FORM OF
AMENDED AND RESTATED LICENSE AGREEMENT
THIS AGREEMENT is made as of this 24th day of September, 1997 by and
between:
Bright Licensing Corp., a New York corporation with a place of business at
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensor"), and
BW Acquisition Corp., a Delaware corporation with a place of business at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Licensee").
WITNESSETH:
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 "SMA2RT(TM) and
"Specialized Merger and Acquisition Allocated Risk Transaction(TM)
(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. 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.
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 ▇▇▇▇. 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 ▇▇▇▇ 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 ▇▇▇▇ 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 SMA2RT offering, the investment banker for the SMA2RT
offering, the underwriter for the SMA2RT public offering, copies of any letters
of intent or underwriting agreements relating to or involving SMA2RT 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. License 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
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of Licensee or upon the wining 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, License
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 therein 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 or 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 waiver 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.
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(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, agreements 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 LICENSING CORP. BW ACQUISITION CORP.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President President, Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇ (personally) as to
paragraph 7 only
/s/ Marc De Logeres
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By: Marc De Logeres (personally) as to
paragraph 7 only
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