EXHIBIT 10.1
LICENSE AGREEMENT
THIS AGREEMENT, made and entered into as of March 24, 1998 by
and among THE XXXXXXX COMPANY, INC., a Delaware corporation (hereinafter
referred to as "Licensor"), XXXXX PLC, an English corporation (hereinafter
referred to as "Guarantor"), and RANCO INCORPORATED OF DELAWARE, a Delaware
corporation and a wholly-owned subsidiary of Guarantor (hereinafter
referred to as "Licensee").
WITNESSETH:
WHEREAS Licensee desires to obtain a license to use the
Licensed Xxxx (as defined below) in connection with the manufacture,
merchandising, promotion, advertising, sale and distribution of the
Merchandise (as defined below), and Licensor is willing to grant such
license subject to all the terms of this Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, Licensor and Licensee agree as follows:
1. Definitions
The following definitions shall be applicable throughout this
Agreement:
A. The term "Licensed Xxxx" shall mean the trademark "COLEMAN,"
and the variations thereof and associated logos set forth in Schedule A.
B. The term "Licensed Merchandise" shall mean Merchandise (as
that term is defined in Section 1.C below) that is approved by Licensor in
accordance with Section 4 hereof and is sold or promoted by Licensee under
the Licensed Xxxx.
C. The term "Merchandise" shall mean smoke alarms, carbon
monoxide detectors, heat detectors, flammable gas detectors and indoor air
quality monitors.
D. The term "Territory" shall mean the world.
E. The term "Net Sales" shall mean the total invoiced price of
the Licensed Merchandise shipped by Licensee to its customers, less
federal, state and local sales, use and excise taxes, freight and insurance
(if separately stated), and actual returns. Net Sales in any quarter shall
be reduced by returns made in such quarter, regardless of when the sales of
such returned items were made. For purposes of calculating Net Sales in the
case of "direct ship", "first-cost" or F.O.B. sales made by Licensee
hereunder, any Licensed Merchandise shipped by Licensee's contract
manufacturer directly to a customer of Licensee shall be valued at
Licensee's customary wholesale price to its trade customers, regardless of
the actual invoiced price to the customer.
F. The term "Stock Purchase Agreement" shall mean the Stock
Purchase Agreement between Licensor and Licensee dated February 18, 1998.
G. The term ("Term") shall mean the duration of this Agreement,
as set forth in Section 3, and shall include any renewal period(s) as
described therein.
2. License Grant
A. Licensor hereby grants to Licensee an exclusive license
throughout the Territory during the Term to all of Licensor's right, title
and interest in and to the Licensed Xxxx for use as a trademark and service
xxxx, solely in conjunction with the term "Xxxxxxx," for use solely in
connection with the manufacture, advertising, merchandising, promotion,
publicity, use, sale, distribution and servicing of Licensed Merchandise,
subject to all the terms and conditions of this Agreement. It is agreed
that during the Term, Licensor shall not grant to any other entity, nor
shall Licensor have, the right to use the word "Coleman" alone, or with
other terms or symbols, in connection with Merchandise. It is further
agreed that should the Term last through, and end upon the conclusion of, a
Second Renewal Term, then for one (1) year following the end of the Term,
Licensor shall not use the word "Coleman" alone, or with other terms or
symbols, in connection with the advertising, promotion, publicity,
distribution or sale of Merchandise, nor license any other entity to so use
the word or otherwise allow such use in return for compensation.
B. Licensee accepts said grant, and agrees to use its
reasonable efforts to exploit the rights granted herein including, without
limitation, maintaining a sales force or distribution network sufficient to
provide effective distribution of the Licensed Merchandise, and assisting
with Licensor's advertising program. It is agreed that nothing herein shall
require Licensee to sell Licensed Merchandise at a loss or shall interfere
with Licensee's right to sell Merchandise which is not Licensed
Merchandise.
C. Licensee may use the Licensed Xxxx only in connection with
the manufacture, advertising, merchandising, promotion, publicity, use,
sale, distribution and servicing of Licensed Merchandise. No license is
granted hereunder for the use of the Licensed Xxxx for any purpose other
than upon or in connection with the Licensed Merchandise.
D. Licensor makes no representation or warranty as to any
rights to use the Licensed Xxxx outside of the United States and Canada.
E. Licensee shall have no right to sublicense the Licensed
Xxxx, except that Licensee may sublicense the Licensed Xxxx to any
wholly-owned subsidiary of Guarantor, so long as such subsidiary remains a
wholly-owned direct or indirect subsidiary of Guarantor. In the event that
Licensee shall grant a sublicense as permitted hereby, Licensee shall be
jointly and severally liable along with any such authorized sublicensee to
comply in all respects with all requirements of this Agreement. In
addition, Licensor shall have the direct right under any such sublicense
agreement to exercise direct control over the quality of Licensed
Merchandise and related materials to the same extent as it has under this
Agreement.
3. Term
A. This Agreement shall become effective as of the date first
above written (the "Effective Date") and shall continue for a period of
five (5) years, terminating on the fifth anniversary of the Effective Date
(the "Initial Term"), unless terminated prior thereto in accordance with
the terms and conditions hereof.
B. Licensee shall have the option to renew this Agreement for
two additional five (5) year periods (the "First Renewal Term" and "Second
Renewal Term," respectively) by giving Licensor written notice at least one
hundred and twenty (120) days prior to the end of the Initial Term or the
First Renewal Term, respectively; provided that Licensee is in compliance
in all material respects with all terms and conditions of this Agreement.
The First Renewal Term shall commence upon the date of expiration of the
Initial Term and shall terminate on the fifth anniversary of such date; the
Second Renewal Term shall commence upon the date of expiration of the First
Renewal Term and shall terminate on the fifth anniversary of such date.
4. Licensed Merchandise and Quality Control
A. Licensee agrees that Licensed Merchandise and its Packaging
will be designed, manufactured, advertised, promoted, publicized,
distributed and sold only in a manner which (i) is consistent with
Licensor's standards for the Licensed Merchandise in the six (6) months
prior to the date hereof, (ii) is consistent with the safety and quality
standards of the industry standards for the Licensed Merchandise, and (iii)
is commensurate with the prestige and reputation of the Licensed Xxxx.
B. Licensee must obtain the prior written approval of Licensor
for all material changes in designs, specifications, colors, materials and
contract manufacturers of all Merchandise and components thereof intended
to be sold as Licensed Merchandise, including any labels, instructions,
packaging, containers and displays (said labels, instructions, packaging,
containers and displays hereinafter collectively "Packaging") intended to
be utilized in connection with the Licensed Merchandise, to the extent that
any such changes affect the safety, performance or quality standards of
such Licensed Merchandise and Packaging or the use of the Licensed Xxxx
thereon. The designs, specifications, colors, materials and contract
manufacturers for the Merchandise and Packaging sold by Licensor
immediately prior to the date hereof shall be deemed pre-approved.
C. From time to time during the Term, Licensee shall submit to
Licensor design change proposals for any items or styles of Licensed
Merchandise and Packaging proposed by Licensee, which materially differ
from the Licensed Merchandise and Packaging sold by Licensor immediately
prior to the date hereof, to the extent such design change proposals or
Packaging affect the safety, performance or quality standards of the
Licensed Merchandise or Packaging or the use of the Licensed Xxxx thereon.
Within ten (10) business days of Licensor's receipt of such design
proposals of the Licensed Merchandise and Packaging, Licensor will review
them and Licensee will provide its full assistance and cooperation to
Licensor in such review, including making available a qualified person(s)
appointed by Licensee to meet with Licensor and assist Licensor in its
review. Not later than the end of such ten (10) business day period,
Licensor shall notify Licensee of which if any of the design proposals or
Packaging Licensor has approved and of objections, if any, to any aspect of
the design proposals or Packaging. Failure to notify Licensee of approval
or objections within said ten (10) business day period shall be deemed an
approval.
D. The Licensed Merchandise and Packaging manufactured, sold,
advertised or promoted by Licensee shall be identical to the Licensed
Merchandise and Packaging approved by Licensor pursuant to Section 4.B with
respect to the safety, performance or quality standards of such Licensed
Merchandise and Packaging and the use of the Licensed Xxxx thereon.
Immediately upon commencement of commercial production of any Licensed
Merchandise and Packaging, Licensee shall notify Licensor and permit
Licensor to inspect a production sample of each stock keeping unit (an
"SKU") of the Licensed Merchandise and Packaging. If, in Licensor's
judgment, the production sample is "Nonconforming" (i.e., not substantially
identical to the previously-approved Licensed Merchandise and Packaging in
the above-mentioned respects), Licensor shall promptly notify Licensee and
shall specify in which respects the sample is Nonconforming. Upon receipt
of such notice, Licensee shall immediately stop production and sale of the
Nonconforming Licensed Merchandise and Packaging until a production sample
is submitted and approved by Licensor.
E. For purposes of monitoring quality, Licensee agrees to
permit Licensor to inspect samples of each SKU of Licensed Merchandise and
related Packaging from time to time, upon request throughout the Term. In
addition, upon request Licensee shall provide to Licensor, free of charge,
at least one sample of each SKU (not including color variations) of
Licensed Merchandise and related Packaging for presenting Licensor's
licensing activities to corporate and business constituencies and for
display purposes at Licensor's headquarters.
F. Licensee will comply with all laws, rules, regulations and
requirements of any governmental or administrative body (including, without
limitation, the Federal Trade Commission and the Consumer Product Safety
Commission), which may be applicable to the manufacture, advertising,
merchandising, packaging, publicity, promotion, sale, distribution,
shipment, import and export of the Licensed Merchandise, its Packaging and
its componentry.
G. Licensor and its duly authorized representatives shall have
the right, during normal business hours and upon reasonable notice and the
execution of a confidentiality agreement with Licensee substantially in the
form attached hereto as Exhibit 1, once per quarter during the Term to
inspect all manufacturing facilities utilized by Licensee (and its
contractors and suppliers to the extent Licensee may use the same) and to
examine all processes and records relating to the manufacturing, packaging,
warehousing and distribution of the Licensed Merchandise and Packaging
including, without limitation, the right to open and inspect shipping
cartons, and make such other tests and inspections as it shall deem
necessary to insure the quality of the Licensed Merchandise and Packaging.
Licensee shall take all necessary steps requested by Licensor to correct
any deficiencies that might affect the quality of the Licensed Merchandise
and Packaging.
H. Licensee agrees to use its best efforts to safeguard the
prestige of the Licensed Xxxx for the benefit of Licensor. Licensee shall
not market any of the Licensed Merchandise as close-outs or irregulars, in
excess of 5% of total unit sales during any calendar year, except as
approved in advance by Licensor in writing on a case-by-case basis. In the
event Licensor approves the sale of Licensed Merchandise as close-outs,
Licensor shall have the absolute right to determine the appropriate
close-out outlets.
I. All Licensed Merchandise and/or Packaging will bear at least
one label or display with the Licensed Xxxx in a form approved by Licensor
in advance in accordance with Section 4.B hereof and will bear no label or
display of the Licensed Xxxx unless previously approved by Licensor.
J. The Licensed Merchandise shall be sold by Licensee only to
(i) retail outlets to which Licensor has sold Licensed Merchandise
immediately prior to the date hereof in its ordinary course of business and
not for closeout, or such other outlets as are specified on Schedule B
hereto, (ii) such other retail outlets as may be expressly approved by
Licensor in writing prior to any sale of Licensed Merchandise to such
outlet, and (iii) such retail outlets as are established in the future that
are of at least the same quality and reputation as those described in
clauses (i) and (ii) above (collectively, the "Approved Retail Outlets").
Licensee shall not sell the Licensed Merchandise other than to Approved
Retail Outlets, unless, and then only to the extent that, such sale has
been previously approved in writing by Licensor. Licensee shall upon notice
immediately stop selling to any previously approved customer or other
approved entity which becomes engaged in reselling Licensed Merchandise
otherwise than to consumers at retail in the Territory.
5. Public Relations, Advertising and Promotion
A. Licensee shall submit to Licensor for its prior written
approval any and all public statements, press releases and responses to
press inquiries relating in any way to this Agreement.
B. Licensor shall have the right to approve in advance any and
all advertising, marketing and promotions to be conducted by Licensee and
all trade materials, business cards, invoices, stationery and other printed
matter prepared by or for Licensee using or referring to the Licensed Xxxx.
Licensee shall submit to Licensor for its prior approval copies of all of
the foregoing. Such approval shall not be unreasonably withheld and shall
be deemed granted if Licensor does not respond within ten (10) business
days of receipt of such submission.
C. At least once each year, Licensee will submit for Licensor's
information a presentation detailing Licensee's plans to market, promote
and advertise the Licensed Merchandise.
6. Royalty Payments
A. Licensee shall pay Licensor on a quarterly basis, for the
duration of the Initial Term, and First Renewal Term and Second Renewal
Term, if any, a royalty of five percent (5%) of Net Sales (the
"Royalties").
B. Royalties shall be paid within thirty (30) days of the close
of each calendar quarter. Each royalty payment shall be accompanied by a
statement signed and certified by the Chief Financial Officer of Licensee
that the accompanying remittance is the full amount due hereunder. Each
such accounting statement shall be in such form as Licensor may specify and
shall show the Net Sales by customer made during the preceding quarter, and
a computation of the amount of Royalties payable hereunder in respect of
such Net Sales for such period (the "Royalty Report"). Such Royalty Report
shall be furnished to Licensor whether or not any Royalty payments are
payable for such period. The first Royalty Report due under this Agreement
shall be for the quarter ending March 31, 1998. Upon request by Licensor,
Licensee shall submit invoices, credit memoranda, factor statements and/or
computer printouts substantiating the reported information, in addition to
a summary by customer and product code and invoices and other supporting
documentation. Receipt or acceptance by Licensor of any Royalty Report
furnished, or of any sums paid by Licensee, shall not preclude Licensor
from questioning their correctness at any time.
C. In the event Licensee exercises its option pursuant to
Section 13.B hereof to extend the license herein granted for purposes of
liquidating its inventory of Licensed Merchandise, Licensee shall pay all
Royalties with the accompanying Royalty Report quarterly within thirty (30)
days following the close of each calendar quarter during the extension
period following termination.
D. As soon as practicable, but not later than ninety (90) days
after the end of each year during the Term, and within ninety (90) days
after the expiration or termination of the Term, Licensee shall submit to
Licensor a statement signed and certified by the Chief Financial Officer of
Licensee that the quarterly statements furnished by Licensee hereunder as
well as Licensee's related books of account and other records and that such
quarterly statements have been prepared in accordance with generally
accepted accounting principles (except as provided in Section 6.H) applied
on a basis consistent with Licensee's audited financial statements and that
such statements and report are correct. At the same time, Licensee shall
also submit to Licensor a copy of the audited financial statements of
Guarantor for its most recently completed fiscal year.
E. All royalty payments and accounting statements are to be
directed as provided in Section 16.A, below.
F. In the event that payment of Royalties to Licensor hereunder
gives rise to any taxes, duties and other governmental charges in the
Territory, including, without limitation, any withholding taxes, stamp
duties or documentary taxes, turnover, sales or use taxes, value added
taxes, excise taxes, customs or exchange control duties or any charges,
Licensee and Licensor shall each be responsible for one half of such taxes,
duties or charges, except that Licensor shall be responsible for any tax
imposed on Licensor's income by the jurisdictions in which it conducts
business.
G. All royalty payments shall accrue upon the sale of the
Licensed Merchandise regardless of the time of collection by Licensee. For
purposes of this Agreement, Licensed Merchandise shall be considered "sold"
upon the date of invoicing.
H. Royalty payments shall be based on U.S. dollar calculations
and paid by Licensee in U.S. dollars. Local currency sales shall be
converted to U.S. dollars on a monthly basis using the average exchange
rates of New York banks as published in the Wall Street Journal during the
month in which sales are made, in accordance with generally accepted
accounting principles as the same may be amended from time to time.
I. If any governmental entity restricts or prohibits, by
exchange controls or otherwise, the payment to Licensee of any sums due it
on sales of Licensed Merchandise hereunder, Licensee shall, notwithstanding
any such restriction, pay to Licensor in the United States any and all such
sums due Licensor hereunder in U.S. dollars, as and when due in accordance
with the terms hereof.
7. Use of Licensed Xxxx
X. Licensee shall use and display the Licensed Xxxx only in
such forms detailed in the standards and specifications guidelines provided
by Licensor, as the same may be changed from time to time, or otherwise
approved by Licensor in writing; provided, however, that Licensor shall
provide thirty (30) days' advance notice of any such change to the
guidelines, but Licensee may continue to use the Packaging, stationery and
other items containing the previously approved forms of the Licensed Xxxx
to the extent such items are held in inventory on the date of such notice,
but in no event for more than nine (9) months following such notice.
B. Licensee will not use the Licensed Xxxx as a corporate name
or as a trade name, in whole or in part, or in such a way as, in Licensor's
sole judgment, may give the impression that the Licensed Xxxx is the
property of Licensee. No name or names shall be conjoined or used by
Licensee in connection with the Licensed Xxxx in or on any advertising,
publicity, trade or promotional material or Packaging utilized by Licensee
in connection with the Licensed Merchandise except as required by Section
2.A or to the extent that such is specifically required by law to indicate
the source of manufacture or distribution of the Licensed Merchandise.
Licensee shall not use any name which, in Licensor's judgment, may be
confusingly similar to the Licensed Xxxx on Merchandise or otherwise,
during the Term or thereafter.
C. Licensee acknowledges that the Licensed Xxxx has acquired
valuable goodwill with the public and that any products bearing the
Licensed Xxxx have acquired a reputation of high quality. Licensee
acknowledges that Licensor is the owner of all right, title and interest in
and to the Licensed Xxxx, and is also the owner of the goodwill attached to
the Licensed Xxxx including that which arises from the sale of Licensed
Merchandise hereunder. All use by Licensee of the Licensed Xxxx shall be
deemed to have been made by and for the benefit of Licensor for the
purposes of securing and maintaining trademark rights, applications and/or
registrations, and all uses of the Licensed Xxxx by Licensee, or by any
sublicensee or assignee, and any goodwill arising therefrom, shall inure to
the sole and exclusive benefit of Licensor.
D. Licensee hereby assigns to Licensor any rights to the
Licensed Xxxx which may, by operation of law or otherwise, vest in Licensee
as a consequence of Licensee's activities under this Agreement, and any
goodwill arising therefrom, which shall in any event inure to the sole and
exclusive benefit of Licensor. Licensee will not, at any time, do or suffer
to be done any act or thing which will, in any way, impair or adversely
affect the ownership or the rights of Licensor in or to the Licensed Xxxx
or its reputation, and Licensee will make no applications nor seek any
registration or ownership rights in or to the Licensed Xxxx in the
Territory or elsewhere.
E. Licensee acknowledges that only Licensor may file or
prosecute trademark applications to register the Licensed Xxxx. Licensee
will cooperate with Licensor in connection with the filing and prosecution
by Licensor of any such applications, and the maintenance or renewal of any
trademark registration for the Licensed Xxxx, and will supply Licensor with
Merchandise bearing the Licensed Xxxx, including samples, Packaging and
other uses of the Licensed Xxxx, as may reasonably be requested by Licensor
in connection herewith. Licensee shall execute all documents, including,
but not limited to, registered user agreements and any cancellations
thereof, which Licensor may request in order to obtain or maintain a
registration or to establish or to maintain Licensor's ownership of the
Licensed Xxxx.
F. Licensor currently owns registrations and applications for
registration of the Licensed Xxxx for Merchandise in the jurisdictions
listed on Schedule A hereto. Licensee will give Licensor reasonable advance
notice prior to using any of the Licensed Marks in any jurisdiction not
covered by a registration or application for registration licensed
hereunder. Licensor will (i) file and prosecute applications for
registration of the Licensed Xxxx for use for Merchandise in such other
jurisdictions as Licensee reasonably deems appropriate at Licensee's cost,
and (ii) if Licensor elects not to maintain or renew any trademark
registration of the Licensed Xxxx, Licensee may request that Licensor do so
and Licensor will so renew or maintain such registration at Licensee's
expense; provided that in either case, Licensee shall be entitled to deduct
Licensee's costs and expenses from the Royalties payable to Licensor
hereunder on account of sales of Licensed Merchandise in such jurisdiction.
G. Licensee agrees and undertakes to use the Licensed Xxxx in
compliance with any and all applicable trademark and other laws and to use
such legends, markings or notices in connection therewith as are required
by law or otherwise reasonably required by Licensor to protect its rights.
Upon expiration or termination of this Agreement for any reason whatsoever,
Licensee will execute and file any and all documents acknowledging that it
no longer has rights in the Licensed Xxxx which Licensor shall require.
Licensor shall bear all expenses reasonably incurred in preparing and
recording any such documents.
H. Licensee agrees not (i) to challenge the validity of or
Licensor's ownership of the Licensed Xxxx when used separately or in
composite form with other trademarks, logos, or designs, or any application
for registration thereof, or any trademark registration thereof, in any
jurisdiction, or (ii) to contest the fact that Licensee's rights under this
Agreement terminate upon termination or expiration of this Agreement. The
provisions of this Section 7.H shall survive termination or expiration of
this Agreement.
I. Licensee shall promptly notify Licensor of any infringement,
imitation or act inconsistent with Licensor's ownership of the Licensed
Xxxx by third parties, or any act of unfair competition by third parties
relating to the Licensed Xxxx, wherever and whenever such infringement or
act shall come to the attention of the executive of Licensee responsible
for licensing matters or the general manager of Licensee's business, and
any successors thereto or replacements therefor. After receipt of such
notice from Licensee, Licensor shall in its sole discretion decide whether
to take action with respect to such infringement or act, and Licensee shall
fully cooperate with Licensor in such action and, if so requested by
Licensor, shall join with Licensor as a party to any such action brought by
Licensor. Licensor shall bear all expenses in connection with the
foregoing. Any recovery as a result of such action shall belong solely to
Licensor. Licensee agrees that Licensor shall have the sole power to take
legal or other action before any court or governmental authority with
respect to the infringement and the protection of the Licensed Xxxx. If
Licensor decides not to take action with respect to such infringement or
act, Licensee may request that Licensor so act and upon such request,
Licensor shall take all reasonable steps to stop the infringement,
imitation or act, provided that Licensee reimburse Licensor for all costs
incurred by Licensor (net of amounts recovered by Licensor).
J. Licensee shall not at any time use the Licensed Xxxx or the
Licensed Merchandise, or any material utilizing or reproducing the Licensed
Xxxx or Licensed Merchandise, in a manner that is reasonably likely to
derogate the value, reputation or goodwill associated with the Licensed
Xxxx.
8. Books and Records
Licensee shall maintain, at its main offices, true and accurate
books and records, in accordance with generally accepted accounting
principles, containing all particulars which may be necessary for the
purpose of verifying compliance with the terms and conditions hereof and
for determining all amounts payable to Licensor hereunder, which books and
records shall be separate and distinct from those relating to Licensee's
businesses other than the sale of Licensed Merchandise. Licensee shall make
such books and records available to Licensor and its designated
representatives during regular business hours and upon reasonable notice
once per quarter throughout the Term, including any renewal terms, and a
period of twelve (12) months thereafter, for the purpose of auditing
Licensee's reports, accounting statements and royalty payments hereunder.
Licensor shall be entitled to make copies, at its expense, of any such
records. Without limitation of Licensor's rights under Section 12, if
Licensor uncovers an error in Net Sales or royalty computation or in the
computation of any other amounts due to Licensor or payable by Licensee,
Licensee agrees to pay immediately all sums due (with interest at the prime
rate from the date payment was due hereunder), and if such error exceeds 5%
of the amount properly payable by Licensee, Licensee will at the same time
reimburse Licensor for its reasonable costs of conducting such audit.
9. Representations and Warranties of Licensee and Guarantor
A. Organization. Each of Licensee and Guarantor is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization.
B. Authority Relative to this Agreement. Each of Licensee and
Guarantor has full corporate power and authority to execute, perform and
deliver this Agreement. The execution, delivery and performance of this
Agreement has been duly and validly authorized by all necessary corporate
action, and no other corporate proceedings on the part of Licensee or
Guarantor are necessary to authorize this Agreement. This Agreement has
been duly and validly executed and delivered by each of Licensee and
Guarantor and constitutes a valid and binding agreement of each of Licensee
and Guarantor, enforceable in accordance with its terms, except that (i)
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
C. No Violation. The execution, performance and delivery of
this Agreement by each of Licensee and Guarantor will not (i) violate any
provision of the Certificate of Incorporation, By-Laws or other
organizational documents of Licensee or Guarantor, (ii) violate, or be in
conflict with, or constitute a default or termination event (or an event
which, with notice or lapse of time or both, would constitute a default or
a termination event) under, any agreement or commitment to which Licensee
or Guarantor is a party, or (iii) violate any applicable statute or law or
any judgment, decree, order, regulation or rule of any court or
governmental authority binding on Licensee or Guarantor.
D. Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required in connection with the
execution, delivery and performance of this Agreement by Licensee or
Guarantor. No consent of any person is necessary for the execution,
performance or delivery of this Agreement by Licensee or Guarantor,
including, without limitation, consents from parties to loans, contracts,
leases or other agreements to which Licensee or Guarantor is a party.
10. Representation and Warranties of Licensor
A. Organization. Licensor is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
B. Authority Relative to this Agreement. Licensor has full
corporate power and authority to execute, perform and deliver this
Agreement. The execution, delivery and performance of this Agreement has
been duly and validly authorized by all necessary corporate action, and no
other corporate proceedings on the part of Licensor are necessary to
authorize this Agreement. This Agreement has been duly and validly executed
and delivered by Licensor and constitutes a valid and binding agreement of
Licensor, enforceable in accordance with its terms, except that (i) such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
C. No Violation. The execution, performance and delivery of
this Agreement by Licensor will not (i) violate any provision of the
Certificate of Incorporation or By Laws of Licensor, (ii) violate, or be in
conflict with, or constitute a default or termination event (or an event
which, with notice or lapse of time or both, would constitute a default or
a termination event) under, any agreement or commitment to which Licensor
is a party, or (iii) violate any applicable statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority
binding on Licensor.
D. Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required in connection with the
execution, delivery and performance of this Agreement by Licensor. No
consent of any person is necessary for the execution, performance or
delivery of this Agreement by Licensor, including, without limitation,
consents from parties to loans, contracts, leases or other agreements to
which Licensor is a party.
E. Licensed Xxxx. To the knowledge of Licensor after due
inquiry of appropriate Licensor personnel, Licensor owns all right, title
and interest in and to the Licensed Xxxx in the United States and Canada.
There is no claim, action, proceeding, suit, complaint or, to the knowledge
of Licensor, investigation pending or, to the knowledge of Licensor,
threatened that (i) the use of the Licensed Xxxx in connection with the
Merchandise infringes upon or conflicts with the intellectual property
rights of any other person, or (ii) challenges the legality, validity,
enforceability, use or ownership of the Licensed Xxxx. To the knowledge of
Licensor, no third party has interfered with, infringed upon or
misappropriated the Licensed Xxxx.
11. Indemnification and Insurance
A. Licensor hereby agrees to indemnify and hold harmless
Licensee, its affiliates and each of their respective shareholders,
officers, directors, employees and agents against any and all liability,
claims, causes of action, suits, damages and expenses (including reasonable
attorneys' fees), for which they or any of them may become liable or may
incur or be compelled to pay in any action or claim against them or any of
them arising from infringement of statutory or common law trademark or
trade name rights of others through the use of the Licensed Xxxx by
Licensee in the United States, Canada or Mexico in compliance with all of
the terms and conditions of this Agreement, provided that Licensee: (i)
gives Licensor written notice of each such action or claim promptly
following its receipt thereof, (ii) gives Licensor the opportunity to
undertake and to control the defense and settlement of such claim through
counsel of its own choosing, and (iii) fully cooperates with Licensor in
the investigation, defense and settlement of any such claim. Licensee shall
have the right to participate in (but not to control) any such defense
through counsel of its choice, but at Licensee's expense. If Licensor fails
or refuses to undertake the defense of any such claim within a reasonable
period after notice from Licensor, Licensee shall be entitled to defend
such claim through counsel of its choice, and Licensor shall be responsible
for reimbursing Licensee for any expenses incurred by Licensee, including
but not limited to reasonable attorneys', accountants', and other experts'
fees and expenses in the investigation, defense and settlement of such
claim and in enforcing its rights pursuant to this Section 11.A, in
addition to any damages and penalties ultimately awarded against Licensee
which are indemnifiable hereunder.
B. Licensee agrees to indemnify and hold harmless Licensor, its
affiliates and each of their respective shareholders, officers, directors,
employees and agents against any and all liability, claims, causes of
action, suits, damages and expenses for which they or any of them may
become liable or may incur or be compelled to pay in any action or claim
against them or any of them by any persons other than Licensor for or by
reason of (a) the infringement of design rights, patents, trade secret
rights or rights to any intellectual property of third persons (other than
trademark rights infringed by use of the Licensed Xxxx in accordance with
all the terms hereof, or resulting from a breach by Licensee of its
representations and warranties in the Stock Purchase Agreement) as a result
of the manufacture, warehousing, marketing, promotion, publicity,
advertising, sale or distribution of Licensed Merchandise by Licensee or
any of its agents, representatives, contractors, sublicensees or assigns,
(b) any acts, whether of omission or commission, that may be committed or
suffered by Licensee or any of its agents, representatives, contractors,
sublicensees or assigns in connection with this Agreement, (c) any
liability (including, without limitation, any personal injury or property
damage) arising out of the manufacture, warehousing, marketing, promotion,
publicity, sale, advertising, or distribution of or the use by any
professional or consumer of, Licensed Merchandise, or any violation of any
warranty, representation or agreement made or deemed made by Licensee or
any of its agents, representatives, contractors, sublicensees or assigns
with respect to the Licensed Merchandise, or (d) the breach by Licensee of
any of its representations, warranties or covenants in this Agreement.
Licensor shall give Licensee written notice of any such claim promptly
following its receipt thereof. Licensee shall have the opportunity to
undertake and to control the defense and settlement thereof through
attorneys selected by Licensee after notice to and consultation with
Licensor and good faith negotiations regarding alternative counsel if
Licensor has reasonable objections to Licensee's choice of counsel.
Notwithstanding the foregoing, Licensee shall not, without the consent of
Licensor, settle or compromise any claim or consent to the entry of any
judgment which includes a remedy other than the payment of money by
Licensee. Licensor will cooperate with Licensee in the investigation,
defense and settlement of any such claim and shall have the right to
participate in (but not to control) any such defense through counsel of its
own choice, but at Licensor's own expense. If Licensee elects not to
undertake the defense of any such claim, it will be responsible for
reimbursing Licensor for any expenses incurred by Licensor, including but
not limited to reasonable attorneys', accountants', and other experts' fees
and expenses in the investigation, defense and settlement of such claim and
in enforcing its rights pursuant to this Section 11.B, in addition to any
damages and penalties ultimately awarded against Licensor which are
indemnifiable hereunder.
C. (i)Without limiting the indemnification provided in Section
11.B above and in addition to it, Guarantor agrees to carry and maintain,
throughout the Term (including all renewal terms, if any) and for five
years thereafter, with an insurance carrier authorized to do business in
all jurisdictions in which Licensee is qualified to do business and having
a rating of "A" Class "X" or better according to Best's Insurance Reports
and a rating of classification "A" or better according to Standard and
Poor's, the following insurance coverage:
(1) a broad form Comprehensive General Liability Insurance
Policy or, if such policy is not reasonably available, such
other policy as would provide substantially the same
protection to Licensor and Licensee or Guarantor written on
occurrence basis covering Licensee's activities with respect to
the Licensed Merchandise which includes but is not limited to
coverage for contractual liability, premises operations,
products liability, personal injury and advertising injury
liability and broad form property damage liability, which shall
provide protection to Licensor of at least Ten Million Dollars
($10,000,000) per occurrence and Ten Million Dollars
($10,000,000) in the annual aggregate;
(2) statutory workers' compensation and employers liability
insurance with a limit for Bodily Injury by Accident of not
less than One Million Dollars ($1,000,000) each accident and
for Bodily Injury by Disease of not less than One Million
Dollars ($1,000,000) policy limit and of not less than One
Million Dollars ($1,000,000) for each employee; and
(3) automobile liability insurance covering all owned,
non-owned, and hired vehicles to be used in the performance of
this Agreement with minimum limits of Two Million Dollars
($2,000,000) combined single limit.
These stipulated limits of coverage shall not be construed as a
limitation of any potential liability of Licensee or Guarantor. Guarantor
shall have Licensor, its parents, subsidiaries, affiliated companies and
their respective officers, directors, employees, and agents named as
additional insureds on such policies. Guarantor shall, within thirty (30)
days after the date first above written, provide to Licensor a Certificate
of Insurance and certified copies of endorsements to such policies from
the insurance carrier which evidences each insurance coverage required, the
limits of liability stated above, without any provision for deductibles or
self-insured retentions, and further provides that the policies may not be
materially changed or canceled without at least sixty (60) days prior
written notice to Licensor. Not less than thirty (30) days prior to any
such cancellation or expiration of the policies, Guarantor shall provide
Licensor with a Certificate of Insurance and certified copies of
endorsements evidencing that a new insurance policy with the same coverage
and terms described above will be in place prior to such termination. Upon
reasonable request by Licensor during the Term, Guarantor shall deliver to
Licensor evidence in form and substance reasonably satisfactory to
Licensor, of the maintenance and renewal of the required insurance,
including, without limitation, renewal certificates and copies of those
portions of policies, riders and endorsements pertaining to this Agreement.
Any insurance policy purchased by or carried by Licensor or any of its
affiliates shall not be required to contribute in case of any loss by any
person, including Licensor or Licensee and their affiliates, relating to
the Licensed Merchandise and either the Certificate of Insurance to be
provided hereunder or an endorsement to such policy shall state the same,
with a certified copy of such endorsement accompanying the Certificate of
Insurance to be delivered to Licensor. Guarantor's failure to deliver said
insurance certificate or renewals thereof and/or Licensor's failure to
request said insurance documentation shall not be construed as a waiver of
Guarantor's obligation to provide the required insurance.
(ii) Each of Licensee and Guarantor hereby waives all
rights to claim against Licensor with respect to any bodily injury,
personal injury losses or damages to real or personal property, or any
other loss arising from any claim however so caused covered by Licensee's
indemnification obligation hereunder and agrees to obtain a waiver of
subrogation from any insurance company insuring its interests in favor of
Licensor, its parents, subsidiaries, affiliated companies, and their
respective officers, directors, employees and agents.
(iii) Guarantor shall require all subcontractors for whom
Guarantor or Licensee does not furnish insurance to carry and maintain
throughout their performance of services in connection with this Agreement
the insurance coverage required under this Section 11.C with the
appropriate endorsements as required hereunder.
(iv) Should Guarantor fail to obtain the insurance
coverage and provide the documentation required by this Section 11.C,
Licensor shall have the right itself to obtain such coverage, at
Guarantor's expense.
12. Termination
Notwithstanding the terms and conditions of Section 3 hereof,
this Agreement may be terminated in accordance with the following
provisions:
A. Licensor may terminate this Agreement immediately by giving
notice in writing to Licensee in the event Licensee fails to make payment
of royalties and any other amounts due hereunder as and when due, and fails
to cure such default (i) for the first or third calendar quarter, within
thirty (30) working days, or (ii) for the second or fourth calendar
quarter, within ten (10) working days, after delivery of written notice of
such default by Licensor.
B. Either party may terminate this Agreement immediately by
giving notice in writing to the other party in the event the other party
materially fails to perform its obligations hereunder (including, without
limitation, the obligations to submit timely its quarterly reports; to
obtain prior approvals as required hereby; to distribute only through
approved distribution channels; to maintain adequate insurance and to use
only as expressly permitted hereunder the Licensed Xxxx) or otherwise
materially breaches any of its covenants, representations or warranties as
set forth in this Agreement and such party fails to cure such default
within thirty (30) days after delivery of written notice of such default
from the other party.
C. If Licensee or Guarantor shall make an assignment for the
benefit of creditors, or shall generally not pay its debts as they become
due, or shall file a petition commencing a voluntary case under the
Bankruptcy Reform Act of 1978, 11 U.S.C. Section 101 et seq., as amended or
any successor thereto (the "Bankruptcy Code"), or shall be adjudicated an
insolvent, or shall file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future statute, law or
regulations, or shall file any answer admitting or shall fail to deny the
material allegations of such petition filed against it for such relief, or
consent to the filing of any such petition or shall seek or consent to or
acquiesce in the appointment of any agent, trustee, receiver, custodian,
liquidator or similar officer for it or of all or any substantial part of
its assets or properties, or its directors or majority stockholders shall
take any action authorizing any of the foregoing or looking to its
dissolution or liquidation, or it shall cease doing business as a going
concern, or an order for relief shall be entered against it under any
chapter of the Bankruptcy Code, or if, within sixty (60) days after the
filing of any petition or the commencement of any proceeding against either
party seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the Bankruptcy Code or any
other similar present or future statute, law or regulation, such proceeding
shall not have been dismissed, or a decree or order of a court having
competent jurisdiction shall have been entered approving as properly filed
any such petition, or if, within sixty (60) days after the appointment,
without the consent or acquiescence of such party, of any agent, trustee,
receiver, custodian, liquidator or similar officer for it or of all or any
substantial part of its properties, such appointment shall not have been
vacated this Agreement shall automatically, without notice or any further
act or deed of any party, terminate and be of no further force or effect,
except that any and all liabilities and obligations of Licensee or
Guarantor at the time outstanding under or in connection with this
Agreement shall automatically, without notice or any creditor's act or deed
of any party, become due and payable.
D. In the event Licensee assigns or sublicenses any of its
rights hereunder, or otherwise engages in a transfer prohibited by Section
16.C, without the prior written approval of Licensor, Licensor may, at its
option, terminate this Agreement pursuant to Section 12.B.
E. Notwithstanding anything to the contrary herein, in the
event that Licensor terminates this Agreement pursuant to this Section 12,
Licensor does not waive and shall have and reserves all rights and remedies
provided under this Agreement and available at law and in equity, and in
addition shall be entitled to accelerate payment to Licensor of all unpaid
Royalties due up through the date of termination of the Agreement, which
shall be payable to Licensor in full within thirty (30) days of the
effective date of termination.
F. If this Agreement shall be determined by a court,
administrative or governmental body or authority to be in violation of any
applicable law, or to require any material change to be in compliance with
any judicial or administrative decision or ruling, the parties shall
negotiate in good faith to revise the offending provision, and if either
party in good faith determines that such offending provision cannot be
revised without adversely affecting the material benefits to it of this
Agreement, either party may elect to terminate this Agreement upon thirty
(30) days' written notice to the other party.
13. Effect of Expiration or Termination
A. Except to the extent provided in Section 13.B hereof, upon
the expiration or termination of this Agreement for any reason, neither
Licensee nor its receivers, representatives, agents, successors or assigns
shall have any right to exploit or in any way use the Licensed Xxxx. Except
to the extent provided in Section 13.B hereof, upon such expiration or
termination of this Agreement, Licensee shall forthwith discontinue all use
of the Licensed Xxxx and shall not thereafter use the Licensed Xxxx or any
variation or simulation thereof, and Licensee hereby irrevocably releases
and disclaims any right or interest in or to the Licensed Xxxx. Within
thirty (30) days of the expiration or termination of this Agreement,
Licensee shall provide Licensor with an accurate schedule of all work in
process and finished inventory of Licensed Merchandise to which the
Licensed Xxxx is affixed, which is on hand as of the close of business on
the date of such expiration or termination (hereinafter the "Inventory").
B. If, upon the expiration or termination of this Agreement,
Licensee shall have on hand any Inventory of the Licensed Merchandise and
if Licensee is not otherwise in default under this Agreement, Licensee may
continue to use the Licensed Xxxx solely in connection with the
advertising, merchandising, promotion and sale of the Inventory of Licensed
Merchandise for a period of up to nine (9) months following the expiration
or termination of this Agreement. During such nine (9) month period,
Licensee shall be obligated to continue to pay Licensor the Royalties, if
any, provided for in Section 6.A. If Licensee elects to continue to use the
Licensed Xxxx as provided under this paragraph, it shall notify Licensor of
its election at least ninety (90) days prior to the expiration or
termination of this Agreement. Such notice shall include a complete and
accurate schedule of Inventory of Licensed Merchandise which is projected
to be on hand as of the close of business on the date of such expiration or
termination and shall reflect Licensee's actual cost of each such item as
set forth or reflected on the balance sheet contained in Licensee's latest
quarterly report on Form 10-Q or annual report on Form 10- K.
C. Upon the expiration or termination of this Agreement or, if
applicable, upon the expiration of the period provided for in Section 13.B
hereof, Licensee shall, at its own expense, remove all uses of or
references to the Licensed Xxxx from all Inventory or destroy such
Inventory, Packaging, advertising and promotional materials bearing the
Licensed Xxxx or prepared for use in connection with the Licensed
Merchandise.
14. Confidentiality
A. In connection with the performance of this Agreement,
Licensor and Licensee will have access to certain confidential and
proprietary information of the other party, including, but not limited to,
business plans, proposed advertising, designs, sales records, financial
data and manufacturer's know-how, and also including the business terms of
this Agreement. Recognizing that such information represents valuable
assets and property of the disclosing party, and the harm that may befall
such party if any of such information is disclosed, the recipient agrees to
hold all such information in strict confidence and not to use or otherwise
disclose any such information to third parties without having received the
prior written consent of the disclosing party and a written agreement from
such third party to maintain such information in strict confidence. The
obligation of confidentiality created herein shall survive the expiration
or termination of this Agreement.
B. The obligations of confidentiality created herein shall
cease to apply:
(i) to information which comes into the public domain,
provided it did not come into the public domain through the unauthorized
acts of the receiving party;
(ii) to information which was in the receiving party's
possession prior to its disclosure, or was later disclosed to the receiving
party by a third party who is lawfully in possession of such and, to the
receiving party's knowledge, was under no obligation to keep such
information confidential;
(iii) to information which, in the opinion of the
receiving party's counsel, is required to be disclosed by law, but only to
the extent so required and only upon prior written notice to the other
party hereto; and
(iv) to information of Licensee which Licensor may be
required to disclose in order to enforce its rights under this Agreement.
15. Bankruptcy
A. Notwithstanding the provisions of Section 12.C, in the event
that it is determined by any court or bankruptcy trustee that this
Agreement may be assumed or assigned in connection with a case commenced by
or against either party under the Bankruptcy Code, Licensor and Licensee
hereby acknowledge that adequate assurance of future performance under this
Agreement (within the meaning of the Bankruptcy Code) shall include, inter
alia, adequate assurance:
(i) that any and all royalty payments and other
consideration due from Licensee to Licensor under or pursuant to this
Agreement shall be duly and timely paid;
(ii) that the assumption or assignment of this Agreement
will not result in the breach by either party of any provision in any other
license, contract, or agreement relating to the Licensed Xxxx or otherwise;
(iii) that any person or entity that assumes this
Agreement or to which this Agreement is assigned shall fully and faithfully
assume, observe and comply with all of the covenants, requirements and
restrictions provided for under this Agreement and that termination rights
for breach of this Agreement shall continue to apply without change; and
(iv) that the value of the Licensed Xxxx to Licensor
shall not be materially diminished by reason of the assumption or
assignment of this Agreement.
Notwithstanding the foregoing, the parties recognize that circumstances may
give rise to additional considerations, and nothing contained herein shall
be construed to mean that considerations other than those set forth above
shall not be deemed relevant to adequate assurance.
B. Any person or entity to which this Agreement is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under
this Agreement on and after the date of such assignment. Any such assignees
shall upon demand execute and deliver to Licensor or Licensee, as the case
may be, an instrument confirming such assumption.
16. Miscellaneous
A. All notices required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed to be duly given
on the date delivered if delivered personally, on the fifth business day
after being mailed by certified or registered mail (postage prepaid, return
receipt requested) or on the next business day after being sent by
reputable overnight courier (delivery prepaid), in each case, to the
parties at the following addresses, or on the date sent and confirmed by
electronic transmission to the facsimile number specified below (or at such
other address or facsimile number for a party as shall be specified by
notice given in accordance with this Section):
If to Licensor:
The Xxxxxxx Company, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
The Xxxxxxx Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Licensee:
Ranco Incorporated of Delaware
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx plc
Xxxxx Xxxxx
0-0 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx XX0 0XX
Attention: Chief Legal Officer
Telephone: 000-00-0000-000-000
Facsimile: 011-44-1753-622-030
and:
Fried, Frank, Harris, Xxxxxxx and Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may change the address to which such notice and
communications shall be sent by written notice to the other party, provided
that any notice of change of address shall be effective only upon receipt.
B. This Agreement (including Schedules) and the Stock Purchase
Agreement set forth the entire agreement and understanding between the
parties hereto relating in any way to the use of the Licensed Xxxx on the
Licensed Merchandise, and to any other subject matter contained herein and
merges all prior discussions between them. Neither party shall be bound by
any definition, condition, warranty or representation other than as
expressly stated in this Agreement, and this Agreement may not be amended
or modified except by a written instrument signed by the party against whom
such modification or amendment is to be enforced.
C. The rights granted to Licensee hereunder are strictly
personal to Licensee. Other than pursuant to Section 2.E, neither this
Agreement nor any of the rights granted to Licensee hereunder may be
assigned or sublicensed by Licensee or otherwise transferred (voluntarily
or by operation of law), to any person, firm or corporation without the
prior written approval of Licensor (which shall be in Licensor's sole
discretion).
D. In any review or consultation conducted by or on behalf of
Licensor hereunder, Licensor is acting solely on its behalf and not as a
consultant or advisor, and shall have no responsibility for the operation
of Licensee's business or its manufacturing, distribution, sales or
facilities used in connection therewith, whether upon the recommendation of
Licensor or otherwise. Nothing herein contained shall be construed to
constitute the parties hereto as partners or as joint venturers, or either
as an employee or agent of the other.
E. This Agreement shall be deemed to be a contract made under
the laws of the State of New York and shall be governed by and construed in
accordance with the laws of such State, as if both parties were residents
of such State. The parties hereby consent to the exclusive jurisdiction of
any court of competent jurisdiction sitting in the State of Delaware and
hereby waive any objection to venue in such court.
F. The headings in this Agreement are for the convenience of
the parties only and shall not affect the meaning or interpretation of this
Agreement or any provisions thereof.
G. No waiver by either party, whether expressed or implied, of
any provision of this Agreement, or of any breach or default, shall
constitute a continuing waiver of such provision or a waiver of any other
provision of this Agreement. Acceptance of payments by Licensor shall not
be deemed a waiver of any violation of, or default in, any of the
provisions of this Agreement by Licensee.
H. Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors and
permitted assigns.
I. Guarantor hereby unconditionally and irrevocably guarantees
all of the obligations and liabilities of Licensee under this Agreement,
including but not limited to the full and prompt payment of all sums that
now are or may hereafter become due and payable from Licensor to Licensee
under this Agreement and the full and prompt performance of all present and
future obligations and liabilities of Licensee to Licensor under this
Agreement. Guarantor further promises to pay all such sums due Licensor
under this guarantee promptly on demand, without deduction for any claim or
set-off or counterclaim and regardless of whether recourse has first been
sought against Licensee. This is a guarantee of payment and not of
collection.
J. This Agreement may be executed in one or more counterparts,
each of which shall be an original, but all of which, together, shall be
deemed to constitute a single document.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of
the date and year first above written.
THE XXXXXXX COMPANY, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President/General
Counsel
RANCO INCORPORATED OF DELAWARE
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX PLC
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
SCHEDULE A
LICENSED XXXX
(Ser. No.) (Filing Date)
Xxxx Reg. No. Reg. Date Country
---- ---------- --------- -------
XXXXXXX & Design 2,070,684 6/10/97 United States
COLEMAN (75/011,070) (10/26/95) United States
COLEMAN & Design (75/000,621) (10/2/95) United States
COLEMAN & Design (844,163) (5/2/97) Canada
SCHEDULE B
APPROVED OUTLETS
Ace
Xxxx
X.X.'s
Bradlees
Builders Square
Caldor
Canadian Tire
Xxxxxx
Eagle Hardware
Xxxx Xxxxx
Xxxxxxxxx/H.Q.
Hills
Home Base
Home Depot
Kmart
Longs Drug Stores
Lowes
Meijers
Menards
Xxxxxx Bros.
Xxxxxxxxx
Price Costco
Sams
Scotty's
Sears
Target
WalMart
EXHIBIT 1
CONFIDENTIALITY AGREEMENT
The Xxxxxxx Company, Inc., a Delaware corporation (the
"Company"), acknowledges that it and its duly authorized representatives
are to conduct certain inspections and examinations of Ranco Incorporated
of Delaware, a Delaware corporation ("Licensee"), its contractors and
suppliers, in accordance with Section 4(G) of the License Agreement, dated
as of March 24, 1998 (the "License Agreement"), among the Company, Xxxxx
plc, an English corporation, and Licensee. The Company further acknowledges
that in the course of or in connection with such inspections and
examinations, proprietary information may be disclosed to it and its
representatives. The Company understands and agrees that such proprietary
information is to be regarded as confidential and is not to be used by the
Company or its representatives, or disclosed by the Company or its
representatives to anyone other than responsible personnel of the Company
or its representatives who agree to keep such proprietary information
confidential and who are directly concerned with the performance and/or
quality control under the License Agreement, without the prior written
consent of Licensee.
The foregoing understanding is subject only to the exception
that the obligation to maintain confidential information obtained by the
Company and its representatives shall not apply to (i) information that has
been made public other than through breach of this agreement, (ii)
information that was previously known to the Company or its representatives
free of any obligation of confidentiality, (iii) information which was
received by the Company or its representatives from a third party who is
not under an obligation of confidentiality to Licensee, its contractors or
suppliers and (iv) information that is required by law to be disclosed.
The Company understands and agrees that no failure or delay by
Licensee in exercising any right, power or privilege under this agreement
shall operate as a waiver thereof.
This agreement shall continue in effect during the term of, and
for two (2) years after the termination or expiration of, the License
Agreement.
This agreement shall be governed by and construed under the
laws of the State of New York, without regard to the conflict of laws
principles thereof. The invalidity or unenforceability of any provision
herein shall not affect the validity or enforceability of any other
provision herein.
This agreement contains the entire agreement between the
Company and Licensee concerning the subject matter hereof and supersedes
all previous agreements, written or oral, relating to the subject mater
hereof. No modification of this agreement or waiver of the terms and
conditions hereof shall be binding on the Company or Licensee, unless
approved in writing by each of the undersigned and Licensee.
This agreement may be executed in counterparts, each of which
when executed shall be deemed to be an original, and all of such
counterparts taken together shall constitute one and the same instrument.
Dated:
THE XXXXXXX COMPANY, INC.
By: ___________________________________
Name:
Title:
Acknowledged and Agreed to:
RANCO INCORPORATED OF DELAWARE
By: __________________________
Name:
Title:
