License Agreement Page 5 of 5
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "License Agreement") is effective as of June 24,
2004 (the "Effective Date") by and among Encompass Group Affiliates, Inc., a
Delaware corporation, located at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000 ("Licensee"), and Hy-Tech Technology Group, Inc. and Hy-Tech Computer
Systems, Inc., each a Delaware Corporation, located at 0000 Xxx Xxxxx Xxxxx, Xx.
Xxxxx, XX 00000 (together, "Licensors"). Licensee and each Licensor are
individually referred to as a "Party" and collectively referred to as the
"Parties."
RECITALS
WHEREAS, Licensee desires to license certain assets of Licensors and
Licensors desire to grant to Licensee a license in those assets on the terms and
condition contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS. The following terms shall have the following meaning as used in
this License Agreement:
"Affiliate" means, with respect to any legally recognizable entity, any
other such entity directly or indirectly Controlling, Controlled by, or under
common Control with such entity. "Control," as used in this definition, means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a legally recognizable entity,
whether through the ownership of voting shares or other voting interests, by
contract, or otherwise. Where such entity is a partnership, limited liability
company, corporation, or similar entity and has partners, members, or
shareholders with equal ownership interests or equal control interests, by
contract or otherwise, then each such partner, member, or shareholder will be
deemed to possess, directly or indirectly, the power to direct or cause the
direction of the management and policies of that entity.
"Convertible Debenture" shall mean the 10% Senior Secured Convertible
Debentures described on Schedule I hereto.
"Derivative Technology" means: (i) for copyrightable or copyrighted
material, any translation (including translation into other computer languages),
portation, modification, correction, addition, extension, upgrade, improvement,
compilation, abridgement or other form in which an existing work may be recast,
transformed or adapted; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material which is protected by trade secret,
any new material derived from such existing trade secret material, including new
material which may be protected by copyright, patent and/or trade secret.
"Web Sites" means the collection of web pages comprising the Web sites
located at: (i) xxxx://xxx.x-xxxxxx.xxx; (ii) xxxx://xxx.xx-xxxx.xxx; (iii)
xxx.xx-xxxxxx.xxx; (iv) xxx.xxxxxxxxxxxxxxxxxxx.xxx, (v) xxx.XXXX.xxx and (vi)
any other Web sites or domain names owned or operated by either Licensor.
"Web Site-Related Assets" means: (i) the Web Sites, including all portions
thereof and works in progress with respect thereto; (ii) all prior versions of
the Web Sites; (iii) all Web Site technology, materials, graphics, information,
data, and databases; (iv) the Web Sites' domain names ("Domain Names") for each
of the Web Sites; and (v) all Intellectual Property Rights related to any and
all of (i), (ii), (iii), and (iv); and any and all contract rights and causes of
action that either Licensor may have against any third party, excluding causes
of action whereby either Licensor may be liable for any amount.
Other Terms. All other terms defined in the text of this Technology
License Agreement shall have the meanings set forth in such text.
2. LICENSE GRANTS, RIGHTS, AND OWNERSHIP.
2.1 Websites License. Each Licensor on behalf of itself and its respective
Affiliates hereby grants Licensee and its Affiliates an exclusive, worldwide,
royalty free, fully paid up, perpetual, non-terminable and irrevocable right and
license to: (1) use, copy and modify the Websites; (2) create or have created
Derivative Technology of the Websites and (3) sublicense to third parties the
foregoing rights in (1) and (2) above, including the right to sublicense to
further third parties (the "License").
2.2 Ownership. Subject to the License, each Licensor shall retain all
right, title, and interest in and to its Websites.
2.3 Covenant Not to Xxx. In addition to the License, each Licensor on
behalf of itself and its Affiliates hereby covenant that neither it nor any of
its Affiliates will xxx Licensee or any of its Affiliates or any of their
respective licensees, distributors, customers, or end users for infringement
based on such party's use of the Websites.
3. FEES AND PAYMENT. In full and complete consideration for the License and
covenant not to xxx set forth in Section 2, Licensee will assume and agree to
perform, pay or discharge a total of One Hundred Thousand Dollars
(US$100,000.00) due and owing by Licensors under the Convertible Debenture.
4. WARRANTIES. Each Licensor represents and warrants that:
(i) Licensors own all right, title, and interest in and to the Websites
and have the sole, full unencumbered and clear title to and are the true and
lawful exclusive owners of the Websites and associated good will;
(ii) This License Agreement is a legal, valid and binding obligation of
each Licensor and the execution, delivery and performance of this
License Agreement by each Licensor does not and will not conflict
with any agreement, instrument or understanding, oral or written, to
which either Licensor is a party or by which either Licensor may be
bound, nor violate any laws, rules or regulations of any court,
governmental authority or administrative or other agency having
authority over either Licensor, the Websites or the associated good
will;
(iii) Neither Licensor has granted and neither will grant any rights in
the Websites that are inconsistent with this License Agreement and
the rights granted to Licensee herein;
(iv) Each Licensor has all right, power and authority necessary to
execute this License Agreement and to grant Licensee the license
rights set forth herein;
(v) Neither Licensor has knowledge nor has either received any notices
or claims that the use or licensing of the Websites infringe upon
the rights of any third party; and
(vi) Neither Licensor has pledged, hypothecated, or otherwise encumbered
the Websites; and the Websites are not subject to any pledge,
security interest, or other encumbrance.
5. CONFIDENTIALITY. Each Licensor agrees that it will hold in strictest
confidence, and will not use or disclose to any third party, the existence,
terms and conditions of this License Agreement until such time as Licensee may
choose, in its sole discretion, to publicly disclose such information. Nothing
herein shall prevent or prohibit either Licensor from making any disclosure to
its legal counsel under obligations of confidentiality as necessary to
consummate the transactions contemplated herein or to its financial and tax
advisors under obligations of confidentiality as necessary to file either
Licensor's tax returns.
6. NOTICES. All notices and requests in connection with this License Agreement
shall be deemed given as of the day they are received by the intended recipient
via messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested, and
addressed as follows, or to such other address as the Party to receive the
notice or request so designates by written notice to the other:
To Licensee: To Licensors:
----------- ------------
Encompass : c/o Hy-Tech Technology Group, Inc.
c/o Advanced Communications 1840 Boy Scout Drive
Technologies, Inc. Xxxx Xxxxx, Xxxxxxx 00000
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 Attention: Xxxx XxXxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
Copy to: Copy to:
------- -------
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx LLC Gottbetter & Partners, LLP
0000 Xxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esquire Attention: Xxxx X. Xxxxxxxxxx, Esquire
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
8. AMENDMENTS/WAIVER. No amendment, waiver, or forbearance of any provision of
this License Agreement shall be effective unless the same shall be in a writing
signed by the Parties. Any such waiver or forbearance shall only be effective
for the specific purpose and in the specific instance given and not for other or
subsequent purposes or instances and no forbearance or waiver shall affect the
Parties' rights to refuse further forbearances or waivers.
9. INTERPRETATION. This License Agreement has been generated pursuant to the
equal negotiations and advice of the Parties and their counsel. Accordingly,
this License Agreement should not be construed or interpreted more favorably or
unfavorably as to any Party hereto.
10. GOVERNING LAW AND VENUE. This License Agreement shall be construed and
controlled by the laws of the State of Delaware, and the Parties consent to
exclusive jurisdiction and venue in the federal and state courts sitting in
Delaware. The Parties waive all defenses of lack of personal jurisdiction and
forum non conveniens. Process may be served on any Party in the manner
authorized by applicable law or court rule. In any action to enforce any right
or remedy under this License Agreement or to interpret any provision of this
License Agreement, the prevailing Party shall be entitled to recover its
reasonable attorneys' fees, costs and other expenses.
11. SEVERABILITY. If any provision, or portion thereof, of this License
Agreement is held by a court of competent jurisdiction to be invalid under any
applicable statute or rule of law, the Parties agree that such invalidity shall
not affect the validity of the remaining portions of this License Agreement and
further agree to substitute for the invalid provision a valid provision which
most closely approximates the intent and economic effect of the invalid
provision.
12. COUNTERPARTS. The signature pages of this License Agreement may be executed
in counterparts and by facsimile and all such pages shall constitute original
signature page(s) hereof and taken together all such counterparts shall be one
and the same instrument.
13. AUTHORITY. Licensee or each Licensor represents and warrants that it has the
authority and power to execute and deliver this License Agreement.
14. INDEPENDENT CONTRACTORS. The Parties hereunder are operating as independent
contractors, and nothing in this License Agreement shall be construed as
creating a partnership, franchise, joint venture, employer-employee or agency
relationship.
15. HEADINGS/CONSTRUCTION. The Section headings used in this License Agreement
are for convenience only and shall not be given substantive effect.
16. BINDING EFFECT; ASSIGNMENT. This License Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each party hereto, and
their Affiliates, divisions, parents and subsidiaries. "Successors" shall
include, but not be limited to, heirs, executors, administrators and receivers,
and shall also include any new entity to which any substantial part of the
assets of a party are transferred in any manner, including, but not limited to
transfers by merger, consolidation, reorganization, or otherwise.
17. PROHIBITION ON ASSIGNMENT. Neither Licensor may assign this License
Agreement, or any rights or obligations hereunder, whether by operation of
contract, law or otherwise, except with the prior, express written consent of
Licensee, and any attempted assignment by either Licensor in violation of this
Section 17 shall be void.
18. TERM. The term of this License Agreement shall commence as of the Effective
Date and shall continue in perpetuity.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
IN WITNESS WHEREOF, the Parties have caused this License Agreement to be
executed by their duly authorized Representatives as of the Effective Date first
written above.
ENCOMPASS GROUP AFFILIATES, INC. HY-TECH TECHNOLOGY GROUP, INC.
By: By:
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Name: Name:
Title: Title:
HY-TECH COMPUTER SYSTEMS, INC.
By:
-------------------------------
Name:
Title:
Schedule I
Convertible Debenture
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Name and Address Principal amount of Debenture
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KT Capital, LP $ 20,000
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx, Managing Partner
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Xxxxx X. Xxxxxxx & Xxxxxxxxx X. Xxxxxxx $ 20,000
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx & $ 20,000
Xxxxxxx Xxxxx-Hoagsberg
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Xxxxx X. Xxxxxxx $ 20,000
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Maximum Ventures, Inc. $ 20,000
0000 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
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Total $100,000
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