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EXHIBIT 10.6
PERPETUAL LICENSE AGREEMENT
This Perpetual License Agreement (this "Agreement") is being
entered into
effective as of the 1st day of August 2005 (the "Effective
Date"), by and
between Ritz Camera Centers, Inc., a Delaware corporation
("RCC") and Ritz
Interactive, Inc., a Delaware corporation ("RII").
RECITALS
A. RCC owns the name, trademark, service mark and/or tradename
"Ritz
Interactive" (referred to herein as the "Mark").
B. RCC and RII are entering into that certain Second Amended and
Restated
Agreement, to be effective concurrently herewith (the "RCC
Agreement").
C. RII has certain rights to use the Mark under the RCC
Agreement, and
desires additional rights to use the Mark, in the event the RCC
Agreement is
terminated, as set forth in this Agreement.
D. In consideration for the mutual promises herein, and RII's
entry into
the RCC Agreement, RCC desires to grant to RII additional rights
to use the Mark
under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. GRANT OF LICENSE
1.1 "RII Field" means any business other than sales of (i)
photographic
equipment, supplies and products, (ii) boating, fishing and
marine equipment,
supplies and products, (iii) photo finishing, digital imaging,
portraits and
related services, or (iv) consumer electronic equipment.
1.2 RCC hereby grants to RII a perpetual, worldwide,
royalty-free,
fully-paid exclusive (including as to RCC) license to, after the
termination of
the RCC Agreement, use and reproduce the Mark in conjunction
with any business
or use in the RII Field (the "License"). RII shall also have the
right to
authorize its third-party service providers to, after the
termination of the RCC
Agreement, use and reproduce the Mark as permitted to RII
herein. Except as
expressly permitted herein or in the RCC Agreement, RCC agrees
that it shall not
transfer any right, title and/or interest and/or grant a license
or authorize
another Person to use or reproduce the Mark. Nothing in this
Agreement shall be
construed to grant RII any ownership rights in or to the Mark,
or restrict any
of the rights granted under the RCC Agreement. Except as
specifically provided
in this Agreement or the RCC Agreement, RCC is the sole and
exclusive owner of
the Mark and all goodwill associated with or appurtenant to it,
and RII has no
right or interest in the Mark except as specifically provided in
this Agreement
or the RCC Agreement.
1.3 Notwithstanding the License granted in Section 1.2, in the
event that,
after termination of the RCC Agreement, RII desires to use the
Mark in
conjunction with any business that is not an existing business
of RII as of the
time of the termination of the RCC Agreement (a "New Business"),
then RII shall
provide RCC with thirty (30) days prior written notice to
RCC
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of the New Business that RII is considering entering along with
a general
description of the manner in which RII would expect to use the
Mark in
connection with such New Business. RCC shall have the right,
within such thirty
(30) day period, to demand in writing that RII not use the Mark
in connection
with such New Business if RCC determines that use of the Mark in
connection with
such New Business would subject RCC to a risk of any unfavorable
regulatory
action, violate any law, infringe the rights of any third party,
impair the
goodwill associated with the Mark or any other Marks (as such
term is defined in
the RCC Agreement), or unreasonably subject RCC to liability.
Upon such written
demand from RCC, RII shall, in its discretion, either (i) not
use the Mark in
connection with such New Business or (ii) submit the dispute to
binding
arbitration in accordance with the provisions of Section 5.2 of
this Agreement,
pending the outcome of which RII shall not use the Mark in
conjunction with such
proposed New Business. The sole determination to be made by the
arbitrators in
any such proceeding shall be a determination of whether RII's
use of the Mark in
connection with such New Business would subject RCC to a risk of
any unfavorable
regulatory action, violate any law, infringe the rights of any
third party,
impair the goodwill associated with the Mark or any other Marks
(as such term is
defined in the RCC Agreement), or unreasonably subject RCC to
liability. If the
arbitrators determine that RII's use of the Mark in connection
with such New
Business would subject RCC to a risk of any unfavorable
regulatory action,
violate any law, infringe the rights of any third party, impair
the goodwill
associated with the Mark or any other Marks (as such term is
defined in the RCC
Agreement), or unreasonably subject RCC to liability, then RII
shall not use the
Mark in connection with such New Business. If the arbitrators do
not determine
that RII's use of the Mark in connection with such New Business
would subject
RCC to a risk of any unfavorable regulatory action, violate any
law, infringe
the rights of any third party, impair the goodwill associated
with the Mark or
any other Marks (as such term is defined in the RCC Agreement),
or unreasonably
subject RCC to liability, then RII may use the Mark in
connection with such New
Business, subject to the other terms and conditions of this
Agreement.
2. TERM
2.1 This Agreement shall begin on the Effective Date and shall,
unless
terminated pursuant to this ARTICLE 2, continue in
perpetuity.
2.2 RCC shall have the right (but not the obligation) to
terminate
immediately this Agreement:
2.2.1 if RII is in material breach of any of its obligations
or
representations hereunder, which are material to this Agreement
and which
breach is not cured or remedied within sixty (60) days of
receipt by RII
of written notice from RCC of such breach;
2.2.2 if RII files or is the subject of a voluntary petition in
bankruptcy
or any voluntary proceeding relating to insolvency,
receivership,
liquidation, or composition for the benefit of creditors, if
such petition
or proceeding is not dismissed within sixty (60) days of filing;
or
becomes the subject of any involuntary petition in bankruptcy or
any
involuntary proceeding relating to insolvency, receivership,
liquidation,
or composition for the benefit of creditors, if such petition
or
proceeding is not dismissed within sixty (60) days of
filing;
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2.2.3 if the business of RII is liquidated or otherwise
terminated for
insolvency or any other basis; or
2.2.4 if RII makes a general assignment for the benefit of its
creditors.
2.3 RII shall have the right (but not the obligation) to
terminate
immediately this Agreement:
2.3.1 if RCC is in material breach of any of its obligations
or
representations hereunder, which are material to this Agreement
and which
breach is not cured or remedied within sixty (60) days of
receipt by RCC
of written notice from RII of such breach;
2.3.2 if RCC is the subject of a voluntary petition in
bankruptcy or any
voluntary proceeding relating to insolvency, receivership,
liquidation, or
composition for the benefit of creditors, if such petition or
proceeding
is not dismissed wi
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