LICENSE AGREEMENT DATED: May 11, 2005
Exhibit
10.48
DATED:
May 11, 2005
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1.
Licensor:
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BBKO,
LLC, a Delaware Limited Liability Company (“Licensor”)
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C/O
▇▇▇▇▇▇ ▇▇▇▇▇ Associates, Ltd.
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▇.▇.
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
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Pine
Brook, New Jersey 07058
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2.
Licensee:
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BBKO,
Inc. f/k/a/ Malibu Beach Mixers Company (“Licensee”)
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C/O
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Chairman
and CEO
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▇.▇.
▇▇▇ ▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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3.
Property:
The
trade
names “BBKO” and “Beats, Bouts and Knockouts” and all associated trademarks,
service marks, goodwill, and business plans and prospective business
arrangements relating to the sport of boxing relating thereto (collectively,
the
“Property”).
In
this regard, Licensor represents that it has applied for Federal trademark
registration of the names “BBKO” and “Beats, Bouts and Knockouts,” as well as a
stylized logo for “Beats, Bouts and Knockouts,” in International Classes 41 and
25 (Entertainment Services and Clothing). Such registration is pending and
Licensor does not warrant that Federal trademarks will be issued.
4.
License:
Licensor
hereby grants an exclusive license to Licensee, during the “Term” (as
hereinafter defined),
in and to the Property for the purposes of undertaking any and all business
activities utilizing the
Property in connection with the sport of boxing.
In
this
regard, Licensor represents that it has commenced negotiations with ESPN
relating to the production
of a series of boxing telecasts utilizing the Property, but no agreement
has
been reached regarding
same as of the date hereof. Licensor agrees to cooperate with Licensor in
attempting to conclude
such agreement, but no representation is being made by Licensor that such
agreement will be concluded
or that ESPN will consent to Licensee being substituted for Licensor in
connection with such
services.
5.
Term
The
term
of this Agreement (“Term”) shall commence upon the date first written above and
shall expire (unless sooner terminated in accordance with the provisions
hereof)
on the date ten (10) years thereafter.
6.
Renewal
Options:
The
licensee shall have the option to renew the license agreement for four (4)
additional 10 year terms
by
forwarding a payment of $100,000 in cash or stock, at the licensee’s option, for
each 10- year
extension. Licensee shall notify Licensor within 30 days prior to expiration
of
the licensing agreement.
7.
Territory:
Worldwide
(“Territory”).
8.
Advances
and Guarantees:
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a.
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Up
front licensing fee: Upon signing of this agreement, Licensee will
pay an
up front license fee of $10,000 as follows:
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Convertible
note issued to ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇ in the
amount of $10,000 convertible into 10% of the Licensee or 200,000,000 free
trading shares of Orbit Brands Corporation (“Orbit”). If said note is converted
into Orbit Brands shares, the 10% ownership in the Licensee shall revert
back to
its parent company (Orbit).
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b.
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Consulting
Fee: Upon signing of this agreement, Licensee will pay a consulting
fee of
$10,000
as follows:
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Convertible
note issued to ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
and ▇▇▇
▇▇▇▇▇▇▇ (the “Consulting Group”) in the amount of $10,000 convertible into 10%
of the Licensee or 200,000,000 free trading shares of Orbit. If said note
is
converted into Orbit shares, the 10% ownership in the Licensee shall revert
back
to its parent company (Orbit).
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Initial
Seed Capital: $500,000
funded directly into the Licensee within 60 days of execution of
this
licensing agreement. The Consulting Group will receive a 10% interest
in
BBKO, LLC upon the receipt of cash in BBKO, Inc.
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9. Royalty
Rate:
In
consideration of the license herein granted by Licensee, Licensee shall pay
royalties (“Royalties”) to Licensor of an amount equal to 1 percent (1%) in year
1, 5 percent (5%) in year 2, and ten percent (10%) in years 3-10 of all gross
amounts (including the monetary value of non-monetary consideration received
by
Licensee) (“Gross Receipts”) received by or applied to the account of Licensee
or any “Related Party” (as hereafter defined) anywhere in the Territory in
connection with Licensee’s activities utilizing and/or relating to the Property,
including, without limitation, all Gross Receipts derived from any promotion
of
boxing events, management of boxing participants, presentation, production
or
licensing of televised boxing matches (and any exploitation of same by any
means
or in any media, now known or hereafter devised), merchandising activities,
video games, so called “product integration” and product placement, sponsorship
revenues or other commercial exploitation of any kind relating to the Property.
“Related Parties” shall mean any affiliated, associated, parent, or subsidiary
entity of Licensee and/or any sub-licensee of Licensee.
10. Payment
and Reporting:
10.1 Royalties
shall be payable to Licensor on a quarterly basis during the Term and shall
be
accompanied by accounting statements in reasonable detail setting forth all
Gross Receipts for the respective quarter and on a cumulative basis, as well
as
the source of all Gross Receipts. Such accounting statements and the
accompanying Royalty payment shall be issued to Licensor no later than thirty
days after the close of each calendar quarter during the Term. Licensee
acknowledges and agrees that notwithstanding anything in herein contrary,
its
obligation to make payment of the Royalties shall survive any expiration
of this
Agreement
10.2 Royalties
may be computed in the currency of the country where earned and paid to the
Licensor in U.S. Dollars at the exchange rate as stated in the Wall Street
Journal on the last day of the applicable calendar quarter accounting period.
Licensee shall be solely responsible for all costs of any currency conversion
to
U.S. Dollars and such costs shall not reduce the amounts due to Licensor
hereunder. Licensor’s acceptance of any accounting statement or payment of
Royalties by Licensee shall not be a waiver of any of Licensor’s rights
hereunder, including, without limitation, Licensor’s rights to recover amounts
due as a result of errors in any accounting statement. Licensee shall promptly
pay all such amounts upon Licensor’s request.
10.3 Licensee
shall keep and maintain accurate books of account and records covering all
transactions relating to this Agreement. Licensor or its designee shall be
entitled to: Audit and inspect such books and records once per 12 month period
and within 3 years of Licensee’s rendering thereof, during Licensee’s normal
business hours, at its normal place of business, on normal business days
and
upon ten (10) days prior written notice to Licensee, and obtain copies and
make
its own summaries of such books and records. Licensee shall retain all such
books of account and records for a minimum of three (3) years after expiration
or termination of this Agreement and thereafter during the pendency of any
claim
by Licensee. If Licensor discovers any deficiency in any Royalties paid to
Licensor for any period under audit (an “Audit
Deficiency”),
Licensee shall promptly pay such Audit Deficiency to Licensor and, if such
Audit
Deficiency is five percent (5%) or more of the Royalties owing to Licensor
for
the applicable audit period, Licensee shall, in addition to paying the Audit
Deficiency, also reimburse Licensor for all costs and expenses incurred by
Licensor in connection with such audit. Without prejudice to any other rights
of
Licensor hereunder, time is of the essence regarding all payments due hereunder
and Licensee shall pay interest on any Audit Deficiency, as well as on all
delinquent Royalty payments hereunder, at two percent (2%) plus the “prime rate”
established by the Federal Reserve Bank in New York, compounded annually
at the
rate from time to time in effect and calculated from the date on which such
payment was due but in no event at a higher rate than allowed by law.
11. Goodwill:
Licensee
acknowledges that the Property contains substantial goodwill, and that Licensor
is the sole owner of the Property, subject to the license hereby granted
to
Licensee. Licensee acknowledges and agrees that it shall not acquire any
rights
in and to the Property after the Term, and that any goodwill generated by
Licensee’s use of the Property shall inure exclusively to the benefit of
Licensor upon expiration of the Term or earlier termination hereof. Licensee
shall not, during the Term, any extension and/or renewal thereof, or at any
time
thereafter, dispute or contest, directly or indirectly, Licensor’s ownership in
and to the Property; the validity of any of the copyrights or trademarks
pertaining thereto or Licensor’s ownership thereof, nor shall the Licensee
assist or aid others whether directly or indirectly in doing so. Licensee
shall
not adopt or seek to register or take any action to use or establish rights
in
any name, ▇▇▇▇, word (in any language), symbol, letter, or design which is
confusingly similar to the Property.
12.
Trademarks,
Copyright, Patents, and Other Intellectual Property:
Licensee
shall have the right to register trademarks and/or claims to copyright for
any
design incorporating the Property as may be reasonably necessary. Any and
all
applications for registration or claims to copyright, where applicable, shall
identify the Licensor as the copyright proprietor in the Property and all
applications to register trademarks shall identify the Licensor as the trademark
owner; and any and all trademark applications applied for in Licensee’s name in
connection with the Property shall be automatically assigned to Licensor
at the
expiration of the Term or earlier termination hereof. Licensor shall execute
all
assignments and other documents deemed necessary by Licensor to effectuate
the
foregoing and hereby grant Licensor a power of attorney to executed on
Licensee’s behalf any such assignments and other documents, which power of
attorney is coupled with an interest and irrevocable.
Licensee
agrees to promptly notify Licensor of any actual or suspected infringements
of
the Property and shall undertake to all reasonable efforts to protect and
enforce all intellectual property rights relating to the Property during
the
Term, at Licensee’s expense.
13. Termination
of Agreement:
In
the
event of any default by Licensee, hereunder Licensor shall have the right
to
terminate this Agreement upon written notice to Licensor, subject to Paragraph
10. below. The following will be defaults hereunder:
13.1 Licensee
fails to comply with the insurance provisions of this Agreement at all times
hereunder.
13.2 Licensee
fails to remit any payment due hereunder or to deliver any of the accounting
statements, and such default shall continue unremedied for a period of thirty
(30) days after written notice of such default is received by Licensee.
13.3 Licensee
is unable to pay its debts when due, or makes any assignment for the benefit
of
creditors, or files or permits to be filed any petition under the bankruptcy
or
insolvency laws of any legal jurisdiction, or shall have or suffer a receiver
or
trustee be appointed for its business or property, or be adjudicated a bankrupt
or an insolvent.
13.4 Licensee
uses of Property in a manner which violates the terms and conditions of this
Agreement; or
13.5 Subject
to any cure provisions in this Agreement, Licensee breaches any of the material
terms and conditions, agreements or covenants contained in this Agreement,
or
there is a material breach of any representation or warranty made by Licensee
in
connection with this Agreement
13.6
Licensor must give notice of any such default in writing to Licensee. After
receipt by Licensee of such written notice (except with respect to Paragraph
10.1, for which there shall be no cure period), Licensee shall have thirty
(30)
days in which to prospectively cure any such specified default. In the event
Licensee has not prospectively cured said default to Licensor’s reasonable
satisfaction within the 30 day period, then Licensor has the right at any
time
thereafter prior to cure to terminate this Agreement by written notice to
Licensee.
14. Effect
of Expiration or Termination:
14.1 Upon
the
expiration or earlier termination of this Agreement, all rights granted to
Licensee hereunder shall automatically and immediately revert to Licensor,
and
Licensee shall have no further right to exploit or in any way deal with the
Property.
14.2 Upon
expiration or earlier termination of this Agreement, all Royalty obligations
shall be accelerated and shall immediately become due and payable.
14.3 If
this
Agreement is terminated by Licensee pursuant to Paragraph 10 hereof, Licensor
shall assume all executory obligations of Licensee (which are not past due
or in
default) directly relating to Licensee’s activities in connection with the
Property.
15. Reservation
of Rights:
Any
and
all rights in and to the Property which are not expressly granted to Licensee
are hereby reserved by the Licensor. Any one or more of such reserved rights
may
be exercised or enjoyed by the Licensor, directly or indirectly, at any and
all
times.
16. Remedies:
The
parties recognize the unique and special nature and value of the use of the
Property and agree that it would be extremely difficult and impractical to
ascertain the extent of the detriment to Licensor which would be caused in
the
event of any use of the Property contrary to the terms and conditions of
this
Agreement. The parties further acknowledge that Licensor will have no adequate
remedy at law in the event Licensee uses the Property in any way not permitted
hereunder, and that Licensor shall be entitled to equitable relief by way
of
temporary and permanent injunction, and such other and further relief at
law or
in equity as any arbitrator or court of competent jurisdiction may deem just
and
proper, in addition to any and all other remedies provided for herein. All
specific remedies provided for in this Agreement shall be cumulative and
shall
not be exclusive of one another or of any other remedies available in law
or
equity. Failure of either party to insist upon strict performance of any
of the
covenants or terms hereof to be performed by the other shall not be construed
to
be a waiver of any future failure to perform any such terms or covenants.
17.
Licensee’s
Representations, Warranties, Indemnification &
Insurance:
17.1 Licensee
represents, warrants and agrees that: i) Licensee is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
California; has full corporate power and authority to conduct its business
as
now being conducted and as contemplated hereby; and holds or shall acquire
all
necessary licenses and permits from all government entities for the proper
conduct of any of its activities relating to the Property; ii) Licensee has
the
unrestricted right, power and authority to enter into this Agreement and
to
perform its obligations hereunder, and neither the execution and delivery
of
this Agreement nor the consummation of the actions contemplated hereby will
(a)
violate any provisions of its charter documents, (b) violate, conflict with
or
constitute a default under any contract to which it is a party or (c) violate
any law binding on it; iii) it will comply with all applicable laws,
regulations, ordinances and other requirements involving the use of the Property
and the conduct of Licensee’s business in connection therewith; and iv) it will
not harm, misuse or bring disrepute to the Property.
17.2 Licensee
hereby indemnifies and agrees to defend and hold harmless forever Licensor,
Licensor’s officers, employees and directors, representatives, attorneys, and
successors and assigns from and against any and all claims, demands, losses,
costs and expenses (including attorneys’ fees reasonably incurred by Licensor
and/or such other parties), damages, judgments, penalties and liabilities
of any
kind or nature (collectively, “Claims”) whatsoever, directly or indirectly
arising out of, resulting from, relating to or connected with: i) any
unauthorized use by Licensee of the Property; ii) any breach of any
representation, warranty or covenant of Licensee hereunder; iii) any claims
from
any third party relating to Licensee’s activities relating to the Property,
including, without limitation, any defect in or use by any person or entity
of
any product encompassing the Property, any defamation by Licensee or invasion
of
the right of privacy, publicity or other personal or property right; and
any
claims or suits for violation of a third party’s intellectual property rights,
including, but not limited to, copyright, trademark, trade dress, patent,
method
or design rights. Licensee shall promptly upon receipt of notice of any such
claim defend such claim at Licensee’s sole cost and expense. Licensor, at its
option, may engage counsel and join in the defense of such claim at Licensee’s
sole cost and expense.
17.3
Licensee
will obtain and maintain, at its sole cost and expense, during the Term,
and
product and general liability insurance, from a qualified insurance carrier
(including, without limitation, bodily injury coverage, personal injury,
property damage, and casualty loss equivalent to Five Million Dollars (US
$5,000,000) per occurrence, naming Licensor, its officers, directors and
employers and shareholders as additional named insured under said policies,
with
a deductible of not more than $10,000 (certificate of which shall be furnished
to Licensor). Such insurance policies shall provide that they may not be
cancelled or materially modified without at least fifteen (15) business days
written notice to Licensor. Such policies shall contain endorsements that
negate
the “other insurance” clause in the policies and a statement that the insurance
provided is primary and that any similar insurance carried by Licensor is
neither primary nor contributing.
18.
Licensor’s
Representations and Warranties:
18.1 Licensor
represents and warrants that it: i) is the owner of all rights licensed
hereunder and it has not granted, assigned or licensed any rights in the
Property to any third party; ii) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
and iii) to the best of Licensor’s knowledge, as of the date hereof, there are
no adverse claims against the Property; and iv) has the unrestricted right,
power and authority to enter into this Agreement and to perform its obligations
hereunder; and vi) neither the execution and delivery of this Agreement nor
the
consummation of the actions contemplated hereby will: (a) violate any provisions
of its charter documents, (b) violate, conflict with or constitute a default
under any contract to which it is a party or (c) violate any law binding
on
it.
18.2
Licensor
hereby indemnifies and agrees to defend and hold harmless Licensee, their
officers, employees and directors from and against any and all claims, demands,
losses, costs and expenses (including attorneys’ fees reasonably incurred by
Licensee), damages, judgments, penalties and liabilities of any kind or nature
whatsoever arising out of, resulting from any breach of any representation,
warranty or covenant of Licensor hereunder.
18.3 Should
any third party assert a claim, demand, or cause of action against Licensee
and/or Licensor contesting Licensor’s ownership in and to the Property under
this Agreement, Licensor shall have the right at its option, but not the
obligation, to undertake and conduct the defense of any such claim, demand
or
cause of action. Licensee may, but shall not be obligated to join in such
defense and be represented by its own counsel, at its own expense. Licensee
and
Licensor shall discuss in good faith and mutually make any decision concerning
the disposition of any claim, demand or cause of action which involves the
Property.
19. Relationship:
This
Agreement does not constitute and shall not be construed as constituting
a
partnership, agency, or joint venture between Licensor and Licensee. Licensee
shall have no right to obligate or bind Licensor in any manner whatsoever
and
nothing herein contained shall give or is intended to give any right of any
kind
to any third party.
20. No
Assignment:
The
license hereby granted is and shall be personal to the Licensee and shall
not be
assignable by any action of the Licensee or by operation of law, and any
attempt
at such assignment shall be null and void. Notwithstanding the foregoing,
Licensee may engage and/or grant sub-licenses to third parties approved by
Licensor for periods not exceeding the Term in connection with Licensee’s
activities concerning the exploitation of the Property. This Agreement shall
inure to the benefit of and shall be binding upon Licensor’s successors and
assigns.
21.
Distribution
of Shares of Licensee:
If
the
Licensee is subject to a spin-off, dividend distribution, IPO, reverse merger,
or any other distribution from Orbit Brands Corporation, the Licensor will
receive 40% of the newly formed entity and Orbit Brands Corporation shareholders
will receive 40% of the newly formed entity. These distributions are both
subject to dilution resulting from any convertible debt financing that remains
outstanding at the time of distribution or any other capital raise necessary
to
finance the business of the Licensee.
22. Notice:
Whenever
notice is required to be given under this Agreement, it shall be deemed to
be
good and sufficient notice if in writing, signed by an officer or an authorized
agent of the party serving such notice and sent by telegram, telefax, or
mailed
by registered or certified mail, or personal delivery or overnight air to
the
other party at the address stated above unless notification of a change of
address is given in writing. Notice shall be deemed given as of the dates
such
notice is given to the following:
| Licensor: |
Licensee:
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BBKO,
LLC
▇▇▇▇▇▇
▇▇▇▇▇▇ et al
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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BBKO,
Inc. f/k/a/ Malibu Beach Mixers Company (“Licensee”)
C/O
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
and CEO
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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23. Entire
Agreement
This
Agreement contains the entire understanding of the parties. There are no
representations, warranties, promises, covenants or understandings, oral
or
otherwise, other than those herein contained. For the avoidance of doubt,
Licensor makes no representation or warranty concerning the amount of revenue,
if any, that Licensee will realize from the commercial exploitation of the
Property or this license.
24.
Confidentiality
This
Agreement constitutes a confidential business relationship between the Parties.
Both Parties agree that they will not reveal the terms of this Agreement
to any
third party (excluding agents, attorneys, representatives, and others with
whom
they have a legal obligation to disclose) without the approval of the other.
However, Licensee shall be permitted to disclose (i) the existence of the
Agreement, the parties, a general description of the Agreement in connection
with its disclosure obligations as a publicly reporting entity and (ii) any
other terms which it is required by law or securities commission or stock
exchange rule to disclose.
25.
Permits/Licenses:
Notwithstanding
any rights granted by Licensor herein with respect to the Property, Licensee
shall be solely responsible for obtaining all licenses, permits, consents
and
permissions necessary in connection with the activities contemplated hereby
including, without limitation, all necessary licenses and permits from state
boxing commissions and other regulatory authorities relating to promoting
and
managing boxers or the staging of boxing matches. Licensor has made no
representations that it has acquired any such permits or licenses.
26.
No
Modification; Waiver:
The
terms
of this Agreement shall not be modified except by an agreement in writing
signed
by both parties hereto. No waiver by either party of a breach or default
hereunder shall be deemed waiver by such Party of a subsequent breach or
default
of a like or similar nature.
27.
Governing
Law:
This
Agreement, its validity, construction and effect, shall be governed and
construed in accordance with the laws of the State of California, without
reference to its conflicts of laws principles.
28.
Counterparts:
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be
one and
the same Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above
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BBKO,
LLC
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MALIBU
MIXERS COMPANY
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| Title: | Title: | |||
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