Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Annual Report -- [x] Reg. S-K Item 405 49 275K
2: EX-10.41 Material Contract 8 33K
3: EX-10.42 Material Contract 4 19K
4: EX-10.43 Material Contract 4 20K
5: EX-10.44 Material Contract 4 19K
6: EX-10.45 Material Contract 4 19K
7: EX-10.46 Material Contract 5 20K
8: EX-23.1 Consent of Experts or Counsel 1 6K
9: EX-27.1 Financial Data Schedule 1 9K
EXCLUSIVE LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT (the "AGREEMENT") is made and
entered into this 15th day of December, 1996, by and between FRAGRANCE BUSINESS,
COMPANY LIMITED, of which address is: Anemomylos Offices, Suite 104-8, M.
Karaolis, P.O. Box 3957, 1687 Nicosia, Cyprus, owner of registered patterns,
patents and creations of Pierre Louis REPELLIN ("LICENSOR") and OROAMERICA INC.,
of which address is: 443 North Varney Street, Burbank, California 91502-1733, a
Delaware corporation herein, together with its nominees and assignees,
("LICENSEE"), in order to grant to Licensee a perpetual exclusive license as
provided herein.
NOW, THEREFORE, in consideration of their mutual agreements
set forth in this Agreement, Licensor and Licensee hereby agree as follows:
1. GRANT OF LICENSE. Licensor hereby grants to Licensee (a) the
exclusive perpetual right and license to manufacture and have manufactured,
market and have marketed and sell and have sold in and throughout the United
States of America the "products" (as defined below), (b) the exclusive
perpetual right and license to use in the United States of America any and all
trademarks, trade names and similar intangibles that Licensor may at any time
own or have the right to license, and incident to the foregoing grants. (C)
the perpetual non- exclusive right to manufacture and have manufactured the
Products anywhere in the world.
2. CERTAIN DEFINITIONS. As used herein, the following terms have
the following meanings:
"EXCLUDED PRODUCTS" - as defined in Paragraph 4 of this
Agreement.
"FUTURE PRODUCTS" - all products, including but not limited to
perfume and other bottles, fragrances, fragrance formulations
and packaging, but excluding Excluded Products, that at any
time after the date of this Agreement may be developed,
designed or created by Licensor, including all products that
may be developed, designed or created by Licensor's
principals, agents and employees.
"LICENSE" - any individual, corporation, partnership,
association, trust or other entity or organization, including
a government or political subdivision or any agency or
instrumentality thereof.
"PRODUCTS" - any and all products, including but not limited
to perfume and other bottles, fragrances, fragrance
formulations and packaging, that have heretofore been
developed, designed or created by Licensor, including all
products developed, designed or created by Licensor's
principals, agents and employees, and all Future Products.
3. LICENSEE FEE AND ROYALTIES. In consideration of the grant of
the License, License shall pay Licensor a License Fee of $280,000 (US), of
which $80,000 is being paid concurrently with the execution of this Agreement,
and the balance shall be paid after Licensee has sold 1,000,000 bottles within
the term Products. In addition, Licensee shall pay to Licensor following each
monthly statement, the royalties related to monthly collected turnover.
Following each calendar quarter, a checking of Licensee's account-books can be
realized by Licensor; this royalties calculation being equal to 8% of the
wholesale price (excluding freight, taxes, insurance and similar charges that
are billed separately or are separately stated on the invoice for such
Products) of all Products sold by Licensee, starting from the first Product
sold (of which 1% will be given to Mr. Franck ROUAS by Licensor).
To keep the United States of America rexclusive perpetual
License, Licensee undertakes to pay up to Licensor an annual guaranteed minimum
of royalties equal to $120,000 (i.e., about 200,000 bottles), all creations
mingled, and to engage an annual minimum advertising budget equal to 2% of the
wholesale price turnover (tax free).
4. ADDITIONAL FINANCIAL SUPPORT BY LICENSEE. From time to time,
in connection with the development of Future Products, Licensor shall have the
right to request that Licensee fund a portion of the development costs, not to
exceed the lesser of actual cost and $30,000, for any Future Products other
than the bottle in the shape of an American football player that Licensor is
currently developing, for which the applicable amount is $100,000. If Licensor
requests such funding for any Future Product and Licensee, in its sole
discretion, declines to provide such funding, such Future Product shall be
designed an "EXCLUDED PRODUCT" and shall be excluded from the License.
Notwithstanding the foregoing, Licensor shall not be requested to fund any
portion of the cost of the bottle in the shape of a European football (soccer)
player which Licensor is developing, and such European football (soccer) player
shall be included under the License.
5. ASSISTANCE BY LICENSOR. Licensor shall provide reasonable
assistance to License to enable Licensee and its contractors to manufacture and
sell Products. Such assistance will include but is not limited to providing to
Licensee or contractors engaged by Licensee (a) instructions, formulas and
specifications for the manufacture of Products, (b) designs, tools and tooling
and (C) marketing aids, brochures, product literature and similar items.
6. TRADEMARKS. Licensee shall have the right, from time to time
in its discretion and at its expense, to develop, file for, register, maintain,
protect and defend one or more suitable trademarks (the "TRADEMARKS") for use
solely in the United States of America in connection with the License and the
Products. If required by law, Licensor will apply for or join with Licensee in
applying for registration of such Trademarks and hereby assigns to Licensee all
Licensor's right, title and interest in such Trademarks.
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7. REPRESENTATIONS AND WARRANTIES. The truth and accuracy of the
following representations and warranties constitute a material part of the
consideration for the execution and delivery of this Agreement:
7.1 Representations, Warranties and Covenants of Each
Party. Each of Licensor and Licensee hereby represents, warrants and covenants
to the other as follows:
(a) It has the power and authority to execute and
deliver this Agreement and to perform its
obligations hereunder;
(b) the execution, delivery and performance of
this Agreement by such party and its
compliance with the terms and provisions
hereof do not and will not conflict with or
result in a breach of any of the terms and
provisions of or constitute a default under
any applicable governing document or any
agreement, contract or other arrangement to
which it is a party or by which it is bound;
(c) this Agreement constitutes such party's
legal, valid and binding obligation
enforceable against it in accordance with its
terms; and
(d) it will comply with all applicable material
laws and regulations relating to its
activities under this Agreement.
7.2 Representations and Warranties of Licensor. In
addition to its representations and warranties made in Paragraph 7.1 above,
Licensor hereby further represents, warrants and covenants to Licensee as
follows:
(a) No Person other than Licensor and Licensee
has or will have any intellectual property
rights in and to any of the Products that
would be infringed by Licensee's activities
contemplated by the License.
(b) Licensor will indemnify and hold harmless
Licensee from and against any and all
liability, loss, damage, cost and expense
(including reasonable attorneys' fees) which
Licensee may incur, suffer or be required to
pay resulting from or arising in connection
with (i) any material breach by Licensor of
any representation, warranty or covenant
contained in this Agreement, or (ii) the
infringement of any trademarks, patents,
copyrights or other intellectual property
rights of any Person which arises from the
manufacture, marketing or sale of any of the
Products by or for the account of Licensee.
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8. ASSIGNMENT. Licensee may freely assign its rights and
delegate its duties hereunder.
9. MISCELLANEOUS.
9.1 Law Governing. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of California. All
actions and proceedings arising in any manner out of or from this Agreement
shall be litigated only in courts having situs within the County of Los
Angeles, State of California, and each party hereby consents and submits to the
jurisdiction of any local, state or federal court located within said County
and State, hereby irrevocably waiving any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding
relating to this Agreement in said County and State and further irrevocably
waiving any claim that said County and State is not a convenient forum of any
such suit, action or proceeding. Each party hereby waives personal service of
any and all process and hereby agrees that service of process may be made on it
by notice given as provided in Paragraph 9.2 of this Agreement.
9.2 Notices. All notices, requests, service of process
and other communications to any party hereunder shall be in writing (including
telex, facsimile transmission or similar writing) and shall be given to such
party at the address set forth below its signature hereon, or such other
address as such party may hereafter specify for the purpose by notice to the
other parties. Each such notice, request or other communication to a party
shall be effective (a) if given by mail, three (3) days after being deposited
in the mails registered or certified, return receipt requested, with postage
prepaid, addressed to such party as aforesaid, or (b) if given by any other
means, when delivered to such party at its address specified as provided in
this Paragraph.
9.3 Entire Agreement. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral agreements, understandings,
negotiations and discussions of the parties. No supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. Each party agrees to execute and deliver such
further instruments as may be necessary or appropriate to further or better
evidence or give effect to the performance of its obligations hereunder.
9.4 Parties Affected. This Agreement shall be binding on
and shall inure to the benefit of the parties, their heirs, successors and
assigns and each and every person, corporation or firm that is now or hereafter
may be in control of, controlled by or under common control with any of them,
and the heirs, successors and assigns of each such person, corporation or firm.
9.5 Counterparts. This Agreement may be executed in one
or more counterparts,, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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9.6 Headings. Captions and paragraph headings used
herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
LICENSOR: FRAGRANCE BUSINESS COMPANY LIMITED LICENSEE: OROAMERICA, INC.
PRO - DIRECTOR REPRESENTED BY:
GUY BENHAMOU
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ADDRESS: ADDRESS:
Anemomylos Offices 443 North Varney Street
Suite 104 Burbank, California 91602-1733
8, M. Karaolis
P.O. Box 3957
1687 Nicosia, Cyprus
PIERRE LOUIS REPELLIN
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ADDRESS:
5, rue Cirrode
06400 Cannes, France
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