EXHIBIT 10.1
EXCLUSIVE LICENSE AGREEMENT
This EXCLUSIVE LICENSE AGREEMENT ("Agreement") is made this 26 day of April,
2004 by and between Timeless Video, Inc., a California corporation, ("TVI/CSI"),
Digital Continuum, Inc., a California corporation ("DCI"), ETV, Inc., a
California corporation ("ETV") and American IDC Corp., a Florida corporation
("ACNI").
Recitals:
WHEREAS, TVI/CSI possesses a library of over ten thousand (10,000) classic films
and television programs (the "Library") and has the worldwide rights for
distribution, marketing and broadcasting such films and television programs
through all channels of distribution and in all in media (as used herein, each
individual film or television program shall be a "Title" and all Titles
collectively shall be the "Library"); and
WHEREAS, DCI owns as its exclusive property a digital technology solution for
encoding, encrypting and broadcasting over the Internet, including a proprietary
Digital Continuum software ("DC Software"), which is capable of delivering over
24/7 Internet Broadband Channels; and
WHEREAS, ETV possesses the licensing rights for the Library for the purposes of
broadband delivery and reselling over the Internet in the United States and the
exclusive rights to use the DC Software for the purpose of broadband delivery
over the Internet to the United States Market (collectively, the "Licensed
Assets"). These rights are as set forth in the license agreements between
TVI/CSI and ETV and DCI and ETV, which are set forth as Exhibit A (the "TVI/CSI
License Agreement") and Exhibit B (the "DCI License Agreement"), respectively,
which are incorporated by reference herein. TVI/CSI, DCI and ETV shall
collectively be known as "Licensor"; and
WHEREAS, Licensor desires to grant a license to the Licensed Assets to ACNI
("Licensee"), thereby transferring all of Licensor's rights to manufacture,
distribute or otherwise utilize the Licensed Assets.
Now, therefore, in consideration of the following premises and the mutual
covenants herein contained, and for good and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. GRANT
1.1 GRANT OF LICENSE. Subject to the terms of the TVI/CSI License Agreement and
the DCI License Agreement and this Agreement, Licensor hereby grants to Licensee
and its affiliates a sole and exclusive license in North America to manufacture,
use, lease, distribute and/or sell the Licensed Assets.
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1.2 RIGHT TO GRANT SUB-LICENSES. Licensor grants Licensee the right to grant
sublicenses to third parties under the license granted hereunder, provided the
Licensee abides by the terms of this Agreement.
2. PAYMENT.
2.1 PAYMENT FOR LICENSE. In consideration of the rights and licenses granted to
Licensee herein, Licensee shall pay to Licensor Ten Thousand Dollars ($10,000),
which has already been paid, and five million (5,000,000) shares of restricted
common stock of ACNI immediately upon the execution of this Agreement, provided
that all terms of this Agreement that are to be completed concurrently with the
execution of this Agreement must have been fulfilled by Licensor and Licensee.
2.2 RESTRICTED SECURITIES. The stock to be issued to Licensor under this
Agreement will be restricted under Section 144 of the Securities Act of 1933
("Restricted Securities"). Licensor understands that as Restricted Securities
under the federal securities laws, the shares are not being issued under a
public offering and that under such laws and applicable regulations, such
securities may not be resold without registration under the Securities Act of
1933, except in certain limited circumstances. Licensor represents that it is
familiar with Restricted Securities and understands the resale limitations
imposed thereby and by the Act. It is understood that the certificates
evidencing the stock may bear the following legends: 1) The securities evidenced
by this certificate have not been registered under the Securities Act of 1933,
as amended (the "Act"), or the securities laws of any state of the United States
("State Acts"). The securities evidenced by this certificate may not be offered,
sold or transferred for value, directly or indirectly, in the absence of such
registration under the Act and qualification under applicable State Acts, or
pursuant to an exemption from registration under the Act and/or qualification
under applicable State Acts, the availability of which is to be established to
the reasonable satisfaction of the Licensor.
3. TERM. The term of this Agreement shall be ten (10) years and renewable by
mutual agreement.
4. EXCLUSIVITY. During the term of this Agreement, Licensee shall have the
exclusive use of the Licensed Assets.
5. PROTECTION OF INTELLECTUAL PROPERTY.
5.1. ACKNOWLEDGMENTS AND AGREEMENTS OF LICENSEE. As a material inducement to
Licensor to enter into this Agreement, and as a material part of the
consideration to Licensor hereunder, the parties hereby acknowledge and agree
that:
(i) (a) Licensor owns the Licensed Assets and all rights,
registrations, applications and filings with respect to such
Licensed Assets, and all renewals and extensions of any such
registrations, applications and filings, (b) Licensor has the
right to license the Licensed Assets, and (c) Licensee is
acquiring hereby only the right to use the Licensed Assets for
the purpose stated in and pursuant to the terms and conditions
of the Agreement.
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(ii) (a) Great value is placed on the Licensed Assets, and the
goodwill associated therewith, (b) the Licensed Assets and all
rights therein and goodwill pertaining thereto belong
exclusively to and (c) all authorized use of the Licensed
Assets by Licensee shall inure to the benefit of Licensor.
(iii) The conditions, terms, restrictions, covenants and
limitations of this Agreement are necessary, equitable,
reasonable and essential to assure the consuming public that
all goods and services sold under the Licensed Assets are of
the same consistently high quality as sold by Licensor and by
others who are licensed to design, manufacture and/or sell any
products by, under or with the Licensed Assets, if any.
5.2 PROTECTION OF RIGHTS.
(i) RESTRICTION ON USE. Licensee shall not use or permit the
use of the Licensed Assets for any purpose or use other than
the uses licensed under this Agreement.
(ii) GENERAL. Licensee shall cooperate fully and in good faith
with Licensor for the purpose of securing and preserving
Licensor's (or any grantee of Licensor's) rights in and to the
Licensed Assets.
6. DEFAULTS AND REMEDIES.
6.1 DEFAULTS BY LICENSEE. The occurrence of any one or more of the following
shall constitute a default by Licensee under this Agreement:
(i) Licensee shall fail to make payment for the Licensed
Assets and such failure continues for more than thirty (30)
days after written notice thereof, unless such failure cannot
be cured within such thirty (30) day period and Licensee shall
have commenced to cure the failure and proceeds diligently
thereafter to cure such failure.
(ii) Licensee uses the Licensed Assets in any manner likely to
endanger the validity of the Licensed Assets or to damage or
impair the reputation or value of the Licensed Assets, and
such action continues for more than thirty (30) days after
written notice thereof, unless the action cannot be cured
within such thirty (30) day period and Licensee shall have
commenced to cure the action and proceeds diligently
thereafter to cure such action.
(iii) The failure of Licensee to perform any of its other
material obligations under this Agreement and such failure
continues for more than thirty (30) days after written notice
thereof, unless the failure cannot be cured within such thirty
(30) day period and Licensee shall have commenced to cure the
failure and proceeds diligently thereafter to cure such
failure.
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6.2. DEFAULT BY LICENSOR. If Licensor fails to perform any of its material
obligations under this Agreement and such failure continues for more than thirty
(30) days after the written notice thereof, such failure shall constitute a
failure by Licensor under this Agreement, unless the failure cannot be cured
within such thirty (30) day-period and Licensor shall have commenced to cure
such failure and proceeds diligently thereafter to cure such failure.
6.3. REMEDIES.
(i) If Licensee has not cured any such breach or
non-performance in accordance with Section 6.1 above, in
addition to all other rights and remedies available to
Licensor, whether pursuant to the terms of this Agreement at
law in equity or otherwise, Licensor shall have the right to
terminate this Agreement without further notice to Licensee.
(ii) If Licensor has not cured any such breach or
non-performance in accordance with Section 6.2 above, in
addition to all of the other rights and remedies available to
Licensee, whether pursuant to the terms of this Agreement at
law, in equity or otherwise, Licensee shall have the right to
terminate this Agreement without further notice to Licensor.
6.4. EFFECT OF EXPIRATION OR TERMINATION. Except as specifically provided herein
to the contrary, upon expiration or termination of this Agreement, the rights
and licenses granted herein shall terminate and Licensee shall have no further
right to use the Licensed Assets. Upon the request of Licensor, Licensee shall
immediately execute without further consideration such assignments and other
instruments which may be required to be recorded to effect the termination of
the licenses and rights granted herein (and the assignments of Licensee's rights
to Licensor).
7. WARRANTIES.
7.1. LICENSOR'S WARRANTIES. Licensor warrants and represents that Licensor (i)
is free to enter into this Agreement, (ii) has the full power, right and
authority to make the grant of rights to Licensee as provided hereunder and that
the exercise by Licensee of such rights, as authorized hereunder, shall not
violate the rights of any third party, and (iii) is not subject to any
obligation which will or might hinder or prevent the full completion and
performance by Licensor of any of the covenants and the conditions to be kept
and performed by Licensor hereunder.
7.2. LICENSEE'S WARRANTIES. Licensee hereby represents and warrants that
Licensee (i) is free to enter into this Agreement, (ii) is not subject to any
obligation which will or might hinder or prevent the full completion and
performance by Licensee of any of the covenants and conditions to be kept and
performed by Licensee hereunder, and (iii) will ensure that all uses of the
Licensed Assets comply with the terms of this Agreement.
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8. MISCELLANEOUS.
8.1 CONSULTING AGREEMENTS. Xxxxxx Xxxxxxx and Xxxxx Xxxxxx, principals of
Licensor, shall agree to enter into one year consulting agreements with Licensee
to assist Licensee with marketing and utilization of the Licensed Assets. The
consulting agreements will be individually negotiated for a one-year term and
will include payment of One Million (1,000,000) shares of ACNI common stock,
registered on Form S-8.
8.2 OPTION TO PURCHASE THE LICENSED ASSETS. In consideration for entering into
this Agreement, Licensor agree to grant Licensee an exclusive two-year option to
purchase the Licensed Assets for Five Million Dollars $5,000,000 payable in cash
or common stock, as determined by the parties.
9. GENERAL PROVISIONS.
9.1. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between
the Parties with respect to the subject matter hereof, and all prior
negotiations, discussions, commitments and/or understandings relating thereto,
if any, are merged herein. This Agreement shall supersede any and all other
agreements between the Parties and may be modified only by a written agreement
signed by duly authorized of each of the Parties. No representations, oral or
otherwise expressed or implied, other than those specifically contained in this
Agreement have been made by any party hereto. No other agreements not referred
to or specifically contained herein, oral or otherwise, shall be deemed to exist
or to bind any of the Parties hereto.
9.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the successors and permitted assigns of the Parties.
9.3. CHOICE OF LAW. The validity, construction and enforcement of this Agreement
shall be governed by the laws of the State of California without regard to its
choice of law principles.
9.4. DISPUTE RESOLUTION. Any claim or controversy arising out of or relating to
this Agreement, or any breach thereof wherein only damages are sought, be
brought in federal or state court in the State of California, County of Los
Angeles.
9.5. NO WAIVER. No waiver by either party, whether express or implied, of any
provision of this Agreement or of any breach or default of any party, shall
constitute a continuing waiver of such provision or any other provisions of this
Agreement, and no such waiver by any party shall prevent such party from acting
upon the same or any subsequent breach or default of the other party of the same
or any other provision of this Agreement.
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9.6. DISCLAIMER OF AGENCY. Nothing in this Agreement shall create a partnership
or joint venture or establish the relationship of principal and agent or any
other relationship of a similar nature between the parties hereto, and neither
Licensee nor Licensor shall have the power to obligate or bind the other in any
manner whatsoever.
9.7. CONSTRUCTION. This Agreement shall be interpreted to provide Licensor with
the maximum control of the Licensed Assets and the use thereof.
9.8. LICENSOR APPROVALS. Any approval required from Licensor under this
Agreement shall be effective and binding against Licensor only if it is in
writing. Any approval required hereunder must be obtained by Licensee prior to
Licensee taking any action which requires such approval.
9.9. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9.10. AUTHORITY. Each individual signing on behalf of a party hereto represents
and warrants that he or she is authorized to execute this Agreement on behalf of
such party. Each party has obtain the necessary approvals to enter into this
agreement.
9.11. TERMINATION ON INSOLVENCY OF LICENSEE. Licensor may terminate this
Agreement if a petition for relief under applicable bankruptcy law is filed by
or against Licensee, and is not dismissed within sixty (60) days of such filing,
if Licensee makes any assignment for the benefit of its creditors, or if a
receiver is appointed for Licensee for all or substantially are of its business
interests. The license and rights granted hereunder are personal to Licensee. No
assignee for the benefit of creditors, receiver, debtor in possession, trustee
in bankruptcy, sheriff or any other officer of court charged with taking over
custody of Licensee's assets or business shall have any right to continue
performance to exploit or in any way use the Licensed Assets if this Agreement
is terminated, except as may be required by law.
9.12. TERMINATION ON INSOLVENCY OF LICENSOR. Licensee may terminate this
Agreement, if a petition for relief under applicable bankruptcy law is filed by
or against Licensor, and is not dismissed within sixty (60) days of such filing,
if Licensor makes any assignment for the benefit of its creditors, or if a
receiver is appointed for Licensor for all or substantially all of its business
interests. In the event of such termination, Licensee shall have the right to
continue thereafter to import and/or sell any and all Licensed Assets which
Licensee has purchased, produced or committed to purchase prior to the date of
termination.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date set
forth above.
American IDC Corp.
By: /s/Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chief Executive Officer
ETV, Inc.
By: /s/Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: CFO
Timeless Video, Inc.
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
Digital Continuum, Inc.
By: /s/Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
EXHIBIT A
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LICENSE AGREEMENT
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The following agreement is made between ETV, Inc. ("ETV"), a California
corporation, with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxx 00000 and Timeless Video, Inc. a California corporation, with offices
at 00000 Xxxxxx Xxxxxx, Xxxxx X-0, Xxxxxxxxxx, Xxxxxxxxxx 00000 and Xxxxx Xxxxxx
("TVI/CS").
WHEREAS, TVI/CS possesses a library of over ten thousand (10,000)
classic films and television programs (the "Library") and has the worldwide
rights for distribution, marketing and broadcasting such films and television
programs through all channels of distribution and in all media. (As used herein,
each individual film or television program shall be a "Title" and all Titles
collectively shall be the "Library").
WHEREAS, ETV is in the business of marketing and distributing program
content for broadband television over the Internet.
NOW, THEREFORE, the parties agree as follows:
1. U.S. RIGHTS FOR BROADBAND DELIVERY OVER THE INTERNET. TVI/CS grants to
ETV licensing rights for its library for the purpose of broadband
delivery and reselling over the Internet. Such rights are limited to the
United States.
2. LIBRARY SELECTION. DUBBING AND/OR SUBTITLING. ETV may choose any or all
of the Library for broadband delivery over the Internet in the U.S. ETV
shall be responsible and pay for any dubbing and/or subtitling that may
be required for the Titles chosen. When the dubbing and/or subtitling is
completed, the foreign language versions of the titles shall be the
Foreign Language Titles.
3. DELIVERY TO ETV. TVI/CS shall deliver Titles selected from the Library
to ETV in a mutually agreed upon format within thirty (30) days of
selection in writing by ETV. 2.
4. FORMAT CONVERSION. All conversions from agreed upon formats shall be
determined by ETV and the costs of any such conversion will be the
responsibility of ETV.
5. CONSIDERATION FROM ETV. ETV will issue to Xxxxx Xxxxxx a total five
hundred thousand (500,000) shares of common stock of ETV, Inc. These
shares are subject to dilution for future management employee options
and for further capitalization or strategic relationships. In addition,
Xxxxx Xxxxxx shall receive ten percent (10%) of the gross revenues
received by ETV for downloads and/or subscription sales.
6. HOLD HARMLESS FROM TVI/CS TO ETV. TVI/CS represents and warrants to ETV
that it has full right and title to grant marketing and distribution
rights under this Agreement to ETV and hereby agrees to indemnify and
hold ETV harmless against any and all claims, losses and costs related
to any claim by a third party that ETV is not entitled to the rights
granted under this Agreement.
7. ENTIRE AGREEMENT. This is the entire Agreement between the parties and
any modifications must be in writing and executed by each of the
parties.
8. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Los Angeles, California, in accordance with
the Rules of the American Arbitration Association then existing, and the
judgment in arbitration may be entered in any court having jurisdiction
thereto.
9. ATTORNEYS' FEES. If any action at law or equity, including an action for
declaratory relief, or any proceeding in arbitration, is brought to
enforce or interpret the provisions of this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys'
fees, and other costs incurred in that action or proceeding which may be
set by the court or the arbitration panel in the same action or any
separate action brought for that purpose, in addition to any other
relief to which such party may be entitled.
10. GOVERNING LAW. This Agreement shall be governed by, interpreted under,
and construed in accordance with the laws of the State of California.
Dated: APRIL 5, 2004
TIMELESS VIDEO, INC. a California corporation
By: /S/XXXXX XXXXXX ETV, INC.
--------------- a California corporation
Xxxxx Xxxxxx
President
By: /S/XXXXXX XXXXXXX
XXXXX XXXXXX -----------------
Xxxxxx Xxxxxxx
By: /S/XXXXX XXXXXX President/CEO
---------------
Xxxxx Xxxxxx
EXHIBIT B
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LICENSE AGREEMENT
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The following agreement is made between ETV, Inc. ("ETV"), a California
corporation, with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxx 00000 and Digital Continuum, Inc. ("DCI"), a California corporation,
with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, DCI owns as its exclusive property a digital technology
solution for encoding, encrypting, and broadcasting over the Internet, including
its proprietary Digital Continuum software, which is capable of delivering
content digitally over 24/7 Internet Broadband Channels.
WHEREAS, ETV is in the business of aggregating, marketing and
distributing program content for broadband television over the Internet.
NOW, THEREFORE, the parties agree as follows:
1. U.S. RIGHTS FOR BROADBAND DELIVERY OVER THE INTERNET. DCI grants to ETV
the exclusive rights to use its digital technology solution for the
purpose of broadband delivery over the Internet to the U.S. market. Such
rights are limited to the United States.
2. CONSIDERATION FROM ETV. ETV shall pay to DCI a mutually agreed upon sum
of money for the use of its digital technology solution for the purpose
of distributing content over Internet Broadband channels. Such sum shall
not be less than twenty thousand dollars ($20,000) per separate
broadband channel used. Such sum shall be payable to DCI from ETV within
sixty (60) days of receipt of invoice.
3. DISTRIBUTION RIGHTS FOR DCI TECHNOLOGY. ETV shall act as a non-exclusive
distributor for DCI technology, including hardware and software, and
shall receive a commission of twenty percent (20%) of the net selling
price on any and all sales of such technology generated by ETV. Sales
will be invoiced by ETV and the net total of each sale, less twenty
percent (20%), shall be paid within sixty (60) days to DCI from ETV.
4. HOLD HARMLESS FROM DCI TO ETV. DCI represents and warrants to PTV that
it has fall right and title to the digital technology solution under
this Agreement with ETV and hereby agrees to indemnify and hold ETV
harmless against any and all claims, losses and costs related to any
claim by a third party that ETV is not entitled to the rights granted
under this Agreement.
5. ENTIRE AGREEMENT. This is the entire Agreement between the parties and
any modifications must be in writing and executed by each of the parties
6. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the making, performance, or interpretation thereof; shall
be settled by arbitration in Los Angeles, California, in accordance with
the Rules of the American Arbitration Association then existing, and the
judgment in arbitration may be entered in any court having jurisdiction
thereto.
7. ATTORNEYS' FEES. If any action at law or equity, including an action for
declaratory relief; or any proceeding in arbitration, is brought to
enforce or interpret the provisions of this Agreement, the successful or
prevailing party shall be entitled to recover reasonable attorneys'
fees, and other costs incurred in that action or proceeding which may be
set by the court or the arbitration panel in the same action or any
separate action brought for that purpose, in addition to any other
relief to which such party may be entitled.
8. GOVERNING LAW. This Agreement shall be governed by, interpreted under,
and construed in accordance with the laws of the State of California.
Dated April 5, 2004
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Digital Continuum, Inc. ETV, INC.
a California corporation a California corporation
By: /S/ XXXXXX XXXXXXX /S/XXXXXX XXXXXXX
-------------------------- -----------------------------
President Xxxxxx Xxxxxxx
President/CEO
/S/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Secretary
