LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into as of February 19,
2001 by and between 3 Wishes Productions Inc. f/s/o Xxxxxxxxx Xxxxxxxx
("Xxxxxxxx") and PTN MEDIA INC. ("PTNM") with reference to the following facts
and circumstances:
PTNM desires to obtain, and Aguilera is willing to grant, an exclusive
license to use Aguilera's name, image, likeness and endorsement (herein the
"Licensed Property") in connection with the proposed advertisement, promotion
and sale of hand held computers running the Pa1mTM operating system,
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Terms of License,
(a) Subject to the terms and conditions of the Agreement, Aguilera
hereby grants to PTNM an exclusive (solely with respect to hand held computers),
royalty-free (except as set forth herein), worldwide license (the "License") to
use, distribute, display and transmit Xxxxxxxx'x full name (and parts thereof),
image, likeness, and endorsement (the "Licensed Property") only in the form, for
the purposes and in the manner, as expressly approved in writing in advance, by
her in connection with the proposed manufacture, advertisement, distribution and
sale of certain approved hand-held computers (the "Licensed Products") and in
the channels of distribution expressly approved in writing in advance by
Aguilera. PTNM shall have the exclusive right to subcontract manufacturing in
connection with the License, subject in all events to the express prior written
consent of Aguilera. The parties shall list products approved, as Licensed
Products, on Schedule I attached hereto and initialed. Any new item sought to be
included, as a Licensed Product must be set forth in an updated Schedule I
expressly authorized and executed by Aguilera. The Licensed Products may be
advertised and promoted immediately after execution of this Agreement, but
they shall not be offered for sale prior to August 01, 2001 (the "On-Sale
Date").
(b) PTNM shall cause the Licensed Products to be produced in strict
conformance with the approvals as given by Aguilera and shall pay Aguilera a
royalty equal to twelve percent (12%) of the proceeds received from the sale of
the Licensed Products after deducting the direct invoiced cost from the
manufacturer. Payments shall be reported to Aguilera and accounted for within
thirty (30) days after the end of each calendar quarter hereunder, and
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each accounting shall include payments of the share to Aguilera. Late payments
shall accrue interest at 1.5% per month. In addition, PTNM hereby agrees to
guarantee Aguilera an annual minimum royalty hereunder of one hundred thousand
dollars ($100,000.00), which in the first year of the Agreement shall be paid
upon execution by PTNM and in the second year of the Agreement shall be paid to
Aguilera one year from the date of the photo shoot set forth below. In addition,
PTNM agrees to deliver a stock certificate representing shares equal to fifty
thousand dollars ($50,000.00), based on the closing price of PTNM common stock
on the date of Aguilera's signing, within fifteen (15) days of final execution.
The annual minimum royalty payments contemplated thereby, excluding the PTNM
common stock acquired by Aguilera as set forth herein, shall be treated as an
advance against the royalty payments due hereunder. Subject to the terms of the
Agreement, Aguilera shall continue to own all right, title and interest in and
to the Licensed Property; Aguilera shall, however, have no right, title or
interest in or to the products or any content therein, and PTNM shall have sole
contact with the manufacturer in connection with the development, format,
contents and all other aspects in connection with Licensed Products or
otherwise, provided it is in compliance with the provisions hereof as to
approval rights of Aguilera.
(c) In connection with the foregoing, Aguilera agrees to cooperate
with, and make herself reasonably available to, PTNM for a four (4) hour photo
shoot prior to the release of the Licensed Products, which photos shall be used
by PTNM for advertising, promotion and public relations purposes only. The photo
shoot is subject to her professional availability and with staffing that is
mutually agreed upon by Aguilera and PTNM.
(d) Aguilera agrees to cooperate with and make herself reasonably
available to PTNM for two (2) 60 minute press events, no music/concert
performance shall be required at said events, during the term subject to her
professional availability and at PTNM's expense.
(c) All rights to the Licensed Property not specifically granted to
PTNM in the Agreement are reserved to Aguilera. Aguilera shall have the right to
utilize or permit others to utilize any reserved rights throughout the duration
of the Agreement and beyond, but Aguilera agrees that she will not, either
jointly or alone, directly or indirectly, grant any rights to any third party
which arc in conflict with the rights granted for the Agreement.
(f) Aguilera shall receive fifteen (15) units of the Licensed Products
hereunder and have the right to purchase additional units at PTNM's cost.
2. Warranties, Indemnification and Remedies.
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(a) Aguilera warrants and represents that she owns all right, title
and interest in and to the Licensed Property. Aguilera further represents,
warrants and agrees that she has the full right, power and authority to enter
into the Agreement and to grant the rights granted herein without violating any
other agreement or commitment of any sort to which she is a party or by which
she is hound; and that to the best of her knowledge, the use of the Licensed
Property as contemplated in the Agreement does not and will not infringe or
constitute a misappropriation of any trademark, patent, copyright, trade secret
or other proprietary, publicity or privacy right of any third party, and PTNM's
use of the Licensed Property in connection with the manufacture, advertisement,
distribution and sale of Licensed Products as provided herein shall not (with
respect only to the said Licensed Property) violate any rights of any kind or
nature of any third party. Excluded expressly herefrom are any representations
as to the handheld Products and any uses made of such items or any matters not
expressly approved in writing in advance by Aguilera.
(b) Aguilera shall defend, indemnify and hold harmless PTNM and its
successors, permitted, assigns, affiliates, officers, directors, agents and
employees, from and against any action, suit, claim, damages, liability, costs
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and expenses (including reasonable attorneys' fees), arising out of or in any
way connected with any breach of any representation, warranty or agreement made
by Aguilera herein or any claim that any Licensed Property infringes any
intellectual property rights or other rights of any third party on account of
the use of the Licensed Property. PTNM shall give Aguilera prompt notice of
any such claim or of any threatened claim. Neither Aguilera nor PTNM shall
agree to the settlement of any such claim or any associated press release,
demand or suit prior to final judgment thereon, nor issue any statement or file
any document that would increase the risk of Aguilera, without the written
consent of Aguilera.
(e) PTNM hereby represents, warrants and agrees that it has the full
right, power and authority to enter into the Agreement and agrees that it will
not infringe or misappropriate any trademark, patent, copyright, trade secret or
other proprietary, publicity or privacy right of any third party in connection
with its use and/or marketing of the Licensed Property, and that the
manufacture, sale and distribution of Licensed Products shall comply with all
laws, regulations or other governmental requirements of all kinds, and that the
Licensed Products shall not cause injury or damage of any kind to any user or
other third party PTNM shall defend, indemnify and hold harmless Aguilera and
her successors, assigns, agents and employees, from and against any action,
suit, claim, damages, liability, costs and expenses (including reasonable
attorneys' fees), arising out of or in any way connected with any breach of any
representation, warranty or agreement made by PTNM herein. Aguilera shall give
PTNM prompt notice of any such claim or of any threatened claim. Without
limiting any obligations hereunder, PTNM, itself or through handheld
manufacturer, as a condition to the use of any of the 1icensed Property
hereunder, shall obtain and maintain product liability insurance and
comprehensive liability insurance, covering and protecting, as additional
insured's, Aguilera and her officers, directors, employees, agents and
representatives, with coverage amounts consistent with industry standards, but
no less than two million dollars ($2,000,000.00) per occurrence.
(d) The parties' indemnification obligations set forth in the
foregoing paragraphs shall survive the termination of the Agreement.
3. Termination
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(a) The term of the Agreement shall he two (2) years from the date of
the photo shoot, but in no ease more than thirty (30) months from full
execution.
(b) The Agreement may also be terminated by either party, upon written
notice to the other, if: (i) the other party files a petition for bankruptcy or
is adjudicated a bankrupt, (ii) a petition in bankruptcy is filed against the
other party, (iii) the other party makes an assignment for the benefit of its
creditors or an arrangement for its creditors pursuant to any bankruptcy law,
(iv) the other party discontinues its business, (v) a receiver is appointed for
the other party or its business or (vi) the other party breaches any material
provision hereof and such breach is not cured within ten (10) days after written
notice thereof.
(c) Termination of the Agreement shall not extinguish any of PTNM's or
Aguilera's rights or obligations under the Agreement, which by their express
terms survives after the date of termination. Termination of the Agreement shall
be without prejudice to any other rights that either party may have at law or in
equity, and shall not affect the rights of end-users to continue to use all
distributed copies of handheld manufacturer Products.
(d) The parties agree that PTNM shall have an additional one hundred-
twenty (120) days after the Term to market and sell the Licensed Products
pursuant to this Agreement (the "Sell-Off Period"). During said Sell-Off Period,
the Licensed Products shall continue to be marketed and sold as top-line
electronic products. it PTNM elects to substantially discount or otherwise
market the Licensed Products as less than top-line electronic products, said
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products shall not embody any Licensed Property. PTNM agrees that it will not
manufacture the Licensed Products in unreasonable amounts in anticipation of the
end of the Term.
4. Assignment. The Agreement and the rights granted hereunder are personal
to the parties and shall not be assigned without the prior written consent of
the other party; provider, however, that Aguilera may assign the Agreement to
any wholly or majority owned subsidiary or affiliated party. Subject to the
foregoing, the Agreement will bind the parties and their respective successors
and permitted assigns.
5. Independent Contractor. Each party shall be deemed to have the status of
an independent contractor, and nothing in the Agreement shall be deemed to place
the parties in the relationship of employer-employee, principal-agent, partners
or joint ventures.
6. No Brokers. All negotiations relative to the Agreement have been carried
on by the parties directly, without the intervention of any person as a result
of any act of either party (and, so far as known to either party, without the
intervention of any such person) in such manner as to give rise to any valid
claim against the parties hereto for brokerage CommissionS, finder's fees or
other like payment.
7. Miscellaneous Provisions.
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(a) Entire Agreement. The Agreement, and all other documents expressly
referred to herein, contain the entire agreement of the parties with respect to
its subject matter and supersedes all prior negotiations, agreements and
understandings, written or oral, with respect to such subject matter. The terms
of the Agreement shall be waived or amended only by the written agreement of the
parties. No delay or omission of either party in exercising any right or remedy
hereunder shall constitute a waiver of such right or remedy, and no waiver as to
any obligation shall operate as a continuing waiver or as a waiver of any
subsequent breach.
(b) Governing Law. The Agreement shall be governed by, and construed
in accordance with, the laws of the State of California, without regard to the
conflicts of laws rules thereof.
(c) Arbitration.
-----------
(i) Any dispute or controversy between the parties relating to or
arising out of the Agreement or any amendment or modification hereof shall
be determined in arbitration in the State of California pursuant to the
rules and then obtaining of the American Arbitration Association. The
arbitration award shall be final and binding upon the parties and judgment
may be entered thereon in the Supreme Court of the State of California for
the United States District Court for the Central District of California or
in any other court of competent jurisdiction to which jurisdiction the
parties hereby expressly consent. The service of any notice, process,
motion or other document in connection with an arbitration under the
Agreement or (he enforcement of any arbitration award hereunder may be
effectuated by either personal service upon a party or by overnight courier
delivery duly addressed to it, at the address or addresses of such party of
such party or parties as herein set forth.
(ii) Anything otherwise hereinabove provided to the contrary
notwithstanding any dispute between the parties which involves a third
party action or proceeding, including, but not limited to, cross-claims and
third party action or interpleader action or proceeding, arising under the
indemnification provisions hereof or otherwise, shall not at the election
of the party subject to such third party action or proceedIng, be subject
to arbitration (even though the same would have been arbitrable
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as between the parties and the action or proceeding been initiated by one
of them against the other), but shall be resolved exclusively within the
said action, and the other party hereto expressly consents to the
jurisdiction of and in the court in which such action or proceeding is
pending.
(d) Benefit. The Agreement is not intended to confer upon any person
or entity other than the party's hereto any rights or remedies hereunder.
(e) Interpretation. Each party intends that the Agreement be deemed
and construed to have been jointly prepared by the parties. As a result, the
parties agree that any ambiguity or uncertainty existing herein shall not be
interpreted against either of them. The parties also intend that the rights and
remedies hereunder be cumulative, so that exercise of any one or more of such
rights or remedies shall not preclude the later or concurrent exercise of any
other rights or remedies.
(f) Notices. Whenever, under the terms of the Agreement, any notice or
other communication is required or permitted to be given by one party to the
other, such notice or other communication shall be in writing and shall be
deemed to have been sufficiently given if personally delivered, telecopied, or
sent by overnight courier addressed to the party to whom it is to be given, at
the address set forth at the end of the Agreement. Until further notice from
Aguilera, any notices intended for her shall be sent contemporaneously to Xxxx
Xxxx, Esq., Xxxxxx Xxxxxx Xxxxx & Yorn, 0000 Xxxxxx Xx. 0Xx Xx., Xxxxx Xxxxxx,
XX 00000. A notice or other communication shall be deemed received (i) upon
receipt, if personally delivered, (ii) on the first business day after dispatch,
if sent by overnight courier, and (iii) on the first business day alter
dispatch, if transmitted by telecopy. Either party hereto may change their
address by written notice in accordance with the Section.
(g) Counterparts. The Agreement may be executed in counterparts, each
of which shall be deemed to be an original.
(h) Severability. If any provision of the Agreement is declared by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of the Agreement shall continue in full force and effect,
and the invalid provision shall be replaced by the legal provision which most
clearly achieves the intent of the invalid provision.
(i) Confidentiality.
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(i) Each party agrees that all information, trade secrets of the
party, product plans, designs, ideas, concepts, costs, finances, market
plans, business opportunities, personnel, research, development or know-how
and any other non-public technical or business information of a party,
including, but not limited to, financial data and other data (collectively,
the "Proprietary Information") is and shall remain the property of the
disclosing party. Each party agrees that it shall hold the other's
Proprietary Information in the strictest confidence and shall use such
Proprietary Information only in connection with its performance under the
Agreement. Each of them further agrees that it shall not disclose the
other's Proprietary Information internally except to that minimum number of
employees, agents, attorneys and accountants to whom such disclosure is
necessary, with each such person to he advised of; and hound by, the
confidentiality requirements hereunder. Each party shall return the other's
Proprietary Information promptly upon the other's written request.
(ii) The requirements of paragraph 7(a) above shall not apply to
(a) Proprietary Information previously known to the receiving party free of
any obligation to keep it confidential, (b) Proprietary Information that
has been or is subsequently made public other than in breach of the Section
or (c) any Proprietary Information the disclosure of which is required
under any applicable law.
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(iii) Each party agrees that in the event of any breach of the
Section 7, the non-breaching party would he irreparably and immediately
harmed and that money damages would not be a sufficient remedy for any such
breach. It is accordingly agreed that the non-breaching party shall be
entitled to equitable relief; including injunction and specific
performance, in the event of any breach of the provisions of the Section 7,
in addition to all other remedies available to such party at law or in
equity.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be executed
by them or their duly authorized representatives as of the date first written
above.
3 WISHES PRODUCTIONS INC. PTN MEDIA, INC.
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
----------------------------- -----------------------------
Title: Authorized Agent Title: Xxxxx Xxxxxx, President
Address: Address:
c/o Xxxx Xxxx, Esq. PTN Media, Inc.
Xxxxxx Xxxxxx Xxxxx & Yorn 000 Xxxx Xxxxxxxxxx Xxxxxxx,
Second Xx. 0xx Xxxxx Xxxxx 00
Xxxxx Xxxxxx, XX 00000 Xxx Xxxxx, Xxxxxxxx 00000
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SCHEDULE I
1. - Handspring: Visor PrismTM
2. - Handspring: Visor PlatinumTM
3. - Handspring: Visor DeluxeTM
4. - Handspring; VisorTM
/s/ Aguilera Date:
-----------------------------
Aguilera
/s/ Klamka Date:
----------------------------
PTNM
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EXHIBIT A
Date: 02/19/01
Gentlemen:
Reference is hereby made to the License Agreement dated February 19, 2001
between 3 Wishes Productions Inc. and PTN Media Inc.
In consideration of your entering into said License Agreement with 3 Wishes
Productions, Inc. (a wholly owned enterprise of Xxxxxxxxx Xxxxxxxx) and in order
to induce your execution thereof, I hereby confirm that I have read said License
Agreement and that I agree to perform all of the obligations and undertakings
required of me there under and to abide by all the restrictions contained
therein as they are applicable to me, regardless of whether 3 Wishes
Productions, Inc. continues throughout the term of the Agreement to be my
employer in connection with such services.
I acknowledge that payment by PTN Media Inc. to 3 Wishes Productions, Inc.
as set forth in said Agreement shall fully discharge PTN Media's obligation to
me.
I warrant and represent that 3 Wishes Productions, Inc. is authorized by me
to contract for my services as set forth in said License Agreement and represent
that I am not obligated to any third parties in any manner that would interfere
with my ability to perform as required under said Agreement.
Very truly yours,
/s/ Xxxxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxxxx Xxxxxxxx
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