EX-10 3 cns011368_ex10-12.txt EXH 10.12 SECOND AMEND TO TRADEMARK LICENSE AGRMT CERTAIN INFORMATION HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2. EXHIBIT 10.12 SECOND AMENDMENT TO TRADEMARK LICENSE AGREEMENT THIS SECOND AMENDMENT ("Second Amendment") to the TRADEMARK LICENSE AGREEMENT of March 1, 2000 (the "License Agreement"), which was first amended on March 20, 2001, is made effective this day of April, 2001, by and between The Procter & Gamble Company, an Ohio corporation with a place of business at One P&G Plaza, Cincinnati, Ohio 45202 and its affiliates and subsidiaries (collectively, "P&G") and CNS Inc., a Delaware corporation with its new place of business at 7615 Smetana Lane, Eden Prairie, MN 55344, ("CNS"). All capitalized terms used herein but not specifically defined shall have the meanings set forth in the License Agreement. WHEREAS P&G has previously granted a non-transferable and exclusive license to CNS to use the VICKS(R) trademark and triangle design trademark (collectively, the "Licensed Marks") on the Product listed on Schedule 2 of the License Agreement (the "Product"), in the countries listed on Schedule 3 (the "Area") and subject to the restrictions outlined in Schedule 4; and WHEREAS the parties agreed that the License Agreement and/or any of these Schedules may be amended at any time upon agreement by the parties in writing, and WHEREAS on March 20, 2001 the parties amended Schedule 1 of the License Agreement to include the trademarks Vick(R) and Wick(R) and concurrently amended Schedule 3 to include several new countries in several new regions; and WHEREAS the parties now desire to amend the Area of the License Agreement by amending Schedule 3 to include four additional countries for inclusion in the Area for a initial test period of time; NOW THEREFORE, the parties agree to amend the License Agreement as follows: Schedule 3 is hereby amended to include the Following new countries in the Europe region: France, Portugal, Spain and the United Kingdom. The new countries are listed by region in the amended Schedule 3. An Amended Schedule 3 is attached. Schedule 5 is hereby amended to reflect that CNS' Royalty as % of CNS' Net Sales of Products which include the Licensed Marks shall be [* * *] for each country listed on Amended Schedule 3. An Amended Schedule 5 is attached. 1 Related to this expansion of the License Agreement to the Europe region ("Expansion"), the parties hereby agree to the following specific terms and conditions for such Expansion; CNS shall have the rights and obligations, including the royalty obligations, set forth in the License Agreement in the countries of the Europe region designated on Schedule 3 for a term to expire May 1, 2002 ("Expansion Period"). During this Expansion Period, P&G and CNS shall mutually agree on evaluation criteria to be utilized by P&G to analyze and evaluate the success of the Expansion and the effect of such Expansion on P&G's Vicks VapoRub business. P&G shall conduct this analysis and evaluation at its own cost and expense. P&G, in its sole discretion, shall determine whether to continue this Expansion effort beyond the Expansion Period. If P&G does not notify CNS of its desire to continue with the Expansion of the Trademark License before May 1, 2002, then such Expansion shall automatically terminate on May 1, 2002 and this Second Amendment shall be null and void. Upon said termination, CNS shall cease using the Licensed Marks on its products in a countries in the Europe region listed an Amended Schedule 3, and except for royalties accrued as of the date of termination, CNS shall have no further obligation to make payments. Notwithstanding the above, for a period of one-hundred twenty (120) days, CNS shall retain rights to use the Licensed Marks (and the corresponding royalty obligations) on Products distributed or in inventory prior to termination. If P&G notifies CNS of its desire to continue with the Expansion of the Trademark License, then P&G and CNS shall in good faith negotiate a new amendment to the License Agreement to set forth the parties' agreement for continuation of the Expansion and any agreement for further expansion of the License Agreement. P&G agrees that in the event the Expansion is continued beyond May 1, 2002, the Initial Expansion Period will not count as a year for the purposes of determining Minimum Royalty obligation set forth in Section 7(b) and Schedule 6 of the License Agreement. Except as set forth herein all terms of the License Agreement remain unchanged by this Second Amendment. IN WITNESS WHEREOF, the parties hereto have duly executed this Second Amendment. 2 For THE PROCTER & GAMBLE COMPANY For CNS, INCORPORATED By: /s/ T.C. Blinn By: /s/ Kirk P. Hodgdon ---------------------------------- --------------------------------- Name: T.C. Blinn Name: Kirk P. Hodgdon Title: V.P. Global Personal Healthcare Title: V.P. Business Development Date: April 27, 2001 Date: April 25, 2001 3 AMENDED SCHEDULE 3 (PURSUANT TO APRIL _____, 2001 SECOND AMENDMENT TO LICENSE AGREEMENT) REGIONS: COUNTRIES: North America United States Canada Puerto Rico Latin America Argentina Belize Bolivia Brazil Chile Columbia Costa Rica Ecuador French Guiana Guatemala Guyana Honduras Mexico Nicaragua Panama Paraguay Peru Suriname Uruguay Venezuela Asia/Middle East/Africa Australia Israel New Zealand South Africa Europe France Portugal Spain United Kingdom 4 AMENDED SCHEDULE 5 (PURSUANT TO APRIL _____, 2001 SECOND AMENDMENT TO LICENSE AGREEMENT) ROYALTY AS % OF CNS' NET SALES OF PRODUCTS COUNTRY WHICH INCLUDE THE LICENSED MARKS ------- -------------------------------- Every country listed on Amended Schedule 3 [* * *] 5