Exhibit 10.44
LICENSE AGREEMENT
THIS AGREEMENT is made this 22nd day of March, 2000 by and between
Xxxxxxxxxx Artist Management LLC, a New York Limited Liability Company with a
principal place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000
(hereinafter, collectively, the "Licensor"); and XxxxxxxxxxXxxxxXxxx.xxx, Inc.,
a Delaware corporation, with a principal place of business at 000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, XX 00000 (hereinafter, the "Licensee").
WHEREAS, Licensor is the owner of the trademark "Wilhelmina" that it has
used since at least as early as 1970 in connection with modeling services and
subsequent to 1970 in connection with management services for musical performers
(hereinafter, the "Xxxx"), which Xxxx has become well-known and recognized by
the general public and associated in the public mind with Licensor; and
WHEREAS, Licensee desires to utilize the Xxxx in connection with content
for its network of web sites and a web site to be created by Licensee (the "Web
Site") located at "XxxxxxxxxxXxxxxXxxx.xxx" (the "Domain Name") that provides a
broad array of information, entertainment, on-line services and products
targeted to urban inner city residents as further described in this Agreement
(hereinafter, the "Services"), which Services will be marketed in part through
and by professional models, music celebrities and others (each of whose
engagements shall be subject to separately negotiated agreements for specific
services, except as described in this Agreement) who are approved in advance by
Licensor.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. LICENSE: Licensor hereby grants Licensee the right to use the Xxxx
solely in connection with the above-mentioned Services and in all advertising
and promotion for said Services, provided that Licensee offers the Services in
accordance with the normal quality standards and specifications approved by
Licensor which approval shall not be unreasonably withheld or delayed. Nothing
in this Agreement shall be construed to prevent Licensor from granting any other
licenses for the use of the Xxxx or from utilizing the Xxxx in any manner
whatsoever, except that Licensor agrees that except as provided herein it will
grant no other licenses during the Term of this Agreement (as hereinafter
defined) for use of the Xxxx in connection with a web site that principally
offers a broad array of information, entertainment, on-line services and
products targeted to urban residents and businesses, African-Americans,
Hispanic-Americans and other minorities in the United States, including but not
limited to the web sites or similar web sites listed on Schedule 1; provided,
that, the foregoing shall not prevent or limit the right of Licensor to license
the Xxxx in connection with web sites that target one or more aspects of
African-American, Hispanic-American, or other minority communities, as long as
such web sites are not portals providing a broad array of information,
entertainment, on-line services and products targeted to urban residents and
businesses. For purposes of this definition, urban residents shall include
residents living in urban areas as described in the most recent U.S. Census
data. All rights not specifically licensed hereunder are reserved by Licensor.
2. QUALITY CONTROL:
a. Licensee agrees to use the Xxxx only in connection with the
above-mentioned Services and in accordance with the reasonable standards,
specifications, directions, information and know-how provided by Licensor
from time to time in order to protect Licensor's rights in the Xxxx. In
furtherance of, and without limiting, the foregoing, Licensee agrees to
comply with any reasonable requirements established by Licensor concerning
the style, design, display and use of the Xxxx including, without
limitation, any requirement to use a trademark symbol ((TM) or (R)) with
any or all uses of the Xxxx, and Licensee agrees that it will take all
steps reasonably necessary to ensure that Licensor's ownership of the Xxxx
is recognized and afforded protection wherever the Xxxx is used.
b. Licensee agrees that (i) any and all uses of the Xxxx by
Licensee, (ii) any and all content of the Web Site, (iii) any person or
model whose name or likeness is used on or in connection with the Web
Site, and (iv) any and all advertising and promotion related to the Web
Site shall be subject to the advance written approval of Licensor, which
approval shall not be unreasonably withheld or delayed and which approval
shall be deemed to have been given if Licensor does not notify Licensee of
its objections thereto within three (3) business days following Licensor's
receipt of written request to Licensor for Licensor's approval of such.
c. Upon written request from Licensor, Licensee shall submit for
Licensor's review such materials and documents as Licensor shall
reasonably require in order for Licensor to ensure that Licensee is in
compliance with the terms of this Agreement, including compliance with all
such standards, specifications, directions, information and know-how
provided by Licensor to Licensee pursuant to the terms hereof.
d. Licensee agrees to maintain the reasonable standards of quality
established by Licensor including those standards provided to Licensee by
Licensor pursuant to this Agreement. Licensor shall be the sole determiner
of whether Licensee has maintained said standards of quality provided that
Licensor utilizes reasonable discretion.
3. OWNERSHIP/POLICING OF XXXX: Licensee agrees that ownership of the Xxxx
and the goodwill relating thereto shall remain vested in Licensor and that
Licensee's use of the Xxxx inures to the benefit of Licensor both during the
Term of this Agreement and thereafter, and Licensee further agrees never to
challenge, contest or question the validity of Licensor's ownership of the Xxxx
or any registrations thereof by Licensor. Licensee agrees to inform Licensor of
the use of any marks similar to the Xxxx and any potential infringements of
Licensor's Xxxx which come to its attention.
4. LITIGATION: In the event Licensee is named as defendant in any action
based on its use of the Xxxx, Licensee agrees to immediately notify Licensor,
and Licensor shall have the right to intervene in any such action and to control
and direct the defense thereof, including the right to select defense counsel,
provided that in the event Licensor chooses to exercise control it agrees to
immediately reimburse Licensee for the cost of its defense and to indemnify it
against
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all damages arising therefrom, provided that Licensee has compiled with all its
obligations under this Agreement.
5. DOMAIN NAME: Licensee agrees that during the Term of this Agreement
that it shall maintain in its own name a valid and operable registration for the
Domain Name and shall not transfer or assign to any third party or otherwise
encumber said Domain Name registration. Licensor shall not have the right to
utilize the Domain Name after the Term of this Agreement.
6. INDEMNIFICATION:
a. Licensee hereby assumes all responsibility for and agrees to
defend, indemnify, and hold harmless Licensor against any and all damages,
losses, claims, suits or other expenses whatsoever, including Licensor's
reasonable attorneys' fees, arising out of (i) the negligent or
intentional acts or omissions of Licensee or its employees or agents, (ii)
any of Licensee's promotion, advertising, use or sale of the Xxxx and
Services or (iii) any breach by Licensee of any covenant, representation
or agreement of Licensee contained in this Agreement.
b. Licensor hereby assumes all responsibility for and agrees to
defend, indemnify, and hold harmless Licensee against any and all damages,
losses, claims, suits or other expenses whatsoever, including Licensee's
reasonable attorneys' fees, arising out of (i) alleged trademark
infringement arising out of Licensee's use of the Xxxx itself (i.e., as
distinguished from the Domain Name and any variations thereof) in
accordance with the provisions of this Agreement, (ii) any breach by
Licensor of any covenant, representation or agreement of Licensor
contained in this Agreement, (iii) the negligent or intentional acts or
omissions of Licensor or its employees or agents or (iv) any of Licensor's
promotion, advertising, use or sale of the Xxxx.
7. REPRESENTATIONS AND WARRANTIES:
a. Licensee represents, warrants, and covenants that (i) it has the
full power and authority to enter into this Agreement, (ii) it will use
its best efforts to market and sell the Services in a commercially
reasonable and ethical manner, (iii) it will market and sell the Services
in accordance with all applicable laws and regulations and (iv) it will
not disclose to any third party, without Licensor's consent, any
information relating to or disclosed to it in connection with this
Agreement, which is or reasonably should be understood to be confidential
or proprietary, except as required in connection with filings as required
by law or by a national securities exchange.
b. Licensor represents, warrants and covenants that (i) it has full
power and authority to enter into this Agreement, (ii) it has the right to
license the Xxxx to Licensee, (iii) without limiting the Licensor's
obligations hereunder, which are absolute and unconditional, it will
utilize its best efforts to provide the content requested by Licensee
pursuant to this Agreement and (iv) it will not disclose to any third
party, without Licensor's consent, any information relating to or
disclosed to it in connection with this Agreement, which is or reasonably
should be understood to be confidential or proprietary.
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8. TERM: The term of this Agreement shall commence on the date hereof and
shall remain in full force and effect for a period of twenty-five (25) years
(the "Initial Term"), unless earlier terminated pursuant to the provisions
hereof. At the end of each five (5) year term beginning with the end of the
Initial Term, this license shall be automatically renewed for a further five (5)
year term upon all the terms and conditions contained herein, unless the
Licensor shall be given written notice to the contrary by Licensee at least
thirty (30) days prior to the expiration date or unless earlier terminated
pursuant to the provisions hereof. The Initial Term and any subsequent five (5)
year terms are sometimes collectively referred to herein as the "Term."
9. COVENANTS AND REPRESENTATIONS OF LICENSOR:
a. Licensee shall have the right to utilize on its Web Site or
network of web sites any and all information, head shots, photographs, and
other material cleared for such use to be furnished by Licensor, or its
affiliates, or developed by Licensor, which Licensor, or its affiliates,
has the right to utilize for self-promotion, as determined by Licensor, in
connection with its capacity as agent for models and other talent which it
represents. Licensor agrees to make all of such material available to
Licensee at Licensee's request for use on Licensee's Web Site or network
of web sites. Licensor hereby represents to Licensee that Licensor has
full power and capacity to assign such rights to Licensee to utilize such
material to Licensee.
b. Licensor agrees during the term of this Agreement to assist
Licensee in creating content for the Licensee's Web Site or network of web
sites, such content shall include, but not be limited to the items
described in Schedule 2, annexed hereto. Licensor, at its own cost, shall
provide the underlying materials necessary to produce such content and
Licensee shall be responsible for converting such materials for use on the
Web Site and shall bear the cost and expense thereof.
c. Licensor hereby agrees to provide a cross link in a form
reasonably acceptable to Licensee to Licensee's Web Site on any web site
that is owned or operated by Licensor or to Licensor's affiliates and
Licensor agrees to utilize its best efforts to provide a cross link for
Licensee on any web site in which Licensor or its affiliates have an
ownership interest.
10. REVENUE SHARING: Licensor and Licensee shall negotiate in good faith
to establish revenue sharing arrangements with respect to (i) third-party
modeling jobs initiated by Licensee (for which a 10% finder's fee shall apply),
(ii) joint contests and (iii) merchandising, subject to Licensor's approval of
the use of the Xxxx in each case.
11. TERMINATION:
a. Except as otherwise provided herein, this Agreement may only be
terminated by written agreement of both parties signed by their officers
or representatives. Licensor may terminate this Agreement:
i) on not less than thirty (30) days written notice in the
event that Licensee defaults on or fails to comply with any
provision of this Agreement,
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unless within such thirty (30) day period Licensee shall remedy such
default or failure to comply or diligently commences to remedy such
default or failure to comply and consummates such remedy as soon as
practicable thereafter.
ii) if Licensee, or its shareholders, officers, directors,
employees, or agents take any action in connection with the sale,
advertising, distribution, dissemination or promotion of the
Services and/or the Xxxx which damages or reflects adversely upon
the Licensor or the Xxxx materially, as determined reasonably by
Licensor;
iii) if Licensee fails to make commercial use of the Xxxx for
a period of twelve (12) months or more; or
iv) if Licensee ceases its business operations or makes any
assignments of assets or business for the benefit of creditors, or a
trustee or receiver is appointed to conduct its business or affairs,
or if Licensee files a petition in bankruptcy or is adjudicated
bankrupt or insolvent.
b. Licensee acknowledges that its failure to cease use of the Xxxx
after the termination or expiration of this Agreement will result in
immediate and irreparable harm to Licensor and to the rights of any
subsequent licensee of Licensor such that Licensor would have no adequate
remedy at law, and that in such event, Licensor shall be entitled to seek
equitable relief including injunctive relief, as well as such other relief
as a court of competent jurisdiction may deem just and proper.
c. Licensor acknowledges that its failure to cease use of the Domain
Name after the termination or expiration of this Agreement will result in
immediate and irreparable harm to Licensee and to the rights of any
subsequent licensee of Licensee such that Licensee would have no adequate
remedy at law, and that in such event, Licensee shall be entitled to seek
equitable relief including injunctive relief, as well as such other relief
as a court of competent jurisdiction may deem just and proper.
12. SUBLICENSING/ASSIGNMENT: Except for sublicenses to affiliates of
Licensee which for purposes hereof shall mean entities which directly or
indirectly are controlled by the Licensee or Urban Cool Network, Inc., as
defined by Rule 405 promulgated by the Securities and Exchange Commission
("SEC") under the Securities Act of 1933, as amended, Licensee may not
sublicense any of the rights granted herein and may not assign any of its rights
hereunder without the prior written consent of Licensor which shall be exercised
in good faith. This Agreement will inure to the benefit of the Licensor, its
successors and assigns.
13. ATTORNEY'S FEES: In the event of any breach or alleged breach, under
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs.
14. REMEDIES: In the event of either party's failure to perform hereunder,
in addition to any other remedies available at law or in equity, the parties
shall have the right to enforce specific performance of the obligations under
this Agreement.
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15. CHOICE OF LAW: This Agreement shall be interpreted under the laws of
the State of New York.
16. RELATIONSHIP OF PARTIES: Nothing contained herein shall be construed
to create, expressly or by implication, an employment relationship, joint
venture, partnership, or other association between the parties, and neither
party may bind the other party in any dealings with any third parties. For
purposes of this Agreement references to Licensee's Web Site or network of web
sites shall include Urban Cool Network, Inc.'s web sites. Nothing herein shall
entitle Licensor to any rights to the Urban Cool brand, name or any rights in
Urban Cool's web sites.
17. WAIVER: The waiver by either party of a breach of a provision of this
Agreement shall not operate or be construed to invalidate the balance of the
provisions contained in this Agreement, which shall continue to remain in
effect.
18. SEVERABILITY: The finding by any court that a provision of this
Agreement is invalid shall not operate or be construed to invalidate the balance
of the provisions contained in this Agreement, which provisions shall continue
to remain in full force and effect.
19. ENTIRE AGREEMENT: This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and all prior proposals,
discussions or writings are superseded hereby. The terms of this License shall
be binding upon and shall inure to the benefit of the parties and their
successors, heirs and assigns.
20. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original of the party or
parties executing the same and all of which together shall be deemed to
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto execute this License Agreement by
their duly authorized representatives on the date set forth above.
XXXXXXXXXX ARTIST MANAGEMENT, LLC
By:
--------------------------------
Name:
Title:
XXXXXXXXXXXXXXXXXXX.XXX, INC.
By:
--------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
WITH RESPECT TO SECTION 9 OF THE
FOREGOING AGREEMENT:
XXXXXXXXXX MODELING AGENCY
By:
---------------------------------
Name:
Title:
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SCHEDULE 1
List of Web Sites
urban box office
xxxxxxxxxx.xxx
XXX.xxx
XxxxxXxxxxx.xxx
Xxxxxxxxxxx.xxx
Xxxxxxxxxxx.xxx
XxxXxxx.xxx
XxxxxxxxXxxxx.xxx
LatinaOnline
XxxXxxXxx.xxx
NationNet
Xxxxxxxxx.xxx
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SCHEDULE 2
NOTE: Notwithstanding anything to the contrary herein set forth, the
services of models and other talent represented by Licensor (and any use of
their photos or likenesses other than to promote Licensor or Licensee) shall be
subject to separately-negotiated arrangements between Licensee and Licensor on
behalf of such models and other talent for the applicable services involved;
provided, however, that Licensor's supplying of models for launch events and
model headshots for display on the Web Site shall be at no cost to Licensee.
1. Launch Events: Licensor shall provide models to Licensee for web
casting on the Licensee's Web Site. The Licensee shall have the right to request
models from one of the following categories: Wilhelmina Sports, Creative
Management and Music artists. The launch event will be conducted by Licensee
semi-annually, at the option of the Licensee. The Licensee shall have the right
to utilize the launch event, among other uses, (i) to signal the launch of a new
site, channel or feature on the Licensee's Web Site or (ii) in conjunction with
industry trade shows in North America, South America and Europe.
a. NetStand Kiosks and CyberCenter Events: Licensor shall supply
models and celebrities for participation at trade shows attended by
Licensee and for launch events for netstand kiosks and cyber-centers
sponsored by Licensee. The talent supplied will be featured on Licensee's
Web Site.
2. Model Search: Licensor shall conduct an annual high profile urban
themed model search, upon the request of the Licensee, utilizing the Licensee's
Web Site and NetStand kiosks as requested by Licensee. The parties anticipate
seeking a multi-media partner (either television, radio or print) in connection
with the model search. The parties anticipate that the model search will consist
of one of the following categories: (i) high fashion runway model (female), (ii)
children, (iii) sports model (male) and (iv) plus size model (women).
3. Profile: Licensor shall supply a model or celebrity, to be featured
weekly on Licensee's Web Site. The feature shall include an interview, pictures,
video clip, e-mail program on live chats as agreed by Licensor and Licensee.
4. Wilhelmina Agency Feature: Licensor shall supply information to
Licensee for use on the Licensee's Web Site, which shall be updated not less
than quarterly, with respect to the following: (i) the modeling agency business,
(ii) how to become a model agent, (iii) how to obtain a model agent, (iv) behind
the scenes at the Wilhelmina Agency and (v) the importance of having a model
agent.
5. Xxxxxxxxxx Xxxxx Cool Merchandise: Licensor and Licensee shall sell
merchandise, subject to Licensor's approval of the use of the Xxxx in each case,
on the Licensee's Web Site and shall share in the revenues on terms to be
negotiated in good faith. Licensor shall assist Licensee in developing three
calendars on an annual basis (female, male and children), for which Licensee
shall be entitled to any revenues except as otherwise agreed if Licensor
contributes to the cost of production thereof. Licensee's Web Site shall be used
to select the models and determine the month in which they should be featured.
Licensee shall design the calendar (subject to Licensor's approval) with an
urban international theme. Licensor shall cooperate
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with Licensee's promotion of the calendar in the third quarter of each year.
Licensor shall cooperate with Licensee in seeking a retail partner for the
calendars, such as Saks Fifth Avenue (female), Barney's (male) or Gap Kids
(Children). The parties shall seek to sell other merchandise on-line such as
t-shirts, caps, mugs, backpacks and other items. Licensee shall share in
revenues of Xxxxxxxxxx Xxxxx Cool merchandise sold on Licensor's web sites.
6. Xxxxxxxxxx Xxxxx Cool Monthly Contest: Licensee, at its option, shall
design a monthly contest with the assistance of the Licensor that requires the
user to answer questions in one of the following categories: models/fashion,
entertainment and sports. The answers to the questions will be found in areas on
the Web Site. Licensee anticipates that there will be several prizes leading to
a grand prize. The Licensee intends to seek corporate partners for the contest.
7. History of Wilhelmina: Licensor shall supply content to Licensee for a
standard channel feature which shall include historical, current material and
upcoming events.
8. Xxxxxxxxxx Xxxxx Cool Auctions: Licensor shall consult with Licensee
with respect to content for Licensee to feature in connection with celebrity
merchandise, trips and ticket packages. The merchandise shall have an urban
theme and may be auctioned on-line. The celebrities will host on line auctions
on Licensee's Web Site. Licensee will offer additional auctions upon
consultation with Licensor.
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