EXHIBIT 10.4
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made as of September ___, 1996
("Effective Date"), between HAKEEM, INC. ("Licensor") and APPLIED VOICE
RECOGNITION, INC., ("Licensee").
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of
Licensee.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder.
"LICENSE" has the meaning set forth in Section 2.1.
"LICENSOR COMMON STOCK" means 5,000 shares of Common Stock issuable to
Licensor pursuant to Section 3.1.
"LICENSOR WARRANT" means a warrant to purchase 5,000 shares of Common Stock
under the same terms and conditions as the Warrant being delivered to Licensor
pursuant to Section 3.1, and issuable to Licensor pursuant to Section 3.1.
"NAME AND LIKENESS" means the name and photograph or other likeness of
Xxxxxx Xxxxxxxx, but does not include any photograph or other likeness of Xxxxxx
Xxxxxxxx in any NBA or USA Basketball uniform, or any photograph or likeness of
Xxxxxx Xxxxxxxx in any shirt or clothing which contains the name of a product or
company under which Licensor or Xxxxxx Xxxxxxxx has a separate agreement.
"NOTICE OF REGISTRATION" means a notice by Licensee to the Licensor that
Licensee has determined to conduct an Underwritten Public Offering or Shelf
Registration.
"PIGGYBACK REGISTRATION" means a registration of shares of Registrable
Securities owned by the Licensor under the terms and conditions set forth in
Article 4.
"REASONABLE BASIS" means times and places mutually convenient to Xxxxxx
Xxxxxxxx and Licensee, and subject to Xxxxxx Xxxxxxxx'x NBA Basketball schedule,
his USA Basketball "Dream
Team" schedule, required appearances on behalf of his NBA and USA Basketball
teams, team meetings, practices, health, and Muslim religion holy days.
"Reasonable Basis" further requires that any request for Xxxxxx Xxxxxxxx'x
appearance at a photographic session, production of a television commercial, his
approval of advertising or photographs, or any requests for his autograph
requires at least two weeks' notice to Xxxxxx Xxxxxxxx'x assistant, Xxx Xxxxxxx,
that Xxxxxx Xxxxxxxx'x services are needed.
"REGISTRABLE SECURITIES" means (i) the Licensor Common Stock and (ii) the
Common Stock issuable upon exercise of the Licensor Warrant.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"SHELF REGISTRATION" means a registration meeting the requirements of Rule
415 under the Securities Act of any similar rule in effect under the Securities
Act.
"TERM" means a period of two (2) years, commencing on the Effective Date.
"UNDERWRITTEN PUBLIC OFFERING" means a public offering (including a Shelf
Registration) of Common Stock for cash which is offered and sold in a registered
transaction on a firm commitment underwritten basis through one or more
underwriters, pursuant to an underwriting agreement between Licensee and such
underwriters.
ARTICLE 2
GRANT OF LICENSE
2.1 GRANT. Upon the terms and conditions set forth in this Agreement
Licensor hereby grants to Licensee, and Licensee hereby accepts for the Term of
this Agreement, a non-exclusive license (the "License") to use the Name and
Likeness. During the Term Licensee will have the exclusive right to use textual
and pictorial matter pertaining to the Name and Likeness of Xxxxxx Xxxxxxxx in
connection with voice activated computer software, as that term is understood in
the computer software industry.
2.2 USE. The License granted in Section 2.1 shall include the right to
use textual and pictorial matters pertaining to the Name and Likeness on any
promotional, display and advertising materials (including television
commercials) which have been personally approved in advance by Xxxxxx Xxxxxxxx.
2.3 PERSONAL APPEARANCES AND TELEVISION COMMERCIALS. Licensor agrees that
it will cause Xxxxxx Xxxxxxxx to be available on a Reasonable Basis for up to
two (2) personal appearances and the production of up to four (4) television or
radio commercials for use in the promotion of Licensee's products during the
Term. Xxxxxx Xxxxxxxx'x attendance will not be
2
required for more than two (2) hours at (i) any such personal appearance, or
(ii) the production of each television or radio commercial.
2.4 APPROVALS AND QUALITY CONTROLS. No product of Licensee using the Name
and Likeness shall be sold, distributed, or used by the Licensee, and no
advertising materials may be used in connection with such products, unless
approved in writing by Xxxxxx Xxxxxxxx. Any modification of such products or
advertising material must be submitted in advance for Xxxxxx Xxxxxxxx'x written
approval as if it were a new product or new advertising material. Licensee
agrees to provide to Xxxxxx Xxxxxxxx a copy of all photographs, advertising, and
promotional materials, including television commercials to be used in connection
with this Agreement at least 14 days before his approval is required, and, those
materials shall not be released or used without prior written approval of Xxxxxx
Xxxxxxxx.
2.5 RESERVATION OF RIGHTS. Licensor reserves all rights not expressly
conveyed to Licensee hereunder.
2.6 LABOR COMPLIANCE. Licensor hereby notifies, and Licensee hereby
acknowledges, that Licensor's employee, Xxxxxx Xxxxxxxx, is a member of the
Screen Actors Guild (the "Guild") and the American Federation of Television and
Radio Artists ("AFTRA"). Therefore, Licensee agrees that Xxxxxx Xxxxxxxx shall
not be requested or expected to participate in any commercial contemplated under
this Agreement unless the producer for said commercial has executed a basis
minimum agreement with the Guild and/or AFTRA, which is in full force and
effect, and is currently a signatory in good standing to the Guild and/or AFTRA
basic agreements at the time the commercial is made. In addition, Xxxxxx
Xxxxxxxx shall not be requested or expected to perform any services by
participating in the making of any commercial for any producer against whom the
Guild and/or AFTRA is conducting a strike, nor shall Xxxxxx Xxxxxxxx be
requested or expected to perform any service which would otherwise violate any
strike order of the Guild and/or AFTRA.
In sum, Licensee agrees that no services requested or expected of Xxxxxx
Xxxxxxxx, and nothing in this Agreement shall violate the provisions of the
applicable collective bargaining agreement(s) of the Guild and/or AFTRA.
Licensee agrees that nothing in this Agreement will cause Licensor's employee,
the performer Xxxxxx Xxxxxxxx, to violate the membership rules of the Guild or
AFTRA.
ARTICLE 3
CONSIDERATION
3.1 CONSIDERATION TO LICENSOR. As consideration for Licensor's execution
of this Agreement, Licensee shall, upon execution of this Agreement, deliver to
Licensor a certificate representing the Licensor Common Stock and the Licensor
Warrants.
3
3.2 PAYMENT OF EXPENSES. If Xxxxxx Xxxxxxxx is required to travel outside
of the City of Houston in connection with any personal appearance, Licensee
shall provide Xxxxxx Xxxxxxxx and one (1) companion or business representative
with round trip air fair and limousine ground transportation, meals, room and
lodging, all of which shall be on a "first class" basis. Licensee shall further
pay all other reasonable out-of-pocket expenses, if any, incurred by Xxxxxx
Xxxxxxxx in connection with such appearance(s) within five (5) days of receipt
of an invoice from Licensor itemizing such expenses in reasonable detail.
ARTICLE 4
REGISTRATION
4.1 PIGGYBACK REGISTRATION. If at any time or from time to time after the
date hereof Licensee shall determine to make an Underwritten Public Offering or
Shelf Registration for its own account (but not including an offering that is
registered on Commission Forms X-0, X-0 or any successor forms thereto), then
Licensee will (i) promptly give to Licensor a Notice of Registration, and (ii)
use its best efforts to include in such registration (and any related
qualification or compliance under Blue Sky laws), and in any Underwritten Public
Offering or Shelf Offering involved therein, all the Registrable Securities
specified in any written request or requests by Licensor received by Licensee
within 10 days after such Notice of Registration is given.
4.2 LIMITATIONS ON PIGGYBACK REGISTRATIONS. Licensor may make a request
for the inclusion of all or any portion of its Registrable Securities in any
registration effect pursuant to Section 4.1 at any time after the date hereof
through the third anniversary of the date hereof under the procedures set forth
herein.
4.2.1 EXECUTION OF UNDERWRITING AGREEMENT. The right of Licensor to
participate in an Underwritten Public Offering pursuant to Section 4, shall
be conditioned upon the inclusion of Licensor's Registrable Securities in
the Underwritten Public Offering to the extent provided herein. Licensee
and Licensor shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected by Licensee for such
Underwritten Public Offering.
4.2.2 LIMITATION ON REGISTRATION. Notwithstanding any other
provisions of this Agreement, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten the managing underwriter and Licensee may limited the
Registrable Securities to be included in any Underwritten Public Offering
as set forth below. In such event, Licensee shall so advise Licensor, and
the number of shares of Registrable Securities that will be included in the
registration and Underwritten Public Offering shall be allocated pro rata
between Licensee and Licensor. No Registrable Securities excluded from the
Underwritten Public Offering by reason of the managing underwriter's
marketing limitation shall be included in such registration. If Licensor
disapproves of the terms of the Underwritten Public Offering, Licensor may
elect to withdraw therefrom by
4
written notice to Licensee and the managing underwriter. The Registrable
Securities so withdrawn also shall be withdrawn from registration.
4.2.3 TERMINATION OF REGISTRATION. Notwithstanding any other
provision of this Agreement at any time before or after the filing of a
registration statement that is subject to Section 4.1, Licensee may, in its
sole discretion abandon or terminate an Underwritten Public Offering
without the Consent of Licensor.
4.2.4 REGISTRATION EXPENSES. All expenses of any registration under
this Agreement (including, but not limited to, any qualifications under the
Blue Sky or other state securities laws, compliance with governmental
requirements of preparing and filing any post-effective amendments required
for the lawful distribution of the Registrable Securities to the public and
of supplying prospectuses, offering circulars or other documents), will be
paid by Licensee provided however, that Licensor shall be responsible for
the fees and expenses of its counsel.
4.3 REGISTRATION PROCEDURES. Licensee will at its expense:
4.3.1 PREPARATION OF REGISTRATION STATEMENT. Prepare and file with
the Commission a registration statement with respect to the Registrable
Securities to be registered, and use its best efforts to cause such
registration statement to become and remain effective for three years or
until Licensor no longer owns any of the Registrable Securities;
4.3.2 AMENDMENTS. Prepare and file with the Commission such
amendments to such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration statement
effective for the periods set forth in Section 4.3.1;
4.3.3 COPIES OF REGISTRATION STATEMENT AND PROSPECTUS. Furnish to
Licensor such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as
Licensor may reasonably request to facilitate the public offering of the
Registrable Securities;
4.3.4 BLUE SKY QUALIFICATION. Use its diligent good faith efforts to
register or qualify the Registrable Securities covered by such registration
statement under such state securities or Blue Sky laws of such
jurisdictions, as Licensor may reasonably request;
4.3.5 NOTICE OF EFFECTIVENESS. Notify counsel for Licensor, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective under the Securities Act or a supplement to
any prospectus forming a part of such registration statement has been
filed;
5
4.3.6 COMMISSION REQUESTS FOR INFORMATION. Notify counsel for
Licensor promptly of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or for
additional information;
4.3.7 ADDITIONAL AMENDMENTS. Prepare and file with the Commission,
promptly upon the request of Licensor, any amendments or supplements to
such registration statement or prospectus which in the opinion of counsel
for Licensor (and concurred in by counsel for Licensee), is required under
the Securities Act or the rules arid regulations thereunder in connection
with the distribution of the Registrable Securities;
4.3.8 NOTICE AND FILING OF AMENDMENTS. Prepare and promptly file with
the Commission and promptly notify counsel for Licensor of the filing of
such amendment or supplement to any such registration statement or
prospectus as may be necessary to correct any statements or omissions if,
at the time when a prospectus relating to the Registrable Securities is
required to be delivered under the Securities Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus
then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
4.3.9 ISSUANCE OF STOP ORDERS. Advise counsel for Licensor, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of such
registration statement under the Securities Act or the initiation or
threatening of any proceeding for such purpose, and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
4.3.10 COMPLIANCE WITH SECURITIES ACT. Not file any amendment or
supplement to such registration statement or prospectus, if in the opinion
of counsel for Licensor, such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act and "the
rules and regulations thereunder, after having been furnished with a copy
substantially in the form thereof at least two business days before the
filing thereof; provided however, that if in the opinion of counsel for
Licensee the filing of such amendment or supplement is reasonably necessary
to protect Licensee from any liabilities under any applicable federal or
state law and such filing will not violate applicable law, Licensee may
make such filing, and
4.3.11 LISTING. List the Registrable Securities on any national
securities exchange on which the Common Stock is approved for listing;
6
4.4 INDEMNIFICATION.
4.4.1 INDEMNIFICATION BY LICENSEE. Licensee agrees to indemnify,
defend and hold harmless Licensor, its officers and directors, each
underwriter of the Registrable Securities, and each person who controls
Licensor or any such underwriter within the meaning of Section 15 of the
Securities Act, against any and all losses, claims, damages or liabilities
(including reasonable attorneys' fees) to which they or any of them may
become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of
Licensee (subject to Section 4.4.3), insofar as any such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, any preliminary prospectus or final prospectus
contained therein or any amendment or supplement thereto, or in any Blue
Sky application, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnification agreement contained in this Section 4.4.1 shall not (i)
apply to such losses, claims, damages, liabilities or actions arising out
of, or based upon, any such untrue statement or alleged untrue statement,
or any such omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information furnished to
Licensee in writing by Licensor or any such underwriter for use in
connection with the preparation of the registration statement or any
preliminary prospectus or prospectus contained in the registration
statement or any amendment thereof or supplement thereto, or (ii) inure to
the benefit of any person to the extent such person's claim fur
indemnification thereunder arises out of or is based on any violation by
such person of applicable law.
During the term of this Agreement, and continuing after the expiration
or termination of this Agreement, Licensee agrees that it shall indemnify,
defend and hold harmless Licensor arid its employee, Xxxxxx Xxxxxxxx, and
their against, representatives or employees, from and against any claims,
demands, suits, judgments, loss, liability, damages, cost or expense
(including attorney's fees), or from any liability of whatever kind or
nature which arise from or are in any way connected with the License which
is the subject of this Agreement, the use and quality thereof, and
Licensee's use of the Name and Likeness in connection therewith, including,
but not limited to, that which may be brought or made against Licensor or
Xxxxxx Xxxxxxxx by reason of: (a) any unauthorized use of Xxxxxx Xxxxxxxx'x
name or Likeness; (b) Licensee's failure to comply with any applicable
federal, state, local, common law, or with any applicable government
regulations, including, but not limited to, product, trademark, copyright,
or patent laws; (c) damage to property; (d) the failure or alleged failure
of, or a defect or alleged defect in, or other dissatisfaction by
customers, marketers, distributors, or sellers, with the Licensee's
products for any reason; (e) any advertising by Licensee which is alleged
to be false, misleading, fraudulent, incorrect, or otherwise contrary to
any applicable federal, state local, common law, or to any applicable
government regulations; or (f) any failure or alleged failure of Licensee
to promptly pay or meet its duties and responsibilities under any
agreements, whether oral or in writing, with customers, manufacturers,
distributors,
7
marketers, or sellers, or with any persons or entities connected in any way
whatsoever with the process of the design, manufacture, marketing
distribution or sale of the Licensee's products. Licensee shall pay the
costs and expenses incurred by Licensor and/or Xxxxxx Xxxxxxxx in
connection with such indemnification as such costs and expenses are
incurred. Licensor and/or Xxxxxx Xxxxxxxx shall give prompt notice of, and
full cooperation and assistance to Licensee relative to any such claim or
suit, and Licensee shall have the obligation to undertake and conduct the
defense of any such claim or suit brought; provided however, that Licensor
and/or Xxxxxx Xxxxxxxx has the right to approve the selection of any
counsel which represent Licensor and/or Xxxxxx Xxxxxxxx and the right to
dismiss any counsel representing Licensor and/or Xxxxxx Xxxxxxxx if the
representation of said counsel is unsatisfactory to Licensor and/or Xxxxxx
Xxxxxxxx.
4.4.2 INDEMNIFICATION BY LICENSOR. Licensor shall, in the same
manner and to the same extent as set forth in Section 4.4.1, indemnify and
hold harmless Licensee and each person, if any, who controls Licensee
within the meaning of Section 15 of the Securities Act, and its directors
and officers, with respect to any untrue statement or alleged untrue
statement in, or omission or alleged omission from, such registration
statement or any post-effective amendment thereof or any preliminary
prospectus or final prospectus (as amended or supplemented, if amended or
supplemented as aforesaid) contained in such registration statement, if
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to Licensee by Licensor for use in
connection with the preparation of such registration statement or any
preliminary prospectus or final prospectus contained in such registration
statement or any such amendment thereof or supplement thereto.
4.4.3 INDEMNIFICATION PROCEDURES. Each person to be indemnified
pursuant to this Section 4.4 will, promptly after its receipt of written
notice of the commencement of any action against such indemnified person in
respect of which indemnity may be sought from an indemnifying person under
Section 4.4.1 or Section 4.4.2, notify the indemnifying person in writing
of the commencement thereof; provided however, that the failure of any
person to give notice as provided herein shall not relieve the indemnifying
party of its obligations under this Agreement except to the extent that
such indemnifying party is actually prejudiced by such failure to give
notice. If any such action shall be brought against any indemnified person
and it shall notify an indemnifying person of the commencement thereof, the
indemnifying person will be entitled to participate therein, and, to the
extent it may desire, jointly with any other indemnifying person similarly
notified, to assume the defense thereof with counsel satisfactory to such
indemnified person, and after notice from the indemnifying person to such
indemnified person of its election so to assume the defense thereof, the
indemnifying person will not be liable to such Indemnified person under
this Article 4 for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof other than
reasonable costs of investigation unless (i) the indemnified person shall
have employed counsel in an action in which the indemnified person and
indemnifying person are both defendants and there is a conflict of interest
between such parties that would prevent
8
counsel from adequately representing both parties, (ii) the indemnifying
person shall not have employed counsel satisfactory within the exercise of
reasonable judgment of the indemnified person to represent the indemnified
person within a reasonable time after the notice of the commencement of the
action or (iii) the indemnifying person has authorized the employment of
counsel for the indemnified person at the expense of the indemnifying
person. The undertaking contained in this Article 4 shall be in addition to
any liabilities which the indemnifying person may have pursuant to law.
4.5 INFORMATION BY LICENSOR. Licensor shall furnish to Licensee such
information regarding Licensor as Licensee may request and as shall be
reasonably required in connection with the registration, qualification or
compliance referred to in Section 4.1
4.6 RIGHTS NON-TRANSFERABLE. The registration rights provided by this
Agreement are for the sole benefit of Licensor, are personal in nature, and
shall not be available to any subsequent holder of the Registrable Securities;
provided, however, that Licensor may assign all or any portion of the
Registrable Securities to Xxxxxx Xxxxxxxx. To the extent Xxxxxx Xxxxxxxx becomes
a transferee of Registrable Securities, he shall have the right to participate
in the Piggyback Registrations provided for in Section 4.1. If Xxxxxx Xxxxxxxx
participates in any such Piggyback Registration, then the indemnification by
Licensee set forth in Section 4.4.1 shall also apply to Xxxxxx Xxxxxxxx and
Xxxxxx Xxxxxxxx shall be required to indemnify Licensee to the same extent
Licensor is indemnifying Licensee pursuant to Section 4.4.2.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF LICENSOR
5.1 REPRESENTATIONS WARRANTIES OF LICENSOR. Licensor hereby represents
and warrants that:
5.1.1 ORGANIZATION. Licensor is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Texas. Licensor has all corporate power and authority to carry on its
business as now being conducted, to own or hold under lease the properties
which it owns or holds under lease, and to perform all its obligations
under the agreements and instruments to which it is a party or by which its
assets are affected. Licensor is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each state or other
jurisdiction in which failure to qualify would have a material adverse
effect on Licensor.
5.1.2 AUTHORITY AND CONSENT. Licensor has the right, power, legal
capacity, and authority to enter into, and perform its obligations under
this Agreement, and no approvals or consents of any person are necessary in
connection herewith or therewith except as have been obtained. The
execution, delivery and performance by Licensor of this Agreement has been
duly authorized by all necessary corporate action by Licensor and in
accordance with
9
all applicable laws This Agreement constitutes a valid and legally-binding
obligations of Licensor, and is enforceable against Licensor in accordance
with its terms, except as such enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws of general
application relating to or affecting enforcement of creditor's rights.
5.1.3 DEFAULTS. Neither the execution and delivery of this Agreement
by Licensor nor the consummation of the transactions contemplated hereby
will (i) violate or conflict with any provision of the certificate or
articles of incorporation or bylaws of Licensor as amended to date; (ii)
violate or conflict with any provision of any law, statute, rule, or
regulation material to the operation of Licensor, or any order, permit,
certificate, writ, judgment, injunction, decree, determination, award, or
other decision of any court, arbitrator, or governmental authority to which
Licensor is a party; or (iii) result in a breach of, or constitute a
default (or with notice or lapse of time or both result in a breach of or
constitute a default) under or otherwise give any person the right to
terminate or accelerate payment under or performance of any note, bond,
loan agreement, contract, lease or license, or under any other material
agreement or instrument to which Licensor is a party or to which its assets
are subject the default, breach, termination or acceleration of which would
have a material adverse effect on Licensor. Licensor is not in default
under, nor has any event occurred with lapse of time or action by a third
party, could result in a default under (a) the articles of incorporation or
bylaws of Licensor as amended to date, (b) any provision of any law,
statute, rule or regulation material to the operation of Licensor, or any
permit, certificate, writ, judgment, settlement, order, injunction, decree,
determination, award, or other decision of any court, arbitrator, or
governmental authority to which Licensor is a party, (c) any outstanding
note, bond, mortgage, loan agreement, indenture, lease, or license, or (d)
any other material agreement to which Licensor is a party or to which its
assets are subject.
5.1.4 COMPLIANCE WITH LICENSING REQUIREMENTS. Licensor has obtained
all approvals, authorizations, consents, permits, licenses and orders of
all governmental authorities required by the nature of its business to
permit the continued lawful operation of its business as presently
conducted, which, if not held by Licensor, would have a material adverse
effect on Licensor. There is no action pending or, to the best knowledge
of Licensor, threatened, by any governmental authority seeking to revoke,
cancel, modify, or deny any such licenses and permits or to deny any
applications made to obtain, renew, or modify any such licenses and
permits.
5.1.5 FURTHER ASSURANCES. Licensor will, promptly upon reasonable
request of Licensee, execute and deliver all such other documents, and take
all such other actions as may be necessary to fully effect the intent and
provisions of this Agreement.
5.1.6 ABSENCE OF BROKERS. Neither Licensor nor any of its affiliates
has employed any broker, agent or finder, or incurred any liability for any
brokerage fees, agent's fees, concessions or finder's fees in connection
with the transactions contemplated herein.
10
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF LICENSEE
6.1 REPRESENTATIONS AND WARRANTIES OF LICENSEE. Licensee hereby
represents and warrants that:
6.1.1 VALIDITY OF SHARES. The Licensor Common Stock and the Licensor
Warrant are in due and proper form and have been duly authorized by all
necessary corporate action on the part of Licensee. The Licensor Common
Stock being issued to Licensor hereunder and the Licensor Common Stock
issuable upon exercise of the Licensor Warrant when issued, will be validly
issued, fully paid and non-assessable shares of Common Stock, free of
preemptive rights. Licensor will acquire valid and marketable title to the
Licensor Common Stock being issued to Licensor hereunder, the Licensor
Warrant and the Common Stock issuable upon exercisable of the Licensor
Warrant free and clear of any encumbrances.
6.1.2 ORGANIZATION. Licensee is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware. Licensee has all corporate power and authority to carry on its
business as now being conducted, and to perform all its obligations under
the agreements and instruments to which it is a party. Licensee is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each state or other jurisdiction in which failure would
have a material adverse effect on Licensee.
6.1.3 AUTHORITY AND CONSENT. Licensee has the right, power, legal
capacity, and authority to enter into, and perform its obligations under
this Agreement and no approvals or consents of any person are necessary in
connection therewith except as have been obtained. The execution, delivery
and performance by Licensee of this Agreement has been duly authorized by
all necessary corporate action by Licensee and in accordance with all
applicable laws. This Agreement constitutes a valid and legally-binding
obligation of Licensee, and is enforceable against Licensee in accordance
with its terms, except as such enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditor's rights.
6.1.4 DEFAULTS. Neither the execution and delivery of this Agreement
by Licensee nor the consummation of the transactions contemplated hereby
will (i) violate or conflict with any provisions of the certificate or
articles of incorporation or bylaws of Licensee as amended to date (ii)
violate or conflict with any provision of any law, statute, rule, or
regulation material to the operation of Licensee, or any order, permit,
certificate, writ, judgment, injunction decree, determination, award, or
other decision of any court, arbitrator, or governmental authority to which
Licensee is a party, or (iii) result in a breach of, or constitute a
default (or with notice or lapse of time or both result in a breach of or
constitute a default) under or otherwise give any person the right to
terminate or accelerate payment under or
11
performance of any note, bond, loan agreement, contract, lease or license,
or under any other material agreement or instrument to which Licensee is a
party or to which its assets are subject the default, breach, termination
or acceleration of which would have a material adverse effect on Licensee.
Licensee is not in default under, nor has any event occurred which, with
lapse of time or action by a third party, could result in a default under
(a) the articles of incorporation or bylaws of Licensee as amended to date,
(b) any provision of any law, statute, rule or regulation material to the
operation of Licensee, or any permit, certificate, writ, judgment,
settlement, order, injunction, decree, determination, award, or other
decision of any court, arbitrator, or governmental authority to which
Licensee is a party, (c) any outstanding note, bond, mortgage, loan
agreement, indenture, lease, or license, or (d) any other material
agreement to which Licensee is a party or to which its assets are subject.
6.1.5 COMPLIANCE WITH LAW. Licensee acknowledges that neither
Hakeem, Inc. nor its employee, Xxxxxx Xxxxxxxx, have obtained any expert or
legal advice regarding copyright, trademark, or patent infringement and
that Hakeem, Inc. and its employee, Xxxxxx Xxxxxxxx, are relying upon
Licensee to obtain any such expert or legal advice, and to ensure that the
products of Licensee using the name and Likeness and the advertising,
marketing, and distribution thereof are in compliance with the copyright,
trademark, and patent infringement laws of the United States, or any state
in which such products are advertised, marketed, published, sold or
distributed, Licensee will obtain the necessary expert or legal advice to
ensure that the products of Licensee using the Name and Likeness, and the
advertising, marketing and distribution thereof, are in compliance with the
laws of the United States, or of any state or country in which such
products are advertised, marketed, published, sold or distributed.
6.1.6 COMPLIANCE WITH LICENSING REQUIREMENTS. Licensee has obtained
all approvals, authorizations, consents, permits and orders of all
governmental authorities required by the nature of its business to permit
the continued lawful operation of its business as presently conducted,
which, if not held by Licensee, would have a material adverse effect on
Licensee. There is no action pending or, to the best knowledge of
Licensee, threatened, by any governmental authority seeking to revoke,
cancel, modify, or deny any such licenses and permits or to deny any
applications made to obtain, renew, or modify any such licenses and
permits.
6.1.7 COMPLIANCE WITH COPYRIGHT, TRADEMARK OR PATENT INTERESTS,
INCLUDING RIGHTS OF THE NBA, USA BASKETBALL AND/OR NCAA. During the Term,
Licensee will at all times comply with all government laws and regulations
relating to the manufacture, sale, advertising or use of the products of
Licensee. Licensee shall comply with any regulations of any agencies that
shall have jurisdiction over such products and shall procure and maintain
in force any and all permissions, certifications and other authorizations
from governmental and other official authorities that may be required in
relation thereto. The products distributed hereunder shall comply with all
applicable laws and regulations. Licensee represents that it has obtained
or will obtain as required all necessary approvals,
12
authorizations, consents, permits, licenses and orders of all NBA, USA
Basketball and NCAA authorities required for any products of Licensee using
the name and Likeness or any advertising thereof, which, if not held by
Licensee, would have a material adverse effect on Licensor or Licensee.
During the Term, Licensee will, at all times, comply with all NBA, USA
Basketball, and/or NCAA rules and regulations or the copyright or trademark
interests of those entities relating to the information contained in or on
the products of Licensee using the Name and Likeness, and any design,
manufacture, advertising or use of such products. Licensee shall comply
with the rules, regulations or copyright interests of such agencies such
that neither the products using the Name and Likeness nor the advertising
thereof are in violation of any such interests, or shall procure and
maintain in force any and all licenses, permissions or other authorizations
from the NBA, USA Basketball or the NCAA and the official authorities that
may be required in relation thereto. In addition, Licensee warrants that it
has obtained or will obtain as required licenses, authorizations, or
written appropriate required permission, from any and all persons,
companies, or entities whose art or work is protected by copyright,
trademark or patent laws, and used in connection with the design,
manufacture, distribution and sale of the products using the name and
Likeness, including, but not limited to, photographs, used on the products
of Licensee using the Name and Likeness or in its advertising.
6.1.8 FURTHER ASSURANCES. Licensee will, promptly upon the
reasonable request of Licensor, execute and deliver all such other
documents, and take all such other actions as may be reasonably necessary
to fully effect the intent and provisions of this Agreement.
6.1.9 COMPLIANCE WITH LICENSING REQUIREMENTS. Licensee has obtained
an approvals, authorizations, consents, permits, licenses and orders of all
governmental authorities required by the nature of its business to permit
the continued lawful operation of its business as presently conducted,
which, if not held Licensee, would have a material adverse effect on
Licensee. There is no action pending or, to the best knowledge of License,
threatened, by any governmental authority or entity seeking to revoke,
cancel, modify, or deny any such licenses and permits or to deny any
applications made to obtain, renew, or modify any such licenses and
permits.
6.1.10 PROTECTING THE ATHLETE ENDORSEMENT. Licensee agrees that
Licensee, its owners, directors, officers and employees, will take all
necessary steps during the term of this Agreement to protect the athlete
endorsement, the name of Hakeem, Inc., the Name and Likeness of its
employee, Xxxxxx Xxxxxxxx, the nickname "The Dream", or any facsimile
thereof, in connection with the advertisement, promotion, distribution and
sales of products of Licensee using the name and Likeness.
6.1.11 FAVORED NATIONS. Licensee agrees that during the period of
this Agreement, it shall enter into no contractual arrangement with any
other athlete or company, for athlete endorsement, with compensation or
other terms more favorable than those provided to
13
Licensor, without first making such more favorable compensation or other
terms available to Licensor.
6.1.12 ABSENCE OF BROKERS. Neither Licensee nor any of its
affiliates has employed any agent or finder, or incurred any liability for
any agent's fees, commissions or finder's fees in connection with the
transactions contemplated herein, other than as contemplated by this
agreement.
ARTICLE 7
TERMINATION
7.1 TERMINATION BY LICENSOR. Subject to Section 7.3, Licensor shall have
the right to terminate this Agreement, without prejudice to any rights it may
have, whether pursuant to the provisions of this Agreement, at law or in equity,
upon the occurrence of any one or more of the following events:
7.1.1 FAILURE TO PERFORM. The Licensee defaults in the performance
of any of its material obligations set forth in this agreement;
7.1.2 VALIDITY OF REPRESENTATIONS AND WARRANTIES. Any representation
and warranty made by Licensee under this Agreement fails to continue to be
true and accurate, and as a result of such failure, there is a material
adverse effect on the ability of Licensee to perform its obligations under
this Agreement;
7.1.3 INSOLVENCY. Licensee is unable to pay its debts when due, or
makes any assignment for the benefit of creditors, or files any petition
under the bankruptcy or insolvency laws of any jurisdiction, country or
place, or suffers a receiver or trustee to be appointed for its business or
property, or is adjudicated a bankrupt or an insolvent;
7.1.4 NAME AND REPUTATION. If the name and reputation, or commercial
value thereof of Xxxxxx Xxxxxxxx is endangered by reason of its association
with Licensee, or its divisions or subsidiary corporations, or its
directors, officers or principals, because of a conviction of any such
directors, officers or principals of a felony or a misdemeanor, involving
moral turpitude, or because of allegations that such companies or persons
committed fraud or made misrepresentations concerning this License and the
products of Licensee using the Name and Likeness to be distributed under
this Agreement, or that Licensee or its directors, officers or principals
acted in, violation of trademark, copyright or patent laws, or in violation
of NBA, USA Basketball and NCAA rules and regulations, or their trademark
or copyright interests; or
7.1.5 MISREPRESENTATIONS CONCERNING RELATIONSHIP OF LICENSE. This
Agreement is a non-exclusive License Agreement, and any representations or
"holding out" by Licensee,
14
its directors officers or employees that this License is more than it is,
or that Licensee has any rights other than those actually conveyed, or that
Licensee or its owners, directors, officers or employees is the agent of
Licensor or Xxxxxx Xxxxxxxx, or that a partnership or joint venture exists
between Licensor or Xxxxxx Xxxxxxxx, and Licensee, shall be considered to
be a material breach of this License Agreement and grounds for termination.
7.2 TERMINATION BY LICENSEE. Subject to Section 7.3, Licensee shall have
the right to terminate this Agreement, without prejudice to any rights it may
have, pursuant to the provisions of this Agreement, at law or in equity, on the
occurrence of any one or more of the following events:
7.2.1 FAILURE TO PERFORM. The Licensor defaults in the performance
of and of its material obligations set forth in this Agreement; or
7.2.2 FAILURE OF REPRESENTATIONS AND WARRANTIES. Any representation
or warranty of the Licensor under this Agreement fails to continue to be
true and accurate, and as a result of such failure, the ability of Licensee
to perform its obligations hereunder, is materially impaired.
7.3 TERMINATION PROCEDURES. If any event described in Sections 7.1 or 7.2
giving rise to a right to terminate this Agreement occurs, the non-defaulting
party shall give notice of termination in writing to the defaulting party as
provided in Section 9.1. The defaulting party shall have ten (10) days from the
date of the giving of such notice to correct the default, and failing such cure,
this Agreement shall thereupon immediately terminate.
7.4 EFFECT OF TERMINATION. Licensee agrees that upon termination of this
Agreement for any reason whatsoever, Licensee will thereafter cease using the
Name and Likeness for any purpose.
ARTICLE 8
DISPUTE RESOLUTION
8.1 SETTLEMENT OF DISPUTES. Except as provided in Section 8.3, any dispute
or controversy between the parties hereto arising from or relating to this
Agreement or the construction, validity, interpretation, meaning, performance,
non-performance, enforcement, operation or breach of this Agreement shall be
Submitted to mediation, and if such mediation is unsuccessful then to mandatory,
final and binding arbitration.
8.2 MEDIATION AND ARBITRATION PROCEDURES. Any mediation or arbitration
under this Agreement shall take place pursuant to the following procedures:
8.2.1 DEMAND FOR MEDIATION. If a dispute or controversy arises,
either party may, in a written notice delivered to the other party, demand
mediation. The notice shall briefly state the matter in controversy.
15
8.2.2 APPOINTMENT OF MEDIATOR. If the parties do not resolve the
dispute within ten (10) days after delivery of the notice of mediation,
either party may request that Judicial Arbitration and Mediation Service
("JAMS") (or similar mediation service of a similar national scope if JAMS
no longer then exists) appoint an independent mediator, who shall serve as
mediator for all purposes hereof. Each party shall pay one-half of the
cost of the mediator's services, in advance upon request by the mediator or
any party.
8.2.3 MEDIATION. Within (10) days after appointment of the mediator,
the mediator shall schedule a meeting among the parties and the mediator
for the purpose of mediating the dispute. If the parties do not resolve the
dispute with thirty (30) days after appointment of the mediator, the
dispute shall be resolved in arbitration and either party may, in a written
notice delivered to the other party, demand arbitration. The notice shall
name and appoint an arbitrator selected by the party demanding arbitration.
8.2.4 APPOINTMENT OF ARBITRATOR. Within thirty (30) days after
receiving a demand for arbitration, the receiving party shall, in a written
notice delivered to the demanding party, name and appoint its own
arbitrator. If the receiving party fails to name and appoint an
arbitrator timely, then an arbitrator shall be appointed for the receiving
party by the Senior United States District Judge for the United States
District Court in Houston, Texas. The two arbitrators so appointed shall
appoint a third arbitrator within thirty (30) days, and the appointment may
be made either by agreement of the two arbitrators or by the Senior United
States District Judge for the United States District Court in Houston,
Texas at the request of the two arbitrators.
8.2.5 ARBITRATION RULES. Each party shall bear its own arbitration
fees, costs and expenses, provided, however, that fees, costs and expenses
associated with judicial proceedings may be awarded by a court under
Section 8.2.7. The arbitration hearing shall be held in Houston, Texas at a
location designated by a majority of the arbitrators. The Commercial
Arbitration Rules of the American Arbitration Association, as supplemented
hereby, shall apply to the arbitration. The substantive laws of the State
of Texas (excluding conflict of laws provisions) shall also apply to the
arbitration,
8.2.6 ARBITRATION AWARD. The arbitration hearing shall be concluded
within ten (10) days unless otherwise ordered by a majority of the
arbitrators, and the award thereon shall be made within fifteen (15) days
after the close of submission of evidence. An award rendered by a majority
of the arbitrators shall be final and binding on all parties to the
proceeding and non-appealable, and judgment on the award may be entered by
either party in a court of competent jurisdiction.
8.2.7 EFFECT OF ARBITRATION AWARD. The parties stipulate that the
provisions of this Section 8.2.7 shall be a complete defense to any suit,
action or proceeding instituted in any federal, state or local court or
before any administrative tribunal with respect to any controversy or
dispute arising out of this Agreement between the parties, and the parties
16
waive any right to have the award of the arbitrators appealed. The
arbitration provisions of this Agreement shall, with respect to such
controversy or dispute, survive the termination or expiration of this
Agreement. Should any party institute judicial proceedings seeking to avoid
the mediation or arbitration provisions of this Agreement, or should any
party in judicial proceedings unsuccessfully contest an arbitration award
rendered under this Section 8.2, the other party shall be entitled to
recover reasonable attorney's fees, costs and expenses associated with the
judicial proceedings, with the amount of attorney's fees, costs and
expenses to be determined by the Court. If a party fails to comply with the
terms of an arbitration award made under this Agreement, the other xxxxx
shall be entitled to recover reasonable attorney's fees, costs and expenses
incurred in seeking judicial confirmation of the award, with the amount of
attorney's fees, costs and expenses to be determined by the court. Failure
to comply with the terms of an arbitration award shall Include without
limitation the failure to pay the full amount due under an arbitration
award within the time specified in the arbitration award.
8.2.8 DAMAGE AWARDS. In determining any award under this Section
8.2, the arbitrators may not award amounts for special damages,
consequential damages, incidental damages, lost profits, damages for lost
business opportunity, punitive damages or exemplary damages.
Neither any party hereto nor the arbitrators may disclose the
existence or results of any arbitration hereunder without the prior
written consent of the other party; nor may any party hereto disclose to
any third party any confidential information disclosed by any other party
hereto in the course of an arbitration hereunder without the prior written
consent of such other party.
8.3 EMERGENCY RELIEF. Notwithstanding anything in this Article VIII to
the contrary, either party may seek from a court any provisional remedy that may
be necessary to protect any rights or property of such party pending the
establishment of the arbitral tribunal or its determination of the merits of the
controversy.
8.3.1 JURISDICTION. In connection only with the provisions of
Section 8.3, each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court in Houston, Texas, and, if
such court does not have jurisdiction, of the courts of the State of Texas
in Xxxxxx County, for the purposes of any action arising out of this
Agreement or the subject matter of this Agreement brought by any other
party under Section 8.3.
8.3.2 WAIVER OF DEFENSES. In connection only with the provisions of
this Section 8.3, to the extent permitted by applicable law, each party
hereby waives and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action under this Section 8.3, any claim (i) that it
is not personally subject to the jurisdiction of the above-named courts,
(ii) that the action is brought in an inconvenient forum, (iii) that it is
immune from any legal
17
process with respect to itself or its property, (iv) that the venue of the
suit, action or proceeding is improper, or (v) that this Agreement or the
subject matter of this Agreement may not be enforced in or by such courts.
8.3.3 SERVICE OF PROCESS. In connection only with the provisions of
this Section 8.3, Licensor and Licensee agree that, even if at any time
during the term of this Agreement, Licensor is not qualified to do business
as a foreign corporation in the State of Texas, or Licensee is not
qualified to do business as a foreign corporation in the State of Texas,
Licensor and Licensee each shall and do hereby irrevocably designate and
appoint the Secretary of State of the State of Texas as its agent for
service of process in any action with respect to any matter as to which it
submits to jurisdiction as set forth above; it being agreed that any method
of service upon such agent, with a copy sent to Licensor or Licensee, as
the case may be, in the manner set forth in Section 9.1, shall constitute
valid service upon Licensor or Licensee, as the case may be.
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by prepaid telex, telecopy, or telegram (with
messenger delivery specified) to Licensee or Licensor, as the case may be, at
the addresses set forth below, or to such other addresses as either may from
time to time designate to the other in writing:
Licensor: Hakeern, Inc
0000 Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxx, Esq.
Attorney at Law
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
18
With a copy to: Olajuwon Holdings, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx "Xxxx" X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Licensee: Applied Voice Recognition, Inc.
0000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to: Xxxxx, Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn.: J. Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
All such notices shall be deemed to have been given when deposited, postage
prepaid, in the United States mail, by return receipt requested, or when
delivered by facsimile transmission or by overnight delivery service at the
applicable address set forth above.
9.2 CHOICE OF LAW AND VENUE. This Agreement is performable in Houston,
Xxxxxx County, Texas, and the validity of this Agreement, its construction,
interpretation, and enforcement, and the rights of the parties hereto with
respect to all matters arising hereunder or related thereto, shall be determined
under, governed by, and construed in accordance with the laws of the State of
Texas.
9.3 INJUNCTIVE RELIEF. The parties hereto recognize and acknowledge that
a breach of any of the covenants, agreements or undertakings hereunder will
cause irreparable damage that cannot be readily remedied in damages in an action
at law, thereby entitling the non-breaching party to equitable remedies and
costs.
9.4 SURVIVAL. The obligations of the parties hereto shall survive until
the expiration of the Term.
9.5 AMENDMENT, WAIVER, MODIFICATION, ETC. No amendment, waiver,
modification or cancellation of any term or condition of this Agreement shall be
effective unless it is executed in writing by the party charged therewith. The
fact that a party has not previously insisted upon the other party's express
compliance with any provision of this Agreement shall not be deemed to be a
waiver of the other party's future right to require compliance. If any term or
provision of this Agreement is held to be invalid or unenforceable by any court
of competent jurisdiction or by any other authority vested with jurisdiction,
that holding shall not affect the validity or enforceability of
19
any other term or provision hereof, and this Agreement shall be interpreted and
construed if that term or provision, to the extent it shall have been held to be
invalid, illegal or unenforceable, had never been contained herein.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one
arid the same agreement.
9.7 INTEGRATION. This Agreement reflects the entire understanding and
agreement of the parties with respect to the transactions contemplated hereby
and shall not be contradicted, modified, or qualified by any oral agreement,
whether before or after the date hereof. This Agreement may not be changed
orally, but only in agreement in writing, signed by the party against whom
enforcement of any waiver, change, modification extension, or discharge is made.
9.8 RELATIONSHIP OF THE PARTIES. This Agreement does not constitute and
shall not be construed as giving any rights of agency, or constituting a
partnership or joint venture between Xxxxxx Xxxxxxxx and Licensee. Neither
Licensee, nor its shareholders, directors, officers or employees shall have any
right to obligate or bind Xxxxxx Xxxxxxxx in any manner whatsoever, or to
represent to any third party that it has the right to obligate or bind Xxxxxx
Xxxxxxxx, or that Licensee is the agent of Xxxxxx Xxxxxxxx or that a partnership
or joint venture exists between Licensee and Licensor, and nothing herein
contained shall give, or is intended to give, any rights of any kind to any
third persons. Neither party is hereby constituted an agent or representative
of the other party hereto, and neither is granted any right or authority
hereunder to assume or create any obligation express or implied, or to make any
representation, covenant, warranty or guaranty on behalf of the other, except as
expressly granted or made in this Agreement. The parties agree that they shall
not make any representation except as expressly granted or made in this
Agreement.
9.9 NON-ASSIGNABILITY. This Agreement shall bind and inure to the benefit
of Licensee, its successors and permitted assigns. This Agreement is personal
to Licensee, and Licensee shall not sub-license nor franchise its right
hereunder, and neither this Agreement nor any of the rights of Licensee
hereunder shall be sold, transferred or assigned by Licensee, and no rights
hereunder shall devolve by operation of law or otherwise upon ally receiver,
liquidator, trustee or other party.
9.10 EXPENSES. Except as otherwise provided herein, each of the parties
hereto agrees to pay its own respective expenses and attorney's fees incurred in
connection with the negotiation, preparation, execution, and delivery of this
Agreement.
9.11 DESCRIPTIVE HEADINGS. Descriptive headings herein are for
convenience only, and shall not control or affect the meaning or construction of
any provision of this Agreement.
9.12 ATTORNEY'S FEES. In the event any suit or other legal proceedings is
brought for the enforcement of any of the provisions of this Agreement, or by
reason of the breach of either party to this Agreement the parties hereto agree
that the prevailing party shall be entitled to recover from the
20
other, upon final judgment on the merits by a court of last resort, reasonable
attorneys' fees, including attorneys' fees for any appeal, and its costs
incurred in bring such suit, proceeding and/or appeals.
9.13 TIME OF THE ESSENCE. Time is of the essence in the performance by
the parties hereto of their obligations hereunder, including, without
limitation, the payment by Licensee of all compensation due Licensor hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
LICENSOR:
HAKEEM, INC.
By: /S/ XXXXXX XXXXXXXX
-------------------------------
Xxxxxx Xxxxxxxx, President
LICENSEE:
APPLIED VOICE RECOGNITION, INC.
By: /S/ XXXXXXX X. XXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxx, President
21
