licensor's fifty-five (55) year license
terminates. Notwithstanding anything contained to the contrary in this
Agreement, in the event that the Agreement (including any extensions thereof) is
terminated by Licensor due to a default by Sublicensee during any subsequent
renewal term, Sublicensee shall pay Licensor all monies due for the remainder of
that term.
ARTICLE 18
MISCELLANEOUS
-------------
A. Representations. The parties respectively represent and warrant that
they have full right, power and authority to enter into this Agreement and
perform all of their respective obligations hereunder and that they are under no
legal impediment which would prevent their signing this Agreement and performing
their respective obligations hereunder. Licensor represents and warrants that it
has the right to grant the Sublicensee an exclusive license to use the
Sublicensed Marks for the Articles and that Licensor has not granted any other
existing license or, except for the Distribution Agreements and Independent
Sales Representative Agreement, has entered into any other agreement relating to
the Sublicensed Marks on the Articles anywhere in the Territory and further
represents and warrants that no such license or other agreement will be granted
during the term of this Agreement and any and all renewals hereof except in
accordance with the provisions hereof.
12
B. Governing Law; Entire Agreement. This Agreement and any and all
renewals hereof shall be construed and interpreted in accordance with the laws
of the State of Florida applicable to agreements made and to be performed in
said State, contains the entire understanding and Agreement between the parties
hereto with respect to the subject matter hereof, supersedes all prior oral or
written understandings and agreements relating thereto and may not be modified,
discharged or terminated, except in writing and signed by both parties, nor may
any of the provisions hereof be waived, orally.
C. No Agency. Nothing herein contained shall be construed to constitute
the parties hereto as partners or as joint venturers, or either as agent of the
other, and Sublicensee shall have no power to obligate or bind Licensor in any
manner whatsoever.
D. No Waiver. No waiver by either party, whether express or implied, of
any provision of this Agreement, or of any breach or default thereof, shall
constitute a continuing waiver of such provision or of any other provision of
this Agreement. Acceptance of payments by Licensor shall not be deemed a waiver
by Licensor of any violation of or default under any of the provisions of this
Agreement and any and all renewals hereof by Sublicensee.
E. Void Provisions. If any provision or any portion of any provision of
this Agreement shall be held to be void or unenforceable, the remaining
provisions of this Agreement and the remaining portion of any provision held
void or unenforceable in part shall continue in full force and effect.
F. Force Majeure. Neither party hereto shall be liable to the other for
delay in any performance or for the failure to render any performance under the
Agreement (other than payment to any accrued obligation for the payment of
money) when such delay or failure is by reason of riots, fires, explosions,
blockade, civil commotion, epidemic, insurrection, war or warlike conditions,
the elements, embargoes, act of God or the public enemy, compliance with any
law, regulation or other governmental order, whether or not valid, or other
similar causes beyond the control of the party effected. The party claiming to
be so affected shall give notice to the other party promptly after it learns of
the occurrence of said event and of the adverse results thereof. Such notice
shall set forth the nature and extent of the event. The delay or failure shall
not be excused unless such notice is so given. Notwithstanding any other
provision of this Agreement, either party may terminate this Agreement if the
other party is unable to perform any or all of its obligations hereunder for a
period of six (6) months by reason of said event as if the date of termination
were the date set forth herein as the expiration date hereof. If either party
elects to terminate this Agreement under this paragraph, Sublicensee shall have
no further obligations for the Guaranteed Minimum Royalty beyond the date of
termination (which shall be prorated if less than an Annual Period is involved)
and shall be obligated to pay any Sales Royalty which is then due or becomes
due.
G. Binding Effect. This Agreement and any and all renewals hereof shall
inure to the benefit of and shall be binding upon the parties, their respective
successors, Licensor's transferees and assigns and Sublicensee's permitted
transferees and assigns.
H. Resolution of Disputes. Any dispute relating to this Agreement and
any and all renewals hereof shall be resolved in a court of law located in the
State of Florida, County of Broward, without a jury. Both parties expressly
waive trial by jury and consent to the jurisdiction of such courts.
I. Survival. The provisions of Articles 10, 11A, 11D, 12,13, 14, 15, 17
(if so renewed) and 18 shall survive any expiration or termination of this
Agreement.
13
J. Paragraph Headings. The paragraph headings in this Agreement are for
convenience of reference only and shall be given no substantive effect.
K. Counterparts. This Agreement and any and all renewals hereof may be
signed in counterparts.
ARTICLE 19
NOTICES
-------
Any notice or other communications required or permitted by this
Agreement and any and all renewals hereof to be given to a party will be in
writing and will be considered to be duly given when sent by certified mail or
registered mail, return receipt requested, or by any other expedited delivery
service wherein proof of delivery is obtained, to the party concerned to the
following persons or addresses (or to such other persons or addresses as a party
may specify by notice to the other):
TO LICENSOR: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, President and CEO
Tel: 954/▇▇▇-▇▇▇▇; Fax: 954/▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates
Tower 56
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Tel: 212/▇▇▇-▇▇▇▇; Fax: 212/▇▇▇-▇▇▇▇
TO SUBLICENSEE: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, President
Tel: 732/▇▇▇-▇▇▇▇; Fax: 732/▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Tel: 212/▇▇▇-▇▇▇▇; Fax: 212/▇▇▇-▇▇▇▇
Notice of the change of any such address shall be duly given by either
party to the other in the manner herein provided.
14
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Exec. VP/COO/CFO ▇▇▇▇ ▇. ▇▇▇▇▇, President
15
LIST OF EXHIBITS
----------------
Sublicensed Marks EXHIBIT "A"
16
ANNEX B
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
---------------
EDISON, NEW JERSEY
$2,032,271.00 MARCH 28, 2003
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC, a limited
liability company duly organized under the laws of New Jersey (hereinafter
called the "Company"), hereby promises to pay to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
(hereinafter called the "Payee") the principal sum of Two Million Thirty-Two
Thousand Two Hundred Seventy-One Dollars, in lawful money of the United States.
The principal amount hereof shall be payable in (a) eleven (11) equal monthly
installments of One Hundred Sixty-Nine Thousand Three Hundred Fifty-Six
($169,356) Dollars each, commencing January 31, 2004 and on the last day of each
month thereafter through and including November 30, 2004, followed by (b) a
final monthly installment of One Hundred Sixty-Nine Thousand Three Hundred
Fifty-Five ($169,355) Dollars on December 31, 2004. The Company further agrees
to pay interest (on the basis of a year of 365 days) on the unpaid principal
amount hereof commencing January 1, 2004, in like money on the last day of each
month, at the Prime Rate (as hereinafter defined) plus 1% per annum and to pay
interest on overdue principal at the rate of 12% per annum on payments overdue
by five (5) or more business days. The term "Prime Rate" shall mean the rate of
interest publicly announced in the Wall Street Journal from time to time as its
prime rate. Any change in the interest rate on this Note resulting from a change
in the Prime Rate shall be effective as of the first day following the date of
the change.
This Note is the promissory note referred to in the Purchase and Sale
Agreement, dated March 28, 2003, between the Company and the Payee (the
"Agreement"), and capitalized terms used, but not defined, herein shall have the
meanings ascribed to them in the Agreement. The obligations of the Company
represented by this Note are secured by a Security Agreement, dated as of March
28, 2003, between the Company and Payee (the "Security Agreement").
The principal amount of this Note and all accrued interest hereon
shall, at the option of the Payee, become immediately due and payable in the
event that any of the following events of default shall occur and be continuing:
(i) the Company shall fail to pay when due any installment of principal or
interest on the Note and such failure shall continue for a period of fourteen
(14) days after written notice thereof to the Company from Payee, or (ii) the
Company shall sell all of its right, title and interest in and to all or
substantially all of the Purchased Assets, provided that neither (A) a transfer
or transfers of Purchased Assets to subsidiaries or Affiliates of the Company
with the prior approval of Payee, nor (B) sales of Purchased Assets to
distributors or customers of the Company in the ordinary course of business,
shall constitute such an event of default.
This Note is subject to rights of adjustment and set-off as set forth
in Sections 1.13(d) and 9.6 of the Agreement, respectively.
The Company may, at its option, at any time and from time to time,
prepay all or any part of the principal of this Note without notice, premium or
penalty.
The Company hereby promises to pay costs of collection and reasonable
attorneys' fees in case default is made in the payment of this Note.
This Note shall be governed by the laws of the State of Florida,
without reference to principles of conflicts of law.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
2
ANNEX C
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
------------------
THIS SECURITY AGREEMENT, made and entered into as of the 28th day of
March 2003, by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC, a New Jersey limited liability
company with an office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Debtor"), in
favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC., a Delaware corporation with an office at ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Secured Party").
WITNESSETH
WHEREAS, Debtor and Secured Party are the parties to that certain
Purchase and Sale Agreement, dated March 28, 2003, between Debtor and Secured
Party (the "Agreement"), pursuant to which Debtor is acquiring certain molds and
other mechanical devices and inventories of fragrance products from Secured
Party and as part of the consideration therefor is delivering to Secured Party a
promissory note, of even date herewith, in the principal amount of Two Million
Thirty-Two Thousand Two Hundred Seventy-One ($2,032,271) Dollars (the
"Promissory Note"); and
WHEREAS, in connection with the transactions contemplated by the
Agreement, Debtor will grant to Secured Party a lien on and security interest in
the Collateral (as defined below) to secure prompt payment and performance of
the Obligations (as defined below);
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Debtor hereby agrees
with Secured Party as follows:
1. Defined Terms. Capitalized terms used in this Security Agreement and
not otherwise defined herein shall have the respective meanings assigned thereto
in the Agreement.
2. Creation of Security Interest. In order to secure the due and
punctual payment and performance of all obligations of Debtor to Secured Party
represented by the Promissory Note and any and all obligations of Debtor to
Secured Party now or hereafter arising under this Security Agreement
(collectively, the "Obligations"), Debtor hereby pledges, assigns and grants to
Secured Party for its benefit a continuing lien on and security interest in all
of Debtor's right, title and interest in and to the collateral described in
Section 3 hereof.
3. Collateral. The collateral is all of Debtor's right, title and
interest in, under and to the following described personal property:
(a) All inventories of "▇▇▇▇ ▇▇▇▇▇▇" fragrance products sold
by Secured Party to Debtor pursuant to the Agreement, or hereafter acquired by
Debtor, including, without limitation, finished products, work-in-process,
materials, parts, accessories and supplies and all sales and promotional
materials related thereto, which are or become located on Debtor's premises or
at Debtor's warehouse, including, without limitation, that with an address at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇; and
(b) All tools, dies and molds sold by Secured Party to Debtor
pursuant to the Agreement, or hereafter acquired by Debtor, and used in
connection with the manufacture of "▇▇▇▇ ▇▇▇▇▇▇" fragrance products and their
packaging;
and any and all proceeds relating to the items of personal property described in
Sections 2(a) and 2(b) above in the event of the enforcement of this Agreement,
foreclosure on the foregoing and/or liquidation thereof (collectively, the
"Collateral").
4. Debtor's Representations and Warranties. Debtor represents and
warrants that:
(a) Debtor is duly organized, validly existing and in good
standing under the laws of the State of New Jersey and has all requisite power
and authority to own its properties and to carry on its business as now
conducted and as proposed to be conducted, and to execute and deliver, and to
perform all of its obligations under, this Security Agreement.
(b) The execution, delivery and performance by Debtor of this
Security Agreement and the consummation of the transactions contemplated hereby,
are within Debtor's powers, have been duly authorized by all necessary limited
liability company action, and do not (i) contravene Debtor's organizational
documents, (ii) violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award which would either singly or in the
aggregate have a material adverse effect on the business of Debtor, this
Security Agreement or any of the transactions, or Debtor's obligations,
contemplated by the Agreement or any of its related documents, (iii) conflict
with or result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting Debtor or its properties which would either singly or in
the aggregate have a material adverse effect on the business of Debtor, this
Security Agreement or any of the transactions, or Debtor's obligations,
contemplated by the Agreement or any of its related documents or (iv) result in
or require the creation or imposition of any lien upon or with respect to any of
the properties of Debtor (except as provided herein).
(c) This Security Agreement has been duly executed and
delivered, and is the legal, valid and binding obligation of Debtor, enforceable
against Debtor in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors rights generally.
(d) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for the execution, delivery or performance by
Debtor of this Security Agreement.
5. Covenants of Debtor.
(a) Debtor will, promptly upon request by Secured Party,
execute and deliver to Secured Party any financing statements or other documents
that are reasonably necessary or, in the reasonable opinion of Secured Party,
desirable to perfect or continue the perfection of Secured Party's lien on and
security interest in the Collateral, to protect the Collateral against the
rights, claims, or interests of third persons or to effect the purposes of this
Security Agreement.
2
(b) Debtor will not, without the prior written consent of
Secured Party, in any way further hypothecate or create or permit to exist any
additional lien, security interest, charge or encumbrance on or other interest
in the Collateral, other than (i) the lien of GMAC Commercial Finance LLC
referred to in Section 8 of this Security Agreement, (ii) as may be occasioned
by the fact that Debtor and Secured Party agreed in the Agreement to waive
compliance with the bulk sales laws of any State or other jurisdiction which
might have been applicable to any portion of the Collateral sold by Secured
Party to Debtor pursuant to the Agreement, or (iii) purchase money security
interests relating to tools, dies, molds and other machinery and equipment
hereafter acquired by Debtor and used in connection with the manufacture of
"▇▇▇▇ ▇▇▇▇▇▇" fragrance products and their packaging. Notwithstanding anything
to the contrary contained herein, Debtor may sell any of the Collateral
described in Section 3(a) above in the ordinary course of business; however,
Debtor will provide Secured Party with a detailed report of inventory on hand at
the end of each calendar quarter commencing June 30, 2003, until the Promissory
Note is paid in full.
(c) Secured Party shall have the right at any time to make any
payments and do any other acts Secured Party may deem necessary to protect its
lien and security interest in the Collateral, including, without limitation, the
right to pay, purchase, contest or compromise any encumbrance, charge or lien
that, except as provided in Sections 5(b) or 8 hereof, in the reasonable
judgment of Secured Party, appears to be prior to or superior to the lien and
security interest granted hereunder, and appear in and defend any action or
proceeding purporting to affect its lien and security interest in and/or the
value of the Collateral, and in exercising any such powers or authority, the
right to pay all reasonable expenses incurred in connection therewith, including
the reasonable fees and expenses of attorneys and paralegals for Secured Party.
Debtor hereby agrees to reimburse Secured Party for all reasonable payments made
and expenses incurred under this Security Agreement, to the extent that such
payments or expenses result from the acts of the Debtor after the date hereof,
as stated herein, which amounts also shall be secured under this Security
Agreement. Secured Party shall have no obligation to make any of the foregoing
payments or perform any of the foregoing acts.
6. Remedies Upon An Event of Default.
If Debtor shall not pay any or all of the Obligations when the
same become due and payable or shall otherwise default under the provisions of
the Promissory Note, this Security Agreement or any other document, agreement or
instrument entered into in connection herewith, in any such case after due
notice and the expiration of the cure period stated therein or herein (an "Event
of Default"), Secured Party may, at its option, without further notice to or
demand upon Debtor, do any one or more of the following:
(a) Exercise any or all of the rights and remedies provided
for by the Uniform Commercial Code as in effect in the State of Florida (the
"UCC"), specifically including, without limitation, the right to recover the
reasonable fees and expenses incurred by Secured Party in the enforcement of
this Security Agreement or in connection with Debtor's redemption of the
Collateral, including fees and expenses of attorneys and paralegals;
(b) Require Debtor to make the Collateral or any part thereof
available at Debtor's premises, and to deliver possession of the Collateral or
any part thereof to Secured Party, who shall have full right to enter upon such
premises to exercise Secured Party's rights hereunder;
3
(c) Use, manage, operate and control the Collateral to
preserve the Collateral
or its value;
(d) Enforce one or more remedies hereunder, successively or
concurrently, and such action shall not operate to estop or prevent Secured
Party from pursuing any other or further remedy which it may have, and any
repossession or retaking or sale of the Collateral pursuant to the terms hereof
shall not operate to release Debtor until full and final payment of any
deficiency has been made in cash or its equivalent, in form satisfactory to
Secured Party;
(e) In connection with any public or private sale under the
UCC, Secured Party shall give Debtor at least ten (10) days' prior written
notice of the time and place of any public sale of the Collateral or of the time
after which any private sale or other intended disposition thereof is to be
made, which shall be deemed to be reasonable notice of such sale or other
disposition. Such notice shall be delivered to Debtor in accordance with the
provisions of Section 7(a) hereof. Further, in the event of any public sale
hereunder, Secured Party shall exhibit the Collateral for a period of time less
than two days before such sale is to take place, and, if practicable, shall
exhibit the Collateral at the time and place of such sale; provided, however,
that Secured Party shall have no obligation to exhibit the Collateral at or
prior to the sale thereof, if, at the time of the occurrence of the Event of
Default, such Collateral is in Debtor's possession or under its control, and if
Secured Party sends Debtor a written demand for possession thereof under Section
6(b) and Debtor fails to comply with such demand at least three (3) days prior
to the date set for sale of such Collateral;
(f) Proceed by an action or actions at law or in equity to
recover the Obligations or to foreclose this Security Agreement and sell the
Collateral, or any portion thereof, pursuant to a judgment or decree of a court
or courts of competent jurisdiction;
(g) Exercise any other rights and remedies granted to it in
this Security Agreement and any and all other rights and remedies granted to it
in any other document, agreement or instrument relating to the Obligations or
under applicable law; and
(h) If Secured Party recovers possession of all or any part of
the Collateral Pursuant to a writ of possession or other judicial process,
whether prejudgment or otherwise, Secured Party may thereafter retain, sell or
otherwise dispose of such Collateral in accordance with this Security Agreement
or the UCC, and following such retention, sale or other disposition, Secured
Party may voluntarily dismiss without prejudice the judicial action in which
such writ of possession or other judicial process was issued. Debtor hereby
consents to the voluntary dismissal by Secured Party of such judicial action,
and Debtor further consents to the exoneration of any bond that Secured Party
files in such action.
7. Miscellaneous Provisions.
(a) Notice. Any notice, approval, consent or other
communication shall be delivered to the addresses set forth on the signature
pages hereof.
4
(b) Headings. The various headings in this Security Agreement
are inserted for convenience only and shall not affect the meaning or
interpretation of this Security Agreement or any provision hereof.
(c) Amendments. This Security Agreement or any provision
hereof may be changed, waived, or terminated only in a writing signed by the
parties hereto.
(d) No Waiver. No delay in enforcing or failure to enforce any
right under this Security Agreement by Secured Party shall constitute a waiver
by Secured Party of such right. No waiver by Secured Party of any default
hereunder shall be effective unless in writing, nor shall any waiver operate as
a waiver of any other default or of the same default on a future occasion
(e) Interpretation of Agreement. Time is of the essence of
each provision of this Security Agreement of which time is an element. All terms
not defined herein shall have the meaning set forth in the UCC, except where the
context otherwise requires. If a provision of this Security Agreement should be
found to be invalid or unenforceable, all of the other provisions shall
nonetheless remain in full force and effect to the maximum extent permitted by
law.
(f) Continuing Security Interest. This Security Agreement
shall create a continuing lien on and security interest in the Collateral and
shall (i) remain in full force and effect until payment in full of the
Obligations, (ii) be binding upon Debtor, its successors and assigns, and (iii)
inure, together with the rights and remedies of Secured Party hereunder, to the
benefit of the Secured Party and its successors, transferees and assigns.
(g) Reinstatement. This Security Agreement shall continue to
be effective or be reinstated, as the case may be, if at any time any amount
received by Secured Party in respect of the Obligations is rescinded or must
otherwise be restored or returned by Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Debtor or trustee or
similar official for Debtor or any substantial part of its assets, or otherwise,
all as though such payments had not been made.
(h) Final Expression. This Security Agreement, is intended by
the parties as a final expression of their agreement and is intended as a
complete and exclusive statement of the terms and conditions thereof. Acceptance
of or acquiescence in a course of performance rendered under this Security
Agreement shall not be relevant to determine the meaning of this Security
Agreement even though the accepting or acquiescing party had knowledge of the
nature of the performance and opportunity for objection.
(i) Survival of Provisions. All representations, warranties
and covenants of Debtor and Secured Party contained herein shall survive the
execution and delivery of this Security Agreement, and shall terminate only upon
the full and final payment and performance by Debtor of its indebtedness and
obligations secured hereby.
(j) Power of Attorney. Debtor hereby appoints and constitutes
Secured Party as Debtor's attorney-in-fact, upon and at any time after the
occurrence of an Event of Default not waived or deemed non-material by Secured
Party in writing, for purposes of (i) collecting accounts or proceeds of any
Collateral, (ii) conveying any item of Collateral to any purchaser thereof and
5
(iii) giving any notices or recording any liens. This power of attorney is
coupled with an interest and is irrevocable by Debtor.
(k) Authority of the Secured Party. Secured Party shall have
and be entitled to exercise all powers hereunder which are specifically granted
to Secured Party by the terms hereof, together with such powers as are
reasonably incident thereto. Secured Party may perform any of its duties
hereunder or in connection with the Collateral by or through agents or employees
and shall be entitled to retain counsel and to act in reliance upon the advice
of counsel concerning all such matters.
(l) Termination of Agreement. This Security Agreement shall
terminate upon the full and final payment of all the amounts owed to Secured
Party under the Promissory Note. Upon such termination, the Secured Party at the
request of the Debtor, will execute any termination statement with respect to
any financing statement executed and filed by Secured Party against the
Collateral.
(m) Counterparts. This Security Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which shall together constitute one and the same agreement.
(n) GOVERNING LAW; WAIVER OF JURY TRIAL; WAIVER OF DAMAGES.
(i) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED UNDER THE LAWS OF THE STATE OF FLORIDA, AND ANY DISPUTE ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN DEBTOR AND SECURED PARTY IN CONNECTION WITH THIS AGREEMENT, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND
DECISIONS OF THE STATE OF FLORIDA.
(ii) Debtor and Secured Party each waive any right to
have a jury participate in resolving any dispute, whether sounding in contract,
tort, equity or otherwise arising out of, connected with, related to or
incidental to the relationship established between them in connection with this
Security Agreement. Instead, any disputes resolved in court will be resolved in
a bench trial without a jury.
8. Subordination. The rights and remedies of Secured Party hereunder
are subject to and subordinated to the terms and provisions of the Revolving
Credit and Security Agreement dated as of July 20, 2001, by and among GMAC
Commercial Finance LLC ("GMACCF"), Secured Party and Parlux, Ltd., a New York
corporation ("Parlux"), as amended by that Letter Agreement dated as of March
28, 2003 among Secured Party, Parlux, Debtor and GMACCF.
IN WITNESS WHEREOF, the undersigned have caused this Security Agreement
to be duly executed and delivered as of the day and year first above mentioned.
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇) LLC
AS DEBTOR
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn : ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
AS SECURED PARTY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Executive VP / COO / CFO
Address: ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
7
ANNEX D
FORM OF GMACCF LETTER
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
PARLUX LTD.
▇▇▇▇ ▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
as of March 28, 2003
GMAC COMMERCIAL FINANCE LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Consent to Sale of Certain Trademarks and Partial Release of
Security Interest Therein
Ladies and Gentlemen:
GMAC Commercial Finance LLC, successor by merger with GMAC
Commercial Credit LLC ("GMACCF") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc., a Delaware
corporation (" Fragrances") and Parlux Ltd., a New York corporation, (" Parlux";
and together with Fragrances, each individually a "Borrower" and collectively,
the "Borrowers") have previously entered into financing arrangements pursuant to
that certain Revolving Credit and Security Agreement, dated as of July 20, 2001,
by and among GMACCF and Borrowers (the "Loan Agreement"). Capitalized terms used
herein, unless otherwise defined herein, shall have the meaning set forth in the
Loan Agreement.
Borrowers have informed GMACCF that Borrowers have entered
into a Purchase and Sale Agreement (the "Sale Agreement") with ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC (" Purchaser") dated as of March 28, 2003 pursuant to
which, among other things, Fragrances has agreed to sublicense to Purchaser
certain of its trademarks as more particularly described on Schedule A annexed
hereto (the "Sublicensed Trademarks") and to sell the "Purchased Assets" (as
that term is defined in the Sale Agreement as in effect on the date hereof) for
a purchase price of Four Million Thirty-Two Thousand Two Hundred Seventy One
($4,032,271) Dollars (the "Purchase Price") of which Two Million ($2,000,000)
Dollars shall be paid at closing in immediately available funds (the "Initial
Payment") and the remaining balance, subject to adjustments as provided for
under the Sale Agreement as in effect on the date hereof (the "Second Payment"),
shall be paid in accordance with the terms of the Promissory Note (as defined in
the Sale Agreement). Borrowers have requested that GMACCF agree to the
transactions contemplated under the Sale Agreement, which GMACCF has agreed to
do subject to the terms and provisions hereof.
In consideration of the foregoing, and other good and valuable
consideration, GMACCF and Borrowers hereby agree as follows:
1. (a) GMACCF, as a one-time financial accommodation to Borrowers,
hereby consents to Borrowers' consummation of the transactions contemplated
under the Sale Agreement, provided, however , that the foregoing consent is
expressly conditioned upon the receipt by GMACCF of the Initial Payment and the
delivery to GMACCF of the Promissory Note, duly endorsed in favor of GMACCF, and
an assignment of all security interests granted in favor of Borrower by
Purchaser under the Sale Agreement and any security agreement and sublicense
agreement executed and delivered by Purchaser in favor of Borrower in connection
therewith (the "Collateral Documents"). The Initial Payment and Second Payment
shall be received by GMACCF by federal funds wire transfer in immediately
available funds for application to the Obligations in accordance with the Loan
Agreement.
(b) In connection with the foregoing, Borrowers hereby
irrevocably authorize and direct the Purchaser to remit the Initial Payment, the
Second Payment and all other amounts payable under the Collateral Documents,
including, without limitation, any payments (including royalty payments) due
under any sublicense agreement, to GMACCF. Such payments shall be made to the
following account (or such other account as GMACCF shall designate in writing to
Purchaser):
GMAC Commercial Finance LLC
Bank One
Detroit, Michigan
Account # 361324984
ABA # ▇▇▇▇▇▇▇▇▇
Reference: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc
2. (a) Upon receipt in immediately available funds of the Second
Payment, GMACCF's security interest in and lien upon the Purchased Assets shall
be released. Nothing contained herein shall release or be deemed to release any
of GMACCF's security interests in liens or upon any other assets of Borrowers
other than the Purchased Assets.
(b) So long as no default or event of default on the part of
Purchaser exists under the Promissory Note, the Collateral Documents or the Sale
Agreement, GMACCF agrees that if an Event of Default exists under the Loan
Agreement or any of the other Loan Documents, GMACCF will not take any direct
action to foreclose upon its security interest and in lien upon the Purchased
Assets. If a default or event of default on the part of Purchaser exists under
the Promissory Note, the Collateral Documents or the Sale Agreement, the terms
and provisions of the first sentence of this paragraph 2(b) shall be null and
void and of no further force and effect. Nothing contained herein shall
prejudice, waive or alter, or be deemed to prejudice, waive or alter, any of
GMACCF's rights and remedies under the Loan Agreement or any of the other Loan
Documents against the Borrowers or any assets of Borrowers, including, without
limitation, any assets (other than the Purchased Assets and the Sublicensed
Trademarks).
(c) GMACCF acknowledges and agrees that, so long as no default or
event of default on the part of Purchaser exists under the Promissory Note, the
Collateral Documents or the Sale Agreement, Purchaser may sell any inventories
which are included in the collateral under the Collateral Documents in the
ordinary course of its business.
2
3. Except as expressly provided for herein, no other consents and no
waivers or modifications to the Loan Agreement or any of the other Loan
Documents are intended or implied. In all other respects, the Loan Agreement and
the other Loan Documents remain in full force and effect in accordance with
their existing terms and conditions. Borrowers hereby represent and warrant that
no Event of Default exists after giving effect to the sale of the Purchased
Assets.
4. This letter agreement shall not be effective unless and until GMACCF
shall have received an original or copy hereof, duly executed and delivered by
Borrowers. This letter agreement shall be binding upon, and inure to the benefit
of, Purchaser, GMACCF and Borrowers, together with their respective successors
and assigns.
5. This letter agreement may be executed in any number of counterparts,
but all of such counterparts when executed shall together constitute but one and
the same agreement. In making proof of this letter agreement, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
the parties hereto.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------
Title: EVP/COO/CFO
---------------------
PARLUX LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------
Title: EVP/COO/CFO
---------------------
ACKNOWLEDGED AND AGREED:
GMAC COMMERCIAL FINANCE LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Title: Senior Vice President
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (USA) LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: President
------------------------
3
SCHEDULE A
SEE ATTACHED
SCHEDULE 3.3
CONSENTS
(SEE ATTACHED CONSENT FROM GMAC COMMERCIAL FINANCE LLC)
SCHEDULE 3.5
MOLDS, TOOLS & DIES
(SEE ATTACHED LISTING)
SCHEDULE 3.6
INVENTORIES
(SEE ATTACHED LISTING)
SCHEDULE 3.8
PURCHASE COMMITMENTS
(SEE ATTACHED LISTING OF OPEN PURCHASE ORDERS)
SCHEDULE 3.10
INTELLECTUAL PROPERTY
(SEE ATTACHED LISTING OF TRADEMARKS AND DESIGN PATENTS)
SCHEDULE 3.12
HEALTH & SAFETY CONDITIONS
(SEE ATTACHED "MATERIAL SAFETY DATA SHEETS")
SCHEDULE 3.13
CUSTOMERS, DISTRIBUTORS AND INDEPENDENT SALES REPRESENTATIVES
A. SEE ATTACHED LISTING OF DISTRIBUTORS,
B. SEE ATTACHED INDEPENDENT SALES REPRESENTATION AGREEMENT
WITH ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ENTERPRISES, INC.,
C. SEE ATTACHED LISTING OF SUPPLIERS.
