NAME AND LIKENESS LICENSING AGREEMENT
THIS
NAME AND LIKENESS LICENSING AGREEMENT (the
“Agreement”),
dated
as of November 5, 2008, is by and between Xxxxxx Xxxxx (“Licensor”)
and
The Knot, Inc., a Delaware corporation (the “Company”).
The
effective date of this Agreement shall be January 1, 2009 (the “Effective
Date”).
WHEREAS,
the
parties desire that the Company pay Licensor an annual licensing fee for,
among
other things, use of her name and likeness for purpose of appearances on
behalf
of The Knot or any of its subsidiaries or divisions in person or any other
appearances, in promotional television, radio or online formats.
NOW,
THEREFORE,
in
consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Certain
Definitions.
1.1 “Licensed
Property”
means
(i) Licensor’s name, image, signature, voice and likeness and goodwill
appurtenant thereto, (ii) photographic portraits, pictures, video recordings
and
audio recordings of the foregoing, as applicable, (iii) rights of publicity
in
and to her name, image, signature, voice, likeness, and other elements of
her
persona and identity, and (iv) all common law and statutory rights in the
foregoing.
1.2 “Products”
means
any web site, magazine, book, television program, radio program, other video
and/or audio programming, mobile or wireless content, Internet domain names,
and
all other online, digital, electronic and print products and services owned,
operated or produced by or for the Company, its divisions and subsidiaries,
in
existence as of the Effective Date or created thereafter.
1.3 All
other
defined terms shall have the meanings ascribed to them in this Agreement
or the
recitals thereto.
2. License.
2.1 Grant
of License.
Licensor hereby grants to the Company and its successors and assigns the
worldwide license and right, exclusively and during the Term (in each case
except as provided herein), to (A) use any element of the Licensed Property
for
any purpose in connection with the Products, including but not limited to
(1)
the publication, display, distribution and other exploitation of such elements
in and through any and all media now known or hereafter developed, and (2)
the
promotion of the Company, its divisions and subsidiaries through the appearance
in person by Licensor, (B) to sub-license to, or authorize, third parties
to do
the any of the foregoing, pursuant to the terms hereof, and (C) file
applications for copyright, trademark, domain name and other similar
registrations and obtain such registrations involving the Licensed
Property.
2.2 Reservation
of Rights.
Use of
Licensed Property, and the goodwill associated therewith, shall inure solely
to
Licensor. Except for the license granted hereunder and as otherwise provided
herein, (a) as between the parties, Licensor retains any right, title and
interest in and to the Licensed Property, and (b) the Company acknowledges
and
agrees that it will not have any right, title or interest in or to the Licensed
Property, and the Company shall not make any claim of ownership or interest
in
or to such Licensed Property.
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3. Fees.
3.1 Royalties.
The
license granted by Licensor to the Company pursuant to this Agreement shall
be
on a royalty-free basis except as set forth in this Section:
(a) The
Company shall pay Licensor an annual fee in the amount of one hundred thousand
dollars ($100,000), payable during the Term in twenty four (24) equal
installments on each of the Company’s regular payroll dates beginning after the
Effective Date.
(b) The
Company shall pay Licensor royalties equal to thirty percent (30%) of the
annual
net revenues derived from the sales of the books she has authored, edited
and/or
co-written for the Company, its divisions or subsidiaries. Payment of the
royalty amounts shall be accompanied by reasonable written detail of the
basis
therefor. Such royalty amounts shall be payable not later than March 31 of
each
year. Licensor shall have the right to audit the royalty payments no more
than
once per year, and any underpayments shall be immediately due and payable
upon
conclusion of the audit, plus interest at the rate of eight percent (8%)
from
the 60th day following the end of the applicable quarter with respect to
which
the underpaid amount was due. For the avoidance of doubt, the Company’s
obligation to pay royalties under this section shall survive any expiration
or
termination of this Agreement.
(c) The
Company shall pay Licensor an annual non-accountable talent expense allowance
in
the amount of twenty five thousand ($25,000), payable during the Term in
twenty
four (24) equal installments on each of the Company’s regular payroll dates
beginning after the Effective Date. This allowance shall be used to cover
Licensor’s expenses for clothes for television, personal and other appearances
while promoting, representing and endorsing the Company; hair and make-up
expenses for maintenance and on-air appearances; and other expenses related
to
Licensor’s services for the Company.
3.2 Past
Usage.
The
parties acknowledge that Licensor permitted the Company to use the Licensed
Property before the Effective Date in connection with her employment by the
Company, that such use was on a royalty-free basis, and that this Agreement
does
not create any right for Licensor to receive, or obligate the Company to
make,
any payment in connection therewith.
3.3 Taxes.
If
required by law, all payments by the Company to you pursuant to this Agreement
will be subject to withholding of income, social security and employment
taxes,
in accordance with the Company’s normal practices.
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4. Representations
and Warranties.
4.1 Each
party represents and warrants that:
(a) it
has
full power (corporate or otherwise) and authority to enter into and perform
its
obligations under this Agreement, and all actions necessary to authorize
the
execution, delivery and performance of this Agreement have been taken by
such
party; and
(b) neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated herein will conflict with or result in any breach
of
or event of termination under any of the terms of, or constitute a default
under
or result in the termination of or the creation or imposition of any encumbrance
pursuant to, the terms of any contract or agreement to which it is a party
or by
which it or any of its assets and properties are bound.
4.2 Licensor
further represents and warrants to the Company that, as of the Effective
Date,
she exclusively owns all right, title and interest throughout the world in
and
to the Licensed Property, which Licensed Property has intrinsic
value,.
5. Term
and Termination.
5.1 Term.
The
term of the Agreement shall consist of one or more successive one-(1) year
periods, commencing on the Effective Date (the “Term”).
At
the conclusion of each one-year period within the Term, the Term shall
automatically renew for another such period unless either Licensor or the
Company provides written notice to the other party at least ninety (90) days
before the end of the current period that the party providing such notice
intends to terminate the Agreement at the end of such period. Licensor may
terminate the Agreement at any time if the Company defaults on any payment
obligation hereunder and does not cure such default within thirty (30) days
of
receiving written notice thereof. In addition, the Agreement shall automatically
terminate (i) upon Licensor’s death or permanent disability, or (ii) if Licensor
is no longer employed by the Company or any successor entity (except as
otherwise provided by Section 5.2 below).
5.2 Termination.
Upon a
termination of this Agreement for any reason, the license provided herein
shall
become non-exclusive with respect to all Products in existence (whether publicly
available or in development) on the date thereof and shall not include a
license
to use the Licensed Property in connection with any Product created thereafter,
but shall otherwise continue in full force and effect in perpetuity, which
shall
include the right to maintain and/or renew all registrations then obtained
or
applied for. Notwithstanding anything to the contrary in this Agreement,
if
Licensor is no longer employed by the Company or any successor entity following
a Change of Control (as defined in the Company’s Amended and Restated 1999 Stock
Incentive Plan) due to her termination by the Company or its successor without
“Cause” or her resignation for “Good Reason” (as those terms are defined in her
employment agreement with the Company of even date herewith), at the option
of
the Company or its successor, the Agreement shall not terminate if the Company
or its successor proposes in good faith a compensation structure, in addition
to
the fees payable hereunder, in consideration of her continuation of the license
granted hereunder, that is accepted by Licensor and memorialized in a written
amendment to this Agreement executed by each party.
Notwithstanding the first sentence of this section, unless the parties enter
into a written amendment to this Agreement pursuant to the immediately preceding
sentence, the license provided herein shall terminate with respect to the
Products listed on Schedule
A
upon any
termination of this Agreement.
Confidential
6. Indemnification.
Each
party (the “Indemnifying
Party”)
will
indemnify, defend, and hold harmless the other party, and the other party’s
affiliates, subsidiaries, successors and assigns (as applicable), and any
of
their respective officers, directors, employees and agents (each, an
“Indemnified
Party”),
from
and against any and all damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, in any third party lawsuit or proceeding
based upon or otherwise arising out of a breach or alleged breach of the
Indemnifying Party’s representations, warranties or covenants contained herein.
Each Indemnified Party will (a) promptly notify the Indemnifying Party of
such
claim; (b) provide the Indemnifying Party with reasonable information,
assistance and cooperation in defending the lawsuit or proceeding; and (c)
give
the Indemnifying Party full control and sole authority over the defense and
settlement of such claim, subject to the Indemnified Party’s approval of any
such settlement, which approval will not be unreasonably withheld or
delayed.
7. Limitation
of Liability.
EXCEPT
FOR THE INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE
FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE,
LOST BUSINESS, ANTICIPATED PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS
OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING
BUT NOT
LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY
AND
NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE
OR
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE
OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
8. Miscellaneous.
8.1 Successors
and Assigns.
This
Agreement is assignable by the Company to any successor of the Company which
acquires all or substantially all of the stock, assets or businesses of the
Company, whether by sale, merger, recapitalization or other business
combination, without Licensor's consent, provided that any such successor
or
assignee shall provide Licensor with a written agreement that it shall be
bound
by all the terms of this Agreement. This Agreement shall be assignable by
Licensor to any entity controlled by her, and inure to the benefit of and
be
binding upon the successors, legal representative, heirs and assigns of
Licensor. Except as specified in this Section, this Agreement is not
assignable.
8.2 Third-Party
Beneficiaries.
Nothing
in this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto or their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason
of
this Agreement, except as expressly provided in this Agreement.
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8.3 Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance
with,
the laws of the State of New York, without regard to principles of conflicts
of
law.
8.4 Titles
and Subtitles.
The
titles, subtitles and defined terms used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this
Agreement.
8.5 Notices.
All
notices required or permitted hereunder shall be in writing and shall be
deemed
effectively given: (i) upon personal delivery to the party to be notified;
(ii)
when sent by facsimile if sent during normal business hours of the recipient,
or
if not, then on the next business day; (iii) three days after having been
sent
by registered or certified mail, return receipt requested, postage prepaid;
or
(iv) one day after deposit with an internationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be to the addresses as set forth below or at such other
address as a party may designate pursuant to notice given by such party in
accordance with the terms of this section:
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If
to Licensor:
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Xxxxxx
Xxxxx
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c/o
The Knot, Inc.
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000
Xxxxxxxx, 0xx Xxxxx
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Xxx
Xxxx, XX 00000
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With
a copy to:
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Xxxxx
X. Xxxxx, Esq.
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Xxxxxx
& Golden LLP
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0
Xxxx Xxxxxx, 00xx Xxxxx
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Xxx
Xxxx, XX 00000
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Fax:
(000) 000-0000
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If
to the Company:
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The
Knot, Inc.
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Attention:
General Counsel
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000
Xxxxxxxx, 0xx Xxxxx
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Xxx
Xxxx, XX 00000
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Fax:
(000) 000-0000
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8.6 Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either
retroactively or prospectively), only with the written consent of each of
the
parties hereto (or their respective successors or permitted
assigns).
8.7 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8.8 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to
the
subject matter hereto and no party shall be liable or bound to another party
in
any manner by any warranties, representations or covenants except as
specifically set forth herein.
Confidential
8.9 No
Employment Contract.
Neither
the execution of this Agreement nor the performance of any of the Company’s
obligations hereunder shall confer upon Licensor any right to continue in
the
employment of the Company and nor do either constitute an agreement by the
Company to employ or to continue to employ Licensor during the entire, or
any
portion of, the Term.
8.10 Remedies.
The
parties agree that the remedies at law for any material breach or threatened
material breach of this Agreement, including monetary damages, are inadequate
compensation for any loss and that the non-breaching party shall be entitled
to
seek specific performance of this Agreement. The parties hereto waive any
defense to such claim that a remedy at law would be adequate. In the event
of
any actual or threatened material default in, or material breach of, any
of the
terms hereof, the party aggrieved thereby shall have the right to seek specific
performance and injunctive or other equitable relief with respect to its
rights
hereunder, in addition to any remedies available at law.
8.11 Counterparts.
This
Agreement may be executed in any number of counterparts (including by
facsimile), each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date first
written above.
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/s/
XXXXXX XXXXX
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XXXXXX
XXXXX
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THE
KNOT, INC.
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By:
/s/
XXX XXXXXX
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Name:
Xxx Xxxxxx
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Title:
Chairman, Compensation Committee of the Board of
Directors
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Confidential
SCHEDULE
A
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“Ask
Xxxxxx” column (page on Company website and related homepage promotion) -
the Company may not use Xxxxxx Xxxxx’x name, image or likeness in
connection with the columns, but can use the text of the columns
without
those elements.
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Personal
stories and personal photos related to Xxxxxx Xxxxx - the Company
may not
use photos from Xxxxxx Xxxxx’x wedding, but can use the story (which shall
be presented in a manner substantially similar to the current
presentation) and her name in the story.
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Editor
in Chief photos (pages on The Knot, The Nest and The Bump websites
and in
the related magazines) - the Company may not use Xxxxxx Xxxxx’x name,
image (photographic or otherwise) or
likeness.
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Confidential
