LICENSE
THIS AGREEMENT, is made at North Miami, Florida, as of the 12th day of May,
1997, by and between OFFSHORE RACING TEAM, INC., a corporation organized under
the laws of the British Virgin Islands ("LICENSOR"), and HAWK MARINE POWER,
INC., a corporation organized under the laws of the state of Florida
("LICENSEE"), (hereinafter collectively referred to as "The Parties").
RECITALS
LICENSEE and LICENSOR (hereinafter collectively called "The Parties"), have
read this Agreement (hereinafter called "Agreement") and understand and accept
the terms, conditions, and covenants contained in this Agreement as being
reasonably necessary to maintain LICENSOR's standards and business practices as
it relates to the retaining of entities utilizing the LICENSOR's Marks
(hereinafter called "Marks").
WHEREAS, LICENSOR is the LICENSOR of to the best of its knowledge and
belief of the United States, trademarks, service marks, and business names, and
registrations for such trademarks, service marks and business names ("Marks"),
including those Marks listed on Schedule A;
WHEREAS, LICENSOR is in the business of licensing products and services
bearing such Marks; and
WHEREAS, LICENSEE is desirous of entering into the business of obtaining
rights in intellectual property for use in connection with products and
services, and sublicensing such intellectual property rights to others,
including merchandising such products and services, and desires to obtain rights
in LICENSOR's Marks for these and other purposes;
LICENSEE has investigated and become familiar with LICENSOR and desires
upon the terms and conditions set forth herein to enter into this Agreement.
LICENSEE acknowledges that it is essential to the maintenance of the high
standards of LICENSOR, that LICENSEE maintain and adhere to the standards,
procedures and policies described herein.
THEREFORE, The Parties, intending to be legally bound, for and in
consideration of the mutual covenants hereinafter following, do mutually
covenant and agree:
NOW THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE
LICENSOR grants to LICENSEE an exclusive, world-wide right and license
to use the LICENSOR's current and after acquired Marks in connection with
all goods and services other than the use of said Marks on any form of
water craft. It is understood and agreed that LICENSEE shall have no right
of sublicense hereunder except as provided in this Section
1 hereto. LICENSEE may sublicense its rights hereunder, provided such
sublicensee will restrict it to the uses permitted under this Agreement,
and further provided that said sublicense shall terminate at any time that
this License Agreement hereunder shall terminate. and that said sublicensee
agrees to conform with the terms and obligations of the licensee as
provided in this Agreement.
Any assignment, license or sublicense hereunder will, by its terms, bind
such assignee to the obligations of the LICENSEE hereunder, and refer to or
incorporate by reference this Agreement, and will provide that the LICENSOR
will be deemed a third party beneficiary of such assignment.
2. QUALITY MAINTENANCE
LICENSEE agrees to notify LICENSOR by facsimile, first class mail or
overnight mail of each product or service for which LICENSEE, or a
sublicensee of LICENSEE, intends to use LICENSOR's Marks. Upon reasonable
written request of LICENSOR, which written request shall be made no more
than seven (7) days after receipt of such notification in LICENSOR's
offices, LICENSEE agrees to submit to LICENSOR, specifications or samples
of products or services for which LICENSEE, or a sublicensee of LICENSEE,
intends to use LICENSOR's Marks. If LICENSOR disapproves of any product or
service submitted for review under this Section 2, LICENSOR shall notify
LICENSEE of LICENSOR's disapproval in writing within thirty (30) days of
receipt, in LICENSOR's offices, of such specifications or samples. Such
written disapproval shall set forth in detail:
(1) Each disapproved product or service,
(2) Each defect of each disapproved product or service, and
(3) Non-binding, commercially reasonable suggestions for correcting
each such defect.
LICENSOR shall use good faith and fair dealing in approving or
disapproving of any product or service submitted for review. LICENSEE
acknowledges that it is essential to the maintenance of the high standards
of LICENSOR that LICENSEE shall maintain and adhere to the standards,
procedures and policies described herein. If the LICENSOR feels that the
proposed use of the product is inconsistent with the standards which the
LICENSOR has established for the use of these products, then the LICENSOR
shall have the right to reject LICENSEE's right to use said product.
LICENSOR agrees that approval of all products submitted shall not be
unreasonably withheld. Once LICENSOR is given approval of specific products
and services and has notified LICENSEE of such approval, no further notice
need to be given to LICENSOR from LICENSEE, provided the products or
services are not substantially changed.
In addition to providing the information hereunder, the LICENSEE shall
also provide copies of all license agreements executed between the LICENSEE
and any sublicensee, so
that the LICENSOR can confirm said license agreements conform with the
terms of this Agreement.
Once LICENSEE has given approval of specific products and services,
and notified LICENSOR of such approval, no further notice need not be given
to LICENSOR from LICENSEE provided the products or services are not
substantially changed.
3. INFRINGEMENT PROCEEDINGS
Upon notice by LICENSEE of a third party infringement of LICENSOR's
Marks, LICENSOR shall take reasonable efforts to protect the Marks against
any third party infringer at the expense of LICENSOR. LICENSEE may if it
elects to seek injunctive relief against the alleged third party in the
name of LICENSOR. LICENSOR shall notify LICENSEE of any enforcement of
LICENSOR's Marks and LICENSEE shall have the right to participate, and
consult with LICENSOR, in any enforcement action. Notwithstanding this
Section 3, LICENSEE retains all rights available to LICENSEE under law to
sue for infringement and unfair competition. Not withstanding the
foregoing, LICENSEE shall take reasonable efforts during the term of this
Agreement to protect the Marks for any other use other than for boats.
4. TERM
A. Initial Term
The initial term of this Agreement shall be for a period of 120
months, commencing on the date first mentioned above, subject to the
tenns and conditions set forth herein.
B. Renewal Option
LICENSEE shall have the option to renew this Agreement for two (2)
additional periods of sixty (60) months each. In all cases, renewal
shall require that: (1) LICENSEE not be in violation of this Agreement
or any other Agreement between LICENSOR and LICENSEE; and (2) LICENSEE
give written notice of their election to renew not less than six (6)
months prior to the end of the term then in effect. If any rules or
laws modifies, alters or amends all or part of the renewal provisions,
then such provisions shall be modified, altered or amended
accordingly, so as to be in full compliance with such rules and laws.
C. Subsequent Renewal Options
Subsequent to the periods as mentioned in Paragraph 4B hereto,
LICENSEE shall have the option to renew this Agreement for two (2)
additional periods of sixty (60) months each, if (1) LICENSEE not be
in violation of this Agreement or any other Agreement between LICENSOR
and LICENSEE; (2) LICENSEE give written
notice of their election to renew not less than six (6) months prior
to the end of the term then in effect; and (3) during the last term
then in effect LICENSEE shall have paid to LICENSOR pursuant to
Paragraph 5(A) and (B) a minimum of one hundred thousand ($100,000)
dollars.
This Agreement shall continue in force and effect for as provided for
in Section 4 herein and subject to all other terms and conditions set forth
in this Agreement.
5. ROYALTY
A. In the event LICENSEE sublicenses rights to the Mark, LICENSEE shall
pay to LICENSOR on a quarterly basis (the "Period"), ten (10%) percent
of the gross royalties or other revenues collected by LICENSEE during
such Period. Said payment shall be made no later than fifteen (15)
days after the end of Period, at the offices of LICENSOR.
B. In the event, LICENSEE on its own behalt manufactures, sells or
distributes products or services using the LICENSOR's Mark, LICENSEE
shall pay to LICENSOR on a quarterly basis (the "Period"), two and
one-half (2- 1/2%) percent of the gross revenues collected by LICENSEE
for each product or service for which LICENSEE, uses LICENSOR's Mark.
Said payment shall be made no later than fifteen (15) days after the
end of the then applicable Period, at the offices of LICENSOR. Section
5(B) hereof when applied, shall be in place of and not in addition to
section 5(A) hereof.
C. During the term hereof, LICENSEE shall deliver to LICENSOR a Report
(the "Report") of all monies received by LICENSEE during each Period,
no later than fifteen (15) days of the end of the then applicable
Period. The Report shall fully disclose the amount of income, sales,
royalties, revenues or other income collected by use of the LICENSOR's
Mark for the then applicable Period.
D. As further inducement and a condition hereof, to induce LICENSOR into
entering into this Agreement, LICENSEE shall pay to LICENSOR a one
time fee of two million restricted post-split (2,000,000) shares of
Hawk Marine Power, Inc. common stock on or before the signing of this
Agreement.
LICENSEE shall not be obliged to pay any further minimum royalties or
monies to LICENSOR except as explicitly required in this Section 5.
6. DEFAULT
In the event either LICENSEE is in default in the performance of any
of the terms of this Agreement, including, but not limited to, the acts set
forth hereinafter, defaultee, in addition to all remedies that defaultee
has available to it at law or in equity, may declare this Agreement
automatically terminated, unless such default is cured within ten (10) days
after written notice thereof (as provided for herein) from defaultee to
defaulter, unless the default
is of such a nature that more than (10) days are reasonably required to
effect a cure. In such event, defaulter shall commence to cure the default
within said (10) day period, if any, designated by defaultee as the
allowable additional time within which the cure must be accomplished.
7. NO JOINT VENTURE
Performance by the parties under this Agreement shall be as
licensor-licensee. No product or service developed pursuant to the terms of
this Agreement, and no provision contained herein, shall be construed to
constitute a joint venture or partnership between the parties, nor shall
either party act as the agent for each other for any purpose.
8. NOTICES
All notices, requests, demands, payments, consents and other
communications hereunder shall be transmitted in writing and shall be
deemed to have been duly given when sent by registered certified United
States mail, Postage prepaid, or other form of delivery which provides for
a receipt, and sender is in receipt of a delivery notice, signed by
recipient, if addressed as follows:
LICENSEE: HAWK MARINE POWER, INC
3025 N.E. 188th Street
Aventura, Florida 33180
LICENSOR: OFFSHORE RACING, INC.
Hirzel House, Smith Street
St. Peter Port, Guernsey
Channel Islands, GY1 2NG
A. Address Change
Either of The Parties may change his address by giving notice of such
change of address to the other, but must comply with all other terms of
this Agreement.
B. Notice by Telegram or Facsimile.
In the case of any notice required to be given by The Parties to each other
telegraphic notice or facsimlie transmission, shall not be sufficient
notice hereunder.
9. ADDITIONAL ACTIONS
The Parties agree to execute such other documents and perform such
further acts as may be necessary or desirable to carry out the purposes of
this Agreement.
10. HEIRS. SUCCESSORS. AND ASSIGNS
This Agreement shall be binding and inure to the benefit of the parties,
their heirs, successors, and assigns.
11. ENTIRE AGREEMENT
The undersigned acknowledges that they, and each of them, have read
this agreement in full; are cognizant of each and every one of the terms
and provisions hereof and are agreeable thereto; that no representations or
agreements, whether oral or written, except as hereinafter set forth, have
been made or relied upon; that any and all prior agreements or
understandings between the parties, relating to the subject matter of this
Agreement, whether oral or written are automatically canceled by the
execution of this agreement; that the signatures affixed hereto were
affixed as the wholly voluntary act of the persons who signed this
agreement; and that the terms and provisions of this agreement cannot be
changed or modified unless in writing signed by an authorized corporate
officer, director or agent of LICENSEE and LICENSOR. No modification or
amendment of any provision of this Agreement shall be construed as a
waiver, breach or cancellation of any other provision.
This Agreement constitutes the sole agreement between the LICENSOR and
LICENSEE hereto pertaining to the subject matter described herein, and
effective as of the date of this Agreement.
12. WAIVER OF RIGHTS
Failure by either of The Parties to enforce any rights under this
Agreement shall not be construed as the waiver of such rights. Any waiver,
including waiver of default, in any one instance, shall not constitute a
continuing waiver or a waiver in any other instance. Any acceptance of
money or other performance by either of The Parties, shall not constitute a
waiver of any default, except as to the payment of the particular payment
or performance so received.
13. VALIDITY OF PARTS
Any invalidity of any portion of this Agreement shall not affect the
validity of the remaining portion, and unless substantial performance of
this Agreement is frustrated by any such invalidity, this Agreement shall
continue in effect.
14. HEADINGS
The headings used herein are for purposes of convenience only and
shall not be used in interpreting the provisions hereof As used herein, the
male gender shall include the female and neuter genders; the singular shall
include the plural, the plural, the singular and termination shall include
expiration.
15. EXECUTION BY THE PARTIES
This Agreement shall not be binding on either of The Parties, unless
and until it shall have been accepted and signed by authorized officers or
directors of LICENSEE and LICENSOR.
16. ATTORNEY'S FEES
If either of The Parties hereto commences an action against the other,
arising out of or in connection with this Agreement, the prevailing of The
Parties shall be entitled to have and recover from the other Party its
reasonable attorneys' fees and costs at all trial and appellate levels.
17. ASSIGNMENT
Either party may delegate any obligation under this Agreement or
assign this Agreement or any interest or right hereunder without the prior
written consent of the other and any such assignment or transfer may not be
null and voided.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida. Any provision of this Agreement which may
be determined by a court of competent jurisdiction to be prohibited or
nonenforceable in any jurisdiction shall, as to that jurisdiction, be
effective to the extent of the prohibition or nonenforceability, without
invalidating the remaining provisions of this Agreement.
19. NO PROJECTIONS OR REPRESENTATIONS
The Parties acknowledge and represent that no projections or
representations regarding the amount of income, sale, or profits they can
expect to eam or receive by virtue of this Agreement, has been received
from either of The Parties. The Parties acknowledge that no representations
or warranties inconsistent with this Agreement were made to induce each
other to execute this Agreement.
The Parties acknowledge that neither of the Parties nor any other
person can guarantee the success of the business. The undersigned, by
signing this Agreement, acknowledge that they have read same and that it
has been requested to state in writing hereafter any terms, claims,
covenants, promises, or representations, including representations as to
any income, sales, or profit projections, that were made by either of the
parties or its representatives contrary to the provisions of this
Agreement, including the persons making same, the location, and date
thereof
20. ACKNOWLEDGMENTS
LICENSEE and LICENSOR have all requisite authority to enter into this
Agreement, whether arising under applicable Federal or State laws, rules or
regulations, to which either of The Parties may be subject to.
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OFFSHORE RACING, INC. HAWK MARINE POWER, INC.
/s/ Michael W. Macey /s/ Craig N. Baffle
By: Michael W. Macey By: Craig N. Baffle
Its: Director Its: President