SETTLEMENT AGREEMENT AND AMENDMENT
THIS AGREEMENT, made and entered into this 5th day of
December, 1996 (the "Settlement Agreement") by and among The
Xxxxxxx Co. (the "Buyer"), The Mennen Company ("Mennen") and
Colgate-Palmolive Company ("Colgate" and together with
Mennen, the "Sellers"), is as follows:
WHEREAS, each of the Sellers has entered into an
Acquisition Agreement with the Buyer dated as of December
31, 1995 (respectively, the "Mennen Acquisition Agreement"
and the "Colgate Acquisition Agreement", and collectively,
the "Acquisition Agreements"; all capitalized terms used
herein without definition shall, unless the context
otherwise requires, have the respective meanings ascribed to
them in the Acquisition Agreements); and
WHEREAS, in connection with the closing of the
Acquisition Agreements Colgate and the Buyer entered into
the Transition Agreement and the Sellers and the Buyer
entered into that certain side letter dated December 31,
1995, relating to minimum sales (the "Minimum Sales
Agreement"); and
WHEREAS, pursuant to the Minimum Sales Agreement the
Buyer had the right to cause the Sellers to repurchase one
or more of the Products under certain circumstances; and
WHEREAS, the Buyer has made certain allegations
relating to certain of the Products and has described
certain states of facts which it alleges gives rise to
claims under the Acquisition Agreements; and
WHEREAS, the parties wish to settle outstanding issues
and disputes between and among them and amend the
Acquisition Agreements accordingly;
NOW, THEREFORE, the parties hereto, intending to be
legally bound hereby, and in consideration of the mutual
covenants and promises contained herein, agree as follows:
1. Termination of Minimum Sales Agreement. Upon the
execution of this Settlement Agreement, the Minimum Sales
Agreement shall be deemed terminated and of no further force
and effect and none of the parties shall have any further
rights or obligations thereunder. As a result of the
foregoing, the Sellers shall not be required to repurchase
any of the Products from the Buyer and the Buyer shall,
subject to the Security Agreements and the Trademark
Security Agreements, retain all right, title and interest in
and to the Products.
2. Purchase Price Adjustment. Simultaneously with the
execution of this Settlement Agreement, the Sellers shall
deliver, or cause to be delivered, to the Buyer, by wire
transfer to an account designated by the Buyer, a portion of
the Purchase Price in the aggregate amount of $500,000.
3. Trademark Matters.
3.1 License of CB Xxxx in Canada. Simultaneously with
the execution of this Settlement Agreement, Colgate-
Palmolive Canada, Inc., a subsidiary of Colgate, and the
Buyer shall enter into a trademark license agreement in the
form annexed as Exhibit A hereto, pursuant to which Colgate-
Palmolive Canada, Inc. shall grant to the Buyer a royalty
free, perpetual license to the trademarks listed on Schedule
B of Exhibit A and related trade dress solely in connection
with the manufacture, marketing and sale by the Buyer of the
CB Talc Product Line in Canada (the "Canadian Trademark
License").
3.2 Transfer of Additional Foreign Trademarks.
Simultaneously herewith, Mennen shall sell, assign and
deliver to the Buyer, and the Buyer shall acquire from
Mennen, the trademarks listed on Exhibit B hereto
("Additional Foreign Trademarks"). The Buyer acknowledges
that the Additional Foreign Trademarks are being sold to the
Buyer "as is" and in no event shall the Sellers be liable
for any damages to the Buyer of any type whatsoever,
including, without limitation, special, indirect, collateral
or consequential damages in connection with or arising out
of the existence or use by the Buyer of any of the
Additional Foreign Trademarks including without limitation,
anticipated profits or other economic loss. The foregoing
notwithstanding, the Sellers represent that Mennen has not
granted rights to any other person with respect to the
Additional Foreign Trademarks.
3.3 Transfer Documents. Mennen shall, simultaneously
herewith, execute and deliver assignment documents (Foreign
Assignment Documents) in substantially the forms
collectively annexed hereto as Exhibit C. The Buyer shall
record the Foreign Assignment Documents or substantially
similar documents and such further documents of transfer in
such foreign jurisdictions, and the Buyer shall bear all of
the fees and expenses related to the recordal of such
foreign assignments.
3.4 License of Trademark BALM XXXX
a) The Buyer hereby grants to the Sellers the non-
assignable, non-exclusive right and license to use in
Trinidad and Tobago the trademark BALM XXXX solely in
connection with the distribution and sale of existing
inventory bearing such BALM XXXX trademark (the "BALM XXXX
Inventory"). Said license shall terminate on December
31,1996.
b) During the term of this license, the Sellers shall
use commercially reasonable efforts to cause the BALM XXXX
Inventory and the advertising used therefor to be of
comparable quality with those similar products and
advertising therefor which were manufactured, distributed,
marketed and sold by the Sellers as of the date of this
Settlement Agreement.
c) The Sellers acknowledge that all such us, of the
BALM XXXX trademark in Trinidad and Tobago shall inure to
the benefit of the Buyer.
d) Upon the termination of the license granted by this
Section 3.4, the Sellers shall immediately discontinue the
production, distribution and use of promotional materials,
advertising and any, other materials (s) which utilize the
BALM XXXX trademark in Trinidad and Tobago.
3.5 Waiver of Trademark Rights. Notwithstanding the
provisions contained in Section 8.4 of the Mennen
Acquisition Agreement, the Sellers hereby irrevocably waive
their rights to file trademark applications to register the
Xxxxxx Xxxxx in the territories ("Waived Territories")
listed on the schedule annexed hereto as Exhibit D. The
Sellers make no representations regarding the Xxxxxx Xxxxx
in the Waived Territories.
4. Amendments to Acquisition Agreements; Deferred
Payment Modification. Article III of each of the Colgate
Acquisition Agreement and the Mennen Acquisition Agreement
is hereby deleted in its entirety and in lieu thereof, the
parties agree as follows:
4.1 Deferred Payment. In addition to the Base Purchase
Price (as adjusted pursuant to Section 2 above) and as
additional consideration for the purchase of the Trademarks
under each of the Acquisition Agreements, the license of the
Domestic XX Xxxxx and the Canadian Trademark License, the
Buyer shall pay the Sellers an amount equal to eight (8%)
percent of the Buyer's net sales of the Products (the
"Deferred Payment") through December 31, 2003 subject to a
maximum of $4,000,000 (the "Aggregate Deferred Payment
Obligation"); (the earlier of the receipt by the Sellers of
the Aggregate Deferred Payment Obligation and December 31,
2003 hereinafter the "Deferred Payment Period"). As used
herein, "net sales" shall mean the Buyer's total worldwide
gross sales of the Products in all markets, during the
Deferred Payment Period, determined on an accrual basis,
less actual freight allowances permitted by the Buyer to be
taken by its trade customers, returns, trade allowances,
trade rebates, and trade and cash discounts. For purposes
of determining the Buyer's total worldwide gross sales of
the Products, there shall be included sales of all currently
sold Products as well as the following products: (a) new
products using the Wildroot Trademarks in the hair care
category, (b) new products using the Domestic XX Xxxxx in
the talc category, (c) new products using the Protein 21 or
Protein 29 Trademarks in the hair care category and (d) new
products using the Balm Xxxx, Xxxxxxxx or Stretch Xxxx
Trademarks in the body and personal care category (the
products described in clauses (a) through (d), each an
"Extension Product"). No other new products will be
included. Notwithstanding the foregoing, sales of an
Extension Product shall not be included in the determination
of net sales for a period of eighteen (18) months following
the first sale by the Buyer of such Extension Product but
shall be included thereafter for the duration of the
Deferred Payment Period. Additionally, for purposes of
determining the Buyer's total worldwide gross sales of the
Products, there will be included sales made by any licensee
or sublicensee of the Buyer or any other party to whom the
Buyer shall otherwise transfer title (or a lesser interest
therein) to any of the Products, including any subsequent
licensee, sublicensee or transferee of any such party
(collectively the "Transferees").
4.2 Deferred Payment Statements. Statements as to net
sales of the Products by the Buyer or any Transferee during
each calendar quarter shall be delivered to the appropriate
Seller within 30 days following the end of such calendar
quarter. Each such statement shall be in reasonable detail
and shall set forth the Buyer's (and each Transferee's, if
any) gross sales of the Products, on a Product by Product
basis, for the period to which it relates and the deductions
therefrom.
4.3 Delivery of Deferred Payments.
(a) Deferred Payments shall be made by the Buyer to the
Sellers on or before July 31 for the semi-annual period
ending the preceding June 30 and on or before January 31 for
the semi-annual period ending the preceding December 31.
(b) Each Deferred Payment shall be payable as follows:
an amount equal to the greater of $150,000 or 50% of the
Deferred Payment shall be payable by wire transfer in
immediately available funds to an account designated by
Colgate. The balance, if any, shall be payable by wire
transfer, as aforesaid, or, at the option of the Buyer and
provided the Buyer has delivered to the Sellers a
"Compliance Certificate" reasonably satisfactory in form and
substance to the Sellers, by the delivery to Colgate, on
behalf of the Sellers, of a promissory note in an amount
equal to such balance, which note shall bear interest at the
base rate of Citibank, N.A., New York, New York in effect
from time to time, shall be due and payable the earlier of
five (5) years from the date of issuance or January 31,
2004, and which shall otherwise be in the form of Exhibit C
to the Colgate Acquisition Agreement (the "Deferred Payment
Note").
(c) If the Buyer elects to deliver a Deferred Payment
Note in lieu of cash, the Buyer shall send written notice
the "Election Notice") thereof to the Sellers within 10
business days following the end of the semi-annual period to
which the Deferred Payment relates, together with (i) a copy
of the Buyer's most recent financial statements as filed
with the Securities and Exchange Commission (the"SEC") (or,
if the Buyer is no longer required to file its financial
statements with the SEC, the Buyer's most recently prepared
balance sheet and income statement which shall be within the
previous 90 days prior to the end of the semi-annual period
to which the Deferred Payment relates and shall have been
prepared in accordance with generally accepted accounting
principles consistently applied) and (ii) a certificate (the
"Compliance Certificate"), signed by the Buyer's Chief
Financial Officer, certifying that (A) the Buyer's net worth
and ratios of debt to equity and debt to total
capitalization as at the date of the balance sheet contained
in such financial statements (the "Balance Sheet") are not
less favorable than as reflected on the Buyer's balance
sheet as filed with the SEC for the quarter ended September
30, 1995, (B) since the date of the Balance Sheet, there has
been no material adverse change in the financial condition
or affairs of the Buyer and (C) there is not existing any
"default" under and as defined in the Security Agreement
referred to in Section 4.1 of the Acquisition Agreements.
4.4 Annual Minimum Deferred Payment. Notwithstanding
anything to the contrary otherwise contained herein and
irrespective of the net sales of the Products, the Buyer
shall, until such time as the Aggregate Deferred Payment
Obligation has been satisfied in full, pay the Sellers a
minimum of $150,000 by wire transfer as aforesaid in respect
of Deferred Payments for each semi-annual period during the
Deferred Payment Period. Further in the event that the
Buyer has not paid the Sellers the Aggregate Deferred
Payment Obligation on or before January 31, 2004, then on
such date the Buyer shall pay the Sellers, by wire transfer
as aforesaid, an amount equal to the difference between the
Aggregate Deferred Payment Obligation and the aggregate
Deferred Payments theretofore paid by the Buyer to the
Sellers hereunder, whether by wire transfer or by Deferred
Payment Notes.
4.5 Foreign Currency Conversion. All payments due
hereunder shall be paid in United States Dollars. If the
Buyer (or any Transferee) has sales of the Products in a
currency other than the U.S. Dollar, for purposes of
determining the Deferred Payment due to the Sellers on
account of such sales, such sales shall be converted into
U.S. Dollars in accordance with the exchange rate in effect
during the period in which such sales were made in
accordance with U.S. generally accepted accounting
principles.
4.6 Books of Account. The Buyer agrees to maintain
complete, true and correct books of account concerning the
sale of the Products in sufficient detail to enable the
Deferred Payment to be readily computed and verified. The
Buyer undertakes to provide the Sellers with equivalent
supporting data from each Transferee, if any. The Buyer
further agrees to permit the Sellers, its agents and/or
independent public accountants, to have full access to such
books of account (including the right to make copies
thereof) during normal business hours and upon reasonable
notice to the Buyer for the term of the Deferred Payment
Period plus three (3) years thereafter. The Buyer shall use
commercially reasonable efforts to cause its Transferees to
allow the Sellers to review their books for the purpose of
confirming sales. The Sellers hereby agree to keep
confidential all such information and to use it only in
accordance with and for the purposes of this Section 4.
4.7 Arbitration. If the Sellers conclude, after review
of the Buyer's books of account, that additional payments
are owing to the Sellers with respect to the period(s)
reviewed, then the Seller shall notify the Buyer in writing
of its determination, which notice (the"Deficiency Notice")
shall set forth in detail the basis for the Sellers'
determination that additional amounts are due and owing and
the amount thereof. If the Sellers and the Buyer are unable
to resolve the disputed items within ten(10) business days
after the Buyer receives the Deficiency Notice, the parties
shall refer the dispute to a partner in the New York offices
of a firm of certified public accountants mutually agreeable
to the parties (the"Arbiter"), as an arbitrator to finally
determine, as soon as practicable, and in any event within
ninety (90) days after such reference, the amounts, if any,
owing to the Seller for the period(s) under consideration;
provided that if the parties are unable to mutually agree
upon an Arbiter, the Arbiter shall be designated by mutual
agreement between the parties' respective certified public
accountants. Amounts, if any, determined to be owing by the
Arbiter shall bear interest at the rate of eight (8%)
percent per annum from the date the amounts should
originally have been paid. The Arbiter shall otherwise
conduct the arbitration under such procedures as the parties
may agree or, failing such agreement, under the applicable
Commercial Arbitration Rules of the American Arbitration
Association. The fees and expenses of the arbitration and
the Arbiter incurred in connection with the arbitration
shall be allocated between the parties by the Arbiter in
proportion to the extent either party did not prevail on
items in dispute; provided that such fees and expenses shall
not include, so long as a party complies with the procedures
of this Section 4.7, the other party's outside counsel or
accounting fees. All determinations by the Arbiter shall be
final, binding and conclusive with respect to (a) amounts
owing to the Seller for the period(s) in dispute, including
interest thereon, and (b) the allocation of arbitration fees
and expenses. Judgment upon the award rendered by the
Arbiter may be entered in any court having jurisdiction
thereof.
4.8 Security Agreements. The parties agree that for
purposes of the Acquisition Agreements, Security
Agreements and all other documents executed by the parties
at the Closing, any references therein to Deferred Payments
and Deferred Payment Notes shall be deemed to mean the
Deferred Payments and Deferred Payment Notes referred to in
this Section 4. The Buyer acknowledges and agrees that its
obligations under this Settlement Agreement shall continue
to be secured by the Security Agreements.
4.9 Deferred Payment Adjustment. The parties
agree that the aggregate Deferred Payment for the semi-
annual period ended June 30, 1996 amounts to $264,897 and
that such Deferred Payment shall be deemed to have been
waived by the Sellers and credited in reduction of the
Aggregate Deferred Payment Obligation. For all purposes of
this Agreement, full effect shall be given to this credit in
determining whether the Aggregate Deferred Payment
obligation has been satisfied.
5. Delivery by Sellers of Profits. Simultaneously with
the execution of this Settlement Agreement, Colgate shall,
subject to the pricing adjustment provided for in Section
6.2 below, deliver to the Buyer, by wire transfer to an
account designated by the Buyer, the aggregate sum of
$173,664, which the Buyer acknowledges and agrees represents
any and all unpaid Profits (as defined in the Transition
Agreement) due the Buyer from Colgate under the Transition
Agreement through October 31, 1996.
6. Delivery of Minimum Guaranteed Inventory.
6.1 The Buyer acknowledges that the Sellers
have satisfied their obligations under Section 6.1(n) of the
Acquisition Agreements with respect to the delivery to the
Buyer of the Minimum Guaranteed Quantity of Inventory except
as to 4,689 cases of Inventory. The Buyer agrees that the
Sellers' obligation to deliver the remaining 4,689 cases
shall be satisfied in full (based upon and as of an
October 31, 1996 determination date) by the Sellers making a
cash payment to the Buyer in the amount of $57,152 payable
upon execution of this Settlement Agreement by wire transfer
to an account designated by the Buyer.
6.2 The Buyer acknowledges that the Sellers, at the
request of, and solely as an accommodation to, the
Buyer, have been filling orders and distributing certain of
the Products to Wal-Mart on behalf of the Buyer for a
service fee in the amount of 5% of net sales to Wal-Mart.
The accrued service fee through November 30, 1996 amounts to
$13,549 and shall be paid by means of a credit against funds
payable by Colgate pursuant to Section 5 above. The Buyer
expressly acknowledges and agrees that Sellers have no
obligation to continue to service Wal-Mart as aforesaid and
have the right, in their sole and absolute discretion, and
without prior notice to the Buyer, to discontinue such
services at any time. Service fees accruing subsequent to
November 30, 1996 shall be payable upon the discontinuation
of such services. The Buyer agrees that the Sellers are
not, and shall not be, liable in any manner whatsoever for
any damages sustained by the Buyer as a result of the
Sellers' services as aforesaid or termination of such
services, whether such services have been performed prior to
the date hereof or after the date hereof; provided, however,
that the foregoing shall not relieve the Sellers from any
liability arising out of defective Product manufactured by
or on behalf of Sellers and delivered to Wal-Mart for the
account of the Buyer.
7. Release by Buyer.
7.1 In consideration of this Settlement
Agreement and other good and valuable consideration,
including receipt of the release from the Sellers set forth
below in favor of the Buyer, the Buyer hereby releases and
discharges the Sellers and each of them, and their
respective shareholders, officers, directors, agents,
attorneys, agents, successors, assigns and anyone employed
by, affiliated with or duly acting on behalf of any of them
(collectively, the "Seller Releasees") from any and all
actions, causes of actions, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages and judgments, extents,
executions, claims and demands (whether or not heretofore
known, suspected or asserted) whatsoever in law or equity,
which against the Seller Releasees and each of them the
Buyer and its shareholders, officers, directors, agents,
attorneys, agents, successors, assigns and anyone employed
by, affiliated with or acting on behalf of any of them ever
had, now has or hereafter can, shall or may have, whether
known, or unknown, for or by reason of any matter, cause or
thing whatsoever from the beginning of the world to the date
of this Settlement Agreement arising out of, relating to or
in connection with the Acquisition Agreements, the
Transition Agreement or the Minimum Sales Agreement, or the
transactions contemplated thereby; provided, however, that
subject to the provisions of Section 7.2 below, this release
does not pertain to or include (a) this Settlement
Agreement, (b) the following Sections and Articles of the
respective Acquisition Agreements: Sections 1.3, 1.5, 6.1
(a)-(l), 6.1 (n) (as to the second sentence only), 6.1 (p),
6.1(q) and 12.4 and Articles IV, VIII and X thereof (all
other provisions of the Acquisition Agreements being
hereinafter collectively referred to as the "Released
Provisions"); (c) Sections 4.5 and Articles V and VI of the
Transition Agreement; (d) the Trademark License Agreement
and (e) the respective Security Agreements with each Seller
dated December 31, 1995.
7.2 The provisions of Clauses (b)-(e) of Section 7.1
above notwithstanding, the release provided for in Section
7.1 shall constitute a complete release of any and all
claims Buyer may have against the Seller Releasees(a) to the
extent the claim is based upon information known to the
Buyer as of the date hereof and/or (b) with respect to
Section 6.1 (q) of the Acquisition Agreements, to the
extent the information upon which a claim may be based,
whether or not known to the Buyer today, would also
reasonably form the basis for a claim under one or more of
the Released Provisions of either Acquisition Agreement.
8. Release by Sellers. In consideration of this
Settlement Agreement and other good and valuable
consideration, including receipt of the release from the
Buyer set forth above in favor of the Sellers, the Sellers
hereby release and discharge the Buyer and its shareholders,
officers, directors, agents, attorneys, agents, successors,
assigns and anyone employed by, affiliated with or acting on
behalf of any of them (the "Buyer Releasees") from any and
all actions, causes of actions, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages and judgments, extents,
executions, claims and demands (whether or not heretofore
known, suspected or asserted) whatsoever in law or equity,
which against the Buyer Releasees the Sellers or any of
their respective shareholders, officers, directors, agents,
attorneys, agents, successors, assigns and anyone employed
by, affiliated with or acting on behalf of any of them ever
had, now has or hereafter can, shall or may have, whether
known, or unknown, for or by reason of any matter, cause or
thing whatsoever from the beginning of the world to the date
of this Settlement Agreement arising out of, relating to or
in connection with the Acquisition Agreements, the
Transition Agreement or the Minimum Sales Agreement, or the
transactions contemplated thereby; provided, however, that
this release does not pertain to or include the obligations
of the Buyer Releasees pursuant to (a) this Settlement
Agreement, (b) Section 6.2 and Articles IV, VIII and X of
the respective Acquisition Agreements, (c) Articles V and VI
of the Transition Agreement, (d) the Trademark License
Agreement, (e) the respective Security Agreements with each
of the Sellers dated December 31, 1995, (f) the respective
Security Interest in Trademarks from the Buyer to each
Seller dated December 31, 1995, and (g) the Assumption
Agreement.
9. Litigation Costs. In any litigation, whether
brought before a court or alternative dispute resolution
body, which is based upon an alleged breach or default by a
party under this Settlement Agreement or under any agreement
referred to in this Settlement Agreement, the losing party
shall reimburse the prevailing party for all attorney's fees
and disbursements as well as all other costs incurred by the
prevailing party in connection with the prosecution or
defense of such litigation, whether same are incurred prior
to or after the commencement of litigation (collectively the
"Expenses").
10. Survival of Acquisition Agreements. Except as
amended hereby, the Acquisition Agreements shall remain in
full force and effect.
11. Further Assurances. The parties shall do and
perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as any
party may reasonably request in order to carry out the
intent and accomplish the purposes of this Settlement
Agreement and the consummation of the transactions
contemplated hereby.
12. Publicity and Disclosures. Except as required by
law or a party's listing agreement with a securities
exchange or association, no press release or other public
disclosure, either written or oral, of the transactions
contemplated by this Settlement Agreement, shall be made
without the prior mutual written consent of the Buyer and
the Sellers; provided that if a party is required as
aforesaid to publicly disclose this Agreement, then it shall
first give the other party written notice thereof and an
opportunity to comment on such proposed disclosure.
13. Binding Effect; Benefits. This Settlement
Agreement shall inure to the benefit of and shall be binding
upon the parties, the Seller Releases, the Buyer Releasees
and their respective successors and permitted assigns.
Nothing in this Settlement Agreement, expressed or implied,
is intended to or shall (a) confer on any person other than
the parties, the Seller Releases, the Buyer Releasees or
their respective successors or permitted assigns, any
rights, remedies, obligations or liabilities under or by
reason of this Settlement Agreement, or (b) constitute the
parties partners or participants in a joint venture.
14. Amendments and Waivers. This Settlement Agreement
may not be modified or amended except by an instrument in
writing signed by the party against whom enforcement of any
such modification or amendment is sought. Any party may, by
an instrument in writing, waive compliance by any other
party with any term or provision of this Settlement
Agreement on the part of such other party to be performed or
complied with. The waiver by a party of a breach of any term
or provision of this Settlement Agreement shall not be
construed as a waiver of any subsequent breach.
15. Governing Law. This Settlement Agreement shall be
construed and governed in accordance with the laws of the
State of New York, without giving effect to the choice of
law principles thereof.
16. Consent to Jurisdiction. (a) With respect to
any action commenced by the Sellers against the Buyer
hereunder or under any other document delivered pursuant to
this Settlement Agreement, the Buyer (i) consents and
submits to the jurisdiction of the Courts of the State of
New York or of the Courts of the United States of America
for the Southern District of New York for all purposes of
this Settlement Agreement, including, without limitation,
any action or proceeding instituted for the enforcement of
any right, remedy, obligation and liability arising under or
by reason of this Settlement Agreement and (ii) consents and
submits to the venue of such action or proceeding in the
City and County of New York (or such judicial district of a
Court of the United States as shall include the same).
(b) With respect to any action commenced by
the Buyer against the Sellers hereunder or under any other
document delivered pursuant to this Settlement Agreement,
the Sellers (i) consent and submit to the jurisdiction of
the Courts of the State of Florida or of the Courts of the
United States of America for the Southern District of
Florida for all purposes of this Settlement Agreement,
including, without limitation, any action or proceeding
instituted for the enforcement of any right, remedy,
obligation and liability arising under or by reason of this
Settlement Agreement and (ii) consents and submits to the
venue of such action or proceeding in the City and County of
Broward (or such judicial district of a Court of the United
States as shall include the same).
17. Separability. Any term or provision of this
Settlement Agreement which is invalid or unenforceable in
any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Settlement
Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Settlement Agreement in
any other jurisdiction.
18. Counterparts. This Settlement Agreement may
be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. No Admission. Nothing contained in this
Settlement Agreement shall be deemed an admission of any
wrongdoing or liability on the part of any of the parties
hereto.
IN WITNESS WHEREOF, the Sellers and the Buyer have
caused this Settlement Agreement to be signed in their
respective names by one of their officers thereunto duly
authorized, as of the date first above written.
THE MENNEN COMPANY
By:
Xxxx Xxxxxxx,
President
COLGATE-PALMOLIVE COMPANY
By:
Xxxx Xxxxxxx,
President -
Colgate-North America
THE XXXXXXX CO.
By:
Xxxxx Xxxxxx, Xx.
President and CEO
EXHIBIT A
TRADEMARK LICENSE AGREEMENT
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (hereinafter referred
to as the "LICENSE AGREEMENT") is made by and entered into
as of December 5, 0000 xxxxxxx XXXXXXX-XXXXXXXXX, XXXXXX
INC., a corporation incorporated under the laws of the
Province of Ontario, Canada, having its principal place of
business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0 (hereinafter referred to as the "LICENSOR"), and THE
XXXXXXX CO., a Florida corporation, having its principal
place of business at 0000 Xxxx XxXxx Xxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as the "LICENSEE").
WHEREAS, Licensor is the owner of the U.S. trademarks
listed on Schedule A and the trade dress related thereto
(hereinafter collectively referred to as the "LICENSED
TRADEMARKS"); and
WHEREAS, on December 31, 1995, Colgate-Palmolive
Company, parent company of Licensor, and Licensee entered
into an Acquisition Agreement (hereinafter referred as the
"ACQUISITION AGREEMENT") providing for Licensee to acquire
Assets and a trademark license to use the Licensed
Trademarks solely in connection with the manufacture, sale
and distribution of the CB Talc Product Line in the United
States (hereinafter referred to as the "U.S. TRADEMARK
LICENSE AGREEMENT"), as the terms "Assets" and "CB Talc
Product Line" are defined in the Acquisition Agreement; and
WHEREAS, Licensor is the owner of the Canadian
trademarks listed on Schedule B and the trade dress related
thereto (hereinafter collectively referred to as "CANADIAN
LICENSED TRADEMARKS"; and
WHEREAS, Licensee desires to use the Canadian Licensed
Trademarks in connection with the manufacture, sale and
distribution of the products listed on Schedule C
(hereinafter referred to as the "LICENSED PRODUCTS") in
Canada pursuant to the terms and conditions of this License
Agreement;
NOW, THEREFORE, in consideration of the mutual
covenants and promises contained in the Acquisition
Agreement and this License Agreement, the parties hereto
agree as follows:
1. License.
(a) Licensor hereby grants to Licensee, during the
term of this License Agreement, the exclusive right and
license to use the Canadian Licensed Trademarks on and in
connection with the manufacture, packaging, sale, marketing
and distribution of the Licensed Products in Canada only,
subject to the terms and conditions hereinafter set forth.
(b) Licensee represents and agrees that the Canadian
Licensed Trademarks shall be used only as permitted by
paragraph (a) of this Section, and that the Canadian
Licensed Trademarks shall not be used on any products other
than the Licensed Products or in any other way whatsoever.
2. Consideration.
The consideration provided by Section 2 of the U.S.
Trademark License Agreement shall constitute consideration
for the license granted hereby. No royalty shall be charged
in connection with the exercise by Licensee of any rights
hereunder.
3. Term.
The term of this License Agreement (hereinafter referred to
as the "TERM") shall commence on the date hereof and shall
continue for an initial period of ten (10) years and shall
automatically be renewed for consecutive, additional periods
of ten (10) years unless terminated in accordance with the
provisions of Section 8 hereof.
4. Licensee's Obligation.
Licensee agrees that during the Term:
(a) Licensee shall ensure that all of the Licensed
Products bearing one or more of the Canadian Licensed
Trademarks and the labels and advertising used therefor
shall be fit for their intended purpose(s), and Licensee
shall use its best efforts to cause the Licensed Products to
be produced, packaged, sold, distributed, and marketed in
compliance with all applicable Federal, Provincial and local
laws and regulations, including but not limited to any
Canadian laws and regulations regulating food, drugs and
cosmetics, and with good manufacturing practices.
(b) The Licensed Products shall be of comparable quality
with those similar products which are manufactured,
distributed, marketed and sold by or on behalf of Licensor
in the United States as of the date of the Acquisition
Agreement and such quality shall be maintained on a
consistent basis.
(c) Licensee shall continuously use the Canadian Licensed
Trademarks on the Licensed Products in order to maintain the
Canadian Licensed Trademarks in full force free from any
claim or abandonment for nonuse, subject to paragraph 8 (f)
hereof.
(d) Licensee shall notify Licensor immediately of any
non-routine inquiry, investigation, inspection or any other
action by any governmental body or other person or entity,
with respect to the production, promotion, sale or
distribution of any Licensed Products bearing any Canadian
Licensed Trademarks, which pertains to product quality
and/or safety.
(e) Upon request by Licensor, Licensee agrees to furnish
Licensor at reasonable times with representative samples of
the Licensed Products produced from time to time bearing the
Canadian Licensed Trademarks. In addition to the foregoing,
Licensor may purchase Licensed Products through retail
outlets in order to ascertain that such Licensed Products
are of high quality. In the event that Licensor reasonably
believes that any samples of the Licensed Products bearing
the Canadian Licensed Trademarks sold or distributed under
the Canadian Licensed Trademarks violate the provisions of
Section 4(a) or 4 (b) above, Licensor shall promptly notify
Licensee and shall specify the basis for this belief. Upon
receipt of such notice, Licensee agrees to review the basis
for this belief promptly and to engage promptly in
discussions with Licensor to resolve such concerns to a
mutually acceptable conclusion. If no mutually acceptable
resolution can be achieved within ten (10) days from
commencement of such discussions between Licensor and
Licensee, then Licensee shall immediately stop
production of the nonconforming Licensed Products until a
production sample is submitted to Licensor which Licensor
determines is in compliance with the provisions of Section
4(a) and 4(b) above.
(f) Licensor and its duly authorized representatives
shall have the right, during normal business hours and upon
reasonable notice, but not more frequently than twice per
year 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 Products at such times that do not unreasonably
disrupt the day to day operations of the business of
Licensee, 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 Products. Licensee shall take all necessary
steps requested by Licensor to correct any deficiencies that
might significantly affect the quality of the Licensed
Products.
(g) Licensee shall submit mechanical artwork for all
new label(s) and/or packaging bearing the Licensed Canadian
Trademarks to Licensor for approval. In the event Licensee
has not received a detailed explanation as to why Licensor
has reasonably decided not to approve such mechanical
artwork for the Licensed Products within ten (10) business
days of submission, such change shall be deemed to be
approved. Licensor's approval of Licensee's label(s),
however, shall not constitute a waiver of Licensor's rights
or Licensee's duties under any other provisions of this
License Agreement. Licensee may, however, change its labels
in the future, without approval from Licensor, if such
change(s) does not materially affect the size, placement
and/or color of the Canadian Licensed Trademarks and
legend(s) on the Licensed Products. Copies of such label(s)
shall be sent to Licensor promptly after market introduction
of the Licensed Products using the new label or packaging.
(b) Licensee shall submit to Licensor for review by
Licensor prior to publication all advertising and
promotional materials bearing or related to the Canadian
Licensed Trademarks. If Licensor objects to any portion of
such materials(s) such objection will state a reason(s)
related to the materials submitted and shall be forwarded in
writing to Licensee (or by oral communication confirmed in
writing promptly thereafter) within ten (10) business days
of Licensor's receipt of such advertising and/or promotional
materials(s) and Licensee agrees to revise such materials
accordingly or not to use such materials. If Licensor fails
to respond within ten (10) business days of receipt of such
material(s), Licensor shall be deemed to have no objections
to such materials(s). Licensor's review of such advertising
and promotional materials shall be conducted in good faith
and shall not constitute a waiver of Licensor's rights or
Licensee's duties under any provisions of this License
Agreement.
5. Use of Canadian Licensed Trademarks.
(a) Licensee agrees and undertakes to use the Canadian
Licensed Trademarks 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 Licensor's rights. Upon expiration or termination
of this License Agreement for any reason whatsoever,
Licensee will execute and file any and all documents
required by Licensor regarding the Canadian Licensed
Trademarks which Licensor shall require. Licensor shall
bear all expenses reasonably incurred in preparing and
recording any such documents.
(b) Whenever Licensee uses the Canadian Licensed
Trademarks in accordance with this License Agreement,
Licensee shall clearly identify the use of the Canadian
Licensed Trademarks as licensed use and identify Licensor as
the owner of the Canadian Licensed Trademarks in the manner
specified by Licensor, including but not limited to the
following legend: CASHMERE BOUQUET is a registered
trademark owned by Colgate-Palmolive Canada Inc. and used
under license.
(c) Licensee shall not at any time use the Canadian
Licensed Trademarks or the Licensed Products, or any
material utilizing or reproducing the Canadian Licensed
Trademarks or Licensed Products in a manner that derogates
the value, reputation or good will associated with the
Canadian Licensed Trademarks.
(d) Licensee shall not use the Canadian Licensed
Trademarks, in whole or in part, in close proximity with
Licensee's or a third party's trademark, trade name or
corporate name or any new trademark, trade name or corporate
name so as reasonably to create a net impression that a
Canadian Licensed Trademark is modified or a part of any new
trademark, trade name or that a Canadian Licensed Trademark
is the property of the Licensee.
(e) Licensee shall not use any other trademark, trade
names or corporate names which are confusingly or
deceptively similar to the Canadian Licensed Trademarks
during the Term or thereafter.
(f) Licensee acknowledges that Licensor has reserved
the right to modify the Canadian Licensed Trademarks and
Licensee agrees to incorporate any such modifications in
connection with all use by it of the Canadian Licensed
Trademarks and Licensee shall immediately cease its use of
the original Canadian Licensed Trademarks, provided that
Licensee shall be permitted to use all inventory of
packaging materials bearing the original Canadian Licensed
Trademarks. Any artwork and designs involving the Canadian
Licensed Trademarks shall, at all times, be and remain the
property of Licensor.
6. Exclusivity
(a) Except as otherwise expressly provided in this
License Agreement, nothing in this License Agreement shall
be construed to prevent Licensor from granting to third
parties any other licenses for the use of the Canadian
Licensed Trademarks on any products other than the Licensed
Products.
(b) Licensee shall not have the right to sublicense or
assign this License Agreement or the licenses granted
hereunder, in whole or in part, without the prior written
consent of Licensor, which consent shall not be unreasonably
withheld; provided that Licensee may sublicense or assign
this License Agreement without the consent of Licensor to an
existing affiliate of Licensee as of the date of this
License Agreement.
7. Indemnification and Insurance.
(a) Licensee hereby agrees to indemnify Licensor and
undertakes to defend and hold Licensor, its affiliates and
their respective officers, directors, agents, and employees,
harmless from and against:
(i) any and all claims, suits, losses, damages
and/or expenses, including but not limited to
attorneys' fees and disbursements, arising out
of any and all product liability claims or any
other actions or recall expense to the extent
involving the Licensed Product, except to the
extent that such claims, suits or other actions
arise out of the ownership, use or distribution
of the Licensed Products prior to the date hereof,
or involve claims that Licensee's use of the
Canadian Licensed Trademarks infringes a third
party's proprietary rights, in which case Licensor
shall defend and hold Licensee harmless for, and
Licensor shall have exclusive control over, the
defense, satisfaction and resolution of same,
including any expenses and fees related to such
defense; and
(ii) any and all fines, penalties or the like
arising out of any and all civil and/or administrative
proceedings brought by federal, provincial or local
agencies in connection with the Licensed Product(s)
together with any and all costs incurred by Licensor in
connection therewith, except to the extent that such
fines, penalties or the like arise out of the
ownership, use or distribution of the Licensed Products
prior to the date hereof, or involve claims that
Licensee's use of the Canadian Licensed Trademarks
infringes a third party's proprietary rights, in which
case Licensor shall defend and hold Licensee harmless
for, and Licensor shall have exclusive control over,
the defense, satisfaction and resolution of same,
including any expenses and fees related to such
defense; and
(iii) any and all claims, suits, loss, liability,
damage, deficiency, costs and expenses, including,
without limitation, interest, penalties and reasonable
attorneys' fees and disbursements, arising out of or
otherwise in respect of any material breach of any
representation, warranty, covenant or agreement by
Licensee contained in this License Agreement.
(b) Licensee agrees to maintain at its own expense
through purchased insurance throughout the Term of this
License Agreement and for a period six (6) years thereafter,
comprehensive general liability insurance, including product
liability insurance, in a minimum amount of Two Million
Dollars ($2,000,000) combined single limit for each single
occurrence, for bodily injury and property damage. Licensee
shall have Licensor named as an additional insured on such
policies. Licensee shall, within thirty (30) days after the
date hereof, provide to Licensor a certificate of such
insurance from the insurance carrier which sets forth the
scope of coverage and the limits of liability stated above
without any provision for material deductibles or self-
insured retention's, and further provides that the policies
may not be materially changed or canceled without at least
(30) days' prior written notice to Licensor. Prior to any
such cancellation, Licensee shall provide Licensor with a
certificate of insurance 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, Licensee 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 License
Agreement.
8. Termination.
The License hereby granted pursuant to this License
Agreement may be terminated;
(a) By Licensor without notice in the event that(i)
Licensee (I) files a petition in bankruptcy or a petition in
bankruptcy is filed against Licensee, (II) becomes insolvent
under applicable state insolvency law, makes an assignment
for the benefit of its creditors, (III) makes an arrangement
pursuant to any bankruptcy law, or (IV) discontinues its
business, or (ii) a receiver is appointed for Licensee or
for its business;
(b) By Licensor if there is a material breach by
Licensee of any provision of this License Agreement or the
U.S. Trademark License Agreement and a failure by Licensee
to cure such breach within thirty (30) days after written
notice from Licensor;
(c) By Licensor in the event of a "default" continuing
and as defined under the Security Agreement between Colgate-
Palmolive Company, parent of Licensor, and Licensee
identified as Exhibit D of the Acquisition Agreement
(hereinafter referred to as the "SECURITY AGREEMENT");
(d) By Licensor if a material amount of Licensed
Product bearing the Canadian Licensed Trademark(s) shall be
subject to a product recall or market withdrawal by the
Licensee;
(e) By mutual written agreement duly executed by both
parties; or
(f) By Licensee upon written notice to Licensor.
9. Effect of Termination.
(a) Licensee agrees that upon expiration or earlier
termination of this License Agreement for any reason other
than stated in Section 8(d), Licensee will, as of a mutually
agreed upon date (but in no event later than one hundred
twenty (120) days after the date of expiration or earlier
termination of this License Agreement): (i)remove all
Canadian Licensed Trademarks from the packaging of Licensed
Products; (ii) refrain from further production or sale of
Licensed Products bearing the Canadian Licensed Trademarks;
and (iii) discontinue production, distribution and use of
promotional materials, advertising, packaging, signs,
billboards and any other material(s) which utilize the
Canadian Licensed Trademarks.
(b) If this License Agreement is terminated pursuant
to Section 8(d), Licensee shall immediately: (i) remove the
Canadian Licensed Trademarks from the packaging of the
Licensed Products, (ii) refrain from further production of
Licensed Products bearing the Canadian Licensed Trademarks;
(iii) discontinue production, distribution and use of
promotional materials, advertising, packaging, signs,
billboards and any other materials which utilize the
Canadian Licensed Trademarks; (iv) cooperate with Licensor
in any action or investigation deemed necessary or
appropriate by Licensor and (v) comply with Licensor's
reasonable instructions regarding the disposal and/or
depletion of all Licensed Products bearing the Canadian
Licensed Trademarks and all packaging inventory for finished
Licensed Products which utilize the Canadian Licensed
Trademarks.
10. Licensor's Title and Protection of Canadian Licensed
Trademarks
(a) Licensee acknowledges Licensor's exclusive right,
title and interest in and to the Canadian Licensed
Trademarks and in and to any registrations thereof in Canada
and elsewhere and agrees that it will not at any time do, or
cause to be done, any act or thing contesting or in any way
intending to impair the validity of or Licensor's exclusive
right, title and interest in and to the Canadian Licensed
Trademarks. Licensee will make no applications nor seek any
registration or ownership rights in or to the Canadian
Licensed Trademarks in Canada or elsewhere.
(b) Licensee will not in any manner represent that it
owns the Canadian Licensed Trademarks, and hereby
acknowledges that its use of the Canadian Licensed
Trademarks shall not create any right, title, or interest in
or to the Canadian Licensed Trademarks, but that all such
use shall inure to the benefit of Licensor.
(c) Licensee shall, at Licensor's cost and expense,
cooperate with Licensor to do all acts necessary or
desirable for maintaining, renewing, protecting,
strengthening, and/or enforcing the Canadian Licensed
Trademarks and associated goodwill and for vesting title
thereto in Licensor, its successor and assigns.
(d) Licensee shall not contest Licensor's ownership of
the Canadian Licensed Trademarks, any registrations of the
Canadian Licensed Trademarks by Licensor, or bring any act
to cancel any such registrations thereof or contest the
validity thereof.
(e) Licensee shall give prompt written notice to
Licensor of any infringement, imitation or act inconsistent
with Licensor's ownership of the Canadian Licensed
Trademarks by third parties, or any act of unfair
competition by third parties relating to the Canadian
Licensed Trademarks, wherever and whenever such infringement
or act shall come to Licensee's attention. 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 Canadian Licensed Trademarks.
11. Miscellaneous.
(a) This License Agreement and all rights and duties
hereunder are personal to Licensee and, subject to the
provisions of Section 6(b), shall not, without the written
consent of Licensor, be assigned, mortgaged, sublicensed or
otherwise encumbered by Licensee or by operation of law.
A change in the control of Licensee shall be deemed an
assignment hereunder.
(b) No failure of Licensor or Licensee to strictly
enforce any of their respective rights under this License
Agreement shall be deemed a continuing waiver and Licensor
or Licensee may thereafter strictly enforce any such rights.
(c) All notices requests, demands and other
communications required or permitted to be given under this
License Agreement ("Communications") shall be in writing and
shall be deemed to have been duly given if delivered
personally with receipt acknowledged or sent by registered
or certified mail, return receipt requested, or by overnight
courier for next day delivery, to the parties at their
respective addresses set forth below or to such other or
additional address as either party shall hereafter specify
by Communication to the other, or by telecopier to the
parties at their respective telecopier numbers set forth
below or to such other or additional numbers as either party
shall hereafter specify by Communication to the other party:
If to Licensor to: Colgate-Palmolive Canada Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telecopier No.: (000) 000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
Secretary and General Counsel
with a copy to: Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx & Kuh, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx, Esq.
If to Licensee to: The Xxxxxxx Co.
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attn: Xx. Xxxxx Xxxxxx, Xx.
Chairman, President and CEO
with a copy to: Xxxxxxx, Calamari and Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx, Esq.
Notice of change of address or telecopier number shall
be deemed given when actually received or upon refusal to
accept delivery thereof; all other Communications shall be
deemed to have been given and received on the earliest of:
(a) when actually received or upon refusal to accept
delivery thereof, (b) on the date when delivered personally
or sent by telecopier, (c) one (1) business day after
sending by recognized overnight courier, or (d) four (4)
business days after mailing, as aforesaid.
(d) The obligations of Licensee and Licensor under
Sections 7 and 10 herein shall survive expiration or earlier
termination of this License Agreement.
(e) This License Agreement together with the
Acquisition Agreement, the Security Agreement and the U.S.
Trademark License Agreement expresses fully the
understanding of both parties and all prior understanding,
agreements or representations, oral or written, are hereby
superseded and canceled, and no changes in the terms of this
License Agreement shall be valid except when and if reduced
to writing and signed by both Licensor and Licensee.
(f) Subject to the terms of Section 11(a) above, this
License Agreement shall inure to the benefit of, and be
binding upon, Licensor and Licensee and their respective
successors and assigns.
(g) The headings and titles to the paragraphs of this
License Agreement are not a part this License Agreement and
shall have no effect upon the construction or interpretation
hereof.
(h) Nothing contained in this License Agreement shall
in any way be construed to create an agency relationship,
partnership or joint venture between the parties, and
Licensee shall have no power to obligate or bind Licesor in
any manner whatsoever. In any review or consultation
conducted by or on behalf of Licensor hereunder, Licensor is
acting in an advisory capacity only and shall have no
responsibility for the operations of Licensee's business or
its manufacturing, distribution, sales or facility used in
connection therewith, whether upon the recommendation of
Licensor or otherwise.
(i) The recitals set forth at the beginning of this
License Agreement shall be deemed to be incorporated within
this License Agreement as if fully set forth herein.
(j) If Licensee is prevented from complying, either
totally or in part, with any of the terms or provisions of
this License Agreement by reason of fire, flood, storm,
strike, lockout or other labor trouble, riot, war,
rebellion, accident, acts of God and/or any other cause or
casualty beyond Licensee's reasonable control, then upon
written notice to Licensor, the requirements of this License
Agreement, or the affected provisions hereof to the extent
affected, shall be suspended during the period of such
disability. Licensee shall make all reasonable efforts to
remove such disability as soon as practicable under the
circumstances.
(k) This Agreement shall be governed by and construed
pursuant to the laws of Canada.
IN WITNESS WHEREOF, the parties hereto have duly
executed this License Agreement.
LICENSOR:
COLGATE-PALMOLIVE, CANADA INC.
By:
Xxxxx X. Xxxxxxxx
Secretary and General
Counsel
LICENSEE:
THE XXXXXXX CO.
By:
Xxxxx Xxxxxx, Xx.
President and CEO
