LICENSE AND SALE AGREEMENT
License and Sale Agreement entered into as of this 3rd day of November,
1998, by and between Creative Bakeries, Inc., a New York corporation
("Licensor"), and JW Enterprises, Inc., a New York corporation ("Licensee").
WHEREAS, Licensor has developed and is the proprietary owner of the
Trade Name (as hereinafter defined) and is willing to grant, upon the terms and
conditions hereinafter set forth, the exclusive license to Licensee of the Trade
Name in the Territory (as hereinafter defined) and Licensee desires to acquire
such license; and
WHEREAS, Licensor has agreed to sell to Licensee, and Licensee has
agreed to purchase from Licensor, the Equipment (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. Definition of Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Know-How" shall mean recipes and methods of production, as well as any
and all other recipes and methods of production, whether or not capable of
precise separate description, but which alone or when accumulated is or may be
useful in the production of the baked and other goods sold by the Retail Store
and which is now known to or possessed or acquired by Licensor.
"Equipment" shall mean all inventory, equipment, fixtures, trade
fixtures, improvements and merchandise located at the Retail Store.
"Retail Store" shall mean that certain retail store located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Territory" shall mean and encompass the following:
(a) The Borough of Manhattan in the City of New York, north of ▇▇▇▇
▇▇▇▇▇▇ from the East River to the ▇▇▇▇▇▇ River; and
(b) In the event that during the first three years after the date hereof,
Licensee does not open and operate any additional retail stores utilizing the
License (as hereinafter defined) within the area described in Subsection (a) of
this definition, other than the Retail Store, thereafter the Territory shall
mean and encompass the Borough of Manhattan in the City of New York, north of
▇▇▇▇ ▇▇▇▇▇▇ from the East River to Fifth Avenue.
"Trade Name" shall mean the ▇▇▇▇ and name "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. Desserts
and Cafes" and/or derivatives thereof, including, the logo related thereto, the
artwork, design, marketing display design and concept associated therewith,
packaging design and trade dress.
Scope of License; No Right to Sublicense.
2.1 Subject to the terms and conditions of this Agreement, Licensor
hereby grants to Licensee a royalty-bearing exclusive license commencing on the
date hereof to utilize the Trade Name and the Know-How in order to
commercialize, produce and sell baked goods and other merchandise through the
Retail Store and other retail store(s), subject to the provisions of this
Agreement, in the Territory and through worldwide mail order sales (the
"License"). Except in connection with an assignment of the New Lease or a
subletting of the premises demised under the New Lease, Licensee shall not have
the right to sublicense the Trade Name or the Know-How to any third party
without the prior written consent of Licensor, which consent shall not be
unreasonably withheld or delayed. Any sublicense of the Trade Name and Know-How
shall expressly provide that such sublicense is subject to the applicable
provisions of this Agreement and that certain Termination, Release and Tri-Party
Agreement by and between Licensor, Licensee and Gerel Corporation of even date
herewith.
2.2 Licensee shall have the right of first refusal with respect to the
opening of any additional retail stores using the Trade Name in the Borough of
Manhattan in the City of New York, north of ▇▇▇▇ ▇▇▇▇▇▇ from Fifth Avenue to the
▇▇▇▇▇▇ River during the two year period subsequent to the third anniversary of
the date hereof.
2.3 Licensor hereby agrees to execute an escrow agreement within thirty
(30) days of the date hereof in a form reasonably acceptable to both Licensor
and Licensee. Said escrow agreement shall provide that in the event (i) Licensee
chooses to use a production facility for the baked and other goods sold by the
Retail Store other than that which is currently used by Licensor, the Know-How
will be provided to such other production facility, PROVIDED that said
production facility executes a confidentiality agreement reasonably acceptable
to Licensor with respect to the Know-How, and (ii) this License be terminated as
permitted under Article 14 hereof, the escrow agreement shall automatically
terminate and the Know-How shall be returned to Licensor upon Licensor giving
notice to the escrow agent that the License has been terminated. Such escrow
agreement shall be deemed supplementary to this Agreement pursuant to 11 US
Bankruptcy Code ss.365(n).
3. Sale of Equipment. Licensor hereby grants, conveys, sells,
transfers, sets-over and delivers, and by these presents does hereby grant,
convey, sell, transfer, set-over and deliver unto Licensee all of Licensor's
right, title and interest in and to the Equipment, to have and to hold, all and
singular, such Equipment forever. The Equipment is transferred in "AS IS",
"WHERE IS" condition without warranties of any kind, express or implied,
including any regarding merchantability or fitness for a particular use.
Anything contained herein to the contrary notwithstanding, $2,500.00 of the
consideration set forth in Section 6.1(i) below shall be deemed consideration
for the sale of the Equipment. Licensee hereby agrees to pay any sales or
capital gains taxes which Licensor may incur and pay as a result of the sale of
the Equipment to Licensee.
4. Purchase of Trade Name and Know-How.
4.1 In the event that Licensor shall dissolve or permanently cease
operations, the Licensee shall be entitled to acquire free and clear title to
the Trade Name and Know-How upon the payment of $25,000 to Licensor or it
successors, assigns or designees (the "Option"). Licensor shall provide Licensee
with written notice at least thirty (30) days prior to the date Licensor intends
to dissolve or permanently cease operations. Licensee shall thereafter have
thirty (30) days to exercise the Option by delivering written notice to Licensor
of such election. In the event Licensee fails to exercise the Option within said
thirty (30) days Licensee shall be deemed to have forever waived the Option, and
Licensee shall thereafter have no cause of action against Licensor with respect
to the Trade Name and Know-How.
4.2 Licensor hereby agrees to execute an assignment of the Know-How and
the Trade Name in a form reasonably acceptable to both Licensor and Licensee
within thirty (30) days of the date hereof. Said assignment shall be held in
escrow and shall not to be released until Licensor dissolves or ceases
operations and Licensee exercises its option to acquire free and clear title to
the Know-How and Trade Name pursuant to this Article 4. The escrow a agreement
shall be in a form reasonably acceptable to both Licensor and Licensee. Said
escrow agreement shall provide that in the event Licensee does not exercise its
right to acquire free and clear title to the Know-How and Trade Name as set
forth herein, the assignment shall become null and void and of no force or
effect and the escrow agreement shall automatically terminate. Such escrow
agreement shall be deemed supplementary to this Agreement pursuant to 11 US
Bankruptcy Code ss.365(n).
5. Ownership. Subject to express contrary terms contained in this
Agreement, as between Licensor and Licensee, Licensor shall be the sole and
exclusive owner of the Trade Name and the Know-How.. ---------
6. Royalties and Payments.
6.1. In consideration of the License granted hereunder and the sale of the
Equipment, Licensee has agreed to pay Licensor $405,000 payable on the date
hereof by delivery by Licensee to Licensor of (i) a certified or cashiers check
in the amount of $110,000 and (ii) Licensee's promissory note in the amount of
$295,000 in the Form of Exhibit A hereto (the "Note").
6.2. In addition to the payment set forth in Section 6.1, the Licensee
agrees to pay Licensor royalty payments (the "Percentage Royalties") as set
forth below:
(a) In the event that Licensee opens and operates any
additional retail store(s) utilizing the License (other than the Retail Store)
and the annual (measured in 12 month periods ending on each December 31) gross
retail sales of any of such store(s) exceeds $400,000 Dollars (the
"Breakpoint"), then Licensee shall pay Licensor a royalty of five percent (5%)
(the "Retail Royalties") of gross retail sales in excess of the Breakpoint for
each such retail store, on a semi-annual basis, for so long as such store(s)
remain in operation. In the event the initial opening date of any such
additional store does not occur on January 1 of any calendar year, then the
Breakpoint shall be pro-rated on a per-diem basis.
(b) Licensee shall pay Licensor a royalty, on a semi-annual basis, of three
percent (3%) of all annual gross mail order sales of products relating to the
Trade Name and the Know-How above $100,000.
6.3 In no event shall the sales derived from Licensee's operations at the
Retail Store be included in the calculation of Retail Royalties.
6.4 All amounts of royalties payable by Licensee to Licensor hereunder
shall be paid without deducting therefrom any tax, duty, charge or other fee
payable in respect of such royalty payment.
6.5 Payments due from Licensee to Licensor shall be deposited by Licensee
to the account of Licensor, as Licensor shall specify from time to time in
writing.
6.6 Except as otherwise determined, any amount which is not paid when due
hereunder shall bear interest per annum at the prime rate as published in The
Wall Street Journal from time to time. -----------------------
6.7 The obligations of Licensee under the Note and to make Percentage
Royalty and other payments hereunder are secured by, and entitled to the
benefits of, a security interest as provided in that certain Termination,
Release and Tri-Party Agreement, dated the date hereof between Licensor,
Licensee and Gerel Corporation, the landlord of the Retail Store.
7. Security Interest.
7.1 Licensee hereby grants to Licensor a security interest in the
Equipment and all proceeds and accounts receivable therefrom (the "Collateral"),
to secure the payment and performance of Tenant's obligations set forth in the
Note (the "Security Agreement"). Licensee hereby appoints Licensor its true and
lawful attorney-in-fact in its name or otherwise to execute and file any
financing statement(s) on behalf of Licensee and to do any and all acts and to
execute and file any and all documents which may be necessary to realize,
perfect, continue, preserve and protect the security interest upon the
Collateral. Upon the occurrence of any event of default in the payment of any
amounts due under the Note Licensor shall be entitled to exercise all of the
rights and remedies of a secured party under the Uniform Commercial Code.
Reasonable attorneys' fees of the Licensor in enforcing any right or exercising
any remedy under this Security Agreement shall be deemed a part of the
obligation secured hereby.
8. Joint Venture. Licensor and Licensee hereby agree to form a joint
venture which shall provide for the equal sharing of the profits derived from
the wholesale operations (i.e. sales made at a discount to restaurants,
supermarkets, schools, etc.) of the business operated under the Trade Name by
Licensee and/or Licensor (the "Joint Venture"). Each party shall provide
reasonable access to the books and records maintained by them for the purposes
of verifying the wholesale profits. Commencing with calendar year 2001, if at
any time within the next three (3) full calendar years (i.e. 2001, 2002 and 2003
) less than forty percent (40%) of the total wholesale sales volume is derived
from the operations of Licensee, Licensor shall have the option to terminate the
Joint Venture upon ten (10) days notice to Licensee. Licensor and Licensee shall
pay to each other fifty (50%) of their annual net wholesale revenues on or
before February 1 of each calendar year the Joint Venture is in existence.
Anything contained in this Article 8 to the contrary notwithstanding, in the
event Licensor elects to terminate the Joint Venture as provided in this Article
8, both Licensor and Licensee shall retain the right to continue their
respective wholesale operations independent of one another.
9. Cooperation. Licensor hereby covenants and agrees to reasonably
cooperate and share with Licensee its knowledge and experience with respect to
the mail order and wholesale business it conducts from time to time; provided
however, that such covenants shall not be deemed to require Licensor to share
any trade secrets it may now have or may develop in the future which are not
included within the Know-How. ------------
10. Records and Reporting.
10.1 Licensee shall deliver to Licensor a statement of all Revenues on
which Percentage Royalties are due under this Agreement on a semi-annual basis
(the "Semi-Annual Royalty Statement") on or before every October 1 and April 1
of each calendar year this License is in effect. Each Semi-Annual Royalty
Statement shall present information for gross retail (other than sales from the
Retail Store) and mail order sales of the Product by Licensee and such other
information (including information regarding customers) as Licensor may
reasonably require.
10.2 Licensee shall keep complete and accurate books and records
relating to all mail order sales and all sales from locations other than the
Retail Store in sufficient detail to allow the accrued Percentage Royalties to
be accurately determined and verified. Licensee shall preserve such books and
records for a period of six years following the date of any statement delivered
hereunder. Licensor (or its duly authorized representatives) shall have the
right at its sole cost and expense, from time to time during the Term upon seven
(7) business days prior notice and during normal business hours, to inspect the
relevant records of Licensee to the extent necessary to verify the accuracy of
the reports and payments required hereunder. Licensee shall make its records
available for such inspection at such place or places where such records are
customarily kept, upon notice from Licensor. Licensor shall hold strictly
confidential all such records and information, other than the total amounts of
royalties paid, and all information learned in the course of any audit or
inspection hereunder, except to the extent necessary for Licensor to reveal such
information in order to enforce any rights it may have under this Agreement or
if disclosure is required by law. The failure of Licensor to request
verification of any report or statement during the Term shall not be considered
acceptance of the accuracy of such report.
10.3 Simultaneously with the delivery of each Semi-Annual Royalty
Statement, Licensee shall pay to Licensor the Percentage Royalties reported as
being due without set-off or reduction of any kind.
10.4 Licensee and Licensor shall file all required tax filings relating to
this Agreement. Each party hereto shall maintain all documents supporting such
tax filings and shall make such documents available to the other upon its
reasonable request.
10.5 All disputes, controversies or differences which may arise between
the parties hereto out of, in relation to, or in connection with Article 6
hereof or this Article 10, including, but not limited to, the Semi-Annual
Royalty Statements and the completeness and accuracy of the books and records of
the Licensee, shall be finally settled and determined by one (1) nationally
recognized independent accounting firm if the Licensor and Licensee are able to
agree to such a firm and, in the absence of such agreement, by decision of the
majority of three (3) nationally recognized accounting firms with one such firm
chosen by each party hereto (the "Designated Accounting Firms") and a third such
firm chosen jointly by the Designated Accounting Firms. All costs, fees and
expenses actually incurred by either party solely with respect to any dispute
submitted for resolution pursuant to this Section 10.5 shall be share equally by
Licensor and Licensee. Notwithstanding the foregoing, with respect of monetary
disputes only, if either Licensor's or Licensee's position in such dispute(s) is
determined to be entirely correct, then the prevailing party shall be entitled
to collect all of its costs, fees and expenses actually incurred with respect to
such dispute.
11. Covenants of Licensee.
11.1 Licensee covenants (a) that the goods and merchandise sold under
the Trade Name (the "Product") and the production, distribution and packaging
thereof shall be of a high standard and of such taste, appearance and quality at
least equal to that currently offered for sale by Licensor from the Retail Store
in order to at least maintain the good will pertaining to the Trade Name, (b)
that the Product shall be produced, sold, distributed and advertised in
accordance with all applicable laws, and (c) that the policy of sale,
distribution, and/or exploitation by Licensee shall in no manner reflect
adversely upon the Trade Name. Licensee further agrees that all rights granted
herein shall be exploited and/or exercised so as not to interfere with, detract
from or alter the concepts associated with the Trade Name used by Licensor and
that Licensee shall use its commercially reasonable efforts to preserve such
concepts. Anything contained herein to the contrary notwithstanding, to the
extent Licensee retains the production facilities for the Know-How recommended
by Licensor, Licensee shall have not liability under this License for the taste,
appearance and quality of the goods produced by such facility.
11.2 Licensee shall comply with any and all national, federal, state,
county and municipal statutes, laws, ordinances, regulations, rules or orders
(collectively, "Regulations"), including without limitation, all Regulations
regarding labor, safety for workers and consumer protection and shall obtain, at
its own expense, any variances, special exceptions, zoning approvals and all
licenses and other permits required by governmental authorities.
12. Indemnification.
12.1 Licensee shall defend, protect, indemnify, reimburse and hold
harmless Licensor and any of its affiliates, representatives or agents, during
and after the Term, from and against the full amount of any and all claims,
demands, losses, liabilities and expenses, including but not limited to, fees of
legal counsel, whether arising during or after the Term, and whether alleged or
proven, which arise out of: (a) the Licensee's use of the Trade Name, including
the operations of any retail store under the Trade Name (including without
limitation, the Retail Store); (b) the termination of this Agreement or the
License by Licensor due to Licensee's default under this License, the Note, or
that certain Termination, Release and Tri-Party Agreement of even date herewith
by and between Licensor, Licensee, and the landlord of the Retail Store; (c) the
acts or omissions of Licensee or any of the Licensee's agents, representatives
or employees; (d) the inaccuracy or incorrectness in any material respect as of
the date hereof of any representation or warranty made by Licensee; or (e) the
default by Licensee in the performance of any of its material obligations under
this Agreement. Notwithstanding the foregoing, the indemnification contained
herein shall not be deemed to include claims by third parties that the Trade
Name violates intellectual property rights of said third party.
12.2 Licensor shall defend, protect, indemnify, reimburse and hold harmless
Licensee and any of its affiliates, representatives or agents, during and after
the Term, from and against the full amount of any and all claims, demands,
losses, liabilities and expenses, including but not limited to, fees of legal
counsel, arising out of Licensor's operations from the Retail Store prior to the
date hereof.
13. Duration of Agreement. This Agreement shall begin on the date first
noted above and thereafter shall be perpetual, unless terminated pursuant to
Article 15 hereof or otherwise terminated by written agreement of Licensor and
Licensee (the "Term"). ---------------------
14. Representations and Warranties of Licensee. (a) Licensee represents
and warrants to Licensor that:
The execution and delivery of this Agreement and the performance
of the transactions contemplated hereby have been duly authorized by all
appropriate corporate action;
The performance by Licensee of any of the terms and conditions of
this Agreement on its part to be performed does not and will not constitute a
breach or violation of any judgment, decree or order or any agreement or
understanding, written or oral, to which it is a party or by which it is bound;
Licensee is duly organized and validly incorporated under the laws
of the State of New York and is in good standing under such laws and is
qualified to do business in every jurisdiction in each state where such
qualification is necessary;
Licensee has the right, power and authority to enter into this
Agreement and receive the rights and license granted hereby.
(b) Licensor represents and warrants to Licensee that:
Gross sales of the Retail Store for the fiscal year ending
December 31, 1997, including gross mail order sales, were at least One Million
Two Hundred Thousand ($1,200,000) Dollars;
The execution and delivery of this Agreement and the performance
of the transactions contemplated hereby have been duly authorized by all
appropriate corporate action;
The performance by Licensor of any of the terms and conditions of
this Agreement on its part to be performed does not and will not constitute a
breach or violation of any judgment, decree or order or any agreement or
understanding, written or oral, to which it is a party or by which it is bound;
Licensor is duly organized and validly incorporated under the laws
of the State of New York and is in good standing under such laws and is
qualified to do business in every jurisdiction in each state where such
qualification is necessary;
Licensor has the right, power and authority to enter into this
Agreement and receive the rights and license granted hereby.
15. Termination.
15.1 Licensor shall have the right to terminate this Agreement, upon
forty-five (45) days' notice to Licensee, only if at any time during the Term
Licensee shall default in the payment of any of the amounts due under the Note,
provided that Licensee has not cured such default prior thereto. In the event of
a default in the payment of Percentage Royalties or a breach of the covenants
contained in Article 11 above, Licensor's sole remedy shall be to bring an
action against Licensee for (i) the past due Percentage Royalties, and (ii)
specific performance of the covenants contained in Article 11 hereof. Any notice
of default delivered by Licensor shall specify the nature of said default. This
Agreement and the License shall automatically terminate unless subsequently
waived by Licensor in writing, if any one of the following events shall occur:
(a) Licensee shall become insolvent, suspend its usual
business or be declared by a court of competent jurisdiction to cease to exist;
(b) Licensee shall make a general assignment for the benefit
of its creditors, commence any proceeding relating to it seeking
discharge or the reduction of debts, an arrangement, composition,
reorganization or any other form of relief from its creditors or from a
court or governmental agency pursuant to any bankruptcy,
reorganization, arrangement, readjustment of debt, receivership,
dissolution or liquidation, law, statute or procedure of any
jurisdiction (federal, state or municipal) for relief of financially
distressed debtors (each of the foregoing a "Debtor Relief Procedure");
or
(c) a Debtor Relief Procedure shall be instituted, initiated or commenced
against Licensee hereunder for any obligation of Licensee and an order for
relief is entered or the petition is controverted but is not dismissed within 30
days after the commencement of the case or the substantial equivalent occurs or
the Debtor Relief Procedure is not dismissed or otherwise terminated within 30
days of its commencement.
15.2 If this Agreement is terminated pursuant to this Article 15, all
interests of the Licensee under this Agreement, and in all rights and licenses
granted hereunder, shall cease forthwith. In addition, Licensor shall have the
right to exercise its rights under the Security Agreement. Such termination
shall not affect or diminish Licensee's liability hereunder or Licensee's
obligations to Licensor, including without limitation, the obligation to pay
accrued and unpaid royalties hereunder, all of which obligations shall survive
such termination.
15.3 Anything contained in this Article 15 to the contrary
notwithstanding, in the event (i) Licensee disputes the amount of Percentage
Royalties owed pursuant to Article 6 hereof, (ii) such dispute is submitted for
resolution pursuant to Section 10.5 above, and (iii) Licensee is determined
pursuant to Section 10.5 to have defaulted in the payment of Percentage
Royalties, Licensee shall have ten (10) days after such determination to cure
such default. In the event Licensee shall fail to cure within said ten (10) day
period, Licensor shall thereafter have the right to exercise all the rights and
remedies granted it pursuant to this Agreement.
16. Notice. All notices, consents, requests, demands and other
communications required or permitted to be given under this Agreement (the
"Notices"), shall be in writing and delivered personally, by facsimile, or by a
nationally recognized overnight courier service, receipt acknowledged, or mailed
by registered or certified mail, postage prepaid, return receipt requested,
addressed to the parties hereto (or to such address as the parties hereto shall
specify by notice given in ------ accordance with this provision):
(a) If to the Licensor:
Creative Bakeries, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, President
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(b) If to the Licensee:
JW Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & Schloss LLP
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
All such Notices shall be deemed given when personally delivered or when
transmitted by facsimile with confirmation as aforesaid, or, if mailed as
aforesaid, on the third business day after the mailing thereof or on the day
actually received, if earlier, except for a notice of a change of address which
shall be effective and deemed to have been given only upon receipt.
17. Waivers. No waiver of any provision of this Agreement or of any breach
hereof shall be effective unless in writing and signed by the party to be bound
thereby. The waiver by any party hereto of a breach of any provision of this
Agreement, or of any representation, warranty, obligation or covenant in this
Agreement by any other party hereto, shall not be construed as a waiver of any
subsequent breach of the same or of any other provision, representation,
warranty, obligation or ------- covenant of such other party, unless the
instrument of waiver expressly so provides.
18. Governing Law. This Agreement shall be governed by an construed in
accordance with the laws of the State of New York, with respect to contracts
made and to be fully performed therein, without regard to the conflicts of laws
principles thereof. -------------
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. ------------
20. Entire Agreement. This Agreement constitutes the sole and entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, representations, warranties, statements,
promises, arrangements and understandings, whether oral or written, express or
implied, between the parties with respect to the subject matter hereof and may
not be changed or modified except by an instrument in writing signed by the
party or parties to be bound thereby. This Agreement has been subject to the
mutual consultation, negotiation and agreement of the parties hereto and shall
not be construed for or against any party hereto on the basis of such party
having drafted this Agreement.
21. Assignment. No party hereto may assign this Agreement or its respective
rights, benefits or obligations hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Licensor, may assign, without the prior consent
of Licensee, a portion or all of the Percentage Royalty to such person or entity
that the Licensor may designate from time to time by notice to Licensee.
----------
22. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors, heirs, personal representatives,
administrators, executors and permitted assigns. Nothing contained in this
Agreement is intended to confer upon any person or entity, other than the
parties hereto, or their respective successors, heirs, personal representatives,
administrators, executors or permitted assigns, any rights, benefits,
obligations, remedies or liabilities under -------------- or by reason of this
Agreement.
23. Section Headings. The Section headings used in this Agreement have been
used for convenience of reference only and are not to be considered in
construing or interpreting this Agreement. ----------------
24. Severability. If one or more terms or provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall remain in
full force and effect. ------------
25. Further Assurances. The parties shall, at any time and from time to
time after the date hereof and through and after the date of execution hereof,
upon the reasonable request of the other party, execute, acknowledge, file and
deliver or cause to be done, executed, filed or delivered, such further acts,
assignments, transfers and assurances as may be reasonably required to
effectively consummate this Agreement and the transactions contemplated hereby
or to confirm or otherwise effectuate ------------------ the provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Licensor:
CREATIVE BAKERIES, INC.
Witness: ___________________ By: _____________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
Licensee:
JW ENTERPRISES, INC.
Witness: ___________________ By: _____________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President