Exhibit 10.24(d)
LICENSE AGREEMENT
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This Agreement is made by and between Westinghouse Electric Corporation, a
Delaware corporation, having a principal place of business at 0000 Xxxxxxxx, Xxx
Xxxx, XX 00000 (hereinafter referred to as "WESTINGHOUSE"), and Catalina
Lighting, Inc., a Florida corporation, having a principal place of business
00000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, XX 00000 (hereinafter referred to as
"CATALINA").
WHEREAS, WESTINGHOUSE and CATALINA entered into that certain Licensing
Agreement dated April 26, 1996, and first amended effective March 01, 1999 and
second amendment effective October 1, 2000 (the "Previous License Agreement");
Whereas WESTINGHOUSE and CATALINA hereby desire to enter into a new License
Agreement on the terms and conditions contained herein;
WHEREAS, WESTINGHOUSE is the owner of certain valuable and famous
trademarks;
WHEREAS, CATALINA is in the business of manufacturing and selling lighting
fixtures, portable lighting and other products; and
WHEREAS, CATALINA desires to become licensed under certain WESTINGHOUSE
trademarks and WESTINGHOUSE is willing to grant such license under the following
terms and conditions.
NOW, THEREFORE, in consideration of the premises and the covenants herein
contained, the parties hereto agree as follows.
1.0 - DEFINITIONS
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In this Agreement the following expressions have the following meanings:
1.1 LICENSING MANUAL - The Westinghouse Corporate identity and Licensing
Manual attached hereto and made a part hereof as Appendix A.
1.2 MARKS - The trademarks "WESTINGHOUSE", "Circle W", and "You can be
sure . . . if it's Westinghouse" as shown in Appendix B attached hereto and made
a part hereof.
1.3 NIP - "Net Invoice Price" - The aggregate of the invoiced amounts for
PRODUCTS less (a) returned goods, refunds, credits and allowances actually made
or allowed to a customer with respect to those PRODUCTS, (b) freight or handling
charges charged to customers or incurred on returned goods, and (c) sales and
excise taxes actually paid.
1.4 PRODUCTS - The lighting fixtures, portable lights and flashlights
specified in Appendix C utilizing the MARKS.
1.5 TERRITORY - United States, Canada and Mexico
2.0 - LICENSE GRANT
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2.1 Unless sooner terminated, WESTINGHOUSE hereby grants CATALINA an
exclusive license, without the right to grant sublicensee, to use the MARKS
solely on or in connection with the PRODUCTS and solely in the TERRITORY until
the expiration or termination of this Agreement. WESTINGHOUSE reserves to itself
all other rights in and to the MARKS.
2.2 CATALINA agrees that it shall use the MARKS only in the form approved
in writing by WESTINGHOUSE and with no departures in appearance or treatment.
CATALINA shall use its best efforts to insure that the MARKS used under this
Agreement comply in every respect with the LICENSING MANUAL. WESTINGHOUSE hereby
approves use of the MARKS by CATALINA under this Agreement that comply with the
LICENSING MANUAL.
2.3 CATALINA agrees not use nor authorize others to use the MARKS outside
the TERRITORY or on any other goods or merchandise of any kind other than as
specifically set forth in this Agreement or as otherwise agreed to by the
parties in writing. CATALINA may request, in writing, WESTINGHOUSE's permission
solely to manufacture outside the TERRITORY and WESTINGHOUSE may not
unreasonably deny such request.
2.4 CATALINA will not sell any PRODUCTS nor authorize others to sell any
PRODUCTS outside the TERRITORY nor to any party where they reasonably believe
PRODUCTS will be sold outside the TERRITORY, except as otherwise agreed to by
the parties in writing.
2.5 Except as otherwise approved in writing by WESTINGHOUSE, no rights are
granted for the distribution of PRODUCTS as premiums, promotions or giveaways.
2.6 The license granted is personal to CATALINA and is not assignable for
any reason without WESTINGHOUSE's prior written consent.
2.7 Nothing in this Agreement is to be construed as an assignment or grant
to CATALINA of any right, title or interest in the MARKS or in any copyright,
design, tradename, trademarks, trade dress or other property right beyond the
limited license expressly granted hereby. CATALINA agrees not to assert any
rights in the MARKS, contrary to the provisions of this Agreement.
3.0 - RESPONSIBILITY OF CATALINA
--------------------------------
3.1 CATALINA represents, warrants and covenants that the PRODUCTS and
packaging for the PRODUCTS shall be of a quality meeting or exceeding the
quality of comparably priced goods sold by Home Depot or Xxxx'x Companies, Inc.;
the PRODUCTS shall be sold with a warranty and replacement guaranty consistent
with warranties and replacement guaranties provided by other manufactures of
products of the
same nature and price as the PRODUCTS; and the PRODUCTS shall all be of a style,
appearance and quality reasonably satisfactory to WESTINGHOUSE. Before the first
sale or distribution of any particular PRODUCT, CATALINA shall furnish to
WESTINGHOUSE for WESTINGHOUSE's written approval, such samples of each style of
the PRODUCTS as WESTINGHOUSE shall reasonably require for WESTINGHOUSE's
inspection and testing, together with all tags, labels and other packaging
materials to be used with the PRODUCTS, advertising and promotion materials
(including catalogues for the PRODUCTS) and quality assurance information. Once
WESTINGHOUSE has approved samples of the PRODUCTS, packaging materials and
advertising and promotion materials (including catalogues for the PRODUCTS),
CATALINA will not and will not allow others to materially depart from the
approved samples without Westinghouse's prior written consent. WESTINGHOUSE
shall notify CATALINA of its approval (which shall not be unreasonably withheld)
within twenty-one (21) days after its receipt of the samples, including
packaging, advertising and promotional material (including catalogues for the
PRODUCTS) submitted in accordance with this Paragraph 3.1. Failure of
WESTINGHOUSE to notify CATALINA of its approval or disapproval within such
twenty-one (21) shall be deemed an approval but shall not be construed to xxxxx
XXXXXXXX rights in violation of this Agreement. PRODUCTS or any component
thereof not meeting these standards, including "second and irregulars," are not
to be sold or distributed under any circumstances without WESTINGHOUSE's prior
written consent. Notwithstanding the foregoing, provided CATALINA gives
WESTINGHOUSE prior notice, CATALINA may from time to time revise packaging for
the PRODUCTS or catalogues solely to include or change statements or other
information which may be required by the rules of the Underwriters'
Laboratories, Inc. or laws or regulations of any jurisdiction where the PRODUCTS
are sold.
3.2 WESTINGHOUSE, at its own expense, has the right at reasonable times on
notice to CATALINA to inspect CATALINA's manufacturing facilities, warehouses
and other facilities directly related to the PRODUCTS. CATALINA agrees to
reasonably assist WESTINGHOUSE at WESTINGHOUSE's written request.
3.3 To enable WESTINGHOUSE to monitor the quality of PRODUCTS, which were
previously approved hereunder, CATALINA shall, upon written request, provide
WESTINGHOUSE with quality assurance information and a reasonable quantity of
samples annually, during the term hereof.
3.4 CATALINA agrees to inform WESTINGHOUSE of the details of the use of
the MARKS, including graphics, position, size, color, script and the like, and
WESTINGHOUSE reserves the right to inspect and to approve the use of the MARKS.
3.5 CATALINA shall refrain from and shall not authorize others to use or
misuse the MARKS so as to bring discredit to WESTINGHOUSE.
3.6 CATALINA agrees to cooperate fully and in good faith with WESTINGHOUSE
for the purpose of securing and preserving WESTINGHOUSE's rights in and to the
MARKS. CATALINA agrees that all use of the MARKS by CATALINA under this
Agreement inures to the benefit of WESTINGHOUSE. CATALINA agrees that at the
termination or expiration of this Agreement, CATALINA will be deemed to have
assigned, transferred and conveyed to WESTINGHOUSE any rights, equities, good
will, titles or other rights in and to the MARKS which may have been obtained by
CATALINA or which may have vested in CATALINA in pursuance of endeavors covered
hereby, and that CATALINA will execute any instrument requested by WESTINGHOUSE
to accomplish or confirm the foregoing. Any such assignment, transfer or
conveyance shall be without other consideration than the mutual covenants and
considerations of the Agreement.
3.7 CATALINA agrees to comply with any laws, rules and/or regulations with
regard to the use of the MARKS including, but not limited to, any county, state
and/or federal law.
3.8 CATALINA shall not apply for the registration of, or cause the filing
of an application for the registration of, a tradename or service xxxx, which is
identical to or confusingly similar to the MARKS.
3.9 CATALINA shall promptly notify WESTINGHOUSE of any infringement or
potential infringement of the MARKS that come to its attention. CATALINA will
cooperate with WESTINGHOUSE, at WESTINGHOUSE's request, in taking steps to
terminate such infringement. However, CATALINA shall not take nay legal action
to protect against any infringement of the MARKS without WESTINGHOUSE's
permission. WESTINGHOUSE will take action against infringers to defend the MARKS
but shall not be required to bring or prosecute actions or suits.
3.10 CATALINA acknowledges and agrees that any unauthorized use or misuse
of the MARKS by or for CATALINA will result in irreparable harm to WESTINGHOUSE
and that WESTINGHOUSE, in addition to any other rights or remedies specified in
this Agreement, shall be entitled to any remedy, legal or equitable, including
without limitation preliminary injunctive relief, to correct any harm which
results from such violation.
3.11 CATALINA shall use its best efforts to maximize use of the MARKS
consistent with reasonable marketing plans.
4.0 - COMPENSATION
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4.1 CATALINA agrees to pay WESTINGHOUSE four (4.0%) percent of the NIP of
all PRODUCTS sold, leased or otherwise transferred by or for CATALINA. If a NIP
is not available for such PRODUCTS, a commercially equivalent amount shall
apply.
4.2 CATALINA also agrees to pay WESTINGHOUSE a minimum annual payment of
Two Hundred Fifty Thousand Dollars ($250,000) for fiscal year (October 1 through
September 30) 2002.
4.3 All amounts paid by CATALINA to WESTINGHOUSE pursuant to Paragraph 4.1
shall be credited against the minimum annual payment specified in Paragraph 4.2.
The balance of the minimum annual payment, if any, shall be paid to WESTINGHOUSE
by November 15, 2002.
4.4 CATALINA shall keep full, true and accurate books of account
containing all particulars, which may be necessary for the purpose of
determining the amount payable to WESTINGHOUSE under this Agreement. Said books
and the supporting data shall be open at all reasonable times, for three (3)
years following the end of the fiscal year to which they pertain, to an
inspection, on a confidential basis, by an independent certified public
accountant retained by WESTINGHOUSE, at WESTINGHOUSE's expense, for the purposes
of verifying CATALINA's payment, and CATALINA's compliance in other respects
with this Agreement. Should such inspection and resulting report indicate an
underpayment by CATALINA, then CATALINA shall immediately pay such amount to
WESTINGHOUSE with interest at prime rate as established by Mellon Bank, N.A. or
any successor, at the time of the inspection, and should such under-payment be
in excess of five (5%) percent and at least $5,000 CATALINA shall also bear all
costs of the inspection.
4.5 By forty-five (45) days of the end of each quarter, CATALINA shall
deliver to WESTINGHOUSE a true and accurate report certified by an officer of
CATALINA, giving such particulars of the business conducted by CATALINA
hereunder, during the preceding quarter under this Agreement as are pertinent to
an accounting under this Agreement. These shall include at least the following:
(1) The number and type of PRODUCTS sold by country; and
(2) Total payments due.
Concurrently with the delivery of each such report, CATALINA shall pay to
WESTINGHOUSE the amounts due for the period covered by such report. If no
payments are due, it shall be so reported. In addition, within forty-five (45)
days of EFFECTIVE DATE of this Agreement, CATALINA shall report and pay over to
WESTINGHOUSE all amounts due under the Previous License Agreement.
4.6 Sales of PRODUCTS in currencies other than United States dollars shall
be converted to United States dollars at the conversion rate stated in the Wall
Street Journal for the day prior to the date payment is made to CATALINA.
4.7 All payments made hereunder by CATALINA shall be made to "Westinghouse
Electric Corporation" in immediately available United States funds and delivered
to:
Attention:
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Westinghouse Electric Corporation
Law Department - 49th Floor
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
with a copy to:
Jo Xxx Xxxxxx
Westinghouse Electric Corporation
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
5.0 - OWNERSHIP OF THE LICENSED MARKS
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5.1 CATALINA acknowledges that the MARKS, worldwide, are the property of
WESTINGHOUSE and that WESTINGHOUSE has substantial and valuable goodwill in the
MARKS. CATALINA shall take all reasonable measures to maintain and protect
WESTINGHOUSE's proprietary rights including placing any reasonable notice of
such ownership that WESTINGHOUSE shall reasonably require. CATALINA shall
cooperate with WESTINGHOUSE and execute any documents reasonably required by
WESTINGHOUSE to protect the MARKS. CATALINA shall not take any action, or by its
knowing inaction allow any event to occur, which would injure or impair
WESTINGHOUSE's proprietary rights in and to the MARKS.
5.2 CATALINA shall indicate on all PRODUCT packaging and related
advertising materials that the PRODUCTS are manufactured and distributed by or
for CATALINA or a mutually agreeable designee.
5.3 CATALINA shall comply with proper use instructions as WESTINGHOUSE
may issue from time to time with respect to the MARKS.
6.0 - REPRESENTATIONS, WARRANTIES AND COVENANTS
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6.1 CATALINA represents, warrants and covenants to WESTINGHOUSE as
follows:
6.1.1 CATALINA will not use the MARKS and has not and will not
grant any right or license to use the MARKS other than as authorized under this
Agreement.
6.1.2 CATALINA is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida. CATALINA has all
corporate
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder.
6.1.3 The execution, delivery and performance by CATALINA of this
Agreement and the consummation of the transaction contemplated hereby has been
duly and validly authorized by all requisite corporate action, and no other
corporate act or proceeding on the part of CATALINA is necessary to authorize
the execution, delivery and performance of this Agreement and the consummation
of the transaction contemplated hereby.
6.1.4 CATALINA is not subject to nor obligated under its certificate of
incorporation or bylaws, any applicable law, rule or regulation of any
governmental authority, or any agreement, instrument, license or permit, or
subject to any order, writ, injunction or decree, which would be breached or
violated by its execution, delivery or performance of this Agreement.
6.1.5 CATALINA's execution and delivery of this Agreement and performance
of its obligations hereunder, including the obligation of payments hereunder, do
not and will not conflict with, violate, or result in any default under any
agreement, instrument or other contract to which CATALINA is a party or by which
it is bound and CATALINA possesses the financial capability to fully perform its
obligations hereunder.
6.1.6 There are no claims, suits or other proceedings pending, or to the
knowledge of CATALINA, threatened, which, if adversely determined, would
adversely affect the ability of CATALINA to consummate the transactions
contemplated by this Agreement or perform its obligations hereunder.
6.17 CATALINA is now in compliance with and shall continue to comply with
all applicable laws and regulations relating to the manufacture, sale and
distribution of the PRODUCTS.
6.18 Without cost to WESTINGHOUSE, CATALINA shall maintain insurance that
protects WESTINGHOUSE, its officers, directors, employees, agents, and its
parent,
affiliates and their officers, employees and agents against any and all
liability regardless of the basis in connection with (a) CATALINA's use of the
MARKS, (b) any alleged defect(s) in the PRODUCTS, and (c) the use, manufacture,
distribution, marketing, sale, service, or disposal of the PRODUCTS including
without limitation any alleged contractual liability of WESTINGHOUSE. The kinds
and amounts of insurance shall be as CATALINA and WESTINGHOUSE from time to time
agree, and at a minimum shall include the following:
6.1.8.1 CATALINA shall maintain, in effect for at least the life of all
the PRODUCTS manufactured, distributed or serviced by or for CATALINA, liability
insurance, written on an occurrence basis, with limits of at least Thirty
Million U.S. Dollars or in years 2003 and later, such higher amount as may be
reasonable considering legal or economic changes as well as deteriorating loss
experience. The insurance will cover at least the liabilities typically insured
by commercial general liability policies (including PRODUCTS/completed
operations and advertising liability) issued in the year this Agreement is
signed. WESTINGHOUSE shall be an additional insured on such policies, which
shall contain severability of interest or cross liability clauses.
6.1.8.2 all insurance shall be provided by insurance companies, on policy
forms, and with deductibles and retentions acceptable to WESTINGHOUSE, such
acceptance not to be unreasonably withheld. Any such deductible or retention
shall be the responsibility of CATALINA.
6.1.8.3 such insurance or risk financing arrangements shall be primary
with no rights of contribution equitable or otherwise, with any other insurance
afforded WESTINGHOUSE.
6.1.8.4 CATALINA shall furnish WESTINGHOUSE with certificates of
insurance within thirty (30) days after execution of this Agreement, and
annually thereafter. Such certificates will stipulate that coverage will not be
cancelled, reduced or modified without thirty (30) days prior written notice to
WESTINGHOUSE. Any cancellation, reduction or modification, without the prior
written consent of WESTINGHOUSE, which results in there not being in force
insurance coverage which satisfies all the requirements of Paragraph 6.1.8,
including all its subparagraphs, shall be deemed a material breach of this
Agreement.
6.1.8.5 at reasonable times on advance written notice to CATALINA,
WESTINGHOUSE may review the insurance policies at CATALINA's offices.
6.1.8.6 the requirements of this clause will survive this Agreement,
and will remain in effect for at least the life of all the PRODUCTS
manufactured, distributed, or serviced by or for CATALINA.
6.2 WESTINGHOUSE represents, warrants and covenants to CATALINA as follows:
6.2.1 WESTINGHOUSE is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. WESTINGHOUSE has
all corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
6.2.2 The execution, delivery and performance by WESTINGHOUSE of this
Agreement and the consummation of the transaction contemplated hereby has been
duly and validly authorized by all requisite corporate action, and no other
corporate act or proceeding on the part of WESTINGHOUSE is necessary to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated hereby.
6.2.3 WESTINGHOUSE is not subject to nor obligation under its
certificate of incorporation or bylaws, any applicable law, rule or regulation
of any governmental authority, or any agreement, instrument, license or permit,
or subject to any order, writ, injunction or decree, which would be breached or
violated by its execution, delivery or performance of this Agreement.
6.2.4 WESTINGHOUSE is the owner of the MARKS and, and has all rights to
license the MARKS in accordance with the terms of the Agreement to
Westinghouse's knowledge, the use of the MARKS in the manufacture, advertising,
sale and promotion of any of the PRODUCTS will not infringe any intellectual
property or any other rights of any third party.
7.0 - INDEMNIFICATION
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7.1 CATALINA shall indemnify and hold WESTINGHOUSE and its affiliates, as
well as their respective officers, directors, agents, employees, successors and
assigns, harmless from and against any and all claims, suits, damages,
liabilities, costs and expenses including, but not limited to, court costs and
reasonable attorneys fees, arising out of, based on or in any other manner
related to:
7.1.1 the breach of any representation, warranty, covenant or
obligation of CATALINA under this Agreement;
7.1.2 any use by CATALINA of the MARKS, which is not permitted by or
not in accordance with the terms of this Agreement;
7.1.3 any defect or alleged defect in the PRODUCTS; or
7.1.4 any claims against WESTINGHOUSE arising out of this Agreement
except claim directly resulting from WESTINGHOUSE's breach of its warranties in
Paragraph 6.2.
7.2 WESTINGHOUSE shall indemnify and hold harmless CATALINA from and
against the cost and expenses (including, without limitation, reasonable
attorneys fees and costs) of any and all claims, suits, losses, damages, costs,
demands, obligations, investigations, causes of action, and judgments arising
out of any assertion or allegation of any persons, entities or government
agencies that the MARKS used by CATALINA under this Agreement infringe any
trademark, trade name or any other personal property right of a third party or
any breach of any representation, warranty, covenant or obligation of
Westinghouse under this Agreement.
7.3 A party (the "Notifying Party") shall promptly notify the other party
(the "Indemnifying Party") of the existence of any claim, demand or other action
giving rise to a claim for indemnification under this Agreement which involves a
third party (a "Third Party Claim") and shall give the Indemnifying Party a
reasonable opportunity to defend the same at its own expense and with its own
counsel, provided that the Notifying Party shall at all times have the right to
participate in such defense at its own expense.
7.4 Each party shall make available to the other, at the other's expense,
such information and assistance as the other shall reasonably request in
connection with the defense of a Third Party Claim threatened or filed in
connection with any activities conducted hereunder.
8.0 - DISCLAIMERS
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8.1 Nothing contained in this Agreement shall be construed as:
8.1.1 (Except as provide din Paragraph 3.1 and Article 6.0) A
WARRANTY WHETHER STATUTORY, EXPRESSED OR IMPLIED, A WARRANTY OF MERCHANTABILITY,
A WARRANT OF FITNESS FOR A PARTICULAR PURPOSE, OR A WARRANTY ARISING FROM COURSE
OF DEALING OR USAGE OF TRADE.
8.1.2 an agreement to prosecute actions or suits against third
parties or conferring any right to bring or prosecute actions or suits against
third parties; and
8.1.3 conferring any right to use in advertising, publicity, or
otherwise, any trademarks, service marks, trade name or name of WESTINGHOUSE, or
any contraction, abbreviation or simulation thereof, except as specifically
permitted in this Agreement.
9.0 TERM, TERMINATION AND EXPIRATION
------------------------------------
9.1 Unless terminated as otherwise herein provided, this Agreement shall
extend until September 30, 2002.
9.2 WESTINGHOUSE may elect to terminate this Agreement upon thirty (30)
days' prior written notice to CATALINA if:
9.2.1 in WESTINGHOUSE's reasonable judgment CATALINA does not meet
established quality standards for the PRODUCTS.
9.2.2 in WESTINGHOUSE's reasonable judgment CATALINA's use or misuse
of the MARKS may bring discredit to WESTINGHOUSE.
9.2.3 CATALINA fails to make timely payments due WESTINGHOUSE under
this Agreement.
9.2.4 any proceeding is instituted by or for CATALINA for
bankruptcy, reorganization or other relief for debtors;
9.2.5 any proceeding is instituted by or for CATALINA to dissolve
its corporate structure or for winding-up; or
9.2.6 CATALINA shall, with the consent of its board, directly or
indirectly merge or otherwise come under the control or direction of directors
of another party reasonably unacceptable to WESTINGHOUSE.
9.3 In the event of an alleged material breach by either party of any of
the terms of this Agreement, the party suffering such breach shall give notice
to the other, in writing, thereof, specifying the type and circumstances
pertaining to such breach in form sufficient to enable opportunity for
correction thereof by the party allegedly in breach. If such breach shall not
have been remedied during a ninety (90) day period immediately following the
receipt of such notice, the party giving said notice should have the right to
notify the other in writing of its decision to terminate this Agreement. In the
event that the breach is remedied within such ninety (90) day period, this
Agreement shall continue in full force and effect the same as if no notice had
been given. Waiver by any party of its right to terminate because of any one
breach shall not constitute a waiver of any subsequent breach of the same or of
a different nature. No termination of this Agreement by expiration or otherwise
shall relieve or release any party from any of its obligations hereunder with
respect to royalties due or acts committed under this Agreement.
9.4 Upon any expiration or termination of this Agreement:
9.4.1 all rights granted to CATALINA hereunder terminate at such
expiration or termination.
9.4.2 CATALINA shall immediately discontinue any and all use of the
MARKS but shall permitted to sell remaining stock within one year after the
effective date of termination or expiration of this Agreement;
9.4.3 the expiry or withdrawal of CATALINA's right to use the MARKS
shall not entitle CATALINA to compensation or damages of any description other
than as provided in Paragraph 9.3;
9.4.4 all accrued payments to WESTINGHOUSE shall be paid to
WESTINGHOUSE within forty-five (45) days of such expiration or termination;
9.4.5 all monies previously paid to WESTINGHOUSE pursuant to this
Agreement will be retained by Westinghouse; and
9.4.6 the provisions of Article 7.0 and 9.0 shall survive.
10.0 - EFFECTIVE DATE
---------------------
10.1 Upon execution by both parties, the EFFECTIVE DATE of this Agreement
shall be October 1, 2001.
11.0 - CHOICE OF LAW
--------------------
11.1 This Agreement shall be construed, interpreted and governed in
accordance with the laws of the State of Delaware.
12.0 - NOTICE
-------------
12.1 Any notice, request or statement hereunder shall be deemed to be
sufficiently given or rendered when sent by certified mail, telex, or telegram,
and if given or rendered to CATALINA addressed to:
Attention:
Chief Financial Officer
Catalina Lighting, Inc.
00000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, XX 00000
or, if given or rendered to WESTINGHOUSE addressed to:
Attention:
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Westinghouse Electric Corporation
Law Department - 49th Floor
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
with a copy to:
Jo Xxx Xxxxxx
Westinghouse Electric Corporation
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or, in any case, to such changed address or person, as WESTINGHOUSE or CATALINA
shall have specified by written notice pursuant hereto.
13.0 - ASSIGNMENT
-----------------
13.1 CATALINA shall not assign this Agreement in whole or in part without
the prior written consent of WESTINGHOUSE. WESTINGHOUSE may assign this
Agreement in whole or in part.
14.0 - SEVERABILITY
-------------------
14.1 The provisions of this Agreement are severable, and in the event that
any provision of this Agreement is determined to be invalid or unenforceable
under any controlling body of law, such invalidity or unenforceability shall not
in any way affect the validity or enforceability of the remaining provisions
hereof.
15.0 - MERGER
-------------
15.1 This instrument sets forth the entire and only agreement between the
parties hereto as to the subject matter hereof; reflects and merges all
pertinent prior
discussions and correspondence pertaining thereto, and supersedes and cancels
all pre-existing agreements pertaining thereto between them. Any representation,
promise, definition, warranty or condition pertaining thereto and not
incorporated herein, shall not be binding upon either party. This instrument
shall not become effective unless and until dated and signed below on behalf of
each of the parties by their duly authorized officers or representatives. This
instrument and its appendices may not be modified, enlarged, or changed in any
way hereafter except by an instrument signed by each of the parties hereto.
15.2 CATALINA and WESTINGHOUSE agree that the Previous License Agreement is
terminated as of the EFFECTIVE DATE. CATALINA and WESTINGHOUSE further agree
that the second sentence of Paragraph 1(b) of the Previous License Agreement is
void and of no further force or effect.
16.0 - REPORTING OF ADVERSE EVENTS
----------------------------------
16.1 CATALINA shall report to WESTINGHOUSE within seventy-two (72) hours
from receipt of the information, any materially adverse event that is reported
to occur as a result of use of any of the PRODUCTS. Such events must be reported
in as much detail as possible, whether or not there is proof of a causal
connection between the events and use of the PRODUCTS. A materially adverse
event includes any experience relating to the PRODUCTS, which is reasonably
regarded to be seriously detrimental to person or property in any manner.
17.0 - RELATIONSHIP OF THE PARTIES
----------------------------------
17.1 The relationship hereby established between CATALINA and WESTINGHOUSE
is solely that of independent contractors. This Agreement shall not create an
agency, partnership, joint venture or employer/employee relationship, and
nothing hereunder shall be deemed to authorize either party to act for,
represent or bind the other except as expressly provided in this Agreement.
18.0 - WITNESS
--------------
18.1 IN WITNESS WHEREOF and intending to be legally bound, the parties
hereto have caused these presents to be signed by their proper officers
thereunto duly authorized.
CATALINA LIGHTING, INC.
BY: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Chief Executive Officeer
DATE:____________________________
WESTINGHOUSE ELECTRIC
CORPORATION
BY: /s Xxxxx X.Xxxxxxxx
Xxxxx X. Xxxxxxxx
President and Chief Executive Office
DATE: November 19, 2001
