Exhibit 10.2
This Amended and Restated Master License
Agreement (this “Agreement”) is made the [ ] day of
November, 2006 between Sea Sun Capital Corporation, a Delaware
corporation (the “Licensor”) and Sea Sun Enterprises
Incorporated, a Barbados corporation (the
“Licensee”).
WHEREAS, the Licensor is the owner of the
Intellectual Property identified in Schedule A hereto;
and
WHEREAS, the Licensor has developed a business
operating model for establishment and operation of business outlets
in warm weather tourist destination locations which offer and sell
Eco-Tours to consumers and others using the Licensor’s
SEA SPI I TM , SEA SPI II TM
and other watercraft developed and to be developed by
the Licensor (the “Business”); and
WHEREAS, the Licensor and the Licensee entered
into a Master License Agreement made as of the 29th day of June,
2006 (the “Original Agreement”) pertaining to
Licensee’s use of the Intellectual Property in connection
with its operation of the Business; and
WHEREAS, the Licensor and the Licensee desire to
amend and restate the Original Agreement in the manner and to the
extent provided herein,
NOW, THEREFORE, inconsideration of the
foregoing, and the mutual terms and provisions hereinbelow set
forth, it is agreed, as follows:
1.
Definitions
. In this Agreement the following
terms shall have the following meanings:
(a) Agreement has the meaning attributed thereto in the
preamble.
(b) Confidential Information
has the meaning attributable thereto
in Section 10(b).
(c) Cruise Line means any owner or operator of a fleet of cruise
ships that convey passengers to warm water ocean destinations,
e.g. , Carnival Cruise Lines, Royal Caribbean Cruises Ltd.
and Norwegian Cruise Line.
(d) Eco-Tour means a supervised ecologically friendly
excursion by a consumer or other customer of a Partner Association
member, the Licensee or a Water Sports Operator on a SEA SPI
I or SEA SPI II .
(e) Intellectual Property
means all trademarks (including the
name “Sea Sun”), patents, copyrights and/or
applications for trademarks, patents and copyrights, reissues,
modifications, divisions and extensions thereof which are now held
or hereafter acquired by the Licensor in any and all jurisdictions
in connection with the Business all as more particularly described
and set forth in Schedule “A” annexed
hereto.
(f) Licensee Financed Location
means a Location which has been
established by the Licensee without any Licensor-provided financing
and for which the Licensor has not paid any Set-Up Fee to the
Licensee.
(g) Licensor Financed Location
means a Location which has been
established by the Licensee with Licensor-provided financing and/or
for which the Licensor has paid a Set-Up Fee to the
Licensee.
(h) Licensor’s Trademarks
has the meaning attributable thereto
in Section 6(b).
(i) Location means an Eco-Tour business operating outlet
approved by the Licensor at which a Partner Association, the
Licensee or a Water Sports Operator offers and sell Eco-Tours to
consumers.
(j) Location Agreement Effective Date
means the date specified as such in
the Location Agreement or, if no such date is specified, the date
when sales of Eco-Tours are first offered to the public at the
Location in question.
(k) Location Agreement Initial Term
has the meaning attributable thereto
in Section 5(d)(i)(1).
(l) Location Agreement Renewal Term
has the meaning attributable thereto
in Section 5(d)(i)(2).
(m) Location Agreement Term means the Location Agreement Initial Term
together with all Location Agreement Renewal Terms.
(n) Loss has the meaning attributable thereto in Section
8(a).
(o) Partner Organization means any business entity, association or other
organization with whom the Licensor has entered into an agreement
providing for the rental of Sea Spi I and/or Sea Spi
II watercraft by the Licensor to the members, owners,
partners, associates or affiliates thereof, e.g. , The
Professional Association of Diving Instructors.
(p) Renewal Term has the meaning attributable thereto in Section
9(b).
(q) Replacement License has the meaning attributable thereto in Section
5(d)(vi).
(r) Set-Up Fee means the amount payable by the Licensor to the
Licensee for trailers and dollies, boat storage facilities,
signage, brochures, initial marketing and miscellaneous items in
order to prepare a Location for commencement of
operations.
(s)
Sea Spi I and Sea Spi
II means the
electrically powered personal watercraft bearing such names which
are manufactured, distributed and sold by the Licensor.
(t) Term has the meaning attributable thereto in Section
9(a).
(u) Water Sports Operator means a person or business entity which has
entered into a sublicense or other contract with the Licensee to
offer and sell Eco-Tours at one or more Locations.
2.
Grant of Rights
(a) Licensing and Sublicensing
. Subject to the provisions of this
Agreement, the Licensor hereby grants to the Licensee:
(i) the exclusive, non-transferable, worldwide
right and license to operate the Business at Locations approved by
the Licensor and to use the Intellectual Property in connection
therewith; and
(ii) the right and license to enter into sublicenses
with Water Sports Operators, in the form annexed hereto as Schedule
B, regarding the operation of the Business and use of the
Intellectual Property at specified Locations in accordance with the
terms and provisions thereof.
(b) Exclusions . The rights and licenses granted herein are
subject to the following exclusions and reservations:
(i) Personal Watercraft Sales
. The licenses conferred under this
Agreement shall not prohibit the Licensor from selling Sea Spi
I and/or Sea Spi II watercraft to Cruise Lines or any
other person or entity, provided , that , such
purchasers shall not employ such watercraft in connection with the
offer and sale of Eco-Tours.
(ii) Partner Organizations . The licenses conferred under this Agreement
shall not prohibit the Licensor from renting Sea Spi I
and/or Sea Spi II watercraft to the members, owners,
partners, associates or affiliates of any Partner Organization,
provided , that , the party renting such watercraft
shall not employ them in connection with the offer and sale of
Eco-Tours.
3.
Licensor’s
Responsibilities .
(a) Manufacture and Delivery of
Watercraft . The Licensor
shall cause reputable watercraft manufacturers to manufacture
Sea Spi I and Sea Spi II watercraft in sufficient
quantities to provide for the needs of each Location. The Licensor
shall deliver, or shall cause such manufacturers to deliver the
watercraft to their assigned Locations.
(b) Training and Assistance Regarding the
Business . The Licensor
shall furnish training to the Licensee with regard to the operation
of the Business. The Licensor shall advise the Licensee from time
to time regarding the operation of the Business at the Locations.
In addition, the Licensor shall furnish guidance to the Licensee
with respect to:
(i) standards, specifications and operating
procedures and methods to be utilized by the Licensee and its
sublicensees in connection with the conduct of the Business at the
Locations;
(ii) purchasing products, equipment, signs,
materials and supplies to be employed in the operation of the
business; and
(iii) advertising and marketing programs.
(c) Protection of Intellectual Property
. The Licensor shall take such
actions as it deems necessary and advisable to protect and enforce
its interests in the Intellectual Property.
4.
Licensee’s
Responsibilities .
(a) General . The Licensee shall use its best efforts to
promote the Business at each Location.
(b) Identification of Suitable Locations
. The Licensee shall perform such
actions as shall be reasonably necessary to determine suitable
venues for the establishment of Locations throughout the
world.
(c) Staffing . The Licensee shall hire, train and properly
supervise a staff of area managers and other personnel who shall be
responsible for:
(i) identifying suitable Location
venues;
(ii) identifying Water Sports Operators to operate
the Business and offer and sell Eco-Tours at various Locations as
Licensee’s sublicensees;
(iii) providing suitable training to Water Sports
Operators and their personnel with regard to the operation of the
Business at, and the maintenance of the Sea Spi I and
Sea Spi II watercraft assigned to, each Location;
and
(iv) undertaking to create, acquire and provide
initial marketing programs and materials at each Location, and/or
supervising the efforts of third party providers of marketing
materials and services, in connection with their provision of such
initial marketing programs.
(d) Coordination of Equipment Delivery
. The Licensee shall coordinate with
the Licensor in connection with the transport and delivery of the
Sea Spi I and Sea Spi II watercraft to be
operated at each Location.
(e) Delivery of Products and Materials
. The Licensee shall be responsible
for the delivery of all products and materials to be employed in
connection with the operation of the Business at each
Location.
(f) Equipment Maintenance . The Licensee shall use its best efforts to
maintain, or to cause its sublicensees to maintain, all Sea Spi
I and Sea Spi II watercraft in proper working
condition.
5.
Location Agreements
. Each Location shall be operated
by the Licensee or by a Water Sports Operator who has entered into
a sublicense pertaining to its operation thereof. The terms,
covenants and conditions pertaining to the operation of each
Location shall be governed by the terms of this Section 5 and by
the specific terms of the Location Agreement to be executed by the
Licensor and the Licensee with respect to such Location. Each such
Location Agreement shall be in the form annexed hereto as Schedule
C, and to the extent that any of the terms set forth in a Location
Agreement shall conflict with the terms set forth in this Section
5, the terms of the Location Agreement shall govern the resolution
of such conflict.
(a) Location Approval and Start-Up Costs
. No Location proposed by the
Licensee shall be established unless and until the Licensor accepts
such proposal. All Locations that Licensor, upon its own
initiative, decides to establish, or that the Licensee proposes and
the Licensor accepts, shall be Licensor Financed Locations, unless
the Location Agreement provides otherwise.
(b) Licensor Financed Locations
.
(i) Set-Up Fee . The Licensor shall pay a Set-Up Fee to the
Licensee with regard to each Licensor Financed Location. The amount
of the Set-Up Fee shall be $35,000 per Location unless otherwise
specified in the Location Agreement.
(ii) License Fee . In consideration of the licenses granted to
the Licensee hereby, during the Location Agreement Initial Term set
forth in the Location Agreement, unless otherwise provided therein,
the Licensee shall pay a monthly license fee to the Licensor of
$275 for each Sea Spi I and $550 for each Sea Spi
II assigned to a Location. All such payments shall be made on
the first day of each month of the Location Agreement Initial Term
any Location Agreement Renewal Term by wire transfer of immediately
available funds to such bank account as may be designated by the
Licensor. In the event that a Location Agreement provides for any
renewal thereof, the amount of the monthly licensee fee to be paid
during any such Location Agreement Renewal Term shall be determined
in the manner provided in the Location Agreement.
(iii) Boat Rental Fee . In consideration for the Licensee’s use,
either directly, or through a Water Sports Operator sublicensee, of
the Sea Spi I and Sea Spi II watercraft assigned
to a Location, during the Location Agreement Initial Term set forth
in the Location Agreement, unless otherwise provided therein, the
Licensee shall pay a boat rental fee to the Licensor of $400 for
each Sea Spi I and $800 for each Sea Spi II
assigned to a Location. All such payments shall be made on the
first day of each month of the Location Agreement Initial Term any
Location Agreement Renewal Term by wire transfer of immediately
available funds to such bank account as may be designated by the
Licensor. In the event that a Location Agreement provides for any
renewal thereof, the amount of the boat rental fee to be paid
during any such Location Agreement Renewal Term shall be determined
in the manner provided in the Location Agreement.
(c) Licensee Financed Locations
.
(i) Set-Up Financing . In the event that a Location Agreement
provides that the Location in question shall be a Licensee Financed
Location, the Licensee shall be responsible for the payment or
financing the costs of all for trailers and dollies, boat storage
facilities, signage, brochures, initial marketing and miscellaneous
items in order to prepare a Location for commencement of
operations.
(ii) One-Time License Fee . In consideration of the licenses granted to
he Licensee hereby, unless otherwise provided in the Location
Agreement: (1) the Licensee shall pay a one-time only license fee
to the Licensor of $14,375 for each Sea Spi I and $28,750
for each Sea Spi II assigned to a Location; and (2) the
payment of such fee shall be made on or before the date of delivery
of the watercraft to the Location by wire transfer of immediately
available funds to such bank account as may be designated by the
Licensor.
(iii) Boat Rental Fee . In consideration for the Licensee’s use,
either directly, or through a Water Sports Operator sublicensee, of
the Sea Spi I and Sea Spi II watercraft assigned
to a Location, during the Location Agreement Initial Term set forth
in the Location Agreement, unless otherwise provided therein, the
Licensee shall pay a boat rental fee to the Licensor of $400 for
each Sea Spi I and $800 for each Sea Spi II
assigned to a Location. All such payments shall be made on the
first day of each month of the Location Agreement Initial Term and
any Location Agreement Renewal Term by wire transfer of immediately
available funds to such bank account as may be designated by the
Licensor. In the event that a Location Agreement provides for any
renewal thereof, the amount of the boat rental fee to be paid
during any such Location Agreement Renewal Term shall be determined
in the manner provided in the Location Agreement.
(d) General Terms Applicable to Each Location
Agreement .
(i) Initial and Location Agreement Renewal
Terms . Unless the
Location Agreement otherwise provides:
(1) the initial term of each Location Agreement
shall commence on the Location Agreement Effective Date and shall
end on the fifth anniversary of the Location Agreement Effective
Date (the “Location Agreement Initial Term”);
and
(2) each Location Agreement shall be automatically
renewed for additional periods of one year (each, a “Location
Agreement Renewal Term”) commencing on the first anniversary
of the Location Agreement Effective Date, and on the anniversary of
the date of commencement of the then current Location Agreement
Renewal Term, as the case may be, unless either party gives notice
to the other of its intention not to renew the Location Agreement
beyond the end of the initial term or the then current Location
Agreement Renewal Term, as the case may be. No such notice shall be
effective unless given not later than six months prior to the
Location Agreement Initial Term or the then current Location
Agreement Renewal Term, as the case may be.
(ii) Conditional Limitation on Length of
Term . Each Location
Agreement shall provide that, not withstanding any contrary
provision contained therein, the Location Agreement Term thereof
shall not extend beyond the date when this Agreement shall
expire.
(iii) Insurance . In addition to such insurance coverages as the
Licensee may maintain for itself at each Location, the Licensee
shall secure and keep in full force and effect throughout the
Location Agreement Term, at its expense: (1) comprehensive general
liability insurance, written on an occurrence basis, to afford
protection of no less than $5,000,000 combined single limit for
bodily injury and property damage including personal injury
coverage at each Location; and (2) equipment rental, fire and theft
insurance providing replacement value coverage for each Sea Spi
I and Sea Spi II assigned to each Location in the
respective amounts of $2,500 and $4,500. The Licensee shall have
the right to insure and maintain the insurance coverages set forth
in this Section under blanket or umbrella insurance policies
covering other Locations so long as such blanket or umbrella
policies comply as to terms and amounts with the insurance
provisions set forth in this Section without the possibility of
reduction or coinsurance by reason of, or damage to person,
property or equipment any other Locations named therein. If the
insurance required by this Section shall be effected by any such
blanket or umbrella policies, the Licensee shall furnish to the
Licensor certified copies or duplicate originals of such policies
or executed certificates thereof, with schedules thereto attached
showing the insurance afforded by such policies applicable to the
Locations. All such insurance shall be written in form and
substance reasonably satisfactory to the Licensor by an insurance
company and with general policy holder’s ratings of not less
than A and a financial rating of at least VII, as rated in the most
current available “Best’s” insurance reports, or
the then equivalent thereof. All such insurance shall have a term
of not less that one year. Upon failure of the Licensee to procure,
maintain and place such insurance and pay all premiums and charges
therefor, the Licensor may (but shall not be obligated to) do so
and in such event the Licensee shall pay the amount thereof to the
Licensor within five business days after demand. All policies of
insurance procured by the Licensee shall contain endorsements
providing that a) the Licensor shall be named as an additional
insured thereunder to the extent that its interests may bear; b)
such policies may not be canceled, allowed to lapse or materially
changed without at least 30 days
