CERTAIN INFORMATION HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2.
EXHIBIT 10.12
SECOND AMENDMENT TO TRADEMARK LICENSE AGREEMENT
THIS SECOND AMENDMENT ("Second Amendment") to the TRADEMARK LICENSE
AGREEMENT of March 1, 2000 (the "License Agreement"), which was first amended on
March 20, 2001, is made effective this day of April, 2001, by and between The
Procter & Gamble Company, an Ohio corporation with a place of business at One
P&G Plaza, Cincinnati, Ohio 45202 and its affiliates and subsidiaries
(collectively, "P&G") and CNS Inc., a Delaware corporation with its new place of
business at 7615 Smetana Lane, Eden Prairie, MN 55344, ("CNS"). All capitalized
terms used herein but not specifically defined shall have the meanings set forth
in the License Agreement.
WHEREAS P&G has previously granted a non-transferable and exclusive
license to CNS to use the VICKS(R) trademark and triangle design trademark
(collectively, the "Licensed Marks") on the Product listed on Schedule 2 of the
License Agreement (the "Product"), in the countries listed on Schedule 3 (the
"Area") and subject to the restrictions outlined in Schedule 4; and
WHEREAS the parties agreed that the License Agreement and/or any of
these Schedules may be amended at any time upon agreement by the parties in
writing, and
WHEREAS on March 20, 2001 the parties amended Schedule 1 of the License
Agreement to include the trademarks Vick(R) and Wick(R) and concurrently amended
Schedule 3 to include several new countries in several new regions; and
WHEREAS the parties now desire to amend the Area of the License
Agreement by amending Schedule 3 to include four additional countries for
inclusion in the Area for a initial test period of time;
NOW THEREFORE, the parties agree to amend the License Agreement as
follows:
Schedule 3 is hereby amended to include the Following new countries in the
Europe region: France, Portugal, Spain and the United Kingdom. The new countries
are listed by region in the amended Schedule 3. An Amended Schedule 3 is
attached.
Schedule 5 is hereby amended to reflect that CNS' Royalty as % of CNS' Net Sales
of Products which include the Licensed Marks shall be [* * *] for each country
listed on Amended Schedule 3. An Amended Schedule 5 is attached.
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Related to this expansion of the License Agreement to the Europe region
("Expansion"), the parties hereby agree to the following specific terms and
conditions for such Expansion;
CNS shall have the rights and obligations, including the royalty obligations,
set forth in the License Agreement in the countries of the Europe region
designated on Schedule 3 for a term to expire May 1, 2002 ("Expansion Period").
During this Expansion Period, P&G and CNS shall mutually agree on evaluation
criteria to be utilized by P&G to analyze and evaluate the success of the
Expansion and the effect of such Expansion on P&G's Vicks VapoRub business. P&G
shall conduct this analysis and evaluation at its own cost and expense.
P&G, in its sole discretion, shall determine whether to continue this Expansion
effort beyond the Expansion Period. If P&G does not notify CNS of its desire to
continue with the Expansion of the Trademark License before May 1, 2002, then
such Expansion shall automatically terminate on May 1, 2002 and this Second
Amendment shall be null and void. Upon said termination, CNS shall cease using
the Licensed Marks on its products in a countries in the Europe region listed an
Amended Schedule 3, and except for royalties accrued as of the date of
termination, CNS shall have no further obligation to make payments.
Notwithstanding the above, for a period of one-hundred twenty (120) days, CNS
shall retain rights to use the Licensed Marks (and the corresponding royalty
obligations) on Products distributed or in inventory prior to termination.
If P&G notifies CNS of its desire to continue with the Expansion of the
Trademark License, then P&G and CNS shall in good faith negotiate a new
amendment to the License Agreement to set forth the parties' agreement for
continuation of the Expansion and any agreement for further expansion of the
License Agreement.
P&G agrees that in the event the Expansion is continued beyond May 1, 2002, the
Initial Expansion Period will not count as a year for the purposes of
determining Minimum Royalty obligation set forth in Section 7(b) and Schedule 6
of the License Agreement.
Except as set forth herein all terms of the License Agreement remain unchanged
by this Second Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed this Second Amendment.
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For THE PROCTER & GAMBLE COMPANY For CNS, INCORPORATED
By: /s/ T.C. Blinn By: /s/ Kirk P. Hodgdon
---------------------------------- ---------------------------------
Name: T.C. Blinn Name: Kirk P. Hodgdon
Title: V.P. Global Personal Healthcare Title: V.P. Business Development
Date: April 27, 2001 Date: April 25, 2001
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AMENDED SCHEDULE 3
(PURSUANT TO APRIL _____, 2001 SECOND AMENDMENT TO LICENSE AGREEMENT)
REGIONS: COUNTRIES:
North America United States
Canada
Puerto Rico
Latin America Argentina
Belize
Bolivia
Brazil
Chile
Columbia
Costa Rica
Ecuador
French Guiana
Guatemala
Guyana
Honduras
Mexico
Nicaragua
Panama
Paraguay
Peru
Suriname
Uruguay
Venezuela
Asia/Middle East/Africa Australia
Israel
New Zealand
South Africa
Europe France
Portugal
Spain
United Kingdom
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AMENDED SCHEDULE 5
(PURSUANT TO APRIL _____, 2001 SECOND AMENDMENT TO LICENSE AGREEMENT)
ROYALTY AS % OF CNS'
NET SALES OF PRODUCTS
COUNTRY WHICH INCLUDE THE LICENSED MARKS
- ------- --------------------------------
Every country listed on Amended Schedule 3 [* * *]
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