Ex. 10.3-8
EXHIBIT 10.3
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This Intellectual Property License Agreement (the "Agreement") is made
effective as of December 20, 2000 (the "Effective Date") between ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Attorneys at Law, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Barbereche
("Licensor") and Win or Lose Acquisition Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
WHEREAS, the Licensor has developed the unique and novel concept, structure and
disclosure documentation for a fully integrated offering under the Securities
Act of 1933 for the stock of a blank check company; and
WHEREAS, the Licensor has developed protocols for the sale of the
securities described in the disclosure documentation and the implementation of
the associated business methods and plan of operations; and
WHEREAS, the named partners of the Licensor have organized and capitalized
the Licensee for the primary purpose of registering its securities for sale to
the public in conformity with the disclosure documentation, selling its
securities to the public in conformity with the marketing protocols and
implementing the business methods and plan of operations described in the
disclosure documentation; and
WHEREAS, the Licensor and Licensee wish to formalize their agreements and
understandings with respect to the ownership of the intellectual property that
will form the basis for the Licensee's proposed Form S-1 Registration Statement
under the Securities Act of 1933 (the "Registration Statement");
NOW, THEREFORE, In consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
Article I
Description of Licensed Materials
The disclosure documentation, offering protocols, business methods and
plan of operations that are the subject of this Agreement shall generally
consist of original works of authorship prepared by the Licensor, which include
the following specific elements and are hereinafter referred to as the "Licensed
Materials:"
1. A complete draft of a Form S-1 Registration Statement under the
Securities Act of 1933 for a blank check company that proposes
to conduct a fully integrated registered offering of securities
pursuant to Securities and Exchange Commission Rule 419 (the
"Registration Statement");
2. A complete draft of the prospectus that forms a part of the
Form S-1 Registration Statement including the financial
statements and subscription documents incorporated therein (the
"Prospectus");
3. Complete drafts of any additional agreements or other documents
that are required to be filed as exhibits to the Form S-1
Registration Statement (the "Exhibits"); and
4. Any changes, modifications or amendments to the Registration
Statement, Prospectus or Exhibits arising from pre-effective
amendments to the Registration Statement or any of the
documents included or incorporated therein.
To the extent that Licensor now has or hereafter acquires any other or
additional copyrights, trademarks, service marks, patent rights or other
intellectual property rights that relate to the disclosure documentation,
offering protocols, business methods and plan of operations embodied in the
Licensed Materials, all such intellectual property rights shall be subject to
the terms of this Agreement with the same force and effect as if expressly
identified herein. Licensee acknowledges that exclusive title to the copyright
associated with the authorship of the Licensed Materials, together with any
other or additional trademarks, service marks, patent rights or other
intellectual property rights that relate in any way to the Licensed Materials is
and shall remain vested with Licensor. Licensee shall not have any right, title
or interest in the Licensed Materials except as expressly set forth in this
Agreement.
Article II
Grant of License
Licensor hereby grants Licensee a worldwide non-exclusive; perpetual,
royalty-free license to use the Licensed Materials for the purpose of creating
one or more documents (the "Derivative Works") that will be used by the Licensee
in connection with the registration of its proposed public offering of
securities under the Securities Act of 1933, the satisfaction of its reporting
obligations under the Securities Exchange Act of 1934 and the implementation of
the offering protocols, business methods and plan of operations embodied in the
Licensed Materials. Without limiting the generality of the foregoing, the
Licensee is expressly authorized to:
1. Use all or any part of the Licensed Materials in connection
with the preparation of a Form S-1 registration statement under
the Securities Act of 1933, including the Prospectus, Exhibits
and other documents included therein;
2. Use all or any part of the Licensed Materials in connection
with the preparation of any required pre-effective or
post-effective amendments to the Licensee's Form S-1
Registration Statement;
3. Use all or any part of the Licensed Materials in connection
with the preparation of any subsequent reports or proxy
statements that the Licensee may be required to file under the
Securities Exchange Act of 1934 and that are based in whole or
in part on the Licensed Materials;
4. File the Derivative Works with the Securities and Exchange
Commission, other securities regulatory authorities, the
National Association of Securities Dealers, Inc., domestic or
foreign securities exchanges and other governmental or
self-regulatory organizations that are or may be directly or
indirectly involved in the regulation of the securities
industry;
5. Use, display, reproduce, translate into other languages,
exploit, disseminate, and distribute complete and accurate
copies of the Derivative Works in accordance with the rules and
regulations of the Securities and Exchange Commission and other
securities regulatory authorities;
6. Publish, disseminate and otherwise distribute an unlimited
number of complete and accurate copies of the Derivative Works
in conformity with the rules of the Securities and Exchange
Commission and established practices in the securities
industry; and
7. Grant a general authorization that will permit Authorized
Users, including but not limited to the Securities and Exchange
Commission, other securities regulatory authorities, brokers,
dealers, underwriters, third-party information disseminators
and others, to engage in the unrestricted distribution and
dissemination of complete and accurate copies of the Derivative
Works in conformity with the rules of the Securities and
Exchange Commission and established practices in the securities
industry.
Article III
Delivery of Licensed Materials to Licensee
Licensor will provide the Licensed Materials to the Licensee in the
following manner:
1. File Transfer. Copies of the Licensed Materials will be
provided to the Licensee through electronic transfer, by means
of File Transfer Protocol or otherwise.
2. Physical Media. Copies of the Licensed Materials will be
provided to the Licensee on digital computer disk or other
electronic media for use on the networks and workstations
maintained by Licensee and its Authorized Users.
3. Network Access. The Licensed Materials will be stored at one or
more Licensor locations in digital form accessible by
telecommunications links between such locations and the
networks of Licensee and its Authorized Users.
4. Printed Copies. Copies of the Licensed Materials will be
provided to the Licensee in printed form for use and copying by
Licensee and its Authorized Users.
Article IV
Creation of Derivative Works
Licensee is expressly authorized to create one or more Derivative Works
based on the Licensed Materials, provided that:
1. Such Derivative Works may only be used by the Licensee in
connection with the registration of its proposed public
offering of securities under the Securities Act of 1933, the
satisfaction of its reporting obligations under the Securities
Exchange Act of 1934 and the implementation of the offering
protocols, business methods and plan of operations embodied in
the Licensed Materials;
2. All pre-effective amendments to the Licensee's Form S-1
Registration shall be prepared by the Licensor, or outside
legal counsel selected and paid by the Licensor, and title to
any additional copyrights or other intellectual property
arising from such pre-effective amendments shall, subject to
the terms of this Agreement, be vested exclusively in the
Licensor; and
3. Licensee expressly agrees and acknowledges that any additional
copyrights arising from such pre-effective amendments shall not
constitute a work for hire or confer on Licensee any rights
that vary in any material respect from the License granted by
this Agreement.
Article V
Authorized Users.
The Authorized Users of complete and accurate copies of the Derivative Works
are:
1. Full and part time employees (including attorneys, accountants,
advisors, consultants and independent contractors) of Licensee,
regardless of the physical location of such persons;
2. The U.S. Securities and Exchange Commission, other domestic or
foreign securities regulatory authorities, and all employees
(including attorneys, accountants, advisors, consultants and
independent contractors) thereof.
3. The National Association of Securities Dealers, Inc., every
domestic or foreign stock exchange and every domestic or
foreign self regulatory organization that regulates or purports
to regulate any aspect of the securities business, and all
employees (including attorneys, accountants, advisors,
consultants and independent contractors) thereof.
4. Every NASD member broker-dealer and every domestic or foreign
broker dealer who is not an NASD member but is otherwise
licensed or authorized to act as a broker-dealer in any
domestic or foreign jurisdiction, and all employees (including
attorneys, accountants, advisors, consultants and independent
contractors) thereof.
5. All information services that provide printed or electronic
copies of documents, summary information, technical analysis,
investment advice or other data or information relating to
companies that have registered their securities under the
Securities Act of 1933 or the Securities Exchange Act of 1934,
and all employees (including attorneys, accountants, advisors,
consultants and independent contractors) thereof.
6. Every person, firm or legal entity, however constituted, that
has a legal or equitable right to receive or review printed or
electronic copies of documents, summary information, technical
analysis, investment advice or other data or information
relating to companies that have registered their securities
under the Securities Act of 1933 or the Securities Exchange Act
of 1934, and all employees (including attorneys, accountants,
advisors and independent contractors) thereof.
7. Every other person or legal entity, however constituted, that
has an interest in receiving or reviewing printed or electronic
copies of documents, summary information, technical analysis,
investment advice or other data or information relating to
companies that have registered their securities under the
Securities Act of 1933 or the Securities Exchange Act of 1934.
Article VI
Authorized Uses.
Authorized Users may use complete and accurate copies of the Derivative Works,
or any portion thereof, for all purposes that are consistent with the Fair Use
Provisions of United States and international law, or permitted by the express
terms of this Agreement. Nothing in this Agreement shall be construed as
restricting or otherwise limiting any Authorized User's rights under the Fair
Use provisions of United States or international law to use complete and
accurate copies of the Derivative Works, or any portion thereof
Without limiting the generality of the foregoing, any Derivative Works
that are based in whole or in part on Licensed Materials may be used for
purposes of criticism, analysis, comment, news reporting, education,
scholarship, research and other reasonable purposes as follows:
1. Display. Authorized Users shall have the right to
electronically display complete and accurate copies of any
Derivative Works that are based in whole or in part on Licensed
Materials.
2. Digitally Copy. Authorized Users may download and digitally
copy complete and accurate copies of any Derivative Works that
are based in whole or in part on Licensed Materials.
3. Print Copy. Licensee and Authorized Users may print an
unlimited number of complete and accurate copies of any
Derivative Works that are based in whole or in part on Licensed
Materials.
4. Dissemination Fees. Authorized Users may charge a reasonable
fee for services rendered in connection with the printing,
publication, distribution or other dissemination of complete
and accurate copies of any Derivative Works that are based in
whole or in part on Licensed Materials.
5. Databases. If all or any portion of the Derivative Works are
included in a database, compilation, or collection of
information, Authorized Users shall be permitted to extract or
use information contained in the Derivative Works for
criticism, analysis, comment, news reporting, education,
scholarship, research and other reasonable purposes, including
extraction and manipulation of information for the purpose of
illustration, explanation, example, comment, criticism,
teaching, research, or analysis.
6. Electronic Links. Licensee and Authorized Users may provide
electronic links to complete and accurate copies of any
Derivative Works from web page(s), and are encouraged to do so
in ways that will increase the usefulness and maximize the
availability of complete and accurate copies of the Derivative
Works.
7. Caching. Licensee and Authorized Users may make such local
digital copies of the Derivative Works as may be necessary to
ensure efficient use by browsers or other computer software.
8. Indices. Licensee and Authorized Users may use summaries of and
extracts from the Derivative Works in connection with the
preparation of integrated database indices and abstract and
keyword indices.
9. Information Sharing. Authorized Users may transmit to third
parties, in hard copy or electronically, all or any portion of
the Licensee's Registration Statement, prospectus and other
reports and proxy statements that are based in whole or in part
on Licensed Materials.
Article VII
Limitations on Use of Licensed Materials
Licensee shall not license anyone to use the Licensed Properties for any purpose
or knowingly permit anyone other than full and part time employees of the
Licensee (including attorneys, accountants, advisors, consultants and
independent contractors) to use the Licensed Materials. Licensee shall not
knowingly permit anyone other than Authorized Users to use the Derivative Works.
Licensee shall include conspicuous copyright or other notices in each
Derivative Work that is based in whole or in part on Licensed Materials, and the
Licensor shall have the sole and exclusive authority to approve or disapprove
the form and placement of such notices
No Authorized User shall be permitted to copy all or any substantial
portion of the Derivative Work and then use such copied material as the basis
for a registration statement or other SEC report that is filed on behalf of any
person other than the Licensee.
Except as specifically permitted in this Agreement, the Licensee and the
Authorized Users may not use the Licensed Materials or the Derivative Works for
commercial purposes, including but not limited to the bulk reproduction,
distribution or dissemination of the Licensed Materials in any form.
Article VIII
Assignment and Transfer
Neither party may assign, directly or indirectly, all or part of its
rights or obligations under this Agreement without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the generality of the foregoing, all of the Licensee's rights
and responsibilities under this Agreement shall, in connection with the closing
of a business combination of the type contemplated by the Licensed Materials,
inure to the benefit of the combined companies, without regard to the legal form
or structure of the transaction.
Article IX
Governing Law
This Agreement shall be interpreted and construed according to, and governed by,
the laws of the United States of America and the State of Delaware, excluding
any such laws that might direct the application of the laws of another
jurisdiction. The federal or state courts located in the states of Delaware
and/or Florida shall have jurisdiction to hear any dispute under this Agreement.
No provision of this Agreement shall be construed in a manner that would be
inconsistent with the Licensee's legal duty to conduct all of its proposed
activities in compliance with applicable state and Federal laws, the Rules and
Regulations of the Securities and Exchange Commission and established practice
in the securities industry.
Article X
Dispute Resolution
In the event any dispute or controversy arising out of or relating to this
Agreement, the parties agree to exercise their best efforts to resolve the
dispute as soon as possible. While seeking a resolution of any such dispute, the
parties shall, without delay, continue to perform their respective obligations
under this Agreement that are not affected by the dispute.
Arbitration. Any controversies or disputes arising out of or relating to
this Agreement shall be resolved by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American Arbitration
Association. The parties shall endeavor to select a mutually acceptable
arbitrator knowledgeable about issues relating to the subject matter of this
Agreement. In the event the parties are unable to agree to such a selection,
each party will select an arbitrator and the arbitrators in turn shall select a
third arbitrator. The arbitration shall take place at a location that is
reasonably centrally located between the parties, or otherwise mutually agreed
upon by the parties.
All documents, materials, and information in the possession of each party
that are in any way relevant to the claim(s) or dispute(s) shall be made
available to the other party for review and copying no later than 15 days after
the notice of arbitration is served.
The arbitrator(s) shall not have the authority, power, or right to alter,
change, amend, modify, add, or subtract from any provision of this Agreement or
to award punitive damages. The arbitrator shall have the power to issue
mandatory orders and restraining orders in connection with the arbitration. The
award rendered by the arbitrator shall be final and binding on the parties, and
judgment may be entered thereon in any court having jurisdiction. The agreement
to arbitration shall be specifically enforceable under prevailing arbitration
law. During the continuance of any arbitration proceeding, the parties shall
continue to perform their respective obligations under this Agreement.
Article X
Miscellaneous
This Agreement constitutes the entire agreement of the parties and
supersedes all prior communications, understandings and agreements relating to
the subject matter hereof, whether oral or written.
No modification or claimed waiver of any provision of this Agreement shall
be valid except by written amendment signed by authorized representatives of
Licensor and Licensee.
If any provision or provisions of this Agreement shall be held to be
invalid, illegal, unenforceable or in conflict with the law of any jurisdiction,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Waiver of any provision herein shall not be deemed a waiver of any other
provision herein, nor shall waiver of any breach of this Agreement be construed
as a continuing waiver of other breaches of the same or other provisions of this
Agreement.
All notices given pursuant to this Agreement shall be in writing and may
be hand delivered, or shall be deemed received within 5 days after mailing if
sent by registered or certified mail, return receipt requested. If any notice is
sent by facsimile, confirmation copies must be sent by mail or hand delivery to
the specified address. Either party may from time to time change its Notice
Address by written notice to the other party.
If to Licensor: If to Licensee:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Win or Lose Acquisition Corporation
Attorneys at Law ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chateau de Barbereche ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Switzerland 1783 Barbereche
IN WITNESS WHEREOF, the parties have executed this Agreement by their
respective, duly authorized representatives as of the date first above written.
▇▇▇▇▇▇▇▇ & Fefer, Attorneys at Law Win or Lose Acquisition Corporation
By: /s/ By: /s/
--------------------------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Partner ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President