EXHIBIT 99.1
LICENSE AGREEMENT
THIS
LICENSE AGREEMENT (hereinafter the "Agreement") is entered into
this
1st day of March, 2005, by and among EF Marketing, LLC., a Florida
limited
liability corporation ("Licensor"), Emerson Fittipaldi
("Fittipaldi"), and
Power2Ship, Inc., a Nevada corporation, and its wholly owned
subsidiaries only
based in the United States and its Territories now or hereinafter
in existence,
(collectively, "Licensee").
Recitals
Whereas, Licensor is authorized to grant licenses to third parties
for
use of the trade name "Fittipaldi", and the name, image and
likeness of
Fittipaldi ("Licensed Property"), the international celebrity and
motorsports
champion;
Whereas, Licensor desires to grant a license for the use of the
Licensed Property in connection with the approved uses to Licensee
upon the
terms and conditions set forth in this Agreement;
Whereas, Licensee desires to have Fittipaldi, a principal of
Licensor,
promote Licensee's business as set forth herein; and
Whereas, Licensee desires to grant an exclusive right to Licensor
for
the use of certain specialized logistical services developed by
Licensee for the
trucking industry in Brazil.
Now, therefore, in exchange of mutual promises and consideration,
the
receipt and value of which is mutually acknowledged, incorporating
the foregoing
recitals, and intending to be legally bound, the parties agree as
follows:
1. Grant of License by Licensor; Description of License.
(a) Licensor hereby grants to Licensee an exclusive license
(the "License") to use the Licensed Property, to market and promote
Licensee's
business as limited to freight transportation industry and
associated logistical
services (collectively, the "Licensed Uses") in the Territory (as
defined in
paragraph 3 below).
(b) In connection with the exploitation of the License,
Licensee may produce and distribute "Licensed Merchandise".
"Licensed
Merchandise" shall mean the items described on Exhibit "A" attached
hereto and
incorporated herein as well as additional items that may be
mutually agreed to
by the parties in writing and added to Exhibit "A" during the term
of this
Agreement.
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2. Term. Subject to the provisions Section 10 of this Agreement,
the
term of this Agreement shall be five (5) years, commencing on the
date of this
Agreement and shall expire on the fifth anniversary of this
Agreement.
3. Territory. For purposes of this Agreement, the term
"Territory"
shall mean the United States and its territories. The Licensee may
use the
License created by this Agreement and engage in the Licensed Uses
only within
the Territory. Notwithstanding the foregoing, Licensee may use the
License
created by this Agreement and engage in the Licensed Uses outside
the Territory
when such uses will not transfer to Licensee's business to vendors
of Licensee's
service outside the Territory and not for promotion to end users of
Licensee's
services.
4. No Assignment or Sub-license.
This Agreement may not be assigned or sub-licensed by Licensee
without the prior written consent of Licensor, which may be denied
in Licensor's
sole discretion, and any assignments or sub-licenses without the
written
approval of Licensor are void and shall have no force or
effect.
5. No Ownership Interest. The License created by this Agreement
does
not grant to Licensee any ownership interest in Licensor, or any of
its shares,
assets or property, including, but not limited to the Licensed
Property, it
merely grants to Licensee a limited and revocable license under the
terms and
conditions set forth in this Agreement. Each party to the Agreement
shall
indemnify and hold harmless the other parties to this Agreement,
and their
respective agents, officers, employees, servants, shareholders,
directors, and
representatives (collectively the "Indemnified Party"), from any
and all claims,
liabilities, damages and costs, including attorneys' fees and costs
at all trial
and appellate levels incurred by the Indemnified Party arising out
of the
ownership or title (in the case of Licensor or Fittipaldi) or
improper use (in
the case of the Licensee) of the Licensed Property.
6. Licensor Approval of Particular Uses.
Licensor shall have the right to review in advance the proper
use of the Licensed Property. Such review shall include, but not be
limited to,
pre-approval of a proof of any advertisement or promotion or any
other intended
use. Licensor will provide written approval or disapproval, in its
sole
discretion, within three (3) business days following receipt of the
proposed
use. If the item is disapproved, the Licensor shall describe the
reason(s) for
the disapproval and the parties shall work together in good faith
in order that
Licensor may provide approval therefor.
7. Consideration.
(a) As consideration for
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(i) the grant of the License, Licensee shall issue to Licensor
promptly upon execution of this Agreement two hundred thousand
(200,000)
unregistered shares of Licensee's common stock ("Common Stock") and
a five-year
warrant granting Licensor with the right to purchase one million
(1,000,000)
shares of Licensee's common stock at an exercise price of fifty
cents (US $.50)
per share, which warrant shall vest at the rate of 200,000 shares
per year on
each annual anniversary of this Agreement commencing one year from
the date of
this Agreement. In the event that this Agreement is terminated for
any reason,
then any unvested portion of the warrant shall terminate and be of
no further
force and effect. Further, in the event that there is a change in
control of
Licensee, defined as an investor or group of investors that
collectively had
ownership of less than 5% of Licensee increasing their ownership to
at least 20%
of Licensee, then any remaining unvested warrants of Licensor shall
immediately
become vested. The shares of common stock issued to Licensor and
underlying the
warrant (collectively the "Registerable Shares") shall have
piggyback
registration rights under the Securities Act of 1933 (the
"Securities Act").
Further, with a view to making available to Licensor the benefits
of Rule 144
(or its successor rule) and any other rule or regulation of the
U.S. Securities
and Exchange Commission that may at any time permit the Licensor to
sell the
Common Stock to the public without registration, the Licensee
covenants and
agrees to: (A) make and keep public information available, as those
terms are
understood and defined in Rule 144, until the earlier of (1) such
date as all of
the Common Stock may be resold without volume limitations in
accordance with
Rule 144(2) under the Securities Act or (2) such date as all of the
Common Stock
shall have been resold and (B) file with the Commission in a timely
manner all
reports and other documents required of the Licensee under the
Securities Act
and under the Securities Exchange Act of 1934. At all times, the
Licensee, at
its expense, shall promptly (within three (3) business days)
effectuate any
actions of third parties within the control of the Licensee who are
necessary to
enable the Common Stock to become freely tradeable and immediately
transferable,
whether pursuant to an effective registration state or Rule 144,
including
without limitation, furnishing the Licensee's transfer agent with
all necessary
consents and legal opinions within three (3) business days of
Licensor
submitting a request for such consents and opinions, together with
standard
supporting documents, to Licensee and its legal counsel. Licensee's
covenants
are material inducements to Licensor to execute this Agreement. In
the event
Licensor has been unable to exercise such piggyback within three
(3) years of
the date of this Agreement, Licensee shall undertake, on one
occasion to
register the Registerable Shares under the Securities Act for
resale and
(ii) the promotion and publicity to be provided by Fittipaldi
pursuant to paragraph 11 of this Agreement, Licensee shall issue to
Fittipaldi
one hundred thousand (100,000) shares of Licensee's common stock
registered
pursuant to the Licensee's Registration Statement on Form S-8
relating to its
2001 Employee Stock Compensation Plan filed on June 4, 2001, as
amended (SEC
File No. 333-62240). Fittipaldi agrees not to resell more than
25,000 of such
shares (either publicly or privately) in any given calendar
month.
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(b) In the event that Licensor refers or develops additional
license agreements or other business for Licensee, then Licensor
shall be paid
the same percentage of net cash flow generated by such additional
license
agreements or other business as defined in Section 4 of the
Exclusive Marketing
Agreement with International Logistics Solutions, Inc. dated
November 24, 2004.
Licensee shall be under no obligation to enter into any such
additional license
agreements or establish any business relationships.
(c) In the event Licensee obtains financing in any form
("Proceeds") from any party originally introduced by Licensor to
Licensee,
Licensee agrees to pay Licensor, upon receipt by Licensee of the
Proceeds, a
finder's fee ("Fee") equal to five (5) percent of Proceeds as
follows: five (5)
percent in cash of any portion of the first one million dollars
($1,000,000.00)
of Proceeds plus four (4) percent in cash and one (1) percent in
shares of
unregistered common stock of Licensee of any portion of the second
one million
dollars ($1,000,000.00) of Proceeds plus three (3) percent in cash
and two (2)
percent in shares of unregistered common stock of Licensee of any
portion of the
third one million dollars ($1,000,000.00) of Proceeds plus two (2)
percent in
cash and three (3) percent in shares of unregistered common stock
of Licensee of
any portion of the fourth one million dollars ($1,000,000.00) of
Proceeds plus
one (1) percent in cash and four (4) percent in shares of
unregistered common
stock of Licensee of any Proceeds over four million dollars
($4,000,000.00). The
number of shares of unregistered shares of common stock of Licensee
to be issued
as part of any such Fee shall be based on the average closing price
of the
shares for the five (5) trading days immediately prior to the
closing of any
such financing. To the extent any Proceeds are paid on a deferred
or installment
basis, Licensor's Fee shall be paid when such Proceeds are actually
received by
Licensee. Licensor agrees that the payment of the Fee to Licensor,
directly or
through its affiliates or assigns, shall be waived if Licensee's
legal counsel
deems it to be a violation of any Federal or state securities or
other law or
regulations. In such event, then Licensee shall procure a second
opinion of an
outside law firm mutually acceptable to the parties on the issue
and shall be
guided by such opinion.
8. Additional Representations, Warranties and Covenants of
Licensee. Licensee represents, warrants and covenants as
follows:
(a) Licensee shall refrain from engaging in any activities
that would adversely affect the reputation of the Licensor or cause
harm to the
name "Fittipaldi" or disrepute to Fittipaldi. Licensee acknowledges
that
"Fittipaldi" is a unique and valuable trade name. Licensee warrants
and
represents that it shall always conduct its business affairs in a
legal and
ethical manner and in such a way to enhance the stature of the
"Fittipaldi"
trade name and Emerson Fittipaldi. Licensee warrants and represents
that it
shall not undertake any activity or proposed use of the Licensed
Property which
will undermine or damage its commercial value.
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(b) Upon the termination of this Agreement, Licensee shall
immediately cease any and all use of marketing information and
materials created
under this Agreement.
(c) Licensee is a corporation duly organized and validly
existing in good standing under the laws of the State of Nevada.
Licensee has
the full legal right and authority to enter into this Agreement and
to undertake
the actions to be performed under this Agreement.
(d) Licensee is not prevented by any other agreement from
entering this Agreement with Licensor.
(e) Licensee further warrants and represents that it has the
requisite expertise, ability, rights and know-how to fulfill its
obligations
under this Agreement.
(f) Licensee shall at all times comply with any and all
applicable laws, statutes, court decisions, administrative rules
and
regulations, in the conduct of its business.
(g) Licensee shall name Fittipaldi, as covered insureds under
all of Licensee's general liability and contingent liability
insurance
policy(ies) within ten (10) business days of executing this
Agreement. Licensee
shall provide a copy of said insurance policy(ies) and instruct the
insurance
companies to provide notice to Licensor of the non-payment or
cancellation of
any policy, and proof that Licensor and its parties have been
listed on said
policy(ies) as covered insureds.
9.
Representations and Warranties of Licensor. Licensor represents
and
warrants as follows:
(a) Licensor is a corporation duly organized and validly
existing in good standing under the laws of the State of Florida.
Licensor has
the full legal right and authority to enter into this Agreement and
to undertake
the actions to be performed under this Agreement.
(b) Licensor has the authority to grant to the Licensee the
License created by this Agreement and that grant of the License to
Licensee will
not violate the rights of any third party.
(c) Licensor has good and valid title to the Licensed
Property. The License Property does not infringe upon the rights of
any third
parties and no third party has infringed upon the Licensed
Property.
(d) Licensor is acquiring common stock and warrants described
in paragraph 7 (a)(i) of this Agreement (the "Securities")
hereunder for
investment for its own acco
