VRSO » Topics » 5.8 Use of the Seller Name

This excerpt taken from the VRSO 8-K filed Dec 28, 2007.

          5.8 Use of the Seller Name

                    (a) Buyer and Seller agree as follows:

                              (i) Except as provided below, immediately after the Closing Date, Buyer and any Buyer Designee shall cease using “NMS,” or “NMS Corporation” or other similar mark (the “Seller Name”) and any other trademark, design or logo previously or currently used by Seller or any of its Affiliates (other than those that are transferred pursuant to the Intellectual Property Agreement or licensed pursuant to the License Agreement) in all invoices, letterhead, advertising and promotional materials, office forms or business cards;

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                              (ii) Except as provided below, within three (3) months after the Closing Date, Buyer shall (A) remove any other trademark, design or logo previously or currently used by Seller or any of its Affiliates from all buildings and signs of the Purchased Business; and (B) cease using the Seller Name and any other trademark, design or logo previously or currently used by Seller or any of its Affiliates (other than those that are transferred pursuant to the Intellectual Property Agreement or licensed pursuant to the License Agreement) in electronic databases, web sites, product instructions, packaging (except as provided below) and other materials, printed or otherwise. Notwithstanding the foregoing, Buyer and Buyer Designees shall not be restricted in using any packaging materials that are in inventory as of the Closing Date;

                              (iii) Buyer and Buyer Designees shall not be required at any time to remove the Seller Name and any other trademark, design or logo previously or currently used by Seller or any of its Affiliates from inventory of the Purchased Business that is in existence as of the Closing Date, nor shall Buyer nor Buyer Designees be required at any time to remove such Seller Name and any such other trademark, design or logo from schematics, plans, manuals, drawings, machinery, tooling including hand tools, and the like of the Purchased Business in existence as of the Closing Date to the extent that such instrumentalities are used in the ordinary internal conduct of the Purchased Business and are neither generally observed by the public nor intended for use as means to effectuate or enhance sales;

                              (iv) Notwithstanding the above, Buyer and Buyer Designees shall have the right to sell existing inventory and to use existing packaging, labeling, containers, supplies, advertising materials, technical data sheets and any similar materials bearing the Seller Name or any other trademark, design or logo previously or currently used by Seller or any of its Affiliates until the earlier of (A) one year after the Closing Date or (B) the depletion of existing inventory;

                              (v) Buyer and Buyer Designees shall use Reasonable Efforts (as defined below) to remove the Seller Name and any other trademark, design or logo previously or currently used by Seller or any of its Affiliates (other than those that are transferred pursuant to the Intellectual Property Agreement or licensed pursuant to the License Agreement) from those assets of the Purchased Business (such as, but not limited to, tools, molds, and machines) used in association with the products of the Purchased Business or otherwise reasonably used in the conduct of the Purchased Business after the Closing. For the purposes of this Section 5.8(a)(v), “Reasonable Efforts” means Buyer and Buyer Designees shall remove the Seller Name from such assets but only at such time when such asset is not operated or otherwise is taken out of service in the normal course of business due to regular maintenance or repair (but only for such repairs or maintenance where such removal could normally be undertaken, for example, repair or maintenance of a mold cavity) whichever occurs first; provided that, in no event shall Buyer or any Buyer Designee use the Seller Name after the date which is six (6) months from the Closing Date. Buyer and Buyer Designees shall not be required to perform such removal on such assets that are not or are no longer used to manufacture the products of the Purchased Business or other parts, or if discontinuance of use of such assets is reasonably anticipated during such time period, or from assets stored during that period provided that such marks are removed upon such asset’s return to service or prior to their sale or other disposition.

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                              (vi) Seller hereby grants to Buyer and Buyer Designees a limited right to use the Seller Name and associated trademarks, designs and logos as specified in, and during the periods, if any, specified in clauses (i) – (v) above.

                              (vii) Buyer and its Affiliates shall also have the right to use (in a factual manner that constitute fair use pursuant to applicable Law) the Seller Name solely to the extent necessary to communicate that the Products were formerly owned by Seller.

                    (b) In no event shall Buyer or any Affiliate of Buyer advertise or hold itself out as NMS or an Affiliate of NMS after the Closing Date.

          5.9 Non-Solicitation or Hiring of Transferred Employees. None of Seller, any of its representatives or any of its Affiliates will at any time prior to the date which is one year after the date hereof, directly or indirectly, solicit the employment of or hire any Transferred Employee without Buyer’s prior written consent. Neither Buyer nor any Buyer Designee will at any prior to the date which is one year after the date hereof, directly or indirectly, solicit the employment of or hire any employee of Seller or Seller Affiliate (other than Transferred Employees) without Seller’s prior written consent. The term “solicit the employment” shall not be deemed to include generalized searches for employees through media advertisements, employment firms or otherwise that are not focused on or directed to Transferred Employees. This restriction shall not apply to any employee whose employment is involuntarily terminated other than for cause by Buyer, or its successors, after the Closing, or Seller or Seller Affiliate, as the case may be, during such one-year period.

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