Exhibit 10.10
AMENDMENT NUMBER 1 TO LICENSE AGREEMENT
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This Amendment Number 1 to License Agreement ("First
Amendment"), is made and entered into as of the 12th day of December, 2001, by
and between OMS INVESTMENTS, INC., a Delaware corporation ("Licensor"), and
UNIONTOOLS, INC., a Delaware corporation ("Licensee").
WITNESSETH:
WHEREAS, Licensor and Licensee are parties to that certain
License Agreement, dated as of December 14, 2000 ("License Agreement"), pursuant
to which Licensor granted to Licensee a license to use the Marks for the
purposes stated in the License Agreement;
WHEREAS, pursuant to Section 2.1 of the License Agreement, the
License Agreement expires on December 31, 2001; and
WHEREAS, Licensor and Licensee mutually desire to extend the
term of the License Agreement for an additional period of two (2) years
pursuant to the terms of this First Amendment.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements of the parties hereto, the sufficiency of which
is hereby acknowledged, each party does agree with the other as follows:
1. Section 2.1 of the License Agreement is hereby deleted in its entirety from
the License Agreement, and the following language is hereby inserted in lieu
thereof:
2.1 TERM. This Agreement shall commence on January 1, 2001
(the "Commencement Date") and shall have a term of three (3) years,
unless otherwise terminated as provided herein.
2. Section 2.4 of the License Agreement is hereby deleted in its entirety from
the License Agreement, and the following language is hereby inserted in lieu
thereof:
2.4 TERMINATION FOR INSOLVENCY. If (i) a party shall file a
petition in bankruptcy for liquidation of its business; (ii) a
petition in bankruptcy is filed against a party and is not dismissed
within a ninety (90) day period; (iii) a party makes an assignment for
the benefit of its creditors or an arrangement pursuant to any
bankruptcy law; (iv) a party discontinues its business with intention
that it be permanent; (v) a receiver is appointed for a party or its
business and such appointment is not dismissed within a ninety (90) day
period; or (vi) a Change of Control (as defined below) occurs with
respect to a party, this Agreement shall, at the option of the other
party, be terminable immediately upon written notice. In the event this
Agreement is so terminated by Licensor, Licensee, its receivers,
representatives, trustees, agents, administrators, successors and/or
assigns shall have no right to sell, exploit or in any way deal with or
in the Licensed Products bearing the Marks, or any carton, container,
packing material, wrapping material, advertisement, promotional
material or display material pertaining thereto, except as indicated in
Section
2.9. For purposes of this Agreement, "Change of Control" means, with
respect to a party hereto, (vii) the acquisition after the date hereof
by any individual (or group of individuals acting in concert),
corporation, company, association, joint venture or other entity, of
beneficial ownership of 50% or more of the voting securities of such
party; (viii) the consummation by such party of a reorganization,
merger or consolidation, or exchange of shares, if immediately after
giving effect to such transaction, the individual or entities who
beneficially own voting securities of such party immediately prior to
such transaction beneficially own in the aggregate less than 50% of
such voting securities of such party immediately following such
transaction; (ix) the consummation by such party of the sale or other
disposition of all or substantially all of the assets of such party
(other than to an affiliate of such party); or (x) the consummation by
such party of a plan of complete liquidation or dissolution of such
party.
3. Section 3.1 of the License Agreement is hereby deleted in its entirety from
the License Agreement, and the following language is hereby inserted in lieu
thereof:
3.1 ROYALTY. During each calendar year of the term of this
Agreement, Licensee shall pay to Licensor a royalty which is the
greater of: (i) five percent (5%) of the gross amount invoiced by
Licensee during such calendar year for the sale or other disposition
for value (directly or through affiliated or related entities) of all
Licensed Products to third parties, less all applicable sales and
use-type taxes, customer discounts, credits for returned or rejected
articles, allowances, shipping charges, and insurance, provided gross
to net sales calculation is consistent with Licensee's historical past
business practices and GAAP standards or (ii) $400,000 (the "Minimum
Guaranteed Royalty") (collectively, the "Royalty").
4. Section 3.2 of the License Agreement is hereby deleted in its entirety from
the License Agreement, and the following language is hereby inserted in lieu
thereof:
3.2 MANNER OF ROYALTY PAYMENT. All Royalty payments with
respect to each Licensed Product shall be made by check or wire
transfer, in U.S. Dollars. Royalty payments shall be at Licensor's
office as set forth below. Each royalty payment shall be accompanied by
documentation of how the Royalty was calculated, which shall be
certified by an officer of Licensee. The first Royalty payment during
each calendar year of the term of this Agreement shall be equal to
one-fourth of the Minimum Guaranteed Royalty and shall be due and
payable on the first day of January of such calendar year. The balance
shall be paid quarterly until the annual the Minimum Guaranteed Royalty
is exceeded. Thereafter, the Royalty shall be paid monthly within
thirty (30) days of month end.
5. Section 5.1 of the License Agreement is hereby deleted in its entirety from
the License Agreement, and the following language is hereby inserted in lieu
thereof:
5.1 Prior to the first day of January of each calendar year
during the term of this Agreement, Licensee shall present Licensor with
a copy of Licensee's preliminary marketing plan for Licensed Products
for such calendar year in sufficient time to allow
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for review and input before a final annual marketing plan is developed
for such calendar year (the final annual marketing plan for each such
calendar year is sometimes herein-after referred to as the "Annual
Marketing Plan"). During each such calendar year, Licensee agrees to
promote the Licensed Products substantially as outlined in the Annual
Marketing Plan for such calendar year (which such Annual Marketing Plan
shall, upon implementation by Licensee in accordance with this Section
5.1, be attached as Exhibit G to this Agreement), to the channels of
distribution in the Territory covered in this Agreement. Such Annual
Marketing Plan shall include the following matters based on the
previous season and future market outlook: the pertinent market
overview; external factors affecting the market; the product line,
including specifications and performance standards, product
positioning, features/benefits, price/value versus competitive
products; consumer research; sales strategy and target customers;
merchandising programs and advertising programs; and a one (1) year
sales forecast in units and dollars. The Annual Marketing Plan for any
calendar year shall not be implemented by Licensee until the Licensor
has had the opportunity to review such Annual Marketing Plan and
identify any areas of concern. Licensor and Licensee will work in good
faith to resolve any reasonable concerns of Licensor regarding each
Annual Marketing Plan or its execution.
6. The notice address for Licensor set forth in Section 16.1 of the License
Agreement is hereby deleted in its entirety from the License Agreement, and the
following language is hereby inserted in lieu thereof.
Notice to Licensor: OMS Investments, Inc.
1105 North Market Street
Wilmington, Delaware 19899
Telecopy: 302-651-8423
Attn: Susan Dubb
With two copies to: OMS Investments, Inc.
14111 Scottslawn Road
Marysville, Ohio 43041
Telecopy: 937-644-7568 and 937-644-2766
Attn: David Aronowitz and Ashton Ritchie
7. All capitalized terms used and not defined in this First Amendment shall have
the meanings ascribed to such terms in the License Agreement.
8. Except as explicitly set forth in this First Amendment, all terms and
provisions of the License Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their duly authorized representatives as of the day and year
first written above.
LICENSEE LICENSOR
UNIONTOOLS, INC. OMS INVESTMENTS, INC.
By: /s/ A. Corydon Meyer By: /s/ L. Robert Stohler
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Title: President and CEO Title: Senior Vice President North America
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