Purchase of "StickyBar" Technology and
SofCast Non-programming Technology Licensing Agreement
This strategic integration and licensing Agreement is made as of this
5th day of July 2005, by and between eWorldMedia Holdings, Inc.
(eWorldMedia), and SofCast, Inc. (SofCast).
WITNESSETH:
WHEREAS, eWorldMedia wishes to purchase the "StickyBar" technology and
all its related patents from SofCast and market the StickyBar product
through a subsidiary company; and
WHEREAS, eWorldMedia further wishes to acquire a permanent sub-
license, subject to any termination pursuant to disagreements, to market
all other current and future SofCast technologies, including non-exclusive
rights to network marketing these technologies; and
WHEREAS, SofCast wishes to sell the "StickyBar" technology and grant
the sub-license to eWorldMedia as mentioned above; and
WHEREAS, the parties have already signed a formal Letter of Intent to
this effect, which is hereby incorporated and integrated into this
agreement;
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and for other good and valuable consideration,
receipt and legal sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. RESTRUCTURING OF "NEW COMPANY"
1.1 Name. CMS is an existing corporation that is currently wholly owned
by eWorldMedia. CMS ("New Company") will be given a new name to more
accurately reflect its new purpose.
1.2 Payments. Upon completion of this transaction, 100% of the New
Company will be owned by eWorldMedia. New Company shall be a
corporation taxable under subchapter C of the Internal Revenue Code.
New Company shall concurrently pay SofCast amounts in cash equal to
20% of the fair market value of any dividend declared and paid to
eWorld Media, including but not limited to liquidating dividends. New
Company shall concurrently pay SofCast an amount in cash equal to 20%
of the fair market value of any proceeds paid to eWorld Media upon any
transfer or sale of shares of New Company, including but not limited
to a transfer in connection with a merger or reorganization. All
amounts paid to affiliates will be reasonable and customary.
1.3 Management. Xxxx Xxxxx will be named President of the New Company and
will report directly to the eWorldMedia Board of Directors and its
Chairman Xxx Xxxxxxxx. Xx. Xxxxx will be responsible for overseeing
all operations of the New Company during its transition and startup
phase, for which he will receive compensation in the amount of $5,000
per month beginning 30 days after the signing of the final agreement.
Between three and six months from now, or once the new company is
funded and fully viable in the market place and a suitable replacement
has been found, Xx. Xxxxx will step down as President and assume the
title and responsibilities of Chief Technical Officer. A separate
Employment Agreement, including indemnification, will be drafted to
outline the specifics of Xx. Xxxxx'x duties and responsibilities, etc.
1.4 Liquidation. If eWorldMedia and/or the New Company liquidates,
dissolves, becomes insolvent, ceases conducting active business, or
otherwise ceases to actively exploit the commercial applications of
StickyBar technology, then SofCast shall become the owner of all
right, title and interest in the StickyBar technology and have the
perpetual right thereafter to use and exploit all StickyBar Technology
for its own separate account.
2. TRANSFER OF "STICKYBAR" TECHNOLOGY
Upon completion of this transaction, SofCast, Inc. will transfer
within 15 days all rights of ownership of the StickyBar technology to
the New Company and the New Company will own outright the technology,
all source codes, all current and future patents and patents pending,
and exclusive licensing rights to the "StickyBar" product and
technology. SofCast will also transfer 5 custom toolbars ready for
deployment which are San Francisco Bay Hotel Collection, radio,
talking, Real Estate and TV toolbars.
3. LICENSE OF ALL ADDITIONAL SOFCAST TECHNOLOGIES
Upon completion of this transaction, the New Company will also receive
a permanent (provided SofCast continues to receive the royalties due
under this Agreement) non-exclusive license to market all other
current and future SofCast technologies, including such non-exclusive
rights to market these technologies through a Direct Marketing
Distribution Model. "Direct Marketing Distribution Model" refers to
distribution of products or services through a structured multi-level
marketing genealogy compensation plan. SofCast will receive royalties
on all products using SofCast Technology per paragraph 7.2.
4. Use of SofCast technology
CMS will have license to use SofCast technology to develop new
products like Elearning, Webcasting and Content Management. SofCast
will provide high level technology interface in object code form only
and hereby licenses that code to CMS on a non-transferable basis to
develop new products (no source code will be released) for the
StickyBar application. SofCast will receive royalty on all products
using SofCast technology per paragraph 7.2. It is further agreed that
CMS will have exclusive rights for their new CMS-developed products to
multi-level network marketing companies.
4.1 CMS and/or eWorldMedia will have an option to purchase the SofCast
Technology rights at a price of $20 million, 70% in cash and 30% in
eworldmedia stocks. The purchase price is good until Dec31, 2005.
After that, CMS and eworldmedia will have the first right of refusal
option to match any purchase price. The right of refusal option will
expire on June 30, 2006
5. PATENTS
eWorldMedia will, at its own cost, apply for and own all Patents and
Patents Pending relevant to the StickyBar product. eWorldMedia will
own these Patents and/or Patents Pending "free and clear," except for
the obligations created in this Agreement. SofCast will own all other
SofCast technology free and clear of any claim, other than licenses
and rights, if any, expressly granted in this Agreement. CMS shall
not collaterally challenge any right of SofCast in SofCast's
technology and shall not support or assist third parties to challenge
SofCast's rights or interests, patents, trademarks, or other rights.
6. MARKETING
eWorldMedia and the New Company will use their best efforts to market
the StickyBar product and technology through direct sales and through
eWorldMedia's international network of distributors. eWorldMedia and
the new company will also explore the possibilities of sub-licensing
the StickyBar product and other SofCast technologies to other entities
using a business-to-business approach.
7. PAYMENTS
7.1 EWME Stock. In exchange for the above considerations, the
current stockholders of SofCast will receive up to 2,000,000
Series B Preferred Shares of eWorldMedia Holdings, Inc., duly
authorized, fully-paid, validly issued stock and free and clear
of any claims or restrictions other than under the federal and
state securities laws as follows:
a. 250,000 shares upon signing of this agreement; plus
b. 1,750,000 total additional shares based on performance as
follows: 50,000 shares per each 50,000 downloads of
"StickyBar" plus 50,000 shares per each $50,000 in revenue
generated by the New Company until a total of 1,750,000
additional shares are granted, for a total of 2,000,000
shares altogether.
Such payment shall be taxable and valued at $10,000 and reported by
CMS on Form 1099. The agreed value of the Stock is $.005 per Series B
Preferred Share. CMS hereby represents and warrants to SofCast that
the Series B Preferred Shares and Common Stock issuable upon
conversion are duly authorized, fully paid and nonassessable, and
shall not be subject to any claim or restriction other than standard
restrictions on resale under the federal and state securities laws.
7.2 Royalties. No royalties will be paid on the StickyBar. However,
SofCast will receive royalties in the amount of 20% of gross sales of
all other products developed by SofCast and sold by or through
eWorldMedia and/or the New Company or any affiliate. The royalties
shall be due on account of every licensed or unlicensed use of such
products by any person, including without limitation, any affiliates
of New Company. Royalties will be accounted and paid no later than
the 30 days after the end of the month for which such amounts are
accrued and received.
7.3 Sale or License of Patents. If a patent is sold or licensed to an
entity not owned or controlled by eWorldMedia, Xxxx Xxxxx will receive
20% of the sales and/or licensing revenues regardless of termination
of employment. Payments will be accounted and paid no later than the
closing of the transaction for which such amounts are accrued and
received.
7.4 Taxes. eWorldMedia and/or the New Company shall have sole
responsibility for collecting, reporting, and/or paying all
income, sales, excise, property, value-added tax, and other taxes
imposed by any governmental authority, as they pertain to the duties,
obligations, and performance of eWorldMedia and the New Company.
Without limiting the generality of the foregoing, eWorldMedia and/or
the New Company shall be responsible for reporting and paying all
customs, import, and remittance duties or assessments arising from the
import the basic courses into any and all countries.
8. LIMITED WARRANTY, DISCLAIMER, AND LIMITATIONS
SofCast warrants that StickyBar technology is substantially "bug
free", that it works with an industry standard Microsoft IE browser
configuration and that its operation is scalable.
The StickyBar technology, however, like any other technology will
require code upgrades or modifications to work with newer browser
versions as they become available.
These warranties are in lieu of all other warranties, express or
implied, oral or written, with respect to StickyBar including, without
limitation, the implied warranties of conformance to samples,
merchantability and fitness for a particular purpose.
9. LEGAL COMPLIANCE
9.1 Compliance with Applicable Laws. eWorldMedia, the New Company
and SofCast shall comply with all applicable laws, rules and
regulations in performance of its duties and obligations in
connection with this Agreement.
9.2 Legal Representation. Under no circumstances shall any of the
parties misrepresent or mislead the features and functionality of
the SofCast technology, or make any claims detrimental to
SofCast, eWorldMedia or the New Company. eWorldMedia, SofCast
and the New Company at all times shall conduct their respective
businesses in a professional, legal and ethical manner in
accordance with applicable laws.
9.3 Legal Authority. SofCast hereby represents and warrants that it
has the authority to enter into this agreement and that SofCast
has the authority of all title and intellectual property rights
in and to resell and develop applicable technology and, except
for the rights granted herein, no other person or legal entity
has any such rights.
10. TERM AND TERMINATION
This Agreement shall be effective as of the date it is signed and
accepted by both parties below.
11. DEFAULT
If either party materially defaults on its obligations hereunder
and fails to cure its default, if such default is capable of cure,
within thirty (30) days after having been given notice of such
default.
12. NOTICES
All notices required herein to be in writing, will be deemed given:
(i) five (5) working days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; (ii) one
(1) working day after deposit with a commercial overnight carrier,
with written verification of receipt, or (iii) upon personal delivery.
All communications will be sent to the addresses set forth in the
preamble to this Agreement, or to such other address as may
be designated by a party by giving written notice to the other party
pursuant to this
13. GENERAL
13.1 Entire Agreement. The provisions herein constitute the entire
agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, oral or written, and all
other communications relating to the subject matter hereof, except any
Confidentiality, Non-Disclosure and Non-circumvention Agreement/s or
such other similar agreement/s dated or signed simultaneously with
this Agreement, which governs all confidential and proprietary
information of eWorldMedia, the New Company and SofCast. No amendment
or modification of any provision of this Agreement will be effective
unless set forth in a document that purports to amend this Agreement
and is executed by all parties.
13.2 Waiver. No waiver by either of the parties to this Agreement of any
condition, term or provision hereof shall be valid unless set forth in
an instrument in writing signed on behalf of such party, and no such
waiver shall be deemed a waiver of any preceding or subsequent breach
of the same of any other condition, term or provision of
this Agreement.
13.3 Force Majeure. Neither party shall be held liable for failure to
fulfill its obligations hereunder if such failure is due to a natural
calamity, act of government, or other cause beyond the control of such
party.
13.4 Days. Should the date on which any payment or other performance of
either of the parties hereto is due fall on a date that is a Saturday,
Sunday or legal holiday (recognized as such by the Federal Government)
or such other holiday recognized by one of the parties (together,
"Holiday"), then payment or performance shall not be due until the
next day which is not a Saturday, Sunday or Holiday.
13.5 Governing Law. The validity, construction, and performance of this
Agreement shall be governed by the laws of the state of California,
without regard to the conflicts of laws principles thereof.
13.6 Attorneys' Fees. The prevailing party in any arbitration or
litigation shall be entitled to recover reasonable attorneys' fees and
costs in arbitration to all other available relief.
13.7 Consent to Jurisdiction. Both parties consent to the jurisdiction and
proper venue of the state of California in connection with any action
or lawsuit instituted to enforce any provision of this Agreement.
13.8 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions
of the Agreement will remain in full force and effect.
13.9 Rights Outside of Agreement. Nothing contained in this Agreement shall
be construed as limiting rights that the parties may enjoy outside the
scope of the licenses granted and the obligations and restrictions set
forth or treated herein.
In Witness Whereof, eWorldMedia and SofCast have caused this Agreement
to be signed by their respective duly authorized officers as of the day and
year above written.
AGREED AND ACCEPTED:
eWorldMedia Holdings, Inc.
By: Date:
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Xxx Xxxxxxxx, CEO
SofCast, Inc.
By: Date:
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Xxxx Xxxxx, President
