Exhibit 10.34
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AMENDED AND RESTATED INTELLECTUAL PROPERTY LICENSE AGREEMENT
This Amended and Restated Intellectual Property License
Agreement ("AGREEMENT"), originally dated as of September 29, 1999 ("EFFECTIVE
DATE"), and thereafter amended as of October 1, 2000, by and between Weight
Watchers International, Inc., a Virginia corporation ("LICENSOR"), and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("LICENSEE") (each of Licensor
and Licensee, a "PARTY", and collectively, the "PARTIES"), hereby is amended and
restated as of September 10, 2001, by and between Licensor and Licensee.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Licensor, directly or through certain Affiliates (as
defined herein), owns and operates a weight loss business;
WHEREAS, Licensor is developing a presence for its business in
the Electronic Medium (as defined herein), pursuant to which products and
services related to Licensor's business are offered for sale and information
related to Licensor's business is distributed (collectively, the "LICENSOR
OBJECTIVES");
WHEREAS, Licensee is creating, operating and maintaining an
on-line business that can provide Licensor with a means of achieving the
Licensor Objectives, as well as providing Licensee with a means of pursuing
other online business ventures related to Licensor's business (together with
Licensor Objectives, the "LICENSEE OBJECTIVES");
WHEREAS, Licensor desires to grant to Licensee, and Licensee
desires to obtain from Licensor, a license to use certain trademarks, domain
names and information related to Licensor's business for Licensee's use in
connection with Licensee's pursuit of the Licensee Objectives, subject to the
terms and conditions herein;
NOW, THEREFORE, for good and valuable consideration, including
that stated in Article 4 herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
Article 1. DEFINITIONS.
Section 1.1. "AFFILIATE" shall mean any Person (other than
Licensee) which, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, another Person. The
term "control" includes, without limitation, the possession, directly or
indirectly, of the power to direct the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Section 1.2. "APPROVED E-COMMERCE ACTIVITIES" shall mean (i)
E-Commerce Activities that have been approved by Licensor pursuant to the
approval process set forth in
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Section 4.4 hereof, and (ii) any other activities that are requested by Licensor
and performed by Licensee pursuant to Licensor's instructions, in accordance
with the Service Agreement dated as of the date hereof between Licensor and
Licensee ("SERVICE AGREEMENT").
Section 1.3. "BUSINESS" shall mean the conduct of a business
related to weight management and/or healthy lifestyles, which business shall
utilize the Weight Watchers Program and the Licensed Materials.
Section 1.4. "DERIVATIVE WORKS" shall mean all updates,
improvements, modifications, revisions or enhancements to or derivative works
based upon the Licensed Materials.
Section 1.5. "E-COMMERCE ACTIVITIES" shall mean (i) those
activities performed by Licensee in accordance with the Service Agreement, and
(ii) those activities Licensee desires to conduct in the Electronic Medium in
connection with its conduct of the Business, including, without limitation,
those activities set forth on Schedule A to this Agreement (which is attached
hereto and made a part hereof).
Section 1.6. "ELECTRONIC MEDIUM" shall mean the Internet and
any other related or similar forms of interactive and connected electronic
delivery or digital transmission that now exist or may hereafter be developed,
including but not limited to digital wireless or digital broadband. For the
avoidance of doubt, products such as CD-ROM that can be procured and installed
separately and have a user-interactive functionality will be part of the
Electronic Medium solely if any of their functionality requires a connection
(either permanent or occasional) to the Internet or any other interactive
digital transmission facility.
Section 1.7. "FRANCHISEE" shall mean any and all franchisees
of Licensor.
Section 1.8. "LICENSEE BUSINESS MATERIALS" shall mean any and
all (i) content (whether text, graphic, video or any other materials) published
or otherwise displayed in the Electronic Medium and (ii) advertising, public
relations, promotional materials and packaging used either in or out of the
Electronic Medium; in each case in connection with Licensee's conduct of the
Business in the Electronic Medium and that incorporate or refer to the Licensed
Property, in whole or in part.
Section 1.9. "LICENSED MATERIALS" shall mean any text,
artwork, photographs, transfers, designs, graphic or pictorial or other similar
material, including any and all advertising, public relations and promotional
materials, owned by Licensor (or by third parties, subject to Section 2.2) and
used by Licensor in connection with the Weight Watchers Program, including but
not limited to those materials set forth on Schedule B to this Agreement (which
is attached hereto and made a part hereof), and any other materials or
information owned by Licensor (or by third parties, subject to Section 2.2) and
furnished by Licensor, from time to time and in Licensor's sole discretion, to
Licensee, and any Derivative Works created by either Licensee or Licensor.
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Section 1.10. "LICENSED PROPERTY" shall mean, to the extent of
Licensor's interest therein and subject to Third Party Agreements, the Licensed
Materials (including Derivative Works created by either Licensee or Licensor)
and the Licensed Trademarks.
Section 1.11. "LICENSED TRADEMARKS" shall mean any trademarks
and service marks, trade names, brand names, corporate names, domain names,
logos, trade dress, and other words, designations, labels, symbols, designs,
colors, color combinations or product configurations, whether registered or
unregistered, that are owned by Licensor and used in connection with Licensor's
Business during the Term.
Section 1.12. "PERSON" shall mean any individual, general
partnership, limited partnership, corporation, limited liability company, joint
venture, trust, business trust, cooperative or association, and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
Section 1.13. "PROGRAM INFORMATION" shall mean certain
terminology owned by Licensor and used by it in connection with the Weight
Watchers Program and certain information owned and developed by Licensor for use
in connection with the development, manufacture, marketing and distribution of
products and services in accordance with such Weight Watchers Program and the
calculation of Points(R) or other measurements relating thereto, as such
terminology and information may exist from time to time.
Section 1.14. "SITES" shall mean those websites and pages
developed, produced and maintained by, or at the direction of, Licensee on the
Internet and any successors or extensions thereof.
Section 1.15. "TERM" shall have the meaning set forth in
Section 8.1.
Section 1.16. "THIRD PARTY AGREEMENTS" shall mean Licensor's
pre-existing agreements with third parties, including without limitation (i)
Licensor's agreements with Franchisees, and any similar agreements entered into
by Licensor in the future to settle the Third Party Claims set forth on Schedule
I to this Agreement (which is attached hereto and made a part hereof) or claims
that are substantially similar thereto, and (ii) the Operating Agreement
executed on September 29, 1999 between Licensor and ▇.▇. ▇▇▇▇▇ Company
("HEINZ").
Section 1.17. "WEIGHT WATCHERS DOMAIN NAMES" shall mean those
domain names set forth on Schedule C to this Agreement (which is attached hereto
and made a part hereof), that Licensor previously registered, and any other
domain names registered by Licensor after the date of this Agreement, which
Licensor uses, has used or intends for Licensee to use in connection with its
conduct of the Business in the Electronic Medium.
Section 1.18. "WEIGHT WATCHERS PROGRAM" shall mean current and
future eating or lifestyle regimens to facilitate weight loss or weight control
employed, designed, marketed or
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adopted in any part of the world by or on behalf of Licensor, Licensor's
Affiliates or Franchisees.
Article 2. GRANT OF LICENSE.
Section 2.1. LICENSE TO USE LICENSED TRADEMARKS. During the
Term, and subject to the terms and conditions herein (including the approval
process in Section 4.4 below) and to the provisions of any Third Party
Agreements, Licensor hereby grants to Licensee: (a) the exclusive right to use
the Licensed Trademarks as or part of a domain name for a Site; (b) the
exclusive right to use the Licensed Trademarks in the Electronic Medium in
connection with the Business (and any other business that uses any of the
Licensed Trademarks in which Licensor is engaged during the Term), except that
Licensor, its Affiliates and its licensees (other than Licensee) may use the
Licensed Trademarks in the Electronic Medium for the advertising and marketing
of products and services that are sold or offered outside the Electronic Medium;
(c) the exclusive right to use the Weight Watchers Domain Names; (d) the
non-exclusive right to use the Licensed Trademarks in the Electronic Medium or
outside the Electronic Medium in connection with advertising and marketing
activities relating to the Approved E-Commerce Activities within the scope of
the Business; and (e) the non-exclusive right to use the Licensed Trademark
WEIGHT WATCHERS as part of its company name.
Section 2.2. LICENSE TO USE LICENSED MATERIALS. During the
Term, and subject to the terms and conditions herein (including the approval
process in Section 4.4 below) and to the provisions of any Third Party
Agreements, Licensor hereby grants to Licensee (a) the exclusive right to use
and reproduce the Licensed Materials solely in connection with the public
performance and display thereof in the Electronic Medium; and (b) a
non-exclusive right to modify, revise, alter the Licensed Materials or otherwise
create Derivative Works solely for purposes of Licensee's Business. In each
instance, Licensee shall be limited to using the Licensed Materials solely in
connection with Licensee's conduct of the Business in the Electronic Medium. Any
materials or content owned by third parties that would constitute "Licensed
Materials" if they were owned by Licensor shall be included within the
definition of "Licensed Materials" for all purposes herein, PROVIDED that (i)
Licensee shall pay all additional costs, if any, associated with obtaining
Licensee's right to use such materials or content pursuant to this Agreement
(except that Licensor shall pay any such costs if such materials or content
constitute a core aspect of the Weight Watchers Program); (ii) Licensor shall
use its reasonable efforts to assist Licensee in obtaining such rights from any
such third parties; PROVIDED that if such materials or content constitute a core
aspect of the Weight Watchers Program, Licensor shall obtain Licensee's right to
use such materials or content from any such third parties; and (iii) the consent
of any such third parties, if required, for Licensee's right to use such
materials or content is obtained.
Section 2.3. EXCLUSIVITY OF RIGHTS. Subject to any Third Party
Agreements, to the extent the rights granted to Licensee in Sections 2.1 and 2.2
are exclusive, such rights shall be exclusive even as against the Licensor and
Licensor shall not license or grant any such rights to any other Person.
Notwithstanding the foregoing, nothing in Sections 2.1 or 2.2 shall prevent
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Licensor or its Affiliates from using, or permitting or licensing third parties
to use, the Licensed Trademarks in the Electronic Medium for the advertising and
marketing of products and services that are sold or offered outside the
Electronic Medium.
Section 2.4. RIGHTS CONVEYED TO THIRD PARTIES. Licensee
acknowledges that its rights under this Agreement with respect to the Licensed
Property shall be subject to those rights granted by Licensor to Heinz and to
Franchisees pursuant to the applicable Third Party Agreements. Without limiting
the foregoing, Licensee covenants and agrees to perform the following
obligations pertaining to the Licensed Property agreed upon by Licensor pursuant
to the Third Party Agreements: (i) providing access by display of a hyperlink or
other means of transfer to certain Heinz websites, as set forth in Section
2.07(b)(iii)(B) of the Third Party Agreement with Heinz; (ii) paying the Online
Commission and eTools Commission to Franchisees (other than those Franchisees in
which Licensor or an Affiliate of Licensor now or hereafter, directly or
indirectly, owns a majority of the equity interests), as set forth in Sections
1.3 and 1.4 of the Franchisee Promotion Agreement dated as of August 23, 2001,
whether such commissions are paid directly to Franchisees by Licensee or, at
Licensor's option, paid to Licensor for payment by Licensor to Franchisees, and
(iii) providing access by display of a hyperlink or other means of transfer to
certain Franchisee websites, as set forth in Section 2.3 of the Amendment to
Franchise Agreement dated as of August 23, 2001.
Section 2.5. RIGHT TO SUBLICENSE. During the Term, and subject
to the terms and conditions herein and the provisions of any Third Party
Agreements, Licensor hereby grants to Licensee the right to sublicense its
rights under Section 2.1 and 2.2 hereof to third parties, PROVIDED that Licensee
receives prior written approval from Licensor in accordance with Section 4.4.
Section 2.6. OWNERSHIP OF DERIVATIVE WORKS. Licensor shall be
the owner of all rights, title and interest (including intellectual property
rights) in and to any Derivative Works created by Licensee in connection with
Licensee's use of Licensed Materials pursuant to Licensee's conduct of the
Business; PROVIDED, however, that "Derivative Works" shall not include, and
Licensee shall retain all rights, title and interest (including intellectual
property rights) in and to: (i) any software programs (including computer code)
or processes created solely by Licensee in connection with its conduct of the
Business, but not the Licensed Materials or Derivative Works incorporated in
such programs or processes; and (ii) any hardware, equipment or other technology
used by Licensee in connection with Licensee's conduct of the Business.
Section 2.7. RESERVATION OF RIGHTS. Licensor reserves all
rights to use the Licensed Materials other than those rights expressly granted
herein.
Article 3. PAYMENTS AND FEES.
Section 3.1. PAYMENTS. The Parties acknowledge that Licensee
issued to Licensor 3,298,680 shares of its Common Stock, par value $0.01
(reflecting the April 28, 2000
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stock split), in consideration for the licenses and rights granted herein.
Section 3.2. ROYALTY. In addition to the consideration
described herein in Section 3.1, in consideration for the licenses and rights
granted herein, Licensee shall also timely pay to Licensor all royalties as set
forth on Schedule D to this Agreement (which is attached hereto and made a part
hereof) in the manner set forth therein.
Section 3.3. METHOD OF PAYMENT. Unless otherwise agreed by the
Parties in writing, all payments due under this Agreement shall be made by wire
transfer of immediately available funds to an account specified by Licensor to
Licensee.
Section 3.4. ACCOUNTING. During the Term, Licensee shall
prepare in accordance with U.S. generally accepted accounting principles a full
and accurate statement setting forth, with respect to each previous calendar
quarter, all Net Revenues (as defined in Schedule D) earned by Licensee in
connection with its conduct of the Business, collectively and as individually
attributable to each Approved E-Commerce Activity, and broken down by the
country from which such revenues originate and are received (such statement, a
"REPORT"). An appropriate officer of Licensee shall certify in writing that each
such Report is complete and correct (such certification, an "OFFICER'S
CERTIFICATION"). Licensee shall provide such Report and Officer's Certification
to Licensor, at the same time that it makes the quarterly payments due under
Section 3.2 hereof.
Section 3.5. BOOKS AND RECORDS. Licensee shall keep and
maintain at its U.S. corporate headquarters or, to the extent it conducts any
portion of the Business in or directed toward another jurisdiction, at the
corporate headquarters for Licensee in such other jurisdiction, complete books
and records of all Net Revenues earned in connection with its conduct of the
Business, including the calculation of royalties. Such books and records shall,
in all instances, be maintained in accordance with U.S. generally accepted
accounting principles in addition to any other books and records Licensee may
maintain for other purposes. During the Term, for a period of three (3) years
and ninety (90) days after each calendar year ("REPORTING CYCLE"), Licensee
shall keep all such books and records pertaining to such year in good order and
available for inspection by Licensor pursuant to the procedures set forth in
this Article 3. After each Reporting Cycle, no amounts within such period may be
disputed by Licensor, and such records may be discarded at Licensee's sole
discretion.
Section 3.6. AUDIT AND INSPECTION. Licensor or its duly
authorized representatives shall have the right, no more than one (1) time in
any given calendar quarter, to inspect or audit the books and records described
in Section 3.5 hereof at Licensee's U.S. corporate headquarters or Licensee's
corporate headquarters for any other jurisdiction in which Licensee conducts the
Business, at any time during normal business hours and upon reasonable advance
notice. If any such audit reveals that Licensee has underpaid the royalties owed
to Licensor during any given quarter, Licensee shall forthwith (i) pay to
Licensor all royalties not paid plus an amount equal to 50% of such amount, and,
(ii) if the amount of such royalties not paid in any given quarter is ten
percent (10%) or more than the amount of royalties that should have been paid
during such
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quarter, Licensee also shall pay forthwith to Licensor any reasonable
out-of-pocket expenses incurred by Licensor to conduct the audit, up to a
maximum of $100,000 per audit.
Article 4. CONDUCT OF OPERATIONS.
Section 4.1. STANDARDS OF QUALITY. Licensee shall at all times
and in all respects conduct its Business in a first-class manner so as to
reflect credibly on Licensor and shall take no action so as to injure, damage,
or render less valuable any of the Licensed Property or, where applicable, any
goodwill associated therewith. Without limiting the generality of the foregoing
or of any of Licensor's approval rights as set forth herein, Licensee shall not
publicly perform or publicly display any material that Licensor considers, in
its good faith discretion, to be offensive or indecent, nor shall Licensee
permit any links (i) from any Site that can be accessed by a Weight Watchers
Domain Name to any website that contains material that Licensor considers, in
its good-faith discretion, to be offensive or indecent or (ii) (to the extent
practicable) from any website that contains material Licensor considers, in its
good faith discretion, to be offensive or indecent to any Site that can be
accessed by a Weight Watchers Domain Name.
Section 4.2. USE OF LICENSED TRADEMARKS. In addition to the
Standards of Quality set forth in Section 4.1 hereof and subject to the approval
process set forth in Section 4.4 below, Licensee shall use the Licensed
Trademarks in good faith, in a dignified manner, in a manner consistent with
Licensor's high standards of, and reputation for quality, in a manner consistent
with Licensee's own current standards for quality, in a manner consistent with
Licensor's Trademark Usage Guidelines set forth on Schedule F (which is attached
hereto and made a part hereof), which Licensor may in good faith amend from time
to time, PROVIDED such amendments shall not be applicable or effective until
Licensor provides Licensee with 30 days written notice of the same, and in
accordance with good trademark practice wherever the Licensed Trademarks are
used.
Section 4.3. LICENSEE BUSINESS CRITERIA. Without limiting the
generality of the foregoing or of any of Licensor's approval rights as set forth
herein, Licensee shall at all times and in all respects conduct its Business and
use the Licensed Property in a manner that conforms and is consistent with the
Licensee Business Criteria set forth in Schedule E (which is attached hereto and
made a part hereof), which Licensor may in good faith amend from time to time,
PROVIDED such amendments shall not be applicable or effective until Licensor
provides Licensee with 30 days written notice of the same.
Section 4.4. APPROVAL PROCESS. (a) Licensee shall submit to
Licensor in the manner set forth herein: (i) copies of any and all new Licensee
Business Materials it intends to use (whether itself or by a third-party on its
behalf), and (ii) a detailed written description of any and all new E-Commerce
Activities, any proposed sublicense arrangements, any proposed use of the Data
(as defined in Article 13) for purposes of soliciting or communicating with
Persons accessing the Site, and (iii) any new marketing or operating strategy,
policy or plan (collectively referred to herein as "PLANS") it develops in
connection with its conduct of the Business. Licensor shall review such Licensee
Business Materials and proposals to conduct E-Commerce
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Activities and Plans for the purpose of determining whether or not they conform,
or are consistent, with the Licensee Business Criteria and any other applicable
provision of this Agreement. Subject to Section 4.4(b) below, Licensor shall in
good faith approve or disapprove Licensee's proposed use of such materials as
promptly as practicable after receipt of such materials or of Licensee's written
request in connection therewith, but in the case of Licensee Business Materials,
by not later than five (5) business days after receipt by Licensor of Licensee's
request, and with respect to all E-Commerce Activities and Plans, by not later
than thirty (30) days after receipt by Licensor of Licensee's request. In the
event Licensor rejects any request, Licensor shall provide Licensee with a
written explanation therefor, which explanation shall state with specificity how
or why the materials, activities, strategies or plans presented or proposed fail
to conform, or otherwise are inconsistent, with the Licensee Business Criteria
or the provisions of this Agreement. Licensor shall have the right to rescind
any approval given pursuant to this Section 4.4(a) on thirty (30) days prior
written notice to Licensee, if in good faith it determines that the continued
use of such Licensee Business Material, E-Commerce Activities and/or Plans
conflicts with, no longer conforms with, is no longer applicable to, or may in
any way harm the integrity or quality of, the then current Licensee Business
Criteria, Licensed Property or Weight Watchers Program.
(b) Licensee Business Materials not approved or rejected
within the approval period set forth above shall be deemed approved, PROVIDED
that such materials conform to all of the requirements set forth in this
Agreement. Notwithstanding the foregoing, Licensor shall have the right, subject
to Section 4.5 below, at any time within sixty (60) days following the date such
materials are deemed approved pursuant to this Section 4.4(b), to reject
Licensee's proposed use of such Licensed Business Materials that it in good
faith determines do not conform with, are not consistent with, is no longer
applicable to, or may in any way harm the integrity or quality of, the then
current Licensee Business Criteria, Licensed Property or Weight Watchers Program
and any other applicable provision of this Agreement. In the event Licensor
rejects the use of any materials during such 60-day period, Licensee's use of
the applicable Licensed Business Materials prior to receipt of such rejection
notice and for 30 days thereafter shall not be deemed to be a breach of this
Agreement.
(c) Any materials or requests that previously have been
approved by Licensor pursuant to Section 4.4(a) above do not need to be
resubmitted for approval in connection with any subsequent use or request unless
the original approval was limited to a specified use, instance or duration.
Licensee shall not display, publish or otherwise use any Licensee Business
Materials that have not been approved pursuant to the approval process set forth
herein, and Licensee shall not conduct any activities in connection with its
conduct of the Business other than the Approved E-Commerce Activities that
follow approved Plans.
Section 4.5. THE INTERNET OPERATING COMMITTEE. During the Term
of this Agreement, in the event of a dispute between Licensor and Licensee
relating to the approval process set forth in Section 4.4 above, or any other
dispute relating to the use of the Licensed Property set forth in Sections 4.1,
4.2 and 4.3 above, either Party may appeal ("APPEALING PARTY") to the Internet
Operating Committee, which shall be created by Licensor and Licensee to
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consider and resolve such disputes from time to time (and shall be described
more fully in Schedule G to this Agreement, which is attached hereto and made a
part hereof) in the manner set forth below. The Appealing Party shall send
written notice ("APPEAL NOTICE") to the other Party ("DEFENDING PARTY") of its
intent (and the basis therefor) to appeal to the Internet Operating Committee.
If the Parties have not reached an agreement within five (5) business days of
the Defending Party's receipt of the Appeal Notice, (i) the Appealing Party
shall promptly submit to the Internet Operating Committee copies of all
materials or other information originally submitted by Licensee to Licensor for
approval, and copies of all correspondence between the Parties concerning the
use of the applicable materials, activities and plans, including the approval or
rejection thereof, and (ii) each Party shall submit a written statement
explaining its basis for the appeal or its basis for opposing the appeal, as
applicable (such materials, collectively, "MATERIALS FOR APPEAL"). Any Materials
For Appeal sent to the Internet Operating Committee shall be sent simultaneously
to the other Party. Upon receipt of all of the Materials For Appeal described
herein, the Internet Operating Committee shall consider the position of each of
Appealing Party and the Defending Party and determine whether or not, in its
reasonable opinion, the materials or activities presented or proposed conform,
or otherwise are consistent, with the Licensee Business Criteria and the terms
of this Agreement. The Internet Operating Committee shall issue a written
summary of its findings and opinion to both Licensor and Licensee as promptly as
practicable after its receipt of all of the Materials For Appeal. In the event
that the Internet Operating Committee is deadlocked over any issue presented for
appeal pursuant to this section, such issue shall be presented either to the CEO
of Licensor or, if the CEO of Licensor is unavailable, a senior executive
delegate of such individual, for resolution. The findings and opinion of the
Internet Operating Committee or, in the event of a deadlock, the findings and
opinion of the CEO of Licensor or that person's appointed delegate shall be
final and binding upon both Licensor and Licensee. Disputes governed by this
Section 4.5 shall not be subject to arbitration pursuant to Section 8.3, EXCEPT
that a party may appeal, pursuant to Section 8.3, the findings and opinion of
the CEO (or that person's appointed delegate) hereunder solely on the ground
that such findings and opinion were rendered in bad faith.
Section 4.6. CORPORATE NOTICES. Licensee shall, at the option
of Licensor, include on all Licensee Business Materials and/or display in
connection with its publication of any Licensed Property in the Electronic
Medium (i) an indication of the current or historical relationship between the
Parties hereto, (ii) Licensee's status as a separate corporation or other
separate business entity, and (iii) Licensor's ownership of the Licensed
Property, in each case in the reasonable form to be supplied by Licensor from
time to time.
Section 4.7. COMPLIANCE. Licensee shall at all times comply
with all statutes, laws, rules, directives, regulations and sound industry
practice pertaining to the Business and the use of the Licensed Property,
including, without limitation, any of the foregoing with respect to export
controls and data privacy.
Section 4.8. LIABILITY. Except as set forth herein, as between
Licensor and Licensee, Licensee hereby assumes all liability that may arise from
services rendered to customers and liability for injuries to and by servants,
agents, employees or the general public in
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connection with operation by Licensee of the Business. Licensor hereby assumes
all liability which may arise from the following activities: (i) Licensee's sale
of any products on Licensor's behalf, PROVIDED that Licensee's sale of such
products is consistent with the terms of this Agreement and such liability is
not the product of Licensee's bad faith, misconduct or negligence; and (ii)
Licensee's publication or display of any Licensed Property provided by Licensor
that was created by Licensor, its agents, Affiliates or Franchisees, PROVIDED
that Licensor shall not assume any liability which may arise from (x) a
revision, alteration or other change (other than as directed by Licensor or its
agents or its Affiliates) to the Licensed Property by or on behalf of Licensee,
or (y) Licensee's use of the Licensed Property in a manner that is inconsistent
with the terms of this Agreement.
Article 5. LICENSOR OBLIGATIONS. During the Term, Licensor
shall undertake the following obligations:
Section 5.1. PROVISION OF LICENSED PROPERTY. Following the
execution of this Agreement, Licensor shall provide Licensee with copies of
exemplars that were not already provided to Licensee of material uses of
Licensed Materials and Licensed Trademarks or as otherwise agreed upon by the
Parties or their respective representatives or agents. Thereafter, Licensor
shall promptly provide Licensee with copies of any new Licensed Materials
developed and any new Licensed Trademarks.
Section 5.2. COOPERATION WITH MARKETING EFFORTS AND WEIGHT
WATCHERS PROGRAM INNOVATION. Licensor shall make reasonable and good faith
efforts to consult and cooperate regularly (but not less than once per calendar
quarter) with Licensee for the purpose of exchanging with reasonable lead time
information about market trends and its advertising, marketing and promotional
activities and plans and its Weight Watchers Program innovation plans.
Section 5.3. CONSULTATION. Licensor shall arrange for
Licensor's staff to be available from time to time, as may reasonably be
requested by Licensee, for consultation with Licensee's staff regarding
Licensee's use of the Licensed Materials, including but not limited to the
Program Information, in connection with Licensee's conduct of the Business in
the Electronic Medium.
Article 6. LICENSEE OBLIGATIONS. During the term of this
Agreement, Licensee shall undertake the following obligations:
Section 6.1. PROVISION OF DERIVATIVE WORKS. Following the
execution of this Agreement and during the Term, Licensee shall provide Licensor
with copies of any Derivative Works that were not already provided to Licensor
and were created and used in connection with Licensee's conduct of the Business.
Thereafter, Licensee shall provide Licensor with copies of any new Derivative
Works it creates and uses within a reasonable period of time.
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Section 6.2. CONSULTATION. Licensee shall arrange for
Licensee's staff to be available from time to time, as may reasonably be
requested by Licensor, to consult with Licensor's staff regarding issues that
arise with respect to Licensee's conduct of the Business.
Article 7. OWNERSHIP OF LICENSED PROPERTY.
Section 7.1. OWNERSHIP OF LICENSED TRADEMARKS. (a) Licensor
represents and Licensee acknowledges that as between the Parties, Licensor is
the owner of all rights, title and interest in and to the Licensed Trademarks
and is the owner of any and all goodwill attached to the Licensed Trademarks,
including that which is developed pursuant to Licensee's use in connection with
the conduct of the Business.
(b) Licensee shall be considered a "related company" to
Licensor, as that term is defined by the U.S. ▇▇▇▇▇▇ Act, such that any and all
goodwill arising from Licensee's use of the Licensed Trademarks shall inure
solely to the benefit of Licensor. Licensee further acknowledges and agrees that
its use of any of the Licensed Trademarks shall at all times be as licensee for
the account and benefit of Licensor. To the extent that any rights in and to any
of the Licensed Trademarks are deemed to accrue to Licensee anywhere in the
world pursuant to this Agreement or otherwise, Licensee hereby assigns, at such
time as they may be deemed to accrue, any and all such rights to Licensor, and
will take all actions as may be necessary to effectuate such assignment.
(c) During the Term, Licensee shall have the right to propose
new trademarks, service marks, corporate names and domain names for use in
connection with Licensee's conduct of the Business in the Electronic Medium
(such marks, together with any new marks developed by Licensor during the Term,
"NEW MARKS"). Licensor shall have the right, in its sole discretion, to approve
Licensee's use of such New Marks and to determine whether to file applications
to register such New Marks with the U.S. Patent and Trademark Office or other
similar governmental office in any other jurisdiction. Any such applications
shall be prosecuted in Licensor's name. Licensee shall bear all costs incurred
in connection with such prosecution. Any and all such New Marks shall be
considered Licensed Trademarks, and any and all domain names within such New
Marks shall be considered Weight Watchers Domain Names, for purposes of this
Agreement.
(d) Notwithstanding anything to the contrary contained in this
Agreement, Licensee shall not sell any products or fill any orders in any
jurisdiction where the Licensed Trademarks or New Marks are not registered.
Section 7.2. OWNERSHIP OF LICENSED MATERIALS. Licensor
represents and Licensee acknowledges that as between the Parties, Licensor is
the owner of all rights, title and interest (including intellectual property
rights) throughout the world in and to the Licensed Materials and any Derivative
Works. In furtherance of Section 2.6, to the extent that any rights (including
intellectual property rights) in and to any of the Licensed Materials or
Derivative Works are deemed to accrue to Licensee anywhere in the world pursuant
to this Agreement or otherwise,
12
Licensee hereby assigns any and all such rights, at such time as they may be
deemed to accrue, to Licensor.
Article 8. TERM AND TERMINATION.
Section 8.1. TERM. The initial term of this Agreement
("INITIAL TERM") commences on the Effective Date and shall continue until the
tenth (10th) anniversary thereof. Upon expiration of the Initial Term, this
Agreement will automatically renew for additional, successive ten (10) year
periods (each a "SUCCESSIVE TERM" and, together with the Initial Term, the
"TERM"), unless terminated pursuant to the provisions of Section 8.2 hereof.
Section 8.2. TERMINATION. (a) If, at any time during the Term,
Licensee (i) uses no Licensed Property for a continuous period of at least six
months, or (ii) commits and fails to cure, within thirty (30) days following
Licensor's written notice thereof, a material breach of the provisions of this
Agreement, which material breach, if uncured, likely would cause the Licensed
Property to be abandoned or render the Licensed Property invalid or
unenforceable, Licensor shall have the right to terminate this Agreement upon
written notice delivered to Licensee.
(b) Licensor shall have the right to terminate this Agreement
immediately upon written notice to Licensee if (i) Licensee makes an assignment
of all or substantially all of its assets for the benefit of creditors (other
than Licensor); (ii) Licensee admits in writing its inability to pay debts as
they mature; (iii) a trustee or receiver is appointed for a substantial part of
Licensee's assets; or (iv) to the extent termination is enforceable under the
U.S. Bankruptcy Code, a proceeding in bankruptcy is instituted against Licensee
that is acquiesced in, is not dismissed within 120 days, or results in an
adjudication of bankruptcy. The parties intend that this Agreement shall be
construed as a contract for personal services, and that the reputation and
identity of Licensee is a material condition to Licensor's grant of the license
hereunder.
(c) Licensor shall have the right to terminate this Agreement
immediately upon written notice to Licensee thereof if (i) Licensee has
committed multiple, intentional material breaches of this Agreement and (ii)
Licensor has, in each such instance, provided Licensee with written notice
thereof pursuant to Section 8.3(a) hereof, PROVIDED, Licensor's written notice
of termination contains a list and brief description of all such breaches.
(d) Except as otherwise set forth in this Section 8.2, the
Agreement shall be terminable only upon the written consent of both Licensor and
Licensee. Except as otherwise set forth in this Section 8.2, the breach by
either Party of any provision of this Agreement, whether material or otherwise,
shall not give either Party the right to terminate the Agreement; PROVIDED,
however, that this provision shall not limit any other remedies available to the
non-breaching Party, including the right to seek damages and injunctive relief.
(e) Upon termination, Licensee shall, within a reasonable
period of time, but in no event longer than 30 days after the date of such
termination, (i) return to Licensor (or, at Licensor's option and as per
Licensor's instructions, shall destroy or otherwise dispose of) (A)
13
all original copies of Licensed Materials provided to Licensee by Licensor and
(B) Derivative Works created by Licensee pursuant to the terms of this
Agreement, and (ii) transfer title to any and all registrations for any domain
names registered by Licensee that include or incorporate any Licensed
Trademarks.
Section 8.3. ARBITRATION. (a) Subject to Section 4.5, in the
event a controversy, claim or question of interpretation (each, a "CLAIM")
arises with respect to either Party's obligations under this Agreement, or in
the event that either Party believes the other Party has breached any provision
hereof or defaulted any of its obligations hereunder (each, a "BREACH"), the
Party making such Claim or alleging such Breach (the "FIRST PARTY") shall
provide the other Party (the "SECOND PARTY") with written notice specifying the
nature of such Claim or Breach in reasonable detail and specifying any
corrective action the First Party desires the Second Party to undertake.
(b) Within five (5) days after receipt of such written notice,
the Second Party shall provide written notice to the First Party of its intent
to take the requested corrective action and promptly shall (i) initiate such
corrective action at its sole cost and expense or (ii) provide written notice to
the First Party explaining why it does not believe such requested corrective
action is required under this Agreement.
(c) If (i) the Second Party has not complied with requested
corrective action within thirty (30) days after receipt of written notice from
the First Party; (ii) the Claim or Breach alleged is not capable of cure within
thirty (30) days; (iii) the Second Party does not use its best efforts to cure
such breach within such thirty (30) day period and make substantial progress
toward cure; or (iv) the Second Party has indicated in writing its intent not to
take such requested corrective action; then the First Party shall have the right
to refer such Claim or dispute regarding a Breach to arbitration for final
resolution.
(d) Any Claim or dispute regarding a Breach referred to
arbitration for resolution shall be finally settled under the International
Rules of the American Arbitration Association (the "RULES") by three arbitrators
appointed in accordance with the Rules. Judgment on any award rendered by the
arbitrators may be entered in any court having jurisdiction. Any award rendered
by the arbitrators shall be final and binding on the parties and not subject to
further appeal. The arbitrators shall have the authority to award any relief or
remedy available under applicable law, including without limitation specific
performance of any obligation created hereunder, the awarding of punitive
damages, the issuance of injunctive or other provisional relief, or the
imposition of sanctions. Unless otherwise agreed by the Parties, the place of
such arbitration shall be the Borough of Manhattan in The City of New York.
Section 8.4. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The
Parties acknowledge and agree that the obligations imposed on them in this
Agreement are special, unique and of extraordinary character, and that in the
event of breach by any party, damages may be an insufficient remedy.
Consequently, each Party agrees that the other may seek specific performance (in
addition to damages) as a remedy for the enforcement hereof without proof of
14
actual damages. In addition, the Parties acknowledge that the arbitration
undertaking set forth in Section 8.3 above shall not preclude them from seeking
an injunction or other restraining order from any court of competent
jurisdiction without proof of actual damages pending the outcome of such
arbitration proceeding.
Section 8.5. BANKRUPTCY. The licenses with respect to the
Licensed Property granted pursuant to Sections 2.1 and 2.2 hereof shall be
deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the
"BANKRUPTCY CODE"), licenses to rights in "intellectual property" as defined in
Section 101 of the Bankruptcy Code. The Parties agree that Licensee shall retain
and may fully exercise all of its rights and elections under the Bankruptcy
Code. In the event that a bankruptcy proceeding under the Bankruptcy Code is
commenced by or against Licensor, Licensee shall be entitled, at its option, to
retain all of its rights under this Agreement (including without limitation the
rights and licenses granted under Article 2 hereof) pursuant to Section 365(n)
of the Bankruptcy Code or receive a complete duplicate of, or complete access
to, all then existing Licensed Materials that are subject to the license
provisions hereunder, to the extent that such Licensed Materials constitute
"intellectual property" under Section 101 of the Bankruptcy Code. If such
Licensed Materials are not already in Licensee's possession, they shall be
promptly delivered to Licensee upon Licensee's written request (i) upon any such
commencement of a bankruptcy proceeding, unless Licensor elects to continue to
perform all of its obligations under this Agreement; or (ii) upon the rejection
of this Agreement by or on behalf of Licensor.
Article 9. INFRINGEMENT. Licensor and Licensee agree to notify
each other immediately after either Party becomes aware of any actual or
threatened infringement of the Licensed Property in or relating to the
Electronic Medium. Licensor and Licensee may agree at a later date to pay
jointly for an action alleging infringement of the Licensed Property or
otherwise share such costs and any resulting damages, monetary judgment,
settlement and/or compensation paid for such infringement. In the absence of
such agreement, Licensor shall pay all costs and expenses associated with, and
retain any and all such proceeds received in connection with any action relating
to infringement of the Licensed Property.
Article 10. REPRESENTATIONS AND WARRANTIES.
Section 10.1. REPRESENTATIONS AND WARRANTIES OF LICENSOR AND
LICENSEE. Licensor and Licensee each represents and warrants to the other Party
that:
(a) This Agreement is a legal, valid and binding obligation of
the warranting Party, enforceable against such Party in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to the effect of general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity);
(b) The warranting Party is not subject to any judgment,
order, injunction, decree
15
or award of any court, administrative agency or governmental body that would or
might interfere with its performance of any of its material obligations
hereunder; and
(c) The warranting Party has full power and authority to enter
into and perform its obligations under this Agreement in accordance with its
terms, and is not required to secure the consent, approval or waiver of any
third party with respect to such performance.
Section 10.2. REPRESENTATIONS AND WARRANTIES OF LICENSOR.
Licensor represents and warrants that it owns all right, title and interest in
the Licensed Property or has the right to grant the licenses granted to Licensee
hereunder with respect to the Licensed Property. Except as set forth on Schedule
I to this Agreement, Licensor is not aware of any claims by any third parties
challenging or otherwise pertaining to such ownership, and has no knowledge that
any of the Licensed Property is being materially infringed upon by any third
party.
Section 10.3. REPRESENTATIONS AND WARRANTIES OF LICENSEE.
Licensee represents and warrants that (i) in the operation of the Site (but
excluding any warranty with respect to the Licensed Property), it will not
infringe or otherwise violate the rights of any third party, and (ii) it will
use materials, resources and personnel in the operation of the Site of a quality
and reliability level that is at least industry standard and equal to those
utilized in the operation of comparable third-party sites. Licensee further
warrants and represents that it has no knowledge of any claims by or against any
third parties challenging or otherwise pertaining to the operation of the Site
(but excluding any claims covered by Section 10.2 above).
Article 11. ASSIGNMENTS. Except as otherwise expressly set
forth herein, Licensee shall not voluntarily, involuntarily or by operation of
law assign or otherwise transfer this Agreement or any of its rights or duties
hereunder in whole or in part to any third party (including, without limitation,
a Change of Control of Licensee) without the prior written consent of the
Licensor (which consent may be withheld by Licensor in its sole and absolute
discretion), PROVIDED, however, that approval shall not be required for a sale
of equity to the public in an initial public offering or a secondary offering. A
"Change of Control" shall mean the occurrence of any of the following (i) a sale
or other transfer of all or substantially all of the assets used by Licensee in
connection with the Business, (ii) any "person" (as such term is used in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended), other than a
Permitted Holder, is or becomes the beneficial owner, directly or indirectly, of
more than 35% of the voting stock (measured by voting power rather than number
of shares) of the Licensee, and the Permitted Holders do not hold a higher
percentage thereof or have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of the Licensee, or (iii) the Licensee consolidates or merges with or
into any other Person, other than a consolidation or merger pursuant to a
transaction in which the outstanding voting stock of the Licensee is changed
into or exchanged for cash, securities or other property with the effect that no
Person, other than a Permitted Holder, owns more than 35% of the voting stock
(measured by voting power rather than number of shares) of the surviving
corporation immediately following such transaction and the Permitted Holders do
not hold a higher percentage thereof or have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the
16
board of directors of the surviving corporation. "Permitted Holder" shall
mean Artal Luxembourg S.A., Licensor or any affiliate thereof. Any purported
assignment made in contravention of this Article 11 shall be null and void. Upon
the occurrence of a Change of Control that has not been approved in advance and
in writing by Licensor, this Agreement shall terminate.
17
Article 12. INDEMNIFICATION.
Section 12.1. LICENSEE'S OBLIGATIONS. Licensee hereby agrees
that it shall indemnify, defend and hold harmless Licensor and its Affiliates
and their respective directors, officers, shareholders, partners, attorneys,
accountants, agents and employees and their heirs and successors (the "LICENSOR
INDEMNIFIED PARTIES") from, against and in respect of any damages, claims,
losses, charges, actions, suits, proceedings, interest, penalties and reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
("LOSSES") imposed on, sustained, incurred or suffered by any of the Licensor
Indemnified Parties relating to or arising out of any action, suit, claim or
arbitration ("ACTION") filed by any third Person that arises out of or stems
from (i) Licensee's use of the Licensed Property in a manner that is
inconsistent with the terms of this Agreement; (ii) Licensee's conduct of its
business, unless such Losses are covered by the indemnity in Section 12.2 below;
or (iii) any breach of this Agreement by Licensee, including, without
limitation, Section 13.2 below.
Section 12.2. LICENSOR'S OBLIGATIONS. Licensor hereby agrees
that is shall indemnify, defend and hold harmless Licensee and its Affiliates
and their respective directors, officers, shareholders, partners, attorneys,
accountants, agents and employees and their heirs and successors (the "LICENSEE
INDEMNIFIED PARTIES") from, against and in respect of any Losses imposed on,
sustained, incurred or suffered by any of the Licensee Indemnified Parties
relating to or arising out of any Action brought by any third Person that arises
out of or stems from (i) Licensee's use of the Licensed Property in connection
with Licensee's conduct of the Business in a manner that is consistent with the
terms of this Agreement; or (ii) any breach of this Agreement by Licensor,
including, without limitation, Section 13.2 below.
Article 13. USER PROFILE DATA AND PRIVACY.
Section 13.1. DATA OWNERSHIP. Subject to the provisions set
forth in Section 13.2 and Article 14 hereof, Licensor and Licensee shall jointly
own any information collected by Licensee from users through the Site or the
Electronic Medium ("DATA"). Consistent with such joint ownership, Licensee shall
keep such Data in a database and shall provide Licensor at all times with
reasonable access to such database and the Data contained therein during the
Term of this Agreement.
Section 13.2. PRIVACY. Licensor and Licensee shall at all
times be bound (and shall require all employees and Affiliates to be bound) by
the rules, regulations and privacy policies promulgated by Licensee or any
applicable government entity or office with respect to use of Data and of
Confidential Information. All privacy policies created by Licensee shall be
subject to the approval process set forth in Section 4.4 above, and Licensee
shall at all times ensure that an approved privacy policy is (i) established,
(ii) followed and (iii) displayed to Persons accessing the Site.
Section 13.3. USE OF DATA. Without limiting the foregoing and
subject to Article
18
14 below, Licensee shall not be permitted to use any Data for purposes of
soliciting or communicating with Persons accessing the Site without the prior
approval of Licensor in accordance with Section 4.4. Unless otherwise clearly
disclosed to those accessing the Site, either on the Site or via the Electronic
Medium, all Data collected through the Site or via the Electronic Medium that
pertains to such users individually shall be considered to comprise Confidential
Information (as defined in Section 14.1), shall be kept confidential pursuant to
the provisions of Article 14 hereof, and shall not be disclosed to third
parties. Nothing herein shall prevent either Party from disclosing any of the
Data to each other and any Affiliate, to the extent permitted by law and all
Licensee privacy policies approved pursuant to Section 13.2.
Article 14. CONFIDENTIALITY.
Section 14.1. CONFIDENTIAL INFORMATION. "Confidential
Information" shall mean written or oral information about the disclosing Party's
business or activities that is proprietary or confidential, which shall include
without limitation all business, financial and technical information of a Party,
marketing and advertising strategies, user lists, and any other information of a
Party marked or designated by such Party as confidential information; PROVIDED
THAT information shall not be considered Confidential Information of a Party if
it can be shown that such information; (i) is known to the recipient on the date
of disclosure directly or indirectly from a source other than the providing
Party and other than a source having an obligation of confidentiality to the
providing Party; (ii) thereafter becomes known (independently of disclosure by
the providing Party) to the recipient directly or indirectly from a source other
than one having an obligation of confidentiality to the providing Party; or
(iii) becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the recipient.
Section 14.2. PROTECTION OF CONFIDENTIAL INFORMATION. The
Parties acknowledge and agree that, in connection with the performance of this
Agreement, each may have access to certain Confidential Information of
substantial value to the other party, which value would be impaired and which
value would be difficult to quantify if such information were disclosed to third
parties. Consequently, both Licensor and Licensee agree that, except as
expressly permitted in this Agreement (including, without limitation, Article
13), or agreed upon by the Parties pursuant to the approval process set forth in
Section 4.4 hereof, neither Party may use in any way for its own account or for
the account of any third party, nor disclose to any third party (other than an
Affiliate where permitted by law), any such Confidential Information revealed to
it by either Party, as the case may be. Licensor and Licensee further agree that
each will use reasonable best efforts to protect the confidentiality of such
Confidential Information. In the event of termination of this Agreement, there
shall be no use or disclosure by either Party of any such Confidential
Information in its possession, and all documents and materials incorporating,
embodying, containing or otherwise pertaining to Confidential Information shall
be returned to the rightful owner, or destroyed. The provisions of this Article
shall survive the termination of this Agreement for any reason. Upon any breach
or threatened breach of this Section 14.2, either Party shall be entitled to
injunctive relief without need for proving irreparable harm and without need to
post bond as security.
19
Section 14.3. PERMITTED DISCLOSURE. The Parties acknowledge
and agree that each may disclose Confidential Information: (i) as required by
law, regulation or court order; (ii) to their respective directors, officers,
employees, attorneys, accountants, and other advisors, who are under an
obligation of confidentiality, on a "need-to-know" basis; or (iii) in connection
with disputes or litigation between the Parties involving such Confidential
Information, in which case each Party shall endeavor to limit disclosure to such
purpose. In the event a Party is required by law, regulation or court order to
disclose any of the other Party's Confidential Information, such Party will
promptly notify the other Party in writing prior to any such disclosure in order
to facilitate seeking a protective order or other appropriate remedy from the
proper authority. The disclosing Party agrees to cooperate with the other Party
in seeking such order or other remedy. The disclosing Party further agrees that
if such Party is not successful in precluding the requesting legal body from
requiring the disclosure of the Confidential Information, it will furnish only
that portion of the Confidential Information that is legally required and will
exercise all reasonable efforts to obtain reliable assurances that confidential
treatment will be accorded to such Confidential Information as it is required to
disclose.
Article 15. MISCELLANEOUS PROVISIONS.
Section 15.1. RELATIONSHIP OF PARTIES. This Agreement shall
not be construed to create a joint venture, partnership or the relationship of
principal and agent between the parties hereto, nor to impose upon either party
any obligations for any losses, debts or other obligations incurred by the other
party, except as expressly set forth herein.
Section 15.2. NOTICES. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or internationally recognized
overnight courier service or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the Parties at
the following addresses (or at such other addresses for a Party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
IF TO LICENSOR:
Weight Watchers International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: Chief Executive Officer
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Weight Watchers International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20
ATTENTION: General Counsel
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO LICENSEE:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: Chief Executive Officer
TELECOPY: (212) 315 - 0709
and to:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: General Counsel
TELECOPY: (212) 315 - 0709
Section 15.3. GOVERNING LAW. This Agreement shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York.
Section 15.4. SURVIVAL. Articles 1, 12, 13, 14 and 15,
Sections 2.6, 4.8, 7.1(a), 7.2, 8.2(e), 8.3, 8.4, and Sections 3.2-3.6 (to the
extent relating to royalties accruing prior to such event), 6.1 (to the extent
relating to Derivative Works created prior to such event) shall survive any
suspension, expiration or termination of this Agreement.
Section 15.5. FURTHER ASSURANCES. Licensor and Licensee agree
to execute such further documentation and perform such further actions,
including the recordation of such documentation with appropriate authorities, as
may be reasonably requested by the other Party hereto to evidence and effectuate
the grant of rights and allocation of ownership of the Licensed Property as set
forth in this Agreement.
Section 15.6. ENTIRE AGREEMENT. This Agreement, including the
various Schedules attached hereto (and the applicable provisions of the Service
Agreement), shall constitute the entire agreement between the Parties with
respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter.
Section 15.7. AMENDMENTS. This Agreement (including this
Section 15.7) may not be modified or amended except by an agreement in writing
signed by each of the Parties hereto.
Section 15.8. HEADINGS. The headings in this Agreement are
inserted for
21
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provision hereof.
Section 15.9. WAIVER. No failure of a Party to insist upon
strict compliance by the other with any obligation or provision hereunder, and
no custom or practice of the Parties at variance with the terms hereof, shall
constitute a waiver of such Party's right to demand exact compliance with the
terms of this Agreement.
Section 15.10. SEVERABILITY. If any provision of the Agreement
or the application thereof to any Person or circumstance shall be invalid,
illegal or unenforceable to any extent, the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law. If any court or government entity rules that
any portion of this Agreement is invalid, illegal or unenforceable to any extent
in a particular jurisdiction, such ruling shall not render such provision or
this Agreement invalid, illegal or unenforceable in any other jurisdiction.
Section 15.11. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
22
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement, effective as of the date first above written.
WEIGHT WATCHERS INTERNATIONAL, INC.
("Licensor")
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
("Licensee")
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------