PUBLICITY RIGHTS LICENSE AGREEMENT
EXHIBIT 10.4
PUBLICITY RIGHTS LICENSE AGREEMENT (this “Agreement”), dated as of April 2, 2008 (the
"Effective Date”), among Xxxxxx X. Xxxxxxx, III (“Licensor”), on the one hand, and XXXXXX XXXXXXX
LIVING OMNIMEDIA, INC., a Delaware corporation (“MSLO”), and MSLO EMERIL SHARED IP SUB LLC, a
Delaware limited liability company and wholly-owned subsidiary of Acquisition Sub (“Shared IP Sub”
and together with MSLO, “Licensees” and each, a “Licensee”), on the other hand.
RECITALS
A. Pursuant to the Asset Purchase Agreement, dated as of February 18, 2008 (the “Purchase
Agreement”), Licensor, xxxxxxx.xxx, LLC, a Louisiana limited liability company (“xxxxxxx.xxx”), and
Emeril’s Food of Love Productions, L.L.C., a Louisiana limited liability company (together with
Licensor and xxxxxxx.xxx, the “Sellers”), have agreed to sell to Licensees the Business on the
Effective Date.
B. In consideration for the payment of the Purchase Price (as defined in the Purchase
Agreement) and the assumption by Acquisition Sub and Shared IP Sub of certain liabilities and
obligations of the Sellers in connection with the Business, Licensor has, among other things,
agreed to license the Xxxxxxx Publicity Rights to the Licensees.
C. It is a condition to the Closing (as defined in the Purchase Agreement) under the Purchase
Agreement that Licensor and Licensees execute and deliver a license agreement on the following
terms and conditions by which Licensor will grant to Licensees a license to use the Xxxxxxx
Publicity Rights and such other rights as are set forth herein.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01 Certain Defined Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Purchase Agreement. The following terms shall have
the following meanings when used in this Agreement:
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under common control with,
such first Person.
“Business” means the business being acquired by the Licensees on the Effective Date of, among
other things, licensing, marketing, distributing and selling products and services related to
Licensor and his persona, identity and professional services in various forms and media throughout
the world; provided, however, that the term “Business” expressly shall exclude the
Restaurant Business.
“Governmental Authority” means any United States or non-United States national, federal, state
or local governmental, regulatory or administrative authority, agency or commission or any judicial
or arbitral body.
“Xxxxxxx Employment Agreement” means the employment agreement between Licensor and MSLO, in
the form attached as Exhibit D to the Purchase Agreement.
“Xxxxxxx Publicity Rights” means the name, image, likeness, voice, personal history and other
aspects of the persona and identity of Licensor.
“Law” means any statute, law, ordinance, regulation, rule, code, injunction, judgment, decree
or order of any Governmental Authority.
“Marks” means all intellectual property rights arising from or associated with trade names,
trademarks and service marks (registered and unregistered), trade dress and similar rights and
applications to register any of the foregoing, whether protected, created or arising under the Laws
of the United States or any other jurisdiction.
“Permitted Activities” or “Permitted Activity” means the following activities: (i) the
Restaurant Business, (ii) any events or activities relating to The Xxxxxx Xxxxxxx Foundation and
participation in charitable events and service on the boards of directors of other charitable
organizations, (iii) the making of real estate investments and Passive Investments, (iv) the Resale
Business and (v) personal, non-commercial activities of Licensor; provided, that,
during the Relationship Period, if any or all of the Restaurant Business is conducted in a manner
that involves moral turpitude or illegal behavior (other than incidental, non-continuing illegal
behavior), then the Restaurant Business or portion thereof, as applicable, shall not constitute a
Permitted Activity. “Person” means an individual, corporation, partnership, limited liability
company, limited liability partnership, syndicate, person, trust, association, organization or
other entity, including any Governmental Authority, and including any successor, by merger or
otherwise, of any of the foregoing.
“Relationship Period” means the period from and after the Effective Date through (i) the 13th
anniversary of the Effective Date in the event that, prior to the 10th anniversary of the Effective
Date, Licensor’s employment pursuant to the Xxxxxxx Employment Agreement is terminated for any
reason other than (A) by MSLO without Cause (as defined in the Xxxxxxx Employment Agreement) or
(B) by Licensor with Good Reason (as defined in the Xxxxxxx Employment Agreement) or (ii) three
years after the end of the Employment Term (as defined in the Xxxxxxx Employment Agreement) in any
other circumstance.
“Relationship Period Business” means the Business as conducted at any time during the
Relationship Period, including any business activities of MSLO or any of its Affiliates during the
Relationship Period relating to the licensing, marketing, distributing and selling of Business
Products, as such activities evolve or expand during (but not after) the Relationship Period.
“Resale Business” means the business conducted by the Sellers, which business is conducted
solely through websites owned and operated by the Sellers or on the premises of the headquarters of
Homebase, relating exclusively to the resale of Business Products that are purchased by a Seller
from a licensee of Business Intellectual Property or Xxxxxxx Publicity Rights that is obligated (i)
under a Contract being assigned to and assumed by the Buyers at the
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Closing to pay royalties to such Seller in respect of such purchase (and which royalties will
be payable to the Buyers following the Closing) or (ii) under a written agreement that Buyers or
any of their Affiliates enter into following the Closing to pay royalties to the Buyers or such
Affiliate in respect of such purchase; provided such purchase and resale by such Seller is
not prohibited under the terms and provisions of any such Contract or any current or future
agreements or arrangements of the Relationship Period Business, the Buyers or any of their
Affiliates; and provided, further, that the Sellers acknowledge and agree that
nothing in this definition of Resale Business shall create any separate or additional rights in the
Sellers under any such Contract, agreements or arrangements or any obligation of the Buyers or any
of their Affiliates with respect thereto, including with respect to any provisions therein that,
directly or indirectly, limit or restrict the resale or distribution of such products, and, for
the avoidance of doubt, the Buyers and their respective Affiliates expressly shall be permitted to,
in their sole and absolute discretion, enter into agreements or arrangements related to the use or
exploitation of Business Products, which agreements would, absent the consent of the
counterparty(ies) to such agreements, prohibit parties other than such counterparty(ies) from
distributing or reselling such Business Products.
“Restaurant Business” means (i) the restaurant business and similar businesses which are open
to the general public and sell perishable prepared food for consumption on or off the premises,
including, but not limited to, fine dining restaurants, coffee shops, fast food restaurants, kiosks
and family style restaurants, and (ii) any activities or businesses exclusively related thereto
and, in each case, which use or exploit the Xxxxxxx Publicity Rights; provided that for the
avoidance of doubt, (1) the marketing and sale on the premises of such restaurants or similar
businesses or on the Internet of any merchandise related exclusively to such restaurants or similar
businesses and (2) the catering business solely to the extent such business is conducted on a
localized basis, shall each be included in this definition of Restaurant Business.
Section 1.02
Interpretation. The words “hereof,” “herein,” and “hereunder” and words
of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. Terms defined in the singular shall have correlative
meanings when used in the plural, and vice versa. The headings herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a
section, exhibit or schedule, such reference shall be to a Section, Exhibit or Schedule to this
Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words “without limitation,”
unless preceded by the word “not.”
ARTICLE II
LICENSE OF XXXXXXX PUBLICITY RIGHTS
LICENSE OF XXXXXXX PUBLICITY RIGHTS
Section 2.01 Grant of License. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Licensees, effective upon the Effective Date, an exclusive, perpetual,
irrevocable, royalty-free, fully paid-up, worldwide license to use, copy, display, perform,
distribute and otherwise commercially exploit, in any manner and in any medium now known or
hereinafter devised or created (including by creating or having created media in which Xxxxxxx
Publicity Rights are embodied for use in connection with the marketing or distribution of products
and services), the Xxxxxxx Publicity Rights in connection with any and all businesses,
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products or services, excluding only the Permitted Activities other than the Resale Business
and other uses reserved to Licensor under Section 2.04; provided, that with respect
to the Resale Business, such license shall be non-exclusive; and provided, further,
after the termination or expiration of the Relationship Period, the exclusive license of the
Xxxxxxx Publicity Rights granted to the Licensees hereunder shall be limited to the use and
commercial exploitation of the Xxxxxxx Publicity Rights solely in connection with the Relationship
Period Business that is thereafter conducted by MSLO and its Affiliates. Without limiting the
generality of the foregoing, Licensor agrees that, as a result of the exclusive rights granted to
the Licensees hereunder, Licensor shall have no right to, and Licensor shall not, directly use,
copy, display, perform, distribute or otherwise commercially exploit any Xxxxxxx Publicity Rights,
or authorize any other person to use, copy, display, perform, distribute or otherwise commercially
exploit any Xxxxxxx Publicity Rights (i) during the Relationship Period, other than in connection
with the Permitted Activities, and (ii) in connection with a business that competes, directly or
indirectly, with the Relationship Period Business, whether during or after the Relationship Period.
The license granted by Licensor herein shall not extend to any use of the Xxxxxxx Publicity Rights
that is illegal or libelous or that otherwise would reasonably be expected to substantially
diminish the value and goodwill associated with the Xxxxxxx Publicity Rights; provided,
that Licensees’ use of the Xxxxxxx Publicity Rights in connection with the Relationship Period
Business shall be deemed not to diminish the value and goodwill associated with the Xxxxxxx
Publicity Rights.
Section 2.02
Pre-Existing Rights. The exclusive rights granted to the Licensees in
Section 2.01 are subject to any pre-existing rights granted by Licensor with respect to the
Xxxxxxx Publicity Rights to a third party under an agreement relating to the Business that the
Sellers are assigning to the Licensees at the Effective Date under the Purchase Agreement.
Section 2.03 Right to Sublicense. Licensor hereby grants to Licensees the right to
sublicense the rights granted by Licensor in Section 2.01 to Affiliates of the Licensees
and to any distributors, resellers, business partners or other third parties that are working with
the Licensees in connection with the development, manufacture, marketing, sale or distribution of
products or services relating to the Relationship Period Business; provided, that such
sublicensees agree to comply with all of the restrictions on the Licensees’ use and exploitation of
the Xxxxxxx Publicity Rights contained in this Article II.
Section 2.04
Reservation of Rights. For the avoidance of doubt, nothing in this
Agreement shall prevent or limit Licensor from using or otherwise exploiting any of the Xxxxxxx
Publicity Rights for or in connection with: (i) the Permitted Activities and (ii) after the
Relationship Period, (A) subject to Section 2.05, business activities or other endeavors
unrelated to a business that competes, directly or indirectly, with the Relationship Period
Business or (B) his employment by, acceptance of a position as xxxx of, or other affiliation with,
any culinary school or other university, college or other academic institution.
Section 2.05 Consent Rights.
(a) Except for the engagement by Licensor in the Permitted Activities or, after the
Relationship Period, his employment by, acceptance of a position as xxxx of, or other
affiliation with, any culinary school or other university, college or other academic
institution, none of which shall be subject to the provisions of this Section 2.05,
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following the expiration of the Relationship Period, Licensor shall provide MSLO with
advance written notice of his intent to engage in any new business activity or other
endeavor that is outside the scope of the Restaurant Business (the “Proposed Business”),
which notice shall provide in reasonable detail a description of the Proposed Business, and
Licensor shall not, without the prior written consent of MSLO, which consent shall not be
unreasonably withheld, directly or indirectly use or otherwise exploit any of the Xxxxxxx
Publicity Rights in connection with any such Proposed Business if MSLO reasonably determines
in good faith that such use or exploitation could reasonably be expected to have a
significant chance of causing an Adverse Impact (as defined below) on the Relationship
Period Business.
(b) MSLO shall complete its review of the Proposed Business no later than 30 days
following its receipt of the written notice referenced in Section 2.05(a) above. In
the event that MSLO reasonably determines in good faith that the Proposed Business could
reasonably be expected to have a significant chance of causing an Adverse Impact on the
Relationship Period Business, MSLO may, within such 30-day period, so inform Licensee in
writing (a “MSLO Objection”), setting forth MSLO’s objections in reasonable detail. If no
MSLO Objection is received by Licensor within such 30-day period, then Licensor may use or
otherwise exploit any of the Xxxxxxx Publicity Rights in connection with such Proposed
Business, as such Proposed Business was described in the notice provided to MSLO by Licensor
pursuant to Section 2.05(a), and in accordance with all applicable Laws.
(c) In the event that Licensor disputes MSLO’s determination that the Proposed Business
could reasonably be expected to have a significant chance of causing an Adverse Impact on
the Relationship Period Business, Licensor may, no later than 30 days following his receipt
of a MSLO Objection, so inform MSLO in writing (a “Xxxxxxx Dispute Notice”). If no Xxxxxxx
Dispute Notice is received by MSLO within such 30-day period, then Licensor shall not use or
otherwise exploit any of the Xxxxxxx Publicity Rights in connection with such Proposed
Business.
(d) In the event MSLO timely receives a Xxxxxxx Dispute Notice pursuant to Section
2.05(c) above, then within 30 days of MSLO’s receipt of such Xxxxxxx Dispute Notice,
each party shall give written notice to the other party identifying its selection of a brand
consultant recognized in the industry (each, a “Brand Consultant Notice”). Without limiting
the foregoing and by way of example, the following entities would be deemed a “brand
consultant recognized in the industry” for purposes of this Section 2.05(d): Public
Strategies, Inc. or similar consultants. Within 30 days of the date on which the later of
such Brand Consultant Notices is provided, the two brand consultants jointly shall appoint a
third brand consultant recognized in the industry who shall, together with the two
party-appointed brand consultants (collectively, the “Arbitrators”), determine whether the
Proposed Business could reasonably be expected to have a significant chance of causing an
Adverse Impact on the Relationship Period Business. Any decision by the Arbitrators shall
be final and binding upon the parties. The costs of any dispute resolution pursuant to this
Section 2.05(d), shall be paid as follows: each party shall pay the fees and
expenses of the Arbitrator appointed by such party, and the parties shall bear equally the
fees and expenses of the third Arbitrator.
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For purposes of this Section 2.05, a business activity or other endeavor could reasonably
be expected to have a significant chance of causing an “Adverse Impact” if it involves moral
turpitude illegal behavior(other than incidental, non-continuing illegal behavior, (y) has a
reasonable prospect of polarizing a substantial segment of the consumer market for the Relationship
Period Business or has a reputation for doing so or (z) engages in predatory practices or has a
reputation for doing so.
Section 2.06 Trademarks and Service Marks. Licensor acknowledges that Licensees are
acquiring at the Effective Date, and thereafter shall have the sole and exclusive right to file for
and obtain, state, federal and foreign registrations for Marks that embody Xxxxxxx Publicity
Rights, it being agreed that, if Licensor or any of its Affiliates desire that any new state,
federal or foreign registrations for Marks that embody Xxxxxxx Publicity Rights be obtained for use
in connection with the Restaurant Business or, following the end of the Relationship Period, any
Proposed Business with which Licensor is authorized to use and exploit the Xxxxxxx Publicity Rights
pursuant to Section 2.05 hereof, Licensor may request in its reasonable business judgment that
Shared IP Sub, at Licensor’s sole cost, file for and obtain any such state, federal or foreign
registrations of such Marks, following which such Marks shall be licensed by Shared IP Sub to Food
of Love pursuant to the Trademark License Agreement..
Section 2.07 Irrevocability of License. Except as otherwise provided in this
Section 2.07, the license granted by Licensor in Section 2.01 is irrevocable and
will remain in effect perpetually. In the event of any breach of any term of this
Article II by Licensees during the Relationship Period, the sole remedy of Licensor shall
be to bring a claim for monetary damages, and during the Relationship Period, Licensor shall not
have, and accordingly irrevocably waives, his right to seek injunctive or equitable relief against
Licensees, including any remedy that would involve rescission or other termination of the license
granted in Section 2.01 hereof. Following the Relationship Period, Licensor may, in
addition to any other remedies available to him, seek injunctive or equitable relief against
Licensees without the posting of any bond in connection therewith, in the event of any breach of
any term of this Article II by Licensees.
Section 2.08 Disclaimer. Licensees acknowledge that Licensor makes no representation
or warranty to Licensees as to whether (i) the laws of any jurisdiction other than the United
States recognize rights by which an individual can control the commercial exploitation of his or
her name, likeness, voice or persona or (ii) the Xxxxxxx Publicity Rights can be enforced by
Licensor or any Licensee against third parties in any jurisdiction other than the United States.
Subject to the representations and warranties by Sellers in the Purchase Agreement, Licensees agree
and acknowledge that Licensor makes no representation or warranty in this Agreement as to whether
the use or exploitation of any Xxxxxxx Publicity Rights in any jurisdiction other than the United
States will infringe or violate any intellectual property rights of any third party.
ARTICLE III
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 3.01 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by
operation of law or otherwise, by either party without the prior written consent of the other
party, and any such assignment without such prior written consent shall be null and void;
provided,
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however, that Licensees may assign this Agreement to any Affiliate of the Licensees or
any purchaser of all or substantially all of the Relationship Period Business without the prior
consent of the Sellers. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective successors and
assigns. Notwithstanding the foregoing, Licensees agree and acknowledge that (i) during the
Relationship Period, Licensor is free to use or exploit the Xxxxxxx Publicity Rights in connection
with the Permitted Activities in any manner (including through the grant of exclusive licenses or a
full or partial assignment to any person, but excluding the grant of any license to any
unaffiliated third party with respect to the Resale Business), subject to such use or exploitation
not involving the conduct of the Restaurant Business in a manner that involves moral turpitude or
illegal behavior (other than incidental and non-continuing illegal behavior), and (ii) after the
Relationship Period, Licensor is free to use or exploit the Xxxxxxx Publicity Rights in any manner
(including through the grant of exclusive licenses or a full or partial assignment to any person)
in connection with the Permitted Activities (subject to such use or exploitation not involving the
conduct of the Restaurant Business in a manner that involves moral turpitude or illegal behavior
(other than incidental and non-continuing illegal behavior)), any culinary school or other
university, college or other academic institution with which Licensor becomes affiliated and any
Proposed Business with respect to which Licensor is permitted to exercise the Xxxxxxx Publicity
Rights in compliance with the provisions of Section 2.05 (and subject to the requirement that the
exploitation of rights not involve a business that competes, directly or indirectly, with the
Relationship Period Business).
Section 3.02
Amendment and Modification. This Agreement may not be amended, modified
or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument
in writing signed on behalf of each party and otherwise as expressly set forth herein.
Section 3.03
Waiver. No failure or delay of any party in exercising any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such right or power,
or any course of conduct, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the parties hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on
the part of any party to any such waiver shall be valid only if set forth in a written instrument
executed and delivered by such party if an individual or a duly authorized officer on behalf of
such party if an entity.
Section 3.04
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if
by facsimile, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the
first business day following the date of dispatch if delivered utilizing a next-day service by a
recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth business day
following the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth
below, or pursuant to such other instructions as may be designated in writing by the party to
receive such notice:
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| if to Licensor, to: | ||||||||
| Attention: | ||||||||
| Facsimile: | ||||||||
| with a copy (which shall not constitute notice) to: | ||||||||
| Xxxx, Stein, Hoffman, Xxxxxxxx & Xxxxxx L.L.P. One Shell Square 000 Xxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxx, XX 00000 Attention: Xxxx Xxxxx, Esq. Facsimile: (000) 000-0000 |
||||||||
| if to Licensees, to: | ||||||||
| c/o Xxxxxx Xxxxxxx Living Omnimedia, Inc. 00 X. 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: General Counsel Facsimile: (000) 000-0000 |
||||||||
| with a copy (which shall not constitute notice) to: | ||||||||
| Xxxxxx, Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X. Xxxxxx, Esq. Facsimile: (000) 000-0000 |
||||||||
Section 3.05 Interpretation. When a reference is made in this Agreement to a Section
or Article such reference shall be to a Section or Article of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for convenience of reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as the circumstances require. The
word “including” and words of similar import when used in this Agreement will mean “including,
without limitation”, unless otherwise specified.
Section 3.06
Entire Agreement. This Agreement together with the Purchase Agreement
constitute the entire agreement, and supersede all prior written agreements, arrangements,
communications and understandings and all prior and contemporaneous oral agreements, arrangements,
communications and understandings between the parties with respect to the subject matter hereof and
thereof. Neither this Agreement nor the Purchase Agreement shall be deemed to contain or imply any
restriction, covenant, representation, warranty, agreement or undertaking of any party with respect
to the transactions contemplated hereby or thereby other than those expressly set forth herein or
therein or in any document required to be
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delivered hereunder or thereunder, and none shall be deemed to exist or be inferred with
respect to the subject matter hereof. Notwithstanding any oral agreement or course of action of
the parties or their representatives to the contrary, no party to this Agreement shall be under any
legal obligation to enter into or complete the transactions contemplated hereby unless and until
this Agreement shall have been executed and delivered by each of the parties.
Section 3.07 No Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person other than the parties and their
respective successors and permitted assigns any legal or equitable right, benefit or remedy of any
nature under or by reason of this Agreement.
Section 3.08
Governing Law. This Agreement and all disputes or controversies
arising out of or relating to this Agreement or the transactions contemplated hereby shall be
governed by, and construed in accordance with, the internal Laws of the State of New York, without
regard to the Laws of any other jurisdiction that might be applied because of the conflicts of laws
principles of the State of New York (other than the conflicts of laws principles set forth in
Section 5-1401 of the New York General Obligations Law, which shall apply to this Agreement).
Section 3.09
Submission to Jurisdiction. Each of the parties irrevocably agrees that
any legal action or proceeding arising out of or relating to this Agreement brought by any party or
its or his successors or assigns shall be brought and determined in any New York State or federal
court sitting in the Borough of Manhattan in The City of New York (or, if no such court has subject
matter jurisdiction, in any appropriate New York State or federal court), and each of the parties
hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself or
himself and with respect to its or his property, generally and unconditionally, with regard to any
such action or proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding
relating thereto except in the courts described above in New York, other than actions in any court
of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in
New York as described herein. Each of the parties hereby irrevocably and unconditionally waives,
and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any
action or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby, (a) any claim that it or he is not personally subject to the jurisdiction of the courts in
New York as described herein for any reason, (b) that it or he or its or his property is exempt or
immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement or the subject matter hereof, may not be enforced in
or by such courts.
Section 3.10
Enforcement. Except as set forth in Section 2.07, the parties
agree that irreparable damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise breached.
Accordingly, except as set forth in Section 2.07, each of the parties shall be entitled to
specific performance of the terms hereof and thereof, including an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
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Agreement in any New York State or federal court sitting in the Borough of Manhattan in the
City of New York (or, if no such court has subject matter jurisdiction, in any appropriate New York
State or federal court), this being in addition to any other remedy to which such party is entitled
at law or in equity. Except as set forth in Section 2.07, each of the parties hereby
further waives (a) any defense in any action for specific performance that a remedy at law would be
adequate and (b) any requirement under any Law to post security as a prerequisite to requesting or
obtaining equitable relief.
Section 3.11
Severability.Whenever possible, each provision or portion of any
provision of this Agreement shall be interpreted in such manner as to be effective and valid under
applicable Law, but if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable Law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
Section 3.12
Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.13 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to
the other party.
Section 3.14
Facsimile Signature. This Agreement may be executed by facsimile
signature or by electronic mail and such signature shall constitute an original for all purposes.
Section 3.15
No Presumption Against Drafting Party. Each of Licensor and Licensees
acknowledges that it has been represented by counsel in connection with this Agreement and the
transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision
that would require interpretation of any claimed ambiguities in this Agreement against the drafting
party has no application and is expressly waived.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Licensor and Licensees have caused this Agreement to be duly executed as
of the date first written above.
| LICENSOR: | ||||||
| XXXXXX X. XXXXXXX III | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx III | |||||
| LICENSEES: | ||||||
| MSLO SHARED IP SUB LLC | ||||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Title: President | ||||||
| XXXXXX XXXXXXX LIVING OMNIMEDIA, INC. | ||||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Title: CEO | ||||||
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