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Exhibit 10.35
LICENSE AGREEMENT
Dated August 18, 1994
The parties to this agreement are Cosmar Corporation, a Delaware
corporation (the "Licensee"), and Renaissance Cosmetics, Inc., a Delaware
corporation (the "Licensor").
The Licensee desires to use the items of intellectual property rights
set forth in exhibit A (the "Licensed Property") in connection with the
operation of the Licensee's business, and the Licensor is willing to grant to
the Licensee the exclusive right and license to use the Licensed Property in
connection with the operation of the Licensee's business, upon the terms and
subject to the conditions set forth below.
It is therefore agreed as follows:
1. Grant of License.
1.1. The Licensor hereby grants to the Licensee a perpetual exclusive
worldwide right and license to use the Licensed Property in connection with the
operation of the Licensee's business, including, without limitation, in
connection with the production, manufacture, advertising, merchandising,
promotion, labeling, marketing, distribution and sale of products, of all kinds
and description, whether or not currently produced.
1.2. The design, content and workmanship of the goods or articles
manufactured or distributed in connection with the Licensed Property, and of all
production and advertising materials used in connection therewith, at all times
shall be of a high quality and, with respect to products currently produced, at
least commensurate with the quality of the goods produced or sold by the
Licensee, or its predecessors, prior to the date of this agreement.
1.3. The Licensor shall not directly or indirectly grant any other
license for the use of the Licensed Property without the consent of the
Licensee.
2. Royalties. The Licensee shall pay to the Licensor, in United States
currency, a royalty of $10.00 per annum.
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3. Books and Records; Audits. The Licensee shall prepare and maintain,
in accordance with generally accepted accounting principles, true, complete and
correct books of account and records (including without limitation the originals
or copies of documents supporting entries in the books of account) covering all
transactions arising out of or relating to this agreement. The Licensor and its
duly authorized representatives shall have the right, during regular business
hours and upon reasonable notice to the Licensee, to audit, examine and make
copies, at the Licensor's cost and expense, the books of account and records of
the Licensee and all other documents and materials in the possession or under
the control of the Licensee relating to this agreement. All the books of account
and records shall be kept available by the Licensee for at least three years
after the end of the calendar year to which they relate.
4. The Licensed Property.
4.1. The Licensee shall have the right to use any of the Licensed
Property as or in connection with the corporate name or trade name of the
Licensee or any of its subsidiaries and in any advertising, publicity, labeling,
packaging or printed matter.
4.2. The Licensee acknowledges the validity of the Licensed Property
and the exclusive ownership of the Licensed Property by the Licensor, whether or
not registered. The Licensee shall not, at any time during the term of this
agreement or thereafter, directly or indirectly challenge, contest or aid in
challenging or contesting the validity or ownership by the Licensor or the
Licensed Property, or the title or registration thereto, whether now existing or
hereafter obtained by the Licensor or any affiliate or subsidiary of the
Licensor. Any and all goodwill and other rights that attach to, or arise in
connection with the use of, the Licensed Property during the term of this
agreement or thereafter as a result of the business activities of the Licensee
shall inure to the sole benefit of the Licensor and shall remain vested in the
Licensor. The Licensee shall not, at any time, do or permit to be done any act
or thing that could reasonably be expected to have a material adverse effect on
the rights of the Licensor in and to the Licensed Property or reduce the value
of the Licensed Property or detract from their reputation.
4.3. The Licensee shall cooperate with the Licensor in the execution,
filing and prosecution of all such instruments or documents as the Licensor may
deem appropriate to obtain the registration and the renewal and maintenance of
registration of
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the Licensed Property, and to confirm the Licensor's ownership rights of the
Licensed Property and the respective rights of the Licensor and Licensee
pursuant to this agreement. All rights in the Licensed Property, other than
those specifically granted in this agreement, are reserved by the Licensor for
its own use and benefit. The Licensor has made and makes no representation or
warranty as to the validity or effectiveness of the registration (or
registrability) of any of the Licensed Property and the failure to obtain, renew
or maintain registration thereof shall not be deemed a breach of this agreement
by the Licensor.
4.4. The Licensee shall use the Licensed Property in each applicable
jurisdiction strictly in compliance with the legal requirements obtaining
strictly therein and shall use any markings in connection therewith as may be
required by applicable law. The Licensee shall at the request of the Licensor
cause to appear on all articles, products and materials on which or in
connection with which the Licensed Property are used, such legends, markings and
notices as may be reasonably necessary in order to give appropriate notice of
any trademark, trade name, trademark registration, application therefor or other
related right.
4.5. The Licensee promptly shall notify the Licensor of any
infringement or imitation of the Licensed Property or of any use by any person
of a trademark similar to any of the Licensed Property that comes to the
attention of the Licensee. The Licensor shall not be required to take any action
with respect to any third party's infringement, imitation or use of the Licensed
Property if it deems it inadvisable to do so. If the Licensor fails to take any
action, the Licensee shall have the right, at the Licensee's sole cost and
expense, to take such action as it deems advisable for the protection of its
rights in and to the Licensed Property.
5. Indemnity. The Licensee shall indemnify, defend and hold the
Licensor and its directors, officers, employees, representatives and agents
harmless from and against any claim, suit, loss, damage, demand, injury or
expense (including reasonable attorneys' fees) arising out of the production,
manufacture, advertising, merchandising, promotion, labeling, marketing,
distribution and sale of any articles or products by or on behalf of the
Licensee, whether arising out of a permitted or non-permitted use of the
Licensed Property by the Licensee or any agent of the Licensee or by any
consumer of such articles or products, or for any other reason whatsoever.
6. Defaults. If the Licensee fails to make any payment in accordance
with section 2 and if that default
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continues uncured for ten days after written notice thereof is received by the
Licensee, the Licensor shall have the right to terminate this agreement
forthwith by written notice of termination to the Licensee. If either the
Licensor or the Licensee fails to perform any of the other covenants required to
be performed by it under this agreement, the other party, at its sole election,
may terminate this agreement forthwith by written notice of termination to the
defaulting party if (i) the default is curable but continues uncured for a
period of 20 days after written notice of termination has been given to the
defaulting party or (ii) the default is not curable.
7. Rights on Expiration or Termination. Upon termination of this
agreement pursuant to section 6 or upon its expiration, all of the rights of the
Licensee under this agreement shall terminate forthwith and shall revert
immediately to the Licensor, the Licensee shall discontinue forthwith all use of
the Licensed Property, the Licensee no longer shall have the right to use the
Licensed Property or any variation or simulation thereof and the Licensee
promptly shall transfer to the Licensor, free of charge, all registrations,
filings and rights with regard to the Licensed Property that it may then
possess. Upon such termination or expiration, all royalties payable to the
Licensor under this agreement shall become immediately due and payable.
8. Representations and Warranties.
8.1. The Licensor represents and warrants to the Licensee that the
Licensor has the corporate right, power and authority to enter into this
agreement and to perform all of its obligations hereunder, and that it has
granted no other license to use the Licensed Property.
8.2. The Licensee represents and warrants to the Licensor that the
Licensee has full right, power and authority to enter into this agreement and to
perform all of its obligations hereunder.
9. Miscellaneous
9.1. Notice. All notices or other communications in connection with
this agreement shall be in writing and shall be considered given when delivered
personally or on the fifth day after mailing, certified mail return receipt
requested, to the following addresses:
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If to the Licensor:
Renaissance Cosmetics, Inc.
Three Pickwick Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx Flattau & Klimpl
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Licensee:
Cosmar Corporation
c/x Xxxx, Xxxx & Company
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx Flattau & Klimpl
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
9.2. Assignability. Neither this agreement nor any of the rights
granted hereunder may be assigned, sublicensed or transferred by the Licensee
without the express written consent of the Licensor and any attempted direct or
indirect assignment, sublicense or transfer of this agreement or any of the
rights granted hereunder, whether voluntary or by operation of law, shall be
void unless the Licensor shall have given its prior written consent.
9.3. Successors and Assigns. This agreement shall inure to the benefit
of and shall be binding upon the parties and their respective permitted
successors and assigns.
9.4. Governing Law. This agreement shall be governed by and construed
and interpreted in accordance with the laws of the state of Delaware applicable
to agreements made and to be performed wholly within that state.
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9.5. Waivers. No waiver by either party, whether express or implied, of
any provision of this agreement, or of any breach or default thereof, shall
constitute a continuing waiver of that provision or of any other provision of
this agreement. Acceptance of payments by the Licensor shall not be deemed a
waiver by the Licensor of any breach of or default under any of the provisions
of this agreement by the Licensee.
9.6. Severability. If any provision or any portion of any provision of
this agreement shall be held to be void or unenforceable, the remaining
provisions of this agreement and the remaining portion of any provision held
void or unenforceable in part shall continue in full force and effect.
RENAISSANCE COSMETICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
and Chief Executive Officer
COSMAR CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Vice President
and Secretary
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EXHIBIT A
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Licensed Property
TRADEMARKS OWNED BY RENAISSANCE COSMETICS, INC.
Xxxx Reg. No. Date
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All rights owned by the
Licensor to use the
trademark "Quik Fit" as
such rights may exist
anywhere in the world,
including such rights
associated with the
following trademark
registrations:
U.S.A. Reg. No. 1,569,080* Dec. 5, 1989
Canada Reg. No. 363,909* Nov. 17, 1989
France App. No. 93488093* Oct. 18, 1993
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* The Licensor is the beneficial owner of this trademark registration.
All registrations of this trademark are being transferred to the
Licensor by the former owners, Cosmar Corporation, a California
corporation.
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