LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made this First day of December, 1997, by and
between ▇. ▇. ▇▇▇▇, INC., a Pennsylvania Corporation, with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "LICENSOR"), and
RETROSPETTIVA, INC., a California Corporation, with its principal place of
business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter
referred to as "LICENSEE").
BACKGROUND
LICENSOR is the owner of the trademarks, set forth in Exhibit A attached
hereto and made a part hereof (hereinafter collectively referred to as the
"Trademarks"). The parties desire that LICENSOR grant to LICENSEE a license
to use the Trademarks in the design, manufacture, advertising and sale of
▇▇▇▇ ▇▇▇▇▇▇▇ by ▇. ▇. ▇▇▇▇ classic related separates, more specifically
designated hereinafter.
1
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto, intending to be legally bound, agree as follows:
1. GRANT OF LICENSE AND DESIGNATION OF LICENSED PRODUCTS. LICENSOR agrees to
and does hereby grant to LICENSEE for the period and upon the terms and
conditions hereinafter set forth, the exclusive right and license to use the
Trademarks within the geographic area described in Paragraph 3 hereof, in the
design, manufacture, advertising and sale of ▇▇▇▇ ▇▇▇▇▇▇▇ by ▇. ▇. ▇▇▇▇
classic related separates, to include lined sports jackets, skirts, pants,
shorts and layering pieces, to specifically not include collection or
classification merchandise (hereinafter referred to as the "Products"). As
used herein, the term "Licensed Products" means all Products sold or shipped
by LICENSEE which bear the Trademarks. In the event any questions arise
regarding the classification of Products which LICENSEE may wish to produce as
Licensed Products, the decision of LICENSOR shall be final and binding. The
rights granted to LICENSEE herein are limited to use of the Trademarks on or
in connection with the Licensed Products and LICENSEE specifically agrees not
to use the Trademarks or consent to their use in any manner on any other
product or items. LICENSOR reserves all rights to the Trademarks except to
the extent specifically granted to LICENSEE herein.
2
2. TERM. The Agreement shall be for a term commencing on January 1, 1998
and continuing for a period of three years and six months, terminating on
June 30, 2001. The First Year shall consist of the eighteen-month period
from January 1, 1998 to June 30, 1999, the Second Year shall be the one-year
period from July 1, 1999 to June 30, 2000, and the Third Year shall be the
one-year period from July 1, 2000 to June 30, 2001. LICENSEE shall have one
three-year option to renew this Agreement, provided LICENSEE is not in
default of any of the provisions hereof at the time of exercise of this
option, and provided it gives LICENSOR written notice of its intention to so
renew at least one hundred twenty (120) days prior to the end of the then
current term; and, in addition, provided that it has achieved net sales in
the amount of Five Million Five Dollars ($5,000,000) during the Third Year of
the initial three-year term of this Agreement. The Renewal Option Period
shall be the period from July 1, 2001 to June 30, 2004.
3. GEOGRAPHIC AREA. The rights granted to LICENSEE hereunder shall be
exercised by LICENSEE solely within the United States of America, its
territories and possessions, and Canada and Mexico (hereinafter referred to
as the "Geographic Area"), and shall be exclusive therein with respect to the
Licensed Products.
4. ROYALTIES. LICENSEE agrees to pay royalties for the use of the
Trademarks as follows:
3
A. MINIMUM GUARANTEED ROYALTY - LICENSEE agrees to pay LICENSOR a
Minimum Guaranteed Royalty of $130,000 during the First Year of the License
Agreement, $170,000 during the Second Year of the License Agreement and
$210,000 during the Third Year of the License Agreement. The Minimum
Guaranteed Royalty for each year of the Renewal Option Period, should
LICENSEE exercise said Option, shall be $210,000. Minimum Guaranteed
Royalties are payable as follows:
1) The sum of $26,000 upon execution, receipt whereof is hereby
acknowledged.
2) The balance of $104,000 for the First Year's Minimum Guaranteed
Royalty shall be paid in twelve equal installments of $8,666.66 each, on July
1, 1998, August 1, 1998, September 1, 1998, October 1, 1998, November 1,
1998, December 1, 1998, January 1, 1999, February 1, 1999, March 1, 1999,
April 1, 1999, May 1, 1999 and June 1, 1999.
3) The sum of $170,000 for the Second Year's Minimum Guaranteed
Royalty shall be paid in twelve equal installments of $14,166.66 each, on
July 1, 1999, August 1, 1999, September 1, 1999, October l, l999, November l,
l999, December 1, 1999, January l, 2000, February 1, 2000, March 1, 2000,
April 1, 2000, May 1, 2000 and June 1, 2000.
4) The sum of $210,000 for the Third Year's Minimum Guaranteed
Royalty shall be paid in twelve equal installments of $17,500 each, on July
1, 2000, August 1, 2000,
4
September 1, 2000, October 1, 2000, November 1, 2000, December 1, 2000,
January 1, 2001, February 1, 2001, March 1, 2001, April 1, 2001, May 1, 2001
and June 1, 2001.
5) The sum of $210,000 for the Minimum Guaranteed Royalty for each
year of the three-year Renewal option Period shall be paid yearly in twelve
equal installments of $17,500 on July 1, August 1, September 1, October 1,
November 1, December 1, January 1, February 1, March 1, April l, May l and
June l.
B. OPERATINA ROVALTIES - LICENSEE agrees to pay to LICENSOR operating
royalties equal to four and one-half percent (4-l/2%) of the first Two
Millions Dollars ($2l,000,000) of Net Shipments of Licensed Products sold by
LICENSEE pursuant to this Agreement during any calendar year hereof, and four
percent (4%) of the excess of Net Shipments of Licensed Products over Two
Million Dollars ($2,000,000) sold by LICENSEE pursuant to this Agreement
during any calendar year hereof. With respect to Licensed Products which are
sold by LICENSEE as either irregular, seconds or discontinued styles, the
operating royalty applicable to such Licensed Products shall be equal to
one-half of the percentage ascribed above to operating royalties on Net
Shipments of regular Licensed Products; such sales, however, shall not exceed
ten percent (10%) of total Net Shipments during any yearly period hereof. As
used herein, yearly period shall mean, for the First Year of this agreement,
the eighteen-month period from January 1, 1998 to June 30, 1999, and for all
other years shall
5
mean the 12 month period from July 1 to June 30. Minimum Guaranteed
Royalties remitted by LICENSEE shall be credited and offset against operating
royalties first coming due hereunder. Should the operating royalties be less
than the Minimum Guaranteed Royalty hereunder, the latter shall be
non-refundable and nevertheless remain the property of LICENSOR. Operating
royalties due to LICENSOR shall be paid by LICENSEE concurrently with
delivery of the periodic reports required by Paragraph 5 hereof. In the
event LICENSEE shall fail to pay any sum required to be paid hereunder
(Minimum Guaranteed Royalties or operating royalties) within ten (10) days
after the due date thereof, the amount owing shall thereupon bear interest at
the then current Prime rate plus two and one-half percent (2.5%) per annum
until paid, and LICENSOR shall have the right to invoke the provisions of
Paragraph 15 hereof.
C. DEFINITION OF "NET SHIPMENTS" - As used herein, the term "Net
Shipments" shall mean the invoice price charged by LICENSEE for Licensed
Products sold and shipped by LICENSEE less trade discounts afforded to and
actually taken by customers as payment for Licensed Products. If LICENSEE
sells the Licensed Products to a related marketing organization or any
individual or company in whole or in part controlled or owned by LICENSEE,
the invoice price used to determine Net Shipments hereunder shall be the
invoice price at which the Licensed Products are resold by
6
such related entity to an unrelated customer in an arm's length transaction.
5. LICENSEE'S MONTHLY REPORTS OF SHIPMENTS AND ROYALTY PAYMENTS. On
or before the fifteenth day of each month following the end of each monthly
period during the term hereof, LICENSEE shall deliver to LICENSOR a written
statement certified to be true and correct by the Chief Financial Officer of
LICENSEE, setting forth the gross and Net Shipments of Licensed Products
(broken down by gross and Net Shipments for each separate category (item) of
Licensed Products as set forth in Paragraph 1 hereof) for the preceding
month, together with a check payable to LICENSOR in full payment of the
royalties shown on said statement to be due under Paragraph 4 hereof
accompanied by a statement of invoices by customer showing the date, invoice
number, dollar amount of sale and salesman's name. In addition, LICENSEE
will simultaneously report the open, undelivered orders as of the close of
the preceding month.
6. LICENSEE'S ANNUAL REPORTS. Within ninety (90) days of the end of
each of LICENSEE's fiscal year's ending during the term of this Agreement
(LICENSEE hereby certifies that its fiscal year ends December 31), and within
ninety (90) days of the termination of this Agreement, LICENSEE shall deliver
to LICENSOR a report prepared by the certified public accounting firm then
servicing LICENSEE, showing gross shipments, Net Shipments (broken down as
set forth above), royalties due, and royalties
7
paid for LICENSEE's preceding fiscal year or, in the case of termination of
this Agreement, such information for the period ending at termination.
7. LICENSEE'S RECORDS. LICENSEE shall keep and maintain at its
regular place of business complete books and records of all business
transacted by LICENSEE in connection with the Licensed Products, including,
but not limited to, books and records relating to Net Shipments and sales of
Licensed Products. LICENSEE's accounting records of sales, shipments and
returns of Licensed Products shall be maintained separately from LICENSEE's
accounting records relating to other items manufactured or sold by LICENSEE.
Such books and records shall be maintained in accordance with generally
accepted accounting procedures and principles consistently applied.
LICENSOR, or its duly authorized agents or representatives, shall have the
right to inspect said books and records at LICENSEE's premises during
LICENSEE's regular business hours, provided that LICENSOR shall give to
LICENSEE at least ten (10) days advance written notice thereof.
8. AUDIT BY LICENSOR. LICENSOR, upon giving to LICENSEE at least ten
(10) days advance written notice of its intention to do so, shall have the
right to audit all books and records which LICENSEE is required to maintain
pursuant to Paragraph 7 hereof, and in the event any such audit shall
disclose the LICENSEE has understated Net Shipments or underpaid royalties
for any
8
reporting period, LICENSEE shall forthwith and upon written demand pay to
LICENSOR the amount by which the royalties due exceed royalties paid,
together with interest thereon, at the then current Prime rate plus two and
one-half percent (2.5%) per annum calculated from the due date of such
royalties. In the event that LICENSEE has understated Net Shipments or
underpaid royalties in excess of five percent (5%) of said Net Shipments for
any payment period, LICENSEE shall forthwith and upon written demand, also
pay to LICENSOR all costs, fees and expenses incurred by LICENSOR in
conducting such audit, and LICENSOR shall have the right to terminate this
Agreement, immediately. Should such audit disclose that the royalties paid
exceed the royalties due, LICENSEE shall be entitled to a credit equal to
such excess royalties against the royalties next accruing under this
Agreement.
9. BEST EFFORTS OF LICENSEE. LICENSEE shall use its best efforts and
skill to design, manufacture, advertise, sell and ship the Licensed Products
and shall continuously and diligently during the term hereof produce an
inventory of Licensed Products and produce and maintain facilities and
trained personnel sufficient and adequate to accomplish the foregoing. Upon
cessation of any of the above for a continuous period of ninety (90) days,
LICENSOR shall have the right to terminate this Agreement, immediately.
9
10. APPROVALS. LICENSEE shall not sell any Licensed Products using any
advertising or promotional material or packaging material bearing the
Trademarks, or using LICENSOR's name without the Trademarks, without prior
approval of LICENSOR.
LICENSEE shall furnish to LICENSOR, without cost, the following:
A. Photographs and/or design sketches of the proposed styling of
each item of Licensed Products;
B. At least one (1) sample, randomly selected, of finished
production models of each such item at least thirty (30) days before Licensed
Products will be marketed for LICENSOR's approval as to styling, material and
manufacturing quality;
C. Samples of all packaging materials, labels, tags, hang tags
and other indicia to be used on or in connection with the item;
D. All advertising and promotional items, programs and materials
relating to the Licensed Products at least fourteen (14) days prior to media
deadlines.
The foregoing provisions in this Paragraph 10 shall also apply to any
changes in any Licensed Products, advertising or promotional material or
packaging material bearing the Trademarks.
LICENSOR shall have the right to disapprove the use by LICENSEE of any
of the above which, in LICENSOR's opinion, do not meet LICENSOR's standards,
but failure of LICENSOR to notify LICENSEE of such disapproval within
fourteen (14) days after
10
receipt of the items required to be submitted hereunder shall constitute
LICENSOR's approval. In addition thereto, prior to submission of samples
pursuant to Subparagraph B hereof, LICENSEE shall conduct its normal tests
and verification procedures on each sample to assure that the quality of
Licensed Products is at least equal to the quality of similar non-licensed
items manufactured by LICENSEE and sold at retail at comparable prices,
including but not limited to, tests and procedures relating to color
fastness, maximum shrinkage, burst strength, curing and the like.
If, at any time, LICENSOR is of the opinion that LICENSEE is not
properly using the Trademarks on the Licensed Products on labels, tags, hang
tags, packaging, or in advertising, or that the standard of quality of any
item of the Licensed Products does not conform to the standards set by
LICENSOR or is not of a quality at least equal to similar, non-licensed
products manufactured by LICENSEE, LICENSOR may give LICENSEE written notice
to this effect, identifying in such notice the situation to which it objects.
LICENSEE shall have thirty (30) days after receipt of such notice to
correct, to LICENSOR's satisfaction, the situation or situations to which
LICENSOR has objected, and failing which, LICENSOR may terminate this
Agreement forthwith, and LICENSEE shall immediately discontinue use of the
Trademarks and shall not thereafter adopt any conflicting or confusing
11
similar ▇▇▇▇ or symbol for use on the class of goods to which this license
relates.
ll. ADVERTISING REOUIREMENTS. LICENSEE agrees to establish an
advertising budget in the amount they deem proper for consumer and trade
advertising, fixturing, packaging, catalogues, brochures and related
materials for the sale and promotion of the Licensed Products.
12. PROHIBITIONS OF ASSIGNMENTS OR TRANSFERS. LICENSEE shall not
voluntarily or by operation of law assign or transfer this Agreement or any
of LICENSEE's rights or duties hereunder or any interest of LICENSEE without
the written consent of LICENSOR, except to a wholly-owned subsidiary or an
affiliated corporation, nor shall LICENSEE enter into any sublicense of the
use of the Trademarks by any third party. Should LICENSOR permit such an
assignment or should such assignment be to a wholly-owned subsidiary or an
affiliated corporation, LICENSEE shall continue, nevertheless, to remain
liable for the performance of this Agreement. Should LICENSEE sell its stock
or a majority thereof, or its assets or a substantial part thereof, to a
third party, this license shall terminate unless LICENSOR gives its written
consent to the said sale. It is understood that despite the fact that
LICENSOR and LICENSEE are corporations, this License Agreement is a highly
personal document, closely associated with the individuals employed by the
corporations who run the said programs. Should LICENSOR fail to give its
written consent to a
12
sale, as described above, this License Agreement shall terminate immediately
pursuant to the termination provisions contained herein, and LICENSOR shall,
upon such termination, be free, thereupon, to license the rights granted
herein to any other person, firm or corporation, without any further
obligations to LICENSEE or its buyer or buyers.
13. PRESERVATION OF TRADEMARKS AND CHANGES IN OR IMPROVEMENTS TO
LICENSED PRODUCTS. LICENSEE shall cause to appear on all Licensed Products
and on all materials on or in connection with which the Trademarks are used,
such legends, markings and notices as may be required by the laws governing
the Geographic Area in order to give appropriate notice of any trademark
rights therein or pertaining thereto.
LICENSEE shall not use or permit the use of the Trademarks on or in
connection with any product or service, other than the Licensed Products
which are manufactured or sold by or for LICENSEE. No Licensed Products
shall be sold without a Trademark affixed to it, or on the package or label.
Any permutation of the Trademarks and any secondary rights adopted and
used by LICENSEE on the Licensed Products, except trademarks already
registered by LICENSEE, shall be and become the property of LICENSOR and
shall be included as a Trademark subject to this Agreement. Any change or
improvement in the Licensed Product, initiated by LICENSEE or anyone on its
behalf,
13
shall likewise become the property of LICENSOR and shall be included under
the Trademark subject to this Agreement.
14. INFRINGEMENT AND OTHER TRADEMARK LITIGATION. LICENSOR hereby
indemnifies LICENSEE (including its officers and directors) and shall defend
it against any claims or suits and hold it harmless against any damages
awarded by judgment of a court of competent jurisdiction arising out of or in
connection with any claims of Trademark infringement asserted against
LICENSEE by third parties relating to LICENSEE's use of the Trademarks as
authorized by this Agreement, provided that LICENSEE shall give reasonably
prompt notice, cooperation and assistance, other than financial assistance,
to LICENSOR relative to any claim or suit, and further provided that LICENSOR
shall have the option to undertake the conduct and defense of any suit so
brought. Notwithstanding the foregoing, LICENSOR's liability to LICENSEE is
restricted to the total of royalties actually paid LICENSOR.
LICENSEE shall give written notice to LICENSOR as soon as practicable of
any infringement of the Trademarks which comes to the attention of LICENSEE.
LICENSOR, at its sole cost and expense and in its own name and at its sole
discretion, may prosecute any action or proceeding which LICENSOR deems
necessary or desirable to protect the Trademarks, including, but not limited
to, actions or proceedings involving infringement of the Trademarks.
LICENSEE may, and upon written request by LICENSOR
14
shall, join LICENSOR in any such action or proceeding.
LICENSEE shall not commence any action or proceeding alleging
infringement of the Trademarks without prior written consent of LICENSOR.
Any and all damages recovered in any action or proceeding commenced by
LICENSOR shall belong solely and exclusively to LICENSOR.
15. DEFAULT BY LICENSEE.
A. LICENSEE shall default under this Agreement if:
1. LICENSEE fails to make payment of any amount due
hereunder and such payment has not been received by LICENSOR within ten (10)
days after written notice to LICENSEE, or
2. LICENSEE fails to perform pursuant to this Agreement and
such failure does not involve the payment of money and LICENSEE shall not
commence curing the same within ten (10) days after written notice to
LICENSEE, or if such default is not thereafter completely cured within thirty
(30) days thereof, or
3. A Receiver is appointed or one or more creditors takes
possession of all or substantially all of the assets of the LICENSEE, or if
LICENSEE shall make a general assignment for the benefit of creditors, or if
LICENSEE resolves to go into voluntary liquidation or if proceedings in
voluntary or involuntary bankruptcy are commenced by or against LICENSEE.
B. In the event of a default by LICENSEE, LICENSOR may at its
option, immediately or at any time thereafter cancel and terminate this
Agreement. In such event, LICENSEE shall not
15
be relieved of any of its obligations which have accrued or will accrue
hereunder and LICENSOR shall retain all of its right to damages therefor in
law or in equity, including but not limited to loss of profits during the
unexpired portion of this Agreement. In addition, all monies due or to
become due as Minimum Guaranteed Royalties hereunder shall become immediately
due and payable.
16. DISPOSAL OF INVENTORY UPON TERMINATION OR EXPIRATION. Upon
expiration or sooner termination of this Agreement (unless sooner termination
takes place because of LICENSEE's default hereunder), LICENSEE shall have the
right to dispose (in a manner consistent with its prior methods of selling
the Licensed Products during the term hereof) of all Licensed Products on
hand, on order, or in the process of manufacture on the effective date of
such expiration or termination for the period of ninety (90) days following
the date of expiration or termination hereof. Within thirty (30) days
following the effective date of expiration or termination hereof, LICENSEE
shall provide LICENSOR with a written statement indicating the number and
description of Licensed Products on hand, on order, or in process of
manufacture as of the effective date of expiration or termination, and
LICENSOR shall have the right to conduct a physical inventory to verify such
statement. In the event LICENSEE refuses to permit LICENSOR to conduct such
physical inventory or fails to deliver such written statement, the LICENSEE
shall forfeit its rights
16
hereunder to dispose of Licensed Products following the date of expiration or
termination. With respect to all Licensed Products sold pursuant to this
Paragraph 16, LICENSEE shall pay LICENSOR an operating royalty as provided in
Paragraph 4B above, but not a Minimum Guaranteed Royalty. Such operating
royalties shall be payable within sixty (60) days following the end of the
aforesaid ninety (90) day period. Should termination or cancellation occur
because of LICENSEE's default hereunder, LICENSEE shall have only thirty (30)
days from the date of termination to dispose of its inventory.
17. ADDITIONAL RIGHTS UPON TERMINATION.
A. During the final twelve (12) months of the term hereof,
LICENSOR shall have the right to negotiate and conclude such agreements as it
desires, pursuant to which it shall grant a license to any party or parties
of any or all of the rights herein granted to LICENSEE, except that no
merchandise herein identified as Licensed Products shall be advertised or
sold by LICENSOR or any third party other than LICENSEE prior to the
expiration or termination of this Agreement.
B. Upon the expiration of the license granted hereunder or the
earlier termination thereof (unless earlier termination occurs because of
LICENSEE's default hereunder), the license shall revert to LICENSOR and
LICENSEE thereafter shall not use or refer to the Trademarks and LICENSOR
shall be free to
17
license others to use the Trademarks in connection with the Licensed Products
in the Geographic Area.
18. GOODWILL. LICENSEE acknowledges that the Trademarks have acquired
a valuable secondary meaning and goodwill with the public. Accordingly,
LICENSEE undertakes and agrees not to use the Trademarks in any manner
whatsoever which, directly or indirectly, would derogate or detract from its
repute and to use its best efforts to insure and uphold LICENSOR's excellent
image and its trademarks in the marketplace. Except as may be otherwise
specified in this Agreement, LICENSEE shall not use the Trademarks herein
licensed or any name confusingly similar thereto as part of its company name
or as part of the name of any company or corporate name of any corporation
which it controls or with which it is affiliated. LICENSEE will not attack
LICENSOR's right or title in and to the Trademarks and hereby acknowledges
LICENSOR'S ownership of the Trademarks.
19. INDEMNIFICATION. LICENSEE hereby agrees to pay on behalf of
LICENSOR, its officers and directors, and to defend it and them (and to pay
all counsel fees necessary to do so) against any and all claims or suits and
hold it and them harmless against any and all claims, suits, liabilities,
causes of action, damages or expenses arising out of any unauthorized use by
LICENSEE of the Trademarks, and from any and all claims or suits,
liabilities, causes of action, damages or expenses which are the sole fault
of LICENSEE and which arise out of the manufacture,
18
use, advertising or sale by LICENSEE of the Licensed Products, other than
claims of trademark infringement, as referred to in Paragraph 14 hereof,
including, but not limited to, actions or subrogations brought by employees,
agents, trustees, insurance companies or others, acting with or on behalf of
LICENSEE.
LICENSEE agrees to carry (1) worldwide product liability insurance with
respect to the Licensed Products with a limit of liability of Two Million
Dollars (S2,000,000) and (2) bodily injury and property damage liability
insurance (including contractual liability) with respect to the Licensed
Products with a limit of liability of Two Million Dollars ($2,000,000). In
addition, (3) LICENSEE agrees to provide business interruption insurance for
the benefit of LICENSOR, with limits equal at least to the anticipated annual
royalties payable to LICENSOR by LICENSEE during the first effective year of
this Agreement, such projection to be made by LICENSEE. Thereafter, for each
year of this Agreement, the projection of such royalties shall be made
annually by LICENSEE, approved by LICENSOR, and shall govern the business
interruption insurance coverage. Business interruption insurance coverage
will be provided on a "valued" basis (i.e. no coinsurance and no need for
calculation after loss) and will be "all risk". LICENSOR shall be named in
each such insurance policy as additional insured as its interest may appear.
Such insurance may be obtained in conjunction with a policy or policies of
insurance which cover products other than the
19
Licensed Products, and shall provide at least thirty (30) days prior written
notice to LICENSOR of the cancellation, non-renewal or substantial
modification thereof. LICENSEE shall deliver to LICENSOR a certificate
evidencing the existence of such insurance policies promptly after the
execution of this Agreement, the insurance companies to be acceptable to
LICENSOR.
20. ATTORNEY'S FEES. SITUS OF ACTION. APPLICABLE LAW. In the event
LICENSOR or LICENSEE shall commence any action or proceeding against the
other by reason of any breach or claimed breach of the performance of any of
the terms or conditions of this Agreement, or seek a declaration of rights
hereunder, the prevailing party in such action or proceeding against the
other by reason of any breach or claimed breach of the performance of any of
the terms or conditions of this Agreement, or in seeking a declaration of
rights hereunder, the prevailing party in such action or proceeding shall be
entitled to reasonable attorney's fees to be fixed by the trial court. Any
legal action or proceeding of any sort against LICENSOR by or on behalf of
LICENSEE shall be brought in a court of competent jurisdiction in
Philadelphia County, Pennsylvania. In any legal action or proceeding brought
in which any rights or obligations arising from this Agreement is an issue,
the law applicable thereto shall be the law of the Commonwealth of
Pennsylvania.
21. NON-AGENCY OF PARTIES. This Agreement does not constitute
LICENSEE as the agent or legal representative of
20
LICENSOR or LICENSOR as the agent or legal representative of LICENSEE for any
purpose whatsoever. LICENSEE is not granted any rights or authority to
assume or to create any obligation or responsibility, express or implied, on
behalf of or in the name of LICENSOR or to bind LICENSOR in any manner or
thing whatsoever; nor is LICENSOR granted any right or authority to assume or
create any obligation or responsibility, express or implied, on behalf of or
in the name of LICENSEE or to bind LICENSEE in any manner or thing
whatsoever. No joint venture or partnership between LICENSOR and LICENSEE is
intended or shall be inferred.
22. SPECIFIC UNDERTAKINGS OF LICENSEE. During the term of this
Agreement, LICENSEE agrees that:
A. It will manufacture, sell and distribute the Licensed Products
in an ethical manner and in accordance with the terms and intent of this
Agreement.
B. It will protect, to the best of its ability, its right to
manufacture, sell and distribute the Licensed Products.
C. It will not directly or indirectly knowingly distribute
Licensed Products outside of the Geographic Area, nor shall it sell Licensed
Products to any customers whom LICENSEE knows or has reason to believe will
resell Licensed Products outside of the Geographic Area.
D. It acknowledges that the Trademarks are the property of the
LICENSOR and that all use of the Trademarks and
21
goodwill created thereby by LICENSEE shall inure to the benefit of LICENSOR.
LICENSEE shall render reasonable assistance, other than financial assistance,
to LICENSOR which may be required by LICENSOR to enforce and preserve the
Trademarks.
E. No brokers and finders were involved in connection with this
Agreement.
F. LICENSOR reserves all rights to use the Trademarks except to
the extent of the rights granted to the Trademarks by LICENSOR to LICENSEE
hereunder.
G. If LICENSEE obtains any copyrights with respect to labels
and/or packaging materials used in connection with the Licensed Products,
such copyrights shall be obtained in the name of LICENSOR and shall revert to
LICENSOR at the expiration or earlier termination of this Agreement.
H. It will not, during the term of this Agreement, or any renewal
thereof, handle, ship, manufacture, sell or distribute any product which will
be a competing licensed product or licensed designer name in LICENSOR's
quality level or in its present distribution channels.
23. ADDRESSES FOR NOTICE. All notices between the LICENSOR and
LICENSEE shall be in writing by certified mail, return receipt requested,
addressed to LICENSEE or LICENSOR, at the respective addresses set forth
below, and shall be effective upon receipt:
22
LICENSOR: ▇. ▇. ▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇
LICENSEE: RETROSPETTIVA, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Boro Vukadinovic, President
If any of the parties hereto shall, during the currency of this
Agreement, change address, then upon giving written notice to the other party
of the new address, the new address shall be the address for notice.
24. WAIVER OF LICENSOR. In the event LICENSOR shall at any time waive
any of its rights under this Agreement or the performance by LICENSEE of any
of its obligations hereunder, such waiver shall not be construed as a
continuing waiver of the same rights or obligations or a waiver of any other
rights or obligations.
25. INTEGRATED AGREEMENT. This Agreement constitutes the entire
agreement between the parties as to the Licensed Products, there are no other
understandings between the parties, oral or otherwise, nor any
representations made by either party to the other prior to this Agreement,
and no modifications or revisions hereof shall be of any force or effect
unless the same are in writing and executed by the parties hereto.
26. SEPARABILITY OF PROVISIONS AND TITLES. Any provisions of this
Agreement which shall be or be determined to be invalid
23
shall be ineffective, but such invalidity shall not affect the remaining
provisions hereof. The titles to the paragraphs hereof are for convenience
only and have no substantive effect.
27. BINDING UPON SUCCESSORS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors. This Paragraph 27 shall not be construed to alter or modify the
prohibitions upon assignments or transfers by LICENSEE expressed elsewhere in
this Agreement.
28. FAILURE TO SHIP CERTAIN ITEMS. All of the various categories
(items) set forth in Paragraph 1 hereof as Licensed Products must be
designed, manufactured and sold by LICENSEE no later than one year after the
execution of this Agreement. Failure of LICENSEE to ship any category (item)
as aforesaid within one year after the execution hereof, shall cause the said
unshipped item or items, as the case may be, to be deleted from the category
of a Licensed Product hereunder, and LICENSOR shall be free then to license
said item to any third party, free and clear of any restrictions in this
Agreement.
▇. ▇. ▇▇▇▇, INC.
(Corporate Seal) By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, Pres.
---------------------------------
RETROSPETTIVA, INC.
(Corporate Seal) By: /s/ Ineligible
---------------------------------
24
EXHIBIT A
▇▇▇▇ ▇▇▇▇▇▇▇ AND DESIGN
Registered U.S. Patent
[LOGO] and Trademark Office,
Issued January 12, 1982,
Reg. No. 1,185,893.
Registered U.S. Patent
[LOGO] and Trademark Office,
Issued April 3, 1990,
Reg. No. 1,590,011
NOTE: The name "▇. ▇. ▇▇▇▇"
must not be more than 1/5th
of the size of "▇▇▇▇ ▇▇▇▇▇▇▇"