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EXHIBIT 10.11
TRADEMARK LICENSE AGREEMENT
This TRADEMARK LICENSE AGREEMENT (this "Agreement") dated as of July 1,
1999 by and between XXXXXXXXXXXXX.XXX, INC., a Delaware corporation
("XxxxxxxXxxxxx.xxx"), and VITAMIN SHOPPE INDUSTRIES INC., a New York
corporation ("VSI"),
W I T N E S S E T H:
WHEREAS, XxxxxxxXxxxxx.xxx desires to license certain intellectual
property from VSI, and VSI desires to grant XxxxxxxXxxxxx.xxx a license to use
such intellectual property, on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS.
"Content" means any text, graphics, photographs, video, audio or other
data or information containing a Xxxx.
"Intellectual Property Rights" means all inventions, discoveries,
trademarks, patents, trade names, copyrights, moral rights, jingles, know-how,
intellectual property, software, shop rights, licenses, developments, research
data, designs, technology, trade secrets, test procedures, processes, route
lists, computer programs, computer discs, computer tapes, literature, reports
and other confidential information, intellectual and similar intangible property
rights, whether or not the same may be registered (or otherwise subject to
legally enforceable restrictions or protections against unauthorized third-party
usage), and any and all applications for, registrations of and extensions,
divisions, renewals and reissuances of any of the foregoing, including without
limitation rights under any royalty or licensing agreements and programming and
programming rights, whether on film, tape or any other medium, but shall not
include any Licensed Materials (as such term is defined in the Database
Agreement dated of even date herewith by and between XxxxxxxXxxxxx.xxx and VSI,
the terms of which agreement are incorporated herein by reference).
"Internet" means a global network of interconnected computer networks
(including without limitation any subset of such global network such as
intranets) that use the Transmission Control Protocol/Internet Protocol (or such
other standard network interconnection protocols as may be adopted from time to
time) and that transmit Content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user, whether
the Content is delivered through on-line browsers, off-line browsers, "push"
technology, electronic mail, broadband distribution, satellite, wireless or
otherwise.
"Xxxx" means one of the names, trademarks or registered trademarks set
forth on Exhibit A, as it may be amended from time to time, together with
associated logos, designs and trade dress.
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"Net Sales" means the net sales of XxxxxxxXxxxxx.xxx and its
subsidiaries derived from all sales of The Vitamin Shoppe(R) brand products or
any other products that are identified by or branded with any Xxxx.
"Network" means any website or service delivering Content on or through
the Internet that is owned or controlled by XxxxxxxXxxxxx.xxx.
"Person" means any natural person, legal entity or other organized
group of persons or entities.
"Related Content" means work that may be copyrighted and that is owned
or controlled by VSI and used by VSI in connection with a Xxxx.
"Scope" means in online commerce, on or through the Internet, as an
Internet domain name and for promotional purposes in any media incidental to the
foregoing, but not in connection with gambling services or pornographic products
and services.
2. LICENSE. (a) VSI hereby grants to XxxxxxxXxxxxx.xxx, subject to the
terms and conditions contained herein, an exclusive, worldwide, nontransferable
license to use and reproduce the Marks and all Related Content owned or
controlled by VSI within the Scope in conjunction with XxxxxxxXxxxxx.xxx's (i)
marketing or sale of products and services and (ii) use on Internet web pages.
In addition, VSI hereby grants to XxxxxxxXxxxxx.xxx the right to sublicense any
Xxxx for marketing of its products and services within the Scope as
XxxxxxxXxxxxx.xxx shall deem necessary or appropriate in the conduct of its
business, provided that XxxxxxxXxxxxx.xxx shall obtain the prior written
permission of VSI, which permission shall not be unreasonably withheld or
delayed, to sublicense any Xxxx. VSI shall not grant a similar license or
authorize a similar license to be granted to any other Person. This paragraph
2(a) shall not prohibit the use of any Xxxx or Related Content by VSI or its
affiliates and subsidiaries outside the Scope.
(b) VSI shall have the right to demand the withdrawal of any Content
from web pages on the Network on which the Marks and Related Content appear, if
such Content in VSI's sole discretion (i) conflicts with, interferes with or is
detrimental to VSI's reputation or (ii) may subject VSI to unfavorable
regulatory action, violate any law, infringe the rights of any Person or subject
VSI to liability for any reason. Upon notice from VSI to withdraw any Content,
XxxxxxxXxxxxx.xxx shall in its discretion either cease to use any such Content
on such web pages or remove the Marks and Related Content from such web pages,
in either case as soon as commercially and technically feasible, but in any
event within three days after the date of notice by VSI. If XxxxxxxXxxxxx.xxx
cannot cease to use any such Content or remove any such Marks and Related
Content, as the case may be, within 24 hours, then XxxxxxxXxxxxx.xxx shall so
notify VSI in writing, which writing shall state the reasons that the cessation
or removal cannot be timely effected and the time at which the cessation or
removal will be effected.
(c) XxxxxxxXxxxxx.xxx may market and sell The Vitamin Shoppe(R) brand
products at prices less than VSI's monthly promotional prices in effect from
time to time; provided that XxxxxxxXxxxxx.xxx (i) obtains the written permission
of VSI, which may be withheld only if
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VSI reasonably believes that such marketing and sales activities would
materially impact its ability to market and sell The Vitamin Shoppe(R) brand
products through its retail stores catalog operations while XxxxxxxXxxxxx.xxx's
lower pricing is in effect, or (ii) notifies VSI of any such promotion (A) 10
business days prior to the commencement date for promotions involving 60 SKUs or
less which are to continue for 31 days or less or (B) 60 days prior to the
commencement date for promotions involving more than 60 SKUs or for promotions
which will continue for more than 31 days.
3. USE AND OWNERSHIP OF MARKS. (a) The Marks are owned or controlled by
VSI. VSI hereby agrees to, at its expense, use commercially reasonable efforts
to commence the federal trademark registration process for "XxxxxxxXxxxxx.xxx"
within 60 days of the date hereof and to prosecute such registration to
completion. Any goodwill generated by XxxxxxxXxxxxx.xxx's use of any Xxxx shall
inure to VSI's benefit. Nothing contained herein shall constitute an assignment
of the Marks or shall grant to XxxxxxxXxxxxx.xxx any right, title or interest
therein, except as specifically set forth herein. As between XxxxxxxXxxxxx.xxx
and VSI, (i) VSI is and shall be the exclusive owner of and shall retain all
right, title and interest to the Marks and all Intellectual Property Rights
therein and (ii) XxxxxxxXxxxxx.xxx is and shall be the exclusive owner of and
shall retain all right, title and interest to the Network and all Intellectual
Property Rights therein other than the Marks. XxxxxxxXxxxxx.xxx waives any and
all rights it may have to question, contest or challenge, either during or after
the term of this Agreement, VSI's ownership of any Xxxx. XxxxxxxXxxxxx.xxx shall
not attempt to register any Xxxx.
(b) If, during the term of this Agreement, XxxxxxxXxxxxx.xxx shall
create any proprietary right in any Xxxx, as a result of the exercise by
XxxxxxxXxxxxx.xxx of any right granted hereunder, such proprietary right shall
immediately vest in VSI. Notwithstanding the foregoing, XxxxxxxXxxxxx.xxx shall
be entitled to use any such new proprietary right as though it had specifically
been included in this Agreement.
(c) XxxxxxxXxxxxx.xxx shall not file any application in any country to
register a trademark which is the same as or confusingly similar to any Xxxx or
any other trademark of VSI. If any application for registration is filed in
contravention of this paragraph 3(c), VSI may take appropriate action against
XxxxxxxXxxxxx.xxx to prohibit or otherwise restrain XxxxxxxXxxxxx.xxx's use of
the Xxxx for which the application was filed.
(d) XxxxxxxXxxxxx.xxx shall maintain VSI's quality standards with
respect to its use of the Marks, shall maintain the prestige and goodwill of the
Marks, shall not take any action that would materially denigrate the value of
any of the Marks and shall use the Marks in compliance with any restrictions or
requirements reasonably requested by VSI to maintain such quality standards.
(e) XxxxxxxXxxxxx.xxx shall furnish VSI samples or proofs of all
materials bearing any Xxxx (including without limitation advertising and
publicity materials). All materials that bear any Xxxx shall strictly conform
with such samples or proofs. VSI shall approve or disapprove of the use of such
materials within five business days of its receipt of the applicable
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samples or proofs. Any materials not specifically disapproved by VSI in
accordance with the preceding sentence shall be deemed approved.
(f) If XxxxxxxXxxxxx.xxx learns of any infringement, threatened
infringement or passing off of the Marks, or that any Person claims or alleges
that any Xxxx is liable to cause deception or confusion to the public, then
XxxxxxxXxxxxx.xxx shall promptly notify VSI. At its expense and with VSI's prior
written approval, XxxxxxxXxxxxx.xxx shall take such action, including without
limitation commencing litigation or other legal proceedings, that
XxxxxxxXxxxxx.xxx considers to be necessary to protect the Marks from
infringement by any person or party, and XxxxxxxXxxxxx.xxx shall be entitled to
all amounts received in connection with such action. If VSI does not grant such
approval within 60 days after XxxxxxxXxxxxx.xxx's request therefor, then VSI
shall take such action as VSI considers to be necessary to protect the Marks
from infringement. Nothing in this Agreement shall limit or impair VSI's rights,
during or after the term of this Agreement, to protect any Xxxx from
infringement by any person or entity, including XxxxxxxXxxxxx.xxx.
(g) Upon the termination of this Agreement, XxxxxxxXxxxxx.xxx shall
cease all use of the Marks and Related Content, as soon as commercially and
technically practicable, and shall remove or erase the Marks and Related Content
from the Network and any advertising and promotional materials, as soon as
commercially and technically practicable, given customary Internet business
practices, but in no event shall any such material remain on the Network more
than 30 days after termination of this Agreement. At VSI's request,
XxxxxxxXxxxxx.xxx shall certify in writing to VSI such removal or erasure.
(h) Notwithstanding anything contained in this Agreement to the
contrary, XxxxxxxXxxxxx.xxx shall have the right to use and control the
XxxxxxxXxxxxx.xxx URL for a period of one year following the termination of this
Agreement for the sole purpose of redirecting customers arriving at the
XxxxxxxXxxxxx.xxx URL to a replacement website owned or controlled by
XxxxxxxXxxxxx.xxx.
(i) XxxxxxxXxxxxx.xxx shall cause the notice "(R)" or "(TM)" or "(sm)"
and/or the legend "[Description of Xxxx] is a trademark [service xxxx] of
Vitamin Shoppe Industries Inc. and is used under license" (or such other legend
as VSI may reasonably request from time to time), to appear on promotional
materials and, to the extent consistent with general Internet practices, on or
in connection with services provided by XxxxxxxXxxxxx.xxx.
(j) Each party shall take all action and cooperate as is reasonably
necessary, at the other party's request and expense, to protect the other's
respective rights, titles and interests specified in this paragraph 3. Each
party shall execute any documents that may be necessary to perfect the other's
ownership of such rights, titles and interests.
(k) XxxxxxxXxxxxx.xxx shall not use the License granted to it hereunder
in connection with the manufacture or distribution of its own proprietary brand
of vitamins, minerals, nutritional supplements or any other nutritional or
non-prescription health-related products unless such products are purchased by
XxxxxxxXxxxxx.xxx from VSI for resale under XxxxxxxXxxxxx.xxx's proprietary
brand.
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4. ROYALTY. (a) In consideration of the rights herein granted,
XxxxxxxXxxxxx.xxx shall pay VSI an annual royalty of $1,000,000, payable in
equal quarterly increments of $250,000 on the date of this Agreement and on each
October 1, January 1, April 1 and July 1 thereafter during the term of this
Agreement. Such annual royalty shall be prorated to reflect any partial year
during the term of this Agreement.
(b) In addition to the annual royalty described in paragraph 4(a),
XxxxxxxXxxxxx.xxx shall pay VSI a royalty based on the following percentages of
annual Net Sales:
5% of Net Sales up to and including $25 million
4% of Net Sales over $25 million but not more than $50 million
3% of Net Sales over $50 million but not more than $75 million
2% of Net Sales over $75 million but not more than $100 million
1% of Net Sales over $100 million
In order to calculate the amount of such royalty, XxxxxxxXxxxxx.xxx shall
compute Net Sales as of each March 31, June 30, September 30 and December 31 for
the calendar year or portion thereof then ended. Anything in this paragraph 4(b)
to the contrary notwithstanding, for the year ending December 31, 1999 in
addition to the annual royalty described in paragraph 4(a), XxxxxxxXxxxxx.xxx
shall pay VSI a royalty of 5% of Net Sales between July 1, 1999 and December 31,
1999. Within 60 days after each date of determination, XxxxxxxXxxxxx.xxx shall
deliver to VSI a statement of cumulative Net Sales from January 1 (or in the
case of 1999, from July 1) to the date of determination and shall pay to VSI the
royalty amount due hereunder, less any amounts previously paid in respect of the
current calendar year under this paragraph 4(b). Acceptance by VSI of any
statement or payment shall not preclude VSI from challenging the accuracy
thereof.
(c) XxxxxxxXxxxxx.xxx shall maintain accurate books and records which
reflect Net Sales. At its own expense, VSI or its representatives may examine
and copy such books and records as provided in this paragraph 4(c). VSI and its
representatives may make examinations only during usual business hours and at
the place at which XxxxxxxXxxxxx.xxx usually keeps its books and records. VSI
shall be required to notify XxxxxxxXxxxxx.xxx at least ten days before the date
of planned examination. If an examination has not been completed within two
months from commencement, XxxxxxxXxxxxx.xxx may require VSI to terminate the
examination on seven days notice to VSI, so long as XxxxxxxXxxxxx.xxx has
cooperated with VSI in the examination of such books and records.
5. REPRESENTATIONS AND WARRANTIES. (a) XxxxxxxXxxxxx.xxx represents and
warrants that (i) the Network, any Content on the Network and any Content
developed or furnished by XxxxxxxXxxxxx.xxx hereunder (other than the Marks) and
the use thereof will not infringe upon or violate any rights of any Person, (ii)
the Network will be advertised, distributed, transmitted and licensed in
compliance with all applicable federal, state, local and foreign laws and in a
manner that will not reflect adversely on VSI, (iii) it has full power and
authority to enter into and perform this Agreement and (iv) this Agreement
constitutes its valid and binding obligation enforceable in accordance with its
terms.
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(b) VSI represents and warrants that (i) it either owns or has a valid
license to use the Marks and Related Content and has sufficient right and
authority to grant to XxxxxxxXxxxxx.xxx all licenses and rights granted
hereunder, (ii) the Marks (other than the Vitamin Shoppe Frequent Buyer Program
and, to our knowledge, that Xxxx) and Related Content licensed by it hereunder
and the use thereof as permitted pursuant to this Agreement will not violate any
law or infringe upon or violate any rights of any Person, (iii) the execution,
delivery and performance by VSI of this Agreement will not conflict with, or
result in a breach or termination of or constitute a default under, any lease,
agreement, commitment or other instrument to which VSI is a party, (iv) it has
full power and authority to enter into and perform this Agreement and (v) this
Agreement constitutes its valid and binding obligation enforceable in accordance
with its terms.
6. NON-COMPETITION. (a) VSI shall not, during the term of this
Agreement and for a period of two years following the termination of this
Agreement, directly or indirectly engage in, either as principal, agent,
consultant, proprietor or stockholder or participate in the ownership,
management, operation or control of any other business engaged in any activity
which is or may reasonably be construed to be competitive, directly or
indirectly, in whole or in part, with the principal business of
XxxxxxxXxxxxx.xxx anywhere in the world as conducted during the term of this
Agreement. The provisions of this paragraph 6(a) shall expressly apply to any
business that directly or indirectly markets or distributes through the Internet
vitamins, minerals, nutritional supplements or any other nutritional or
non-prescription health-related products or any other products produced,
marketed or sold by XxxxxxxXxxxxx.xxx during the term of this Agreement (an
"Online VSM Business"). Nothing in this paragraph 6 shall prohibit VSI from
being a passive owner in the aggregate of not more than 5% of the outstanding
capital stock of a corporation which is publicly traded, so long as VSI does not
participate in any capacity or in any manner in the business or affairs of such
corporation other than as a minority stockholder. If VSI or any Person
controlled by, controlling or under common control with VSI (other than
XxxxxxxXxxxxx.xxx or a financial investor in VSI that may be deemed to control
VSI only as a result of its having a designee on the board of directors of VSI)
undertakes any action which VSI is prohibited from undertaking pursuant to this
paragraph 6(a), such action shall constitute a material breach of this Agreement
by VSI.
(b) XxxxxxxXxxxxx.xxx shall not, during the term of this Agreement and
for a period of two years following the termination of this Agreement, directly
or indirectly engage in, either as principal, agent, consultant, proprietor or
stockholder or participate in the ownership, management, operation or control of
any other business engaged in any activity which is or may reasonably be
construed to be competitive, directly or indirectly, in whole or in part, with
the principal business of VSI anywhere in the world as conducted during the term
of this Agreement. The provisions of this paragraph 6(b) shall expressly apply
to any business that manufactures, markets or distributes through retail or
direct marketing channels (including without limitation print catalogs and
mail-order but excluding the Internet) vitamins, minerals, nutritional
supplements or any other nutritional or non-prescription health-related products
anywhere in the world or any other products produced, marketed or distributed by
VSI during the term of this Agreement (an "Offline VSM Business"). Nothing in
this paragraph 6(b) shall prohibit XxxxxxxXxxxxx.xxx from being a passive owner
in the aggregate of not more than 5% of the outstanding capital stock of a
corporation which is publicly traded, so long as
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XxxxxxxXxxxxx.xxx does not participate in any capacity or in any manner in the
business or affairs of such corporation other than as a minority stockholder. If
XxxxxxxXxxxxx.xxx or any Person controlled by, controlling or under common
control with XxxxxxxXxxxxx.xxx (other than VSI or a financial investor in
XxxxxxxXxxxxx.xxx that may be deemed to control XxxxxxxXxxxxx.xxx only as a
result of its having a designee on the board of directors of XxxxxxxXxxxxx.xxx)
undertakes any action which XxxxxxxXxxxxx.xxx is prohibited from undertaking
pursuant to this paragraph 6(b), such action shall constitute a material breach
of this Agreement by XxxxxxxXxxxxx.xxx.
(c) Without the prior written consent of VSI, XxxxxxxXxxxxx.xxx shall
not, during the term of this Agreement and for a period of two years following
the termination of this Agreement, directly or indirectly cause a computer
terminal, kiosk or other similar electronic mechanism capable of providing
access to the Internet to be installed within one-half mile of any VSI urban
retail store or within five miles of any VSI suburban retail store. For purposes
of this paragraph 6(c), "urban" and "suburban" shall have the meanings ascribed
to them in the Co-Marketing Agreement dated of even date herewith by and between
VSI and XxxxxxxXxxxxx.xxx, the terms of which agreement are incorporated herein
by reference. If XxxxxxxXxxxxx.xxx or any Person controlled by, controlling or
under common control with XxxxxxxXxxxxx.xxx (other than VSI or a financial
investor in XxxxxxxXxxxxx.xxx that may be deemed to control XxxxxxxXxxxxx.xxx
only as a result of its having a designee on the board of directors of
XxxxxxxXxxxxx.xxx) undertakes any action which XxxxxxxXxxxxx.xxx is prohibited
from undertaking pursuant to this paragraph 6(c), such action shall constitute a
material breach of this Agreement by XxxxxxxXxxxxx.xxx.
7. RIGHT OF FIRST REFUSAL. (a) Within ten days following the
acquisition by VSI of a business that contains a business component which would
constitute an Online VSM Business if it were operating as a separate company (an
"Online VSM Business Component"), VSI shall give XxxxxxxXxxxxx.xxx notice of
such acquisition. Such notice shall contain (i) a description of the Online VSM
Business Component in sufficient detail to permit XxxxxxxXxxxxx.xxx to make an
informed decision about whether to acquire or license the business component and
(ii) an offer to sell the Online VSM Business Component to XxxxxxxXxxxxx.xxx on
the terms and conditions contained in such notice (a "VSI Offer").
XxxxxxxXxxxxx.xxx shall have 30 days following its receipt of a VSI Offer to
agree to purchase the Online VSM Business Component on the terms contained
therein. During such 30-day period, upon XxxxxxxXxxxxx.xxx's written request,
VSI shall promptly provide XxxxxxxXxxxxx.xxx with such additional information as
XxxxxxxXxxxxx.xxx reasonably requests regarding the Online VSM Business
Component, pursuant to a confidentiality agreement between the parties on
mutually agreeable terms. If XxxxxxxXxxxxx.xxx fails to notify VSI of its
intention to purchase or license the Online VSM Business Component from VSI in
accordance with this paragraph 7(a), then VSI shall use commercially reasonable
efforts to enter into a letter of intent to sell or license the Online VSM
Business Component to a third party and to consummate such sale or license
within 90 days. If such sale or license is not consummated within 90 days, then
VSI shall promptly cease to operate such Online VSM Business Component.
(b) Within ten days following the acquisition by XxxxxxxXxxxxx.xxx of a
business that contains a business component which would constitute an Offline
VSM Business if it were
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operating as a separate company (an "Offline VSM Business Component"),
XxxxxxxXxxxxx.xxx shall give VSI notice of such acquisition. Such notice shall
contain (i) a description of the Offline VSM Business Component in sufficient
detail to permit VSI to make an informed decision about whether to acquire or
license the business component and (ii) an offer to sell the Offline VSM
Business Component to VSI on the terms and conditions contained in such notice
(a "XxxxxxxXxxxxx.Xxx Offer"). VSI shall have 30 days following its receipt of a
XxxxxxxXxxxxx.xxx Offer to agree to purchase the Offline VSM Business Component
on the terms contained therein. During such 30-day period, upon VSI's written
request, XxxxxxxXxxxxx.xxx shall promptly provide VSI with such additional
information as VSI reasonably requests regarding the Offline VSM Business
Component, pursuant to a confidentiality agreement between the parties on
mutually agreeable terms. If VSI fails to notify XxxxxxxXxxxxx.xxx of its
intention to purchase or license the Offline VSM Business Component from
XxxxxxxXxxxxx.xxx in accordance with this paragraph 7(b), then XxxxxxxXxxxxx.xxx
shall use commercially reasonable efforts to enter into a letter of intent to
sell or license the Offline VSM Business Component to a third party and to
consummate such sale or license within 90 days. If such sale or license is not
consummated within 90 days, then XxxxxxxXxxxxx.xxx shall promptly cease to
operate such Offline VSM Business Component.
(c) The rights of first refusal contained in paragraphs 7(a) and 7(b)
shall continue in full force and effect during the term of this Agreement and
for a period of two years following the termination of this Agreement.
8. TERM. (a) This Agreement shall commence on the date hereof and
continue for an indefinite period in full force and effect until it is
terminated in accordance with this paragraph 8.
(b) Either party shall have the right but not the obligation to
terminate this Agreement immediately if at any time:
(i) the other party shall be in material breach of any of its
obligations hereunder, and such breach shall not be cured within 20
days after receipt of written notice thereof;
(ii) the other party shall be the subject of a voluntary
petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of
creditors;
(iii) the other party shall become the subject of any
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation or assignment for the
benefit of creditors, and such petition or proceeding shall not be
dismissed within 60 days of filing;
(iv) the business of the other party shall be liquidated or
otherwise terminated on any basis; or
(v) the other party shall become insolvent or unable to pay
its debts as they become due.
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(c) XxxxxxxXxxxxx.xxx shall have the right but not the obligation to
terminate this Agreement at any time upon 180 days prior notice to VSI.
(d) A party may exercise its right to terminate pursuant to this
paragraph 8 by written notice to the other party. No exercise by a party of its
rights under this paragraph 8 shall limit its remedies by reason of the other
party's default, the party's rights to exercise any other rights under this
paragraph 8 or any other rights of that party.
9. INJUNCTIVE RELIEF. The parties acknowledge that money damages would
not adequately compensate it in the event of a breach by the other party of such
other party's obligations hereunder and that injunctive relief would be
essential for each party to protect its rights hereunder. Accordingly, each
party shall be entitled to injunctive relief if the other party is in breach of
any of its representations, warranties or obligations hereunder, in addition to
any other relief to which each party may be entitled at law or in equity.
10. MISCELLANEOUS. (a) Neither party may assign this Agreement or its
rights and obligations hereunder in whole or in part without the other party's
prior written consent. Any attempt to assign this Agreement without such consent
shall be void and of no effect. Notwithstanding the foregoing, either party may
assign this Agreement or its rights and obligations hereunder to any entity
controlled by it or to any entity by which it is acquired by merger, purchase of
capital stock, transfer of substantially all assets or otherwise; provided that
such entity shall thereafter succeed to all obligations of such party under this
Agreement.
(b) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed entirely within such state, without regard to the principles
of conflicts of law of such state.
(c) Each party hereto irrevocably and unconditionally consents to the
exclusive jurisdiction of the Supreme Court of the State of New York, New York
County, or the United States District Court for the Southern District of New
York for the purposes of any suit, action or proceeding arising out of this
Agreement or any transaction contemplated hereby. Each party agrees to commence
any such action, suit or proceeding either in the United States District Court
for the Southern District of New York, or if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the
Supreme Court of the State of New York, New York County. Each party further
agrees that service of any process, summons, notice or documents by United
States registered mail to such party's address set forth pursuant to paragraph
10(e) shall be effective service of process for any action, suit or proceeding
in respect to any matters to which such party has submitted to jurisdiction in
this paragraph 10(c). Each party irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or any transaction contemplated hereby in the Supreme Court of
the State of New York, New York County, or the United States District Court for
the Southern District of New York. Each party irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in either such court has been brought in an
inconvenient forum.
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(d) If any provision of this Agreement or any portion thereof, or the
application of any such provision or portion thereof, to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof or the remaining portion thereof or
the application of such provision to any other persons or circumstances.
(e) All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three days after mailing (or one business day in the case of express
mail or overnight courier service), as follows:
If to XxxxxxxXxxxxx.xxx, to:
XxxxxxxXxxxxx.xxx, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
If to VSI, to:
Vitamin Shoppe Industries Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: President and Chief Executive Officer
(f) No failure of either party to exercise or enforce any of its rights
under this Agreement shall act as a waiver of such right.
(g) This Agreement constitutes the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. Neither party shall be liable or bound to any other party in any manner
by any representations, warranties or covenants relating to the subject matter
except as specifically set forth herein. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been executed and delivered by both parties.
(h) This Agreement may be amended only by an instrument in writing
signed on behalf of each party. As long as VSI owns at least 30% of the voting
power of the capital stock of XxxxxxxXxxxxx.xxx (as defined below), no material
term of this Agreement may be amended or waived without the approval of a
majority of the directors of XxxxxxxXxxxxx.xxx who are not directors, officers
or more than 5% stockholders of VSI (or the designee of a more than 5%
stockholder).
(i) This Agreement is for the sole benefit of the parties hereto.
Nothing herein expressed or implied shall give or be construed to give to any
other person or entity any legal or equitable rights hereunder.
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(j) The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement. When
reference is made in this Agreement to a paragraph, such reference shall be to a
paragraph of this Agreement unless otherwise indicated.
(k) The provisions of paragraphs 6, 7, 9 and 10 shall survive any
termination of this Agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXXXXXXXX.XXX, INC.
By: ___________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
VITAMIN SHOPPE INDUSTRIES INC.
By: ___________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
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EXHIBIT A
Schedule of Marks
The Vitamin Shoppe name, logo and design
VitaminShoppe
XxxxxxxXxxxxx.xxx
VitaminShop
XxxxxxxXxxx.xxx
The Vitamin Shoppe Frequent Buyer Program
