ex101_071108.htm


     

     

     

    
      

      

    

    Exhibit 10.1

    
      


      
        


         

        MASTER
LICENSE AGREEMENT

         

         

        BETWEEN

         

         

        FRANKLIN
COVEY CO.

         

         

        AND

         

         

         

        FRANKLIN
COVEY PRODUCTS, LLC

         

         

         

         

        MADE
EFFECTIVE AS OF

         

         

        JULY 5,
2008, 11:59 P.M. MOUNTAIN DAYLIGHT TIME

         

        


      



     

     

     

     

    


     


    
      
         


      

      
         


        
          

          

        

        
          

        

      

      
         


      

    


    TABLE OF CONTENTS

     

    
      	 
      	
              Page

            
	
              ARTICLE I. DEFINITIONS

            	
              1

               

            
	 
      	
              1.1

            	
              Definitions

            	
              1

               

            
	
              ARTICLE II. LICENSE

            	
              9

               

            
	 
      	
              2.1

            	
              License Grant to Licensee

            	
              9

            
	 
      	
              2.2

            	
              Special
Provisions:  International

            	
              9

            
	 
      	
              2.3

            	
              Special Provisions:  Planners

            	
              11

            
	 
      	
              2.4

            	
              Special Provisions:  Training-Oriented Products and
      Training-Oriented Services

            	
              12

            
	 
      	
              2.5

            	
              Special Provisions:  Public
    Programs

            	
              14

            
	 
      	
              2.6

            	
              Special Provisions: Back
      of Room Sales

            	
              16

            
	 
      	
              2.7

            	
              Special Provisions:  Content-Rich
      Media

            	
              16

            
	 
      	
              2.8

            	
              Special Provisions:  Software

            	
              17

            
	 
      	
              2.9

            	
              Special Provisions:  Education
      Channels

            	
              22

            
	 
      	
              2.10

            	
              Special Provisions:  Motivational Artwork and
      Corporate Gift Items

            	
              22

            
	 
      	
              2.11

            	
              Sublicenses

            	
              23

            
	 
      	
              2.12

            	
              Grant-Back License to Assigned Trademarks

            	
              24

            
	 
      	
              2.13

            	
              Restrictions

            	
              24

            
	 
      	
              2.14

            	
              Due Diligence by Licensee

            	
              25

            
	 
      	
              2.15

            	
              Trade Secret and Know-How License

            	
              26

            
	 
      	
              2.16

            	
              Trademark Notice; Licensed Trademarks

            	
              26

            
	 
      	
              2.17

            	
              Maintenance, Renewal and Enforcement

            	
              26

            
	 
      	
              2.18

            	
              Enforcement and Defense of Infringement
    Claims

            	
              27

            
	 
      	
              2.19

            	
              Reservation of Rights

            	
              28

            
	 
      	
              2.20

            	
              Removing Licensed Materials from License

            	
              29

            
	 
      	
              2.21

            	
              Additional Commitments of Licensee

            	
              29

            
	 
      	
              2.22

            	
              Licensor Noncompetition

            	
              29

            
	 
      	
              2.23

            	
              Licensee Noncompetition

            	
              31

            
	 
      	
              2.24

            	
              Licensor Payments

            	
              32

               

            
	
              ARTICLE III. WEBSITE AND DATABASE MANAGEMENT
      AGREEMENT

            	
              32

               

            
	 
      	
              3.1

            	
              Website Linking Agreement

            	
              32

            
	 
      	
              3.2

            	
              Internet Sales of Licensed Products

            	
              34

            
	 
      	
              3.3

            	
              Internet Search Marketing Terms

            	
              34

            
	 
      	
              3.4

            	
              Database Management

            	
              35

               

            
	
              ARTICLE IV. QUALITY CONTROL

            	
              35

               

            
	 
      	
              4.1

            	
              Quality Guidelines

            	
              35

            
	 
      	
              4.2

            	
              Breach of Quality Guidelines; Updates

            	
              36

            
	 
      	
              4.3

            	
              Conduct of Business

            	
              37

            
	 
      	
              4.4

            	
              Quality of Products

            	
              37

            
	 
      	
              4.5

            	
              Cooperation

            	
              37

            
	 
      	
              4.6

            	
              Cessation of Licensed Product Sales; Recall

            	
              38

            
	 
      	
              4.7

            	
              Samples

            	
              38

            


    


    
      
        
        

      

      
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              4.8

            	
              Inspections

            	
              38

            
	 
      	
              4.9

            	
              Standards Compliance

            	
              39

               

            
	
              ARTICLE V. NEW PRODUCTS AND CAMPAIGNS

            	
              39

               

            
	 
      	
              5.1

            	
              Right to Create New Products

            	
              39

            
	 
      	
              5.2

            	
              Notice of Plans to Release New Products

            	
              40

            
	 
      	
              5.3

            	
              Comment Rights for new Campaign Materials

            	
              40

            
	 
      	
              5.4

            	
              Approval Rights

            	
              40

            
	 
      	
              5.5

            	
              Licensor Access to New Products

            	
              40

            
	 
      	
              5.6

            	
              Licensee Approval of Assigned Trademark Use

            	
              40

               

            
	
              ARTICLE VI. ROYALTIES

            	
              41

               

            
	 
      	
              6.1

            	
              Royalty Rate

            	
              41

            
	 
      	
              6.2

            	
              Royalty Payments and Reports

            	
              41

            
	 
      	
              6.3

            	
              Records; Audit

            	
              41

            
	 
      	
              6.4

            	
              Licensee Option

            	
              42

               

            
	
              ARTICLE VII. GOVERNANCE, LICENSEE CHANGE OF
      CONTROL

            	
              43

               

            
	 
      	
              7.1

            	
              Relationship Managers

            	
              43

            
	 
      	
              7.2

            	
              Strategic Relationship Committee

            	
              43

            
	 
      	
              7.3

            	
              Licensor Right of First Negotiation

            	
              43

               

            
	
              ARTICLE VIII. EFFECTIVENESS, TERM AND
      TERMINATION

            	
              44

               

            
	 
      	
              8.1

            	
              Effectiveness; Term

            	
              44

            
	 
      	
              8.2

            	
              Termination for Cause

            	
              44

            
	 
      	
              8.3

            	
              Partial Termination

            	
              45

            
	 
      	
              8.4

            	
              Effects of Termination

            	
              45

            
	 
      	
              8.5

            	
              Termination Inventory

            	
              46

            
	 
      	
              8.6

            	
              Termination Inventory Sales

            	
              46

            
	 
      	
              8.7

            	
              Survival

            	
              46

               

            
	
              ARTICLE IX. INDEMNIFICATION

            	
              47

               

            
	 
      	
              9.1

            	
              Indemnification by Licensee

            	
              47

            
	 
      	
              9.2

            	
              Indemnification by Licensor

            	
              47

            
	 
      	
              9.3

            	
              Procedures

            	
              48

               

            
	
              ARTICLE X. REPRESENTATIONS, LIMITATION OF WARRANTY AND
      LIABILITY

            	
              48

               

            
	 
      	
              10.1

            	
              Warranties

            	
              48

            
	 
      	
              10.2

            	
              Damages

            	
              49

               

            
	
              ARTICLE XI.CONFIDENTIAL INFORMATION

            	
              50

               

            
	 
      	
              11.1

            	
              Definition

            	
              50

            
	 
      	
              11.2

            	
              Restrictions on Use

            	
              51

            
	 
      	
              11.3

            	
              Nonsolicitation

            	
              51

               

            
	
              ARTICLE XII. MISCELLANEOUS

            	
              51

               

            
	 
      	
              12.1

            	
              Assignment

            	
              51

            
	 
      	
              12.2

            	
              Injunctive Relief

            	
              52

            


    


    
      
        
        

      

      
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              12.3

            	
              Severability

            	
              52

            
	 
      	
              12.4

            	
              Interpretation

            	
              52

            
	 
      	
              12.5

            	
              Amendment and Waiver

            	
              52

            
	 
      	
              12.6

            	
              Governing Law

            	
              53

            
	 
      	
              12.7

            	
              Consent to Jurisdiction

            	
              53

            
	 
      	
              12.8

            	
              Independent Contractors

            	
              54

            
	 
      	
              12.9

            	
              Notices

            	
              54

            
	 
      	
              12.10

            	
              Publicity

            	
              55

            
	 
      	
              12.11

            	
              Complete Agreement

            	
              55

            
	 
      	
              12.12

            	
              Signatures, Counterparts

            	
              55

            
	 
      	
              12.13

            	
              Construction

            	
              55

            


    

     

    
      
        	
                 

                Exhibit
      A

              	
                 

                Licensed
      Trademarks

              
	
                Exhibit
      B

              	
                Assigned
      Trademarks

              
	
                Exhibit
      C

              	
                Licensed
      Copyrights

              
	
                Exhibit
      D

              	
                Licensed
      Products

              
	
                Exhibit
      E

              	
                Licensed
      Channels

              
	
                Exhibit
      F

              	
                Licensed
      Territory

              
	
                Exhibit
      G

              	
                Existing
      Distribution Agreements

              
	
                Exhibit
      H

              	
                Product
      Guidelines

              
	
                Exhibit
      I

              	
                Branding
      Guidelines

              
	
                Exhibit
      J

              	
                List
      of Qualified Entities

              
	
                Exhibit
      K

              	
                Schedule
      of Specialty Products

              
	
                Exhibit
      L

              	
                International
      Licensees of Licensor

              
	
                Exhibit
      M

              	
                International
      Licensees of Licensee

              
	
                Exhibit
      N

              	
                Existing
      Agreements to Distribute Content-Rich Media

              
	
                Exhibit
      O

              	
                Internet
      Search Terms

              
	
                Exhibit
      P

              	
                Search
      Terms Use Guidelines

              
	
                Exhibit
      Q

              	
                Database
      Use Guidelines

              
	
                Exhibit
      R

              	
                Existing
      Content-Rich Media

              
	
                Exhibit
      S

              	
                Disclosures
      to Section 10.1

              
	
                Exhibit
      T

              	
                Standard
      Spread

              
	
                Exhibit
      U

              	
                Agreements
      Exempt from Section 2.23

              


      

    

     

     


    
      
        
        

      

      
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      MASTER
LICENSE AGREEMENT

      
 

    

    
      This
MASTER LICENSE AGREEMENT
(this “Agreement”)
between Franklin Covey Products, LLC, a Utah limited liability company (“Licensee”), and Franklin
Covey Co., a Utah corporation (“Licensor”), dated July 7,
2008, is made effective as of July 5, 2008, 11:59 P.M. Mountain Daylight
Time.

       

      Recitals

       

      WHEREAS, Licensor and Licensee
are parties to a Master Asset Purchase Agreement dated as of May 22, 2008, as
amended (the “Asset Purchase
Agreement”), a Supply Agreement dated effective as of July 5, 2008, 11:59
P.M., Mountain Daylight Time (the “Supply Agreement”), a Master
Shared Services Agreement dated effective as of July 5, 2008, 11:59 P.M.,
Mountain Daylight Time (the “Shared Services Agreement”),
the Lease Agreement between Franklin Development Corporation and Licensee (the
“Lease Agreement”) and
the Sub-sublease Agreement between Licensor and Licensee (the “Sub-sublease Agreement”) (collectively the
“Ancillary
Agreements”);

       

      WHEREAS, Licensee wishes to
license from Licensor the right to use the Licensed Trademarks and the Licensed
Copyrights (together and as defined below, the “Licensed Materials”) in
connection with certain of Licensee’s activities, and Licensor has agreed to
license to Licensee the Licensed Materials for such purpose, subject to the
terms and conditions hereof.

       

      WHEREAS, Licensor wishes to
license back from Licensee the right to use the Assigned Trademarks in
connection with certain of Licensor’s activities, and Licensee has agreed to
license to Licensor the Assigned Trademarks for such purpose, subject to the
terms and conditions hereof.

       

      NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the parties
hereto agree as follows:

       

    

     

    ARTICLE I.

    DEFINITIONS

     

    1.1 Definitions.  All
capitalized terms used in this Agreement have the meanings set forth below,
unless the context clearly indicates otherwise.

     

    “Affiliate” means, when used
with reference to any Person, any other Person that directly, or indirectly
through one or more intermediaries, has control of the first Person, or of which
the first Person has control, or which is under common control with the first
Person.

     

    “Agreement” has the meaning
set forth in the Preamble.

     

    “Ancillary Agreements” has the
meaning set forth in the Recitals.

     

    “Asset Purchase Agreement” has
the meaning set forth in the Recitals.

     

    “Assigned Software” has the
meaning set forth in Section 2.8.

     


    
      
        
        

      

      
         


        
          

        

      

      
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    “Assigned Trademarks” means
the Trademarks listed on Exhibit B.

     

    “Back of Room Sales” has the
meaning set forth in Section 2.6.

     

    “Boxed PlanPlus Software” has
the meaning set forth in Section 2.8.

     

    “Branding Guidelines” has the
meaning set forth in Section 4.1.

     

    “Business of Licensee” means
the sales and service of and support functions for Licensed
Products.

     

    “Business Day” means any day,
other than Saturday or Sunday, on which commercial banks in the United States of
America are open for business.

     

    “Charter Flight” has the
meaning set forth in Section 2.5.

     

    “Commercial Loss” has the
meaning set forth in Section 10.2.

     

    “Competitor” means any Person
that, directly or indirectly through Affiliates, is engaged in the marketing,
distribution or sale of Training-Oriented Products or Training-Oriented
Services.

     

    “Confidential Information” has
the meaning set forth in Section 11.1.

     

    “Content-Rich Media” has the
meaning set forth in Section 2.7.

     

    “Corporate Gift Items” has the
meaning set forth in Section 2.10.

     

    “Current Version” has the
meaning set forth in Section 2.8.

     

    “Database Use Guidelines”
means the provisions set forth on Exhibit Q.

     

    “Discloser” has the meaning
set forth in Section 11.1.

     

    “Display” has the meaning set
forth in Section 4.1.

     

    “Domains” has the meaning set
forth in Section 3.1.

     

    “DYO Planner” has the meaning
set forth in Section 2.3.

     

    “DYO Website” means those
Internet pages and related Software and hardware, regardless of the IP address
or the branded name, through which an online customer may design and order a DYO
Planner, provided that the term shall not apply if such website is no longer
under the direct control and supervision of Licensee.

     

    “EBITDA” means earnings before
interest, taxes, depreciation and amortization.  Depreciation expense
generated in the production of inventory shall be included in inventory’s
standard cost and the amortization of certain costs directly associated with the
generation of revenue may be included in the EBITDA calculation (i.e. will lower
EBITDA).

     


    
      
        
        

      

      
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    Examples
of these costs include the depreciation of equipment specifically used for the
production of inventory or the amortization of a prepaid author
royalty.

     

    “EDS” means Electronic Data
Systems Corporation or any of its Affiliates.

     

    “Education Planner” has the
meaning set forth in Section 2.9.

     

    “Effective Date” has the
meaning set forth in Section 8.1.

     

    “Execution-Related Materials”
has the meaning set forth in Section 2.3.

     

    “Existing Distribution
Agreements” means the agreements listed on Exhibit G.

     

    “Existing Licensor International
Agreement” means an agreement between Licensor and an International
Licensee of Licensor in effect as of the Effective Date in which such
International Licensee of Licensor pays a royalty to Licensor in exchange for
the right to sell Licensed Products bearing the Licensed Materials in any
portion of the Licensed Territory.

     

    “Existing Sublicensed Entity”
means any Sublicensed Entity that became a Sublicensed Entity prior to the
Effective Date, provided that such Sublicensed Entity shall be deemed a New
Sublicensed Entity if Licensee renews or amends its agreement with the Existing
Sublicensed Entity on substantially different terms.

     

    “Excluded Countries” means
Japan and South Korea.

     

    “GAAP” means U.S. Generally
Accepted Accounting Principles, as in effect from time to time.

     

    “Global Cap Loss” has the
meaning set forth in Section 10.2.

     

    “Gross Profit Margin” means
the difference between the price of the good sold and the cost of the good sold
(which includes standard product cost, freight, credit card merchant discounts,
royalties and amortization).

     

    “Indemnified Party” has the
meaning set forth in Section 9.3.

     

    “Individual Effectiveness,
Management/Leadership and/or Organizational Execution Skills” has the
meaning set forth in Section 2.4.

     

    “Intellectual Property Rights”
means (i) rights in patentable subject matter, whether or not the subject
of an application, including continuation, divisional, continuation-in-part, and
provisional patent applications and any patents issuing therefrom, including all
reexaminations, reissues, and extensions thereof, and rights in respect of
utility models or industrial designs, and invention disclosures or certificates
of invention, (ii) rights in trademarks, service marks, trade names, trade
dress and other designators of origin, registered or unregistered,
(iii) rights in copyrightable subject matter, whether or not registered,
including, without limitation, protectable designs, look and feel, web pages,
and Software, (iv) trade secrets, including non-public know-how,
inventions, discoveries, improvements, concepts, ideas, methods, processes,
designs, plans, schematics, drawings, formulae, technical

     


    
      
        
        

      

      
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    data,
specifications, research and development information, technology and product
roadmaps, data bases and other proprietary or confidential information,
including customer lists, but excluding any copyrights or patents that may cover
or protect any of the foregoing, (v) rights in Internet domain names,
uniform resource locators, e-mail addresses, metadata, and metatags,
and (vi) all other intellectual and industrial property rights of
every kind and nature and however designated, whether arising by operation of
law, contract, license or otherwise including moral rights and publicity
rights.

     

    “International Licensee” has
the meaning set forth in Section 2.2.

     

    “International Licensee of
Licensee” has the meaning set forth in Section 2.2.

     

    “International Licensee of
Licensor” has the meaning set forth in Section 2.2

     

    “Internet Search Terms” means
the terms listed on Exhibit O.

     

    “Lease Agreement” has the meaning set
forth in the Recitals.

     

    “Licensed Channels” means the
Wholesale Channels and the Proprietary Consumer Channels.

     

    “Licensed Copyrights” means
the copyrights and copyrighted materials, whether registered or not, that are
listed on Exhibit C.

     

    “Licensed Materials” means the
Licensed Trademarks and the Licensed Copyrights.

     

    “Licensed Products” means
products listed on Exhibit D.

     

    “Licensed Territory” means
those territories listed on Exhibit F.

     

    “Licensed Trademarks” means
those trademarks listed on Exhibit A.

     

    “Licensee” has the meaning set
forth in the Preamble.

     

    “Licensee Change of Control” with
respect to Licensee means (i) the acquisition of Licensee by a third party
by means of any transaction or series of transactions (including, without
limitation, any acquisition, recapitalization, conversion, reorganization,
merger or consolidation) other than a transaction or series of related
transactions in which the holders of the voting securities of Licensee
outstanding immediately prior to such transaction retain, immediately after such
transaction or series of transactions, at least a majority of the total voting
power represented by the outstanding voting securities of Licensee or such other
surviving or resulting entity (or if Licensee or such other surviving or
resulting entity is a wholly owned subsidiary immediately following such
acquisition, then by the outstanding voting securities of its parent);
(ii) a sale or other disposition of all or substantially all of the assets
of Licensee and its wholly owned subsidiaries that relate to the Business of
Licensee by means of any transaction or series of related transactions, except
where such sale or other disposition is to a wholly owned subsidiary of
Licensee; (iii) any assignment of this

     


    
      
        
        

      

      
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        Table of Contents

      

    


    Agreement;
or (iv) any of the foregoing transactions involving a Licensee Qualified Entity
which is a sublicensee of Licensee’s rights under this Agreement.

     

    “Licensee Field” means the
design, development, manufacture, marketing, promotion, advertisement,
distribution, lease and sale of Licensed Products in the Licensed Channels in
the Licensed Territory.

     

    “Licensee Party” has the
meaning set forth in Section 10.2.

     

    “Licensee Qualified Entity” has the
meaning set forth in Section 2.11.

     

    “Licensee Qualified Vendor” has the
meaning set forth in Section 2.11.

     

    “Licensee Software
Modification” has the meaning set forth in Section 2.8.

     

    “Licensee Website” has the
meaning set forth in Section 3.1.

     

    “Licensor” has the meaning set
forth in the Preamble.

     

    “Licensor Change of Control” with
respect to Licensor means (i) the acquisition of Licensor by a third party
by means of any transaction or series of transactions (including, without
limitation, any acquisition, recapitalization, conversion, reorganization, stock
purchase, merger or consolidation); (ii) a sale or other disposition of all
or substantially all of the assets of Licensor; (iii) any of the foregoing
transactions involving a wholly owned subsidiary of Licensor if such entity is a
permitted assignee of this Agreement or (iv) any of the foregoing
transactions involving the parent corporation of Licensor.

     

    “Licensor Party” has the
meaning set forth in Section 10.2.

     

    “Licensor Qualified Entity” has the
meaning set forth in Section 2.11.

     

    “Licensor Qualified Vendor” has the
meaning set forth in Section 2.11.

     

    “Licensor Software
Modification” has the meaning set forth in Section 2.8.

     

    “Licensor Website” has the
meaning set forth in Section 3.1.

     

    “Licensor’s Knowledge” means
the actual knowledge, after diligent and customary inquiry, of Robert A.
Whitman, Sarah E. Merz, Stephen D. Young, Robert Sumbot, Jeff Anderson
and Michael Connelly.

     

    “Link” has the meaning set
forth in Section 3.1.

     

    “Material Breach” means
(i) a breach of this Agreement that has a material adverse effect on the
non-breaching party’s material Intellectual Property Rights, the goodwill
associated therewith, or the ability to enforce any of its rights therein, and
that has a material adverse effect on the non-breaching party, (ii) a
material breach of Sections 2.22 or 2.23, (iii) a failure by a party timely
to pay the other party amounts that are owed and undisputed under this Agreement
or any Ancillary Agreement, individually or in the aggregate, in excess of
$100,000, (iv) the release of any new product or marketing material, other
than New

     


    
      
        
        

      

      
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    Products
or New Campaign Materials released in compliance with all of the terms and
conditions of Article V, that has a material adverse effect on the Business of
Licensee or on the business of Licensor as a result of Licensee’s involvement
with any Prohibited Party or in any Prohibited Activity, or (v) a pattern
of non-trivial breaches of this Agreement that (A) occur after a Licensee
Change of Control transaction, (B) individually do not constitute Material
Breaches, (C) are not disputed in good faith and (D) are repeated
after the non-breaching party has provided written notice in good faith that
such breaches have occurred, provided that no such pattern shall exist for this
purpose if there are fewer than two of such breaches by the same party in the
trailing twelve (12)–month period.

     

    “MFN Pricing” means the party
purchasing the good shall receive a price no less favorable than the price
available to other similarly situated purchasers for the same good at the time
of the sale.

     

    “Mobile PlanPlus Software” has
the meaning set forth in Section 2.8.

     

    “Software Modification” has the meaning
set forth in Section 2.8.

     

    “Modified Licensed Product”
has the meaning set forth in Section 5.1.

     

    “Motivational Artwork” has the
meaning set forth in Section 2.10.

     

    “Negotiation Period” has the
meaning set forth in Section 7.3.

     

    “New Branding Effort” has the
meaning set forth in Section 4.2.

     

    “New Campaign Materials” has
the meaning set forth in Section 5.1.

     

    “New Derivative Product” has
the meaning set forth in Section 5.1.

     

    “New Licensed Product” has the
meaning set forth in Section 5.1.

     

    “New Product” has the meaning
set forth in Section 5.1.

     

    “New Sublicensed Entity” means
any Sublicensed Entity that becomes a Sublicensed Entity after the Effective
Date.

     

    “Notice of Alleged
Infringement” has the meaning set forth in
Section 2.18.

     

    “Notice Period” has the
meaning set forth in Section 7.3.

     

    “Offer Notice” has the meaning
set forth in Section 7.3.

     

    “On-Site Training” has the
meaning set forth in Section 2.5.

     

    “Online PlanPlus Software” has
the meaning set forth in Section 2.8.

     

    “Option Fee” has the meaning
set forth in Section 6.4.

     


    
      
        
        

      

      
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    “Ordinary Course of Business”
means the ordinary course of the business in question consistent with past
custom and practice.

     

    “Organizational Client” means
an organization that purchases products or services where the decision maker at
the client makes the purchase decision on behalf of people who are employees or
members of, or otherwise actively affiliated with, the
organization.

     

    “Partial Option Fee” has the meaning set
forth in Section 6.4.

     

    “Partial Royalty Buy-Out
Option” has
the meaning set forth in Section 6.4.

     

    “Permitted Offeror” has the
meaning set forth in Section 7.3.

     

    “Person” means an individual,
corporation, partnership, limited partnership, limited liability company,
unincorporated association, trust, joint venture, union or other organization or
entity, including a governmental entity.

     

    “Planner” means any
paper-based product (i) bearing Trademarks of Licensor and
(ii) organized consecutively by date so that its user may organize, plan
and schedule events and tasks, along with ancillary pages that serve a related
purpose, including, by way of example, pages to organize addresses and phone
numbers and pages to take notes at meetings.

     

    “PlanPlus Software” has the
meaning set forth in Section 2.8.

     

    “Product Guidelines” has the
meaning set forth in Section 4.1.

     

    “Prohibited Activity” means
(i) publishing or promoting indecent or pornographic materials,
(ii) deriving a substantial portion of revenue from gaming activities or
the promotion or sale of alcoholic beverages, tobacco products or firearms,
(iii) having as a primary purpose the advocacy of a particular political or
moral position or (iv) illegal activities.

     

    “Prohibited Party” means any
Person that, directly or indirectly through Affiliates, engages in a Prohibited
Activity.

     

    “Proprietary Consumer
Channels” means the sales channels defined under such term in
Exhibit E.

     

    “Public Program” has the
meaning set forth in Section 2.5.

     

    “Public Program Cost Of Goods”
means fifty percent (50%) of the listed retail price for a seat at such Public
Program.

     

    “Public Program Gross Margin”
means fifty percent (50%) of the retail price that would have been charged for
the seat that was converted to an On-Site Training had the conversion not
occurred.

     

    “Qualified Entity” has the
meaning set forth in Section 2.10.

     

    “Qualified Vendor” has the
meaning set forth in Section 2.10.

     


    
      
        
        

      

      
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    “Quality Guidelines” has the
meaning set forth in Section 4.1.

     

    “Recipient” has the meaning
set forth in Section 11.1.

     

    “Relationship Manager” has the
meaning set forth in Section 7.1.

     

    “Reset EBITDA Threshold” has
the meaning set it Section 6.1.

     

    “Reset Ratio” has the meaning
set forth in Section 6.1.

     

    “Reset Royalties Minimum” has
the meaning set forth in Section 6.1

     

    “Royalties” has the meaning
set forth in Section 6.1.

     

    “Royalty Buy-Out Option” has
the meaning set forth in Section 6.4.

     

    “Search Terms Use Guidelines”
means the provisions set forth on Exhibit P.

     

    “SEC” means the U.S.
Securities and Exchange Commission.

     

    “Shared Services Agreement”
has the meaning set forth in the Recitals.

     

    “Software” means computer
programs or data, whether in object code or source code, regardless of the media
format of such Software, and all documentation relating thereto.

     

    “Specialty Products” has the
meaning set forth in Section 5.1.

     

    “Standard Planner” has the
meaning set forth in Section 2.3.

     

    “Standard Spread” has the
meaning set forth on Exhibit T.

     

    “Strategic Relationship
Committee” has the meaning set forth in Section 7.2.

     

    “Sublicense Agreement” means a
written agreement between Licensor or Licensee, on the one hand, and a permitted
Sublicensed Entity under Section 2.11, on the other hand, whereby such
Sublicensed Entity expressly agrees, at minimum, that: (i) the Licensed
Materials or Assigned Trademarks, as applicable to the subject matter of the
Sublicense Agreement, are the property of Licensor or Licensee, respectively,
and are subject to this Agreement; (ii) the party that owns the assets that are
the subject matter of the Sublicense Agreement shall retain all ownership of
such assets and the Sublicensed Entity shall not assert ownership or any other
right or interest in any of such assets; (iii) any and all goodwill associated
with the Sublicensed Entity’s use of such assets shall inure to the benefit of
the party that owns the assets; (iv) the Sublicense Agreement shall terminate
immediately on termination of this Agreement for any reason; and (v) the party
that owns the assets is an intended third-party beneficiary of the Sublicense
Agreement.

     

    “Sublicensed Entity” means a
Qualified Entity, Qualified Vendor or International Licensee which has executed
a Sublicense Agreement pursuant to Section 2.11 hereof.

     


    
      
        
        

      

      
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    “Substantial Distribution” has
the meaning set forth in Section 2.8.

     

    “Sub-sublease Agreement” has the meaning set
forth in the Recitals.

     

    “Supply Agreement” has the
meaning set forth in the Recitals.

     

    “Tailored Planner” has the
meaning set forth in Section 2.3.

     

    “Top-Level Logos” has the
meaning set forth in Section 4.2.

     

    “Trademark” means rights in
trademarks, trade names, service marks, service names, design marks, logos,
trade dress, or similar rights with respect to identification of origin, whether
registered or unregistered, as well as rights in Internet domain names, uniform
resource locators and e-mail addresses.

     

    “Training-Oriented Product”
has the meaning set forth in Section 2.4.

     

    “Training-Oriented Service”
has the meaning set forth in Section 2.4.

     

    “Training Planner” has the
meaning set forth in Section 2.3.

     

    “Updates” has the meaning set
forth in Section 4.2.

     

    “Wholesale Channels” means the
sales channels defined under such term in Exhibit E.

     

    ARTICLE II.

    LICENSE

     

    2.1 License Grant to
Licensee.  Subject to all of
the terms and conditions of this Agreement, Licensor hereby grants to Licensee
an exclusive, worldwide, transferable (subject to Sections 7.3 and 12.1),
sublicensable (subject to Section 2.11), royalty-bearing license, during
the term set forth below, to use the Licensed Materials in connection with the
design, development, manufacture, marketing, promotion, advertisement,
distribution, lease and sale of Licensed Products, through the Licensed
Channels, within the Licensed Territory.  In addition, subject to all
of the terms and conditions of this Agreement, Licensor hereby grants to
Licensee a license during the term set forth below to translate the Licensed
Copyrights into foreign languages as necessary to sell Licensed Products into
Licensed Channels.  As used in this Section 2.1, “exclusive” means
that Licensor may not, after the Effective Date and during the term of this
Agreement, grant to any third party a license to use, reproduce or display the
Licensed Materials in the Licensee Field and that Licensor, subject to Section
2.22, may itself use the Licensed Materials for any purpose outside the Licensee
Field.  The rights granted to Licensee herein are expressly subject to
the provisions of the Existing Distributor Agreements.

     

    2.2 Special
Provisions:  International.  The rights
granted to Licensee in Section 2.1, as those rights may apply in countries
and territories other than the United States, are subject to the following
restrictions, limitations and qualifications, in addition to any and all
restrictions provided elsewhere in this Agreement.

     


    
      
        
        

      

      
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    (a) Definitions.

     

    (i) “International Licensee” means
any International Licensee of Licensee or International Licensee of
Licensor.

     

    (ii) “International Licensee of
Licensee” means any third-party distributor, manufacturer, sales
organization or similar service provider, other than a Competitor or Prohibited
Party, that is located outside the United States and engaged by Licensee in the
Ordinary Course of Business to design, manufacture, distribute and/or sell
Licensed Products in the Licensee Field outside the United States or, subject to
Article V, to create New Products or New Campaign Materials.  The
International Licensees of Licensee as of the Effective Date are set forth on
attached Exhibit M.  Exhibit M shall be amended to include the names
of parties which become International Licensees of Licensee as permitted by
Section 2.11.

     

    (iii) “International Licensee of
Licensor” means any third-party distributor, manufacturer, sales
organization or similar service provider that is located outside the United
States and engaged by Licensor in the Ordinary Course of Business to engage in
business activities.  The International Licensees of Licensor as of
the Effective Date are set forth on attached Exhibit L.  Exhibit L
shall be amended to include the names of parties which become International
Licensees of Licensor as permitted by Section 2.11.

     

    (b) Licensee
shall have no right of exclusivity in any country, territory or region in which
Licensor, as of the Effective Date, has granted a non-exclusive license to an
International Licensee of Licensor which gives such International Licensee the
right to sell Licensed Products in the Licensed Channels.  Licensor
shall pay to Licensee, according to the provisions of Section 2.24, the portion
of royalties which Licensor receives under such Existing Licensor International
Agreements that is directly attributable to the sale by International Licensees
of Licensor of (i) Licensed Products bearing the Licensed Materials or
(ii) Licensed Products that do not bear the Licensed Materials and were
supplied to the International Licensee of Licensor by Licensee, but in both
cases not including the sale of Licensed Products in connection with
Training-Oriented Services or Training-Oriented Products and not including the
sale of Content-Rich Media.  Licensor shall make diligent inquiries
with International Licensees of Licensor to determine the amounts payable by
such International Licensees under all Existing Licensor International
Agreements, provided that Licensor shall not be obligated to conduct audits of
such International Licensees for such purpose.

     

    (c) Licensee
acknowledges that Licensor has, as of the Effective Date, granted to certain
International Licensees of Licensor a limited right to manufacture Licensed
Products for distribution within such Licensee’s territory, including in some
cases the right to manufacture Licensed Products for distribution in the
Wholesale Channels.  Nothing in Section 2.1 shall be deemed to
derogate from the rights already granted to such International Licensees of
Licensor.  Subject to the foregoing limitations, Licensee shall have
the exclusive right to manufacture Licensed Products for sale in the Licensed
Channels outside of the United States other than the Excluded Countries,
provided that (i) Licensor may freely grant to International Licensees of
Licensor the right to manufacture Licensed Products (with the right to
sublicense) for use in connection with Training-Oriented Services or
Training-Oriented Products conducted within such International Licensee’s
territory, and (ii) Licensor

     


    
      
        
        

      

      
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    may
permit the transfer or assignment of any existing manufacturing agreement
between an International Licensee of Licensor and a vendor of such International
Licensee if the transfer or assignment is made in connection with the
International Licensee’s sale of its business and the Person acquiring the
International Licensee’s business is not a Competitor or a competitor of
Licensee.  Licensor shall use its best efforts to cause International
Licensees of Licensor that have the right to manufacture Licensed Products for
sales in the Licensed Channels to enter into new, separate agreements with
Licensee for such manufacturing.

     

    (d) After the
Effective Date, Licensor shall not enter into any manufacturing agreement with
any New Sublicensed Entity that permits the manufacture of Licensed Products for
distribution in the Licensed Channels, provided the Licensor may renew any
Existing Licensor International Agreement.  Licensee shall consult
with Licensor with regard to any measures to enforce its rights under any new
manufacturing agreements between Licensee and International Licensees of
Licensor in order to reduce disruption to the relationship between Licensor and
such International Licensees and shall terminate any such agreement only with
Licensor’s prior written consent.

     

    (e) If
Licensor’s commitments relating to any Excluded Country are altered such that
including such country in the Licensed Territory would not contravene any
existing agreement of Licensor, then Licensee at its option may add such country
to the Licensed Territory.  Licensor shall provide Licensee written
notice of this option promptly after it becomes exercisable and may set a
reasonable time period in which Licensee must give notice of its exercise of its
right.

     

    2.3 Special
Provisions:  Planners.  The rights
granted to Licensee in Section 2.1, as those rights relate to certain categories
of Planners (other than Education Planners, which are addressed in Section 2.9
below), are subject to the following restrictions, limitations and
qualifications.

     

    (a) Definitions.

     

    (i) “DYO Planner” means any
Planner that is customized according to the specifications of a customer through
the DYO Website, printed and shipped to an address specified by the customer,
and not including training or Execution-Related Materials.

     

    (ii) “Standard Planner” means a
Planner in the general form available to the general public in retail channels
as of the Effective Date and not including training or Execution-Related
Materials.  For the avoidance of doubt, the content contained in
Planners available to the general public in retail channels as of the Effective
Date shall not be deemed “training or Execution-Related Materials.”

     

    (iii) “Tailored Planner” means a
Planner that has been customized according to the specifications of an
Organizational Client or other organizational customer to contain logos,
employee directory information, a listing of company holidays and any other
information approved by Licensor not including training or Execution-Related
Materials.

     

    (iv) “Training Planner” means a
Planner that has been customized according to the specifications of an
Organizational Client or other organizational customer

     


    
      
        
        

      

      
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    and that
does contain training and/or Execution-Related Materials.  A Training
Planner may also include logos, employee directory information, a listing of
company holidays and other information supplied by the Organizational Client or
other organizational customer.

     

    (v) “Execution-Related Materials”
means information included in a Planner that assists an individual in performing
tasks required or recommended by an employer, client or similar
entity.  As an example and without limitation, execution-related
materials include information in a Planner for a retail manager that sets out
steps to be followed in preparation for the peak retail selling
season.

     

    (b) Licensee
shall have the exclusive right to design, market, manufacture and sell DYO
Planners that use or incorporate the Licensed Materials worldwide, including the
Excluded Countries.  Licensee shall not directly or indirectly
facilitate the inclusion of any training or Execution-Related Materials into any
DYO Planner.

     

    (c) Licensee
shall have the exclusive right to design, manufacture, market and sell Standard
Planners in the Licensee Field.

     

    (d) Licensee
shall have a non-exclusive right to design, market and sell Tailored Planners in
the Licensee Field.  Licensee shall not develop internally or contract
externally with a dedicated sales force to promote exclusively or primarily the
sale of Planners to Organizational Clients, provided that (i) personnel of
Licensee’s bricks-and-mortar stores may make direct sales calls but shall at all
times hold themselves out as representing Licensee and not Licensor, and (ii)
Licensee may enter into distribution agreements substantially similar in purpose
and scope to the Existing Distribution Agreements.

     

    (e) Licensor
may, directly or indirectly, design, market and sell Tailored Planners to any
Organizational Client, subject to the manufacturing right of first offer
provided in Section 2.3(g) and the limits on certain sales provided in Section
2.3(h).

     

    (f) Without
limiting Licensor’s other retained and reserved rights in any way, Licensor
retains and reserves all rights to design, develop, market, promote, advertise,
distribute, lease or sell Training Planners to Organizational Clients, subject
to the manufacturing right of first offer provided in Section
2.3(g).

     

    (g) Licensor
grants to Licensee a right of first offer to manufacture any Tailored Planner or
Training Planner sold by Licensor or its Affiliates, subject to the terms and
conditions of the Supply Agreement.  The right of first offer shall be
conditioned on Licensee’s ability to meet Licensor’s cost, quality and
timeliness requirements.

     

    (h) Licensor’s
sales of Tailored Planners not used in connection with Training-Oriented
Services or Training-Oriented Products shall be subject to the 1% sales cap
provisions of Section 2.22.

     

    2.4 Special
Provisions:  Training-Oriented Products and Training-Oriented
Services.  The rights
granted to Licensee in Section 2.1, as those rights relate to Training-Oriented
Products and Training-Oriented Services, are subject to the following
restrictions, limitations and qualifications.

     


    
      
        
        

      

      
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    (a) Definitions.

     

    (i) “Training-Oriented Product”
means any good, product or thing in any tangible form (including Software) that
is designed to teach individuals or organizations Individual Effectiveness,
Management/Leadership and/or Organizational Execution Skills.

     

    (ii) “Training-Oriented Service”
means any seminar, session, online course, webinar, consultation or similar
interaction, whether or not for a fee, where the subject matter of such service
relates to or includes Individual Effectiveness, Management/Leadership and/or
Organizational Execution Skills.

     

    (iii) “Individual Effectiveness,
Management/Leadership and/or Organizational Execution Skills” means any
and all organizational, management, leadership or personal effectiveness skills
and the techniques and strategies for attaining such skills including, without
limitation, executive coaching, management coaching, performance review,
trust-building (in or out of an organizational setting), execution-related
skills, personal time management, personal performance, personal goal-setting
(including personal time-management, performance and goal setting in any
academic or educational environment), family effectiveness, family organization,
family goal-setting, family values, personal fitness, wellness and life balance,
and any other form of training.

     

    (b) Except as
provided in Section 2.4(c) and in this Section 2.4(b), Licensee shall have no
right to design or develop a New Product that is a Training-Oriented Product or
that includes any Training-Oriented Service.  Licensee may design,
develop, manufacture, market, promote and distribute products in print,
electronic and online media for the limited purpose of permitting customers who
purchase Licensed Products to use Licensed Products in a more efficient manner,
provided Licensor gives its prior written approval.

     

    (c) If
Licensor sells or agrees to sell a certain Training-Oriented Product on a
non-exclusive basis through websites that are part of the Wholesale Channels,
Licensee shall have the right to sell the same Training-Oriented Product through
Licensee’s Websites; and if Licensor sells or agrees to sell a certain
Training-Oriented Product on a non-exclusive basis through bricks-and-mortar
stores that are part of the Wholesale Channels, Licensee shall have the right to
sell the same Training-Oriented Product through Licensee’s bricks-and-mortar
stores that are part of the Proprietary Consumer Channel.  Licensor
shall supply such products at MFN Pricing on a commercially reasonable delivery
schedule.

     

    (d) Licensee
acknowledges that Licensor intends to make significant investments in the
development of blogs, online communities and similar media as a method for the
delivery of Training-Oriented Products and Training-Oriented
Services.  Licensee acknowledges that blogs, online communities and
similar media are useful tools for the promotion of Planners but that any such
activity, to the extent that it includes Individual Effectiveness,
Management/Leadership and/or Organizational Execution Skills, are prohibited
under this Section 2.4, provided that Licensee may continue to use the blogs and
online communities in existence as of the Effective Date under the name “Get
Organized.”  Licensor agrees that:

     


    
      
        
        

      

      
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    (i) Licensee
may modify the existing blogs and online communities or create new forms of
blogs and online communities pursuant to an annual plan prepared by Licensee and
approved by Licensor, whose consent shall not be unreasonably
withheld;

     

    (ii) Licensee’s
executives and employees shall be invited to participate in planning sessions
for new products under development by Licensor involving blogs and online
communities when Licensor determines, in good faith, that coordination of such
an effort would be mutually beneficial, provided that neither Licensor nor
Licensee shall have any obligation to participate in any such joint
offering.

     

    (e) Subject
to any restrictions contained in any agreement between Licensee and its
suppliers, the restrictions of this Section 2.4(e) and Section 2.22 and the
terms and conditions of the Supply Agreement, Licensor shall have the right to
purchase Licensed Products in any quantity from Licensee for use in connection
with its Training-Oriented Services and Training-Oriented Products at Standard
Spread; provided, however, that such Licensed Products are sold by Licensor as
an implementation tool for the Training-Oriented Products and Training-Oriented
Services and not as the principal purpose of the transaction.  Such
sales of Licensed Products by Licensor are subject to the one percent (1%) sales
cap provisions of Section 2.22.

     

    2.5 Special
Provisions:  Public Programs.  The
rights granted to Licensee in Section 2.1 include the right to sell Public
Programs, subject to the following restrictions, limitations and
qualifications.

     

    (a) Definitions.

     

    (i) “Charter Flight” means a
Public Program that is organized by Licensee, that utilizes curriculum in the
form previously established and used by Licensor, and that is delivered by a
consultant of Licensor.

     

    (ii) “On-Site Training” means any
training seminar that takes place at the premises of an Organizational Client or
at premises chosen by the Organizational Client for the primary use of that
organization’s employees, agents, consultants or personnel.

     

    (iii) “Public Program” means a
curriculum-based training seminar with open enrollment that individuals, groups
and companies may attend (in person or virtually) for a fee, but the term does
not include On-Site Training.

     

    (b) Each
fiscal year, Licensee may sell up to nine (9) Public Program seats per
bricks-and-mortar store to any Organizational Client so long as such seats are
sold only through direct sales efforts at bricks-and-mortar stores owned, leased
or franchised by Licensee and operating under a name that is a Licensed
Trademark.  Licensee shall sell each seat at a price not less than
Licensor’s then-current list price subject to Licensor’s standard corporate
discount structure for the relevant number of seats but not including preview
pricing.  For purposes of this Section 2.5(b), “fiscal year” means the
fiscal calendar as practiced by Licensor, and “preview pricing” means the
discounted prices available on a limited basis to individuals for marketing
purposes.  The following examples illustrate the calculation of limits
in this Section 2.5(b).

     


    
      
        
        

      

      
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    (i) Example
1:  An employee of Company A, which is an Organizational Client,
enters Store 1, a qualified Licensee store, and requests to purchase nine (9)
seats to a Public Program.  On the same day, another employee from
Company A enters Store  2, also a qualified Licensee store, and requests to
purchase nine (9) seats to the same Public Program.  Licensee may sell
all 18 seats.

     

    (ii) Example
2:  Licensor is on a calendar fiscal year.  In February, an
employee from Company A purchases nine (9) seats to a Public Program from Store
1.  In December, a different employee from Company A enters Store 1
and requests to purchase nine (9) seats to a different Public
Program.  Licensee may not sell the second set of nine (9)
seats.

     

    (iii) Example
3:  Licensor is on a calendar fiscal year.  In December, an
employee from Company A purchases nine (9) seats to a Public Program from Store
1 for the first time that year.  In the following January, an employee
from Company A enters Store 1 and requests to purchase nine (9) seats to the
same Public Program.  Licensee may sell all 18 seats.

     

    (c) Notwithstanding
anything in Section 2.5(b), Licensee shall have no right to sell seats to any
Public Program that takes place outside the United States.

     

    (d) Licensee
shall use information obtained from Organizational Clients as a result of the
sale of Public Programs only for the purpose of selling additional Public
Program seats and only so long as seats are available for sale to such
Organizational Client under the nine (9) seat cap set forth in Section
2.5(b).  Licensee shall promptly provide all relevant information
obtained from such Organizational Clients to Licensor, unless such disclosure
would violate state or federal laws.  All rights to such information
not granted to Licensee shall vest in Licensor.  Without limiting the
generality of the previous sentence, Licensor shall have the exclusive right to
make direct sales calls on Organizational Clients that have attended or will
attend a Public Program for the purpose of selling additional Training-Oriented
Services or Training-Oriented Products.

     

    (e) Other
than a Charter Flight, Licensor retains all rights (i) to appoint any
facilitator, consultant, coordinator or other group leader for any Public
Program and (ii) to manage and control all administrative matters relating
to enrollment in any Public Program.

     

    (f) For each
seat to a Public Program that it sells, Licensee shall pay Licensor the Public
Program Cost Of Goods.  If Licensor in its sole discretion converts
any Public Program into On-Site Training and cancels the sale of such seats to
the Public Program, Licensor shall pay Licensee the Public Program Gross Margin
per cancelled seat.

     

    (g) Licensee
may operate a Charter Flight if such Charter Flight is not within sixty (60)
days of and not within sixty (60) miles of a Public Program scheduled by
Licensor covering the same curriculum.  Licensee may designate a
facilitator for any Charter Flight subject to the consent of Licensor, whose
consent shall not be unreasonably withheld.  Licensee shall bear all
risks relating to any Charter Flight, including all costs, and shall be entitled
to retain all revenues therefrom.

     

    (h) The
parties agree to work together in good faith to identify additional marketing
opportunities to promote and sell Public Programs.

     


    
      
        
        

      

      
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    2.6 Special
Provisions:  Back of Room Sales.  The rights
granted to Licensee in Section 2.1 include the right to conduct Back of Room
Sales at Public Programs and at certain On-Site Trainings, subject to the
following restrictions, limitations and qualifications.

     

    (a) Definitions.

     

    (i) “Back of Room Sales” means any
sales operation conducted at a Public Program (other than a virtual Public
Program) or On-Site Training where participants in the training event may
purchase Licensed Products.

     

    (b) Licensee
shall have the right but not the obligation to operate Back of Room Sales at any
Public Program (other than a virtual Public Program) and, if so requested by
Licensor or the Organizational Client, at any On-Site
Training.  Licensor shall consult with Licensee to set the time,
location and merchandise selections for such Back of Room
Sales.  Licensee, its employees, representatives and agents shall
conduct any Back of Room Sales operation in a professional manner.

     

    (c) If
Licensee declines to provide the Back of Room Sales for any Public Program or
On-Site Training, Licensor shall have the right (i) to manage such Back of
Room Sale or to engage a third-party to do so and (ii) if inventory is
available, to purchase any requested products from Licensee at Standard
Spread.

     

    (d) If
Licensor outsources any Public Program to a third party, Licensor shall use its
best efforts to require the sale of Licensed Products at any back-of-room sale
conducted by such third party.  To the extent that Licensed Products
are permitted or required at such outsourced event, Licensee shall have the
right to supply such products at prices it sets in its own
discretion.

     

    (e) Licensee
shall have the right to operate Back of Room Sales only in the United States and
in countries, other than the Excluded Countries, which Licensor covers with a
direct sales office.

     

    2.7 Special
Provisions:  Content-Rich Media.  The rights
granted to Licensee in Section 2.1 include the right to sell Content-Rich Media,
subject to the following restrictions, limitations and
qualifications.

     

    (a) Definitions.

     

    (i) “Content-Rich Media” means
content created, prepared, commissioned or licensed by Licensor and presented in
books, audio books, videos, audiotapes, CDs, DVDs and similar media (other than
Software), including each of the foregoing that is delivered in downloadable
format, not including the 7 Habits Interactive product.

     

    (b) Licensee
shall have the right to sell Content-Rich Media that is available to Licensee as
of the Effective Date, as set forth on Exhibit R, through the Proprietary
Consumer Channels, through International Licensees of Licensee but only to
consumers, and through other channels through which Licensee is selling
Content-Rich Media as of the Effective Date; provided, however, that Licensee
may sell downloadable Content-Rich Media

     


    
      
        
        

      

      
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    permitted
under this Section 2.7(b) only in the Proprietary Consumer Channels and only so
long as Licensor sells such downloadable title on a non-exclusive basis through
third-party wholesale channels targeting consumers.  Subject to the
terms and conditions of the Supply Agreement, Licensor shall supply Content-Rich
Media available under this Section 2.7(b), other than downloadable Content-Rich
Media, to Licensee at Standard Spread.

     

    (c) Licensee
shall have the right to sell the 7 Habits Interactive product through the
Proprietary Consumer Channels.  Subject to the terms and conditions of
the Supply Agreement, Licensor shall supply the 7 Habits Interactive product to
Licensee at MFN Pricing.

     

    (d) If
Licensor determines after the Effective Date that it intends to offer a new item
of Content-Rich Media for sale in Wholesale Channels through non-exclusive
distribution agreements, then Licensee shall have the exclusive right to promote
and sell that item of Content-Rich Media through the Proprietary Consumer
Channels other than Licensee’s e-commerce affiliate partners.  Nothing
in this Section 2.7 shall limit Licensee’s rights under any written
agreement to which Licensee is a party as of the Effective Date and that is
listed on Exhibit N.  Subject to the terms and conditions of the
Supply Agreement, to the extent Licensee chooses to be supplied by Licensor,
Licensor shall supply Content-Rich Media available under this Section 2.7(c) to
Licensee at MFN Pricing.

     

    (e) Licensee
may request the right to sell items of Content-Rich Media that are not otherwise
available to Licensee under this Section 2.7, subject to the terms and
conditions of this Agreement.  Licensor shall consider in good faith
and shall not unreasonably deny any such request.  If Licensor permits
the sale of additional Content-Rich Media under this Section 2.7(e), such
products will be treated according to the terms of Section 2.7(d).

     

    (f) Licensee
shall pay MFN Pricing for each downloaded copy of Content-Rich
Media.  Licensor acknowledges that as of the Effective Date, Licensee
purchases existing Content-Rich Media through certain distributors, and nothing
in this Section 2.7 shall be deemed to limit its right to source such products
through vendors other than Licensor.

     

    (g) Other
than the grant to Licensee in Section 2.7(b), (c) and (d), Licensor retains and
reserves all rights to market, distribute and sell Content-Rich
Media.  Without limiting the generality of the previous sentence,
Licensor has the exclusive right to sell Content-Rich Media worldwide in the
Wholesale Channel and through online channels, other than the Licensee Websites
as provided in this Section 2.7.

     

    2.8 Special
Provisions:  Software.  During the term
of the Agreement, Licensee shall have the right to sell the Software products
described below, subject to the following conditions, restrictions, limitations
and qualifications.

     

    (a) Definitions.

     

    (i) “Assigned Software” means the
Software assigned or otherwise transferred by Licensor to Licensee pursuant to
the Asset Purchase Agreement and includes Forms Wizard, Address/Phone Software
and Confidant.

     


    
      
        
        

      

      
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    (ii) “Boxed PlanPlus Software”
means the planning and organizational Software currently known as PlanPlus for
Outlook, PlanPlus for Windows, PlanOne, TasksPlus and ProjectsPlus.

     

    (iii) “Current Version” means the
version of Software as it exists as of the Effective Date.

     

    (iv) “Licensee Software
Modification” means a modification to the Software code of any PlanPlus
Software commissioned and paid for by Licensee and approved by Licensor pursuant
to Section 2.8(c)(i).

     

    (v) “Licensor Software
Modification” means a modification to the Software code of any PlanPlus
Software commissioned and paid for by Licensor.

     

    (vi) “Mobile PlanPlus Software”
means the planning and organizational Software for use by customers through
cellular telephones or similar personal device and currently known as Mobile
PlanPlus.

     

    (vii) “Online PlanPlus Software”
means the planning and organizational Software currently known as the Basic,
Sales, Business and Project editions of PlanPlus Online.

     

    (viii) “PlanPlus Software” means
Boxed PlanPlus Software, Online PlanPlus Software, and Mobile PlanPlus
Software.

     

    (ix) “Software Modification” means
any Licensor Software Modification or Licensee Software
Modification.

     

    (x) “Substantial Distribution”
means that, through Licensee’s agreements, the Software in question is available
for retail sale on the store shelves of at least 30 percent of the retail stores
in a geographic region or organizational subdivision of a retail chain, as those
geographic regions or organizational subdivisions are defined by such retail
chain.

     

    (b) Licensee
acknowledges that Licensor’s ability to grant to Licensee the rights to resell
PlanPlus Software called for in this Section 2.8 is contingent upon obtaining
the consents of certain third-party software developers of the PlanPlus Software
and/or amending the agreements with such developers.  Licensor agrees
to use commercially reasonable efforts to obtain such consents and negotiate
such amendments on reasonably acceptable terms as soon as practicable, and
Licensee agrees to cooperate with Licensor for this purpose.  No
rights shall be granted to Licensee under this Section 2.8 except as permitted
pursuant to such consents and/or amendments.

     

    (c) Software
Modifications.

     

    (i) Within
sixty (60) days after the Effective Date and thereafter within thirty (30) days
of the commencement of each fiscal year of Licensee, Licensee shall prepare and
deliver to Licensor a written plan that outlines all Licensee Software
Modifications to any PlanPlus Software that Licensee proposes during the next
fiscal year (or,

     


    
      
        
        

      

      
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    as the
case may be, during the remaining portion of the 2008 fiscal year), including
general descriptions of the functionality and estimated completion
dates.  Licensor shall have ten (10) Business Days to approve any or
all of the proposed Licensee Software Modifications, which approval shall not be
unreasonably withheld.  If Licensor fails to respond within such ten
(10) day period, the plan as written shall be deemed
approved.  Licensee shall have the right to make all Licensee Software
Modification approved pursuant to this 2.8(c)(i) without further
approval.

     

    (ii) Licensee
shall, on reasonable notice by Licensor, assist in the continued development and
support of PlanPlus Software and Licensor Software Modifications for use by
Licensor so long as (A) Licensor funds the development of the features so
commissioned, (B) Licensor reimburses Licensee for the time spent by
Licensee employees in providing such assistance and (C) Licensor’s demands
for such assistance are not excessive in view of the time which Licensee can
reasonably make available without detracting from Licensee’s conduct of its
Business.

     

    (d) Boxed
PlanPlus Software.

     

    (i) Licensee
shall have the right to sell, directly or through distributors, Boxed PlanPlus
Software as follows:

     

    
      	
              (1)  

            	
              the
      exclusive right to sell such Software in its Current Version and in
      versions incorporating Licensee Software Modifications in the Proprietary
      Consumer Channels during the term of this Agreement;
  and

            


    

     

    
      	
              (2)  

            	
              the
      exclusive right to sell such Software in its Current Version and in
      versions incorporating Licensee Software Modifications in the Wholesale
      Channels for a period of five years from the Effective Date, with the
      option to renew such rights on a non-exclusive basis thereafter for
      additional periods of five years.

            


    

     

    (ii) Licensor
shall have the right to sell, directly or through distributors, Boxed PlanPlus
Software as follows:

     

    
      	
              (1)  

            	
              the
      exclusive right to sell such Software in its Current Version or in
      versions incorporating any Software Modification outside the Licensed
      Channels;

            


    

     

    
      	
              (2)  

            	
              the
      exclusive right to sell such Software in the Wholesale Channels if such
      Software includes a significant training component or includes a new and
      significantly different functionality not present in the version sold by
      Licensee under Subsection (d)(i) above;
and

            


    

     

    
      	
              (3)  

            	
              beginning
      five years after the Effective Date, the non-exclusive right to sell such
      Software in its Current Version or in versions incorporating any Software
      Modification in the Wholesale Channels (without
  limiting

            


    

     


    
      
        
        

      

      
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    the
exclusive rights granted under Subsection (d)(ii)(2) above).

     

    (e) Online
PlanPlus Software and Mobile PlanPlus Software.

     

    (i) Licensee
shall have the right to sell, directly or through distributors, Online PlanPlus
Software and Mobile PlanPlus Software as follows:

     

    
      	
              (1)  

            	
              the
      exclusive right to sell such Software in its Current Version and in
      versions incorporating Licensee Software Modifications in the Proprietary
      Consumer Channels during the term of this
  Agreement;

            


    

     

    
      	
              (2)  

            	
              the
      exclusive right to sell such Software in its Current Version and in
      versions incorporating Licensee Software Modifications in the Wholesale
      Channels for a period of three years from the Effective Date, with the
      option to renew such rights thereafter only on an exclusive basis for
      additional periods of three years only in those specific accounts (or
      geographic regions or organizational subdivisions within accounts) in
      which Licensee achieved Substantial Distribution in the last year of the
      initial three-year period after the Effective Date and the last year of
      any subsequent additional three-year periods for which Licensee achieves
      exclusive rights under this Subsection
  (e)(i)(2);

            


    

     

    
      	
              (3)  

            	
              beginning
      three years after the Effective Date, the exclusive right to sell such
      Software in its Current Version and in versions incorporating Licensee
      Software Modifications in order to service renewals by parties who were
      customers of Licensee as of the end of the three-year exclusivity period
      and who were acquired through accounts (or geographic regions or
      organizational subdivisions within accounts) where Licensee did not
      achieve Substantial Distribution in the last year of the initial
      three-year period after the Effective Date or the last year of any
      subsequent additional three-year period for which Licensee achieves
      exclusive rights under Subsection  (e)(i)(2);
  and

            


    

     

    
      	
              (4)  

            	
              the
      exclusive right to sell such Software in versions incorporating Licensor
      Software Modifications in the Proprietary Consumer Channels if Licensor
      offers such modified Software on a non-exclusive basis through
      consumer-oriented channels.

            


    

     


    
      
        
        

      

      
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    (ii) Licensor
shall have the right to sell, directly or through distributors, Online PlanPlus
Software and Mobile PlanPlus Software as follows:

     

    
      	
              (1)  

            	
              the
      exclusive right to sell such Software in its Current Version or in
      versions incorporating any Software Modification outside the Licensed
      Channels;

            


    

     

    
      	
              (2)  

            	
              the
      exclusive right to sell such Software in the Wholesale Channels if such
      Software includes a significant training component or includes a new and
      significantly different functionality not present in the version sold by
      Licensee under Subsections (e)(i)(1) through (e)(i)(3) above;
      and

            


    

     

    
      	
              (3)  

            	
              beginning
      three years after the Effective Date, the exclusive right to sell such
      Software in its Current Version or in versions incorporating any Software
      Modification in the Wholesale Channels, but excluding any account (or any
      geographic region or organizational subdivision within any account) where
      Licensee has achieved Substantial
Distribution.

            


    

     

    (iii) Licensor
shall have the non-exclusive right to sell, directly or through distributors,
the Assigned Software in its Current Version and in versions incorporating any
Software Modification outside the Licensed Channels.

     

    (f) Subject
to the terms and conditions of the Supply Agreement, PlanPlus Software shall be
made available to the other party, as applicable, as set forth
below:

     

    (i) Licensee
shall supply Licensor with requested copies of Boxed PlanPlus Software at
Standard Spread if such Software is used in connection with Licensor’s
Training-Oriented Services or Training-Oriented Products and at MFN Pricing if
such Software is sold to Licensor for any any other purpose.  Licensee
shall have no obligation to make any payment to Licensor for any Boxed PlanPlus
Software sold.

     

    (ii) For each
unit of Online PlanPlus Software and Mobile PlanPlus Software sold by Licensee
in the three-year period following the Effective Date, Licensee shall pay to
Licensor the Standard Spread for so long as Licensee has received, in the
then-current fiscal year, EBITDA contribution from such sales of less than
$3,020,000; and Licensee shall pay MFN Pricing for each unit sold thereafter for
the remainder of such fiscal year.  For each unit of Online PlanPlus
Software and Mobile PlanPlus Software sold by Licensee after the initial
three-year period following the Effective Date, Licensee shall pay to Licensor
MFN Pricing.

     

    (iii) Licensee
agrees to supply Licensor with requested copies of Assigned Software at MFN
Pricing.

     

    (g) If either
party collects proceeds of sales of any PlanPlus Software for the other party,
the party receiving the payment shall deliver it to the other party as
provided

     


    
      
        
        

      

      
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    in
Section 2.24.  Licensee shall be credited with any sale of PlanPlus
Software that began with a lead from the Proprietary Consumer
Channels.

     

    (h) The
parties shall use commercially reasonable efforts to cooperate to use branding
strategies for the Software products described in this Section 2.8 to avoid
confusion in the marketplace between their respective versions.

     

    (i) Other
Provisions.

     

    (i) Licensee
shall promptly provide to Licensor all relevant information regarding customers
who purchase more than fifty (50) copies of any PlanPlus Software in a single
order, unless such disclosure would violate any applicable law.

     

    (ii) Licensee
shall not develop internally or contract externally with a dedicated sales force
to promote and sell PlanPlus Software to Organizational Clients, provided,
however, that Licensee may follow up all leads received in the Licensed Channels
by telephone or electronic means or in person so long as the person is an
employee of a bricks-and-mortar store of Licensee.

     

    2.9 Special
Provisions:  Education Channels.  The rights
granted to Licensee in Section 2.1 include the conditional right to sell
Education Planners, subject to the following restrictions, limitations and
qualifications.  Licensee acknowledges that the education channel is
outside of the Licensee Field and further acknowledges that Licensor is subject
to agreements with School Specialty, Inc. that may permit sales of
certain sales of Licensed Products in the Licensed Channels.  Nothing
in Section 2.1 shall be deemed to derogate from the rights already granted to
School Specialty, Inc.

     

    (a) Definitions.

     

    (i) “Education Planner” means a
Planner that is designed to be used by educators or students and that contains
training or Execution-Related Materials.

     

    (b) Except as
provided in this Section 2.9, Licensor shall retain all rights to manufacture,
distribute and sell Education Planners worldwide.

     

    (c) If
Licensor sells or agrees to sell any Education Planners as a stand-alone product
through a Wholesale Channel on a non-exclusive basis, Licensee shall
have:

     

    (i) the right
to sell the same Education Planners through the Proprietary Consumer Channels
other than Licensee’s e-commerce affiliate partners; and

     

    (ii) a right
of first offer to be a distributor of such Education Planners into the Wholesale
Channel unless Licensor enters into an exclusive distribution agreement with
School Specialty, Inc.

     

    2.10 Special
Provisions:  Motivational Artwork and Corporate Gift
Items.  Subject to all of
the terms and conditions of this Agreement, the rights granted to Licensee in
Section 2.1 as they relate to Motivational Artwork and Corporate Gift Items
shall be exclusive in the Proprietary Consumer Channels and non-exclusive in the
Wholesale

     


    
      
        
        

      

      
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    Channels.
“Motivational Artwork”
means any print, artwork or other display-worthy media created, prepared,
commissioned or licensed by Licensor.  “Corporate Gift Items” means
any objects typically given as gifts in a corporate setting, including, without
limitation, paperweights, desk sets and similar items.

     

    2.11 Sublicenses.

     

    (a) Definitions.

     

    (i) “Licensee Qualified Entity” means any
entity other than a Competitor or Prohibited Party that is (a) wholly-owned
by Licensee, but only for so long as such entity is wholly-owned by Licensee,
(b) listed on Exhibit J (including as such Exhibit may be amended in
the future), but only for so long as (I) Licensee (or a wholly-owned
subsidiary of Licensee) maintains the ownership interest that it has in such
entity as of the Effective Date as set forth on Exhibit J (or as of the
date on which Exhibit J was amended to add such Licensee Qualified Entity) and
(II) any other equity holder in such entity continues to maintain the
ownership interest that it has in such entity as of the Effective Date as set
forth on Exhibit J or, if it transfers any equity interests, it transfers
those equity interests to Licensee or a wholly-owned subsidiary of Licensee, or
(c) a franchisee of Licensee or a franchisee of a wholly-owned entity of
Licensee but only so long as such franchisee is subject to a valid, written
franchise agreement with Licensee or Licensee’s wholly-owned
entity.

     

    (ii) “Licensee Qualified Vendor” means any
third-party distributor, manufacturer, sales organization or similar service
provider, other than a Competitor, Prohibited Party or International Licensee of
Licensee, that is engaged by Licensee in the Ordinary Course of Business to
design, manufacture, distribute and/or sell Licensed Products in the Licensee
Field or, subject to Article V, to create New Products or New Campaign
Materials.

     

    (iii) “Licensor Qualified Entity” means any
entity other than a Prohibited Party that is (a) wholly-owned by Licensor,
but only for so long as such entity is wholly-owned by Licensor, or
(b) listed on Exhibit J, but only for so long as (I) Licensor (or
a wholly-owned subsidiary of Licensor) maintains the ownership interest that it
has in such entity as of the Effective Date as set forth on Exhibit J (or
as of the date on which Exhibit J was amended to add such Licensor Qualified
Entity) and (II) any other equity holder in such entity continues to
maintain the ownership interest that it has in such entity as of the Effective
Date as set forth on Exhibit J or, if it transfers any equity interests, it
transfers those equity interests to Licensor or a wholly-owned subsidiary of
Licensor.

     

    (iv) “Licensor Qualified Vendor” means any
third-party distributor, manufacturer, sales organization or similar service
provider, other than a Prohibited Party or International Licensee of Licensor,
that is engaged by Licensor in the Ordinary Course of Licensor’s business to
design, manufacture, distribute and/or sell products using the Assigned
Trademarks.

     

    (v) “Qualified Entity” means any
Licensee Qualified Entity or Licensor Qualified Entity.

     


    
      
        
        

      

      
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    (vi) “Qualified Vendor” means any
Licensee Qualified Vendor or Licensor Qualified Vendor.

     

    (b) Licensee
shall have the right to grant sublicenses of its rights under Section 2.1
only to Licensee Qualified Entities, Licensee Qualified Vendors and
International Licensees of Licensee, subject to the restrictions of this Section
2.11.  Other than permitted sublicenses to Licensee Qualified
Entities, Licensee Qualified Vendors or International Licensees of Licensee, any
attempted sublicense by Licensee shall be prohibited and
void.  Licensor shall have the right to grant sublicenses of its
rights under Section 2.12 only to Licensor Qualified Entities, Licensor
Qualified Vendors and International Licensees of Licensor, subject to the
restrictions of this Section 2.11.  Other than permitted sublicenses
to Licensor Qualified Entities, Licensor Qualified Vendors and International
Licensees of Licensor, any attempted sublicense by Licensor shall be prohibited
and void.

     

    (c) Prior to,
and as a condition to the effectiveness of, any sublicense permitted under this
Section 2.11, Licensor or Licensee, as the case may be, shall enter into a
Sublicense Agreement with the intended Sublicensed Entity.  Licensor
and Licensee shall each promptly notify the other party of the execution of any
Sublicense Agreement and shall provide a brief description of the purpose of the
sublicense and any services to be provided by the Sublicensed
Entity.  If Licensor has a legitimate reason to be concerned and so
requests, Licensee shall provide Licensor with a copy of any Sublicense
Agreement relating to the Licensed Materials; and if Licensee has a legitimate
reason to be concerned and so requests, Licensor shall provide Licensee with a
copy of any Sublicense Agreement relating to the Assigned Trademarks; provided,
however, that each party may redact confidential financial information from such
agreements.

     

    (d) If
Licensee enters into any Sublicense Agreement with an International Licensee of
Licensee, Licensee will use its best efforts to structure the agreement so that
the International Licensee purchases the Licensed Products at the Standard
Spread plus the cost of the International Licensee’s royalty
payment.

     

    2.12 Grant-Back
License to
Assigned Trademarks.  Subject to all of
the terms and conditions of this Agreement, Licensee hereby grants to Licensor a
non-exclusive, worldwide, transferable, sublicensable (subject to Section 2.11),
fully paid-up, royalty-free license, during the term set forth below, to use the
Assigned Trademarks in connection with the design, development, manufacture,
marketing, promotion, advertisement, distribution, lease and sale of products
and services in any medium and format that are both outside the Licensee Field
and in the Ordinary Course of Business as conducted by Licensor at the Effective
Date or thereafter.

     

    2.13 Restrictions. As an express condition
to, and in material consideration for, the licenses hereunder, Licensee and
Licensor each expressly agrees to the following restrictions as to its use of,
respectively, the Licensed Trademarks and Assigned Trademarks:

     

    (a) Neither
party shall do anything inconsistent with the other party’s ownership of the
Licensed Trademarks or Assigned Trademarks, as applicable.  Without
limiting the generality of the foregoing, neither party shall challenge the
validity, ownership or enforceability of any Licensed Trademark or Assigned
Trademark, as applicable.

     


    
      
        
        

      

      
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    (b) Licensee
shall not use, reproduce or display (or authorize the use, reproduction or
display of) the Licensed Trademarks, and Licensor shall not use, reproduce or
display (or authorize the use, reproduction or display of) the Assigned
Trademarks in any manner whatsoever other than as expressly authorized by this
Agreement.

     

    (c) During
the term and after any termination of this Agreement, neither party shall use
any service mark, service name, trade name, trademark, design or logo that is
confusingly similar to (i) any Licensed Trademark or Assigned Trademark, as
applicable, or any element thereof or (ii) any other service mark, service
name, trade name, trademark, design, or logo of the other party without the
prior written consent of such party.

     

    (d) Licensee
shall not use any of the Licensed Trademarks together, or use any Licensed
Trademark in combination with any other trademark, service mark, trade name,
trading style, fictitious business name, name, word, character, symbol, design,
likeness or literary or artistic material.  Notwithstanding the
foregoing, Licensee may use any Assigned Trademark with the Licensed Trademarks,
but not in a manner that might create a composite or combined mark, except that
Licensee may use any Licensed Trademark in combination with “FranklinCovey”
without restriction.

     

    (e) Licensor
shall not use any of the Assigned Trademarks together, or use any Assigned
Trademark in combination with any other trademark, service mark, trade name,
trading style, fictitious business name, name, character, symbol, design,
likeness or literary or artistic material.  Notwithstanding the
foregoing, Licensor may use any Assigned Trademark in combination with
“FranklinCovey” without restriction.

     

    (f) Licensee
shall not register any Licensed Trademark or any Trademark confusingly similar
thereto, and Licensor shall not register any Assigned Trademark or any Trademark
confusingly similar thereto.  Licensor shall retain the exclusive
right to apply for and obtain registrations for each Licensed Trademark, and
Licensee shall retain the exclusive right to apply for and obtain registrations
for each Assigned Trademark, each throughout the world, except as expressly
provided otherwise in this Agreement.

     

    (g) Licensee
shall not assert any adverse claim against Licensor based upon Licensee’s use of
any Licensed Trademark, and Licensor shall not assert any adverse claim against
Licensee based upon Licensor’s use of any Assigned Trademark (other than a claim
for breach of the exclusivity provisions of this Agreement).

     

    (h) From time
to time after the Effective Date, upon request of one party and without further
consideration, the other party will take all appropriate action and execute and
deliver any documents, instruments or conveyances of any kind that may be
reasonably requested by such party to assign to or vest in such party all right,
title and interest in and to any and all assets of Licensor or Licensee, as
applicable, including the Licensed Trademarks (as to Licensor) and Assigned
Trademarks (as to Licensee), that are not expressly granted
hereunder.

     

    2.14 Due Diligence by
Licensee.  During the term
of this Agreement, Licensee shall at all times use commercially reasonable
efforts to promote Licensed Products in all Licensed Channels throughout the
Licensed Territory, including expansion of sales in the Licensed

     


    
      
        
        

      

      
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    Territory
outside the United States.  Licensee shall provide Licensor with plans
regarding annual sales, marketing and product development by Licensed Channel
for all initiatives affecting sales of Licensed Products, and shall provide
periodic updates thereto as reasonably requested by Licensor.  If
Licensee notifies Licensor in writing that Licensee does not intend to promote
and sell Licensed Products in (i) any country that is part of the Licensed
Territory or (ii) into any sales channel that is one of the Licensed
Channels, then Licensor shall have the right to re-enter such country or channel
to sell or to permit a third party to sell Licensed Products into that country
or channel.

     

    2.15 Trade Secret and Know-How
License.  Unless expressly
provided otherwise in this Agreement, the license granted hereunder to Licensee
includes a license, subject to the same terms and conditions as are provided
herein, to all trade secrets and know-how of Licensor that were utilized in the
operations of the Business of Licensee as conducted on or prior to the Effective
Date.

     

    2.16 Trademark Notice; Licensed
Trademarks.

     

    (a) In
connection with the use of the Licensed Trademarks, Licensee shall
(i) include a trademark notice in a form reading, “[Licensed Trademark] is
a trademark of Franklin Covey Co.,” or (ii) place an asterisk immediately
after and slightly above the use of each Licensed Trademark referring to a
footnote reading “Trademark of Franklin Covey Co.”  Further, Licensee
shall indicate when using a Licensed Trademark that the “Use of the Licensed
Trademark __________ by [Licensee] is pursuant to a trademark license from
Franklin Covey Co.” or similar wording.  If a Licensed Trademark is
used multiple times on or in a particular Licensed Product, document,
advertisement or other material, the notice and statement regarding licensed use
need only be used for the first prominent use of the Licensed Trademark on or in
such Licensed Product, document, advertisement or other
material.  Licensee shall comply with reasonable requests of Licensor
to use the “TM,” ® and © symbols in connection with the Licensed
Materials.

     

    (b) In
connection with the use of the Assigned Trademarks, Licensor shall
(i) include a trademark notice in a form reading, “[Assigned Trademark] is
a trademark of Franklin Covey Products, LLC,” or (ii) place an asterisk
immediately after and slightly above the use of each Assigned Trademark
referring to a footnote reading “Trademark of Franklin Covey Products,
LLC”  Further, Licensee shall indicate when using an Assigned
Trademark that the “Use of the Assigned Trademark __________ by [Licensor] is
pursuant to a trademark license from Franklin Covey Products, LLC” or similar
wording.  If an Assigned Trademark is used multiple times on or in a
particular product, document, advertisement or other material, the notice and
statement regarding licensed use need only be used for the first prominent use
of the Assigned Trademark on or in such product, document, advertisement or
other material.  Licensor shall comply with reasonable requests of
Licensee to use the “TM” and ® symbols in connection with the Assigned
Trademarks.

     

    2.17 Maintenance, Renewal and
Enforcement.

     

    (a) Cooperation.  The
parties agree to cooperate with regard to the preparation and filing of any
applications, renewals or other documentation necessary or

     


    
      
        
        

      

      
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    useful to
protect a party’s Intellectual Property Rights in the Licensed Trademarks or the
Assigned Trademarks, as applicable.

     

    (b) Filings.  Licensor
shall have the primary right to determine whether to file or maintain
registrations for any Licensed Trademarks.  Licensee may request that
Licensor file or maintain registrations for a Licensed Trademark for a country
or class, and Licensor shall either take such action at Licensor’s expense or,
if Licensor does not wish to do so, permit Licensee to do so; provided, however,
that Licensee shall make all such filings and registrations solely in the name
of Licensor or Licensor’s designee.  Licensee may deduct the
reasonable out-of-pocket costs actually incurred by Licensee in making any such
filings from Royalties or other amounts payable to Licensor under this
Agreement.

     

    (c) Recorded Licensee
Filings.  Should local counsel of either party reasonably
recommend that Licensee be appointed as a recorded licensee of Licensor for the
Licensed Trademarks in the Licensed Territory because (i) Licensor
reasonably determines that such license should be recorded with the appropriate
trademark or customs office as reasonably necessary to protect Licensor’s rights
in the Licensed Trademarks, then Licensor shall prepare and file the necessary
documents subject to Licensee’s approval, which shall not be unreasonably
withheld or delayed; or (ii) Licensee reasonably determines that such
license should be recorded with the appropriate trademark or customs office as
reasonably necessary to protect Licensee’s ability to enforce its rights in the
applicable Territory, Licensor, on behalf of Licensee, shall prepare and file
the necessary documents.  Licensee agrees to sign any documents
reasonably necessary for Licensor to cause any recordals to be terminated as to
any Licensed Products upon the expiration or termination of the license
applicable to such Licensed Product hereunder.  Licensee may deduct
the reasonable out-of-pocket costs actually incurred by Licensee in making any
such filings from Royalties or other amounts payable to Licensor under this
Agreement.

     

    2.18 Enforcement and Defense of
Infringement Claims.

     

    (a) Notification.  The
parties shall reasonably cooperate in providing notice to each other in writing
(a “Notice of Alleged
Infringement”) if a party becomes aware of any use of a Licensed
Trademark in the Licensed Territory or of an Assigned Trademark, as applicable,
or any element thereof, or of any Trademark on a Licensed Product, which may be
confusingly similar to any Licensed Trademark or Assigned Trademark, as
applicable, or element thereof, by any Person.

     

    (b) Action by Licensor to
Enforce.  Licensor shall have the primary right, but not the
obligation, to determine whether to institute and/or pursue any proceedings to
enforce any rights in the Licensed Trademarks, as well as the right to select
counsel.  Licensee shall cooperate, in a commercially reasonable
manner, with Licensor in any such suit, including being joined as a party with
respect to such infringement (and execute any documents necessary to effectuate
the same) if necessary under the applicable rules of civil procedure to effect
standing, and Licensee shall be reimbursed for reasonably incurred
expenses.  Licensor will be solely responsible for the costs of such
action and will retain all recoveries and awards necessary to reimburse Licensor
for any costs and expenses.  Any recoveries and awards in excess of
Licensor’s costs and expenses, to the extent that such recoveries and awards are
related to Licensed Products, shall be allocated equally between the
parties.  Notwithstanding any other provision to the contrary, in no
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    be
required to satisfy or comply with any settlement or other agreement concerning
its use of the Licensed Trademarks to which Licensee has not consented (such
consent not to be unreasonably withheld or delayed).

     

    (c) Action by Licensee to
Enforce.  If applicable law in any jurisdiction in the Licensed
Territory requires that Licensee enforce rights in the Licensed Trademarks
against alleged infringers, or Licensor declines in writing to enforce its
rights in the Licensed Trademarks with respect to the alleged confusingly
similar use set forth in the Notice of Alleged Infringement, Licensee shall have
the right, but not an obligation, to enforce such rights with respect to
Licensed Products subject to any direction that Licensor
provides.  Licensor shall cooperate, in a commercially reasonable
manner, with Licensee in any such suit, including granting Licensee the right to
bring suit in Licensor’s name (and execute any documents necessary to effectuate
the same) if necessary under the applicable rules of civil procedure to effect
standing, and Licensor shall be reimbursed for reasonably incurred
expenses.  Licensee will be solely responsible for the costs of such
action and will retain all recoveries and awards necessary to reimburse Licensee
for any costs and expenses.  Any recoveries and awards in excess of
Licensee’s costs and expenses, to the extent that such recoveries and awards are
related to Licensed Products, shall be allocated equally between the
parties.

     

    (d) Licensor Defense of
Third-Party Claims.  Licensor shall have the sole right to
defend the Licensed Trademarks against imitation, infringement or any claim of
prior use.  Licensee shall cooperate, in a commercially reasonable
manner, with Licensor, at Licensor’s reasonable request and Licensor’s expense,
in connection with the defense of any such claim.

     

    (e) Licensee Defense of
Third-Party Claims.  Licensee shall have the sole right to
defend the Assigned Trademarks against imitation, infringement or any claim of
prior use.  Licensor shall cooperate, in a commercially reasonable
manner, with Licensee, at Licensee’s reasonable request and Licensee’s expense,
in connection with the defense of any such claim.

     

    (f) Updates and
Consultation.  With respect to any enforcement actions taken
pursuant to this Section 2.18, the party handling such enforcement action
shall, upon request, provide periodic updates to and request consultation from
the parties not handling the action and each party not handling the action may
hire its own counsel at its expense.

     

    2.19 Reservation of
Rights.  Licensee
acknowledges that, as between the parties, Licensor is the sole owner of all
right, title and interest in and to the Licensed Materials, and Licensor
acknowledges that, as between the parties, Licensee is the sole owner of all
right, title and interest in and to the Assigned Trademarks.  Each
party acknowledges that it has not acquired, and shall not acquire, any right,
title or interest in or to any intellectual property of the other party, except
the limited rights granted in Sections 2.1 and 2.11, respectively, under
this Agreement.  Licensor shall retain all goodwill associated with
the Licensed Materials, and any and all goodwill associated with Licensee’s use
of the Licensed Materials shall inure to the benefit of
Licensor.  Licensee shall retain all goodwill associated with the
Assigned Trademarks, and any and all goodwill associated with Licensor’s use of
the Assigned Trademarks shall inure to the benefit of Licensee.

     


    
      
        
        

      

      
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    2.20 Removing Licensed Materials
from License.

     

    (a) At any
time during the term of this Agreement, Licensor shall have the right to remove
any particular Licensed Trademark from the scope of the license granted under
this Agreement, upon written notice to Licensee, if Licensor receives written
notice of a cause of action or threat thereof or advice of counsel on the basis
of which Licensor reasonably determines that use of such Licensed Trademark
hereunder could infringe any intellectual property rights of any third party
that are not derived from Licensor.  Licensor shall consult with
Licensee in advance of such removal.  If and only to the extent that
Licensor and Licensee mutually agree, the parties shall cooperate to resolve any
infringement in a commercially reasonable manner.  If the proposed
removal of the Licensed Trademark(s) would reasonably be expected to reduce the
economic value of the license rights granted to Licensee under this Agreement
materially, the parties shall negotiate in good faith prior to the removal of
such Licensed Trademark(s) in order to adjust the Royalties in an equitable
manner to reflect such reduction in economic value.

     

    (b) At any
time during the term of this Agreement, Licensee shall have the right to remove
any particular Assigned Trademark from the scope of the license granted under
this Agreement, upon written notice to Licensor, if Licensee receives written
notice of a cause of action or threat thereof or advice of counsel on the basis
of which Licensee reasonably determines that use of such Assigned Trademark
hereunder could infringe any intellectual property rights of any third party
that are not derived from Licensee.  Licensee shall consult with
Licensor in advance of such removal.  If and only to the extent that
Licensee and Licensor mutually agree, the parties shall cooperate to resolve any
infringement in a commercially reasonable manner.

     

    2.21 Additional Commitments of
Licensee.  Licensee agrees
to cause each Sublicensed Entity to comply with all of its respective
obligations under this Agreement and under any other agreement executed in
connection herewith (including the applicable Sublicense
Agreement).  Licensee shall be directly liable for (a) any act of
any Existing Sublicensed Entity in breach of any such obligation if the act is
reasonably foreseeable, and (b) any act of any New Sublicensed Entity in
breach of any such obligation (without regard to whether it was foreseeable);
for the avoidance of doubt, subject to the terms and conditions of this Section
2.21, Licensee shall be liable for any act by any Sublicensed Entity that would
be a breach of this Agreement if committed by Licensee.  Licensor may
pursue claims for any such breach against Licensee in accordance with the terms
hereof, regardless of whether such breach was committed by Licensee, or another
party, and regardless of whether Licensor chooses to include any other party in
the dispute resolution process applicable to the claim.  In the event
of any claim by Licensor, Licensee expressly waives any defense based on the
absence of or failure to join any other party in the dispute resolution process
or any other aspect of the claim.

     

    2.22 Licensor
Noncompetition.

     

    (a) Except as
expressly provided in this Agreement, Licensor shall have no right to sell
Licensed Products in the Licensee Field.

     


    
      
        
        

      

      
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    (b) Except as
expressly permitted in this Agreement and this Section 2.22, Licensor agrees
that, for the period beginning on the Effective Date and continuing until one
year after the date on which this Agreement is terminated, Licensor shall not
(i) sell Licensed Products through stores, websites or call centers except
in a manner incidental to Licensor’s Training-Oriented Services, (ii) sell
Licensed Products to wholesalers for the purpose of distributing Licensed
Products to individual consumers through consumer retail channels,
(iii) promote a competing paper-based planner system owned by a third party
competitor of Licensee, including without limitation Day Runner or Day-Timer, or
(iv) sell Licensed Products (other than Training Planners, Educational
Planners, Motivational Artwork and Corporate Gift Items, as provided herein) to
Organizational Clients except in connection with Licensor’s Training-Oriented
Services.  Licensor shall not directly or indirectly assist or permit
any Affiliate of Licensor in engaging in activity that would be prohibited under
this Section 2.22 if carried out by Licensor.

     

    (c) Subject
to all of the terms and conditions of this Agreement and the Supply Agreement,
Licensor shall have the right to purchase and sell Licensed Products in any
quantity for use in connection with Training-Oriented Services or
Training-Oriented Products. Licensor’s sales of Licensed Products not used in
connection with Training-Oriented Services or Training-Oriented Products shall
be subject to the following limitations:

     

    (i) If from
the Effective Date total cumulative revenues from Licensor’s sales of Tailored
Planners not used in connection with Training-Oriented Services or
Training-Oriented Products exceed one percent (1%) of Licensor’s worldwide
cumulative revenues on a consolidated basis, Licensor shall pay to Licensee an
amount equal to Licensor’s Gross Profit Margin from the sale of such Planners
that exceed that 1% limit.

     

    (ii) If from
the Effective Date total cumulative revenues from Licensor’s sales of Licensed
Products not used in connection with Training-Oriented Services or
Training-Oriented Products, other than (A) Tailored Planners not used in
connection with Training-Oriented Services or Training-Oriented Products and
(B) Training Planners exceed one percent (1%) of Licensor’s worldwide
cumulative revenues on a consolidated basis, Licensor shall pay to Licensee an
amount equal to Licensor’s Gross Profit Margin from the sale of such Licensed
Products that exceed that 1% limit.

     

    (iii) Sales by
Licensor in excess of the applicable 1% caps shall not give rise to any claim or
cause of action other than for payment of the Gross Profit Margin amounts set
forth above, except that a material, persistent and willful pattern of
nonpayment by Licensor under this Section 2.22(c) shall be deemed a breach of
Section 2.22(a).

     

    (iv) For
purposes of clarity, the following transactions are not included in the
calculations of Section 2.22(c)(ii):  sales of Licensed Products by
International Licensees of Licensor as permitted in this Agreement; sales of
Licensed Products by Licensor or its agents as part of Back of Room Sales when
Licensee declines to manage such Back of Room Sales; sales of Content-Rich
Media; sales of PlanPlus Software permitted under Section 2.8, and sales of
Education Planners.

     


    
      
        
        

      

      
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    (v) The
parties shall determine whether payments are due under (i) and (ii) above based
on revenue determined at the end of each fiscal quarter.  Promptly
after the closing of each fiscal quarter, Licensor shall calculate Licensor’s
total cumulative revenues from (A) the relevant Tailored Planners (in the case
of (i) above) and (B) the relevant Licensed Products (in the case of (ii)
above), starting at the Effective Date and continuing through the end of such
fiscal quarter.  The results of each of the two calculations under (A)
and (B) of this subparagraph shall each be divided by the total cumulative,
consolidated revenues of Licensor, starting at the Effective Date and continuing
through the end of the same fiscal quarter.  If the result of either
calculation is greater than 1% (or, stated as a decimal, 0.01), Licensor shall
pay to Licensee, according to the provisions of Section 2.24, the Gross Profit
Margin associated with the sales of the relevant products in excess of such
threshold.  After Licensor makes a payment pursuant to (i) or
(ii) above, the revenues for the sales with regard to which Licensor made such
payment shall be deducted from the numerator in the calculations set forth above
for all subsequent fiscal quarters in order to ensure that Licensor is not
required to pay Gross Profit Margin amounts to Licensee twice for the same
sales.

     

    (d) Licensor
shall not be deemed to have violated this Section 2.22:

     

    (i) solely as
a result of Licensor’s ownership as a passive investment of less than 2% of the
outstanding shares of capital stock or other equity interest of any corporation
on a national securities exchange or public traded on an automated quotation
system; or

     

    (ii) if
Licensor enters a country or channel where Licensee has substantially
discontinued its operations in such country or channel pursuant to Section 2.14
of this Agreement or after exercising its rights to partial termination pursuant
to Section 8.3.

     

    (e) Because
Licensee’s current and planned sales activities are worldwide, the geographic
scope of this covenant is worldwide.  Licensor acknowledges that it
has agreed to adopt this covenant as material consideration for the transactions
contemplated in the Asset Purchase Agreement and this Agreement.

     

    (f) If so
requested by Licensor in writing, Licensee may in its sole discretion waive the
restrictions of this Section 2.22 with respect to any product, service,
agreement or undertaking, provided that no such waiver shall be construed to
reduce the scope of this Section 2.22  Nothing in this Section 2.22
shall limit Licensor’s rights under any written agreement to which Licensor is a
party as of the Effective Date.

     

    2.23 Licensee
Noncompetition.

     

    (a) Licensee
agrees and covenants that for the period beginning on the Effective Date and
continuing for a period of one year after the date on which this Agreement is
terminated, Licensee shall not, except as may be permitted in this Agreement, in
any manner, directly or indirectly, design, develop, manufacture, market,
promote, advertise, distribute, lease, license or sell (i) any
Training-Oriented Product or Training-Oriented Service in any country, region or
territory, or (ii) any product that is competitively similar to any
Content-Rich Media or to any new product created by Licensor after the Effective
Date

     


    
      
        
        

      

      
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    that
would reasonably be included in Content-Rich Media if created prior to the
Effective Date.  Licensee shall not directly or indirectly assist or
permit any Affiliate of Licensee to engage in activity that would be prohibited
under this Section 2.23 if carried out by Licensee.

     

    (b) Licensee
shall not be deemed to violate this Section 2.23 of the Agreement:

     

    (i) as a
result of any agreement by Licensee on the Effective Date and listed on
Exhibit U, or

     

    (ii) solely as
a result of Licensee’s ownership as a passive investment of less than 2% of the
outstanding shares of capital stock or other equity interest of any corporation
on a national securities exchange or public traded on an automated quotation
system.

     

    (c) Because
Licensor’s current and planned training activities are worldwide, the geographic
scope of this covenant is worldwide.  Licensee acknowledges that it
has agreed to adopt this covenant as material consideration for the transactions
contemplated in the Asset Purchase Agreement and this Agreement.

     

    (d) If so
requested by Licensee in writing, Licensor may in its sole discretion waive the
restrictions of this Section 2.23 with respect to any product, provided that no
such waiver shall be construed to reduce the scope of this Section 2.23 or any
other non-competition covenant of Licensee.

     

    2.24 Licensor
Payments.  Licensor
shall pay to Licensee (a) any amount due pursuant to Section 2.2(b) as a result
of certain sales by International Licensees of Licensor within 45 days of the
end of the fiscal quarter in which the royalty payment is received by Licensor;
(b) any amount collected from sales of PlanPlus Software pursuant to Section 2.8
that is credited to Licensee within 45 days of the end of the fiscal quarter in
which the sale occurred; and (c) any amount owed pursuant to Section 2.22(c)
within 45 days of the end of the fiscal quarter in which sales exceeded the
relevant 1% threshold.

     

    ARTICLE III.

    WEBSITE
AND DATABASE MANAGEMENT AGREEMENT

     

    3.1 Website Linking
Agreement.  Licensor will
provide a hypertext reference link (a ”Link”) from the initial, top
level display of each of the Domains listed in Section 3.1(b) below, (such
websites, any related pages and any successor websites, the ”Licensor Websites”), to one
or more websites to be established and maintained by Licensee (the “Licensee Websites”), and
Licensee will in turn provide a Link from the initial, top level display of the
principal Licensee Websites to one or more Licensor Websites, all as provided
below and subject to the following restrictions and limitations:

     

    (a) If
Licensee desires to register a domain name for a Licensee Website that
incorporates a Licensed Trademark or any variation of a Licensed Trademark,
Licensee shall first obtain Licensor’s written consent, which will not be
unreasonably withheld or delayed.  During the term of the Agreement
and subject to the requirements of the previous sentence, Licensor grants to
Licensee a non-transferable, non-sublicensable (except as set forth

     


    
      
        
        

      

      
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    in
Section 2.11 and as provided in this Section 3.1(a)), worldwide, exclusive
and restricted license (i) to use each such Licensed Trademark in the
domain name of the corresponding Licensee Website, and (ii) to refer to
each such domain name on Licensed Products and on their packaging or New
Campaign Materials.  Licensee may sublicense the rights granted in
this Section 3.1(a) to any International Licensee of Licensee solely for the
purpose of registering a domain name in that International Licensee’s
territory.  Licensee at its own expense will register and maintain a
registration for the domain names for the Licensee Websites.

     

    (b) Licensor
shall maintain the registrations of the following top-level domains (the “Domains”) for at least twelve
(12) months from the Effective Date:  franklincovey.com,
franklincovey.ca;
franklincovey.com.au;
franklincovey.co.nz;
franklincoveyeurope.com
and e-franklincovey.com.mx.  If
Licensor notifies Licensee in writing that it intends to cease the use and
registration of any Domain, Licensee shall have the option to assume and
maintain that Domain.

     

    (c) Licensee
shall maintain the full functionality of the websites located at the Domains as
they exist as of the Effective Date from the Effective Date until the first to
occur of (i) the date on which EDS or another vendor agrees to provide such
services pursuant to a written agreement between Licensor and such party, or
(ii) the date on which Licensor demonstrates to the satisfaction of
Licensee, which shall not be unreasonably withheld, Licensor’s ability to
provide such services itself.

     

    (d) The Links
from the Licensor Websites to the Licensee Websites shall be no less prominent
than the Links connecting a user of the Licensor Websites to any other products,
services and solutions presented on the Licensor Websites.  For a
period beginning on the Effective Date and continuing until March 1, 2010,
Licensor shall maintain a home page located at each of the Domains described in
Section 3.1(b) with two buttons of equal size that will direct customers to a
Licensee Website designated by Licensee and a Licensor Website.  Final
decisions regarding the design of the home pages of the Licensor Websites shall
rest with Licensor.  The parties will use best efforts to make current
and future customers aware that Licensed Products are available through Licensee
Websites.  After the Effective Date, Licensor and Licensee shall
create a transition plan to identify technical and marketing solutions to
encourage Licensee’s customers to use the Licensee Website and shall use their
best efforts to complete the transition by March 1, 2010.  If at
that time Licensee reasonably believes that ending the transition plan and
removing the two-button home page would cause irreparable harm to the Business
of Licensee, the parties shall extend the transition for subsequent one-year
terms, during which Licensee shall continue to use its best efforts to complete
the transition plan by the end of the then-current one-year term.  As
part of such transition plan, a joint committee consisting of at least two
representatives from each of the parties shall meet on a regular
basis.

     

    (e) The home
page and each page of the Licensee Website that contains other legal notices
shall contain the following statement:  “The [Franklin Covey]
trademark is used under a trademark license from Franklin Covey
Co.”  The home page and each prominent page of the site shall either
identify Licensee or display Licensee’s standard copyright notice in Licensee’s
name.

     


    
      
        
        

      

      
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    (f) Licensee
shall maintain the Licensee Website (including maintaining the servers for such
sites) at its own expense.  Subject to Licensor’s rights to take
actions necessary to require Licensee to comply with this Agreement or the
Quality Guidelines, Licensor shall not impede, deny, or otherwise restrict
Licensee’s access to or ability to maintain the Licensee Websites or
corresponding email addresses.  The “About [Licensee],” “Contact Us”
or equivalent section of the Licensee Websites shall be reasonably prominent and
shall identify Licensee as the contact and shall contain the following
statement:  “The products described on this site are made by or on
behalf of [Licensee] and use of the [Franklin
Covey] trademarks is pursuant to a trademark license from Franklin Covey
Co.”  

     

    (g) Licensee
shall (i) not display or use a Link to any Prohibited Party or Competitor;
(ii) not display or use a Link in a manner that could cause confusion,
mistake, or deception; (iii) display disclaimers on the Licensee Website
pursuant to the Quality Guidelines; and (iv) maintain and enforce terms of
use and other policies applicable to the Licensee Website that are commercially
reasonable.

     

    (h) Licensor
shall retain the bulk email domain of
“franklincoveymail.com.”  Licensee shall create and register its own
bulk email domain, subject to Licensor’s prior written consent.  After
the Effective Date, Licensor and Licensee shall create a transition plan to
identify technical solutions to issues that may arise with respect to bulk
email, provided that the transition plan shall end as provided for in the
transition plan described in Section 3.1(d) above.

     

    3.2 Internet Sales of Licensed
Products.  The
rights granted to Licensee in Section 2.1, as those rights may apply to the
marketing and sale of Licensed Products through the Internet, are subject to the
following restrictions, limitations and qualifications, in addition to any and
all restrictions provided elsewhere in this Agreement.

     

    (a) Licensee
shall have the right to sell Licensed Products worldwide through the Licensee
Websites, provided that Licensee shall not actively promote Licensed Products
into the Excluded Countries.

     

    (b) Licensee
shall transfer to Licensor the Gross Profit Margin associated with any Licensed
Product that is sold through the Licensee Websites and is shipped to any
Excluded Country.

     

    3.3 Internet Search Marketing
Terms.  Licensor
and Licensee shall have the right to bid on any of the Internet Search Terms set
forth on Exhibit O, subject to the terms and conditions of this Section 3.3
and the Search Terms Use Guideline set forth on Exhibit P.  Each
of Exhibit O and Exhibit P may be amended from time to time by mutual
written agreement of the parties.  To the extent any Internet Search
Term is a Trademark owned by Licensor, Licensor hereby grants to Licensee a
limited, non-exclusive, non-sublicenseable, non-transferable, worldwide and
royalty-free license to use any Internet Search Term that is a Trademark or
other form of intellectual property of Licensor expressly for the limited
purpose of managing and controlling web searches through search
engines.  All rights not granted by Licensor in this Section 3.3 are
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    (a) Subject
to any additional restrictions in the Search Terms Use Guidelines, the parties
agree that:

     

    (i) the
Internet Search Terms shall be divided into three
categories:  (A) those terms under the exclusive control of
Licensor, (B) those terms under the exclusive control of Licensee, and
(C) those terms that are shared by Licensee and Licensor; and

     

    (ii) each
party shall bear all costs of bidding on and controlling those terms that are
under that party’s exclusive control, and the parties shall allocate the costs
of bidding on shared terms.

     

    (b) For a
period of six (6) months from the Effective Date, Licensee shall manage Internet
searches using the Internet Search Terms with the same personnel who performed
this function immediately prior to the Effective Date.  Each party
shall bear its own costs for payments made for Internet Search Terms, and each
party shall reimburse the other for all reasonable related
expenses.

     

    3.4 Database
Management.  Licensor
and Licensee shall each manage, maintain and control its own databases of
customer information, subject to the terms and conditions of this Section 3.4
and the Database Use Guidelines set forth on Exhibit Q-1 and according to the
hygiene requirements of Exhibit Q-2.  Exhibit Q may be amended
from time to time by mutual written agreement of the parties.

     

    (a) Subject
to any additional restrictions in the Database Use Guidelines, the parties agree
that:

     

    (i) each
shall have the right to collect, manage and maintain information about customers
and potential customers in their respective databases and to use such
information to communicate with customers and potential customers;
and

     

    (ii) each
shall adhere to database hygiene standards that meet the commercial standards
set by Internet Service Providers, which rules shall become effective on the
Effective Date.

     

    (b) All
database hygiene rules referenced herein shall become binding on the Parties
immediately on the Effective Date.

     

    ARTICLE IV. 

    QUALITY
CONTROL

     

    As an
express condition to, and in material consideration for, the licenses granted to
each of the parties hereunder, Licensee expressly agrees to the following
restrictions as to its use of the Licensed Trademarks, and Licensor expressly
agrees to the following restrictions as to its use of the Assigned
Trademarks.

     

    4.1 Quality
Guidelines.  Licensee shall
not use, reproduce or display any Licensed Trademark, and Licensor shall not
use, reproduce or display any Assigned Trademark, in any manner whatsoever other
than as expressly authorized in the quality control guidelines for
the

     


    
      
        
        

      

      
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    Licensed
Trademarks or Assigned Trademarks, as applicable (“Quality
Guidelines”).  Licensor shall not manufacture, distribute,
market or sell, directly or through third parties, any product or service using
the Licensed Trademarks that does not comply with the applicable Quality
Guidelines.  Licensee shall not manufacture, distribute, market or
sell, directly or through third parties, any product or service using the
Assigned Trademarks that does not comply with the applicable Quality
Guidelines.  The Quality Guidelines may consist of two
elements:  (i) guidelines regarding the nature and quality of
products and services associated with the Licensed Trademarks or Assigned
Trademarks, as applicable, may be contained in “Product Guidelines”; and
(ii) guidelines related to how each Licensed Trademark or Assigned
Trademark, as applicable, is used, presented and displayed (“Display”) may be contained in
“Branding
Guidelines.”  The initial Product Guidelines are attached as
Exhibit H-1, and H-2.  The initial Branding Guidelines for the
Licensed Trademarks are attached as Exhibit I-1.  The initial Branding
Guidelines for the Assigned Trademarks shall be developed by Licensee within six
(6) months after the Effective Date and upon the mutual agreement of the parties
shall be attached as Exhibit I-2.

     

    4.2 Breach of Quality
Guidelines; Updates.  Each party shall
promptly cure any breach of the Quality Guidelines upon notice from the other
party.  Except as provided in this Section 4.2 and subject to all of
the terms and conditions herein, each party shall have the right, from time to
time to modify its respective Branding Guidelines after providing ninety (90)
days’ written notice.  Neither party shall modify its respective
Branding Guidelines with regard to Top-Level Logos before six (6) months after
the Effective Date without the written consent of the other party.

     

    (a) Definitions.

     

    (i) “New Branding Effort” means a
decision by Licensor to revise, modify or otherwise change its Top-Level Logos
in a unified effort across all or substantially all of its business units,
divisions or channels.

     

    (ii) “Top-Level Logos” means the
following Licensed Trademarks and the associated design elements as of the
Effective Date:  FranklinCovey, FranklinCovey and design, Compass
logo, The 7 Habits of Highly Effective People, and PlanPlus.

     

    (iii) “Update” means any change to
the Quality Guidelines.

     

    (b) Licensor
shall have the right to modify or amend the Branding Guidelines to change
Top-Level Logos as part of a New Branding Effort after providing Licensee with
six (6) months’ written notice.  Licensee shall have a reasonable time
to comply with any such Update.  The parties agree that Licensee shall
have acted reasonably if:

     

    (i) with
respect to printed materials in its own inventory, Licensee complies with such
Updates when Licensee, in the Ordinary Course of Business, would re-order such
printed materials from its vendors;

     

    (ii) with
respect to point of sale materials, collateral sale materials, signage and
similar materials on the premises of third parties such as mass-market
retailers,

     


    
      
        
        

      

      
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    Licensee
complies with such Updates when Licensee, in the Ordinary Course of Business,
would be able to replace such materials; and

     

    (iii) with
respect to fixtures, signs and other materials that are part of any retail store
operated by Licensee (including franchised stores) and that represent capital
expenses, Licensee complies with such Updates when Licensee, in the Ordinary
Course of Business, would replace such materials.

     

    (c) Licensee
shall be responsible for all of the costs of complying with any Updates under
Section 4.2(b).

     

    (d) Licensor
may, at its option, accelerate Licensee’s timetable under Section 4.2(b)(iii) if
Licensor agrees to pay for the costs that would be incurred by Licensee to
comply with such Updates.

     

    (e) The
parties may make any other Update to the Quality Guidelines by agreeing in
writing to such Update.  If either party believes an Update is needed
or useful and the parties cannot agree, the matter may be referred to the
Strategic Relationship Committee.

     

    4.3 Conduct of
Business.

     

    (a) Licensee
shall conduct its business in a manner that will reflect positively on the
Licensed Materials, and Licensor shall conduct its business in a manner that
will reflect positively on the Assigned Trademarks.  Licensee and
Licensor, respectively, shall use the Licensed Materials and Assigned Trademarks
in a manner that does not derogate from the other’s rights in such materials or
the value of such materials.  Neither party shall take any action that
would interfere with, diminish or tarnish those rights or that
value.

     

    (b) It shall
be a nonmaterial breach of this Agreement if either party, through the conduct
or statements of its executive leaders, acts in a manner that does not
constitute a Material Breach but that would reasonably be expected to place the
parties in a public controversy that offends large segments of the general
public or brings scorn and ridicule on either party.

     

    4.4 Quality of
Products.  In addition to,
and not in lieu of, any other requirements under this Agreement, (a) all
Licensed Products that use Licensed Materials shall be of such quality as will,
in Licensor’s reasonable judgment, protect and enhance the goodwill, image and
reputation adhering to the Licensed Materials, and (b) all products of
Licensor that use the Assigned Trademarks shall be of such quality as will, in
Licensee’s reasonable judgment, protect and enhance the goodwill, image and
reputation adhering to the Assigned Trademarks.

     

    4.5 Cooperation.  Licensee and
Licensor shall each cooperate with the other, in a commercially reasonable
manner, to permit the other to ascertain that the Licensed Products that use
Licensed Materials or products of Licensor that use the Assigned Trademarks, as
applicable, meet the applicable quality standards.  Such cooperation
shall include, without limitation:  promptly providing the other
party, upon request, with all material communications from third parties
regarding the quality of the Licensed Products or products using the Assigned
Trademarks, as applicable; providing the other party, as applicable,
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    names and
addresses of vendors and suppliers producing Licensed Products or components
thereof to be sold under a Licensed Trademark or producing products or
components thereof to be sold under an Assigned Trademark; and providing the
other party, as applicable, with access to product packaging and distribution
facilities for such Licensed Products or products for reasonable inspection by
Licensor or Licensee.

     

    4.6 Cessation of Licensed
Product Sales; Recall.

     

    (a) Licensor
shall have the right to request that Licensee immediately cease selling a
Licensed Product that uses Licensed Materials or Specialty Product or to revise
or cease use of any or all New Campaign Materials, and Licensee shall promptly
comply, upon written notice to Licensee if the condition of such Licensed
Product, Specialty Product or New Campaign Materials could reasonably be
expected to materially and adversely affect Licensor’s business or reputation or
if there is a reasonable basis for believing that the affected product or
category of products poses a danger to person or property.  If
Licensee has a reasonable basis for disagreeing that the recall of such product
or material is necessary or prudent, Licensee shall promptly notify Licensor in
writing, and the parties shall submit the product or products to an independent
third party for testing, analysis or review.

     

    (b) Licensee
shall have the right to request that Licensor immediately cease selling any
product that uses the Assigned Trademarks, and Licensor shall promptly comply,
upon written notice to Licensor if the condition of such product could
reasonably be expected to materially and adversely affect the Business of
Licensee or Licensee’s reputation or if there is a reasonable basis for
believing that the affected product or category of products poses a danger to
person or property.  If Licensor has a reasonable basis for
disagreeing that the recall of such product or material is necessary or prudent,
Licensor shall promptly notify Licensee in writing, and the parties shall submit
the product or products to an independent third party for testing, analysis or
review.

     

    (c)  If
either party, as applicable, wishes to resume sale of a recalled product, the
other party shall have the right to approve such resumption.

     

    4.7 Samples.  Upon request by
the other party, Licensee shall submit to Licensor specimens of any and all New
Products and New Campaign Materials, and Licensor shall submit to Licensee
specimens of any and all products using the Assigned Trademarks.  If
Licensor or Licensee discovers any improper use of the Licensed Materials or
Assigned Trademarks, respectively, in any such submission, Licensee or Licensor,
as applicable, shall remedy its improper use immediately upon written
notice.

     

    4.8 Inspections.  Licensee and
Licensor shall cooperate, in a commercially reasonable manner, to ensure that
the quality standards applicable to Licensed Products or products using the
Assigned Trademarks are met by permitting the party requesting access and its
agents, subject to a mutually acceptable confidentiality agreement, to inspect
all manufacturing and other facilities related to the manufacture of such
products, no more than once per calendar year, during normal working hours, upon
reasonable written notice to the other party of no less than five (5) Business
Days, and then, only to the extent that Licensee

     


    
      
        
        

      

      
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    or
Licensor, as applicable, is authorized to provide such access and subject to all
applicable safety rules and regulations governing such manufacturing and other
facilities.

     

    4.9 Standards
Compliance.  If Licensee or
Licensor publicly states that any Licensed Product or product using the Assigned
Trademarks, respectively, is compliant with any applicable industry standard,
the party making the public statement shall ensure that such product is fully
compliant with all mandatory requirements of such standard.

     

    ARTICLE V.

    NEW
PRODUCTS AND CAMPAIGNS

     

    5.1 Right to Create New
Products.  Licensee shall
have the right to create, design, manufacture, distribute and sell New Products
and Specialty Products subject to the restrictions and procedures set forth in
this Article V.

     

    (a) Definitions.

     

    (i) “New Campaign Materials” means
any catalog, advertising or other marketing material in any media or format that
uses the Licensed Materials or promotes Licensed Products to the general public,
but not including web pages that are part of the Licensee Websites.

     

    (ii) “New Licensed Product” means a
new product that is not substantially similar to an existing Licensed Product
and that uses Licensed Materials.

     

    (iii) “New Non-Licensed Product”
means a new product that is not substantially the same as an existing Licensed
Product and that does not use Licensed Materials.

     

    (iv) “New Product” means any New
Licensed Product, New Non-Licensed Product or an extension of a Specialty
Product that differs significantly from the Specialty Product.

     

    (v) “Specialty Products” means
those categories of products listed on Exhibit K that are sold by Licensee
as of the Effective Date so long as they do not use the Licensed
Materials.

     

    (b) Licensee
shall have the right, without notice to Licensor, to create, design,
manufacture, distribute and sell Specialty Products and extensions thereof that
do not differ significantly therefrom and that are not associated in any way
with any Competitor or Prohibited Activity.  A Specialty Product
that is sold through the Proprietary Consumer Channels shall be subject to the
Quality Guidelines.  Subject to the terms and conditions of this
Article V, Licensee shall have the right to create, design, manufacture,
distribute and sell New Products and New Campaign Materials so long as such
product or material is not competitive and does not involve any Prohibited
Activity.  For purposes of this Article V, a product is “competitive”
if it (i) could reasonably be deemed a Training-Oriented Product or
Training-Oriented Service, (ii) uses any Trademarks of Day Runner or
Day-Timer, or (iii) uses the Intellectual Property of a
Competitor.  The parties agree that the written agreement with Jean
Chatzky effective May 22, 2008 that is to be assigned to Licensee

     


    
      
        
        

      

      
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    pursuant
to the Asset Purchase Agreement and further described on Exhibit U shall not be
deemed to violate this Agreement.

     

    5.2 Notice of Plans to Release
New Products.  When
Licensee has developed reasonably definite plans to introduce or release any New
Product, Licensee shall notify Licensor of such plans in
writing.  Such notice shall include (a) a complete
description of the product, (b) whether the product is a New Licensed
Product, New Non-Licensed Product, or an extension of a Specialty Product that
differs significantly from the Specialty Product, (c) the expected time
frame for the release of the New Product, and (d) if Licensee in good faith
believes that the parties may differ on whether the New Product would be deemed
competitive or would involve any Prohibited Activity, then also a complete
description of why Licensee believes the New Product is not competitive and
would not involve any Prohibited Activity.  Once released by Licensee,
a New Licensed Product shall be deemed a Licensed Product for all
purposes.

     

    5.3 Comment Rights for New Campaign
Materials.  When Licensee has
developed reasonably definite plans to release any New Campaign Materials,
Licensee shall provide Licensor a version of such materials in substantially
final form.  Licensor shall have the right to make comments about and
recommend changes to all New Campaign Materials, which comments and
recommendations Licensee shall consider in good faith.  Licensor shall
promptly provide its comments and recommendations.

     

    5.4 Approval
Rights.  If, after
reviewing Licensee’s plans for New Products as required in Section 5.2,
Licensor decides that a proposed New Product may be competitive or may be
inconsistent with the values promoted by Licensor and its brands, Licensor may
at its option request additional information, including the information required
in Section 5.2, about such New Product prior to release.  If
Licensor determines in good faith that any New Product or New Campaign Material
is competitive or is inconsistent with the values promoted by Licensor and its
brands, Licensor may refuse to approve the release of such New Product in its
sole discretion.

     

    5.5 Licensor Access to New
Products.  Licensee shall
supply Licensor with all approved New Products subject to the terms and
conditions of the Supply Agreement.  Unless limited by an agreement
between Licensee and its vendors, Licensor may market, distribute and sell any
approved New Product to any customer and in any channel other than the Licensed
Channels.  Without limiting the generality of the previous sentence,
Licensor may sell such products to its Organizational Clients, to corporate
customers in the corporate training market and through its International
Licensees according to the terms and conditions of this Agreement and subject to
Licensee’s agreements.

     

    5.6 Licensee Approval of
Assigned Trademark Use.  Prior to any use
or exploitation by Licensor of any products bearing one or more Assigned
Trademarks, Licensor shall submit to Licensee at least one representative
specimen of such product for approval by Licensee, which approval shall not be
unreasonably withheld.  Unless the parties agree to a shorter period
based upon exceptional circumstances, Licensee shall have ten (10) Business Days
to review and approve any such product specimen.  If Licensee fails to
respond within such ten (10) Business Day period, such product specimen shall be
deemed to have been approved.

     


    
      
        
        

      

      
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    ARTICLE VI.

    ROYALTIES

     

    6.1 Royalty
Rate.  Commencing on the
Effective Date and expiring on the ninety-ninth (99th) year
anniversary thereof, Licensee shall pay Licensor as a royalty the following
amount (“Royalties”)
for each fiscal year of Licensee:  30% of the amount of EBITDA of
Licensee in excess of $13,000,000 each year, up to a maximum per year of
$1,250,000.

     

    (a) If
Licensee sells or otherwise divests a portion of the business to which this
Agreement relates, the Royalties shall be recalculated as follows:

     

    (i) The
parties shall calculate a reset ratio (the “Reset Ratio”) equal to 1.00
minus the quotient of (A) the EBITDA of the portion of the business that is
being sold or divested over the trailing 12-month period divided by (B) the
total EBITDA of Licensee for the same trailing 12-month period.

     

    (ii) The
parties shall determine the minimum sales threshold (the “Reset EBITDA Threshold”) by
multiplying the Reset Ratio by $13,000,000.

     

    (iii) The
parties shall determine the maximum royalties (the “Reset Royalties Maximum”) by
multiplying the Reset Ratio by $1,250,000.

     

    (b) Beginning
on the date on which the sale or divestiture is completed or such other date as
the parties may agree, Licensee shall pay Royalties equal to 30 percent of
EBITDA of Licensee in excess of the Reset EBITDA Threshold each year, up to a
maximum of the Reset Royalties Maximum.

     

    6.2 Royalty Payments and
Reports.  Royalty payments
shall be due and payable within forty-five (45) days after the closing of
Licensee’s books for the immediately preceding fiscal year in which the
Royalties are earned.  All payments of Royalties shall be made to
Licensor in United States dollars, with all amounts converted to dollars as
provided by GAAP consolidation standards.  Such Royalty payment shall
be accompanied by a written report setting forth the calculation of EBITDA for
the fiscal year then ended and certified by the Chief Financial Officer or Chief
Executive Officer of Licensee as being accurate and in compliance with GAAP
consistently applied.  The receipt and acceptance by Licensor of any
such report or of any Royalties paid shall not preclude Licensor from
questioning the correctness thereof and in the event any uncontested mistakes or
inconsistencies are discovered in such statements or payments, they shall
immediately be rectified and the appropriate payment made by
Licensee.

     

    6.3 Records;
Audit.  To assure
compliance with the payment and reporting requirements of this Agreement,
Licensor or Licensee, as applicable, through their independent auditors or
agents, and subject to a non-disclosure agreement, may, upon no less than five
(5) Business Days’ written notice, inspect the other party's applicable records
at their own expense from time to time, and no more frequently than
annually.  In the event any inspection of such party’s records
indicates an underpayment by an amount equal to or greater than five percent
(5%) of any amounts due hereunder, such party shall promptly reimburse the other
party for all reasonable expenses associated with such inspection along with the
deficient amounts and interest calculated thereon at a simple annual rate of ten
percent (10%).

     


    
      
        
        

      

      
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    Each
party shall also undertake, at its own expense, an annual audit of such
applicable records by a certified public accounting firm of national reputation
satisfactory to the other party and shall provide such other party with the
findings thereof within thirty (30) days after the closing of such party’s books
upon fiscal year end.  Each party shall maintain, or cause to be
maintained, all records necessary to confirm that payments and reporting
requirements under this Agreement were properly made.

     

    6.4 Licensee
Option.

     

    (a) If
Licensee enters into and completes a Licensee Change of Control transaction as
provided in Section 7.3, Licensee shall have the right but not the obligation as
provided in this Section 6.4 to convert the license granted in Section 2.1
into a fully-paid up license, provided that all other terms and conditions
relating to the rights granted in Section 2.1 shall continue in full force and
effect (the “Royalty Buy-Out
Option”).  Licensee may exercise the Royalty Buy-Out Option by
providing written notice of its intent to do so at least five (5) Business Days
prior to the closing of a Licensee Change of Control transaction and by paying
the fee as provided herein (the “Option Fee”) at the time of
the closing of the Licensee Change of Control transaction.  The Option
Fee shall be the sum of: (i) the Royalties payable by Licensee for the
prorated portion of the then-current fiscal year and (ii) the product of
the Royalties paid by Licensee for the trailing 12-month period multiplied by
the multiple of EBITDA used by the purchaser to value Licensee.

     

    (b) If
Licensee enters into and completes a transaction that would constitute a
Licensee Change of Control but for the fact that the transaction involves only a
division or other portion of Licensee which is smaller than the size specified
for a Licensee Change of Control, and that fully complies with all of the terms
and conditions of this Agreement, Licensee shall have the right but not the
obligation as provided in this Section 6.4 to reduce permanently the
payments required by Licensee under this Article VI, provided that all other
terms and conditions relating to the rights granted in Section 2.1 shall
continue in full force and effect (the “Partial Royalty Buy-Out
Option”).  Licensee may exercise a Partial Royalty Buy-Out
Option with respect to a division or other portion of Licensee by:
(i) obtaining written consent from Licensor to assign or sublicense a
portion of the rights granted under this Agreement, which consent shall not be
unreasonably withheld; (ii) providing written notice of its intent to
exercise the Partial Royalty Buy-Out Option at least five (5) Business Days
prior to the closing of such transaction; and (iii) paying the fee as
provided herein (the “Partial
Option Fee”) at the time of the closing of the
transaction.  The Partial Option Fee shall be the sum
of:  (A) the Royalties payable by Licensee for the prorated
portion of the division or portion of Licensee to be sold for the then-current
fiscal year and (B) the product of the Royalties paid by Licensee for the
trailing 12-month period that are attributable to the division or portion of
Licensee which is subject to the transaction multiplied by the multiple of
EBITDA used by the purchaser to value the division or portion of Licensee which
is subject to the transaction.  If Licensee elects not to exercise the
Partial Royalty Buyout Option, Licensor may require, as a condition to
consenting to the assignment or sublicense of rights under this Agreement, that
the purchaser of the division or other portion of Licensee exercise the Partial
Royalty Buy-Out Option or enter into a royalty agreement with Licensor with
respect to the acquired division or portion on terms comparable to the terms
contained in this Agreement.

     


    
      
        
        

      

      
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    (c) For
purposes of calculating the multiple of EBITDA used by the purchaser to value
Licensee or a division or portion of Licensee in 6.4(a) and 6.4(b), the parties
shall use the multiple used by the purchaser to value Licensee or the division
or portion of Licensee; provided, however, that if the purchaser uses a
valuation method that does not state a multiple of EBITDA, the parties shall
calculate the multiple by dividing the purchase price by EBITDA in the
corresponding trailing 12-month period.  If the transaction involves
consideration other than cash paid to Licensee, including without limitation any
option, grant, earn-out, future payment or assumption of debt, the multiple
shall include the fair market value of all such consideration in addition to all
cash consideration.

     

    (d) Licensor
agrees that it shall accept the Option Fee or Partial Option Fee in the same
form of consideration as the consideration received by Licensee in the Licensee
Change of Control transaction or in the transaction for the division or portion
of Licensee, as applicable, so long as the forms of consideration contain
substantially identical rights and are provided in substantially identical
proportion to the consideration received by Licensee.  Licensee agrees
that, as an express condition to the right to exercise the Royalty Buy-Out
Option or Partial Royalty Buy-Out Option, Licensee shall have the obligation to
deliver to Licensor the Option Fee or Partial Option Fee in substantially
identical forms of consideration and in substantially identical proportion to
the consideration received by Licensee in the transaction giving rise to the
Licensee’s option under this Section 6.4.

     

    ARTICLE VII.

    GOVERNANCE,
LICENSEE CHANGE OF CONTROL

     

    7.1 Relationship
Managers.  For a period of
two (2) years after the Effective Date, each of Licensee and Licensor shall
appoint a relationship manager who shall serve as its primary point of contact
for the other in all matters relating to this Agreement (a “Relationship
Manager”).  The Relationship Managers shall participate in
regular meetings to review the parties’ performance hereunder, to review the
product plan of Licensee and other Licensed Entities for Licensed Products, to
resolve any issues arising out of the rights granted to, and obligations
undertaken by, the parties hereunder, including any issues relating to Quality
Guidelines, and to otherwise manage the parties’ relationship under this
Agreement.

     

    7.2 Strategic Relationship
Committee.  For a period of
two (2) years after the Effective Date, which period may be extended by mutual
consent of the parties for additional one-year periods, each of Licensor and
Licensee shall appoint at least two senior executives to a joint strategic
relationship committee (the “Strategic Relationship
Committee”).  The Strategic Relationship Committee shall meet
at least twice a year, in person, once at Licensor’s offices in Utah and once at
Licensee’s offices to be designated by Licensee, or by
videoconference.  Among other things, as mutually agreed by the
parties, the Strategic Relationship Committee shall be responsible for resolving
disputes on an informal basis.

     

    7.3 Licensor Right of First
Negotiation.  As soon as
practicable and in any event within five (5) days after Licensee is notified of
or learns that it has received a serious expression of interest to consider a
Licensee Change of Control transaction from any third party other than a
Competitor or Prohibited Party (a “Permitted Offeror”), Licensee
shall notify Licensor in writing of such indication of
interest.  Licensor shall have fifteen (15)

     


    
      
        
        

      

      
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    Business
Days from the date of such notice to notify Licensee in writing that it will
enter into exclusive negotiations with Licensee for a Licensee Change of Control
transaction with Licensee.  Upon receipt of such written notice from
Licensor, the parties shall engage in exclusive, good faith discussions
regarding a possible Licensee Change of Control transaction by Licensor for a
period of at least forty-five (45) days unless, as a result of a bona fide
requirement imposed on Licensee by the Permitted Offeror, a shorter period is
necessary, in which case for the period of time required to comply with the
condition of the Permitted Offeror’s offer but in no event shorter than fifteen
(15) Business Days (the “Negotiation
Period”).  If Licensor fails to provide written notice to
Licensee within the required fifteen (15) day response period or if the parties
fail to agree in principle to a Licensee Change of Control transaction within
the Negotiation Period, Licensee may thereafter negotiate and/or enter into a
final, binding agreement with respect to a Change in Control transaction with
the Permitted Offeror or a wholly owned subsidiary of the Permitted Offeror,
provided, however, the Licensee shall not enter into any agreement for a
Licensee Change of Control transaction on terms equal to or less favorable to
Licensee than the final written offer, if any, made by Licensor.  If
Licensee is notified of or learns that it has received a serious expression of
interest to consider a Licensee Change of Control transaction from any
additional third party other than a Competitor or Prohibited Party or if the
Permitted Offeror materially alters the terms of its offer to the detriment of
Licensee, Licensee shall notify Licensor as provided in the first sentence of
this Section 7.3 and shall follow all the procedures set forth
herein.

     

    ARTICLE VIII.

    EFFECTIVENESS,
TERM AND TERMINATION

     

    8.1 Effectiveness;
Term.  This Agreement
shall become effective immediately upon the closing of the transactions
contemplated in the Asset Purchase Agreement, which shall be the date first set
forth above (the “Effective
Date”), and shall continue in full force and effect unless and until
terminated as provided in this Article VIII.

     

    8.2 Termination for
Cause.

     

    (a) Each
party shall have the right to terminate this Agreement in the event of a
Material Breach that is not cured within ninety (90) days after the
non-breaching party provides written notice to the other party of the breach,
provided, however, that the running of the ninety (90) day period shall stop if,
during such ninety (90) day period, either party elects to commence non-binding
arbitration as provided in Section 12.7(d) with respect to whether
(i) a Material Breach has occurred under this Agreement or
(ii) any Material Breach that has occurred has been
cured.  Immediately upon the delivery of the written opinion of the
arbitrator, if unfavorable to the breaching party, the running of the ninety
(90) day cure period shall resume and shall expire at the end of the 90th day so
counted or at the end of the 10th Business Day after the ninety (90) day cure
period resumed, whichever is later.  A party may exercise its option
to use non-binding arbitration only once for each alleged Material
Breach.

     

    (b) Licensor
may terminate this Agreement effective immediately upon written notice by
Licensor if Licensee enters into a binding agreement for a Licensee Change of
Control transaction that is (i) in breach of Sections 7.3 or 12.1, or
(ii) to a Competitor or a Prohibited Party.

     


    
      
        
        

      

      
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    8.3 Partial
Termination.  If Licensee
releases any product or marketing material that, as a result of Licensee’s
involvement with any Prohibited Party, has a material adverse effect on the
Business of Licensee or on the business of Licensor in any particular geographic
area, product category or channel partner, Licensor shall have the right to
amend Exhibits A, C, E and F to terminate Licensee’s rights under this Agreement
with respect to the particular geographic area, product category or channel
partner thus affected, provided that Licensor shall have no rights to amend such
exhibits under this Section 8.3 for the effect of any New Products or New
Campaign Materials released in compliance with all of the terms and conditions
of Article V.  Licensor shall provide Licensee with ninety (90) days’
written notice of its intent to exercise its rights under this Section
8.3.  The amended Exhibit or Exhibits shall become effective at the
end of such ninety (90) day period unless the material adverse effect is cured
prior to that date.  At any time during the ninety (90) day period, a
party may elect to commence non-binding arbitration as provided in
Section 12.7(d) with respect to whether (i) the alleged breach by Licensee
gives rise to the right of partial termination or (ii) the material adverse
affect has been cured.  The running of the ninety (90) day period
shall stop if and when a party elects to commence non-binding
arbitration.  Immediately upon the delivery of the written opinion of
the arbitrator, if unfavorable to Licensee, the running of the ninety (90) day
cure period shall resume and shall expire at the end of the 90th day so counted
or at the end of the 10th Business Day after the ninety (90) day cure period
resumed, whichever is later.  A party may exercise its option to use
non-binding arbitration only once for each incident or series of related
incidents giving rise to a claim for partial termination.

     

    8.4 Effects of
Termination.

     

    (a) For Cause by
Licensor.  Upon termination
of this Agreement by Licensor in accordance with Section 8.2 or otherwise upon
expiration of this Agreement, all rights and licenses granted to Licensee
hereunder (including any Sublicense Agreements executed pursuant hereto) shall
immediately terminate, and Licensee and any Licensed Entities, as applicable,
subject to the rights granted in Sections 8.5 and 8.6, shall cease all use of
the Licensed Materials, including any variations used in domain names and
Internet Search Terms that are confusingly similar to the Licensed Trademarks or
are derivative works of the Licensed Copyrights.  Notwithstanding the
foregoing, Licensee may use the Licensed Materials or Assigned Trademarks, as
applicable, for historical reference, including to keep records and other
historical or archived documents (including customer contracts and marketing
materials) containing or referencing the Licensed
Trademarks.  Termination of this Agreement by Licensor in accordance
with Section 8.2 shall be without prejudice to any other right or remedy under
this Agreement or applicable law.  The license granted to Licensor in
Section 2.12 shall convert to a fully paid-up, perpetual license upon
termination of this Agreement for cause by Licensor in accordance with Section
8.2.

     

    (b) For Cause by
Licensee.  Upon termination of this Agreement by Licensee in
accordance with Section 8.2 or otherwise upon expiration of this Agreement, all
rights and licenses granted to Licensor hereunder (including any Sublicense
Agreements executed pursuant hereto) shall immediately terminate, and Licensor
shall cease all use of the Assigned Trademarks.  Notwithstanding the
foregoing, Licensor may use the Assigned Trademarks for historical reference,
including to keep records and other historical or archived documents (including
customer contracts and marketing materials) containing or
referencing

     


    
      
        
        

      

      
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    the
Assigned Trademarks.  Termination of this Agreement by Licensee in
accordance with Section 8.2 shall be without prejudice to any other right or
remedy under this Agreement or applicable law.  The license granted to
Licensee in Section 2.1 shall convert to a royalty-free, perpetual license upon
termination of this Agreement for cause by Licensee in accordance with Section
8.2.

     

    8.5 Termination
Inventory.

     

    (a) Within
thirty (30) days after the expiration or termination of this Agreement which is
not the subject of a dispute resolution process of the parties, Licensee shall
prepare and deliver to Licensor a written summary of Licensed Products remaining
in inventory, including a complete and accurate schedule as of the date of
expiration or termination of all completed Licensee Products on hand, work in
process; and all packaging materials, advertising and promotional materials and
other documents or items that bear the Licensed Materials in Licensee’s
possession or control or in the process of manufacture for
Licensee.

     

    (b) Within
thirty (30) days after the expiration or termination of this Agreement, Licensor
shall prepare and deliver to Licensee a written summary of products using the
Assigned Materials remaining in inventory, including a complete and accurate
schedule as of the date of expiration or termination of all such completed
products on hand, work in process; and all packaging materials, advertising and
promotional materials and other documents or items that bear the Assigned
Trademarks in Licensor’s possession or control or in the process of manufacture
for Licensor.

     

    (c) Each
party shall have the option, exercisable within ten (10) days after receipt of
the written inventory received from Licensee or Licensor, as applicable, to
purchase all or any portion of the items in the inventory of the other party for
a purchase price equal to the other party’s cost.  Such party shall
deliver to the other party the items in the inventory to be purchased, within
five (5) days after receipt of notice exercising its option to purchase, and the
purchasing party shall pay the purchase price within thirty (30) days after
receipt of all items purchased.

     

    8.6 Termination Inventory
Sales.  For a period of
six (6) months after the expiration of a party’s option to purchase inventory
under Section 8.5, the other party may sell finished Licensed Products and
products using the Assigned Trademarks, as applicable, remaining in inventory or
finished work in process in the remaining inventory, on a non-exclusive basis,
in accordance with all of the terms of this Agreement, including compliance with
the Quality Guidelines.  Any items in the inventory not sold and
remaining after the selling period provided for in this Section 8.5 shall be
delivered to the other party, disposed of, or destroyed in accordance with the
other party’s written instructions.

     

    8.7 Survival.  The following
provisions of this Agreement shall survive termination of this Agreement for any
reason:  Articles I, VIII, IX, X, XI, and XII and Sections 2.22
and  2.23.  Termination of this Agreement by a party shall
be without prejudice to any other right or remedy of such party under this
Agreement or applicable law.

     


    
      
        
        

      

      
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    ARTICLE IX.

    INDEMNIFICATION

     

    9.1 Indemnification by
Licensee.  Subject to the
limitations set forth in Section 10.2, Licensee shall, at its own expense,
indemnify, defend, and hold harmless Licensor and its Affiliates, and their
respective officers, directors, employees and representatives from and against
any claim, demand, cause of action, liability, expense (including attorney’s
fees and costs), or damages to the extent arising from a third-party claim with
respect to:

     

    (a) Licensed
Products, including any claim alleging product liability, injury to property or
Person or infringement of Intellectual Property Rights (except to the extent
that Licensor is obligated to provide indemnification for such infringement
claim under Section 9.2(a));

     

    (b) use of
any Licensed Trademark by Licensee or any Sublicensed Entity (except (i) to
the extent that Licensor is obligated to provide indemnification for such claim
under Section 9.2(a) and (ii) to the extent the Sublicensed Entity is an
Existing Sublicensed Entity and the act or acts giving rise to indemnification
were not reasonably foreseeable);

     

    (c) any
breach of this Agreement (or any applicable Sublicense Agreement) by Licensee or
by any New Sublicensed Entity;

     

    (d) any
breach of this Agreement (or any applicable Sublicense Agreement) by any
Existing Sublicensed Entity if such breach is reasonably foreseeable;
and

     

    (e) any
material violation by Licensee of a domestic or international law or regulation
relating to relating to consumer privacy or communication with consumers through
e-mail.

     

    9.2 Indemnification by
Licensor.  Subject to the
limitations set forth in Section 10.2, Licensor shall, at its own expense,
indemnify, defend, and hold harmless Licensee and its Affiliates, and their
respective officers, directors, employees and representatives, from and against
any claim, demand, cause of action, liability, expense (including attorney’s
fees and costs), or damages to the extent arising from a third-party claim with
respect to:

     

    (a) Licensee’s
alleged infringement of third-party copyright or trademark rights arising from
Licensee’s Display or other commercial exploitation of registered Licensed
Trademarks or Licensed Copyrights in the Licensed Territory except to the extent
that such infringement arises from Licensee’s non-compliance with Licensor’s
requirements for Display of the Licensed Trademarks or from any Licensed
Trademark or Licensed Copyright that is licensed to Licensor by a third party;


     

    (b) use of
any Assigned Trademark or Licensed Copyright by Licensor or any Sublicensed
Entity (except to the extent that Licensee is obligated to provide
indemnification for such claim under Section 9.1(a));

     

    (c) any
breach by Licensor of this Agreement; and

     


    
      
        
        

      

      
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    (d) any
material violation by Licensor of a domestic or international law or regulation
relating to relating to consumer privacy or communication with consumers through
e-mail.

     

    9.3 Procedures.  The party seeking
to be indemnified pursuant to this Article IX (as applicable, the “Indemnified Party”) shall be
entitled to indemnification hereunder only (a) if it gives written notice
to the party obligated to provide such indemnification hereunder (the “Indemnifying Party”) of any
claims, suits or proceedings by third parties which may give rise to a claim for
indemnification with reasonable promptness after receiving written notice of
such claim (or, in the case of a proceeding, is served in such proceeding);
provided, however, that failure to give such notice shall not relieve the
Indemnifying Party of its obligation to provide indemnification, except if and
to the extent that the Indemnifying Party is actually and materially prejudiced
thereby, and (b) once the Indemnifying Party confirms in writing to the
Indemnified Party that it is prepared to assume its indemnification obligations
hereunder, the Indemnifying Party has sole control over the defense of the
claim, at its own cost and expense; provided, however, that the Indemnified
Party shall have the right to be represented by its own counsel at its own cost
in such matters.  Notwithstanding the foregoing, the Indemnifying
Party shall not settle or dispose of any such matter in any manner which would
require the Indemnified Party to make any admission, or to take any action
without the prior written consent of the Indemnified Party, which shall not be
unreasonably withheld or delayed.  Each party shall reasonably
cooperate with the other party and its counsel in the course of the defense of
any such suit, claim or demand, such cooperation to include using reasonable
efforts to provide or make available documents, information and witnesses and to
mitigate damages.

     

    ARTICLE X.

    REPRESENTATIONS,
LIMITATION OF WARRANTY AND LIABILITY

     

    10.1 Warranties.

     

    (a) Exhibit A
sets forth, as of the date hereof, an accurate and complete list of the Licensed
Trademarks.

     

    (b) Except as
set forth in Exhibit S, to Licensor’s Knowledge, the registered Licensed
Trademarks are valid and enforceable.  To Licensor’s Knowledge,
Licensor has received no notice or claim challenging or questioning the validity
or enforceability of the Licensed Trademarks.

     

    (c) Except as
set forth in Exhibit S, Licensor has timely paid all filing, examination,
issuance, post registration and maintenance fees, annuities and the like
associated with or required with respect to the material registered Licensed
Trademarks.

     

    (d) Except as
set forth in Exhibit S, to Licensor’s Knowledge, none of the registered
Licensed Trademarks infringes upon, misappropriates, violates, dilutes or
constitutes the unauthorized use of any Intellectual Property Rights of any
third party which could reasonably be expected to have a material adverse
effect, and, except as set forth in Exhibit S, to Licensor’s Knowledge,
Licensor has not received any notice or claim asserting that any such
infringement, misappropriation, violation, dilution or unauthorized use
is

     


    
      
        
        

      

      
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    occurring
or has occurred, nor is there any reasonable basis therefor, which could
reasonably be expected to have a material adverse effect.  No Licensed
Materials is subject to any outstanding order, judgment, decree or stipulation
restricting the use thereof by Licensor.  To Licensor’s Knowledge, no
third party is misappropriating, infringing, diluting or violating any Licensed
Trademark which could reasonably be expected to have a material adverse
effect.

     

    (e) EXCEPT AS
SET FORTH IN THIS SECTION 10.1, LICENSOR HEREBY SPECIFICALLY DISCLAIMS ANY
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY, ENFORCEABILITY,
TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTIES THAT MAY
ARISE DUE TO COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, WHETHER
RELATED TO THE LICENSED MATERIALS OR OTHERWISE.

     

    10.2 Damages.

     

    (a) NOTWITHSTANDING
ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES,
OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS
OR OTHER REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE LIABILITY, OR LIABILITY FOR LOSS OF PROFITS, BUSINESS
INTERRUPTION, DIMINUTION IN VALUE, OR LOSS OF GOODWILL ARISING FROM OR RELATING
TO THIS AGREEMENT OR THE LICENSED MATERIALS, EVEN IF THE OTHER PARTY IS
EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

     

    (b) IF
LICENSOR OR ANY OF ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES AND REPRESENTATIVES (EACH A “LICENSOR PARTY” AND COLLECTIVELY THE
“LICENSOR PARTIES”), IS HELD OR FOUND TO BE LIABLE TO LICENSEE OR ANY OF ITS
AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND
REPRESENTATIVES (EACH A “LICENSEE PARTY” AND COLLECTIVELY THE “LICENSEE
PARTIES”), FOR ANY MATTER RELATING TO OR ARISING FROM A BREACH OF ANY
REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT (A ”GLOBAL CAP
LOSS”), WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, NEGLIGENCE, TORT OR
OTHERWISE, THE AMOUNT OF DAMAGES RECOVERABLE, IN THE AGGREGATE, FROM THE
LICENSOR PARTIES WILL NOT EXCEED $3,200,000 MINUS THE SUM OF (I) THE
AGGREGATE AMOUNT OF GLOBAL CAP LOSSES ARISING UNDER THIS AGREEMENT AND PAID BY
ANY LICENSOR PARTY TO ANY LICENSEE PARTY, AND (II) THE AGGREGATE AMOUNT OF
ANY LIABILITIES FOR DAMAGES ARISING FROM A BREACH OF ANY REPRESENTATION OR
WARRANTY CONTAINED IN ANY ANCILLARY AGREEMENT PAID BY ANY LICENSOR PARTY TO ANY
LICENSEE PARTY.

     

    (c) IF ANY
LICENSOR PARTY IS HELD OR FOUND TO BE LIABLE TO ANY LICENSEE PARTY FOR ANY
MATTER RELATING TO OR ARISING FROM A BREACH OF ANY COVENANT OR AGREEMENT
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    AGREEMENT,
OTHER THAN A BREACH OF REPRESENTATION OR WARRANTY OR A PROMISE TO PAY FOR
SERVICES DELIVERED AND SUBJECT TO SECTION 10.2(f) (A “COMMERCIAL LOSS”) WHETHER
BASED ON AN ACTION OR CLAIM IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, THE
AMOUNT OF DAMAGES RECOVERABLE FROM THE LICENSOR PARTIES WILL NOT EXCEED $500,000
FOR EACH INCIDENT OR SERIES OF RELATED INCIDENTS GIVING RISE TO SUCH LIABILITY,
PROVIDED THAT THIS SECTION 10.2(c) SHALL NOT APPLY TO ANY CLAIM ARISING FROM A
BREACH OF SECTION 2.22 OF THIS AGREEMENT.

     

    (d) IF ANY
LICENSEE PARTY IS HELD OR FOUND TO BE LIABLE TO ANY LICENSOR PARTY FOR ANY
MATTER RELATING TO OR ARISING FROM A COMMERCIAL LOSS, WHETHER BASED ON AN ACTION
OR CLAIM IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, THE AMOUNT OF DAMAGES
RECOVERABLE FROM THE LICENSEE PARTIES WILL NOT EXCEED $500,000 FOR EACH INCIDENT
OR SERIES OF RELATED INCIDENTS GIVING RISE TO SUCH LIABILITY, PROVIDED THAT THIS
SECTION 10.2(d) SHALL NOT APPLY TO ANY CLAIM ARISING FROM A BREACH OF SECTION
2.23 OF THIS AGREEMENT.

     

    (e) NEITHER
PARTY SHALL HOLD THE OTHER PARTY LIABLE FOR ANY COMMERCIAL LOSS THAT ARISES AS A
RESULT OF THE PERFORMANCE OF A THIRD PARTY TO WHOM A PARTY HAS REASONABLY
DELEGATED ITS DUTIES UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LOSS
RESULTING FROM THE HOSTING OR MAINTENANCE OF THE LICENSOR WEBSITE BY A THIRD
PARTY, UNLESS SUCH LOSS ARISES AS A RESULT OF THE DELEGATING PARTY’S WILLFUL
MISCONDUCT OR FRAUD.  EACH PARTY HEREBY WAIVES ANY CLAIM AGAINST THE
OTHER PARTY ARISING FROM SUCH A COMMERCIAL LOSS, AND AGREES TO COOPERATE IN GOOD
FAITH TO SEEK RECOVERY AGAINST THE THIRD PARTY.

     

    (f) THE
PROVISIONS OF SECTIONS 10.2(b), (c) AND (d) SHALL NOT APPLY TO ANY CLAIM BY ONE
PARTY TO ENFORCE A PROMISE BY THE OTHER PARTY TO PAY FOR SERVICES OR RIGHTS
PROVIDED PURSUANT TO THIS AGREEMENT OR PURSUANT TO ANY ANCILLARY AGREEMENT,
INCLUDING WITHOUT LIMITATION THE PROMISE TO PAY ROYALTIES PURSUANT TO
ARTICLE VI OF THIS AGREEMENT, THE PROMISE TO MAKE PAYMENTS IN EXCESS OF THE
1% CAPS IN SECTION 2.22 OF THIS AGREEMENT, THE PROMISES OF EACH PARTY TO MAKE
PAYMENTS TO THE OTHER PARTY FOR GOODS PROVIDED PURSUANT TO THE SUPPLY AGREEMENT,
AND THE PROMISE BY LICENSEE TO MAKE PAYMENTS TO LICENSOR FOR SERVICES PROVIDED
UNDER THE SHARED SERVICES AGREEMENT.

     

    ARTICLE XI.

    CONFIDENTIAL
INFORMATION

     

    11.1 Definition.  “Confidential Information”
means all information disclosed by one party (the “Discloser”) to any other
party (the “Recipient”)
(in writing, orally or in any other form) that is designated, at or before the
time of disclosure, as confidential.  Confidential

     


    
      
        
        

      

      
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    Information
does not include information or material that (a) is now, or hereafter
becomes, through no act or failure to act on the part of the Recipient,
generally known or available; (b) is or was known by the Recipient at or
before the time such information or material was received from the Discloser, as
evidenced by a contemporaneous writing; (c) is furnished to the Recipient
by a third party that is not under an obligation of confidentiality to the
Discloser with respect to such information or material; or (d) is
independently developed by the Recipient, as evidenced by a contemporaneous
writing.

     

    11.2 Restrictions on
Use.  The Recipient
shall hold Confidential Information in confidence and shall not disclose to
third parties or use such information for any purpose whatsoever other than as
necessary in order to fulfill its obligations or exercise its rights under this
Agreement.  The Recipient shall take all reasonable measures to
protect the confidentiality of the other party’s Confidential Information in a
manner that is at least protective as the measures it uses to maintain the
confidentiality of its own Confidential Information of similar
importance.  Notwithstanding the foregoing, the Recipient may disclose
the other party’s Confidential Information (a) to employees and consultants
that have a need to know such information, provided that each such employee and
consultant is under a duty of nondisclosure that is consistent with the
confidentiality and nondisclosure provisions herein, and (b) to the extent
the Recipient is legally compelled to disclose such Confidential Information,
provided that the Recipient shall give advance notice of such compelled
disclosure to the other party, and shall cooperate with the other party in
connection with any efforts to prevent or limit the scope of such disclosure or
use of the Confidential Information.

     

    11.3 Nonsolicitation.  During the term
of this Agreement, neither party shall, directly or indirectly, (a) solicit
or hire, or assist any other Person in soliciting or hiring (i) any Person
who is then, or within the previous twelve (12) month period was, employed by
the other party or (ii) any Person who is then in the process of being
recruited by Licensor, or (b) induce any such employee to terminate his or
her employment with the other party.

     

    ARTICLE XII.

    MISCELLANEOUS

     

    12.1 Assignment.  Subject
to all of the terms and conditions of this Agreement, Licensee may assign this
Agreement only as part of a Licensee Change of Control transaction permitted
under Section 7.3, provided that Licensee shall not assign this Agreement to any
Person that is a Competitor or a Prohibited Party.  Subject to all of
the terms and conditions of this Agreement, Licensor may assign this Agreement
(a) to a wholly owned subsidiary of Licensor, the parent corporation of
Licensor, or an entity wholly owned by Licensor’s parent corporation or (b) to
any entity that, as a result of a Licensor Change of Control transaction, is a
successor in interest to Licensor, to Licensor’s parent corporation or to a
wholly owned subsidiary of Licensor’s parent.  No attempted assignment
of the Agreement by either party shall be effective unless and until the
assignee expressly agrees in writing that it will assume all of the obligations
of this Agreement and all of the material provisions of the Ancillary Agreements
then in effect.  Except as provided herein, any purported assignment,
sale, transfer, sublicense, delegation or other disposition by either party
shall be null and void.  Any attempt by Licensee to assign this
Agreement except as provided herein shall be void and shall be deemed a Licensee
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    12.2 Injunctive
Relief.  The parties
acknowledge that a breach of their obligations under this Agreement, would cause
the non-breaching party irreparable damage.  Accordingly, each party
agrees that in the event of such breach or threatened breach, in addition to
remedies at law, the non-breaching party shall have the right to injunctive or
other equitable relief, without the necessity of posting any bond or other
security, to prevent breaching party’s violations of its obligations hereunder,
in addition to any other remedy to which they may be entitled, at law or in
equity.

     

    12.3 Severability.  If any provision
of this Agreement, or the application thereof to any Person, place or
circumstance, are held by a court of competent jurisdiction to be invalid, void
or otherwise unenforceable, such provision shall be enforced to the maximum
extent possible so as to effect the intent of the parties, or, if incapable of
such enforcement, shall be deemed to be deleted from this Agreement, and the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect.

     

    12.4 Interpretation.  Unless otherwise
indicated to the contrary in this Agreement by the context or use
thereof:  (a) the words “herein,” “hereto,” “hereof” and words of
similar import refer to this Agreement as a whole and not to any particular
Section, Article or paragraph hereof; (b) references in this Agreement to
Sections, Articles or paragraphs refer to sections, articles or paragraphs of
this Agreement; (c) headings of Sections are provided for convenience only
and shall not affect the construction or interpretation of this Agreement;
(d) words importing the masculine gender shall also include the feminine
and neutral genders, and vice versa; (e) words importing the singular shall
also include the plural, and vice versa; (f) the words “include”,
“includes” and “including” shall be deemed to be followed in each case by the
phrase “without limitation”; (g) any reference to a statute refers to the
statute, any amendments or successor legislation, and all regulations
promulgated under or implementing the statute, as in effect from time to time;
(h) any reference to an agreement, contract or other document as of a given
date means the agreement, contract or other document as amended, supplemented
and modified from time to time through such date; (i) ”$” and “Dollars”
mean the lawful currency of the United States of America and any threshold set
in Dollars herein shall be deemed to refer to the equivalent amount in any other
currency, as the context may require; and (j) ”or” shall include the
meanings “either” or “both.”

     

    12.5 Amendment and
Waiver.  This Agreement
may not be amended, a provision of this Agreement or any default,
misrepresentation or breach of warranty or agreement under this Agreement may
not be waived, and a consent may not be rendered, except in a writing executed
by the party against which such action is sought to be
enforced.  Neither the failure nor any delay by any Person in
exercising any right, power or privilege under this Agreement will operate as a
waiver of such right, power or privilege, and no single or partial exercise of
any such right, power or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power or
privilege.  In addition, no course of dealing between or among any
Persons having any interest in this Agreement will be deemed effective to modify
or amend any part of this Agreement or any rights or obligations of any Person
under or by reason of this Agreement.  The rights and remedies of the
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    12.6 Governing
Law.  The domestic law,
without regard to conflicts of laws principles, of the State of Utah will govern
all questions concerning the construction, validity and interpretation of this
Agreement and the performance of the obligations imposed by this
Agreement.

     

    12.7 Consent to
Jurisdiction.

     

    (a) Each of
the parties submits (and Licensee shall cause all Licensed Entities sublicensed
hereunder irrevocably to submit on or prior to the execution of the relevant
Sublicense Agreement) to the exclusive jurisdiction of any state or federal
court sitting in Salt Lake City, Utah, in any action or proceeding arising out
of or relating to this Agreement or any Sublicense Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court.  Each party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other
court.  Each of the parties waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect
to any such action or proceeding.

     

    (b) Licensee
further agrees, and Licensee agrees to cause the Licensed Entities to agree, and
Licensor further agrees, that service of any process, summons, notice or
document by U.S. registered mail to such Person’s respective address set forth
above shall be effective service of process for any action, suit or proceeding
in the state and federal courts located in the State Utah with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding clause (a).  In addition, Licensee
irrevocably and unconditionally waives, and Licensee agrees to cause the
Licensed Entities irrevocably and unconditionally to waive, and Licensor
irrevocably and unconditionally waives, application of the procedures for
service of process pursuant to the Hague Convention for Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters.

     

    (c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY SUBLICENSE AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT
MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN
THIS SECTION.

     

    (d) Either
party may refer any of the disputes described in Section 8.2(a) and
Section 8.3 as subject to possible arbitration to non-binding arbitration
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    arbitrator
in accordance with the CPR Rules for Non-Administered Arbitration then currently
in effect.  The arbitrator shall deliver a written ruling on the
disputed question or questions within one hundred twenty (120) days from the
date on which the arbitration is commenced.  If either party disagrees
with the opinion delivered by the arbitrator, such party may initiate litigation
subject to all of the terms and conditions of this
Agreement.  Notwithstanding the foregoing, nothing in this
Section 12.7(d) shall limit a party’s right to bring any action for
injunctive relief under Section 12.2 at any time.

     

    12.8 Independent
Contractors.  Each party is an
independent contractor and neither party’s personnel are employees or agents of
the other party for federal, state or other taxes or any other purposes
whatsoever, and are not entitled to compensation or benefits of the
other.  Except for the specific obligations set forth in this
Agreement, nothing hereunder shall be deemed to constitute, create, give effect
to or otherwise recognize a joint venture, partnership or business entity of any
kind, nor shall anything in this Agreement be deemed to constitute either party
the agent or representative of the other.

     

    12.9 Notices.  All notices,
demands and other communications to be given or delivered under or by reason of
the provisions of this Agreement will be in writing and will be deemed to have
been given (a) when delivered if personally delivered by hand,
(b) when received if sent by a nationally recognized overnight courier
service (receipt requested), (c) five business days after being mailed, if
sent by first class mail, return receipt requested, or (d) when receipt is
acknowledged by an affirmative act of the party receiving notice, if sent by
facsimile, telecopy or other electronic transmission device (provided that such
an acknowledgement does not include an acknowledgment generated automatically by
a facsimile or telecopy machine or other electronic transmission
device).  Notices, demands and communications to Licensee and Licensor
will, unless another address is specified in writing, be sent to the address
indicated below:

     

    
      	
               
      

            	
              If
      to Licensor:

            	
              Franklin
      Covey Co.

            


    

    
      	
               
      

            	
              2200
      West Parkway Blvd.

            


    

    
      	
               
      

            	
              Salt
      Lake City, Utah 84119

            


    

    
      	
               
      

            	
              Attn:  Bob
      Whitman

            


    

    
      	
               
      

            	
              Facsimile
      No.:  (801) 817-8069

            


    

     

    
      	
                          With
      a copy to (which shall not constitute notice):

            	
            


    

     

    
      	
               
      

            	
              Dorsey &
      Whitney LLP

            


    

    
      	
               
      

            	
              136
      South Main Street, Suite 1000

            


    

    
      	
               
      

            	
              Salt
      Lake City, Utah 84010

            


    

    
      	
               
      

            	
              Attn:  Nolan S.
      Taylor

            


    

    
      	
               
      

            	
              Facsimile
      No. (801) 933-7373

            


    

     

    
      	
               
      

            	
              If
      to Licensee:

            	
              Franklin
      Covey Products, LLC

            


    

    
      	
               
      

            	
              2250
      West Parkway Blvd.

            


    

    
      	
               
      

            	
              Salt
      Lake City, Utah 84119

            


    

    
      	
               
      

            	
              Attn:  Sarah
      Merz

            


    

    
      	
               
      

            	
              Facsimile
      No.:  (801) 817-8069

            


    

     


    
      
        
        

      

      
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      With
      a copy to (which shall not constitute notice):

            	
            


    

     

    
      	
               
      

            	
              Snell &
      Wilmer L.L.P.

            


    

    
      	
               
      

            	
              15
      West South Temple, Suite 1200

            


    

    
      	
               
      

            	
              Salt
      Lake City, Utah 84101

            


    

    
      	
               
      

            	
              Attn:  John G.
      Weston

            


    

    
      	
               
      

            	
              Facsimile
      No. (801) 257-1800

            


    

     

    12.10 Publicity.  The parties shall
use reasonable efforts to cooperate in issuing a joint press release upon
execution of this Agreement and in issuing further press releases related to
this Agreement.  If at any time disclosure regarding this Agreement is
required under public reporting requirements of applicable securities laws and
the parties are not able to agree on the content and manner of issuing such
disclosure, Licensor will be authorized to issue a sole
release.  Prior to issuing such a sole release, Licensor shall provide
Licensee with an opportunity to review and comment on a draft of such release
and will consider in good faith any comments that Licensee communicates in a
timely fashion on such draft press release.

     

    12.11 Complete
Agreement.  This
Agreement and all Exhibits and Schedules attached hereto and, when executed and
delivered, the Ancillary Agreements, contain the complete agreement between the
parties and supersede any prior understandings, agreements or representations by
or between the parties, written or oral.  Licensee acknowledges that
Licensor has made no representations, warranties, agreements, undertakings or
promises except for those expressly set forth in this Agreement or in agreements
referred to herein that survive the execution and delivery of this
Agreement.

     

    12.12 Signatures,
Counterparts.  This Agreement
may be executed in one or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same instrument.  A facsimile signature
will be considered an original signature.

     

    12.13 Construction.  The
parties and their respective counsel have participated jointly in the
negotiation and drafting of this Agreement.  In addition, each of the
parties acknowledges that it is sophisticated and has been advised by
experienced counsel and, to the extent it deemed necessary, other advisors in
connection with the negotiation and drafting of this Agreement.  The
parties intend that each representation, warranty and agreement contained in
this Agreement will have independent significance.  If any party has
breached any representation, warranty or agreement in any respect, the fact that
there exists another representation, warranty or agreement relating to the same
subject matter (regardless of the relative levels of specificity) that the party
has not breached will not detract from or mitigate the fact that the party is in
breach of the first representation, warranty or agreement.  The
headings preceding the text of articles and sections included in this Agreement
and the headings to the schedules and exhibits are for convenience only and are
not be deemed part of this Agreement or given effect in interpreting this
Agreement.  References to sections, articles, schedules or exhibits
are to the sections, articles, schedules and exhibits contained in, referred to
or attached to this Agreement, unless otherwise specified.  The word
“including” means “including without limitation.”  A statement that an
action has not occurred in the past means that it is also not presently
occurring.  When any party may take any permissive action, including
the granting of a consent, the waiver of any provision of this Agreement
or

     


    
      
        
        

      

      
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    otherwise,
whether to take such action is in its sole and absolute
discretion.  The use of the masculine, feminine or neuter gender or
the singular or plural form of words will not limit any provisions of this
Agreement.  A statement that an item is listed, disclosed or described
means that it is correctly listed, disclosed or described, and a statement that
a copy of an item has been delivered means a true and correct copy of the item
has been delivered.

     

     

    


     

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    IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date first
set forth above.

     

    
      	
              FRANKLIN
      COVEY CO.

            	
              FRANKLIN
      COVEY PRODUCTS, LLC

            


    

     

     

    
      
        	
                By:

              	  
      /s/ Robert A. Whitman	 
      	
                By:

              	   
      /s/ Sarah Merz    
	
                Name:

              	 
      Robert A. Whitman	 
      	
                Name

              	 
      Sarah Merz
	
                Title:

              	 
      Chairman and Chief Executive Officer	 
      	
                Title:

              	 
      Chief Executive Officer and
President