Assignment of License Agreement - Omniscent Corp., Sharon Lallouz and Nimbus Group Inc.
ASSIGNMENT OF CONTRACT
THIS ASSIGNMENT AGREEMENT (the "Agreement"), is dated as of May 22, 2003 by and
between Omniscent Corp, Inc., a Florida Corporation, through its Chief Executive
Officer, and Sharon Lallouz, collectively, the undersigned Assignors
("Assignors") and Nimbus Group, Inc. a Florida Corporation. The undersigned
Assignee ("Assignee").
WITNESSETH:
WHEREAS, as of January 5, 2003 Assignors entered into a certain
licensing Agreement (the "License") pursuant to which they agreed to enter into
a certain license to develop, sell and market a fragrance under the brand name
known as Phantom (The "Brand")
WHEREAS, Since January 5, 2003 and as contemplated by the Agreement,
Assignors developed the brand.
WHEREAS, Assignee desires to acquire the License and Assignors desires
to assign the rights to the License to Assignee as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, the parties hereto agree as follows
FOR GOOD AND VALUABLE CONSIDERATION, Assignors hereby assigns, transfers and
sets over to Assignee all rights, title and interest held by the Assignors in
and to the License:
The Assignors warrants and represents that said License is in full force and
effect and is fully assignable.
The Assignors warrants that the License is without modification, and remains on
the terms contained.
The Assignors further warrants that it has full right and authority to transfer
said License and that the License rights herein transferred are free of lien,
encumbrance or adverse claim.
The Assignee hereby assumes and agrees to perform all the remaining and
executory obligations of the Assignors under the License and agrees to indemnify
and hold the Assignor harmless from any claim or demand resulting from
non-performance by the Assignee.
The Assignee shall collect 100% of the royalties under the License. Assignee
will be entitled to keep 70% of royalties and remit to Assignor 30% of the
monies it collects
<PAGE>
under the License and shall remit it to Assignors 5 business days after receipt
of monies under the License. Assignee is not entitled, and will not share to any
other monies received by Assignors Prior to, nor after the assignment date of
this agreement, (Assignment) for the development rights of the brand which
rights are not assigned herein.
ASSIGNMENT AND DELIVERY OF CERTAIN ASSETS.
The Assignee shall cause the issuance of 2,500,000 Shares of Assignee's
Preferred Convertible Stock to Assignors and Assignors shall deliver to Assignee
the License Agreement in the form attached hereto as Exhibit A.
Termination Option for Material Breach. Except as otherwise provided in this
Section if Assignee breaches any of its obligations under this Agreement,
Assignor may terminate this Agreement by giving a notice of breach to Assignee.
Termination will become effective automatically unless Assignee completely cures
the breach within thirty (30) days after the giving of such notice.
Termination Option/Change of Ownership. The parties mutually acknowledge that
this Agreement is being entered into based upon Assignors' evaluation of and
reliance upon the current Ownership, management and control of Assignee. On the
basis of the information provided by Assignee to Assignors, Assignors have
determined that current management of Assignee has the technical, marketing and
sales expertise, business reputation and sensitivity to Assignors unique image
and to the goodwill represented by the Trademarks, all of which are necessary to
carry out the purposes of this Agreement. Neither this Agreement nor any of the
Assignee's rights hereunder are assignable by Assignee, without the prior
written consent of Assignors which consent will not be unreasonably withheld.
Termination Option/Additional Causes. ASSIGNORS may terminate this Agreement
immediately without any right to cure if any of the following events occur:
(a) ASSIGNEE merges or consolidates with or into any other
unaffiliated corporation, or directly or indirectly sells or otherwise
transfers, sells or disposes of all or a substantial portion of its business or
assets; and
(b) ASSIGNEE intentionally reports materially incorrect or
false , sales or financial information; and
(c) ASSIGNEE is declared bankrupt or is dissolved either
compulsorily or voluntarily, or a petition is presented or an order is made or
an effective resolution is passed or analogous proceedings are taken for
bankruptcy, dissolution, composition, concordance, reorganization or winding-up
of ASSIGNEE, or if ASSIGNEE convenes a meeting for the purpose of making, or
proposes or enters into, any arrangement or composition for the benefit of its
creditors, or if an encumbrances takes possession of, or a receiver or other
similar officer is appointed for, the whole or any part of the assets or
undertakings of ASSIGNEE, or if ASSIGNEE stops payment to its creditors
generally, or ceases or threatens to cease to carry on its business or any
substantial part thereof, or becomes insolvent or unable to pay or discharge its
liabilities in the ordinary course of business, or if ASSIGNEE assigns the whole
or any substantial part of its assets or undertakings for the benefit of
creditors; and
2
<PAGE>
(d) a subcontractor retained by ASSIGNEE manufactures or sells
Products without the express authorization of ASSIGNORS and ASSIGNEE consented
to, and
(e) any other agreement between ASSIGNORS and ASSIGNEE is
terminated or expires.
(f) No Assignee. No assignee for the benefit of creditors,
receiver, liquidator, sequestrator, trustee in bankruptcy, sheriff or any other
officer of the court or official charged with taking over custody of ASSIGNEE's
assets or business shall have any right to continue the performance or rights of
ASSIGNEE under this Agreement.
DISPUTE RESOLUTION
ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, having not been cured within the herein
prescribed time, arising out of or relating to the relationship between ASSIGNOR
(including any of its parents, subsidiaries, officers, employees, affiliates,
agents, and representative, and the officers and employees of all such entitles)
and ASSIGNEE (including any of its parents, subsidiaries, officers, employees,
agents or affiliates, and the officers and employees of all such entities)
including, without limitation, any claim that any terms in this Agreement are
unenforceable or otherwise avoidable, shall be submitted to binding arbitration
and shall be determined in accordance with the rules of the AMERICAN ARBITRATION
ASSOCIATION. Such Arbitration shall be conducted in English before a sole
arbitrator who shall be a United States national, selected in accordance with
said rules. The Arbitration, including the rendering of the award shall take
place in Miami, Florida. The conflict of law rules of the State of Florida shall
be applicable. Judgment upon the award of the Arbitrator may be entered in any
court having jurisdiction thereon. The parties acknowledge that this Agreement
and any award rendered pursuant to it shall be governed by the 1958 United
Nations Convention on the Recognition and Enforcement of Foreign Arbitration
Awards. This clause shall not, however, limit ASSIGNOR's right to institute or
join in any petition or action before a federal bankruptcy court, as may be
necessary in ASSIGNOR's sole subjective judgment, to seek to receive from
ASSIGNEE payments due under this Agreement. Furthermore, this clause shall not
limit ASSIGNEE's or Assignor's right to obtain any provisional remedy,
including, without limitations, injunctive relief, writs for recovery of
possession or similar relief, from any court of competent jurisdiction, as may
be necessary in ASSIGNOR's sole subjective judgment, to protect its trademark or
other property rights including liens and security interests. The existence and
outcome of any arbitration proceedings shall be kept confidential except to the
extent necessary to obtain judgment on or enforce any arbitration award. Either
party may invoke this paragraph after providing thirty (30) days' written notice
to the other party. All costs of arbitration shall be divided equally between
the parties. Any award may be enforced by a court of law.
(a) Entitlement to Costs. If any legal action or dispute
arises under this Agreement, arises by reason of any asserted breach of it, or
arises between the parties and is related in any way to the subject matter of
the Agreement, the prevailing party shall be entitled to recover all costs and
expenses, including reasonable attorneys' fees, investigative costs, reasonable
accounting fees and charges for experts. The "prevailing party" shall be the
party who obtains a final judgment in its favor or a provisional remedy such as
a preliminary injunction or who is entitled to recover its reasonable costs of
suit, whether or not the suit proceeds to final judgment; if there is no court
action, the prevailing party shall be the party who wins any dispute. A party
need not be awarded money damages or all relief sought in order to be considered
the "prevailing party" by a court.
3
<PAGE>
(b) GOVERNING LAW All questions concerning this Agreement, the
rights and obligations of the parties, enforcement and validity, effect,
interpretation and construction which are governed by state law shall be
determined under the laws of the State of Florida. United States federal law
shall apply to all other issues.
This assignment shall be binding upon and inure to the benefit of the parties,
their successors and assigns.
/s/ Sharon Lallouz
----------------------------
Assignor's Signature
/s/ Sharon Lallouz
----------------------------
Assignor's Printed Name
/s/ Michael B. Wellikoff
----------------------------
Assignee's Signature
4