Asset Purchase and Sale Agreement - Parlux Fragrances Inc. and JFC Marks LLC
ASSET PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT, made and entered into as of the 27th day of February
2002, by and between Parlux Fragrances Inc., a Delaware corporation, having a
principal place of business at 3725 SW 30th Avenue, Ft. Lauderdale, Florida
33312 (hereinafter "Seller") and J.F.C. Marks, L.L.C., having a place of
business at 2182 Route 35 Holmdel, New Jersey 07733 (hereinafter " Buyer").
WITNESSETH
WHEREAS, Seller presently owns certain trademarks, trade names,
registrations and/ or applications for the Trademark (as that term is defined
below) Alexandra de Markoff, as well as certain Know-How (as that term is
defined below) and product information relating to cosmetic products which have
been sold under or associated with the Trademark;
WHEREAS, Cosmetic Essence, Inc. and Seller entered into a License
Agreement (hereinafter "License Agreement") on March 3, 1998 which agreement was
assigned by Cosmetic Essence, Inc. to Adem Cosmetics, Inc. which is currently in
force; and
WHEREAS, Buyer wishes to purchase from Seller and Seller wishes to sell
to Buyer the Trademarks and Know-How and to assume the Seller's rights and
obligations under the License Agreement now in existence between them.
NOW THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties hereby covenant and agree as
follows:
1. DEFINITIONS
1.1 "Closing Date" shall mean the date on which the transactions
contemplated by this Agreement are consummated.
1.2 "Conveyed Assets" shall mean the Know-How and Trademarks as
those terms are defined below. The conveyed assets shall also
include the License Agreement.
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1.3 "Know-How" shall mean all technical information procedures,
processes , trade secrets, formulae for the perfume oil and
applicable production methods, practices, techniques, parts,
diagrams, drawings, specifications, blue prints, lists of
materials, production manuals and data relating to the design,
manufacture, production, inspection and testing of the
Products known by, available to or used or owned by Seller.
"Products" shall mean all products on which Seller or its
licensees have used the Trademarks.
1.4 "Trade Marks" shall refer to those U.S. and foreign trade
marks, services marks, imprints, logos , trade dress and trade
names whether or not registered and all issued registrations,
pending applications as set forth on Schedule A relating to
the name "Alexandra de Markoff" and all other names designs
logos trademarks trade names and the like used on or in
connection with Products bearing the names as set forth on
that Schedule.
1.5 "Territory" shall mean worldwide without exclusion.
2. PURCHASE AND SALE
2.1 Upon the terms and subject to the conditions of this
Agreement, and in reliance on the representations, warranties
and covenants set forth in this Agreement, Buyer agrees to
purchase for the purchase price set forth below on the Closing
Date the Conveyed Assets and Seller will sell, convey,
transfer, deliver and assign to Buyer, all rights, title and
interest in and to the Conveyed Assets. The sale, assignment,
conveyance, transfer, and delivery by Seller of the Conveyed
Assets shall be made at the Closing by a duly executed
Assignment and Assumption of License (including any royalties
or payments due thereunder accruing on or after January 1,
2002), Assignment for the Trademarks and Know-How, and a Bill
of Sale for all tangible forms or embodiments of the
Trademarks and Know-How, such Assignment of Trademarks, Bill
of Sale and Assignment and Assumption of License Agreement
shall be in the form annexed as Exhibits A and B, respectively
(the "Bill of Sale" and "Assignment") as well as any other
assignments, conveyances and bills of sale sufficient to
convey to Buyer good and marketable title to all the Conveyed
Assets free and clear of all mortgages, pledges, liens,
licenses, rights of possession, security interest,
restrictions, encumbrances, charges, title retention
conditionals sale or other security arrangements and all
claims or agreements of any nature whatsoever, (as well as
such other instruments of conveyance as Buyer may reasonably
deem necessary or desirable both at and after the Closing Date
to effect or evidence the transfers contemplated hereby).
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2.2 The execution and delivery of this Agreement shall not be
deemed to confer any rights upon any person or entity other
than the parties hereto, or make any person or entity other
than the parties hereto, or make any person or entity a third
party beneficiary of this Agreement, or to obligate the
parties to any person or entity other than the parties to this
Agreement. This Agreement is intended by the parties to be an
agreement for the sale and purchase of Conveyed Assets; and
none of the provisions hereof shall be deemed to create any
obligation or liability on the part of Buyer to any person or
entity that is not a party to this Agreement, whether under a
third party beneficiary theory, successor liability theory, or
otherwise.
3. CLOSING
The Closing Date shall be as of the close of business on February 28th,
2002 or such other date as the parties may agree (the "Closing Date").
Conveyed Assets, all of which shall be transferred to Buyer, as
provided for herein. In no event shall Buyer be required to proceed in
accordance with the Agreement unless and until each and every condition
precedent as set forth in the Agreement shall have been satisfied,
waived or made a condition subsequent. If on March 8th, 2002 the
parties have not satisfied all conditions precedent, then Buyer, may
terminate this Agreement in the manner provided in Paragraph 15.
4. DELIVERIES AT THE CLOSING
4.1. At the Closing, Buyer shall deliver the following:
(a) Three million eight thousand dollars ($3,008,000.00) in
immediately available funds by wire transfer;
(b) certified copies of resolutions duly adopted by Buyer
constituting all necessary corporate authorization for the consummation
by Buyer of the transactions contemplated by this Agreement; and
(c) executed copies of the Assignment and Assumption of the
License Agreement as set forth in Exhibit A
4.2 At the Closing, Seller shall deliver the following:
(a) certified copies of resolutions duly adopted by Seller
constituting all necessary corporate authorization for the consummation
by Seller of the transactions contemplated by this Agreement;
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(b) the Assignment and Bill of Sale, duly executed by Seller
in the form set forth in Exhibit B transferring title to the Conveyed
Assets, duly executed by Seller, and whatever additional documents of
title, such as invoices, endorsements, or other documents as Buyer may
reasonably request;
(c) an assignment of any warranties for the Conveyed Assets
being transferred hereunder;
(d) executed copies of the Assignment and Assumption of the
License Agreement as set forth in Exhibit A;
(e) executed copies of the Assignment of Trademarks as set
forth in Exhibit C;
(f) executed release of liens on the Trademarks;
(g) any other records, lists, or reports required hereunder or
reasonably requested by Buyer which pertain to the Conveyed Assets
being purchased hereunder; and
(h) documents, in a form reasonably satisfactory to Buyer
confirming release of any and all liens, security interest,
restrictions, claims and encumbrances of the Conveyed Assets as of the
Closing Date.
5. PURCHASE PRICE
The purchase price (hereinafter " Purchase Price") to be paid for the
conveyed Assets shall be U.S. $3,008,000.00. This sum shall be paid by
Buyer in immediately available funds at the Closing.
6. TAXES AND TRANSFER COSTS
6.1 Any sales, transfer, documentary, or excise taxes applicable
to the transfer of any Assets from Seller to Buyer shall be
paid by Seller whenever due or assessed. Seller shall also
prepare and file whatever returns as may be required in
connection with any of the foregoing taxes. Seller shall also
make payment of all personal property, real property, ad
valorem, franchise, and similar taxes which are due and owing
on the Conveyed Assets up until the Closing Date.
6.2 Buyer shall pay all fees incurred in transferring any
Trademark or other forms of intellectual property
registrations and or applications on the Conveyed Assets.
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7. BROKERS AND FINDERS
Each of the parties hereby represents and warrants to the other that it
has not employed or dealt with any broker or finder in connection with
this Agreement or the transactions contemplated hereby, and agrees to
indemnify the other and hold it harmless from any and all liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements paid or incurred in connection with any such liabilities)
for any brokerage commissions or finders' fees in connection with this
Agreement or the transactions contemplated hereby, insofar as such
liabilities shall be based on the arrangements or agreements made by or
on its behalf.
8. SELLER'S OBLIGATIONS
8.1 In advance of the Closing, Seller shall obtain whatever
releases are required to transfer the Conveyed Assets free and
clear of any and all liens, security interests, restrictions,
claims and encumbrances which all may subsist on the Conveyed
Assets so that the Conveyed Assets may be transferred to Buyer
on the Closing Date free and clear of all of the foregoing.
8.2 Prior to the Closing Date, Seller shall afford Buyer, at
reasonable times and on reasonable notice, the opportunity to
make such inspections of Seller's records pertaining to the
Conveyed Assets being transferred, as Buyer shall deem
reasonably necessary.
8.3 Following the Closing Date, Seller will discontinue any use of
the Trademarks or the Know-How and shall not authorize any
other person to so use the Trademarks or Know-How.
8.4 From and after the Closing Date, Seller shall take such
actions and promptly execute and deliver to Buyer any and all
such further assignments, licenses, endorcements or other
documents as Buyer my request from time to time for purposes
of carrying out the transfer of the Conveyed Assets or
permitting Buyer to better enjoy or exploit or perfect its
interest or rights in the Conveyed Assets or assist Buyer in
maintaining its exclusive rights in and to the Conveyed Assets
or to permit Buyer to more fully exploit its rights in the
Trademarks or Know How.
9. BULK TRANSFERS
Seller represents that the transfer of Conveyed Assets is not covered
by the provisions of the Bulk Transfer Law of the UCC, or any similar
statute and agrees to indemnify Buyer for any and all claims, losses,
damages, judgments, together with penalties, expenses and reasonable
attorney's fees suffered as a result of said non-compliance.
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10. SELLER'S INDEMNIFICATION
Seller hereby agrees to indemnify and hold Buyer, its officers,
directors, employees and agents harmless from and against all claims,
demands, losses, costs, damages, liabilities, judgments (including
penalties and interest), suits, causes of action and expenses,
including reasonable attorney's fees and cost of investigation arising
from the violation, breach, or failure of any of its covenants or
obligations hereunder or any representation or warranty made by Seller
in this Agreement or which arise out of or are in any way related to
the Conveyed Assets or the transfer thereof by Seller to Buyer. Buyer
shall give prompt notice to Seller of any of the foregoing; and at
Seller's election, Seller may defend any such action through counsel
reasonably satisfactory to Buyer.
11. BUYER'S INDEMNIFICATION
Buyer hereby agrees to indemnify and hold Seller, its officers,
directors, employees and agents harmless from and against all claims,
demands, losses, costs, expenses, judgments, penalties, interest,
damages, liabilities, suits, causes of action and expenses, including
reasonable attorney's fees and cost of investigation and experts
arising from the violation of any representation or warranty made by
Buyer in this Agreement or failure of Buyer to perform its obligations
hereunder or Buyer's use of the Conveyed Assets following the Closing
Date, provided that the facts and circumstances which gave rise to the
action did not occur prior to the Closing Date or result from Seller's
acts or prior ownership of the Conveyed Assets. Seller shall give
prompt notice to Buyer of any of the foregoing, and at Buyer's election
will defend such action through counsel reasonably acceptable to
Seller.
12. SELLER'S REPRESENTATIONS
Seller hereby makes the following representations and warranties:
(a). Seller is a duly organized, validly existing corporation
and in good standing under the law of its state of incorporation with
full power and authority to own the Conveyed Assets being transferred
hereunder, to execute and deliver this Agreement, and to carry out the
transactions contemplated hereby.
(b). All necessary action, corporate or otherwise, has been
taken by Seller to authorize the execution, delivery and performance of
this Agreement and the Agreements set forth in the Exhibits hereto, and
the same are valid and binding obligations of Seller in accordance with
its terms.
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(c ) Seller has good and valid title to all of the Conveyed
Assets to be transferred hereunder; that all said Conveyed Assets at
the date of the applicable Closing, are free and clear of any and all
mortgages, security interests, liens and encumbrances, that there are
and to the best of Seller's knowledge will be no legal, administrative
or other proceedings, investigations, inquiries, claims, judgments,
injunctions or restrictions either threatened, pending or outstanding
against or related to Seller with respect to said Conveyed Assets, or
which would have the tendency to interfere with Seller's performance
hereunder, and that Seller does not know or have reasonable grounds to
know of any basis for any such proceedings, investigations, inquiries,
claims, judgments, injunctions or restrictions.
(d) All issued registrations for the Trademarks and Know How
as presented on their respective schedules are current and valid and
that Seller has made timely application for such and has timely filed
all renewals and or extensions and to the best of Seller's knowledge
there is no basis for challenging the validity of any of such
registrations.
(e) Other than the License Agreement, Seller has not entered
into any contract, agreement, understanding or commitment that in any
way relates to or cover the Conveyed Assets.
(f) All representations and warranties made by Seller in this
Agreement and in the Exhibits and schedules there to and the
statements, lists and other information required to be submitted in
connection with this transaction shall be true and complete as of the
date when made and as of the Closing Date as though such
representations and warranties were made as of the Closing Date.
(g) No representation or warranty made by Seller contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements made, in light of the circumstances
under which they were made, false or misleading.
(h) Seller is not engaged in or a party to or to the best of
Seller's knowledge threatened with any legal action, suit,
investigation or other proceeding related to or arising in connection
with the Conveyed Assets and Seller knows of no sustainable basis for
any such action, investigation or proceeding; and there are no
outstanding orders, rulings, decrees, judgments or stipulations related
to or arising in connection with the Conveyed Assets to which Seller is
a part or by which Seller or the Conveyed Assets are bound by or with
any court, arbitrator or administrative agency. Seller is not in
default in the payment of any taxes, including without limitation
property, sales, franchise, use and other similar taxes that are due
and payable and any assessments received in respect thereof, in each
case which could result in the imposition of any material lien or
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charge upon any of the Conveyed Assets, provided however that for the
purposes of the Seller's indemnification obligations under Paragraph 10
hereof with respect to a breach of the representations contained in
this Section such representations shall be deemed to be made without
the references to "materially" contained herein.
(i) Seller has the right and authority and has obtained all
approvals required to convey the Conveyed Assets in accordance with the
terms of this Agreement.
(j) Seller shall never (in any trademark class) use or file to
use the name "Alexandra de Markoff" or any variation thereof, including
any existing or abandoned mark associated at any time with the
Alexandra de Markoff brand.
13. BUYER'S REPRESENTATIONS
Buyer hereby makes the following representations and warranties:
(a) Buyer is a New Jersey corporation authorized to own or
lease its properties and to conduct its business in the manner and in
the places where such properties are owned or leased or such business
is conducted by it.
(b )All necessary action has been taken by Buyer to authorize
the execution, delivery and performance of this Agreement, and this
Agreement is a valid and binding obligation of Buyer in accordance with
its terms.
(c) All representations and warranties made by Buyer shall be
true and complete as of the date when made and as of the Closing Date
as though such representations and warranties were made as of the
Closing Date.
14. CONDITIONS PRECEDENT
The obligations of Buyer and Seller to consummate this Agreement and
the transactions contemplated hereby are subject to the fulfillment
prior to or at the Closing Date of the following conditions precedent:
A. All of the duties and covenants to be performed by Seller
and Buyer, respectively, at or prior to the Closing Date shall have
been duly and timely performed.
B. There shall not have been received by either party hereto
any notice of the commencement of any legal or administrative
proceeding questioning the validity of this Agreement or seeking to
enjoin, prohibit or delay or otherwise necessarily having the effect of
preventing, the consummation of the transactions contemplated by this
Agreement or the realization of the benefits intended thereby or there
shall otherwise be lodged against Seller any investigation, inquiry,
claim, injunction, action, cause, or restriction of any nature or sort,
which may impede this transaction.
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C. That each and every representation, acknowledgment and
warranty made in this Agreement by Seller or Buyer shall be true and
correct on the Closing Date.
D. That if third party approval is requested for Seller's
performance, this shall be a condition precedent.
15. TERMINATION
A. At any time prior to the Closing Date, this Agreement may
be terminated (i) by mutual consent of Buyer and Seller with the
approval of their respective Boards of Directors, or (ii) by either
Buyer or Seller if there has been a material misrepresentation, breach
of any obligation or representation or warranty or breach of covenant
by the other party in its representations, warranties, obligations, and
covenants set forth herein. If this Agreement shall be terminated as
provided in the preceding sentence, all obligations of either Buyer or
Seller, as the case may be, to proceed as provided in this Agreement
shall terminate without liability of the non-breaching party to the
other solely by reason of such termination, and the License Agreement
shall remain in full force and effect.
B. The right of either Buyer or Seller to terminate this
Agreement as provided above is not an exclusive remedy, but is in
addition to and may be exercised in addition to and in combination with
all other rights and remedies available to Buyer and Seller under law
or equity in the event of breach or default of this Agreement.
16. EXPENSES
A. Except as indicated otherwise herein, Buyer and Seller
shall bear their own fees and expenses regarding the completion of the
transaction as contemplated herein.
B. In the event either Buyer or Seller institutes suit or is
required to defend an action instituted by the other party, based upon
or arising out of a breach of this Agreement or a representation or
warranty made by the other party or misrepresentation, the prevailing
party in such lawsuit shall be entitled to reasonable attorney's fees
and costs as may be fixed by a court of proper jurisdiction.
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17. CONSTRUCTION
This Agreement shall be governed and construed in accordance with the
laws of the State of New Jersey applicable to agreements made in such
state between residents thereof and to be wholly performed therein. The
parties hereto hereby irrevocably submit to the exclusive jurisdiction
of any Federal or State Court sitting in the State of New Jersey in any
action or proceeding arising out of or relating to this Agreement. The
parties hereby waive any defenses which they may have in respect to the
selection of the forum.
18. WAIVER
Seller and Buyer shall have the right to waive in writing any
requirement or undertaking of the other party contained herein. Any
waiver or a breach of any term or condition of this Agreement shall not
operate as a waiver of any other breach of such term or condition or of
any other term or condition, nor shall any failure to enforce any
provision hereof operate as a waiver of such provisions or of any other
provision hereof.
19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNITIES
The representations and warranties made by Buyer and Seller shall
survive the Closing Date.
20. COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This
Agreement and the agreements appended hereto or executed in connection
with this Agreement may be signed and transmitted by facsimile, and any
copy with a facsimile signature will be deemed a valid signature hereto
or thereto and shall be deemed binding on the parties as if it were an
original signature.
21. ENTIRE AGREEMENT
This Agreement, including the lists, schedules, and other Agreements
and assignments required to be entered hereunder, and all other
agreements entered into by the parties simultaneously herewith sets
forth the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and supersedes all
prior agreements, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of either party hereto. There are no
restrictions, representations, warranties, covenants or undertakings
other than those expressly set forth or referred to herein. In the
event of a conflict of the terms of this Agreement and any other
agreement between the parties or in the License Agreement, the term of
this Agreement shall prevail.
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22. AMENDMENT
This Agreement may not be altered, amended or modified in any respect,
except by written instrument executed by and between the parties hereto
and there shall be no waiver of any term, condition, obligation, or
undertaking provided herein, except in writing signed by the party
granting the waiver.
23. NOTICES
Any and all notices, requests, consents and other communications
required hereunder shall be in writing sent by registered or certified
mail, return receipt requested or by overnight courier, addressed as
follows or at such other address as either party may designate to the
other from time to time in writing:
TO THE SELLER:
Mr. Ilia Lekach
Chairman & Chief Executive Officer
3725 S.W. 30th Avenue
Fort Lauderdale, FL 33312
Facsimile: 954-316-8155
TO THE BUYER:
John F. Croddick PO Box 419, Route 79 Morganville, New Jersey
07751 With a copy to:
W. Lane Miller, Esq.
1203 Route 9 South
Woodbridge, New Jersey 07095
Facsimile: 732-855-9898
24. FURTHER ASSURANCES
From time to time, at the Buyer's request, whether at or after the
Closing and without further consideration, the Seller at its expense
will execute and deliver such further instruments of conveyance and
transfer and take such other action as the Buyer reasonably may require
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more effectively to convey and transfer to the Buyer title to any of
the Conveyed Assets, and will assist the Buyer in the collection or
reduction to possession of such property.
25. CONSTRUCTION
The Article and Section headings of this Agreement are for the
convenience of the parties and shall not govern the construction or
interpretation of this Agreement or any of its counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SELLER
Parlux Fragrances, Inc.
By: /s/ Ilia Lekach
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Mr. Ilia Lekach
Chairman and Chief Executive Officer
BUYER
J.F.C. Marks, L.L.C.
By: /s/ John F. Croddick
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John F. Croddick, Manager
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AGREEMENT BETWEEN PARLUX FRAGRANCES, INC.
AND J.F.C. MARKS, L.L.C.
dated as of February 27, 2002
List of Exhibits
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Exhibit A - Assignment and Assumption of License
Exhibit B - Bill of Sale
Exhibit C - Assignment of Trademarks and Know-How
Schedule A - List of Marks
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