CONFIDENTIAL TREATMENT
The registrant is requesting
confidential treatment of certain
financial and commercial information in
Section 3(b) and Section 24 of this
License Agreement. The non-public
information contained in Section 3(b)
and Section 24 has been filed with the
Securities and Exchange Commission.
LICENSE
LICENSE AGREEMENT ("Agreement") made as of November 4, 2004, by and
between The Knockout Group, Inc. ("Licensee") and XXXXXX XXXXXXX ("Licensor").
The parties hereto agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms shall
have the following respective meanings:
a. "Property": The name "Xxxxxx Xxxxxxx" and Licensor's
approved likeness and signature.
b. "Licensed Products": Consumer cleaning products approved in
all respects by Licensor (including, without limitation, the preparation,
packaging, supply and marketing) in writing in advance in his sole discretion,
including those items approved by Licensor as of the date of this Agreement as
listed on Schedule A hereto. It is currently intended that the following
Licensed Products will be the first two (2) Licensed Products manufactured:
"Xxxxxx Xxxxxxx'x Knockout Waterless Car Cleaner" ("Car Cleaner"); and "Xxxxxx
Xxxxxxx'x Knockout Carpet and Upholstery Cleaner" ("Upholstery Cleaner"). Other
Licensed Products may be manufactured subject to the provisions of this
Agreement.
c. "Territory": World.
d. "Term": Eight (8) years from the date hereof unless earlier
terminated pursuant to Paragraph 3(c) or Paragraph 10 hereof or extended by
mutual written consent of both parties at any time prior to the end of such
eight-year period, subject to their agreement upon appropriate financial terms.
2. GRANT OF LICENSE.
a. Upon the terms and conditions set forth in this Agreement,
Licensor hereby grants to Licensee and Licensee hereby accepts for the Term of
this Agreement, a license to use the Property solely on or in connection with
the manufacture, distribution, sale, promotion and marketing of the Licensed
Products as specified above for the ultimate retail sale to the public
throughout the Territory.. Such license shall be exclusive, except as otherwise
provided in this Agreement, including, without limitation, in Paragraph 7(d).
Notwithstanding any provision to the contrary in this Paragraph 2 or elsewhere
in this Agreement, if Licensee manufactures, distributes, sells, promotes and/or
markets the Licensed Products in any country listed on the United States Trade
Representatives Watch List (each, a "Watch List Country"), Licensee shall
CONFIDENTIAL TREATMENT
The redacted information from Section
3(b) has been omitted based upon a
request for confidential treatment.
(i) apply to register the word xxxx, "Xxxxxx Xxxxxxx,"
in the Watch List Country, in Licensor's name, and in the goods and
services or other trademark category applicable to cleaning products
and preparations for general, household, and automotive applications
(each a "Watch List Registration");
(ii) monitor use of the Watch List Registration and the
Property in the Watch List Country in a commercially reasonable
manner to detect and prevent infringement and unauthorized use
thereof;
(iii) promptly inform Licensor of any such infringement
and other unauthorized use of which Licensee becomes aware as a
consequence of its monitoring activities or otherwise; and
(iv) pursue Infringement Claim(s) (as defined in
Paragraph 6(e) below) to rectify and prevent unauthorized use of the
Watch List Registration and/or the Property, unless Licensee
reasonably determines that there would be no commercial benefit from
doing so.
b. The License granted pursuant to this Agreement shall apply
only to Licensee and the manufacture and distribution, promotion and marketing
of Licensed Products in the Territory during the Term, but not in, upon, or with
any other goods or services of any kind. Licensor reserves all rights not
expressly conveyed to Licensee hereunder.
3. COMPENSATION.
a. Signing Bonus: Licensee shall pay Licensor a signing bonus
in the amount of One Million Dollars ($1,000,000) (the "Signing Bonus"). The
Signing Bonus shall be paid in two installments of Five Hundred Thousand Dollars
($500,000) each, with the first installment payable upon the execution of this
Agreement and the second installment payable upon the earlier to occur of (i)
Licensee's reciept, as a consequence of a financing transaction, of no less than
Eight Million Dollars ($8,000,000) (the "Financing") or (ii) December 31, 2004.
The Signing Bonus shall constitute an independent obligation of Licensee that
may not be recouped from royalties paid to Licensor.
b. Royalty: Licensee shall pay to Licensor a royalty equal to
[REDACTED PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT] of (a) the
then-current retail price of each Licensed Product sold directly to consumers by
Licensee or (b) the then-current wholesale price of each Licensed Product sold
to all other entities by Licensee, as applicable, less only a deduction for
refunds or credits for returned Licensed Products to the extent actually paid
out or credited by Licensee. Royalties shall not be payable to Licensor until
payment for the applicable Licensed Product is received by or credited to the
account of Licensee or any assignee, successor, employee, officer, director,
agent or affiliate of Licensee or on behalf of any of them. For the avoidance of
doubt, Licensee's royalty shall be determined without any other reserves or
deductions of any kind, including, without limitation, reserves for returns.
No costs incurred in the manufacture, sale, distribution, advertisement, or
exploitation of the Licensed Product(s) shall be deducted from any royalties
payable by Licensee. All of Licensee's invoices in connection with the sale or
distribution of Licensed Products shall be stated in United States Dollars.
Licensee agrees that it will not use, or knowingly permit the use of, and will
exercise due care that its customers likewise will refrain from the use of, the
Licensed Products as a "Premium", except with the prior written consent of
Licensor. For purposes of this Agreement, the term "Premium" shall be defined as
including, but not limited to, combination sales, free or self-liquidating items
offered to the public in conjunction with the sale or promotion of a product or
service, including traffic building or continuity visits by the
consumer/customer, or any similar scheme or device, the prime intent of which is
to use the Licensed Products in such a way as to promote, publicize and or sell
the products, services or business image of the user of such item. In addition,
Licensee shall not give away more than a token number of Licensed Products
(i.e., less than one percent (1%) of those manufactured) or sell any Licensed
Product for more than twenty percent (20%) less than the established wholesale
or retail price, as applicable, of that Licensed Product without Licensor's
written approval, nor shall Licensee accept any compensation for Licensed
Products other than currency without Licensor's written approval in each
instance.
c. Retention Bonus.. Notwithstanding the provisions of
Paragraph 1(d), this Agreement shall automatically terminate upon the end of the
calendar year in which the fifth anniversary of this Agreement occurs, unless
Licensee pays to Licensor as a retention bonus the amount of One Million Five
Hundred Thousand Dollars ($1,500,000) prior to such date.
d. Minimum Royalty. Notwithstanding any provision in this
Agreement to the contrary, Licensee hereby agrees to pay to Licensor the
following minimum royalty (the "Minimum Royalty") for each calendar year of the
Term or a pro rated portion thereof for any partial year of the Term:
Years 1 - 5 $2,000,000
Year 6 $3,000,000
Year 7 $3,500,000
Year 8 $4,000,000
e. Payments and Statements.
(1) Within forty-five (45) days following the end of each
calendar quarter ("License Quarter"), or portion thereof during which this
Agreement is in effect ("Partial Quarter"), commencing on the date of this
Agreement and continuing until all Licensed Products have been disposed of as
provided in this Agreement, Licensee shall furnish to Licensor complete and
accurate statements certified to be accurate by an officer of Licensee setting
forth all Licensed Product(s) shipped, distributed and/or sold by Licensee
during the preceeding License Quarter or Partial Quarter, and the then-current
wholesale price and any returns made, together with an unaudited financial
statement for such License Quarter or Partial Quarter.
(2) Within forty-five (45) days following the end of each full
calendar year during the Term, Licensee shall determine, and shall provide to
Licensor a statement (the "Annual Statement") showing, the total amount of
royalties due and owing to Licensor hereunder for such calendar year. Licensee
also shall provide to Licensor at such time unaudited financial statements for
such calendar year and, when they become available, audited statements for the
calendar year. Receipt or acceptance by Licensor of any statement, including any
Annual Statement, furnished pursuant to this Agreement or of any sums paid
hereunder shall not preclude Licensor from questioning the correctness thereof
at any time within three (3) years after receipt by Licensor of the applicable
statement and/or payment, except in instances of fraud or other circumstances
that could not reasonably have been discovered in the course of a competent
audit. In the event that any inconsistencies or mistakes are discovered in such
statements or payments, they shall immediately be rectified and the appropriate
payments made by Licensee. Late payments shall bear interest at the lesser of
the then current prime rate of Licensee's primary lender, plus three percent
(3%), and the maximum allowable under the law (the "Rate").
(3) Licensee shall make royalty payments to Licensor as
follows:
A. Years 1 and 2: Within forty-five (45) days following
the end of the initial Partial Quarter and subsequent License
Quarters during the first two (2) calendar years of the Term,
Licensee shall pay to Licensor the royalties due on Licensed Product
sales pursuant to Paragraph 3(b) during such Partial Quarter and
License Quarter.
B. Year 3 Through Year 8: Within forty-five (45) days
following the end of each License Quarter during the third calendar
year and each subsequent calendar year of the Term, Licensee shall
pay to Licensor twenty-five percent (25%) of the Minimum Royalty
(the "Quarterly Royalty") due for such year. Within forty-five (45)
days following the end of the final Partial Quarter of the Term,
Licensee shall pay to Licensor the appropriate pro rated portion of
the Quarterly Royalty.
C. Reconciliation.. If at the end of each of the first
two (2) full calendar years of the Term the Annual Statement shows
that the amount of royaltyies due and owing to Licensor falls short
of the Minimum Royalty due for such year, then Licensee shall
provide to Licensor, within fifteeen (15) days of delivery of the
Annual Statement to Licensor, payment of the difference between the
total royalties already paid to Licensor for such year and the
Minimum Royalty (or pro rated portion thereof) due for such year.
For purposes of calculation under this subparagraph e(3)(C), an
amount shall be added to the Minimum Royalty for the first full
calendar year of the Agreement equal to the initial Minimum Royalty
amount for the first calendar year applied pro rata to the first
Partial Quarter. For the third full calendar year of the Agreement
and thereafter, if the Annual Statement shows that the amount of
royalties due and owing to Licensor exceeds the Minimum Royalty (or
pro rated portion thereof) paid for such year, Licensee shall
provide to Licensor, within fifteen (15) days of delivery of the
Annual Statement to Licensor, payment of the difference between the
Minimum Royalty and the actual amount of royalties.
(4) Licensee shall keep, maintain and preserve (in Licensee's
principal place of business) for at least three (3) years following termination
or expiration of the Term (including the Sell - Off Period, if any, set forth in
Paragraph 4 of this Agreement), complete and accurate records of accounts
covering all of its transactions relating to the manufacture, distribution and
sale of Licensed Products.. Such records and accounts shall be available for
inspection and audit at any time or times during or up to three (3) years after
the Term during reasonable business hours and upon reasonable notice by Licensor
or its nominees. Licensee agrees not to cause or permit any interference with
Licensor or nominees of Licensor in the performance of their duties. During such
inspections and audits, Licensor, upon undertaking to hold the same in
confidence (except as may be required for dispute resolution), shall have the
right to take extracts and/or make copies of Licensee's records as it deems
necessary. With the exception of the calendar year ending with the first Partial
Quarter, Licensee shall pay the reasonable legal, accounting and other costs and
expenses incurred by Licensor in conducting one (1) such inspection and audit
during each calendar year of the Term, provided that such inspection and audit
is conducted by an independent auditor upon which the parties mutually agree and
the results of such inspection and audit are immediately provided by the
independent auditor directly to both parties upon completion. The exercise by
Licensor in whole or in part, at any time, of the right to audit records and
accounts or of any other right herein granted, or the acceptance by Licensor of
any statement or statements or the receipt and/or deposit by Licensor of any
payment tendered by or on behalf of Licensee shall be without prejudice to any
rights or remedies of Licensor and such acceptance, receipt and/or deposit shall
not preclude or prevent Licensor from thereafter disputing the accuracy of any
such statement or payment except as specifically set forth herein.
(5) If pursuant to its rights hereunder Licensor causes an
audit and inspection to be instituted which thereafter discloses a deficiency
between the amount found to be due to Licensor and the amount actually received
or credited to Licensor, then Licensee shall be responsible for payment of the
deficiency, together with interest thereon at the Rate from the date such amount
became due until the date of payment. If an audit or inspection of Licensee's
books and records indicates that sales (or other distribution) reported or
royalties paid for any License Quarter shall have been under reported or
underpaid by more than ten percent (10%) (a "Material Deficiency"), Licensee
shall be in material breach of this Agreement and, in addition to other remedies
available to Licensor, (i) Licensee shall immediately reimburse Licensor's costs
of the audit or inspection relating to such License Quarter, if any, including
any professional fees related to such activity; and (ii) Licensor shall have the
right to terminate this Agreement. Any actual overpayment to Licensor shall be
recouped solely from future royalties payable to Licensor, and no reimbursement
shall be required in connection therewith with the exception of any overpayments
to Licensor outstanding upon the termination of the Agreement, which
overpayments may be recouped directly from Licensor or any entity established by
Licensor pursuant to Paragraph 15.
4. SELL OFF RIGHTS UPON TERMINATION OR EXPIRATION.
Licensee shall deliver, as soon as practicable, but not later than
thirty (30) days following expiration or termination of the Term, a statement
indicating the number and description of Licensed Product(s) on hand on hand as
of the date of termination together with a description of all advertising and
promotional materials relating thereto. Following expiration or termination of
the Term, Licensee shall not continue to manufacture, distribute, sell, promote
and/or market any of the Licensed Product(s) utilizing the Property or any Watch
List Registration.. However, if Licensee has complied with all the provisions of
this Agreement, Licensee may continue to distribute and sell its remaining
inventory on a non-exclusive basis for a period not to exceed one hundred eighty
(180) days following such termination or expiration, subject to payment of the
applicable royalties thereon ("Sell - Off Period"). In no event, however, may
Licensee distribute and sell Licensed Products during such period at a price
which is less than the average price for the Licensed Products sold during the
immediately preceding two (2) License Quarters. If Licensee has any remaining
inventory of the Licensed Product(s) following such one hundred eighty (180) day
period, Licensee shall, at Licensee's option, make available such inventory to
Licensor for purchase at a price below cost to be reasonably determined by
Licensor, deliver up to Licensor for destruction said remaining inventory or
furnish to Licensor an affidavit attesting to the destruction of said remaining
inventory. Licensor shall have the right to conduct a physical inventory in
order to ascertain or verify such inventory and/or physical inventory. In the
event this Agreement is terminated by Licensor for cause, Licensee shall be
deemed to have forfeited its sell-off rights hereunder. In addition to the
forfeiture, Licensor shall have recourse to all other legal remedies available
to it.
5. INDEMNIFICATIONS.
a. During the Term, and continuing after the expiration or
termination of this Agreement, Licensee shall indemnify Licensor, his relatives,
heirs, representatives and assigns (collectively, the "Licensor Indemnitees) and
shall hold the Licensor Indemnitees harmless from any loss, liability, damage,
cost or expense arising out of any claims or suits which may be brought or made
against any Licensor Indemnitee by reason of (i) any breach of Licensee's
covenants and undertakings hereunder (including those set forth in Paragraph 9
hereof); (ii) any unauthorized use by Licensee of the Property; (iii) Licensee's
noncompliance with any applicable laws, any applicable regulations (including
without limitation all USDA and other health regulations or any voluntary
industry standards); and (iv) any alleged defects and/or inherent dangers
(whether obvious or hidden) in the Licensed Products or the use thereof
(including without limitation, any defect in the packaging or in the preparation
instructions or the claimed existence of any impurity or other contamination or
adulteration of any ingredient that is claimed to have caused illness or other
personal injury or death), or any use thereof.
b. With regard to Paragraph 5(a) above, Licensee agrees to
obtain, at no expense to Licensor, (i) product liability insurance providing
adequate protection for Licensor and Licensee against any liability arising out
of the production, distribution, advertising or use of the Licensed Products
which insurance shall be a combined single-limit policy in an amount not less
than Twenty Million Dollars ($20,000,000) (provided that Ten Million Dollars
($10,000,000) of such coverage can be "excess" or "umbrella" coverage); and (ii)
all other insurance as required by applicable law in connection with the
manufacture, sale and distribution of the Product. Simultaneously with the
execution of this Agreement, Licensee undertakes to submit to Licensor a fully
paid policy or certificate of insurance naming Licensor as an additional insured
in a form approved by Licensor, and requiring that the insurer shall not
terminate or materially modify such policy or certificate without written notice
to Licensor at least thirty (30) days in advance thereof.
c. During the Term, and continuing after the expiration or
termination of this Agreement, Licensor or any entity established by Licensor
pursuant to Paragraph 15 shall indemnify Licensee and its representatives and
assigns (collectively, the "Licensee Indemnitees) and shall hold the Licensee
Indemnitees harmless from any loss, liability, damage, cost or expense arising
out of any claims or suits which may be brought or made against any Licensee
Indemnitee by reason of any breach by Licensor of his representations and/or
obligations under Paragraph 25 hereof; provided, however, that the
indemnification obligation set forth in this subparagraph (c) shall be capped in
each instance at the amount of any royalties or bonuses, including Minimum
Royalties, paid or payable during the eighteen (18) months prior to the incident
giving rise to Licensor's indemnification obligations, and in no event shall
Licensor's cumulative liability under this subparagraph (c) exceed the total
amount of royalties paid by Licensee to Licensor under this Agreement.
6. NAME/LIKENESS APPROVAL RIGHTS.
a. The Property shall be displayed or used only in such form
and in such manner as has been specifically approved in writing by Licensor in
advance and Licensee undertakes to assure usage of the Property solely as
approved hereunder.
b. Without limiting Paragraph 6(a) above, Licensor shall have
the right to approve, in his sole discretion, any still photograph in which
Licensor appears which Licensee intends to use in connection with the Licensed
Products, including, without limitation, in connection with the manufacturing,
advertising, sale, exploitation, promotion and publicizing of the Licensed
Products. Accordingly, either (i) Licensor shall submit to Licensee still
photographs approved by Licensor for use by Licensee in connection with the
Licensed Products (it being understood that any photograph so submitted by
Licensor shall be deemed approved in writing by Licensor for purposes of this
Agreement), or (ii) in the event Licensee desires to photograph Licensor,
Licensee shall submit to Licensor any still photograph which Licensee intends to
use in connection with the Licensed Products, and Licensor shall have the right
to approve any such photograph in his sole discretion.
c. Without limiting Paragraph 6(a) above, Licensor shall have
the right to approve, in his sole discretion, any artistic rendering of Licensor
which Licensee intends to use in connection with the Licensed Products,
including, without limitation, in connection with the manufacturing,
advertising, sale, exploitation, promotion and publicizing of the Licensed
Products. Accordingly, Licensee shall submit to Licensor any artistic rendering
which Licensee intends to use in connection with the Licensed Products. If
Licensor does not approve a rendering so submitted, Licensor shall advise
Licensee of Licensor's disapproval and the specific reasons therefor. Licensee
shall then conform such rendering to Licensor's requirements. Licensee shall
then re-submit the redrawn rendering to Licensor for approval. The procedure set
forth above shall continue until such time, if ever, as Licensor approves any
such artistic rendering.
d. Licensee acknowledges that, as between Licensor and
Licensee, the Property is owned exclusively by Licensor. Licensee acknowledges
that Licensor shall have the right to terminate this Agreement immediately in
the event Licensee asserts or attempts to assert any rights (other than those
granted pursuant to the Agreement) in or to any of the Property. Licensee
further agrees and acknowledges that Licensor shall own the copyright and other
proprietary rights in the portion of any and all artwork or product or material
authorized for use or created hereunder that incorporates or embodies the
Property, provided however, that Licensor shall not be permitted to exploit any
such artwork, products, or material created by Licensee in connection with the
Licensed Products without the express written consent of Licensee in each
instance for so long as this Agreement remains in effect.. Licensor acknowledges
and agrees that Licensee shall own the copyright and other proprietary rights in
the portion of any and all artwork or product or material to the extent that
such artwork, product or material does not incorporate or embody the Property.
At the request of Licensor, Licensee shall execute such form(s) of assignment of
copyright as Licensor reasonably deems necessary to evidence such ownership by
Licensor. At the request of Licensee, Licensor shall execute such form(s) of
assignment of copyright as Licensee reasonably deems necessary to evidence such
ownership by Licensee. If any third party makes or has made any contribution to
the creation of artwork, product or material authorized hereunder, Licensee
agrees to obtain from such party an assignment of rights sufficient to vest in
Licensor the rights set forth above. All rights in and to the Property not
specifically granted in this Agreement are reserved to Licensor, for Licensor's
use and exploitation, in his sole discretion. Without limiting any other
provision hereof, after the Term and the Sell - Off Period, if applicable,
Licensee shall not be permitted to exploit the Property in conjunction with the
Licensed Products, or anything containing the Property, or any slogans, logos or
other indicia related to the Licensed Products that contain the Property without
the express written consent of Licensor in each instance. The provisions of this
subparagraph (d) shall survive the termination or expiration of this Agreement.
e. Licensee shall assist Licensor in the procurement,
protection, and maintenance of Licensor's rights to the Property. Licensor may,
in his sole discretion, and Licensee may, with Licensor's prior consent, which
shall not be unreasonably withheld or delayed, commence or prosecute and effect
the disposition of any claims or suits relative to the imitation, infringement
and/or unauthorized use of the Property ("Infringement Claims") either in such
party's own name or in the name of the other party, or join the other party as a
party in the prosecution of such claims or suits. If Licensee initiates an
Infringement Claim, Licensor shall have the right to approve counsel chosen by
Licensee to prosectue the Infringement Claim. Licensee agrees to cooperate fully
with Licensor in connection with any Infringement Claims prosecuted by Licensor
and undertakes to furnish full assistance to Licensor in the conduct of all
proceedings in regard thereto at the expense of Licensee. If any Infringement
Claims are initiated by Licensee (with Licensor's consent), Licensor agrees to
provide Licensee with reasonable cooperation and to furnish full assistance to
Licensee in the conduct of all proceedings in regard thereto at the expense of
Licensee. Licensee agrees to take commercially reasonable steps to monitor and
control the uses of the Property by its customers and vendors. Licensee shall
take commercially reasonable measure to apprise itself, and promptly notify
Licensor in writing, of any infringements or imitations or unauthorized uses by
others of the Property on or in relation to products identical or similar or
related to the Licensed Products. Licensor shall in its sole discretion have the
right to settle or effect compromises with respect to Infringement Claims;
provided, however, that Licensor shall not unreasonably withhold or delay
Licensor's consent to settlements and compromises with respect to Infringement
Claims brought and conducted by Licensee. If either Licensor or Licensee (with
Licensor's consent) pursues an Infringement Claim in the United States or any
country other than a Watch List Country, each party shall bear fifty percent
(50%) of the cost of conducting such Infringement Claim. If Licensee pursues an
Infringement Claim in a Watch List Country, Licensee shall bear one hundred
percent (100%) of the cost of pursuing such Infringement Claim. If Licensee
declines to pursue an Infringement Claim in a Watch List Country consistent with
subparagraph (iv) of Paragraph 2(a) hereof, and Licensor elects to pursue such
Claim, each party shall bear fifty percent (50%) of the cost of pursuing such
claim. Notwithstanding any provision to the contrary in this Paragraph 6 or
elsewhere in this Agreement, if Licensee initiates an Infringement Claim, all
costs that Licensor is required to pay in connection with such Infringement
Claim shall, after such time as they are incurred, be deducted from royalties
that Licensee pays to Licensor, and in no event shall such costs exceed fifty
percent (50%) of the total amount of royalties that Licensee is required to pay
to Licensor hereunder during any annual period.
7. APPROVALS AND QUALITY CONTROLS; LICENSOR'S PRODUCT PROPOSAL
RIGHTS.
a. Licensee acknowledges that if the Licensed Products
manufactured and sold by it are of inferior quality in design, material or
workmanship, the substantial goodwill which Licensor has built up and now
possesses in the Property would be impaired. Licensee agrees to comply and
maintain compliance with the quality standards and specifications of Licensor in
respect to all usage of the Property on or in relation to the Licensed Products
throughout the Term of this Agreement and any renewals or extensions thereof. In
addition to Licensor's approval rights under Paragraph 6 above, Licensor shall
have the absolute right to approve all types of Licensed Products, artwork,
logos, uses of his name and packaging. Accordingly, Licensee agrees to furnish
to Licensor free of cost, for his written approval as to quality and style,
samples of each of the Licensed Products together with their packaging and
wrapping material, as follows in the successive stages indicated: (i) rough
sketches/layout concepts; (ii) finished artwork or final proofs; and (iii)
finished products including packaged samples.
b. No Licensed Products and no material whatever utilizing the
Property shall be manufactured, sold, distributed or promoted by Licensee
without Licensor's prior written approval. Licensee may, subject to Licensor's
prior written approval in accordance with Paragraph 6 above, use textual and/or
pictorial matter pertaining to the Property on such promotional, display and
advertising material as may, in its reasonable judgment, promote the sale of the
Licensed Products. All advertising and promotional material relating to the
Licensed Products including without limitation print, billboard and any and all
audio visual materials (e.g. infomercials) must be submitted to Licensor for his
written approval at the following stages appropriate to the medium used: (i)
rough concepts; (ii) layout, storyboard, script; and (iii) finished materials.
c. Approval or disapproval shall lie in Licensor's sole
discretion. Any Licensed Products not so approved in writing shall be deemed
unlicensed and shall not be manufactured or sold. If any unapproved Licensed
Products are being sold, Licensor may, together with other remedies available to
it including, but not limited to, immediate termination of this Agreement,
require such Licensed Products to be immediately withdrawn from the market and
to be destroyed, such destruction to be attested to in a certificate signed by
an officer of Licensee.
d. With the exception of those product ideas contemplated by
Licensee as of the date of this Agreement as listed on Schedule B hereto,
Licensor shall have the right to propose to Licensee product ideas for Licensed
Products (each a "Product Proposal"). Each Product Proposal shall specify the
proposed Licensed Product ("Proposed Product") in reasonable detail, shall be in
writing, and shall be delivered to Licensee in accordance with Paragraph 13.
Licensee shall have thirty (30) days from receipt of a Product Proposal within
which to notify Licensor (in accordance with Paragraph 13) whether Licensee
accepts or rejects the Product Proposal. If Licensee rejects a Product Proposal
or fails to bring to market within a reasonable period of time a Licensed
Product substantially similar to the Proposed Product, Licensor shall have the
right to develop, produce, distribute, market and sell, or to have a third party
develop, produce, distribute, market and sell, the Proposed Product.
e. Any modification of a Licensed Product must be submitted in
advance for Licensor's written approval as if it were a new Licensed Product.
f. Licensed Products must conform in all material respects to
the final production samples approved by Licensor. If the quality of a Licensed
Product ceases to conform materially to the specifications for such Licensed
Product on which the final production samples approved by Licensor were based
(the "Specifications"), or if a Licensed Product has otherwise been altered or
is demonstrably defective in light of the Specifications, Licensor may, in
addition to other remedies available to him, require that such Licensed Product
be immediately withdrawn from the market, provided that variations within normal
commercial tolerances shall not be deemed such a modification, change or
deterioration.
g. Licensee shall permit Licensor, upon reasonable notice, to
inspect Licensee's manufacturing operations and testing records with respect to
the Licensed Products.
h. If any changes or modifications are required to be made to
any material submitted to Licensor for his written approval in order to ensure
compliance with Licensee's Specifications or standards of quality, Licensee
agrees promptly to make such changes or modifications. Subsequent to final
approval, no fewer than two (2) production samples of Licensed Products will be
sent to Licensor to ensure quality control simultaneously upon distribution to
the public. In addition, Licensor shall have the right to purchase any and all
Licensed Products in any quantity at the price Licensee charges its best
customer at the maximum discount price; provided, however, that, unless Licensee
otherwise agrees in writing, Licensor may only sell Licensed Products in
conjunction with the operation of a business that does not materially involve
the preparation, packaging, supply and/or marketing of consumer cleaning
products and that does not otherwise materially compete with the business of
Licensee.
i. To avoid confusion of the public, Licensee agrees not to
associate other characters or licensed properties with the Property on the
Licensed Products or in any packaging, promotional or display materials unless
Licensee receives Licensor's prior written approval. Furthermore, Licensee
agrees not to use the Property (or any component thereof) on any business sign,
business cards, letterhead or forms, nor to use the Property as part of the name
of Licensee's business or any division thereof.
j. Licensee shall use all reasonable efforts to notify its
distributors and retailers of the requirement that Licensor has the right to
approve all promotional, display and advertising material pursuant to this
Agreement.
8. GOODWILL.
Licensee recognizes the great value of the publicity and goodwill
associated with the Property and, acknowledges (i) such goodwill is exclusively
that of Licensor and (ii) that the Property has acquired a secondary meaning as
Licensee's trademarks and/or identifications in the mind of the purchasing
public. Licensee further recognizes and acknowledges that a breach by Licensee
of any of its covenants, agreements or undertakings hereunder will cause
Licensor irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
Licensee's copyrights, trademarks and other proprietary rights in, and to the
Property, thereby entitling Licensor to seek equitable remedies and costs.
9. SPECIFIC UNDERTAKINGS OF LICENSEE.
During the Term, Licensee agrees that:
a. It will not challenge or attack the title of Licensor in
and to the Property or the validity of any Xxxx to the extent that the Xxxx
incorporates the Property, nor will it challenge or attack the validity of the
license granted hereunder.
b. It will not harm, misuse or bring into disrepute the
Property, but, on the contrary, will maintain the value and reputation thereof
to the best of its ability;
c. Except as permitted hereunder, it will not register or
attempt to register or otherwise obtain rights in or to any trade name,
trademark, service xxxx, logo or trade dress ("Xxxx") that is similar to the
Property;
d. It will manufacture, sell, promote and distribute the
Licensed Products in an ethical manner and in accordance with the terms and
intent of this Agreement, and in compliance with all applicable laws, government
regulations and industry standards;
e. It will not create any expenses chargeable to Licensor
without the prior written approval of Licensor;
f. It will protect to the best of its ability its right to
manufacture, sell, promote, and distribute the Licensed Products hereunder;
g. It will obligate manufacturers and other business partners
to comply with the terms and conditions set forth herein;
h. It will at all times comply with all government laws and
regulations, including, but not limited to, product safety, food, health, drug,
cosmetic, sanitary or other similar laws, all USDA and other health or food
regulations, and all voluntary industry standards relating or pertaining to the
manufacture, sale, advertising or use of the Licensed Products, and shall
maintain its appropriate customary high quality standards. It shall comply with
any regulatory agencies which shall have jurisdiction over the Licensed Products
and shall procure and maintain in force any and all permissions, certifications
and/or other authorizations from governmental and/or other official authorities
that may be required in relation thereto. Each Licensed Product and component
thereof distributed hereunder shall comply with all applicable laws, regulations
and voluntary industry standards. Licensee shall follow reasonable and proper
procedures for testing that all Licensed Products comply with such laws,
regulations and standards. Upon reasonable notice, Licensee shall permit
Licensor or its designees to inspect testing records and procedures with respect
to the Licensed Products for compliance. Licensed Products that do not comply
with all applicable laws, regulations and standards shall automatically be
deemed unapproved;
i. It will provide Licensor with the date(s) of first use of
the Licensed Products in commerce, where appropriate;
j. It will use commercially reasonable efforts to collect any
and all amounts due and owing from purchasers of Licensed Products; and
k. It will not use its "Knockout" trademark or any other of
its Marks or technology, whether or not patentable, to produce, on or in
conjunction with the sale, distribution, and/or marketing of any consumer
cleaning product in conjuntion with which Licensee utilizes the name and/or
likeness of any celebrity other than Licensor.
10. TERMINATION RIGHTS.
a. Licensor shall have the right to terminate this Agreement
immediately without prejudice to any rights that Licensor may have, whether
pursuant to the provisions of this Agreement or otherwise, if:
(1) Licensee defaults in the performance of any of its
material obligations provided for in this Agreement; or
(2) Licensee shall have failed to deliver to Licensor or
to maintain in full force and effect the insurance referred to in Paragraph 5(b)
hereof; or
(3) Licensee shall fail to make any payments due
hereunder on the applicable due date;
(4) Licensee shall fail to comply with any laws,
regulations or voluntary industry standards as provided herein or if any
governmental agency or other body, office or official vested with appropriate
authority finds that the Licensed Products are harmful or defective in any way,
manner or form or are being manufactured, sold or distributed in contravention
of applicable laws, regulations or standards, or in a manner likely to cause
harm; or
(5) Licensee shall be unable to pay its debts when due,
or shall make any assignment for the benefit of creditors, or shall file any
petition under the bankruptcy or insolvency laws of any jurisdiction, or place,
or shall have or suffer a receiver or trustee to be appointed for its business
or property, or be adjudicated a bankrupt or an insolvent; or
(6) Licensee does not commence in good faith to
manufacture, distribute and sell the Licensed Products and utilize the Property
on or before the date one (1) year from the date hereof and thereafter fails to
diligently and continuously manufacture, distribute and sell the Licensed
Products; or
(7) Licensee shall (i) utilize the Property in any
manner not expressly permitted by this Agreement, or (ii) manufacture, sell or
distribute, whichever first occurs, any of the Licensed Product(s) without the
prior written approval of Licensor as provided in Paragraph 7 hereof;
(8) Licensee does not obtain $5 million in gross sales
of the Licensed Products or the Financing on or before March 31, 2005;
(9) Licensee shall breach any other agreement in effect
between Licensee and Licensor; or
(10) as provided in Paragraph 15.
b. Licensee shall have the right to terminate this Agreement
immediately without prejudice to any rights that Licensee may have, whether
pursuant to the provisions of this Agreement or otherwise, if Licensor breaches
Licensor's representations and/or obligations under Paragraph 25. Licensee shall
not have the right to terminate this Agreement based upon the death or
disability of the Licensor.
c. Notwithstanding the provisions of this Paragraph 10, in the
event of any default under this Agreement, the non-breaching party shall give
notice of termination in writing to the breaching party. Licensee shall have ten
(10) days from the date of receipt of such notice to cure any default with
respect to a payment obligation. Otherwise, each party shall have thirty (30)
days from the date of receipt of a notice of default within which to correct a
default and, failing such correction, this Agreement shall thereupon immediately
terminate.
d. Licensee shall have the right to obtain life and/or
disability insurance coverage with respect to Licensor at Licensee's sole
expense and for Licensee's sole benefit. At Licensee's request, Licensor shall
take reasonable measures necessary for Licensee to obtain and maintain such
insurance coverage.
11. OWNERSHIP.
a. As between Licensor and Licensee, Licensor shall own all
Rights in and to the Property and Licensor's registered Marks (collectively,
"Licensor IP"). To the extent, if any, that any ownership interest in and to the
Licensor IP does not, or any such Rights do not, automatically vest in Licensor,
by virtue of this Agreement or otherwise, and instead vest in Licensee, Licensee
hereby (i) transfers and assigns to Licensor, to the extent permitted by law,
all right, title, and interest that Licensee may have in and to Licensor IP,
together with all Rights therein, and (ii) grants to Licensor an exclusive (even
as to Licensee), royalty-free, worldwide, irrevocable right and license to use
and exploit Rights to the Licensor IP that Licensee is unable under law to
transfer and assign to Licensor.
b. As between Licensee and Licensor, Licensee shall own all
Rights in and to the "Knockout" Xxxx and Licensee's other Marks with respect to
cleaning products (collectively, "Licensee IP"). To the extent, if any, that any
ownership interest in and to the Licensee IP does not, or any such Rights do
not, automatically vest in Licensee, by virtue of this Agreement or otherwise,
and instead vest in Licensor, Licensor hereby (i) transfers and assigns to
Licensee, to the extent permitted by law, all right, title, and interest that
Licensor may have in and to the Licensee IP, together with all Rights therein,
and (ii) grants to Licensee an exclusive (even as to Licensor), royalty-free,
worldwide, irrevocable right and license to use and exploit all such Licensee IP
that Licensor is unable under law to transfer and assign to Licensee.
c. For purposes of this Paragraph 11, "Rights" means copyright
rights, trademark rights, trade secret rights, patent rights and other
proprietary, intellectual property, and industrial rights of any kind, including
registrations, applications, continuations, continuations-in-part, divisionals,
reexaminations, reissues, and foreign applications and/or counterparts thereof.
12. MARKETING PLAN/SUPPLY.
a. Licensee shall use reasonable efforts to develop a market
for the Licensed Products. Licensee shall present a comprehensive marketing plan
to Licensor within sixty (60) days after the commencement of the Term hereof,
and sixty (60) days prior to the commencement of each successive year during the
Term and any renewals hereof. Licensee shall meaningfully consult with Licensor
prior to the implementation of any such marketing plan.
b. Licensee will use commercially reasonable efforts to supply
the demand for the Licensed Products as quickly as possible, however, the
parties understand and agree that the following circumstances might interfere
with Licensee's ability to supply such demand:
(1) Unforeseeable demands for the Licensed Product(s);
(2) Laws or government regulations which limit the
number of Licensed Product(s) which can be manufactured;
(3) Acts of war;
(4) Acts of terrorism;
(5) Fire;
(6) Weather conditions; or
(7) Acts of God.
It is not a breach of Licensee's duties if, because of the
above or similar circumstances, Licensee cannot supply the demand for the
Licensed Products. However, as soon as the circumstance(s) end(s), Licensee will
immediately resume manufacturing the Licensed Products and/or filling orders.
13. NOTICES.
Except as otherwise specifically provided herein, all notices,
statements or other documents which either party shall be required or shall
desire to give to the other hereunder shall be in writing and shall be given by
said party only by telecopier, or by courier or personal delivery or by
addressing it as indicated below, and by depositing it certified first-class
mail, postage prepaid, in the mail. The addresses of the parties shall be those
of which the other party actually receives written notice pursuant to this
Paragraph 13, and until further notice:
If to Licensor: Xxxxxx Xxxxxxx
---------------
c/x Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
If to Licensee: The Knockout Group, Inc.
---------------
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000
and to:
Xxxxx & XxXxxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
Any such communications given by courier or personal delivery shall
be deemed given when delivered if during normal business hours on a business day
(or, if not, the next business day after delivery); any such communications
given by telecopier shall be deemed given when received if during normal
business hours on a business day (or, if not, the next business day after
delivery) provided that such telecopy is legible and that at the time such
telecopy is sent the sending party receives written confirmation of receipt and
forwards a copy of the notice by courier or personal delivery or by mail; and
any such communications sent by certified first-class mail, postage prepaid
shall be deemed given seven (7) business days after the date of mailing.
14. NO PARTNERSHIP, ETC.
This Agreement does not constitute and shall not be construed
as constituting a partnership or joint venture between Licensor and Licensee.
Neither party shall have any right to obligate or bind the other party in any
manner whatsoever, and nothing contained herein shall give, or is intended to
give, any rights of any kind to any third persons.
15. NON-ASSIGNABILITY; CHANGE OF CONTROL.
a. This Agreement shall bind and inure to the benefit of
Licensor, its successors and assigns. This Agreement is personal to Licensee,
and Licensee shall not sub-license nor franchise its rights hereunder, and
neither this Agreement nor any of the rights of Licensee hereunder shall be
sold, transferred or assigned by Licensee and no rights hereunder shall devolve
by operation of law or otherwise upon any receiver, liquidator, trustee or other
party. Licensor shall not be permitted to delegate his duties hereunder without
written consent of Licensee. Notwithstanding this Paragraph 15, (i) Licensee
shall be permitted to sublicense or assign its rights to any entity Licensee
controls; and (ii) Licensor shall be permitted to assign Licensor's obligations
(although not to delegate his duties) under this Agreement to an entity
adequately capitalized in light of this Agreement to which he also assigns all
rights to in and to the Property and his right to receive all benefits under
this Agreement. Following an assignment by Licensor in compliance with this
Paragraph 15, Licensee shall not bring any claim, action or suit except against
the entity to which he has made the assignment.
b. Licensor shall have the right, exercisable upon ten (10)
days' prior notice to Licensor, to terminate this Agreement at any time
following a Change of Control Event occurring during the first sixty (60) months
of the Term. "Change of Control Event" means any of the following : (i)
Licensee's dissolution or liquidation, (ii) Xxxx Xxxxxxx ceasing to be
Licensee's chief executive officer during the first twenty-four (24) months of
the Term (other than as a result of his death or permanant disability, in which
case the successor chief executive officer must be a person reasonably
acceptable to the Licensor) or (iii) prior to a Qualified Public Offering, the
consummation of a Sale, unless Licensee first obtains Licensor's Reasonable
Approval. "Sale" means Licensee's sale of all or substantially all of its
assets, or the acquisition of a majority of the voting securities of Licensee by
another person or entity (or group of persons or entities) by means of a stock
sale, stock exchange or a merger (other than a merger which solely effects a
change of domicile) or consolidation or other similar transaction, unless after
giving effect to such transaction, the persons who are the shareholders of the
Company as of the date of this Agreement continue to have beneficial ownership
in excess of fifty percent (50%) of the economic and voting power of the
surviving entity. "Qualified Offering" means the consummation of an underwritten
public offering of the Company's common stock which rsults in aggregate gross
proceeds (after deduction of underwriting discounts, commission and selling and
registration expenses) to the Company of not less than $50,000,000 and results
in an initial market capitalization for the conversion shares of at least
$250,000,000, and pursuant to which the Company obtains a listing of its shares
on an United States national securities exchange or the Nasdaq Stock Market or
automated quotation system of nationally recognized standing. "Reasonable
Approval" means the written determination by Licensor, in his good faith
judgment made in a reasonably timely manner, that the proposed Sale in question
is not and will likely not be adverse to any of Licensor's (A) rights or actual
or projected financial benefits under this Agreement, (B) reputation, (C)
religious, moral, or ethical beliefs, (i.e., constitute the facilitation or
promotion of gambling, the use of alcoholic beverages, tobacco products, illicit
drugs, illegal activity, "hate speech" or discrimination on the basis of race,
sex, creed, national origin, religious affiliation or sexual orientation) or (D)
other contractual obligations or commitments in existence from time to time,
except with respect to a Sale to P&G, Xxxxxxx & Xxxxxxx, Unilever or SC Xxxxxxx;
provided, however, that Licensor's "Reasonable Approval" may be withheld in his
sole and absolute discretion, if (1) at the time of the Sale, Licensee is in
breach of any of its material obligations under this Agreement, or (2) the Sale
in question occurs during the first 24 months of the Term and is not to a
company with an equity value (based on market capitalization in the case of a
publicly held-company or evidence reasonably satisfactory to Licensor in the
case of a private company) of at least one billion dollars. Licensee shall give
at least 30 days prior notice of the consummation of any event that would
constitute a Change of Control Event (for this purpose ignoring any of the
exceptions to the terms "Change of Control Event", "Sale" or "Approval");
provided, however, that notice of the death or disability of Xxxx Xxxxxxx shall
be given as promptly as practicable.
16. GOVERNING LAW/JURISDICTION.
This Agreement shall be construed in accordance with the laws
of the State of Texas without reference to the conflicts of laws principles
thereof. Licensee agrees to submit to the personal and subject matter
jurisdiction of the state and/or federal courts in Texas for the purpose of any
disputes arising out of or relating to this Agreement.
17. WAIVER, MODIFICATION ETC.
No waiver, modification or cancellation of any term or
condition of this Agreement shall be effective unless executed in writing by the
party charged therewith. No written waiver shall excuse the performance of any
acts other than those specifically referred to therein. The fact that the
Licensor has not previously insisted upon Licensee expressly complying with any
provision of this Agreement shall not be deemed to be a waiver of Licensor's
future right to require compliance in respect thereof and Licensee specifically
acknowledges and agrees that the prior forbearance in respect of any act, term
or condition shall not prevent Licensor from subsequently requiring full and
complete compliance thereafter.
18. ATTORNEYS' FEES AND COSTS.
In the event either party hereto institutes legal action
against the other party to interpret or enforce this Agreement or to obtain
damages for any alleged breach hereof, the prevailing party in such action or
proceeding shall be entitled to an award of reasonable attorneys' fees.
19. HEADINGS; CONSTRUCTION.
Titles or captions contained in this Agreement are inserted
only as a matter of convenience, and for reference only, and in no way limit,
define or extend the provisions of this Agreement. The words "include,"
"includes," and "including" are deemed to be followed by "without limitation,"
whether or not they are in fact followed by such words or words of like import.
Unless the context clearly indicates otherwise, any term defined or used in the
singular shall include the plural of such term, and any term defined or used in
the plural shall include the singular of such term.
20. SEVERABILITY.
Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without invalidating the remaining provisions hereof, and any
such invalidity, illegality or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
21. CONFIDENTIALITY.
Licensee and Licensor each agree to maintain in confidence and
not disclose, either orally or in writing, to any third party the terms of this
Agreement. Except to the extent necessary to carry out the terms of this
Agreement in the ordinary course of its business, the parties further agree that
they will not make such disclosure with respect to any "Information" (as herein
defined) made available to such party directly or indirectly by the other or any
of its partners, affiliates, attorneys, accountants, shareholders, officers,
directors, employees, agents, or subsidiaries, including, but not limited to,
any and all trade secrets, know-how, inventions, techniques, processes, customer
lists, financial data, sales or marketing plans, specifications, designs,
budgets, schedules or agreements ("Information"). The foregoing agreement of
confidentiality shall extend to documents and Information whether furnished
before or after the date of this Agreement. Each party agrees that it or he (as
the case may be) will not, without the prior specific written consent of the
other, use the Information made available to it hereunder for any purposes other
than in connection with this Agreement and not in any way directly or indirectly
detrimental to the other party. Any and all documents then in either party's
possession or materials containing Information, and all reproductions thereof,
shall be and remain the property of the other party, shall not be used by the
holding party for any purpose except as permitted hereby, nor will such
Information be disseminated to any third party by the holding party, and such
Information, including all reproductions thereof, shall be returned to the other
party at the earliest of (i) demand thereof by the other party, (ii)
accomplishment of the purpose for which they were furnished or created, or (iii)
termination of this Agreement.
22. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and
understanding between the parties hereto as to the subject matter hereof and
supersedes any and all other prior and contemporaneous agreements and
understandings, whether written or oral, between the parties hereto as to the
subject matter hereof.
23. ACCEPTANCE BY LICENSOR.
This instrument, when signed by Licensee shall be deemed an
application for a license and not a binding agreement unless and until accepted
by Licensor by signature of Licensor and the delivery of such a signed copy to
Licensee. The foregoing shall apply to any documents relating to renewals or
modifications hereof.
CONFIDENTIAL TREATMENT
The redacted information from Section 24
has been omitted based upon a request
for confidential treatment.
24. INFOMERCIAL/APPEARANCES.
a. During the Term, Licensor agrees to appear on [REDACTED
PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT] infomercials (i.e., [REDACTED
PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT] for the Car Cleaner and
[REDACTED PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT] for the Upholstery
Cleaner). Each such infomercial shall not require the services of the Licensor
for more than [REDACTED PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT]. The
location and date for the taping of such infomercials shall be mutually
determined by the parties and subject to Licensor's availability. In addition,
Licensor shall have the right to approve the script, storyboard and all other
material creative aspects of such infomercials. All such infomercials shall be
produced pursuant to the AFTRA Agreement by an AFTRA signatory and Licensor
shall be paid the minimum amount set forth therein for his services. Licensee
agrees to pay any required pension, health and welfare payments directly to
AFTRA in connection with such infomercials. Licensor agrees to consider
appearing in such infomercials for other Licensed Products during the Term;
provided, however, that such decision shall be at Licensor's sole discretion and
Licensor's failure to agree to appear in any other infomercials shall not be a
breach of this Agreement. Without limiting any other provision of this
Agreement, any material shot in connection with such infomercials shall be used
solely in the applicable infomercial unless approved otherwise in writing by
Licensor.
b. Licensor shall consider making up to [REDACTED PURSUANT TO
REQUEST FOR CONFIDENTIAL TREATMENT] personal appearances during the Term,
including, without limitation, participating in a press conference announcing
the launch of the Licensed Products; provided, however, that such decision shall
be at Licensor's sole discretion and Licensor's failure to make any appearances
shall not be a breach of this Agreement. Any appearances shall be subject to
Licensor's availability and approval of all relevant aspects.
c. In connection with any services provided by Licensor
hereunder, Licensee will provide Licensor with [REDACTED PURSUANT TO REQUEST FOR
CONFIDENTIAL TREATMENT]. In addition, if Licensor stays overnight at a
particular location in connection with any such services, he shall be provided
with a deluxe first-class hotel suite and access to a stretch limousine and
driver for his own personal use at all times while at such location.
25. LICENSOR'S REPRESENTATIONS.
Licensor represents and warrants that he has the right to enter into
this Agreement and to grant the rights granted to Licensee hereunder. In
addition, Licensor shall not commit any act or become involved in any situation
or occurrence, knowledge of which is made public after the date hereof, which
act, situation or occurrence, in Licensee's reasonable opinion, degrades the
Property in society or brings the Property into public disrepute, contempt,
scandal, scorn or ridicule, or tends to provoke, shock or offend the community
or any sizable group or class thereof, or which subjects or tends to subject
Licensor to contempt or scandal.
26. SURVIVAL.
The following provisions of this Agreement shall survive its
expiration or earlier termination: Paragraphs 3 (only to the extent any amounts
due and payable under the Agreement remain unpaid), 4, 5, 6(d), 8, 9(a), 9(b),
9(c), 11, 13, 14, 16, 17, 18, 19, 21, 22, 23, and 27, as well as such
definitions set forth in this Agreement as are necessary to give meaning and
effect to the foregoing Paragraphs.
27. ALTERNATIVE DISPUTE RESOLUTION.
The terms and procedures set forth in Schedule C shall apply to any
dispute or claim arising under or related to this Agreement.
* * * * * * * * * * * * *
This agreement shall be of no force or effect unless and until it is
signed by all of the parties listed below:
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LICENSOR: LICENSEE:
THE KNOCKOUT GROUP, INC.
/s/ Xxxxxx Xxxxxx /s/Xxxx Xxxxxxx
----------------- ----------------------------
XXXXXX XXXXXXX By: Xxxx Xxxxxxx
Its: Chairman and CEO
