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EXHIBIT 10.4
MEMORANDUM OF AGREEMENT
SERTA, INC.
THIS MEMORANDUM OF AGREEMENT dated this 12th day of January 1995, by and
between SERTA, INC., a Delaware corporation, party of the first part,
hereinafter sometimes referred to as "Serta," and Sleepmaster L.L.C.
party of the second part, hereinafter sometimes referred to as "Member,"
WITNESSETH:
WHEREAS, the parties hereto have heretofore entered into a Standard
License Agreement under the terms of which the Member has been given the right
to manufacture and sell certain articles in accordance with Serta's by-laws,
rules, regulations, resolutions and specifications; and
WHEREAS, under the terms of said Standard License Agreement the Member
is also given the right to use certain trade-marks, trade names and labels in
connection with the manufacture and sale of said articles; and
WHEREAS, Serta engages in national advertising of its specification
products; and
WHEREAS, the Member is desirous of gaining the consent of Serta to the
use of the word "Serta" in the corporate name or in the firm name and style
under which the Member is engaged in the manufacture and sale of such articles
in accordance with the terms of said Standard License Agreement; and
WHEREAS, it is to the mutual advantage of the parties hereto to permit
the Member to use the word "Serta" in such corporate or firm name under the
restrictions and upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and in further
consideration of the execution and delivery of said Standard License Agreement
and of the terms, covenants and conditions hereof to be kept and performed by
the parties hereto, it is covenanted and agreed as follows:
(a) The Member shall not appropriate for use or use any corporate
name or firm name and style embodying, the word "Serta" in its business
done under said Standard License Agreement unless and until the Member
has obtained the written consent of Serta to such appropriation or use
by the Member of such corporate name or firm name and style.
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(b) Such corporate name or firm name and style shall be
sufficiently distinctive so as to prevent the public from confusing such
corporate name or firm name and style with the corporate name of Serta
or with the corporate name or firm name and style of any other
stockholder and licensee of Serta.
(c) The Member shall, in using such corporate name or firm name
and style upon its stationery, billheads and in its advertising, state
in substance upon such stationery and billheads and in such advertising
that the Member is a member or licensee of Serta, Inc., a Delaware
corporation or is engaged in the manufacture and sale of articles in
accordance with specifications formulated by Serta.
(d) The Member hereby consents to the appropriation and use by
any other stockholder and licensee of Serta of a corporate name or firm
name and style embodying the word "Serta" which is approved by Serta
pursuant to an agreement between Serta and such other stockholder and
licensee containing the same provisions as contained in this agreement.
The Member shall, from time to time, upon request, execute and deliver
such documents as may be necessary or proper in Serta's opinion to
permit and consent to such appropriation and use by other stockholders
and licensees of Serta.
(e) The Member shall not manufacture and sell any article under
any corporate name or firm name and style which includes the word
"Serta" unless said article is manufactured and sold in full compliance
with Serta's by-laws, rules, regulations, resolutions and
specifications.
(f) The Member shall not manufacture and sell any article under
any trade name, trade-mark, or label unless such trade name, trade-mark,
or label is adopted and specified by Serta for use generally by all of
its licensees and stockholders.
(g) In the event the Member ceases to be a stockholder of Serta,
or in the event the said Standard License Agreement is terminated by
reason of some default of the Member in the terms, covenants and
conditions of said Standard License Agreement, or in the event of any
default by the Member of any of the terms, covenants and conditions of
this agreement and such default continues for a period of thirty (30)
days after a written demand by Serta upon the Member to remedy such
default, then in either such event this agreement shall terminate and
the Member shall immediately, upon such termination of said Standard
License Agreement, or upon ceasing to be a stockholder of Serta, or upon
the expiration of said thirty (30) day period for remedying any default
under the terms of this agreement, as the case may be, cease and abandon
the use of such corporate name or firm name and style.
(h) In the event of a termination of this agreement in the manner
specified in paragraph (g) hereof, the Member shall, within thirty (30)
days of the date of termination of this agreement, cause such corporate
name to be changed by deleting the word "Serta" therefrom. In the event
such firm name and style can be registered under the provisions of any
state law for the exclusive use by the registrant, then, in the event of
the termination
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of this agreement as provided in paragraph (g), the Member shall, within
thirty (30) days of such termination, take such legal steps as may be
necessary to change the registration of such firm name and style by
deleting the word "Serta" therefrom.
(i) In the event of the termination of this agreement by reason
of a default of the Member as herein specified and the Member fails or
refuses to cease and desist from the use of such corporate name or firm
name and style embodying the word "Serta" therein, or fails and refuses
to change such corporate name or such firm name and style by deleting
the word "Serta" therefrom, then in either such event Serta shall have
the right, without notice to the Member, to obtain an injunction
enjoining the Member from the use of any corporate name or firm name and
style which embodies the word "Serta" therein.
(j) In the event Serta desires to become qualified as a foreign
corporation in the state or states in which the Member is doing business
under such corporate name or such firm name and style, the Member shall,
upon request of Serta, execute a written consent to the qualification of
Serta in such state or states.
(k) In the event the Member does not cease from using such
corporate name or firm name and style as provided in paragraphs (g) and
(h) hereof, it is understood and agreed that Serta will suffer material
damages, the exact amount of which would be difficult, if not
impossible, of ascertainment. Therefore, the Member shall pay to Serta,
upon demand, the sum of Twenty-Five Dollars ($25.00) per day as
liquidated damages for each and every day in which the Member fails to
cease and desist from the use of such corporate name or firm name and
style as required by the terms of this agreement. In addition to the
foregoing penalty, the Member shall pay to Serta its reasonable costs,
expenses and attorneys' fees incurred in and about the collection of
such penalty or in and about the obtaining of an injunction against the
Member, or in and about any litigation to which Serta is made a party by
reason of the fault of the Member.
(l) In the event the Member is declared a bankrupt, or in the
event any corporation organized by the Member under a corporate name
embodying the word "Serta" is declared bankrupt, then in either such
event this agreement shall be terminated as of the date upon which the
Member or such corporation is declared a bankrupt. The occurrence of
such event shall constitute a default.
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IN WITNESS WHEREOF, Serta has caused these presents to be signed in its
corporate name by its duly authorized officers, and the Member has caused these
presents to be signed in its corporate name or in its firm name and style by its
duly authorized officers or partners, as the case may be, all on the day and
year first above written.
SERTA, INC.
By /s/
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President.
ATTEST:
/s/ John Solair
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Secretary.
SEAL
SLEEPMASTER L.L.C.
By: /s/ Charles Schweitzer
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President.
ATTEST:
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Secretary.
SEAL
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