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EXHIBIT 10.22
DISTRIBUTION AND SUBLICENSE AGREEMENT
THIS TERRITORIAL DISTRIBUTION
AND SUBLICENSE AGREEMENT (the "AGREEMENT"), is
entered into as of the 1st
day of December, 2004 (the "EFFECTIVE DATE"), by and
between Alfred Hanser, an
adult individual residing in the county of San Diego,
State of California
(hereinafter referred to as the "Sublicensor") and
FEMONE,
INC., a Nevada corporation
(hereinafter referred to as the "SUBLICENSEE").
WHEREAS, the Sublicensor has entered into that certain
Distribution
Agreement, dated as of
February 8, 2002 (the "DISTRIBUTION AGREEMENT", a copy
of
which is attached hereto as
EXHIBIT A), with Channoine Cosmetics AG
Liechtenstein, a corporation
located in the principality of Liechtenstein,
Europe ("CHANNOINE"),
pursuant to which Channoine granted the Sublicensor the
exclusive right to distribute
Channoine Cosmetic products (the "PRODUCTS") as
listed in Exhibit A attached
to the Distribution Agreement throughout North
America (the
"TERRITORY");
WHEREAS, the Distribution Agreement grants the Sublicensor the
right to
grant a sublicense to a third
party in accordance with the terms of the
Distribution Agreement;
and
WHEREAS, Sublicensor desires to grant Sublicensee, and
Sublicensee
desires to accept a
sublicense to distribute the Products through the Direct
Response Television Shopping
marketing channel (the "DIRECT RESPONSE TELEVISION
SHOPPING CHANNEL") throughout
the Territory, subject to the terms and conditions
set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the
covenants and agreements set
forth herein, and for other good and valuable
consideration, the receipt
and sufficiency of all of which are hereby
acknowledged, the parties,
intending to be legally bound, hereby agree as
follows:
SECTION 1. DISTRIBUTION
RIGHTS. Subject to the terms of this Agreement,
Sublicensor hereby grants
Sublicensee an irrevocable, fully paid, exclusive
sublicense (the "SUBLICENSE")
to distribute the Products in the Territory.
Unless otherwise agreed to in
writing by the parties, the Sublicense granted to
the Sublicensee hereunder is
limited to distribution of the Products through the
Direct Response Television
Shopping Channel, as defined above.
SECTION 2. DURATION OF
CONTRACT
2.1 The initial term of this Agreement shall be for a period of
five
(5) years from the date
hereof, and thereafter, Sublicensee shall have five (5)
options to renew for
additional, consecutive five (5) year terms (the initial
term and each renewal term is
collectively referred to herein as the "TERM").
Each option to renew shall be
exercisable by the Sublicensee by delivering
written notice of
Sublicensee's election to exercise the option to the
Licensor
not less than one (1) month
prior to the conclusion of the then-current term.
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2.2 Sublicensee may terminate this Agreement at any time, with
or
without cause, upon one
month's prior written notice to Sublicensor.
2.3 If, during the term of this Agreement, Sublicensee is in
material
breach of the terms hereof,
Sublicensor may give written notice of such breach
to Sublicensee and
Sublicensee shall have an opportunity to cure the breach
within thirty (30) days (the
"CURE PERIOD"). If such breach is not cured within
the Cure Period, Sublicensor
may immediately terminate this Agreement by
subsequent written notice to
Sublicensee.
SECTION 3. PRICING AND TERMS
OF PURCHASE.
3.1 QUALITY OF PRODUCTS. Sublicensor shall make available
for
distribution by sublicense
the same selection, quantity and terms of delivery of
Products that is made
available by Channoine to Sublicensor, including the
addition of new Products as
set forth in Section 5 of the Distribution
Agreement.
3.2 PRICING OF PRODUCTS. To the extent the Products are
directly
provided to Sublicensee by
Sublicensor, Sublicensor agrees that such Products
shall be the same selection,
quantity and terms of delivery of Products that is
made available to Sublicensor
by Channoine, and that Sublicensee shall pay no
more for the Products or
delivery thereof than Sublicensor would pay to
Channoine, it being
understood and agreed by the parties that Sublicensor
shall
not earn any commission,
rebate, refund, or any other compensation in connection
with Sublicensee's
distribution of Products hereunder (other than as
specifically outlined in this
Agreement). Sublicensor shall promptly notify
Sublicensee of any changes to
the Products, prices or related terms that are
announced by
Channoine.
3.3 QUALITY OF PRODUCTS. Sublicensor makes no representation
or
warranty regarding the
quality of the Products made available to Sublicensee by
Channoine or any third party
hereto.
3.4
QUANTITY OF PRODUCTS. Sublicensor makes no representation
or
warranty regarding the
ability of Channoine, or any third party hereto to
provide the Products to
Sublicensee for distribution in a quantity sufficient to
meet the requirements of
Sublicensee, or at all.
SECTION 4. SUPERVISION BY
SUBLICENSOR. As required under Section 8 of the
Distribution Agreement,
Sublicensor and Sublicensee agree that Sublicensor will
supervise and assure
Sublicensee's compliance with Channoine's quality
standards
at all times, including
without limitation review of all collateral material
used by Sublicensee. In the
event that the Sublicensor believes that any
activity by Sublicensee is
compromising, or might compromise Channoine's quality
standards, Sublicensor shall
immediately notify Sublicensee in writing,
describing in detail the
nature of the activity, and provide Sublicensee a
reasonable opportunity to
address and rectify the matter.
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SECTION 5. SUBLICENSOR'S
COVENANTS, REPRESENTATIONS AND WARRANTIES. Sublicensor
hereby represents, warrants,
and agrees:
5.1 that Sublicensor will not willfully or intentionally terminate
the
Distribution Agreement prior
to the termination of this Sublicense Agreement;
5.2 that Sublicensor will use his best efforts to comply in
all
respects with each and every
obligation of Sublicensor under the Distribution
Agreement and to keep the
Distribution Agreement in full force and effect;
5.3 that Sublicensor will not take or permit others under his
control
or direction to take any
actions that will or are likely to result in damage to
Channoine's reputation or
quality standards;
5.4 that Sublicensor will immediately deliver to Sublicensee a copy
of
all notices and
correspondences to or from Channoine relating in any way to
any
alleged breach or
non-compliance by Sublicensor or Channoine under the
Distribution
Agreement;
5.5 the Sublicensor will not amend the Distribution Agreement
without
first providing notice to
Sublicensee of such amendment(s);
5.6 that, upon written request by Sublicensee, Sublicensor will use
his
best efforts to act on
Sublicensee's behalf with respect to the enforcement of
any rights of Sublicensor
under the Distribution Agreement in the event of any
default by Channoine under
the Distribution Agreement;
5.7 that, as of the Effective Date, (i) the Distribution
Agreement,
attached hereto as EXHIBIT A,
is a true, complete and correct copy of the
Distribution Agreement, and
there are no other agreements which modify its
terms, (ii) the Distribution
Agreement is in full force and effect, and that, to
the best of Sublicensor's
knowledge, there exists under the Distribution
Agreement, no default or
event of default by either Channoine or Sublicensor,
and (iii) the Products comply
with all local, state and federal laws relating to
the distribution and use
thereof within the Territory, provided, however,
Sublicensor makes no
representation or warranty that the Products or the
labeling thereof comply with
the laws of the countries of Canada or Mexico.
SECTION 6. SUBLICENSEE'S
COVENANTS, REPRESENTATIONS AND WARRANTIES. Sublicensee
hereby represents, warrants,
and agrees:
6.1 that Sublicensee has received and reviewed the
Distribution
Agreement and is aware of
Sublicensor's obligations thereunder; and
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6.2 without limiting any rights and obligations provided by
law,
Sublicensee and/or any
affiliated entity will not pursue or avail itself of any
opportunities discovered by
or made available to Sublicensee in connection with
the performance of
Sublicensee's activities relating to this Agreement,
without
first offering such
opportunity to Sublicensor to participate in the same.
SECTION 7. TRADEMARKS. The
parties acknowledge and agree that Channoine and its
suppliers have acquired
various patents, trademarks, trade names, and trade
secrets to the Products, and
that matters relating to the manufacture,
production and distribution
of the Products constitute confidential information
and trade secrets of
Channoine and its suppliers and are not commonly known
or
accessible to the trade.
Sublicensor hereby grants Sublicensee the right to use
trade names, confidential
information or trad
