License Agreement
This License Agreement (the "Agreement") is made and entered into by and
between The Yankee Companies, Inc., a Florida Corporation (the "Licensor") and
AmeriNet Xxxxx.xxx, Inc., a Delaware corporation (the "Licensee;" the Licensor
and the Licensee being sometimes hereinafter collectively referred to as the
"Parties").
Preamble:
WHEREAS, the Licensee desires to obtain the exclusive right to develop and
use the domain names 00x0-00.xxx, 00x0-00.xxx, 00x0-00.xxx and 00x0-00.xx (the
"Licensed Domain Names") that are currently held by the Licensor; and
WHEREAS, the Licensor is agreeable to granting the Licensee such rights
during the term of this Agreement, provided that the Licensee agrees to abide by
the following terms and conditions;
NOW THEREFORE, in consideration of the premises, as well as for the sum of
$10.00 and other good and valuable consideration, the value of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Assignment
1.1 Consideration
Subject to the conditions hereinafter set forth, the Licensor hereby
assigns the Licensed Domain names to the Licensee and the Licensee hereby
accepts the assignment from the Licensor, pursuant to the following terms:
(a) Term
This License shall be for a term concurrent with the balance of the term of
the current consulting agreement between the Licensor and the Licensee, and any
renewals or extensions thereof, at the termination whereof, all rights to the
Licensed Domain Names, together with all business applications, agreements,
intellectual property rights or other tangible or intangible property or
property rights developed by the Licensee or for the Licensee or with the
consent of the Licensee in conjunction with the Licensed Domain Names, or any
successors or derivatives thereof (collectively and generically hereinafter
referred to as the "Domain Name Assets"), shall revert to the Licensor, in
consideration for a payment equal to the deficit, if any, between the out of
pocket costs actually incurred to develop the Domain Name Assets by the
Licensee, as reported to the Licensor within the period staring 60 days and
ending 30 days prior to the end of the term of this Agreement.
(b) Consideration
As consideration for the assignment of the Licensed Domain names, the
Licensee hereby agrees to fully develop all commercial and civic applications
for the Domain names on a timely basis and to pay to the Licensor a monthly
royalty fee in a sum equal to 5% of the gross proceeds obtained from any
commercial uses of the Domain Names (the "Royalty"), provided that payments of
the Royalty shall be deferred and accrued until such times as the Licensor's
consolidated operations generate profits adequate to make payments of the
Royalty on a current basis, and amortized payments of accrued but unpaid Royalty
in a sum acceptable to the Licensor, after meeting all other debt service
commitments.
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Article Two
Development by Xxxxxxx.xxx, Inc.
The Parties hereby agree that the Licensee will assign the operational
aspects of the project contemplated hereby to its wholly owned subsidiary,
Xxxxxxx.xxx, Inc., a Florida corporation ("WRI"), which will immediately
undertake the project and commence development of the required Internet sites,
programs, procedures and applications required to commercially develop the
Licensed Domain Names as information depositories for public company information
that will, on an ongoing basis, meet the informational requirements of Rule
15c2-11 promulgated by the United States Securities and Exchange Commission
("Rule 15c2-11" and the "Commission," respectively) under authority of Section
15 of the Securities Exchange of 1934, as amended (the "Exchange Act"), and that
the Licensee and WRI will take all reasonable steps required to assure that the
sites meet the requirements of Rule 15c2-11, or any successor or related rules,
including rules or bylaw provisions of the National Association of Securities
Dealers, Inc., a Delaware corporation, or its subsidiaries and affiliates or
their successors in interest.
Article Three
Confidentiality & Competition
3.1 General Provisions.
(a) The Licensee acknowledges that, in and as a result of its entry into this
Agreement, it will make use of confidential information of special and
unique nature and value relating to the Licensed Domain names and strategic
plans associated therewith and such other matters as the Licensor's trade
secrets, systems, procedures, manuals, confidential reports, service
providers, sources and funders and, will be developing business aspects
thereof in which the Licensor shall have exclusive proprietary rights upon
termination of this Agreement; consequently, as material inducement to the
entry into this Agreement by the Licensor, the Licensee hereby covenants
and agrees that it shall not, at anytime during the term of this Agreement,
any renewals thereof and for two years following the final term of this
Agreement, directly or indirectly, use, divulge or disclose, for any
purpose whatsoever, any of such confidential information except on a need
to know basis, pursuant to provisions designed to protect the licensor's
current and residuary rights under this Agreement.
(b) In the event of a breach or threatened breach by the Licensee of any of the
provisions of this Article Three, the Licensor, in addition to and not in
limitation of any other rights, remedies or damages available to the
Licensor, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by the
Licensee, or by the Licensee's partners, directors, officers, stockholders,
agents, representatives, servants, employers, employees, affiliates and/or
any and all persons directly or indirectly acting for or with it.
3.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
the Licensor and its clients as a result of a breach by the Licensee of the
covenants or agreements contained in this Article Three, and in view of the lack
of an adequate remedy at law to protect the Licensor's interests, the Licensee
hereby covenants and agrees that the Licensor shall have the following
additional rights and remedies in the event of a breach hereof:
(a) The Licensee hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this Article
Three; and
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(b) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which the Licensor or its clients may sustain prior to the
effective enforcement of such injunction, the Licensee hereby covenants and
agrees to pay over to the Licensor, in the event it violates the covenants
and agreements contained in this Article Three, the greater of:
(i) Any payment or compensation of any kind received by it because of such
violation before the issuance of such injunction, or
(ii) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered by
the Licensor or its clients as a result of such violation, the Parties
hereto agreeing that such liquidated damages are not intended as the
exclusive remedy available to the Licensor for any breach of the
covenants and agreements contained in this Article Three, prior to the
issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect the Licensor and its clients from the
injury caused by such breaches would be injunctive relief.
3.3 Cumulative Remedies.
The Licensee hereby irrevocably agrees that the remedies described in this
Article Three shall be in addition to, and not in limitation of, any of the
rights or remedies to which the Licensor and its clients are or may be entitled
to, whether at law or in equity, under or pursuant to this Agreement.
3.4 Acknowledgment of Reasonableness.
(a) The Licensee hereby represents, warrants and acknowledges that it has
carefully read and considered the provisions of this Article Three and,
having done so, agrees that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests
of the Licensor, its members, officers, directors, agents and employees;
consequently, in the event that any of the above-described restrictions
shall be held unenforceable by any court of competent jurisdiction, the
Licensee hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation
deemed unenforceable and, the Licensee hereby covenants and agrees that if
so modified, the covenants contained in this Article Three shall be as
fully enforceable as if they had been set forth herein directly by the
Parties.
(b) In determining the nature of this limitation, the Licensee hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute arising hereunder recognize that the
Parties desire that these covenants not to compete or circumvent be imposed
and maintained to the greatest extent possible.
3.5 Exclusivity.
(a) Neither the Licensee nor WRI shall not be required to devote all of their
business time to development, implementation and operation of commercial
and civic applications for the Licensed Domain Names, rather they shall
devote such time as is reasonably necessary.
(b) Notwithstanding the foregoing, the Licensee and WRI shall be deemed
fiduciaries of the Licensor and in conjunction with such status, shall be
bound by the partnership opportunities doctrine as though the Licensee and
WRI were partners with the Licensor (despite the absence of such legal
relationship) and shall in all cases respect the confidentiality of
information to which the Licensee or WRI becomes privy as a result of the
rights granted under this Agreement and its implementation.
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Article Four
Miscellaneous
4.1 Notices.
(a) All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been duly given on
the first business day after mailing by United States registered or
certified mail, return receipt requested, postage prepaid
To the Licensor :
The Yankee Companies, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000 Attention:
Xxxxxxx Xxxxx Xxxxxx, President Telephone (000) 000-0000, Fax (000) 000-0000;
and, e-mail xxxxxxxxxx@xxxxxx.xxx; and
The Yankee Companies, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx; Chief Administrative Officer
Telephone (000) 000-0000; Fax (000) 000-0000; and, e-mail
xxxxxxx0@xxxxxxxx.xxx
To AmeriNet
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx Jordan, President
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail
xxxxxxxxx@xxxxxxxxxxxxx.xxx; and to
Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000; Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
Telephone (000) 000-0000; Fax (000) 000-0000; e-mail Xxxxxxx@xxxxxxx.xxx
(b) Copies of notices will also be provided to such other address or to such
other person as any Party shall designate to the other for such purpose in
the manner hereinafter set forth.
(c) (1) The Parties acknowledge that the Licensor has acted as scrivener for
the Parties in this transaction but that it is neither a law firm nor
an agency subject to any professional regulation or oversight.
(2) The Licensor has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their behalf.
4.2 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party against
which the enforcement of said modification, waiver, amendment, discharge or
change is sought.
4.3 Merger.
(a) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and shall
be of no force or effect.
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4.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
4.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
4.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
4.7 Litigation.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials and
appeals, whether or not litigation is initiated.
(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1)(A) First, the issue shall be submitted to mediation before a
mediation service in Broward County, Florida, to be selected by
lot from six alternatives to be provided, three by the Licensor
and three by the Licensee.
(B) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties shall submit the
dispute to binding arbitration before an arbitration service located
in Broward County, Florida to be selected by lot, from six
alternatives to be provided, three by the Licensor and three by the
Licensee.
(3)(A) Expenses of mediation shall be borne by the Licensee, if
successful.
(B) Expenses of mediation, if unsuccessful and of arbitration shall
be borne by the Party or Parties against whom the arbitration
decision is rendered.
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(C) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and
arbitration shall be borne equally by the Parties.
4.8 Benefit of Agreement.
(a) This Agreement may not be assigned by without the prior written consent of
the Licensor.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
4.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
4.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
4.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
4.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of licensor and licensee.
4.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) Execution by exchange of facsimile transmission shall be deemed legally
suffi cient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement, which shall be the document filed with the Securities and
Exchange Commission.
4.14 License.
(a) This Agreement is the property of the Licensor and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(b) The use of this form of agreement or of any derivation thereof without the
Licensor' prior written permission is prohibited.
(c) The interpretation of this Agreement shall not be directly or indirectly
affected in any manner as a result of its authorship.
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In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
The Yankee Companies, Inc.
a Florida corporation
--------------------------
__________________________ By: /s/ Xxxxxxx X. Xxxxxx
___________________________
Xxxxxxx Xxxxx Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxx, III
__________________________
Xxxxxxx X. Xxxxx, III, Secretary
Dated:February 9, 2000
AmeriNet Xxxxx.xxx, Inc.
a Delaware corporation.
--------------------------
__________________________ By: /s/ Xxxxxxx X. Xxxxxx
___________________________
Xxxxxxx X. Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated:February 9, 2000
Xxxxxxx.xxx, Inc.
a Florida corporation.
--------------------------
__________________________ By: /s/ Xxxxxxx X. Xxxxxx
___________________________
Xxxxxxx X. Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxx
__________________________
Xxxxxxx X. Xxxx
Secretary & General Counsel
Dated:February 9, 2000
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