Exclusive Sales Representative Agreement
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EXCLUSIVE SALES AGREEMENT *
This Exclusive Sales Agreement (the “ Agreement ”) is entered into by Lazare Kaplan International Inc., a Delaware corporation (“ Lazare ”), Lazare Kaplan Japan Inc., a Japan branch office of a wholly-owned subsidiary of Lazare (“ Lazare Japan ”), and Primo Japan Co. Ltd., a company organized under the laws of Japan (“ Primo ”) (each individually referred to as a “ Party ,” and collectively as the “ Parties ,”), on December 10, 2007, and shall be effective from the date (the “ Effective Date ”) upon which Lazare receives full and final payment of the royalty described in Article 2 of the License Agreement entered into between Lazare and Primo on December 10, 2007 (the “ License Agreement ”).
WITNESSES THAT WHEREAS:
A. Primo is a manufacturer and distributor of jewelry in Japan;
B. Lazare is a cutter, manufacturer and seller of branded diamonds, branded diamond jewelry, and other products bearing a “Lazare Diamond” logo (the “ Products ”), and of other products;
C. Lazare wishes to expand the sales of the Products in Japan, and Primo believes it can help Lazare achieve this goal;
Lazare therefore wishes to grant to Primo exclusive distributorship rights to sell the Products in Japan, and Primo wishes to accept such grant and to become an exclusive distributor of the same, subject to the terms and conditions set forth below.
1.1 Appointment. Subject to the terms and conditions of this Agreement, Lazare hereby appoints Primo, and Primo hereby accepts appointment as Lazare's exclusive distributor of the Products to customers (whether resellers or end users) in the territory of Japan (the “ Territory ”) for distribution in the Territory only. [*]
1.2 Limitations. Primo shall not distribute the Products except as expressly set forth in this Agreement. Primo agrees that, within the Stand Alone Stores (as defined below), the in-store boutiques, and other points of sale where the Products are sold, it shall not offer for sale, sell, or otherwise distribute or in any way promote any products other than the Products. Except as expressly provided in this Agreement, no right, title or interest is granted by Lazare to Primo. Without limiting the foregoing, no right, title or interest is granted by Lazare to Primo relating to products other than the Products.
* Certain portions of this Agreement have been omitted pursuant to a request for confidential treatment.
For the avoidance of doubt and without limitation, Lazare and its affiliates reserve the right to sell and distribute products other than the Products within the Territory.
1.3 Distributorship Within the Territory. Primo acknowledges and understands that the grant of rights under this Agreement is limited to distributing and promoting for sale the Products within the Territory, and without limitation Primo covenants and agrees with Lazare that it shall not, directly or indirectly, transport or cause any person to transport for sale any of the Products to a location outside the Territory, or sell any Products to any person who reasonably foreseeably intends to transport for resale any of the Products to a location outside the Territory.
3.1 General Representations and Warranties of Each Party. Each Party respectively represents and warrants to the other Parties that:
(a) It is a company, and is duly formed, and validly existing under the laws of the place of its incorporation as stated in the first paragraph of this Agreement. It has taken all necessary action to authorize its execution, delivery and performance of this Agreement and, assuming due authorization, execution and delivery by each Party, this Agreement and all the obligations hereunder shall be legal, valid and binding obligations, enforceable in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights; and
(b) No petition seeking or acquiescing in any bankruptcy, corporate rehabilitation, composition, special liquidation or corporate reorganization or other similar relief under applicable law has been filed by it or, to the best of its knowledge, by any party against it, and it is not insolvent, and the consummation of the transactions contemplated by this Agreement will not render it insolvent. As of the date of this Agreement, it has the financial ability to meet its obligations under this Agreement; and
(c) Its entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party and by which it is bound.
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7.1 Ownership. Lazare, Lazare Japan, and Primo shall each remain the sole owners of its respective trademarks, trade names, logos, copyrights, designs and other intangible assets (collectively, the respective Party’s “ Intellectual Property ”) and will take no action to impair or contest another Party’s Intellectual Property. Any use by Primo of Lazare’s Intellectual Property, except use of the Lazare Marks as defined in the License Agreement (any use by Primo of which shall be made in accordance therewith), requires Lazare’s prior written approval, such approval which shall not be deemed to be a representation or warranty that such use is legal, valid, or proper. Nothing in this Agreement gives any Party or any third party any right, title or interest in or to any of another Party&rsq