EXHIBIT 10.3
LICENSE AGREEMENT
THIS AGREEMENT is made this 25th day of August, 1995 by and between:
Bright Capital, Limited, a New York corporation with a place of
business at 64 Village Hill Drive, Dix Hills, New York 11746 ("Licensor"), and
Acquisition Corporation II, a Delaware corporation with a place of
business at 150 East 52nd Street, New York, NY 10022 ("Licensee").
W I T N E S S E T H:
WHEREAS, Licensee was formed to serve as a vehicle to effect a
merger, exchange of capital stock, asset acquisition or other business
combination ("Business Combination") with an operating business;
WHEREAS, Licensee intends to finance the Business Combination, in
whole or in part, with the proceeds of a public offering of its securities
(the "Offering");
WHEREAS, Licensor is the owner of the servicemarks "SMA(2)RT-SM-"and
"Specialized Merger and Acquisition Allocated Risk Transaction-SM-"
(collectively, the "Servicemarks");
WHEREAS, Licensee sees valuable marketing and other commercial
advantage arising from using the Servicemarks to market the Offering;
WHEREAS, Licensee wishes to obtain a non-exclusive, one-time
license to use the Servicemarks to market the Offering during its initial
public sale of its securities, and Licensor is willing to permit such use by
Licensee in accordance with the terms and conditions of this License
Agreement;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the parties agree as follows:
1. GRANT OF LICENSE.
(a) Licensor grants to Licensee a non-exclusive, non-transferable
license to use the Servicemarks in the United States to market the Offering,
and Licensee accepts the license subject to the terms and conditions herein
contained. The license granted herein shall be for a one-time use only in
the Offering, and shall not be available to Licensee for any other use or
subsequent offerings of its securities.
(b) Upon the successful consummation of Business Combination by
Licensee, Manhattan Associates, L.L.C. may request a license to utilize the
SMA(2)RT service mark and intellectual property for one additional transaction
on terms and conditions then prevailing by Licensor for other transactions
similarly enacted. In the event that Licensor declines for any reason or for
nor reason, to grant such a license to Manhattan Associates, L.L.C., the
non-compete provisions of Paragraph 7 hereof shall not apply to Manhattan
Associates, L.L.C. or its affiliates; PROVIDED, HOWEVER, that neither
Manhattan Associates, L.L.C. nor any of its affiliates shall have any right
to use, and may not use, the SMA(2)RT-SM- format, structure, asset allocation
model and/or intellectual property. Manhattan Associates, L.L.C. and/or its
affiliates shall have no recourse, claim, cause of action or the like should
Licensor decline to grant a license to it as above contemplated.
2. CONSIDERATION. In consideration for Licensor's grant of the
license set forth herein, Licensor shall receive a license fee from Licensee
in the amount of $100,000, $10,000 of which shall be payable upon the date of
execution of this Agreement. The balance of the license fee, or $90,000,
shall be due and payable twelve (12) months from the date of execution of
this Agreement, or at the closing of the Offering, whichever occurs sooner.
3. OWNERSHIP OF MARK. Licensee acknowledges the ownership of the
Servicemarks by Licensor, agrees that it will do nothing inconsistent with
such ownership, and that all use of the Servicemarks by Licensee shall inure
to the benefit of Licensor. Licensee agrees that nothing in this License
shall give Licensee any right, title or interest in the Servicemarks other
than the right to use the Servicemarks in accordance with this Agreement and
Licensee agrees that it will not attack the title of Licensor to the
Servicemarks or attack the validity of this Agreement.
4. FORM OF USE. Licensee agrees to use the Servicemarks only in the
form and manner and with appropriate legends, and not to use any other mark
in combination with the Servicemarks without the prior written consent of
Licensor.
5. QUALITY STANDARDS. Licensee agrees that the nature and quality of
the services rendered by Licensee in connection with the Servicemarks and all
related advertising, promotional and other related uses of the mark by
Licensee shall conform to standards set by and under the strict and
unilateral control of Licensor. In this regard, Licensee shall provide
Licensor with copies of all documents or materials using the Servicemarks
prior to their use, for Licensor's review and approval, which approval shall
not be unreasonably withheld, including, without limitation, the officers and
directors of Licensee, the escrow agent for the SMA(2)RT offering, the
investment banker for the SMA(2)RT offering, the underwriter for the SMA(2)RT
public offering, copies of any letters of intent or underwriting agreements
relating to or involving SMA(2)RT offerings, as well as any and all comment
letters received from the Securities and Exchange Commission in respect
thereof and any and all responses thereto.
6. QUALITY MAINTENANCE. Licensee agrees to cooperate with Licensor in
facilitating Licensor's control of the nature and quality of Licensee's use
of the Servicemarks, to permit reasonable inspection of Licensee's operations
related to its use of the Servicemarks, and to supply Licensor with specimens
of all uses of the Servicemarks upon request. Licensee shall comply with all
applicable laws and regulations pertaining to the use of the Servicemarks as
contemplated by this Agreement.
7. NON-CIRCUMVENTION. Licensee and its officers and directors
severally agree, individually and personally, that neither they nor any
affiliate will, directly or indirectly, promote, become a founding
stockholder in, nor serve as an officer or director of, any other blind pool
or "blank check" company, unless consented to in writing by Licensor.
8. INFRINGEMENT PROCEEDINGS. Licensee agrees to notify Licensor of
any unauthorized use of the Servicemarks promptly as it comes to Licensee's
attention. Either party shall have the right and discretion to bring
proceedings, whether in law or equity, against such unauthorized use, at its
sole expense.
9. TERM. This Agreement shall commence as of the date hereof and
shall continue for a period of one (1) year thereafter, unless sooner
terminated as provided herein.
10. TERMINATION FOR CAUSE. Licensor shall have the right to terminate
this Agreement upon fifteen (15) days written notice to Licensee in the event
of any affirmative act of insolvency by Licensee, or upon the appointment of
any receiver or trustee to take possession of the property of Licensee or
upon the winding up, sale, consolidation, or merger of Licensee, or upon the
breach of any material provisions hereof by Licensee (which breach is not
cured within thirty (30) days after written notice thereof by Licensor).
11. EFFECT OF TERMINATION. Upon termination of this Agreement,
Licensee agrees to immediately discontinue all use of the Servicemarks and
any items confusingly similar thereto, and that all rights in the
Servicemarks and goodwill contained therewith shall remain the property of
Licensor. Any termination of this Agreement shall not effect the parties'
duties to perform their respective obligations as to matters arising prior to
the termination date.
(a) NOTICES. All notices and other communications herein provided
for shall be sent by postage prepaid, registered, or certified mail, return
receipt requested, or delivered personally or by overnight carrier to the
parties at their respective addresses as set forth on the first page of this
Agreement or to such other address as either party shall give to the other
party in the manner provided herein for giving notice. Notice by mail shall
be considered given on the date received. Notice personally delivered or by
overnight carrier shall be considered given at the time it is delivered.
(b) ASSIGNABILITY. No right or obligation under this Agreement
shall be assignable by Licensee without the prior written consent of Licensor.
(c) SUCCESSORS AND PERMITTED ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon each of the parties hereto and their
respective successors and permitted assigns. Nothing in this Agreement,
expressed or implied, is intended to confer upon any persons, other than the
parties hereto and their successors and permitted assigns, any rights or
remedies under or by any reason thereof.
(d) MODIFICATION OR AMENDMENT. Any modification or amendment of
any provision of this Agreement must be in writing, signed by the parties
hereto, and dated subsequent to the date hereof.
(e) WAIVER. The failure by either party to exercise any of its
rights under this Agreement or to require the performance of any term of
provision of this Agreement, or the waiver by either party of any breach of
this Agreement, shall not prevent a subsequent exercise or enforcement of
such rights or be deemed a waiver of any subsequent breach of the same or any
other term or provision of this Agreement. Any waiver of the performance of
any of the terms or conditions of this Agreement shall be effective only if
in writing and signed by the party against which such wavier is to be
enforced.
(f) VALIDITY. If any of the terms and provisions of this
Agreement are invalid or unenforceable, such term or provisions shall not
invalidate the rest of this Agreement which shall nonetheless remain in full
force and effect as if such invalidated or unenforceable terms and provisions
had not been made part of this Agreement.
(g) HEADINGS. Headings are included solely for convenience of
reference and are not to be considered part of this Agreement.
(h) NO JOINT VENTURE. This is an agreement between separate legal
entities and neither party is the agent of the other for any purpose
whatsoever. The parties do not intend to create a partnership or joint
venture between themselves. Neither party shall have the right to bind the
other party to any agreement with a third party or to incur any obligation or
liability on behalf of the other party.
(i) COMPLETE AGREEMENT. This Agreement contains the entire
Agreement between the parties concerning the subject matter hereof and there
are no collateral or precedent representations, agreement or conditions not
specifically set forth herein.
(j) LAW GOVERNING AGREEMENT. The validity of this Agreement and
the rights, obligations and relations of the parties hereunder shall be
construed and determined under and in accordance with the laws of the State
of New York without giving effect to the conflict of laws rules of such State.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
BRIGHT CAPITAL LIMITED ACQUSITION CORPORATION II
/s/ Dominic Bassani /s/ Arthur Goldberg
- -------------------------- -----------------------
By: Dominic Bassani By: Arthur Goldberg
President Chief Executive Officer
MANHATTAN ASSOCIATES, L.L.C. /s/ Arthur Goldberg
---------------------------------
By: Arthur Goldberg (personally)
as to paragraph 7 only
By: /s/ Arthur Goldberg
--------------------------
-----------------------
as to paragraph 1 only
/s/ Stanley Kreitman
---------------------------------
By: Stanley Kreitman (personally)
as to paragraph 7 only
/s/ Marshall Manley
----------------------------------
By: Marshall Manley (personally)
as to paragraph 7 only
/s/ A. J. Nassar
-----------------------------------
By: A. J. Nassar (personally)
as to paragraph 7 only
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and Assumption Agreement dated August 23, 1996 by and
between Bright Capital, Ltd., a New York corporation (the "Assignor") and
Bright Licensing Corp., a New York corporation (the "Assignee"), both having
a place of business at 64 Village Hill Drive, Dix Hills, New York 11746.
WHEREAS, the Assignor is the licensor under a certain License
Agreement (the "License Agreement") dated August 25, 1995 between the
Assignor and Acquisition Corporation II, a Delaware corporation, now known as
Orion Acquisition Corp. I, a Delaware corporation ("Orion");
WHEREAS, the Assignor has heretofore assigned to Assignee all of its
right, title and interest in and to the servicemark which is the subject of
said License Agreement; and
WHEREAS, the Assignor wishes to assign to the Assignee, and the
Assignee wishes to accept and assume from the Assignor, all of the Assignor's
rights and obligations under the License Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Assignor hereby assigns, transfers and sets over all of its
right, title and interest in and to the License Agreement to the Assignee,
and the Assignee hereby accepts such assignment and assumes all obligations
of the Assignor under the License Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
and year first above written.
BRIGHT CAPITAL, LTD.
By:/s/ Dominic Bassani
--------------------------------
Name: Dominic Bassani
Title: President
BRIGHT LICENSING CORP.
By:/s/ Dominic Bassani
--------------------------------
Name: Dominic Bassani
Title: President