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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;
2
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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 w
