AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT
Exhibit
10.24
AMENDED
AND RESTATED STRATEGIC ALLIANCE AGREEMENT
THIS
AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT (this
“Agreement”)
is
made as of August 10, 2007 (the “Effective
Date”),
by
and between GOFISH
TECHNOLOGIES, INC.,
a
California corporation (“GoFish”),
GOFISH
CORPORATION,
a
Nevada corporation of which GoFish is a wholly-owned subsidiary (the
“Company”)
and
KALEIDOSCOPE,
INC.,
a
Delaware corporation, acting through its wholly owned subsidiary, Kaleidoscope
Sports and Entertainment LLC (“KSE”).
WHEREAS,
GoFish,
the Company and KSE entered into that certain Strategic Alliance Agreement,
dated as of January 1, 2007 (the “Original Agreement”),
pursuant to which KSE agreed to provide certain content to GoFish and GoFish
and
KSE agreed to jointly participate in connection with the procurement, sale,
delivery and support of such content on the websites that GoFish is engaged
in
the business of providing, including xxx.xxxxxx.xxx;
WHEREAS,
GoFish,
the Company and KSE entered into a First Amendment to Strategic Alliance
Agreement, dated as of June 29, 2007 (the “First
Amendment”),
pursuant to which the parties agreed to modify the definition of “Base Warrants”
to delay the vesting thereof for an additional month;
WHEREAS,
GoFish,
the Company and KSE entered into a Second Amendment to Strategic Alliance
Agreement, dated as of July 31, 2007 (the “Second
Amendment”,
and
the Original Agreement, as amended by the First Amendment and the Second
Amendment, the “Existing
Agreement”),
pursuant to which the parties agreed to modify the definition of “Base Warrants”
to further delay the vesting thereof for an additional month; and
WHEREAS,
GoFish,
the Company and KSE desire to amend and restate the Existing Agreement in its
entirety as set forth herein.
NOW,
THEREFORE,
in
consideration of the foregoing, the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficient of which are hereby
acknowledged, the parties agree as follows:
BACKGROUND
STATEMENT
GoFish
is
engaged in the business of providing one or more websites, including
xxx.xxxxxx.xxx (the “Websites”)
that
serve as a medium for user-generated, amateur, licensed, and professional
content as a vehicle for targeted, value added advertising. KSE is in the
business of providing developing, distributing and producing entertainment
properties and providing consulting services in the development of specialty
television programs. This Agreement sets forth the terms and conditions under
which KSE will provide certain Content to GoFish and GoFish and KSE will jointly
participate in connection with the procurement, sale, delivery and support
of
the Content on the Websites.
1
AGREEMENT
NOW,
THEREFORE, in
consideration of the foregoing, the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE
1
DEFINITIONS
1.1 Definitions.
When
used as a capitalized term in this Agreement, the following terms shall have
the
meanings set forth below:
“Acquisition
Finder’s Fee”
has the
meaning set forth in Section 4.3.2.
“Acquisition
by the Company”
means,
in a single transaction or a series of related transactions, the purchase by
the
Company and/or GoFish of all or substantially all of the outstanding capital
stock or the assets of a Person who is not, immediately prior to such
transaction (or the first of such series of related transactions) an Affiliate
of the Company or GoFish, whether by stock purchase, asset purchase, merger,
consolidation, share exchange or otherwise.
“Acquisition
by the Company Consideration”
means
the
total net proceeds to a Person acquired by the Company or its stockholders
or
GoFish, as the case may be, in an Acquisition by the Company, after deduction
of
all taxes, transaction costs and expenses (excluding the Acquisition Finder’s
Fee).
“Affiliate”
means,
with respect to a Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Person.
A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the ownership
of
voting securities, by contract or otherwise. For purposes of Section
3.3
(“Restrictive Covenants of KSE”), an “Affiliate”
of
KSE
shall be deemed to include any and all of KSE’s directors, officers, employees,
independent contractors, consultants, representatives and professional advisors,
in each case having knowledge of this Agreement or the subject matter hereof
and/or performing services to or on behalf of KSE in connection
herewith.
“Agreement”
means
this Agreement between the Parties, as the same may be amended, modified or
supplemented from time to time.
“Business”
means a
business in any location worldwide which uses an Internet portal to provide,
sell, develop, market or conduct a business in the nature of providing Internet
video content, whether publicly or as a user-paid service, or any other business
engaged in or contemplated to become engaged in by any member of the GoFish
Group prior to or during the term of this Agreement.
“Client”
has the
meaning set forth in Section 3.3.3.
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“Common
Stock”
means
the common stock, par value $0.001 per share, of the Company.
“Commissions”
has the
meaning set forth in Section 4.1.2.
“Copyrightable
Work”
has the
meaning set forth in Section 3.3.2.
“Covenant
Period”
the
period commencing on the Effective Date and ending on the date that is six
(6)
months following the termination of this Agreement by either Party and for
any
reason.
“Covered
Services”
means
the services provided by KSE to GoFish hereunder related to the generation
of
Sales and those items described on the attached Exhibit
A.
“GoFish
Group”
has the
meaning set forth in Section 3.3.1.
“Governmental
Authority”
means
any national, federal, state, county, municipal or other government or
governmental, quasi-governmental or regulatory authority, agency, board, body,
commission, instrumentality, court or tribunal.
“Intellectual
Property”
means
all inventions, ideas, data, customer lists, pricing information, marketing
analyses, concepts, designs, schematics, layouts, Patents, trademarks, trademark
applications, service marks, trade names, logos, copyrights, software, source
code, object code, programming language, Know-how, Technical Data, licenses
and
other similar rights by whatever name, whether or not patentable, copyrighted
or
copyrightable, registered or registrable, and any and all improvements or
derivatives thereof, whether reduced to tangible form or otherwise, and whether
registered with or recognized by any governmental or regulatory body or
otherwise.
“Know-how”
means
those currently existing ideas, designs, concepts, compilations of information,
methods, techniques, procedures and processes of KSE, whether or not patentable,
that are used by KSE in connection with the design, manufacture and use of
the
Covered Services.
“New
Warrants”
means
the
warrants to purchase up to One Hundred Sixty Six Thousand Six Hundred and Sixty
Seven (166,667) shares of Common Stock pursuant to a written warrant agreement,
in a form determined by the Company but including the following terms: (i)
an
exercise price of $3.00 per share, (ii) the vesting of one third (1/3) of the
aggregate number of shares of Common Stock underlying the New Warrants
immediately upon execution and delivery of this Agreement, (iii) the vesting
monthly in arrears of the remaining shares of Common Stock underlying the New
Warrants at the end of each subsequent month during the term hereof at a rate
of
one twelfth (1/12th) of the aggregate number of remaining shares of Common
Stock
underlying the New Warrants and (iv) (A) if this Agreement is terminated prior
to six (6) months following the Effective Date, the New Warrants shall expire
automatically on the date of termination of this Agreement, (B) if this
Agreement is terminated after this Agreement has been in effect for at least
six
(6) months but less than twelve (12) months, the New Warrants shall expire
automatically six (6) months following the date of termination and (C) if this
Agreement is in effect for at least twelve (12) months, the New Warrants shall
expire on the fifth anniversary of the Effective Date.
3
“Original
Warrants”
means
any warrants issued or issuable to KSE under the Existing Agreement, including
the Base Warrants, the Commission Warrants, the Distribution Warrants, the
Partnership Warrants and the Award Show Warrants.
“Patents”
means
any
rights to exclude any Person from making, using, selling or otherwise exploiting
any product or service incorporating any invention, business method or device,
as recognized or recognizable by any governmental or regulatory body in any
jurisdiction (including without limitation the United States Patent and
Trademark Office), whether granted, applied for or otherwise, and together
with
any patent that claims priority from such application, including any
continuation, continuation-in-part and divisional, together with any foreign
counterpart thereof.
“Party”
means
either of the parties to this Agreement, and “Parties”
means
all of them.
“Person”
means an
individual, corporation, partnership, association, limited liability company,
trust or unincorporated association or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
“Prospect”
means
any Person worldwide to which GoFish deems it advisable to market and sell
the
services of GoFish.
“Revenue”
means
revenue derived by GoFish from Sales, net of costs and expenses incurred
(including without limitation Taxes and Commissions).
“Sale
Finder’s Fee”
has the
meaning set forth in Section 4.3.1.
“Sale
of the Company”
means,
in a single transaction or a series of related transactions, the sale of all
or
substantially all of the outstanding capital stock or assets of the Company
or
GoFish to a Person who is not, immediately prior to such transaction (or the
first of such series of related transactions) an Affiliate of the Company or
GoFish, whether by stock purchase, asset purchase, merger, consolidation, share
exchange or otherwise.
“Sale
of the Company Consideration”
means
the
total net proceeds to the Company or its stockholders or GoFish, as the case
may
be, for the Sale of the Company, after deduction of all taxes, transaction
costs
and expenses (excluding the Sale Finder’s Fee).
“Sales”
means
the sales of services of GoFish during the term of this Agreement that, in
each
case, result from KSE’s identification of Prospects and the initiation of a
business relationship between such Prospects and GoFish.
“Taxes”
means
any duty, levy, import, export, excise, sales and value added taxes, customs
duties, levy or similar charge, including interest and penalties thereon,
however designated.
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“Technical
Data”
means
those currently existing KSE drawings, plans, parts lists, specifications and
process descriptions that relate to the design, manufacture and use of the
Covered Services, whether in printed, drawn or electronic form.
“Websites”
has the
meaning set forth in the section of this Agreement captioned “Background
Statement,” above.
“Work
Made for Hire”
has the
meaning set forth in Section 3.3.2.
“Work
Product”
has the
meaning set forth in Section 3.3.2.
1.2 Usage.
For the
purpose of construing this Agreement, unless the context indicates otherwise,
words in the singular number shall be deemed to include words in the plural
number, and vice versa, and words in one gender shall be deemed to include
words
in the other gender. The table of contents, titles to articles and section
headings are for convenience only, and neither limit nor amplify the provisions
of this Agreement.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
2.1 Representations
and Warranties of KSE.
KSE
hereby represents and warrants to GoFish as follows:
2.1.1 Valid
Existence.
KSE is
duly organized, validly existing and in good standing as a corporation under
the
laws of the State of Delaware.
2.1.2 Authorization,
Execution and Enforceability.
KSE has
the power and authority under its organizational documents and applicable law
to
execute, deliver and carry out the terms and provisions of this Agreement.
The
execution, delivery and performance by KSE of this Agreement have been duly
authorized by all necessary corporate action of KSE, and this Agreement has
been
duly executed on behalf of KSE. This Agreement is the valid and binding
obligation of KSE, enforceable against KSE in accordance with its
terms.
2.1.3 Right
to Conduct Business.
KSE is
in the business of providing developing, distributing and producing
entertainment properties and providing consulting services in the development
of
specialty television programs. Neither KSE nor any of its Affiliates is subject
to any judgment, order, decree, writ, injunction or criminal penalty imposed
by
any Governmental Authority that would have a material adverse effect upon the
ability of KSE to engage in such business or to perform its obligations under
this Agreement.
2.1.4 Intellectual
Property.
KSE (i)
is the owner of the entire right, title, and interest in and to the Patents,
Know-how and Technical Data; (ii) has the right and power to grant the licenses
granted herein; and (iii) is not a party to any other agreements with any Person
in conflict with the license grant contemplated herein. To the knowledge of
KSE,
GoFish’s contemplated use of the Patents, Know-how and Technical Data to design,
manufacture, use, lease and sell Covered Services does not infringe any valid
rights of any third party.
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2.1.5 Qualification.
KSE is,
and shall for the duration of the term shall be, fully qualified and capable
of
performing its obligations hereunder in a proficient and timely
manner.
2.2 Representations
and Warranties of GoFish.
GoFish
hereby represents and warrants to KSE as follows:
2.2.1 Valid
Existence.
GoFish
is duly organized, validly existing and in good standing as a corporation under
the laws of the State of California.
2.2.2 Authorization,
Execution and Enforceability.
GoFish
has the power and authority under its organizational documents and applicable
law to execute, deliver and carry out the terms and provisions of this
Agreement. The execution, delivery and performance by GoFish of this Agreement
have been duly authorized by all necessary action of GoFish, and this Agreement
has been duly executed on behalf of GoFish. This Agreement is the valid and
binding obligation of GoFish, enforceable against GoFish in accordance with
its
terms.
2.2.3 Business.
GoFish
and its Affiliates are engaged in the business of providing and maintaining
the
Websites, among other things. Neither GoFish nor any of its Affiliates is
subject to any judgment, order, decree, writ, injunction or criminal penalty
imposed by any Governmental Authority that would have a material adverse effect
upon the ability of GoFish to engage in such business or to perform its
obligations under this Agreement.
2.2.4 Common
Stock.
Upon
issuance in accordance with the terms and conditions of the New Warrants, the
Common Stock will be fully paid and nonassessable.
ARTICLE
3
PROVISION
OF SERVICES BY KSE; RESTRICTIVE COVENANTS; PUBLIC
ANNOUNCEMENTS
3.1 KSE
Services.
KSE
shall use its best efforts to identify Prospects and initiate business
relationships between such Prospects and GoFish with a view towards generating
Sales. To that end, KSE shall devote such resources as are reasonably expected
to maximize potential Sales generation. Further, Xxx Xxxxx shall serve as a
member of the advisory board of the Company and/or GoFish, without additional
compensation.
3.2 Reports.
During
the term of this Agreement, KSE shall provide to GoFish and the Company written
reports on at least a monthly basis summarizing Prospects (including Requests
for Proposals) identified by KSE and any other information that GoFish or the
Company reasonably requests.
3.3 Restrictive
Covenants of KSE.
KSE
hereby agrees as follows:
6
3.3.1 KSE
acknowledges that the information, observations and data obtained by KSE and
its
Affiliates concerning the business and affairs of GoFish and its Affiliates
(the
“GoFish
Group”),
in
connection with KSE’s performance of services for GoFish (whether prior to, on
or after the Effective Date) are confidential and are the property of GoFish,
including information concerning transaction opportunities in or reasonably
related to the business or industry of GoFish of which KSE is aware as of the
Effective Date, or becomes aware during the term of this Agreement. Therefore,
KSE agrees that it will not, and will not allow any of its Affiliates to, at
any
time, whether during or after the term of this Agreement, disclose to any
unauthorized person or, directly or indirectly, use for KSE’s own account, any
of such information, observations, data or any Work Product (as defined below)
or Copyrightable Work (as defined below) without GoFish’s consent, unless and to
the extent that the aforementioned matters become generally known and available
for use other than as a direct or indirect result of KSE’s or KSE’s Affiliates’
acts or omissions to act, provided, that, KSE may disclose any such information,
observations, data or any Work Product (as defined below) or Copyrightable
Work
(as defined below) that is legally required or compelled, provided, further,
in
such event, to the extent permitted by law, he shall provide GoFish with prior
notice of such disclosure. KSE agrees to deliver to GoFish at the termination
of
this Agreement, or at any other time GoFish may request in writing (whether
during or after the term of this Agreement), all memoranda, notes, plans,
records, reports and other documents, regardless of the format or media (and
copies thereof), relating to the business of the GoFish Group (including,
without limitation, all transaction prospects, lists and contact information)
which KSE or any of its Affiliates may then possess or have under KSE’s or such
Affiliate’s control.
3.3.2 KSE
acknowledges that all Intellectual Property created by KSE or its Affiliates
at
the specific written request of GoFish or the GoFish Group during the term
of
this Agreement (“Work
Product”)
belongs exclusively to GoFish, and KSE hereby assigns, and agrees to assign,
all
of KSE’s rights, title and interest in and to the Work Product to GoFish. For
the avoidance of doubt, no Intellectual Property created by KSE either prior
to
or after the term of this Agreement shall constitute Work Product for purposes
of this Agreement and KSE shall retain all right, title and interest in and
to
such Intellectual Property. Any copyrightable work (“Copyrightable
Work”)
prepared by KSE or any of its Affiliates for GoFish or any member of the GoFish
Group shall be deemed a “Work
Made for Hire”
under
the copyright laws, and GoFish shall own all rights therein.
3.3.3 During
the Covenant Period, KSE and its Affiliates shall not, other than in connection
with its providing services to and for the benefit of the GoFish Group, directly
or indirectly, either individually or as a principal, partner, member, manager,
agent, employer, employee, consultant, independent contractor, stockholder,
joint venturer or investor, or as a director or officer of any corporation,
limited liability company, partnership or other entity, or in any other manner
or capacity whatsoever:
(a) solicit
or divert or attempt to solicit or divert from any member of the GoFish Group
any business with any Client (as defined below);
(b) solicit
or divert or attempt to solicit or divert from any member of the GoFish Group
any business with any person or entity who was being solicited as a potential
Client;
7
(c) induce
or
cause, or attempt to induce or cause, any salesperson, supplier, vendor,
representative, independent contractor, broker, agent or other person
transacting business with any member of the GoFish Group to terminate or modify
such relationship or association or to represent, distribute or sell services
or
products in competition with services or products of any member of the GoFish
Group; or
(d) otherwise
provide any services or products to any Client that are or have been provided
by
any member of the GoFish Group.
For
purposes of this Agreement, a “Client”
shall
mean (A) an individual or entity to whom any member of the GoFish Group has
provided any advertising, marketing, analysis or other media services or
products prior to the commencement of the Covenant Period, or (B) any individual
or entity to whom any member of the GoFish Group has provided any advertising,
marketing, analysis or other media services or products with respect to or
in
connection with the Business at any time during the Covenant Period, and (C)
any
individual or entity who is solicited by any member of the GoFish Group, as
a
potential “Client” at any time during the Covenant Period.
3.3.4 During
the term of this Agreement, except on behalf and for the benefit of the Company
and during that portion of the Covenant Period which continues after the term
of
this Agreement, KSE and its Affiliates shall not, directly or indirectly, either
individually or as a principal, partner, member, manager, agent, employer,
employee, consultant, independent contractor, stockholder, joint venturer or
investor, or as a director or officer of any corporation, limited liability
company, partnership or other entity, or in any other manner or capacity
whatsoever, either directly or indirectly, induce or cause, or attempt to induce
or cause, any employee, representative, independent contractor, member, manager,
partner, shareholder, director or officer of any member of the GoFish Group
to
leave the employ or engagement of the GoFish Group.
3.4 Public
Announcements; Material Non-Public Information.
The
Parties agree that neither Party shall make any press release, announcement
or
other public disclosure of the existence or nature of this Agreement or the
relationship of the Parties pursuant to this Agreement absent the prior approval
of, if the Party seeking to make such announcement is KSE, the Company, or,
if
the Party seeking to make such announcement is the Company or GoFish, KSE,
with
respect to the content and manner of such public announcement. Notwithstanding
the foregoing, KSE acknowledges and agrees that the Company is a publicly-held
corporation and accordingly is under a duty to publicly disclose certain
developments relating to its operations, capital and obligations, and therefore
the Company may make such disclosures to the extent that such disclosure is,
in
the reasonable view of the Company and its legal counsel, required by applicable
law, rules and regulations to which it is subject. In addition, KSE agrees
to
assist the Company to the extent reasonably requested in any application that
the Company may make for confidential treatment under the federal Freedom of
Information Act or other applicable statute pertaining to select, sensitive
information that would otherwise be required to be publicly disclosed if and
to
the extent that the Company believes in good faith warrants confidential
treatment. Furthermore, KSE acknowledges and agrees that from time to time
during the course of its relationship with the Company and GoFish and their
respective affiliates, KSE may learn material nonpublic information regarding
the Company, and KSE agrees that it shall maintain the confidentiality of any
such material nonpublic information and shall refrain from making any investment
decisions with respect the Common Stock, any New Warrants or any other
securities of the Company (including without limitation the optioning of any
securities of the Company on any applicable trading market or exchange) for
so
long as such material nonpublic information remains material and
nonpublic.
8
ARTICLE
4
COMPENSATION
4.1 Waiver
of Original Compensation; New Cash Compensation to KSE.
4.1.1 KSE
hereby (a) acknowledges receipt of the cash Participation Fee (as defined in
the
Existing Agreement) that may have accrued under the Existing Agreement through
the period ended May 31, 2007 and (b) waives any and all rights to receive
the
cash Participation Fee that may have accrued or that may have been accruing
under the Existing Agreement from the period commencing on June 1, 2007 through
the date hereof.
4.1.2 Until
the
end of the term of this Agreement or until earlier termination of this Agreement
with the mutual consent of the Parties or by either Party pursuant to Section
6.2,
in
consideration for certain services to be rendered by KSE hereunder, GoFish
shall
pay KSE on a quarterly basis sales commissions as follows (“Commissions”):
(a) to
the
extent that KSE initiates a business relationship between a Prospect and GoFish
and any resulting Sales are consummated during the period commencing on the
date
of such initiation and ending six (6) months thereafter, GoFish shall pay KSE
cash in an amount equal to 10% of the cash Revenue actually received by GoFish
that directly results from such initiation; and
(b) to
the
extent that KSE initiates a business relationship between a Prospect and GoFish
and any resulting Sales are consummated during the period at the beginning
of
the seventh month following such initiation and ending six months thereafter,
GoFish shall pay KSE cash in an amount equal to 5% of the cash Revenue actually
received by GoFish that directly results from such initiation.
Notwithstanding
the foregoing, KSE shall not be entitled to Commissions to the extent that
KSE
initiates a business relationship between a Prospect and GoFish and any
resulting Sales are consummated after the end of the twelve month following such
initiation. Commissions shall become due and payable within forty five (45)
days
of the end of the fiscal quarter of GoFish during which the underlying cash
Revenue was actually received by GoFish.
4.2 Surrender
by KSE of Original Warrants;
New
Warrants Compensation to KSE.
4.2.1 KSE
hereby surrenders to the Company, and the Company hereby accepts from KSE for
surrender, all of the issued Original Warrants,
which
shall be immediately cancelled and shall be of no further force or effect.
KSE
shall return original certificates representing the issued Original Warrants
to
the Company within fifteen (15) days of the date hereof. KSE hereby terminates,
waives and abandons any and all rights or privileges arising under and inuring
to KSE under the Original Warrants and the Existing Agreement as they relate
to
the Original Warrants, and releases and discharges the Company from its
obligations and duties under such agreements with respect to the Original
Warrants.
9
4.2.2 In
consideration for certain services to be rendered by KSE hereunder, upon the
Company’s receipt of all of the original certificates representing the issued
Original Warrants, the Company shall issue the New Warrants to KSE.
4.3 Finder’s
Fees.
If,
during the term of this Agreement or within six (6) months following the
termination of this Agreement, GoFish and/or the Company shall enter into a
written agreement for:
4.3.1 The
Sale
of the Company to a third party with whom the Company and/or GoFish had no
prior
relationship and who is introduced to the Company and/or GoFish with a view
towards pursuing a possible Sale of the Company, then, upon the consummation
of
the Sale of the Company pursuant to such agreement, the Company or GoFish,
as
the case may be, shall pay to KSE an amount (in cash, stock or other form of
consideration constituting the Sale of the Company Consideration) equal to
two
percent (2%) of the Sale of the Company Consideration (the “Sale
Finder’s Fee”).
Notwithstanding the foregoing, unless KSE specifically notifies the Company
and/or GoFish in writing, prior to or contemporaneously with the making of
such
introduction that such third party is intended to be covered by this provision,
no Sale Finder’s Fee shall become due or payable.
4.3.2 The
Acquisition by the Company from a third party with whom the Company and/or
GoFish had no prior relationship and who is introduced to the Company and/or
GoFish with a view towards pursuing a possible Acquisition by the Company,
then,
upon the consummation of the Acquisition by the Company pursuant to such
agreement, the Company or GoFish, as the case may be, shall pay to KSE an amount
(in cash, stock or other form of consideration constituting the Acquisition
by
the Company Consideration) equal to two percent (2%) of the Acquisition by
the
Company Consideration (the “Acquisition
Finder’s Fee”).
Notwithstanding the foregoing, unless KSE specifically notifies the Company
and/or GoFish in writing, prior to or contemporaneously with the making of
such
introduction that such third party is intended to be covered by this provision,
no Acquisition Finder’s Fee shall become due or payable.
4.4 Taxes.
KSE
shall pay any Tax imposed as a result of the operation or existence of this
Agreement and the payment of any compensation hereunder. As may be required
by
law, GoFish and/or the Company shall be permitted to withhold or deduct from
such compensation any Taxes owed by KSE hereunder.
4.5 Records
and Adjustments.
GoFish
shall keep reasonably complete and accurate records with respect to all Covered
Services and shall furnish any information that KSE may reasonably request
from
time to time to enable it to confirm the compensation payable to KSE under
this
Agreement. GoFish shall retain all such records for at least three (3) years.
KSE shall have the right to make an examination once per quarter, during normal
business hours, of all records and accounts bearing upon the amount of
compensation payable to it under this Agreement. Unless contested in good faith
by the Company or GoFish, GoFish shall promptly pay any additional compensation
found by such audit to be due. KSE’s right to audit and examine all records and
accounts of GoFish shall survive termination of this Agreement for a period
of
one (1) year.
10
ARTICLE
5
ALLOCATION
OF LIABILITY
5.1 KSE
Warranty. KSE
warrants and agrees that any services that it provides hereunder will be
provided in a competent manner consistent with customary industry standards.
OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, THE ABOVE WARRANTY IS EXCLUSIVE
AND
IN LIEU OF ALL OTHER WARRANTIES AND KSE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES
WITH RESPECT TO ITS SERVICES, KNOW-HOW, PATENTS AND TECHNICAL DATA, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. KSE shall not be liable for any consequential
or incidental damages resulting from a breach of its warranty
hereunder.
5.2 Indemnification.
5.2.1 GoFish
Indemnification.
GoFish
agrees to defend, indemnify, and hold KSE, and its officers, directors, agents,
and employees, harmless against all costs, expenses, and losses (including
reasonable attorney fees and costs) resulting from a claim asserted by any
third
party that arises out of or relates to the acts or omissions of GoFish
hereunder, including without limitation, the marketing, sourcing, sale,
provision and support of Covered Services (unless caused by a breach of any
representation and warranty made by KSE herein).
5.2.2 KSE
Indemnification.
Subject
to limitations contained herein, KSE agrees to defend, indemnify, and hold
GoFish, and its officers, directors, agents, employees harmless against all
costs, expenses, and losses (including reasonable attorney fees and costs)
incurred through claims of third parties against GoFish based on KSE’ breach of
any representation and warranty made herein.
5.2.3 Notice
and Defense.
The
party claiming the indemnification shall promptly notify the other party upon
the assertion of any such claim, shall permit such other party to defend the
claim and shall provide reasonable assistance to such other party, at such
other
party’s expense, in the defense of the claim.
ARTICLE
6
TERM
AND TERMINATION
6.1 Term. The
term of
this Agreement shall commence upon the Effective Date and shall continue for
a
period of twelve (12) months unless earlier terminated with the mutual consent
of the Parties or by either Party pursuant to Section 6.2.
11
6.2 Termination.
Following completion of the first four (4) months of the term of this Agreement,
either Party may terminate this Agreement by written notice to the other Party.
Furthermore, either Party may terminate this Agreement at any time by written
notice thereof to the other Party if the other Party breaches a material term
of
this Agreement and fails to cure such breach within ten (10) days after written
notice thereof from the nonbreaching Party.
6.3 Survival.
Upon
the termination of this Agreement, the licenses granted to GoFish hereunder
shall terminate, but any sublicense granted by GoFish to an Approved Prospect
prior to such termination, in the manner permitted hereunder, shall survive
and
continue in full force and effect. In addition, Articles 4, 5, 6 and 7 shall
survive termination and continue in full force and effect.
ARTICLE
7
MISCELANEOUS
7.1 Waiver.
No
failure or delay by either party in enforcing any of its rights under this
Agreement shall be construed as a waiver of the right to subsequently enforce
any of its rights, whether relating to the same or a subsequent
matter.
7.2 Expenses.
Whether
or not the transactions contemplated in this Agreement are consummated, each
Party shall pay all costs and expenses incurred by such Party in connection
with
this Agreement and the transactions contemplated hereby.
7.3 Notices.
All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be deemed given when delivered by hand or by
a
reputable national overnight courier service or by facsimile transmission or
three business days after mailing when mailed by registered or certified mail
(return receipt requested), postage prepaid, to the Parties in the manner
provided below (information is included below for telephone and email contact
purposes but no notice delivered telephonically or by email shall be deemed
effective unless and until delivered physically in hardcopy form):
If
to
GoFish:
GoFish
Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx, 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx Xxxxxx, President
E-mail:
xxxxxxx@xxxxxxxxx.xxx
With
a
copy to:
Xxxxxxxx
& Xxxxxxxx LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxxx, Esq.
E-mail:
XXxxxxxxx@xxxx.xxx
12
If
to
KSE:
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
_____________
Attention:
_____________
E-mail:
_____________
Any
Party
may change the address to which notice is to be given by notice given in the
manner set forth above.
7.4 Assignment.
Other
than as otherwise expressly stated herein, neither this Agreement nor any of
the
rights, interests or obligations hereunder may be assigned by any Party hereto
without the prior written consent of the other Party. Any purported assignment
in violation of this section shall be void. Notwithstanding the foregoing,
the
acquisition of any Party, whether by the sale of stock or assets, merger or
consolidation or other business combination, shall not constitute an assignment
for purposes of this Agreement.
7.5 No
Rights in Third Parties. This
Agreement does not grant any rights or remedies to any Person that is not a
Party to this Agreement. No Person is a third-party beneficiary of this
Agreement.
7.6 Governing
Law.
The
execution, interpretation and performance of this Agreement shall be governed
by
the internal laws and judicial decisions of the State of New York.
7.7 Jurisdiction
and Venue.
Any
litigation or other court proceeding with respect to any matter arising from
or
in connection with this Agreement shall be conducted in the state courts of
the
State of New York located in the City and County of New York or in the U. S.
District Court for the Southern District of New York, and the Parties hereby
submit to the jurisdiction of and consent to venue in such courts.
7.8 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
7.9 Severability.
The
invalidity of any portion of this Agreement shall not invalidate any other
portion of this Agreement and, except for such invalid portion, this Agreement
shall remain in full force and effect.
13
7.10 Entire
Agreement and Termination of Existing Agreement.
This
Agreement embodies the entire Agreement and understanding of the Parties with
respect of the subject matter of this Agreement. This Agreement supersedes
all
prior agreements and understandings between the Parties with respect to the
transactions contemplated hereby. The Parties hereby agree that the Existing
Agreement is hereby amended and restated in its entirety by this Agreement,
and
the Existing Agreement shall be of no further force or effect. This Agreement
may be amended, modified or supplemented only by written agreement of all of
the
Parties hereto.
[SIGNATURES
ON THE FOLLOWING PAGE]
14
IN
WITNESS WHEREOF,
the
parties hereto have executed this Amended and Restated Strategic Alliance
Agreement as of the date first above written.
|
GOFISH
TECHNOLOGIES, INC.
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title: President
|
||
| GOFISH CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title: President
|
||
|
KALEIDOSCOPE,
INC.
|
||
| |
|
|
| By: | /s/ A.B. Xxxxxx | |
|
Name: A.B. Xxxxxx |
||
| Title: President | ||
15
Exhibit
A
Description
of Covered Services
| · |
Identification
of Prospects and the initiation of business relationships between
such
Prospects and GoFish with a view towards generating
Sales;
|
| · |
Promotion
of the Websites, both with respect to creating and increasing user
awareness of and interest in such portals, creating awareness of
such
portals to the advertising and media communities, arranging “partnerships”
for generation of meaningful traffic to such portals and the like;
and
|
| · |
Promotion
of the Company and/or GoFish as a possible merger/acquisition partner
with
a view towards acquisitions by the Company of appropriate targets
or the
Sale of the Company, including identifying prospective merger/acquisition
partners, making appropriate introductions and assisting the Company
and/or GoFish with respect to negotiations of possible merger/acquisition
transactions or the Sale of the
Company.
|
16
