Exhibit 10.50


 


Certain confidential information contained in this
document, marked by brackets, is filed with the U.S. Securities and Exchange
Commission pursuant to Rule 24-b of the Securities Exchange Act of 1934, as
amended.


 


CONFIDENTIAL


EXECUTION
COPY


 


 


TRADEMARK
LICENSE AND


 


MANUFACTURING
AND SUPPLY AGREEMENT


 


 


BY
AND BETWEEN


 


 


UNITED INDUSTRIES CORPORATION


 


 


AND


 


HOME
DEPOT U.S.A., INC.


 


 


EFFECTIVE AS OF JANUARY 1, 2004


 

















 


TRADEMARK LICENSE AND MANUFACTURING
AND SUPPLY AGREEMENT


 


This TRADEMARK LICENSE AND MANUFACTURING AND SUPPLY
AGREEMENT (this “Agreement”) is made effective the first day of January,
2004 (“Effective Date”) by and between United Industries Corporation, a
Delaware  corporation
(“UIC”), and Home Depot U.S.A., Inc., a Delaware corporation (“Home
Depot”).


 


WITNESSETH:


 


WHEREAS, UIC owns the Marks (as defined below) and the
parties desire UIC to license the Marks to Home Depot in connection with the
marketing and sale by Home Depot of Vigoro-Branded Products (as defined below);


 


WHEREAS, UIC also desires to license the Marks to
third parties designated by Home Depot for their use in connection with
manufacturing Vigoro-Branded Products (as defined below) for Home Depot to
market and sell;


 


WHEREAS, the parties desire UIC to manufacture and
supply Vigoro Fertilizers (as defined below) and certain other products for
Home Depot; and


 


WHEREAS, provided that Home Depot has achieved certain
assignment purchase requirements and has extended for an additional three years
its commitment to purchase Vigoro Fertilizers from UIC, the parties desire UIC
to assign the Marks to Home Depot.


 


NOW, THEREFORE, in consideration of the promises and
the mutual covenants set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree and covenant as follows.


 


ARTICLE I. 
DEFINITIONS


 


The following terms, when used herein with initial
capital letters, shall have the respective meanings set forth in this Article I.


 


1.01         “Affiliate”
means, with respect to a specified Person, another Person that controls, is
controlled by, or is under common control with, the specified Person.  The word “control” means ownership of 50% or
more of the voting securities of a Person or the ability otherwise to direct
the management and policies of the Person.


 


1.02         “Assignment
Date” has the meaning specified in Section 11.01(c).


 


1.03         “Business
Day” has the meaning specified in Section 15.01.


 


1.04         “Change
of Control” means any transaction or series of transactions whereby,
directly or indirectly, equity or management control of a party, or
substantially all of such party’s assets to which this agreement relates or to
its entire business is transferred to any Person, whether such transaction is
structured as a sale or exchange of capital stock or assets, a lease of assets
with or without a purchase option, a merger or consolidation, a tender or
exchange offer, a leveraged


 


2

















 


buy-out, a restructuring, a recapitalization, a repurchase of capital
stock, an extraordinary dividend or distribution, a liquidation, a formation of
a joint venture or partnership, or otherwise.


 


1.05         “Commodity
Fertilizers” means those fertilizers listed in Schedule A as amended
by UIC from time to time.


 


1.06         “Competing
Products” means any products in the following categories:  fertilizers, spreaders, lawn, garden and
household pesticides and repellants (including, without limitation,
insecticides, herbicides, rodenticides and personal and area repellants).  [*]


 


1.07         “Confidential
Information” has the meaning specified in Section 14.01.


 


1.08         “Credit
Agreement” means (i) that certain Credit Agreement dated as of March 24,
1999 (as amended and modified by Waiver No. 1 dated as of December 30, 1999,
Amendment and Waiver No. 2 dated as of January 24, 2000, Amendment and Waiver
No. 3 Under the Loan Documents dated as of November 7, 2000, Amendment No. 4
Under the Credit Agreement dated as of February 13, 2002, Amendment No. 5 to
the Loan Documents dated as of May 9, 2002, Amendment and Waiver No. 6 Under
the Credit Agreement dated as of June 14, 2002, Amendment No. 7 Under the
Credit Agreement dated as of September 30, 2002, Amendment No. 8 to the Credit
Agreement dated as of November 4, 2002, Amendment No. 9 to the Loan Documents
dated as of December 6, 2002 and Amendment No. 10 dated as of March 14, 2003)
among UIC, certain banks, financial institutions and other institutional
lenders party thereto; Bank of America, N.A. (formerly known as NationsBank,
N.A.) (“Bank of America”), as Swing Line Bank and Initial Issuing Bank
thereunder; Banc of America Securities LLC (formerly known as NationsBanc
Montgomery Securities LLC) (“BAS”) and Morgan Stanley Senior Funding,
Inc. (“MSSF”), as Co-Arrangers therefore; Canadian Imperial Bank of
Commerce, as Documentation Agent therefore; MSSF, as Syndication Agent
thereunder; BAS, as Lead Arranger and Book Manager therefore; and Bank of
America, as Administrative Agent for the Lender Parties thereunder, or (ii) any
credit or similar agreement that replaces or substitutes for the foregoing.


 


1.09         “Dispute”
has the meaning specified in Section 17.02.


 


1.10         “Effective
Date” has the meaning set forth in the Preamble.


 


1.11         “Expenses”
means all costs and expenses incurred in connection with prosecuting,
maintaining and enforcing the Marks including, without limitation, the fees and
costs of attorneys and other professionals and all tribunal costs and any
settlement costs.


 


1.12         “Final
Year Volume” has the meaning specified in Section 5.03(b)(i).


 


1.13         “Losses”
means all obligations, third party claims, damages, losses, liabilities,
obligations, settlements, injunctions, suits, actions, proceedings, liens,
demands, charges, fines, penalties, costs and expenses of every kind and nature
(whether based on tort, breach of contract, product liability, infringement or
otherwise), including without limitation, fees and expenses of attorneys and
other professionals, and disbursements which may be imposed on, incurred by or












[*]           Certain
confidential information contained in this document, marked by brackets, is
filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


3

















 


asserted against the Persons hereby required to be
indemnified (but not against any of the same to the extent that a grossly
negligent or willful act or omission of any of such party was the cause of the
same).


 


1.14         “Market
Withdrawal” has the meaning specified in Section 7.02.


 


1.15         “Marks”
means those trademarks and associated applications and registrations listed in
the first column in Schedule B attached hereto, which may be amended
from time to time by mutual agreement of the parties.


 


1.16         “Minimum
Annual Volume” has the meaning specified in Section 5.02(b)(i).


 


1.17         “Minimum
Aggregate Volume” has the meaning specified in Section 5.03(a)(i).


 


1.18         “Negotiating
Period” has the meaning specified in Section 17.02.


 


1.19         “New
Applications and Registrations” has the meaning specified in Section
4.03(b).


 


1.20         “Non-Competing
Products” means all products, other than Competing Products, manufactured,
marketed or sold under any of the Marks.


 


1.21         “Non-Vigoro
Branded Products” means all products offered for sale to any Person by UIC
as of the Effective Date, except for: 
(i) any product sold under any of the Marks; (ii) any products developed
or acquired (whether by assignment, merger, asset sale, purchase of controlling
equity interests or other form of acquisition) by UIC or any UIC Affiliate
after the Effective Date; and (iii) Commodity Fertilizers.


 


1.22         “Person”
means any natural person, corporation, company, partnership, limited
partnership, limited liability company, firm, association, trust, government,
governmental agency, or any other entity, whether acting in an individual,
fiduciary or other capacity.


 


1.23         “Products”
means all products and services ordered, forecasted to be ordered or purchased
by Home Depot from UIC pursuant to this Agreement.


 


1.24         “Purchase
Price” means the purchase price of each Product, as further defined in Article
X.


 


1.25         “Records”
has the meaning specified in Section 9.02.


 


1.26         “Reports”
means any of the reports required to be given by any party pursuant to Section
9.01.


 


1.27         “Supplier
Buying Agreement” means that Home Depot Supplier Buying Agreement between
Home Depot U.S.A., Inc. and United Industries Corporation of even date
herewith.


 


1.28         “Supply
Obligations” generally refers to the parties’ respective obligations and
duties set forth in Articles V through X hereunder.


 


1.29         “Third
Party Licensee” has the meaning specified in Section 3.04(b).


 


4

















 


1.30         “Third
Party Licenses” has the meaning specified in Section 3.04(d).


 


1.31         “Trademark
Rights” has the meaning set forth in Section 3.03.


 


1.32         “Trademark
Term” has the meaning set forth in Section 3.03.


 


1.33         “Vigoro
Fertilizers” means all lawn fertilizers and garden granular and water
soluble fertilizer products marketed or sold under or in conjunction with any
of the Marks.


 


1.34         “Vigoro-Branded
Products” means any product manufactured, marketed or sold under or in
conjunction with any of the Marks.


 


ARTICLE II. 
CONDITIONS PRECEDENT


 


2.01         Conditions
Precedent.  Notwithstanding the
execution of this Agreement by either or both parties, none of the terms and
conditions of this Agreement shall be effective unless and until the following
conditions precedent have occurred, after which the Agreement shall be effective
as of the Effective Date:


 


a.             UIC’s
Board of Directors shall have approved the terms and conditions of this
Agreement; and


 


b.             UIC
shall have received a full and effective waiver and amendment to, or language
in, the Credit Agreement that permits this Agreement and all transactions and
obligations contemplated herein.


 


ARTICLE III. 
TRADEMARK LICENSE


 


3.01         License
Grants.


 


a.             Home
Depot.  Subject to any pre-existing
contractual obligations or restrictions, or other impairments, to the extent
listed in Schedule D and to the terms and conditions of this Agreement,
UIC hereby grants to Home Depot, during the Trademark Term, a royalty-free,
sole (except for Third Party Licenses granted at Home Depot’s request pursuant
to Sections 3.01(b)(i) and (ii)), non-transferable license, without the
right to sublicense, to use each Mark set forth in Schedule B solely in
connection with the marketing and sale of Vigoro-Branded Products in the
permitted product categories and permitted territories corresponding to such Mark
as set forth in Schedule B.  The
foregoing license to Home Depot is limited to Vigoro-Branded Products that are
manufactured for Home Depot by either UIC or by a Third Party Licensee.


 


b.             Third
Parties.  Subject to any
pre-existing contractual obligations or restrictions, or other impairments, to
the extent listed in Schedule D and to the terms and conditions of this
Agreement, UIC hereby agrees, on Home Depot’s request from time to time during
the Trademark Term, to grant:


 


5

















 


(i)    royalty-free,
non-exclusive, non-transferable licenses (without the right to sublicense), to
third parties designated by Home Depot to use the Marks solely in connection
with such third parties’ supply of Non-Competing Products to Home Depot in
connection with the license granted to Home Depot in subsection (a) above; and


 


(ii)   royalty-bearing,
non-exclusive, non-transferable licenses (without the right to sublicense), to
third parties designated by Home Depot to use the Marks solely in connection
with such third parties’ supply of Competing Products to Home Depot in
connection with the license granted to Home Depot in subsection (a) above; provided
that, if UIC is a vendor for any portion of Home Depot’s Vigoro-branded [*]
business at any time during the Trademark Term, then any Third Party Licenses
granted hereunder for use of the Marks solely in connection with Vigoro-branded
[*] shall be royalty-free only for such period during which UIC is a vendor and
is supplying Vigoro-branded [*] to Home Depot.


 


3.02         Covenant.  Home Depot hereby covenants that, prior to
the Assignment Date, Home Depot shall not use, nor shall it permit any Third
Party Licensee  to use, the Marks outside the scope of the licenses granted
in connection with Section 3.01. 
If Home Depot desires to use a Mark outside the scope of the license
granted in Section 3.01(a), it may request that UIC register the Mark
for such use and amend Schedule B to include such registration, as
further described in Section 4.01(b).


 


3.03         Term
of Trademark Rights.  The parties’
respective rights and obligations with respect to the Marks, as set forth in
this Article III, and in Article IV, Section 7.01, Section
9.01(a) and Section 10.03, (the “Trademark Rights”) shall
begin as of the Effective Date and, unless otherwise provided herein, shall at
UIC’s option expire as follows (the “Trademark Term”):


 


a.             immediately,
upon termination of the Supply Obligations pursuant to the terms of this
Agreement;


 


b.             immediately
upon expiration, pursuant to Section 5.02(c), of Home Depot’s
exclusivity and Minimum Annual Volume purchase obligations set forth in Section
5.02(a) and Section 5.02(b), respectively; or


 


c.             the
Assignment Date.


 


3.04         Limitations
on Third Party Licenses.


 


a.             Before
requesting UIC to grant any Third Party License with respect to any product,
Home Depot shall notify UIC of its requirements for such product, and the
parties shall discuss UIC’s ability to supply such products to Home Depot on
competitive terms at that time.  Notwithstanding
the previous sentence, any determination to use UIC to source such products
shall be at Home Depot’s sole discretion.


 


b.             Notwithstanding
anything herein to the contrary, UIC shall not be required to grant any license
to the Marks to a third party unless such Person has executed a license
agreement with UIC containing customary terms and conditions at least as
restrictive as those contained












[*]           Certain
confidential information contained in this document, marked by brackets, is
filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


 


6

















 


herein and otherwise satisfactory to UIC (“Third
Party Licensee”).  UIC shall not
unreasonably withhold the grant of such a license and shall act in good faith
with respect to all Third Party Licensees; provided, however,
that it shall not be deemed unreasonable for UIC to refuse to grant any license
to the Marks to any third party that UIC has a good faith reason to believe
would not comply with Section 3.06 and Section 3.07.  Any Third Party Licensee shall
agree to the applicable terms of this Agreement.


 


c.             Notwithstanding
anything herein to the contrary, UIC shall not be required to grant a license
to any third party in connection with any product in any territory in which
such product is being manufactured, marketed or sold under a Mark as of the
Effective Date, except as may be provided in Section 6.02.


 


d.             All
licenses granted to third parties by UIC pursuant to Sections 3.01(b)(i) and
(ii) (“Third Party Licenses”) shall be drafted such that they
automatically terminate upon any termination of the license granted by UIC to
Home Depot pursuant Section 3.01(a).


 


3.05         Ownership.  Home Depot acknowledges that, as between
Home Depot and UIC, until the Assignment Date, UIC is the sole and exclusive
owner of all right, title and interest in and to the Marks and Home Depot shall
refrain from taking any action inconsistent with such ownership and from
attacking UIC’s title to the Marks or the lien created in the Marks by the
Collateral Documents (as defined in the Credit Agreement).  Home Depot agrees that, subject to Section
3.12  and
Article XI, nothing in this Agreement shall give Home Depot any right,
title or interest in the Marks other than the right to use such Marks in
accordance with the license granted in Section 3.01.  UIC reserves all rights to the Marks except
as expressly granted herein to Home Depot.


 


3.06         Quality
Control.  Home Depot agrees that the
nature and quality of all Vigoro-Branded Products, as currently sold,
manufactured by a Third-Party Licensee and the nature and quality of all
advertising, marketing and other uses of the Marks by Home Depot shall be, as
reasonably determined by UIC, of a nature and quality:  (i) at least equal to the nature and quality
of Vigoro-Branded Products (and related marketing and advertising) currently
being sold by UIC; and (ii) consistent with the reputation of the Marks.  Home Depot agrees to cooperate with UIC in
facilitating UIC’s control of the quality and reputation of the Marks by:  (i) permitting reasonable inspection of any
Home Depot facility upon reasonable notice and during normal business hours; (ii)
at UIC’s reasonable request, supplying UIC with representative samples of Home
Depot’s uses of the Mark; and (iii) refraining from any use of the Marks that
would harm the reputation of the Marks, including by tarnishment or
dilution.  In order to protect the
validity of the Marks and its brand equity, UIC shall have the right to
reasonably reject any uses of the Marks by Home Depot or any Third Party
Licensee that could, under standards and practices common in the retail
industry and in the industry in which the applicable goods and services are
provided, reasonably be expected to adversely affect the reputation or validity
of the Marks, or that violate any usage guidelines promulgated by UIC
pursuant to Section 3.07.


 


3.07         Usage
Guidelines.  Home Depot shall use
the Marks in a manner consistent with UIC’s use of the Marks and with
guidelines promulgated by UIC from time to time in the future, provided that
such guidelines shall not have a material impact on Home Depot’s ability to
exploit


 


7

















 


the Marks as provided in this Agreement.  If such guidelines have not been agreed upon
in advance by, and have a material financial impact on, Home Depot, UIC will be
responsible for any reasonable and direct out-of-pocket expenses incurred by
Home Depot as a result of UIC’s implementation of such guidelines.  Any objection by UIC to the use of any Mark
by Home Depot or any Third Party Licensee shall be accompanied by a written
statement setting forth in reasonable detail the nature of UIC’s objections and
suggestions for removing or replacing the objectionable aspects.  Where practical and appropriate
or reasonably required by UIC, Home Depot shall include, or shall require to be
included, the following attribution on all product packaging for all Vigoro-Branded
Products manufactured for, or marketed and sold by, Home Depot pursuant to
licenses granted in connection with Section 3.01:  “VIGOROTM/® is a licensed trademark of United
Industries Corporation” or such other attribution agreed to by the parties from
time to time.


 


3.08         Changes
to the Marks.  UIC shall have the
right at any time to make additions to, deletions from, and changes to any or
all of the Marks in its sole and complete discretion; provided, however,
that UIC shall give Home Depot reasonable prior written notice thereof and that
no such change shall, in UIC’s reasonable determination, materially impair the
present character, reputation or market position of any Mark.  Home Depot shall, after receipt of such
written notice from UIC, adopt and begin using any and all such additions,
deletions and changes as soon as reasonably practicable after UIC’s adoption
thereof.  Notwithstanding the foregoing,
if UIC requires that any such addition, deletion or change be made, Home Depot
shall be entitled to distribute and sell-down all existing inventory of
Vigoro-Branded Products, and use existing inventory of packaging and label
stock, and to use existing advertising and promotional materials, unless UIC
notifies Home Depot in writing that such uses of Vigoro-Branded Products,
packaging and label stock or promotional materials allegedly infringe the
rights of any Person.  If any such
addition, deletion or change has not been agreed upon in advance by, and has a
material financial impact on, Home Depot, UIC will be responsible for any
reasonable and direct out-of-pocket expenses incurred by Home Depot as a result
of UIC’s implementation of such addition, deletion or change.


 


3.09         Goodwill.  Home Depot’s use of the Marks during the
Trademark Term, and any goodwill arising therefrom, shall inure solely to the
benefit of UIC.  Notwithstanding the
foregoing, however, such goodwill shall be transferred to Home Depot in
connection with any assignment of the Marks pursuant to Article XI.  Any goodwill arising from the use of Home
Depot’s own trademarks shall inure solely to the benefit of Home Depot.


 


3.10         Co-branding.
Home Depot shall not have the right to use the Marks in conjunction with any
other trademarks without UIC’s prior written consent, which shall not be unreasonably
withheld; provided, however, that usual and customary advertising
and merchandising shall not be deemed co-branding.  Notwithstanding the foregoing, UIC shall have no obligation to
consent to the use of any other mark in connection with the Vigoro Fertilizers.


 


3.11         Approvals.  Home Depot shall comply with all applicable
laws and regulations and, at its own expense, obtain all appropriate federal,
state or local government licenses, permits and other approvals that may be
required for performance of its rights and obligations hereunder, except for
such licenses, permits and other approvals relating to the manufacture of
Vigoro-Branded


 


8

















 


Products by UIC, for which UIC shall have the sole
right and responsibility pursuant to Section 6.07.


 


3.12         Security
Interest.  UIC will submit a request
to the administrative agent for the Credit Agreement to grant a first priority
security interest in the Marks to Home Depot. 
If the granting of such lien to Home Depot is consented to by requisite
parties under the Credit Agreement (as set forth therein), UIC will use
commercially reasonable efforts to grant Home Depot a first priority security
interest in the Marks, and UIC agrees to take such additional action and
execute such documents as reasonably necessary to permit Home Depot to perfect
such security interest.  To the extent
that Home Depot fails to meet the conditions set forth in Article XI,
and, in any event, on the Assignment Date, Home Depot hereby agrees to release
any liens and security interests granted hereunder in the Marks.  Home Depot shall also execute and deliver to
UIC upon such termination such Uniform Commercial Code termination statements
or amendments, certificates for terminating any liens and such other
documentation as shall be reasonably requested by UIC to effect the termination
and release of any liens and security interests in favor of Home Depot
affecting the Marks.


 


ARTICLE IV. 
PROTECTION AND MAINTENANCE OF THE MARKS


 


4.01         Registration,
Prosecution and Maintenance.


 


a.             UIC
Rights.  UIC shall  have
the sole right and authority to make applications for registration of,
prosecute and maintain registrations for, and to make applications for renewal
of and renew applications and registrations for any Mark.


 


b.             Home Depot Rights.


 


(i)            New Registrations.  If Home Depot desires to register a Mark in
a new product category or territory, then UIC shall promptly obtain and review
trademark clearance searches in accordance with UIC’s trademark review
practices and report the results of such review to Home Depot.  Home Depot may, in its discretion, promptly
thereafter notify UIC in writing to proceed with an application for
registration, in which case, UIC shall, within fifteen (15) business days after
Home Depot’s written notice, (i) for applications for registration within the
United States, make application in its own name for registration of such Mark
in the product category specified in Home Depot’s notice, and (ii) for
applications for registration outside the United States, instruct foreign
counsel to make application in UIC’s name for registration of such Mark in the
product category and territory specified in Home Depot’s notice.  UIC shall own any such Mark, and Schedule
B shall be amended to include any such Mark in the license granted to Home
Depot pursuant to Section 3.01(a). 
Thereafter, UIC shall keep Home Depot reasonably informed as to the
status of the pending registration and any communication from the trademark
examiner or any third parties related to the pending registration.


 


(ii)           Failure
of Assignment.  If Home Depot does
not take assignment of the Marks pursuant to Article XI, and:


 


(A)           UIC
is supplying a Vigoro-Branded Product to Home Depot (in any product category)
as of the termination of Home Depot’s exclusivity and Minimum Annual Volume


 


9

















 


purchase obligations pursuant to Section 5.02(c),
then UIC will continue to supply such Vigoro-Branded Product to Home Depot for
the term of the Supply Obligations; or


 


(B)           Home
Depot is making commercially significant sales of a Vigoro-Branded Product
outside of the lawn and garden category that UIC does not supply to Home Depot
as of the termination of Home Depot’s exclusivity and Minimum Annual Volume
purchase obligations pursuant to Section 5.02(c), then the license
granted to Home Depot pursuant to Section 3.01(a) and the license
granted to Home Depot’s Third Party Licensee pursuant to Section 3.01(b)
shall continue (i) only with respect to such Vigoro-Branded Product, (ii) only
in those territories in which Home Depot has made any actual commercial sales;
and (iii) for the lesser of ten (10) years or until Home Depot is no longer
making substantial use of the Marks in commerce in connection with such
Vigoro-Branded Product; or


 


(C)           Home
Depot is making commercially significant sales of a Vigoro-Branded Product
within the lawn and garden category that UIC does not supply to Home Depot as
of the termination of Home Depot’s exclusivity and Minimum Annual Volume
purchase obligations pursuant to Section 5.02(c), then the license
granted to Home Depot pursuant to Section 3.01(a) and the license
granted to Home Depot’s Third Party Licensee pursuant to Section 3.01(b)
shall continue (i) only with respect to such Vigoro-Branded Product, (ii) only
in those territories in which Home Depot has made substantial sales; and (iii)
for one (1) year only to enable Home Depot to transition those products to
another brand.


 


4.02         Enforcement.


 


a.             Notice.  In the event that the legal department of
either party learns of an actual or suspected infringement, misappropriation or
misuse by a third party of any Mark or of the other party’s Confidential
Information, or of an opposition or cancellation proceeding by a third party
attacking the validity or disputing the ownership of any Mark, it shall
promptly provide the other party with a written statement of the facts of such
infringement, misappropriation, misuse or proceeding, to the extent known.


 


b.             UIC
Obligations.  Except as set forth in
Section 4.02(c), UIC shall have the sole right and authority, but not the
obligation, to  take such steps as necessary to protect the Marks against
infringement, misappropriation, tarnishment or misuse, including the
commencement of a litigation.


 


c.             Home
Depot Rights.  If UIC commences
litigation to protect or enforce any Mark licensed, or contemplated by the
parties to be licensed, to Home Depot pursuant to Section 3.01(a), Home
Depot shall, to the extent permitted by applicable law, and at its sole
Expense, have the right to join and participate in any such litigation, and to
select counsel of its own choosing.  UIC
shall have sole control of any such litigation; provided, however,
that UIC shall not enter into any settlement on behalf of Home Depot or
otherwise compromise a claim that would result in (i) the admission of any
liability by Home Depot, (ii) any financial liability on the part of Home
Depot, or (iii) that would subject Home Depot to injunctive relief without
first obtaining Home Depot’s prior written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. 
If, within ninety (90) days after written notice from Home


 


10

















 


Depot of an infringement, misappropriation or misuse
of any Mark licensed, or contemplated by the parties to be licensed, to Home
Depot, UIC has not taken steps to halt such infringement, misappropriation or
misuse, then Home Depot shall, to the extent permitted by applicable law, have
the right but not the obligation to bring suit to enjoin such infringement,
misappropriation or misuse and to select counsel for, and control, the
prosecution of any such suit.  If Home
Depot commences any such litigation, it (1) shall keep UIC regularly apprised
of the nature and status of such litigation, (2) shall permit UIC’s involvement
in such litigation at UIC’s expense, and (3) shall not settle such litigation
without UIC’s prior written consent, which shall not be unreasonably withheld, provided
that it shall not be unreasonable to refuse to consent to any settlement that
imposes any financial obligation upon UIC or that in UIC’s good faith opinion
may impair the value or reputation of any Mark or the reputation of UIC.  Except as provided herein, Home Depot shall
have no right or authority to bring suit in connection with the protection or
enforcement of any Mark.  If Home Depot
unreasonably withholds, delays or conditions its consent to any settlement for
which such consent is required pursuant to this Section 4.02(c), then
UIC shall continue to control the prosecution of such claim and shall have the
right to commence an action against Home Depot in accordance with the dispute
resolution procedures outlined in Section 17.02 herein in the event an adverse
result (including any Losses) resulting from a judgment or other determination
in such proceeding is less favorable to UIC than the settlement as to which
Home Depot failed or refused to provide its consent.


 


d.             Cooperation.  Each party shall reasonably cooperate with
the other party in any enforcement action or proceeding taken by either of them
in connection with the Marks in accordance with this Article IV.


 


4.03         Expenses.


 


a.             Existing
Registrations.  Unless otherwise
provided herein, UIC shall bear all Expenses incurred in connection with
maintenance and enforcement of the registrations of the Marks in the product
categories and corresponding territories listed on Schedule B as of the
Effective Date.


 


b.             New
Applications and Registrations.  Home
Depot shall reimburse UIC for all reasonable fees and expenses incurred by UIC
in connection with obtaining and reviewing trademark clearance searches for New
Applications and Registrations (as defined below).  UIC shall bear all other Expenses incurred in connection with
prosecution of applications for, maintenance of registrations with respect to,
and enforcement of any Marks pursued or obtained by it after the Effective Date
(the “New Applications and Registrations”) only if, for each such New
Application and Registration, (i) Home Depot, during the Trademark Term (y)
purchases any substantial portion of its requirements for Products that are
within the scope of such New Applications and Registrations from UIC, and (z)
Home Depot purchases commercial quantities (e.g., other than for test
marketing purposes) of such Products from UIC, or (ii) UIC has entered into a
royalty-bearing Third Party License with respect to the Marks within the scope
of such New Application and Registration. 
If during the Trademark Term, neither of the foregoing conditions are
met, then Home Depot or its designee shall promptly reimburse (and shall
thereafter pay) all Expenses incurred in connection with prosecution of
applications for,


 


11

















 


maintenance of registrations and enforcement of such
New Applications and Registrations for such Marks.


 


ARTICLE V. 
HOME DEPOT’S PURCHASE OF PRODUCTS


 


5.01         Terms
of Purchase.  All purchase of
Products by Home Depot from UIC are subject to the terms and conditions of this
Agreement and those terms and conditions of the Supplier Buying Agreement that
are not inconsistent with the terms and conditions of this Agreement, all of
which shall control over any inconsistent terms and conditions that may be
contained in any purchase order, order acknowledgement, bill of lading or
similar documentation exchanged between the parties.


 


5.02         General
Purchase Obligations.


 


a.             Exclusivity.  Until expiration of these purchase
obligations as provided in Section 5.02(c), Home Depot shall purchase
from UIC all of Home Depot’s and its Affiliates requirements for Vigoro
Fertilizers for resale in the United States and its territories and possessions
through any channel of trade.


 


b.             Minimum
Annual Volume.


 


(i)            Requirement.  Until expiration of these purchase
obligations as provided in Section 5.02(c), Home Depot shall purchase at
least the volume of Vigoro Fertilizer 
that is specified in Section 5.02(b)(i) of Schedule E from
UIC each calendar year (the “Minimum Annual Volume”).


 


(ii)           Consequence.  If Home Depot fails to achieve the Minimum
Annual Volume for any calendar year, then notwithstanding Section 16.01(c),
in addition to its other remedies, UIC may terminate the Trademark Rights upon
sixty (60) days written notice to Home Depot.


 


c.             Term
of Purchase Obligations.  Home
Depot’s exclusivity and Minimum Annual Volume purchase obligations set forth
above in this Section shall begin on the Effective Date and continue until the
earlier to occur (plus any extension applicable as set forth in Section
11.01(b)(ii) (Conditions to Assignment Obligation) or Section 17.09 (Force
Majeure)) of:


 


(i)            December
31, 2008, if Home Depot achieves the Minimum Aggregate Volume requirement set
forth in Section 5.03(a)(i) by December 31, 2008, but does not agree to
extend its exclusivity and Minimum Annual Volume purchase obligations for an
additional three years from December 31, 2008;


 


(ii)           December
31, 2009, if Home Depot fails to achieve the Minimum Aggregate Volume
requirement by June 30, 2009, and does not agree to extend its exclusivity and
Minimum Annual Volume purchase obligations for an additional three years from
December 31, 2009;


 


12

















 


(iii)          December
31, 2011, if Home Depot achieves the Minimum Aggregate Volume by December 31,
2008, and agrees to extend its exclusivity and Minimum Annual Volume purchase
obligations for an additional three years from December 31, 2008, or if Home
Depot agrees to extend its exclusivity and Minimum Annual Volume purchase
obligations for any other reason; or


 


(iv)          December
31, 2012, if Home Depot achieves the Minimum Aggregate Volume by June 30, 2009
and agrees to extend its exclusivity and Minimum Annual Volume purchase
obligations for an additional three years from December 31, 2009, or if Home
Depot agrees to extend its exclusivity and Minimum Annual Volume purchase
obligations for any other reason.


 


5.03         Assignment
Purchase Requirements.  The
following purchase requirements are conditions precedent to UIC’s obligation to
assign the Marks to Home Depot pursuant to Article XI.


 


a.             Vigoro
Fertilizer.


 


(i)            Minimum
Aggregate Volume.  During the period
of January 1, 2004 through December 31, 2008, Home Depot shall have purchased
from UIC the minimum aggregate total  of
Vigoro Fertilizer specified in Section 5.03(a)(i) of Schedule E (the “Minimum
Aggregate Volume”).  If Home Depot
fails to purchase the Minimum Aggregate Volume of Vigoro Fertilizer from UIC by
December 31, 2008, it shall have until June 30, 2009 to achieve such amount.


 


(ii)           Consequences.  If Home Depot fails to achieve the Minimum
Aggregate Volume requirement by December 31, 2008, then its exclusivity and
Minimum Annual Volume purchase obligations set forth in Section 5.02
shall automatically be extended through December 31, 2009.  If Home Depot fails to achieve the Minimum
Aggregate Volume by June 30, 2009, then UIC shall have no obligation to assign
the Marks to Home Depot as contemplated pursuant to Article XI.


 


b.             Non-Vigoro
Branded Products.


 


(i)            Final
Year Volume.  During the twelve (12)
month period immediately prior to the Assignment Date, Home Depot shall have
purchased from UIC a minimum total of Non-Vigoro Branded Products of at least
the volume specified in Section 5.03(b)(i) of Schedule E (the “Final
Year Volume”).  Provided that Home
Depot’s ability to achieve the Final Year Volume has been materially impaired
by any of the following occurrences, the Final Year Volume shall be reduced by
a reasonable amount mutually agreed to by the parties in good faith to account
for:  (A) returns of defective Products
not replaced by UIC;  (B) any recall of
Product mandated by the Consumer Product Safety Commission or the Environmental
Protection Agency, or initiated by UIC; (C) the sale by UIC of any Product line
that includes Non-Vigoro Branded Products that are, at the time of sale, being
sold in Home Depot stores; or (D) UIC’s inability to manufacture or deliver
Non-Vigoro Branded Products to Home Depot during such twelve (12) month period.


 


13

















 


(ii)           Consequence.  If Home Depot fails to achieve the Final
Year Volume, then UIC shall have no obligation to assign the Marks to Home
Depot as contemplated pursuant to Article XI herein.


 


c.             No
Breach.  The assignment purchase
requirements set forth in subsections (a) and (b) above are conditions
precedent to UIC’s obligation to assign the Marks as contemplated pursuant to Article
XI herein, and are not guarantees, and Home Depot’s failure to achieve any such
purchase requirement will not be deemed a breach of this Agreement, and
further, in no event will Home Depot be obligated to UIC for money or
injunctive relief for its failure to achieve such purchase requirements.


 


5.04         Forecasted
Products.  Home Depot shall use
commercially reasonable efforts (taking into account actual consumer demand) to
purchase from UIC the volume of finished goods specified in mutually developed
forecasts of Product purchases, but in no event shall Home Depot be obligated
to purchase from UIC less than ninety (90) days inventory of finished goods of
the affected Products set forth in such forecasts if:  (i) Home Depot discontinues carrying a Product; (ii) the Supply
Obligations are terminated by Home Depot for any reason other than UIC’s
material breach of the Supply Obligations; or (iii) after the Assignment Date,
UIC is no longer Home Depot’s vendor of record for any Product.  Home Depot will purchase such finished goods
at Home Depot’s then current invoice price.


 


ARTICLE VI.  UIC’s
SUPPLY OBLIGATIONS


 


6.01         Obligation
to Supply.  Each year at Home
Depot’s annual marketing meeting, the parties shall agree on a good faith,
reasonable total annual forecast for the Products for the next year based upon
historical volumes, weather forecasts and other relevant predictors of consumer
demand.  On or prior to November 30th
of each year, or as soon thereafter as feasible, the parties shall agree upon a
good faith, reasonable forecast for each Product on a SKU-by-SKU and
month-by-month basis for the next year, based upon historical volumes, weather
forecasts and other relevant predictors of consumer demand.  UIC acknowledges that such forecasts do not
represent more than a good faith commitment (taking into account actual
consumer demand) by Home Depot to purchase such amounts.  UIC shall use commercially reasonable
efforts to manufacture and supply the agreed upon forecasted requirements for
Vigoro Fertilizers.


 


6.02         Subcontractors.  Subject to Home Depot’s written approval,
which shall not be unreasonably withheld, conditioned or delayed, UIC shall
have the right to use subcontractors to manufacture and supply Products for
Home Depot, provided that no such approval is required for subcontractors
currently or historically used by UIC with respect to the Products or as
provided in Section 17.09.  In
the event that Home Depot’s requirements for Vigoro Fertilizer exceeds UIC’s
capacity, then UIC shall use reasonable efforts to locate and secure
subcontractors reasonably acceptable to UIC to supply Home Depot’s requirements
in a commercially reasonable time and at a level of quality substantially equal
to that of UIC-manufactured Products, subject to Home Depot’s written approval,
which shall not be unreasonably withheld, conditioned or delayed.


 


6.03         Exclusivity.  From the Effective Date and for so long as
Home Depot’s exclusivity obligations set forth in Section 5.02(a)
continue pursuant to Section 5.02(c), UIC agrees not to


 


14

















 


manufacture Vigoro Fertilizers for third parties to
sell in the United States and its territories and possessions; provided,
however, that if Home Depot fails to comply with such exclusivity
obligations, then in addition to any of its other rights and remedies, UIC
shall be free to manufacture Vigoro Fertilizer for third parties to sell in the
United States and its territories and possessions for the duration of such
non-compliance and for such additional period as is necessary for UIC to: (i)
fulfill any outstanding manufacture or supply commitments to third parties; and
(ii) exhaust inventories of finished goods and components in connection
therewith.


 


6.04         Order
Procedure.  Home Depot shall place
orders for Products through its Electronic Data Interchange connection with UIC.  UIC shall use good faith efforts to fill
such orders within the annual forecasted volumes determined by the parties
pursuant to Section 6.01  provided, however, that UIC’s
failure to fulfill any order shall not be deemed a material breach of this
Agreement.  All Products shall be
delivered FOB the respective destination Home Depot store, transit facility or
distribution center.  Title to and all
incidents of ownership of Products shall transfer to the Home Depot at the time
of delivery to the respective destination Home Depot location.  Additional terms and conditions related to
UIC’s supply obligations under this Agreement are set forth in Section 6.04
of Schedule E.


 


6.05         Quality
Standards.  The Products at the time
of delivery to any Home Depot location shall meet quality standards agreed to
by the parties from time to time.  UIC
agrees to comply with those environmental, health and safety standards
implemented by Home Depot from time to time generally for suppliers of
chemicals, fertilizers, pesticides or other lawn and garden products.


 


6.06         Control
of Products.  UIC shall have sole
control over its product formulations and methods of manufacture; provided,
however, that UIC shall provide Home Depot with reasonable prior
notification of any anticipated change in product formulation for any existing
Product that would reasonably be expected to affect the efficacy of such
Product.  In the event that Home Depot
objects in writing to such change in product formulation within ten (10)
Business Days, then UIC and Home Depot shall meet to discuss Home Depot’s
concerns and, if Home Depot does not withdraw its objection, then UIC shall not
implement any such change in product formulation for Products supplied to Home
Depot.  Nothing herein shall prevent UIC
or any Person authorized by UIC from using any of UIC’s product formulations to
manufacture, market or sell any products in any channel of trade.  Further, nothing herein shall require UIC to
implement any Home Depot suggestion related to new Products or Product
improvements, and UIC’s failure to implement any such suggestions shall not
constitute a breach of this Agreement.


 


6.07         Approvals.  Except as may be required pursuant to Section
3.11, UIC shall have the sole right to apply for, prosecute and maintain licenses,
permits and other approvals for, and registrations of, the Products with
federal, state and local governmental authorities and administrative agencies
including, without limitation, the Environmental Protection Agency.  Upon UIC’s reasonable request and at UIC’s
expense, Home Depot shall supply UIC with information as required to support
such approvals and registrations.


 


6.08         Exclusive
Remedies.  The remedies set forth in
this Article VI are in lieu of any other remedies that may be available
to Home Depot for quality or quantity related problems with


 


15

















 


shipments of Products and constitute Home Depot’s sole
and exclusive remedy and UIC’s sole liability to Home Depot with respect to
non-conforming Products.


 


6.09         Supplier
Buying Agreement.  All applicable
terms and conditions of the Supplier Buying Agreement between the parties that
are not inconsistent with the terms and conditions of this Agreement are herein
incorporated by reference.   To the extent
of any conflict between the Supplier Buying Agreement and the other terms and
conditions of this Agreement, the terms and conditions set forth herein shall
control.


 


ARTICLE VII. 
CONSUMER ISSUES


 


7.01         Customer
Complaints.  Home Depot shall use
commercially reasonable efforts to notify UIC of any end-user consumer
complaints with respect to the Products that it receives.  With respect to Vigoro-Branded Products
manufactured for Home Depot by Third Party Licensees, Home Depot and/or such
Third Party Licensee shall take all commercially reasonable steps to resolve
such consumer complaints to the consumer’s satisfaction and to protect the
reputation of and goodwill associated with the Marks and shall reasonably
assist UIC in any investigation related to such complaint.


 


ARTICLE VIII. 
SALES AND MARKETING OBLIGATIONS


 


8.01         By
UIC.  In connection with the annual
forecast for Product volumes to be provided by Home Depot pursuant to Section
6.01, the parties shall meet and in good faith agree upon UIC’s forecasted
annual revenues (less forecasted returns) for the corresponding year.  During each month of each contract year,
Home Depot shall be permitted to deduct from its monthly invoice payment
requirements the percentage of such forecasted annual revenue that is specified
in Section 8.01 of Schedule E.


 


8.02         By
Home Depot.  Home Depot shall
display and promote the Vigoro brand and stack and display Vigoro Fertilizer in
those Home Depot stores that are to distribute Vigoro Fertilizer pursuant to
Home Depot’s 2004 fertilizer Planogram and in those Home Depot stores that are
subsequently opened in the same territories which carry products of the name
nature as the Products.  Home Depot
shall use commercially reasonable efforts to advertise, market and promote
the Vigoro brand in the United States and its territories and possessions.


 


ARTICLE IX. 
REPORTS AND RECORDS


 


9.01         Reports.


 


a.             By
Home Depot.  Within thirty (30) days
after the end of each calendar quarter, Home Depot shall provide to UIC (i) a
written report of the number and dollar amounts of all Vigoro-Branded Products,
broken out by product, purchased by Home Depot from a Third Party Licensee
during such quarter, and (ii) a copy of Home Depot’s “Return to Vendor Report”
(or any substitute or successor report containing substantially the same
information) for each Third Party Licensee. 
In addition, Home Depot shall reasonably report any issues or problems
of which Home Depot is aware in connection with the quality of a Vigoro-Branded
Product provided by a Third Party Licensee.


 


16

















 


b.             By
Third Party Licensees.  Home Depot
shall cause the Third Party Licensees to make reports and accompanying royalty
payments to UIC not less frequently than quarterly.  Such Third Party Licensees shall be subject to reasonable audit
and information reporting requirements in addition to those required herein.


 


c.             Annual
Report.  On or before February 28th,
of the following year, or as soon thereafter as is reasonably practicable, the
parties shall meet and agree on, and document: 
(i) the amounts of Products purchased by Home Depot during the preceding
year that are to be applied toward Home Depot’s Minimum Annual Volume purchase
obligation set forth in Section 5.02(b) and toward its assignment
purchase requirements set forth in Section 5.03 (if applicable for that
year); and (ii) the cumulative amounts of Products purchased by Home Depot as
of December 31st of the preceding year that are to be applied toward Home
Depot’s assignment purchase requirements set forth in Section 5.03 (if
applicable for that year).


 


9.02         Books
and Records.  Each party shall keep
complete and accurate records and books of account consistent with this
Agreement and in accordance with generally accepted accounting principles,
consistently applied, sufficient to document such party’s rights and
obligations under this Agreement (the “Records”).  Such Records shall be retained for a minimum
of five years following the end of the calendar year or other period to which
they relate.


 


9.03         Confidentiality.  Any information contained in the Reports or the Records shall be
treated as Confidential Information by the receiving party and its agents as
provided in Article XIV.


 


ARTICLE X. 
PRICING AND PAYMENT TERMS


 


10.01       Purchase
Price.  Home Depot shall pay UIC for
Products supplied hereunder as follows:


 


a.             During
calendar year 2004, the Purchase Price of any Product shall be the Purchase
Price set forth in Schedule C.


 


b.             After
calendar year 2004, all Purchase Prices shall be determined by mutual agreement
of the parties, in good faith taking into consideration increases or decreases
in the costs of raw materials, shipping and other costs incurred by UIC in
connection with manufacturing and supplying particular Products, and the cost
and/or prices of products sold by competitors of Home Depot and UIC that are
substantially similar in quality and efficacy as such Product.


 


10.02       Payment
Terms.  Payment terms are set forth
in Section 10.02 of Schedule E.


 


10.03       Calculation
of Royalties.  Royalties payable
pursuant to Third Party Licenses granted under Section 3.01(b)(ii) shall
be determined by mutual agreement of the parties.


 


17

















 


ARTICLE XI. 
ASSIGNMENT AND LICENSE-BACK OF VIGORO MARKS


 


11.01       Assignment
Obligation.


 


a.             Obligation.  The parties agree that, upon the occurrence
of the conditions set forth in Section 11.01(b), UIC shall assign to
Home Depot all its right, title and interest in and to the Marks, together with
all the goodwill associated therewith.


 


b.             Conditions
to Assignment Obligation.


 


(i)            Home
Depot has achieved the assignment purchase requirements set forth in Section
5.03;


 


(ii)           UIC
has received undisputed and final payment in full for all purchases applied
toward the foregoing assignment purchase requirements, to the extent such
amounts are not the subject of a good faith dispute; provided, however,
that if Home Depot  disputes any amount and the non-payment of
such amount would lower the amount of payments received by UIC under this
Agreement below the amounts of the assignment purchase requirements set forth
in Section 5.03, then Home Depot’s exclusivity and Minimum Annual Volume
purchase obligations set forth in Section 5.02 shall be extended, and
the assignment contemplated by this Article XI shall not occur, until
UIC has received payments in the full amount of each of the assignment purchase
requirements; and


 


(iii)          Home
Depot has agreed in writing to extend its exclusivity and Minimum Annual Volume
purchase obligations set forth in Section 5.02 until December 31, 2011
or, if Home Depot has failed to meet the Minimum Aggregate Volume by December
31, 2008, until December 31, 2012, plus any extension to either of the
foregoing dates applicable as set forth in Section 11.01(b)(ii) (Conditions
to Assignment Obligation) or Section 17.09 (Force Majeure).


 


c.             Assignment
Date.  Provided that each of the
conditions set forth above in Section 11.01(b) have been achieved, then
UIC shall assign the Marks to Home Depot, such assignment to be executed and
effective not earlier than May 1, 2009, but otherwise within thirty (30) days
after the date upon which Home Depot (i) achieves such conditions to
assignment, and (ii) provides written certification to UIC that it has achieved
such conditions (the “Assignment Date”).


 


d.             Form
of Assignment.  Any assignment
required by this Section 11.01 shall be accomplished through execution
of the form attached hereto as Exhibit A.  The parties shall use reasonable efforts to structure the transfer
of the Marks so as to avoid the imposition of any taxes in connection with such
transfer.  Notwithstanding the
foregoing, all liability for use, sales, gross receipt, transfer, stamp,
registration or similar taxes which nevertheless arise out of such transfer
shall be paid by Home Depot.


 


e.             Further
Assurances.  UIC shall execute and
deliver such documents and take such further actions as may be necessary to
carry out any assignment required by this Section 11.01.


 


11.02       Effect
of Assignment.  Upon assignment of
the Marks from UIC to Home Depot, all Trademark Rights shall immediately
terminate, and UIC shall have no further obligations or liabilities which arise
before or after the Assignment Date with respect to such Marks; provided,


 


18

















 


however, that if with respect to a Mark, prior to the
Assignment Date UIC is responsible for claims associated with any Mark pursuant
to Section 13.01(c), then (z) UIC shall continue to be responsible for
any claims in connection with such Mark that arose prior to the Assignment
Date.


 


ARTICLE XII. 
WARRANTIES AND REPRESENTATIONS


 


12.01       Authority.  Except as indicated in Article II,
each party hereby represents and warrants to the other that:  (i) it has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder; and (ii) this Agreement has been duly authorized by all necessary
action on its part.


 


12.02       Home
Depot Warranties.


 


a.             Approvals.  Home Depot hereby represents and warrants
that, prior to the Assignment Date, Home Depot shall comply, and shall cause
any Third Party Licensees  to comply, with all applicable laws and
regulations and obtain all appropriate federal, state or local government
licenses, permits or other approvals necessary for performance of its rights
and obligations hereunder.


 


12.03       Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO
PARTY MAKES ANY WARRANTIES AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.


 


ARTICLE XIII. 
INDEMNIFICATION


 


13.01       By
UIC.  Except as otherwise provided
in this Agreement, UIC hereby agrees to defend, hold harmless and indemnify
Home Depot and its Affiliates and all of their 
past, present and future directors, officers, employees, agents,
successors and assigns from and against any and all Losses:


 


a.             arising
out of breach by UIC of any of its representations or warranties under this
Agreement;


 


b.             arising
out of UIC’s uncured failure to perform any covenant or agreement hereunder or
fulfill any other obligation in respect hereof, or


 


c.             arising
out of any claim that the use by Home Depot or its Affiliates (but excluding
any use by Third Party Licensees) of any Mark, or of any other intellectual
property supplied by or on behalf of UIC in connection with the Products
infringes, misappropriates or otherwise conflicts with the intellectual
property or other rights of any Person, provided that such use of any
Mark is solely in connection with and limited to Products supplied by UIC (and
not any products or services supplied by a third party)


 


19

















 


13.02       By
Home Depot.  Except as otherwise
provided in this Agreement, Home Depot hereby agrees to defend, hold harmless
and indemnify UIC and its Affiliates and its and their past, present and future
directors, officers, employees, agents, successors and assigns, during the term
of this Agreement and thereafter, from and against any and all Losses:


 


a.             arising
out of breach by Home Depot of any of Home Depot’s representations or
warranties under this Agreement;


 


b.             arising
out of any claim that the use (other than in connection with Products supplied
by UIC for which UIC is responsible pursuant to Section 13.01(c)) by
Home Depot or its Affiliates or any Third Party Licensee of any Mark or
trademark, or of any product similar to the Products, infringes,
misappropriates or otherwise conflicts with the intellectual property rights of
any Person; or


 


c.             incurred
after the Assignment Date that arise out of claims related to the Marks, to the
extent such claims were not the results of an act or omission of UIC, its
affiliates, agents or representatives.


 


13.03       Notification
and Procedure.  Upon receipt of
notice, whether formal or informal, direct or indirect, of any claim for which
indemnification may be available under this Article XIII, the party
receiving notice shall promptly notify the other party, and the management of
both parties shall meet to discuss how to handle the matter.  Notwithstanding the foregoing, the
indemnifying party shall have the right to control the defense of any claim and
to settle such claim in its sole discretion, except that any such settlement
shall not require the indemnified party to take or refrain from taking any
action other than the payment of money damages for which it is fully
indemnified without its prior consent, which such consent shall not be
unreasonably withheld, delayed or conditioned. 
The indemnified party shall have the right and obligation to reasonably
cooperate with the indemnifying party, at the indemnifying party’s expense, in
the defense, settlement or other resolution of any claim.  If the indemnifying party fails to timely
and adequately conduct the defense of any claim, then the other party shall be
entitled to take over control of such defense, including without limitation the
right to select new counsel. If the indemnified party unreasonably withholds,
delays or conditions its consent to any settlement for which such consent is
required pursuant to this Section 13.03, then the indemnifying party
shall continue to control the defense of such claim and shall have the right to
commence an action against the indemnified party in accordance with the dispute
resolution procedures outlined in Section 17.02 herein in the event adverse
result (including any Losses) resulting from a judgment or other determination
in such proceeding is less favorable to indemnifying party than the settlement
as to which indemnified party failed or refused to provide its consent.


 


20

















 


13.04       Limitations
of Liability.


 


a.             Special
Damages.  NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
EVEN IF SUCH DAMAGES WERE FORESEEABLE..


 


b.             Exclusive
Remedies.  There are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein and the Supplier
Buying Agreement.  Except as otherwise
provided in this Agreement, the indemnification rights provided hereunder shall
be the exclusive remedy of the parties with respect to any third-party claims
arising out of or related to this Agreement.


 


ARTICLE XIV. 
CONFIDENTIALITY


 


14.01       Confidential
Information.  During the term of
this Agreement, each party or its subsidiaries or Affiliates may receive, or
otherwise acquire from the other party, non-public technology, know-how, or
information (including without limitation, any technical, business, financial,
product, marketing, customer, supplier or other information) related to the
other party or its subsidiaries or affiliates (“Confidential Information”).


 


14.02       Non-Disclosure
of Confidential Information.  Each
party shall (i) use the Confidential Information of the other party solely for
purposes of this Agreement and (ii) shall disclose Confidential Information of
the other party only to its officers, employees, and third party consultants
whose duties reasonably require familiarity with such information.  Each party shall obtain from any such third
party consultant a legally enforceable written agreement not to disclose the
other party’s Confidential Information, or knowledge or know-how derived
therefrom, to any other Person or use such Confidential Information for any
purposes other than those contemplated by this Agreement.  Each party shall take all commercially
reasonable actions to protect the other party’s Confidential Information from
disclosure or misappropriation (but in no event shall such party use less than
a reasonable degree of care) and shall be responsible for compliance with the
restrictions in this Agreement by its Affiliates and the officers, employees
and third party consultants of itself and its Affiliates.  The confidentiality obligations of the
parties shall continue indefinitely as to trade secrets, product formulations
and manufacturing methods and processes, or for the longest period of time
permitted under applicable law, and for a period of five (5) years  for
all other Confidential Information, and each of the foregoing obligations shall
survive expiration or termination of this Agreement for any reason.


 


14.03       Non-Disclosure
of Agreement.  The existence of this
Agreement, each of its terms and conditions, and all information required to be
provided from one party to another under the terms and conditions of this
Agreement, including without limitation, the contents of Records and Reports,
shall be deemed Confidential Information that is subject to the non-disclosure
provisions of Section 14.02, except that this Agreement may be disclosed
as required by applicable law (including the disclosure requirements of the
securities laws) and to actual or


 


21

















 


potential investors, provided that such
investors agree to be bound by confidentiality restrictions substantially
equivalent to those contained in this Agreement.


 


14.04       Exceptions.  The confidentiality obligations of the
receiving party under this Article XIV shall not apply to any
information that:


 


a.             is,
or becomes, publicly known through no wrongful act of the receiving party or
its officers, employees or third party consultants;


 


b.             is
received by the receiving party without restriction from a third party without
breach of any obligation of nondisclosure;


 


c.             is
required to be publicly disclosed pursuant to a governmental or judicial
requirement or other requirement of law, but only after notifying the party
owning such information of such requirement, including the content of such
disclosure, the reasons that such disclosure is required by law and the time
and place that such disclosure is to be made and, if requested by the owning party,
using reasonable efforts to minimize such disclosure and to obtain confidential
treatment for all or relevant portions of the Confidential Information to be
disclosed;


 


d.             the
receiving party can show was already in its possession at the time of disclosure
hereunder and was not previously obtained from the disclosing party under a
continuing obligation of confidentiality; or


 


e.             is
developed by the recipient party without the use of Confidential Information
obtained from the disclosing party.


 


14.05       Return
of Confidential Information.  Upon
request of either party, and in any case upon expiration or termination of this
Agreement, each party shall promptly return to the other party all copies of
the other party’s Confidential Information in its possession or control, except
that each party may retain its copies of this Agreement and copies of any
Reports received from or provided to the other party.


 


ARTICLE XV. 
NOTICES


 


15.01       Notices.
All notices or other communications required or permitted under this Agreement
shall be in writing and shall be delivered personally, transmitted by
facsimile, or sent by registered, certified or express mail, postage prepaid or
sent by a reputable air courier for overnight delivery; provided, however, that
notification by facsimile shall be effective on the date of confirmed
transmission of such facsimile only if a copy of such notice is delivered by
registered, certified or express mail, postage prepaid or sent by a reputable
air courier for overnight delivery.  Any
such notice or other communication, if mailed by prepaid first class mail at
any time other than during a general discontinuance of postal service due to
strike, lockout or otherwise, shall be deemed to have been received upon
receipt, or if sent by overnight courier on the air courier’s scheduled day of
delivery, or if delivered by hand shall be deemed to


 


22

















 


have been received at the time it is delivered to the
applicable address noted below either to the individual designated below or to
an individual at such address having apparent authority to accept deliveries on
behalf of the addressee.  Notice of
change of address shall also be governed by this section.  In the event of a general discontinuance of
postal service due to strike, lockout or otherwise, notices or other
communications shall be delivered by hand and shall be deemed to have been
received in accordance with this section. 
Notice and other communications shall be addressed as follows:


 


If to Home Depot:


 


Home Depot Services LLC


Attn.: Merchandising Vice
President, Dept. 28


2455 Paces Ferry Road


Atlanta, Georgia  30339


 


With required copies (which shall not constitute
notice to Home Depot) to:


Home Depot U.S.A., Inc.


Attn.: Sr. Director,
Legal - Operations


2455 Paces Ferry Road


Atlanta, Georgia  30339


 


If to UIC:  


United Industries
Corporation


Attn. General Counsel


2150 Schuetz Road


St. Louis, MO 63146


 


With required copies
(which shall not constitute notice to UIC) to:


 


Kirkland & Ellis LLP


Attn. Richard W. Porter,
P.C.


200 E. Randolph Drive


Chicago, IL 60601


 


For the purposes hereof,
“Business Day” means any day, other than Saturday, Sunday or any
statutory holiday.


 


23

















 


ARTICLE XVI. 
TERMINATION


 


16.01       Termination.


 


a.             With
Cause.


 


(i)            Trademark
Rights.  Subject to Home Depot’s
right to cure under Section 16.01(c), UIC shall have the right to
terminate the Trademark Rights:  (i)
upon Home Depot’s material breach of any of its obligations or duties under the
Trademark Rights; or (ii) upon Home Depot’s bankruptcy or insolvency.


 


(ii)           Supply
Obligations. Subject to the parties’ right to cure under Section
16.01(c), either party shall have the right to terminate the Supply
Obligations upon the other party’s material breach of its obligations or duties
under the Supply Obligations.  Without
limiting the generality of the foregoing, any breach by Home Depot of its
obligations under Section 5.02 or failure to pay pursuant to Section
10.02 shall be considered material breaches for which UIC may terminate.


 


b.             Without
Cause.


 


(i)            Trademark
Rights.  UIC may terminate the
Trademark Rights upon either party’s termination of the Supply
Obligations.  Home Depot may terminate
the Trademark Rights upon thirty (30) days written notice to UIC.


 


(ii)           Supply
Obligations.  Home Depot may
terminate the Supply Obligations at any time after expiration of its
exclusivity and Minimum Annual Volume purchase obligations, as provided in Section
5.02(c), upon twelve (12) months prior written notice to UIC.  Upon twelve (12) months prior written notice
to Home Depot, UIC may terminate the Supply Obligations at any time after the
later to occur of:  (i) the Assignment
Date; or (ii) June 30, 2009.


 


c.             Right
to Cure.  Except with respect to
Home Depot’s obligations pursuant to Sections 5.02 and 5.03,  if
either party fails to perform any material obligation under this Agreement, the
non-breaching party shall provide written notice thereof, specifying in detail
the nature of the breach and indicating its intent to terminate if such breach
is not cured.  The breaching party shall
have sixty (60) days from receipt of such notice to remedy such breach; provided,
however, that if the breaching party has within such 60-day period begun
and diligently pursued a course of action reasonably likely to cure such breach
as approved in writing by the non-breaching party, which approval shall not be
unreasonably withheld, conditioned or delayed, then the breaching party shall
have until one hundred and twenty (120) days after receipt of such notice to
cure such material breach.  Upon the
expiration of the cure period (including any extension) without cure, the
non-breaching party may elect to terminate the Trademark Rights and/or the
Supply Obligations upon written notice to the breaching party.


 


24

















 


16.02       Effects
of Termination.


 


a.             Use
of Marks.  Upon termination of the
Trademark Rights, the trademark license to Home Depot and all Third Party
Licenses granted pursuant to Section 3.01 shall immediately terminate,
and Home Depot agrees to discontinue all use of the Marks within one (1) year
of the date of termination and to cooperate with UIC or its appointed agent
to:  (i) ensure that all Third Party
Licensees immediately cease using the Marks; and (ii) apply to the appropriate
authorities to cancel recording of this Agreement from all government records
and to destroy all printed materials bearing any of the Marks.  Notwithstanding the foregoing, Home Depot
shall have the right, for a period of one (1) year, to advertise, market and
sell any of its inventory of Vigoro-Branded Products existing as of the
expiration or termination date and to continue to use the Marks as it had
previously to advertise and market such inventory.


 


b.             Amounts
Due.  Expiration or termination of
any portion of this Agreement shall not relieve either party of its obligation
to pay any amounts due or owing.


 


ARTICLE XVII. 
MISCELLANEOUS


 


17.01       Governing
Law.  This Agreement shall be governed
by and construed in accordance with, and the legal relations between the
parties hereto shall be determined in accordance with, the laws of the State of
Georgia, United States, without regard to any Georgia laws relating to or
governing conflict of laws issues.


 


17.02       Dispute
Resolution.  Except as otherwise
specified in this Agreement, in the event of any dispute, controversy, or claim
arising out of or relating to this Agreement or the formation, performance or
breach hereunder (a “Dispute”), upon the written notice of either party,
Home Depot and UIC shall attempt in good faith and with a spirit of mutual
cooperation to negotiate an amicable resolution of the Dispute for a 30-day
period or a mutually-agreed extension of time (the “Negotiating Period”).  Any Dispute not resolved during the
Negotiating Period shall be submitted to a single neutral arbitrator chosen by
mutual agreement of the parties, to resolve in accordance with the Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.  The parties shall equally share the cost of
the chosen arbitrator.  The party first
invoking arbitration shall do so by sending notice in accordance with this
Agreement.  The arbitrator shall make
every effort to complete the arbitration within ninety (90) days from the
initial demand for arbitration. The award rendered by the arbitrator shall be
binding upon the parties, but may be appealed to any court having jurisdiction
thereof by either of the parties.  The
provisions hereof shall be a complete defense to any suit, action or proceeding
instituted in any state, federal or local court, or administrative tribunal,
other than as expressly permitted herein. 
Any dispute resolution which takes place pursuant to this Agreement
shall be confidential and shall be treated as a compromise and settlement
negotiation for purposes of the Federal Rules of Evidence and State rules of
evidence.


 


17.03       Injunction.  Nothing in this Agreement shall prevent
either party from resorting to judicial proceedings for the limited purpose of
seeking a preliminary injunction or to avoid the


 


25

















 


barring of the claim under the applicable statute of limitations.  In addition, resort by either party to
negotiation or arbitration pursuant to this Agreement shall not be construed
under the doctrines of laches, waiver or estoppel to affect adversely the
rights of either party to pursue any such judicial relief; provided, however,
that irrespective of the filing of any such request for judicial relief the
parties shall continue to participate in the dispute resolution proceedings
required by Section 17.02.


 


17.04       Status
of Parties.  Nothing herein shall
create, be deemed to create or be construed as creating any partnership,
employer-employee, joint venture, franchise or agency relationship between the
parties hereto or shall be deemed to render any party to this Agreement liable
for any of the debts or obligations of another.  Neither party to this Agreement shall, by virtue of this
Agreement, in any way be considered an agent or representative of the other
party in any dealings with any third party, and no party hereto nor any of its
employees or agents shall have the power or authority to bind or obligate the
other party by virtue of this Agreement.


 


17.05       Entirety
of Agreement.  This Agreement and
all Schedules and Exhibits attached hereto (which are deemed incorporated into
this Agreement), and the Supplier Buying Agreement referenced in Section
6.09 (subject to the limitations of Section 6.09), reflect the
entire agreement of the parties with respect to the subject matter hereof and
all prior oral or written communications, agreements and undertakings are
merged herein.


 


17.06       Amendment.  No supplement, modification or waiver of
this Agreement shall be implied from any conduct of the parties or trade custom
or usage and to be binding must be executed in writing by UIC and Home Depot.


 


17.07       Assignment.  This Agreement may not be assigned or
otherwise transferred by either party without the prior written consent of the
other; provided, however, that either party may transfer this Agreement in the
event of and in connection with a Change of Control of either party.  Notwithstanding the foregoing, UIC may grant
a security interest in this Agreement and its rights hereunder to its primary
lenders (including any future lenders) and such lender may exercise creditors
remedies or foreclose and shall be entitled to exercise the rights of UIC
hereunder.  Unless assigned or
transferred in violation hereof, this Agreement shall be binding upon the
successors and permitted assigns of the parties hereto.


 


17.08       Waivers
and Consents.  No modification,
amendment or waiver of or with respect to any provision of this Agreement, nor
consent to any departure from strict compliance with any of the terms or
conditions hereof, shall be effective unless it shall be in writing and signed
by the party waiving such compliance. 
Any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.


 


17.09       Force
Majeure.  Neither party shall be in
breach of its obligations hereunder to the extent that performance is
prevented, delayed or (in the sole but reasonable judgment of the party
concerned) made materially more expensive as a result of the following
contingencies:  (a) any cause beyond the
reasonable control of the party concerned, including without limitation, acts
of God, riots, civil commotion, wars, threats of war, acts of terror or threats
thereof, hostilities between nations, governmental laws, orders or regulation,
embargoes, actions by government or agency thereof, storms, floods, fires,
accidents, labor disputes or strikes, sabotage, explosions, or


 


26

















 


other similar or different contingencies; or (b) any
commercial unavailability of raw material for the production of the Products, provided
that such commercial unavailability affects the industry generally and is not
specific to UIC.  In the event either
party is unable to perform its respective obligations, covenants and promises
under this Agreement, in whole or in part, due to circumstances of force
majeure, such party shall give the other party prompt notice of such
circumstances and shall take reasonable steps to remove or alleviate such
impediments to its performance as soon as possible.  Performance under the terms of this Agreement shall be suspended
for such time as the force majeure persists and shall resume as soon as
practicable after the force majeure has abated.  If the performance of any obligation under this Agreement is
delayed owing to any such causes, the parties hereto shall consult with each
other with respect to an equitable solution. 
If UIC cannot provide Products to Home Depot due to a force majeure
event for any continuous period of more than twenty (20) days, then UIC shall
have the option to use subcontractors to supply such Products to Home Depot,
without obligation to obtain Home Depot’s consent to such subcontractors.  If UIC cannot provide Products due to a
force majeure event and the parties cannot resolve the matter such that UIC (or
its subcontractors) is able to resume filling Home Depot’s orders for Products
within forty-five (45) days, then Home Depot shall have the option to source
such Products from a third party only during the duration of UIC’s inability to
supply and only for the affected Products, in which case: (A) Home Depot’s
purchases from such third party (up to an amount not to exceed such purchases
of such Products from UIC during the same period of time 12 months prior to
such event) shall apply towards Home Depot’s Minimum Annual Volume and Minimum
Aggregate Volume purchase obligations under this Agreement so as not to delay
assignment of the Marks pursuant to Article XI; and (B) the term of Home
Depot’s exclusivity and Minimum Annual Volume obligations under Section 5.02
shall be extended beyond the date that such obligations would otherwise
terminate under Section 5.02(c) for a period of time equal to the period
of time that Home Depot sourced Products from third parties.


 


17.10       Notices
and Consents.  In any instance under
this Agreement where a party’s approval or consent is required, or where
notification is required to be given to a party, if such party fails to respond
in writing within ten (10) Business Days from receipt (pursuant to Section
15.01) of such request for approval or consent, or receipt (pursuant to Section
15.01) of such notice, then such party shall be deemed to have granted its
approval or consent, and to have waived any objection, in connection with the
matter for which approval or consent was requested or about which it was
notified.  In the event a party from
whom approval or consent is requested withholds, delays or conditions such
approval or consent, then such party shall provide to the requesting party
within ten (10) Business Days from receipt (pursuant to Section 15.01)
of the request for approval or consent, in writing and with reasonable
specificity, its reasons for withholding, delaying or conditioning such
approval or consent


 


17.11       No
Third Party Beneficiaries.  The
parties hereto do not intend the benefits or rights contained in any provision
of this Agreement to inure to the benefit of any third party.  Notwithstanding anything contained in this
agreement to the contrary, the parties hereto agree that this Agreement shall
not be construed as creating any rights, claims or causes of action against any
party to this Agreement in favor of any third party.


 


27

















 


17.12       Import/Export
Laws.  In exercising its rights and
performing its obligations under this Agreement, each party and its Affiliates
shall fully comply with all applicable foreign, national, state and local
importation and exportation laws and regulations.


 


17.13       Severability.  If any provision or provisions of this
Agreement, or any portion of any provision hereof or thereof, shall be deemed
invalid or unenforceable pursuant to a final determination of any arbitrator or
court of competent jurisdiction, or as a result of future legislative action,
such portion or provision shall be deemed severed from this Agreement, but the
remainder of this Agreement shall continue in full force and effect.  Notwithstanding the foregoing, if such
ruling materially impairs the value of the entire Agreement as to either party,
the parties shall enter into good faith negotiations for a period of not more
than 90 days aimed at modifying the Agreement in a manner that compensates such
party for the lost value.  In the event
such negotiations are not successful, this Agreement shall automatically be
terminated upon expiration of the negotiation period.


 


17.14       United
Nations Convention of Contracts for the International Sale of Goods.  The parties agree that the United Nations
Convention of Contracts for the International Sale of Goods is specifically
excluded from application to this Agreement.


 


17.15       Counterparts.  This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


17.16       Survival.  The following provisions shall survive
expiration or termination of this Agreement:  Articles XII, XIII, XIV, XV, and Article
XVII.


 


[End of Agreement; signatures follow
on next page.]


 


28

















 


IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by its duly authorized officer or
representative on February 12, 2004, effective as of the Effective Date.


 


 


	
  United Industries Corporation

  	
  Home Depot U.S.A., Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Robert L. Caulk

  	
   

  	
  By:

  	
  /s/ Steven J. Jansen

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert L. Caulk

  	
   

  	
  Steven J. Jansen

  	
   

  
	
  Print Name

  	
  Print Name

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:

  	
  Chairman and CEO

  	
   

  	
  Its:

  	
  Merchandising Vice
  President

  	
   

  
	
   

  	
  Print Title

  	
   

  	
  Print Title

  	
   

  
									



 


29

















 


SCHEDULE A


 


Commodity
Fertilizers


 


	
  Product Description of Commodity Fertilizers

  
	
   

  
	
  All American 34-0-0

  
	
  All American 15-5-10

  
	
  All American 16-4-8

  
	
  All American &/or
  Soilife 10-20-10

  
	
  All American &/or
  Soilife 8-8-8

  
	
  All American &/or
  Soilife 10-10-10

  
	
  All American &/or
  Soilife 13-13-13

  
	
  All American Ammonium
  Sulfate

  
	
  Soilife Ammonium
  Sulfate

  
	
  Soilife 34-0-0

  
	
  All American &/or
  Soilife 6-12-12

  
	
  All American &/or
  Soilife 5-10-5

  
	
  All American &/or
  Soilife 10-6-4

  
	
  All American Ammonium
  Phosphate

  
	
  All American &/or
  Soilife 6-6-6

  
	
  All American Natural
  Organic

  
	
  All American Iron
  Sulfate

  
	
  All American Magnesium
  Sulfate

  
	
  All American Magnesium
  Sulfate

  
	
  All American Maganese
  Sulfate

  
	
  All American Maganese
  Sulfate

  
	
  All American Triple
  Super Phosphate

  
	
  All American Sulfate of
  Potash

  
	
  All American
  Milorganite

  
	
  P/I Super 8-8-8

  
	
  P/I Super 10-10-10

  
	
  P/I Super 13-13-13

  
	
  P/I Super 12-12-12

  
	
  P/I Super 16-4-8

  
	
  Marble Chips

  
	
  Bark Rock Nuggets

  
	
  Lime Rite Pellitized
  Lime

  
	
  5# Deco Marble Chips

  



 


30

















 


	
  Product Description of Commodity Fertilizers

  
	
   

  
	
  5# Deco Pebbles

  
	
  Greystone Slate

  
	
  All American 16-16-16

  
	
  All American 12-12-12

  
	
  Aluminum Sulfate

  
	
  Pulverized Limestone

  



 


31

















 


SCHEDULE B


 


Marks


 


	
  Mark

  	
   

  	
  Permitted

  Territories

  	
   

  	
  Permitted
  Product Categories

  	
   

  	
  Registration/

  Application

  Numbers

  
	
  VIGORO

  	
   

  	
  United States

  	
   

  	
  1.  Fertilizers

  	
   

  	
  1.

  	
  186,125

  
	
   

  	
   

  	
   

  	
   

  	
  2.  Pesticides and weedicides

  	
   

  	
  2.

  	
  822,216

  
	
   

  	
   

  	
   

  	
   

  	
  3.  Seeds for agricultural purposes

  	
   

  	
  3.

  	
  2,230,960

  
	
   

  	
   

  	
   

  	
   

  	
  4.  Mechanical fertilizer spreaders

  	
   

  	
  4.

  	
  2,266,583

  
	
   

  	
   

  	
  Canada

  	
   

  	
  1.  Fertilizer

  	
   

  	
  1.

  	
  45,670

  
	
   

  	
   

  	
   

  	
   

  	
  2.  Fertilizer spreaders

  	
   

  	
  2.

  	
  505,233

  
	
   

  	
   

  	
  European Community

  	
   

  	
  Fertilizers

  	
   

  	
   

  	
  510,701

  
	
   

  	
   

  	
  Germany

  	
   

  	
  Fertilizers

  	
   

  	
   

  	
  761,661

  
	
   

  	
   

  	
  Mexico

  	
   

  	
  All Goods in Int’l
  Class 1

  	
   

  	
   

  	
  447922

  
	
   

  	
   

  	
  Norway

  	
   

  	
  All Goods in Int’l
  Class 1

  	
   

  	
   

  	
  189,257

  
	
   

  	
   

  	
  Puerto Rico

  	
   

  	
  Chemicals

  	
   

  	
   

  	
  7,804

  
	
   

  	
   

  	
  Switzerland

  	
   

  	
  Fertilizers

  	
   

  	
   

  	
  445,212

  
	
   

  	
   

  	
  United Kingdom

  	
   

  	
  Fertilizers

  	
   

  	
   

  	
  812,017

  
	
  VIGORO (flower design)

  	
   

  	
  United States

  	
   

  	
  Fertilizers and soil
  conditioning agents for domestic and agricultural use

  	
   

  	
   

  	
  2,163,609

  
	
  VIGORO DEEP GREEN

  	
   

  	
  Canada

  	
   

  	
  Fertilizers

  	
   

  	
   

  	
  377,240

  
	
  VIGORO GARDENER’S REPORT

  	
   

  	
  Canada

  	
   

  	
  Printed periodical publications and related materials

  	
   

  	
   

  	
  451,838

  



 












*Goods
in International Class 1 include chemicals used in industry, science and
photography, as well as in agriculture, horticulture, and forestry; unprocessed
artificial resins; unprocessed plastics; manures; fire extinguishing
compositions; tempering and soldering preparations; chemical substances for
preserving foodstuffs; tanning substances; and adhesives used in industry.


 


32

















 


SCHEDULE C


 


Pricing


 


2004 VIGORO PRICING SUMMARY


 


	
   

  	
  Item #

  	
   

  	
  Sku #

  	
   

  	
  Brand

  	
   

  	
  SKU
  Description

  	
   

  	
  Ship

  Unit

  	
   

  	
  Std.

  Pack

  	
   

  	
  Size/

  Weight

  	
   

  	
  2004 SOQ

  Cost

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUB-CLASS:
  LAWN FERTILIZERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All
  Purpose

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  722327

  	
   

  	
  606609

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Lawn Fertilizer

  	
   

  	
  35

  	
   

  	
  Varies

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722328

  	
   

  	
  606643

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Lawn Fertilizer

  	
   

  	
  100

  	
   

  	
  Varies

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522320

  	
   

  	
  606366

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Centipede Lawn Fertilizer

  	
   

  	
  120

  	
   

  	
  120

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522335

  	
   

  	
  607072

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Texas Turf Fertilizer

  	
   

  	
  70

  	
   

  	
  70

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522173

  	
   

  	
  538470

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Ultra Iron

  	
   

  	
  66

  	
   

  	
  66

  	
   

  	
  25#

  	
   

  	
  $  [ * ]

  
	
  Weed & Feed

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  722343

  	
   

  	
  642774

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Weed & Feed

  	
   

  	
  100

  	
   

  	
  Varies

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722344

  	
   

  	
  643654

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Weed & Feed

  	
   

  	
  35

  	
   

  	
  Varies

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522347

  	
   

  	
  607882

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Lawn Weed Control

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522352

  	
   

  	
  608316

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Bahia Weed & Feed

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522321

  	
   

  	
  606432

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Centipede Weed & Feed

  	
   

  	
  120

  	
   

  	
  120

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722336

  	
   

  	
  643866

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T St. Augustine W&F

  	
   

  	
  90

  	
   

  	
  90

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722337

  	
   

  	
  607175

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T St. Augustine W&F

  	
   

  	
  49

  	
   

  	
  49

  	
   

  	
  10M

  	
   

  	
  $  [ * ]

  
	
  Crabgrass Preventer

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  722322

  	
   

  	
  606433

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T CrabGrass Preventer + Fertilizer

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722323

  	
   

  	
  606553

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T CrabGrass Preventer + Fertilizer

  	
   

  	
  30

  	
   

  	
  35

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722324

  	
   

  	
  606603

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T CrabGrass Preventer

  	
   

  	
  80

  	
   

  	
  80

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
  Starter

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522232

  	
   

  	
  480253

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Starter

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  722338

  	
   

  	
  607369

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Starter Fertilizer

  	
   

  	
  100

  	
   

  	
  Varies

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722339

  	
   

  	
  607372

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Starter Fertilizer

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
  Moss
  Control

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522334

  	
   

  	
  606741

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Moss Control + Fertilizer

  	
   

  	
  66

  	
   

  	
  66

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  721468

  	
   

  	
  538-359

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  Moss Control + Fertilizer (filled inventory)

  	
   

  	
  66

  	
   

  	
  66

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522350

  	
   

  	
  606884

  	
   

  	
  Vigoro

  	
   

  	
  VIG U/T Moss -EX

  	
   

  	
  90

  	
   

  	
  90

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  521465

  	
   

  	
  538458

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  Moss -EX (filled inventory)

  	
   

  	
  90

  	
   

  	
  90

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
  Lawn
  Insect Control + Fertilizer

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522331

  	
   

  	
  606889

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Lawn Insect Control

  	
   

  	
  100

  	
   

  	
  100

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  522333

  	
   

  	
  607753

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Lawn Insect Control

  	
   

  	
  30

  	
   

  	
  30

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
  Winterizer

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  722325

  	
   

  	
  235075

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Winterizer

  	
   

  	
  110

  	
   

  	
  110

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722326

  	
   

  	
  235525

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Winterizer

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722348

  	
   

  	
  232749

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Winterizer Weed & Feed

  	
   

  	
  110

  	
   

  	
  110

  	
   

  	
  5M

  	
   

  	
  $  [ * ]

  
	
   

  	
  722349

  	
   

  	
  233507

  	
   

  	
  Vigoro

  	
   

  	
  VIG
  U/T Winterizer Weed & Feed

  	
   

  	
  35

  	
   

  	
  35

  	
   

  	
  15M

  	
   

  	
  $  [ * ]

  
	
  SUB-CLASS:
  GARDEN FERTILIZERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All
  Purpose

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  500612

  	
   

  	
  554697

  	
   

  	
  Vigoro

  	
   

  	
  Ultra
  Vigoro All Purpose 3 Month

  	
   

  	
  9

  	
   

  	
  378

  	
   

  	
  5#

  	
   

  	
  $  [ * ]

  
	
  Blooming

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  501200

  	
   

  	
  740020

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Bloom Master

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  
	
  Rose
  & Flower

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522250

  	
   

  	
  480121

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Rose Food

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501160

  	
   

  	
  739981

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Rose Food

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  



 






[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
 
33










 


	
  Tomato
  & Vegetable

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522246

  	
   

  	
  480152

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Tomato & Vegetable

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
  Acid Loving

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522248

  	
   

  	
  480148

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  ACR

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501180

  	
   

  	
  740002

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  ACR

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  
	
  Tree & Shrub

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522260

  	
   

  	
  426026

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Tree & Shrub Food

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501275

  	
   

  	
  110846

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Tree & Shrub Food

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501285

  	
   

  	
  483736

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Holly Food

  	
   

  	
  48

  	
   

  	
  48

  	
   

  	
  35#

  	
   

  	
  $  [ * ]

  
	
  Citrus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522244

  	
   

  	
  480178

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Citrus & Avocado

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501220

  	
   

  	
  735217

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Citrus & Avocado

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  
	
   

  	
  522154

  	
   

  	
  740055

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Citrus & Avocado

  	
   

  	
  45

  	
   

  	
  45

  	
   

  	
  40#

  	
   

  	
  $  [ * ]

  
	
  Palm

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522242

  	
   

  	
  480219

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Palm Food

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501270

  	
   

  	
  735266

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Palm Food

  	
   

  	
  72

  	
   

  	
  72

  	
   

  	
  20#

  	
   

  	
  $  [ * ]

  
	
   

  	
  501280

  	
   

  	
  740071

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Palm Food

  	
   

  	
  45

  	
   

  	
  45

  	
   

  	
  40#

  	
   

  	
  $  [ * ]

  
	
  Bone/Blood

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  522238

  	
   

  	
  480245

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Bone Meal

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  
	
   

  	
  522240

  	
   

  	
  480250

  	
   

  	
  Vigoro

  	
   

  	
  Vigoro
  Blood Meal

  	
   

  	
  12

  	
   

  	
  504

  	
   

  	
  3.5#

  	
   

  	
  $  [ * ]

  



 








[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
 
34










 


SCHEDULE D


 


Pre-existing Contractual Obligations,
Restrictions or Other Impairments


 


License Agreement dated
January 1, 1998 among Gleason Corporation, IMC Agribusiness, Inc. and IMC
Kalium Canada, Ltd. (and assigned to Vigoro Acquisition Corp. as subsidiary of
Pursell Industries, Inc.)


 


License Agreement
(Vigoro) dated October 31, 2000 by and between Pursell Industries, Inc.,
Pursell Vigoro Canada Inc, and The Nu-Gro Corporation


 


Mexican Trademark
Registration No. 447922 for the mark “VIGORO.” 
UIC’s rights in the “VIGORO” mark in Mexico are uncertain due to chain
of title issues.  UIC continues to
attempt to correct the chain of title, but cannot guarantee, and gives no
representation or warranty, that it will be successful in correcting the chain
of title or in otherwise maintaining or establishing rights in the “VIGORO”
mark in Mexico.


 


Sponsorship Agreement
among United Industries Corporation, Joe Gibbs Racing, Inc. (“JGR”) and Redline
Sports Marketing, Inc. (“RSM”) for use by JGR and RSM of the VIGORO Mark as set forth in such Sponsorship
Agreement.  Such Sponsorship Agreement
is anticipated to be executed by the parties on or about February 12, 2004.


 


35

















 


SCHEDULE
E


 


Highly
Confidential Additional Terms and Conditions


 


This Schedule E contains certain highly
confidential additional terms and conditions of the Agreement.  Such additional terms and conditions have
here been given the same Section numbers and Section headings as the
corresponding Sections of the Agreement.


 


5.02(b)(i)                Minimum Annual Volume
Requirement.  The Minimum Annual
Volume requirement shall be [ * ] US Dollars (US $[ * ]) (based upon [ * ]).


 


5.03(a)(i) Minimum Aggregate Volume.  The Minimum Aggregate Volume requirement
shall be [ * ] US Dollars (US $[ * ]) (based upon [ * ]).


 


5.03(b)(i)                Final Year Volume.  The Final Year Volume requirement shall be [
* ]US Dollars (US $[ * ]) (based upon [ * ]).


 


6.04                           Order
Procedure.  Subject to a force
majeure event pursuant to Section 17.09 of the Agreement, if, within [ *
], UIC fails:  (i) to achieve a minimum
fill rate [ * ]; (ii) the orders during such [ * ] do not exceed [ * ] of the
forecasted volume agreed upon for such period pursuant to Section 6.01;
and (iii) UIC fails to cure any such deficiency (as provided below) within the
[ * ] following its receipt of Home Depot’s written notice setting forth in
reasonable detail such deficiency, then, to the extent that all of the
conditions set forth in the preceding subsections (i), (ii) and (iii) have been
satisfied, UIC shall [ * ].  Any failure
by UIC to meet the fill rate hereunder shall be deemed cured whenever UIC
achieves the [ * ] fill rate within any [ * ]. 
The foregoing amounts constitute liquidated damages, which shall
constitute Home Depot’s sole and exclusive remedy for UIC’s failure to fill any
order or to achieve the minimum fill rate hereunder.  Home Depot shall not have any right to setoff or otherwise deduct
amounts due to UIC so long as UIC makes the liquidated damages payments as set
forth above.


 











[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
 


36

















 


8.01         Sales and Marketing Obligations by
UIC.  The percentage of UIC’s
forecasted annual revenue (less forecasted returns) that Home Depot shall be
permitted to deduct from its monthly invoice payment requirements shall be
one-twelfth (1/12) of [ * ] of such forecasted annual revenue (less forecasted
returns) for the corresponding year.


 


10.02       Payment Terms.  Payment terms are [ * ].


 











[ * ] Certain confidential information contained in this document, marked by brackets, is filed with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
 
37










 


EXHIBIT A


 


Form
of Assignment


 


TRADEMARK
ASSIGNMENT


 


THIS TRADEMARK ASSIGNMENT
(this “Assignment”) is made and entered into as of [insert effective date] (“Effective Date”)
by and between United Industries Corporation, a Delaware corporation, with its
principal office at 2150 Schuetz Road, St. Louis, Missouri 63146 (“Assignor”),
and Home Depot U.S.A., Inc., a Delaware corporation, with its principal office at  2455 Paces Ferry Road, Atlanta, Georgia 30335 (“Assignee”).


 


WHEREAS, Assignor
and Assignee are parties to that certain Trademark License and Manufacturing
and Supply Agreement effective January 1, 2004 (the “Agreement”);


 


WHEREAS, pursuant
to the Agreement, Assignor wishes to assign to Assignee, and Assignee wishes to
acquire from Assignor, the United States trademark registrations set forth on
Schedule A attached hereto, the United States applications for trademark
registration set forth on Schedule B attached hereto, the foreign trademark
registrations set forth on Schedule C attached hereto, and the foreign
applications for trademark registration set forth on Schedule D attached hereto,
in each case, together with the goodwill of the business associated therewith
(collectively, the “Marks”); and


 


WHEREAS, Assignee
is a successor to that part of Assignor’s business to which the Marks pertain,
and that business is ongoing and existing.


 


NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby sells, assigns, transfers and sets over to
Assignee its entire right, title and interest in and to the Marks, for the
United States and for all foreign countries, including, without limitation, any
registrations and applications therefor, any renewals and extensions of the
registrations, and all other corresponding rights that are or may be secured
under the laws of the United States or any foreign country, now or hereafter in
effect, for Assignee’s own use and enjoyment, and for the use and enjoyment of
Assignee’s successors, assigns or other legal representatives, as fully and
entirely as the same would have been held and enjoyed by Assignor if this
Assignment had not been made, together with all income, royalties or payments
due or payable as of the Effective Date or thereafter, including, without
limitation, all claims for damages by reason of past, present or future
infringement or other unauthorized use of the Marks, with the right to sue for,
and collect the same for Assignee’s own use and enjoyment and for the use and
enjoyment of its successors, assigns or other legal representatives.


 


Assignor hereby requests the Commissioner of Patents
and Trademarks, and the corresponding entities or agencies in any applicable
foreign countries, to record Assignee as the assignee and owner of the
Marks.  Assignee shall be responsible
for all costs and expenses of recording such assignments.


 


38

















 


THE MARKS ARE PROVIDED TO ASSIGNEE
“AS IS.”  ASSIGNOR MAKES NO
REPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE,
NON-INFRINGEMENT, SUFFICIENCY, VALIDITY OR ENFORCEABILITY, AND ASSIGNEE COVENANTS NOT TO ASSERT ANY CLAIM OR DEFENSE
AGAINST ASSIGNORS BASED ON ANY SUCH DISCLAIMED WARRANTIES.  ASSIGNOR SHALL NOT BE LIABLE TO ANY PARTY
FOR ANY CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO THE MARKS EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 13.01(c) OF THE AGREEMENT.


 


Assignor shall, at Assignee’s expense,  take all further actions, and provide to Assignee,
Assignee’s successors, assigns or other legal representatives, all such
cooperation and assistance (including, without limitation, the execution and
delivery of any and all affidavits, declarations, oaths, samples, exhibits,
specimens, assignments, powers of attorney or other documentation), reasonably
requested by Assignee to more fully and effectively effectuate the purposes of
this Assignment, including, without limitation, with respect to the
following:  (1) the preparation and
prosecution of any application for registration, or any application for renewal
of a registration, relating to any of the rights assigned herein; (2) the
prosecution or defense of any interference, opposition, infringement or other
proceedings that may arise in connection with any of the rights assigned
herein, including, without limitation, testifying as to any facts relating to
the Marks and this Assignment; (3) obtaining any additional trademark
protection relating to rights assigned herein that Assignee reasonably may deem
appropriate that may be secured under the laws now or hereafter in effect in
the United States or in any foreign country; and (4) in the implementation or
perfection of this Assignment in all applicable jurisdictions throughout the
world.


 


*     *   
 *     *     *


 


39

















 


IN
WITNESS WHEREOF, Assignor and Assignee have caused this
Assignment to be executed by their duly authorized representatives as of the
Effective Date.


 


	
  UNITED
  INDUSTRIES CORPORATION

  	
  HOME
  DEPOT U.S.A., INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
											



 


 


	
  STATE OF

  	
  )

  
	
   

  	
  ) SS.

  
	
  COUNTY OF

  	
  )

  



 


On this        day of
             ,
there appeared before me
                                    
, personally known to me, who acknowledged that he/she signed the foregoing
Assignment as his/her voluntary act and deed on behalf and with full authority
of
                                    
..


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  



 


 


	
  STATE OF

  	
  )

  
	
   

  	
  ) SS.

  
	
  COUNTY OF

  	
  )

  



 


On this        day of
             ,
there appeared before me
                                    
, personally known to me, who acknowledged that he/she signed the foregoing
Assignment as his/her voluntary act and deed on behalf and with full authority
of                                     
..


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  



 


40

















 


SCHEDULE A


 


U.S. TRADEMARK
REGISTRATIONS


 


	
  Trademark
  No.

  	
   

  	
  Registration
  Date

  	
   

  	
  Mark

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


41

















 


SCHEDULE B


 


U.S. TRADEMARK
APPLICATIONS


 


	
  Application No.

  	
   

  	
  Application
  Date

  	
   

  	
  Mark

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


42

















 


SCHEDULE C


 


FOREIGN TRADEMARK
REGISTRATIONS


 


	
  Country

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  	
   

  	
  Mark

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


43

















 


SCHEDULE D


 


FOREIGN TRADEMARK
APPLICATIONS


 


	
  Country

  	
   

  	
  Application

  No.

  	
   

  	
  Application

  Date

  	
   

  	
  Mark

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


44