CROSS-LICENSE AGREEMENT
This
Cross-License
Agreement (this “Agreement”)
is
entered into effective March __, 2008 by and between: ZAGG INCORPORATED, a
Nevada corporation (“ZAGG”),
POW!
Entertainment, a _________ corporation (“POW!”),
and
BRIGHTON
PARTNERS, LLC.,
a Utah
limited liability company (“BRIGHTON”).
ZAGG,
POW! and BRIGHTON are hereinafter jointly referred to as “PARTIES”,
and
each of them, individually and indistinctly referred to as a “PARTY.”
WITNESSETH:
I. On
even
date herewith, ZAGG and BRIGHTON have entered into a Bridge Loan Agreement
(the
“Loan
Agreement”),
whereby ZAGG agreed to loan BRIGHTON up to $500,000 under a Secured Promissory
Note in exchange for 10% ownership in BRIGHTON and the entry into this Agreement
upon the terms and conditions stated herein;
II. POW!
and
BRIGHTON have entered into a collaborative effort to develop, finance, produce
and distribute new characters and stories in various mediums, including but
not
limited to animated theatrical motion pictures, direct-to-video motion pictures,
television motion pictures, stage play projects, internet projects, theme park
projects, video and computer game projects, wireless and mobile projects and
other projects, (the “Property”),
as
more aptly discussed in Schedule
A
to this
Agreement;
III. In
connection with the development of the Property, ZAGG desires to license certain
trademarks listed on Schedule
B
to this
Agreement (the “ZAGG
Marks”)
to
POW! and BRIGHTON, and POW! and BRIGHTON desire to acquire the ZAGG Marks for
use in the development of the Property, pursuant to the terms and conditions
set
forth under this Agreement; and
IV. POW!
and
BRIGHTON desire to license to ZAGG the right to use specific Property developed
using the ZAGG Marks (the “ZAGG Property”), and ZAGG desires to acquire the ZAGG
Property for ZAGG’s marketing and commercial use.
Now,
therefore, in consideration of the representations, warranties, and covenants
herein contained, the PARTIES agree to enter into this Agreement, which shall
be
governed by the following clauses and conditions:
SECTION
1. GRANT OF LICENSES
1.1. ZAGG
grants to POW! and BRIGHTON a nonexclusive, limited, royalty free license during
the Term to use the ZAGG Marks in connection with the development of the
Property. POW! and BRIGHTON have no right to permit or sublicense any third
party to use the ZAGG Marks, including, without limitation, by way of
sub-license, and/or assignment or otherwise, unless with the prior written
approval of ZAGG. All rights not expressly granted herein are reserved by
ZAGG.
1.2. POW!
and
BRIGHTON grant to ZAGG a nonexclusive, limited, royalty free, perpetual right
to
use the ZAGG Property in connection with its marketing of its own products
and
services. ZAGG has no right to permit or license any third party to use ZAGG
Property, including, without limitation, by way of sub-license, and/or
assignment or otherwise, unless the prior written approval of both POW! and
BRIGHTON is obtained. All rights not expressly granted herein are reserved
by
POW! and BRIGHTON. For greater certainty, ZAGG is not granted any rights in
the
Property outside of the rights granted hereunder in connection with the ZAGG
Property.
SECTION
2. OWNERSHIP
OF INTELLECTUAL PROPERTY
2.1 POW!
and
BRIGHTON acknowledges ZAGG’s ownership and/or right to use the ZAGG Marks. POW!
and BRIGHTON agree that they will do nothing inconsistent with such ownership
rights.
2.2. ZAGG
acknowledges the rights POW! and BRIGHTON have in the Property. ZAGG agrees
that
it will do nothing inconsistent with such rights.
SECTION
3.
QUALITY MAINTENANCE
3.1. POW!
and
BRIGHTON agree to cooperate with ZAGG to ensure that its quality standards
are
kept concerning use of the ZAGG Marks. ZAGG agrees that it will supply POW!
and
BRIGHTON with specimens of all uses of the ZAGG Marks upon request. POW! and
BRIGHTON shall comply with all applicable laws and regulations and obtain all
appropriate government approvals pertaining to the sale, distribution and
advertising of goods and services covered by the license granted herein. POW!
and BRIGHTON agree that the quality of any products sold with the ZAGG Marks
shall be at least as good as the quality of the goods and services marketed
by
ZAGG and shall conform to any quality standards identified by ZAGG from time
to
time.
3.2. ZAGG
agrees to cooperate with POW! and BRIGHTON to ensure that their quality
standards are kept concerning use of the ZAGG Property. POW! and BRIGHTON agree
that they will supply ZAGG with specimens of all uses of the ZAGG Property
upon
request. ZAGG shall comply with all applicable laws and regulations and obtain
all appropriate government approvals pertaining to the sale, distribution and
advertising of goods and services covered by the license granted herein. ZAGG
agrees that the quality of any ZAGG Products shall be at least as good as the
quality of the goods and services marketed by POW! and BRIGHTON and shall
conform to any quality standards identified by POW! and BRIGHTON from time
to
time.
SECTION
4.
INFRINGEMENT PROCEEDINGS
4.1. POW!
and
BRIGHTON agree to promptly notify ZAGG of any unauthorized use of the ZAGG
Marks
by others as it comes to their attention. ZAGG shall have the sole right and
discretion to bring infringement or unfair competition proceedings involving
the
ZAGG Marks.
4.2. ZAGG
agrees to promptly notify POW! and BRIGHTON of any unauthorized use of the
ZAGG
Property by others as it comes to ZAGG’s attention. POW! and BRIGHTON shall have
the sole right and discretion to bring infringement or unfair competition
proceedings involving ZAGG Property.
SECTION
5. REPRESENTATIONS
AND WARRANTIES OF ZAGG
5.1. ZAGG
grants to the POW! and BRIGHTON the following representations and
warranties:
5.1.1. Ownership. ZAGG
is the sole owner of or has the right to use and sublicense the ZAGG
Marks. The ZAGG Marks are free of any liens and are registered for the
term of validity indicated in their respective registration certificates.
Nothing in this Agreement shall be deemed as an obligation of ZAGG to renew
the
registration of any of the ZAGG Marks, which will only be renewed at ZAGG’s sole
and exclusive discretion, and ZAGG shall not be liable to POW! and BRIGHTON
for
any expense, cost, or loss associated with ZAGG’s exercise of such
discretion.
5.1.2. Organization. ZAGG
is a corporation organized under the laws of the state of Nevada, with offices
at 0000 Xxxxx 000 Xxxx, Xxxxx X, Xxxx Xxxx Xxxx, Xxxx 00000;
5.1.3. Authorization. ZAGG
has the full power and necessary authority to execute and deliver this Agreement
and to perform the obligations contained in this Agreement. ZAGG has the full
capacity and does not depend on any additional authorization to execute this
Agreement.
5.1.4. Valid
and Enforceable Agreement. This
Agreement was executed by ZAGG and is a valid and enforceable obligation of
ZAGG.
5.1.5. No
Conflict; Consents. The
execution and delivery of this Agreement by ZAGG and the completion of the
operations described herein do not: (i) breach or conflict with any
organizational or corporate document of ZAGG, or with any corporate resolution
of its respective shareholders, or any agreement, contract, commitment,
obligation, understanding, arrangement or restriction of any kind to which
ZAGG
is a party or is subject to, or by which its respective assets or properties
are
bound; (ii) to the actual knowledge of ZAGG, breach or conflict with any law,
decision or sentence issued by any governmental authority, applicable to ZAGG
or
to its respective assets or properties; and (iii) to the actual knowledge of
ZAGG, require any consent, approval or authorization of, any person or any
governmental authority or any registration before them.
SECTION
6. REPRESENTATIONS
AND WARRANTIES OF POW! AND BRIGHTON
6.1.
POW!
and BRIGHTON grant to ZAGG the following representations and
warranties:
6.1.1. Ownership. POW!
and BRIGHTON are sole owners of or have the right to use and sublicense the
ZAGG
Property. The ZAGG Property is free of any liens. Nothing in this
Agreement shall be deemed as an obligation of POW! and BRIGHTON to register
ZAGG
Property, and POW! and BRIGHTON shall not be liable to ZAGG for any expense,
cost, or loss associated with their exercise of such discretion.
6.1.2. Organization. BRIGHTON
is a Utah limited liability company, with offices at 0000 Xxxx Xxxxxx Xxxxxxxxx,
Xxxx Xxxx, XX 00000. POW! is a _____________, with offices at 0000 Xxxxx Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000.
6.1.3. Authorization. Each
company has the full power and necessary authority to execute and deliver this
Agreement and to perform the obligations contained in this Agreement. Each
company has the full capacity and does not depend on any additional
authorization to execute this Agreement.
6.1.4. Valid
and Enforceable Agreement. This
Agreement was executed by the POW! and BRIGHTON and is a valid and enforceable
obligation each company.
6.1.5. No
Conflict; Consents. The
execution and delivery of this Agreement by POW! and BRIGHTON and the completion
of the operations described herein do not: (i) breach or conflict with any
organizational or corporate document of either company, or with any corporate
resolution of either’s respective shareholders, or any agreement, contract,
commitment, obligation, understanding, arrangement or restriction of any kind
to
which either company is a party or is subject to, or by which its respective
assets or properties are bound; (ii) to the actual knowledge of POW! and
BRIGHTON, breach or conflict with any law, decision or sentence issued by any
governmental authority, applicable to either company or to its respective assets
or properties; and (iii) to the actual knowledge of POW! and BRIGHTON, require
any consent, approval or authorization of, any person or any governmental
Authority or any registration before them.
SECTION
7. TERM
7.1. This
Agreement shall be effective upon execution (the “Effective
Date”)
and
shall continue for the term the collaborative agreements exists between POW!
and
BRIGHTON to develop the Products (the “Term”)
unless
sooner terminated in accordance with Sections 8 and 9.
SECTION
8. TERMINATION
FOR CAUSE
8.1. Any
PARTY
may terminate this Agreement and the licenses granted herein if: (i) the other
PARTY breaches any term or condition of this Agreement and fails to cure such
breach within ten (10) days after receipt of written notice of the same; or
(ii)
the other PARTY becomes bankrupt, or is the subject of proceedings for
liquidation or dissolution, or ceases to carry on business or becomes unable
to
pay its debts as they come due or upon the winding-up sale, consolidation,
merger or any sequestration by governmental authority of the other PARTY.
SECTION
9. EFFECT
OF TERMINATION
9.1. Upon
termination of this Agreement, POW! and BRIGHTON agree to immediately
discontinue all use of the ZAGG Marks and any term confusingly similar thereto,
and to destroy all printed materials bearing any of the ZAGG Marks, and that
all
rights in the ZAGG Marks and the goodwill connected therewith, whether existing
on the date hereof or created thereafter by any means, shall remain the property
of ZAGG.
9.2. Upon
termination of this Agreement, ZAGG agrees to immediately discontinue all use
of
the ZAGG Property, and to destroy all printed materials bearing the ZAGG
Property, and that all rights in the ZAGG Property and the goodwill connected
therewith, whether existing on the date hereof or created thereafter by any
means, shall remain the property of POW! and BRIGHTON.
SECTION
10. INJUNCTION
RELIEF
10.1. Each
PARTY acknowledges that any breach of the respective PARTY’s obligations under
this Agreement concerning use of the ZAGG Marks or ZAGG Property may cause
the
other PARTY irreparable harm not compensable with money damages, and that in
the
event of such breach, the other PARTY shall be entitled to seek injunctive
relief, without bond, from any court of competent jurisdiction.
SECTION
11.
ASSIGNMENT
11.1. Neither
PARTY shall assign or transfer its rights, duties or obligations under this
Agreement, whether by contract, operation of law, merger, reorganization,
liquidation, dissolution or sale of assets, without the prior written consent
of
the other PARTY. Any purported assignment or transfer of this Agreement without
the prior written consent of the other PARTY shall be null and
void.
SECTION
12. THIRD
PARTY BENEFICIARIES
12.1. Except
as
expressly provided herein, this Agreement is entered into solely between, and
may be enforced only by POW!, BRIGHTON and ZAGG. This Agreement shall not be
deemed to create any rights or causes of action in or on behalf of any third
parties, including without limitation, employees, suppliers and customers of
a
PARTY, or to create any obligations of a PARTY to any such third
parties.
SECTION
13. SEVERABILITY
13.1. If
any
provision of this Agreement is held invalid or otherwise unenforceable, the
enforceability of the remaining provisions shall not be impaired thereby and
the
illegal provision will be replaced with a legal provision that encapsulates
to
the extent permitted by applicable law the original intent of the
PARTIES.
SECTION
14. HEADINGS
14.1. The
headings contained in this Agreement are for reference only and shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
hereof.
SECTION
15. INDEPENDENT
CONTRACTOR
15.1. The
relationship of the PARTIES under this Agreement shall not constitute a
partnership or joint venture. Neither PARTY is an agent of the other PARTY
and
neither PARTY has right, power or authority, expressly or impliedly, to
represent or bind the other PARTY.
SECTION
16. BINDING
EFFECT
16.1. This
Agreement is binding between the PARTIES and shall inure to the benefit of
the
PARTIES and their respective successors and authorized assignees.
SECTION
17. GOVERNING
LAW AND JURISDICTION
17.1. This
Agreement shall be construed according to and governed by the laws of the State
of Nevada.
SECTION
18.
AMENDMENT
18.1. Amendments
to this Agreement and the other contracts contemplated herein may be made only
by a written agreement signed by duly authorized representatives of each of
the
PARTIES.
SECTION
19. COUNTERPARTS
19.1. This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, and such counterparts together shall constitute one and the same
instrument. Execution may be effected by delivery of facsimiles of signature
pages, which shall be deemed originals in all respects.
[The
remaining portion of this page intentionally blank.]
IN
WITNESSWHEREOF, the parties hereto have duly executed and delivered this
Cross-License
Agreement as of the Effective Date.
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POWI
Entertainment.
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By:
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Name:
Gill Champion
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Title:
President/COO
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BRIGHTON
PARTNERS, LLC.
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By:
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Name:
Cord Xxxxxx
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Title:
Managing Partners
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ZAGG
INCORPORATED
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By:
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Name:
Xxxxxx X. Xxxxxxxx XX
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Title:
CEO
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SCHEDULE
A
TO
THE CROSS-LICENSE AGREEMENT
The
Property
SCHEDULE
B
ZAGG
Marks
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Country
of
Registration
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Application
No./REG.
NO
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Owner
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USA
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Zagg
Incorporated
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USA
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Zagg
Incorporated
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USA
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Zagg
Incorporated
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