EXHIBIT 10.7
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is entered into as of this
20th day of May, 2005 by and between Nutra-Nano Tech, Inc., a Delaware
corporation ("Licensee), on the one hand, and Eugene Science, a Korean
corporation ("Licensor"), on the other hand. Licensor and Licensee are
hereinafter, at times, collectively referred to as the "Parties," and each
individually as a "Party."
RECITALS:
A. WHEREAS, Licensor is the developer and proprietary owner of
the patented process(es) used to manufacture the food ingredient known under the
Korean trade-name and trademark "Cholzero" (the "Ingredient")';
B. WHEREAS, Licensor and/or its subsidiaries and affiliates
develop and manufacture, and will continue to develop and manufacture, products
containing the Ingredient (the "Products");
C. WHEREAS, Licensee desires to obtain from Licensor an exclusive
license to distribute, market, advertise, sell and otherwise exploit the
Products, and Licensor desires to grant to Licensee an exclusive license to
distribute, market, advertise, sell and otherwise exploit the Products, in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
AGREEMENT
1. LICENSED RIGHTS. Licensor hereby grants to Licensee an
exclusive license to distribute, market, advertise, sell and otherwise exploit
the Products throughout the territory of North America (the "Territory").
Without limiting the generality of the foregoing, the rights herein granted also
include (collectively, the "Rights"):
(a) MARKETING AND ADVERTISING. The right to advertise and
market the Products including such Products first manufactured after the date
hereof.
(b) USE OF NAME. The right to use, in a reasonable and
customary manner, Licensor's name in, and in connection with, any advertising
and marketing medium that will be used to distribute, sell, and otherwise
exploit the Products. The rights to use, exploit, register and protect the name
"CholZero" in the Territory under Licensee's name.
(c) SUBLICENSE. Licensee shall have the right to
sublicense the Rights subject to the terms and conditions of this Agreement.
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(d) NO OBLIGATION TO PROCEED. Nothing contained in this
Agreement shall be construed as requiring Licensee to exercise or exploit, or
continue to exercise or exploit, any of the Rights herein granted.
(e) RIGHT OF FIRST OFFER. Licensor grants to Licensee a
right of first offer (the "RFO") with respect to the same or similar Rights
being offered to third parties in those territories, other than the Territory,
which do not currently have established distribution agreements in effect (the
"Additional Territory Rights"). If Licensor desires to grant Additional
Territory Rights to any third party, then Licensor shall first give Licensee
notice of the availability of acquiring such rights prior to the offering of
such Additional Territory Rights to a third party (the "Offer Notice"). To
exercise the RFO, Licensee, within thirty (30) days after Licensor's offer to
acquire the Additional Territory Rights and the Parties shall thereafter enter
into an amendment to this Agreement or such other contract agreement to reflect
such modification.
2. TERM. The Rights granted to Licensee herein shall be for an
initial period of eighteen (18) months commencing on the date of Licensee's
first receipt of a shipment of Product that Licensee orders from Licensor (the
"Term"). Each Party shall have the right to terminate this Agreement, effective
upon the conclusion of the Term, by providing written notice to the other Party
no later than six (6) months prior to the conclusion of the Term. In the event
that neither Party terminates this Agreement, the Rights granted to Licensee
hereunder shall automatically extend for an unlimited number of five (50 year
periods commencing upon the expiration of the Term (each, an "Option Term").
Thereafter, in the event either Party desires to terminate the Agreement,
effective upon the conclusion of the Option Term, such Party must provide prior
written notice to the other Party no later than twelve (12) months prior to the
conclusion of each Option Period.
3. PAYMENT. In consideration of the Rights granted herein,
Licensor shall have the right, but not the obligation, to purchase fifty-one
percent (51%) of Licensee, at any time upon six (6) months written notice to
Licensee (the "Option Notice"). The purchase price shall be determined at the
time of Licensee's receipt of the Option Notice. If Licensee is a publicly
traded company, the price will be determined at the published closing market
price of the exchange Licensee is traded on. If Licensee is not publicly traded,
then the market valuation of Licensee shall be determined by three (3)
independent nationally recognized accounting companies, with the final market
valuation determined by a quotient, the numerator being the sum of all three
separate valuations and the denominator being three (3).
4. PURCHASING OF PRODUCTS. Licensee will, from time to time,
submit purchase orders to Licensor to purchase Products from Licensor. With
respect thereto, Licensee shall be entitled to a most favored nations'
definition of such terms and conditions with respect to all other purchasers of
the Products from Licensor. Notwithstanding the foregoing, all shipments of the
Products to Licensee will be F.O.B. destination, as designated by Licensee.
5. MARKETING AND ADVERTISING. Upon execution of this Agreement
and, with respect to the Products, upon the request of Licensee at any time
thereafter, Licensor shall provide Licensee with all marketing and advertising
materials, testimonials, reports, surveys, summaries,
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or any other information requested by Licensee that relates to the ingredient
and/or the Products that is in Licensor's possession or control.
6. REPRESENTATIONS AND WARRANTIES. Licensor hereby represents and
warrants that: (a) the Ingredient is solely owned by Licensor; (b) neither the
Ingredient, nor any element contained therein infringes upon the rights held by
any third party; (c) Licensee's incorporation of the Ingredient into the
Products will not infringe upon any right granted to any third party by
Licensor; (d) Licensor owns all rights in and to the Products; (e) Licensor owns
all rights granted to Licensee herein free and clear of any liens, encumbrances,
other third party interests of any kind, and free of any claims or litigation,
whether pending or threatened, or exploitation in any other format, other than
those previously disclosed to Licensee in writing prior to the execution of this
Agreement; and (f) Licensor has full right and power to make, enter, and perform
this Agreement without the consent of any third party. Licensor shall indemnify
Licensee against any liability, damages, costs and expenses (including
reasonable attorneys' fees and costs) incurred by or reasonably expected to be
incurred by Licensee by reason of any claim arising in connection with the
Ingredient, any breach of Licensor's representations, warranties or agreements
herein, or infringement of any Right granted herein. Licensee shall be entitled
to the agreements herein, or infringement of any Right granted herein. Licensee
shall be entitled to the foregoing regardless of whether any litigation,
arbitration, or other proceeding is formally instituted, and said rights shall
arise immediately at such time said claim is asserted against Licensee, whether
formally or informally, directly or indirectly. This indemnity will not limit
any other right of indemnity of Licensee.
7. ADDITIONAL DOCUMENTS. At Licensee's request, Licensor will
execute, acknowledge and deliver to Licensee any and all additional documents
Licensee may deem necessary to evidence and effectuate any and all of Licensee's
rights under this Agreement including:
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. Except as herein expressly
provided, this Agreement cancels and supersedes all prior negotiations and
undertakings relating to the Property and contains all terms and conditions,
pertaining to the subject hereof. If there is any conflict between any provision
of this Agreement and any present or future statue, law, ordinance, regulation
or collective bargaining agreement the latter shall prevail; provided, that the
provision hereof so affected shall be limited only to the extent necessary and
no other provision shall be affected.
(b) NOTICES. All written notices which either Party
hereto is required or may desire to give to the other shall be given by
delivering or mailing the same to the other at the address shown below, or at
such other address as may be designated in writing in a notice to the other
given as aforesaid. Notices between the Parties shall be addressed as follows:
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If to Licensee:
Nutra-Nano Tech, Inc.
6300 Wilshire Boulevard, Suite 1730
Los Angeles, California 90048
Attn: Tony Kim
Facsimile: (213) 745-4729
With a copy to:
Eisner & Associates
9777 Wilshire Blvd., Suite 718
Beverly Hills, CA 90212
Attn: Randall Fink, Esq.
Facsimile: (310) 205-6081
If to Licensor:
Eugene Science
16-7, Samjung-Dong,
Ojung-Gu, Bucheon,
Kyonggi-Do, Korea,
Facsimile: 82-2-338-6096
Notices shall be sufficiently given when hand-delivered or when the
same shall be deposited so addressed, postage prepaid, in the United States mail
and/or when the same shall have been transmitted by facsimile or similar means
with confirmation thereof, and the date of said notice shall be: (i) the date of
personal delivery or facsimile with confirmation; or (ii) three (30 days after
mailing.
(c) GOVERNING LAW; VENUE; JURISDICTION. This Agreement
shall be governed and construed in accordance with the laws of the State of
California applicable to contracts entered into and fully performed therein. The
Parties hereto submit to the soles and exclusive jurisdiction and venue of the
state and federal courts in the county of Los Angeles, State of California,
Central District.
(d) PARTICIPATION IN DRAFTING. Each Party has
participated in, cooperated in, or contributed to, the drafting and preparation
of this Agreement. IN any construction of this Agreement, the same shall not be
construed for, or against, any Party, but shall be construed fairly according to
its plain meaning. Each Party has had the opportunity to consult with an
attorney regarding its rights and obligations under this Agreement.
(e) ATTORNEY'S FEES IN THE EVENT OF DISPUTE. If any legal
action, dispute, or other proceeding arises or is commenced to interpret,
enforce or recover damages for the breach of any term of this Agreement, the
prevailing Party shall be entitled to recover reasonable attorney's fees
incurred in connection with that action, in addition to costs of suit.
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(f) RELATIONSHIP OF THE PARTIES. The parties agree that
they shall have at all times at all during the Term this Agreement, including
any and all extensions, an independent contractor relationship, and that neither
Party, is an agent or employee of the other Party. The Parties agree that this
Agreement shall not, and is not intended to, create an agency or partnership
relationship. This Agreement is not for the benefit of any third party, whether
or not referred to herein. Captions and organization are for convenience only
and shall not be used to construe meaning. A waiver of any breach shall not
waive a prior or subsequent breach. Except as otherwise provided herein, all
remedies shall be cumulative and pursuit of any one shall not waive any other.
This Agreement may be signed in counterpart and by facsimile, each of which
shall be deemed an original, but all of which together shall constitute the
Agreement.
(g) SEVERABILITY. In the event that any provision of this
Agreement should be held to be void, voidable, or unenforceable, the remaining
portions hereof shall remain in full force and effect.
(h) MODIFICATION. This Agreement may not be modified in
any respect except by an instrument in writing signed by all Parties.
(i) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of this Agreement are deemed to survive the date
of execution hereof.
(j) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in counterparts and by facsimile, and each such counterpart
and/or facsimile signature shall be deemed to be an original, and all of which
when taken together shall constitute one executed agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first written above.
EUGENE SCIENCE NUTRA-NANO TECH, INC.
("Licensor") ("Licensee")
/S/ SEUNG KWON NOH /S/ TONY KIM
----------------------- -----------------------
By: Seung Kown Noh By: Tony Kim
Its: President Its: President
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