Exhibit 10.1
LICENSE
AGREEMENT
This License Agreement (this “
Agreement ”) is made by and between Festival Fun
Parks, LLC, a Delaware limited liability company (together with its
affiliates, “ FFP ”), and VisionMaker, LLC, a
Delaware limited liability company (“ VisionMaker
”), as of April 12, 2006 (the “ Effective
Date ”). FFP and VisionMaker may each be referred to
herein as a “Party” or, collectively, the
“Parties.”
WHEREAS, FFP owns and operates
Family Entertainment Centers (as defined below);
WHEREAS, VisionMaker has expertise
relevant to the acquisition and operation of Family Entertainment
Centers; and,
WHEREAS, the Parties desire to enter
into a relationship whereby VisionMaker will license its
Intellectual Property related to Family Entertainment Centers to
FFP;
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1.
Definitions.
As used herein, the following terms
shall have the following meanings:
“ Affiliate ”
shall mean with respect to a Party, any entity controlling,
controlled by or under common control with such Party.
“Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of management
policies of a person or entity through the direct or beneficial
ownership of voting securities, voting rights, by contract or
otherwise.
“ Cora Employment
Agreement ” means that certain employment agreement,
dated April 12, 2006, by and among Palace Entertainment
Holdings, Inc., Festival and John A. Cora, as amended from
time to time.
“ Family Entertainment
Centers ” shall mean an amusement park, theme park or
similar facility that (i) offers water-leisure recreational
facilities and other water attractions, and/or (ii) offers a
broad selection of attractions, including, without limitation,, but
not limited to, miniature golf, go kart raceways, batting cages,
rides and/or arcade pavilions.
“ Intellectual Property
” shall mean all (i) patents, patent applications and
patent disclosures, (ii) trademarks, service marks, trade
dress, trade names, logos, corporate names, Internet domain names,
and registrations and applications for the registration thereof
together with all of the goodwill associated therewith,
(iii) copyrights and copyrightable works (including, without
limitation, mask words) and registrations and applications thereof,
(iv) computer software (including, without limitation, source
code and object code), data, databases and documentation thereof,
(vi) trade secrets and other confidential information
(including, without limitation, ideas formulas, compositions,
inventions, improvements, know-how, manufacturing and production
processes and techniques, research and development information,
drawings, specifications, blueprints, flowcharts,
schematics, protocols, programmer
notes, designs, developments, discoveries, plans, proposals,
technical data, financial and marketing plans and customer and
supplier lists and information), (vii) other similar
proprietary rights and (viii) copies and tangible embodiments
thereof (in whatever form or medium).
“ Martinez Employment
Agreement ” means that certain employment agreement,
dated April 12, 2006, by and among Palace Entertainment
Holdings, Inc., Festival and Daniel S. Martinez, as amended
from time to time.
“ Noncompete Period
” has the meaning set forth in the Cora Employment Agreement
and the Martinez Employment Agreement.
2.
License Grant; Further Assurances;
Ownership.
(a)
VisionMaker
hereby grants and shall grant to FFP a non-exclusive, royalty-free,
fully paid-up right and license, which shall include the right to
freely sublicense only to Affiliates of FFP, to any Intellectual
Property owned by VisionMaker, or under which VisionMaker otherwise
has the right to grant a license, for any use related to Family
Entertainment Centers including, without limitation, any know-how
related to the operation of amusement centers.
(b)
VisionMaker
acknowledges and agrees that, in the event that FFP creates any
developments, whether or not based on the Intellectual Property
licensed by VisionMaker to FFP hereunder, as between VisionMaker
and FFP, FFP shall own all right, title and interest in and to such
developments.
(c)
Promptly
following any request by FFP, VisionMaker shall provide FFP, its
successors, assigns or other legal representatives, cooperation and
assistance at FFP’s expense (including, without limitation,
the execution and delivery of any and all affidavits, declarations,
oaths, exhibits, assignments, powers of attorney or other
documentation as may be reasonably required) in evidencing the
rights described in this Section 2 .
3.
Term.
This Agreement shall not be
effective until it is executed by FFP, VisionMaker and each of the
three (3) members of VisionMaker (on behalf of VisionMaker).
The term of this Agreement shall begin on the Effective Date and
shall continue in perpetuity (or, for each item of Intellectual
Property, upon the expiration of the same). VisionMaker shall have
no right to terminate this Agreement for any reason, including any
breach by FFP.
4.
Nature of Relationship.
The Parties hereto shall be deemed
independent contractors, and neither Party shall be deemed to be an
agent or employee of the other Party. Neither Party shall enter
into any agreement or incur any obligations on the other
Party’s behalf, or commit the other Party in any matter
without such Party’s prior written consent. No employee or
agent of either Party shall be deemed an
employee of the other Party for the
purposes of any employee benefit programs, income tax withholding,
FICA taxes, unemployment benefits or otherwise.
5.
Confidentiality and Material Transfer.
(a)
VisionMaker
may acquire, receive, observe or generate, alone or jointly
with others, information and/or material either that is
confidential or proprietary information of FFP or its Affiliates,
or that is confidential or propri
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