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EXHIBIT 10.5
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of January
30,
2004 (the "Effective Date") by and between
Centex Corporation, a corporation
organized under the laws of the State of
Nevada ("Centex"); Eagle Materials Inc.
(formerly known as Centex Construction
Products, Inc., or "CXP"), a corporation
organized under the laws of the State of
Delaware ("Eagle"); and Centex
Materials, LLC, a limited liability company
organized under the laws of the
state of Delaware ("CM"). Centex, Eagle and
CM are sometimes hereinafter
referred to collectively as the
"Parties."
WHEREAS, CXP was a wholly-owned subsidiary of Centex prior to
completing an initial public offering of
51% of its common stock on April 19,
1994; and
WHEREAS, in connection with the initial public offering, Centex and
CXP
entered into a Trademark License Agreement
dated April 19, 1994 (the
"Predecessor Agreement") pursuant to which
Centex licensed the use of the CENTEX
trademark and certain other trademarks
owned by Centex to CXP, and which remains
in full force and effect; and
WHEREAS, CXP and Centex entered into an Agreement and Plan of
Merger
with ARG Merger Corporation dated as of
July 21, 2003 (the "Merger Agreement"),
pursuant to which a portion of the shares
of CXP's common stock owned by Centex
will be exchanged for an equal number of
shares of CXP Class B Common Stock, the
purpose of which is to facilitate the
tax-free distribution by Centex to its
stockholders of its approximately 65%
equity ownership interest in CXP; and
WHEREAS, CXP and Centex also entered into a Distribution
Agreement
dated as of July 21, 2003 (the
"Distribution Agreement") pursuant to which (i)
CXP will pay a cash dividend to all of the
holders of CXP's common stock
immediately prior to the reclassification
and distribution; (ii) Centex will
distribute all of its holdings of CXP Class
B Common Stock and all of its
holdings of CXP's common stock to Centex's
stockholders on a pro rata basis; and
(iii) CXP changed its corporate name to
Eagle Materials, Inc.; and
WHEREAS, Eagle and Centex mutually desire to terminate the
Predecessor
Agreement; and
WHEREAS, as a related company of Centex, CXP used certain
trademarks in
connection with its business, and the
Parties desire to enter into this
Agreement to govern the continued use of
those trademarks after the termination
of the Predecessor Agreement and the
transactions described above.
NOW, THEREFORE, in consideration of the mutual covenants
contained
herein, and for other good and valuable
consideration, receipt of which is
hereby acknowledged, the Parties hereby
agree as follows:
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT
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1. DEFINITIONS
1.1 "Centex Materials Marks" means the combined term "Centex
Materials"
and the marks set forth in Exhibit 1.1
hereto.
1.2 "CXP Domain Name" means www.centex-cxp.com.
1.3 "Domain Names" means the domain names set forth in Exhibit
1.2
hereto and any other domain names that
incorporate the Licensed Marks and are
owned by Centex.
1.4 "Eagle Business" means each and every business conducted at
any
time prior to, on or after the Effective
Date by Eagle, CXP or any current or
future Subsidiary of Eagle, whether or not
such Subsidiary is a subsidiary of
Eagle as of the Effective Date.
1.5
"Eagle Group" means Eagle, CXP and each entity that is a current
or
future Subsidiary of Eagle, whether or not
such Subsidiary is a subsidiary of
Eagle as of the Effective Date.
1.6 "Eagle Marks" means the marks set forth in Exhibit 1.5
hereto.
1.7 "Licensed Marks" means the marks set forth in Exhibit 1.6
hereto.
1.8 "Subsidiary" means, with respect to any entity, (i) any
corporation
of which at least fifty percent (50%) of
the securities, or fifty percent (50%)
of other ownership interests, or at least
fifty percent (50%) of the ordinary
voting power are directly or indirectly
owned or controlled by such entity or
its Subsidiaries; (ii) any partnership of
which such entity or one of its
Subsidiaries is a general partner or as to
which such entity or its Subsidiaries
are entitled to receive at least fifty
percent (50%) of the assets upon the
liquidation thereof; or (iii) any limited
liability company of which such entity
or one of its Subsidiaries is a manager or
is entitled to exercise management
rights over the conduct of the business of
such limited liability company, or as
to which such entity or its Subsidiaries
are entitled to receive at least fifty
percent (50%) of the assets upon the
liquidation thereof.
2. THE PREDECESSOR AGREEMENT
2.1 The Predecessor Agreement shall terminate automatically upon
the
Effective Date, and Eagle hereby waives the
right to receive the notice required
by Paragraph 1.b. of the Predecessor
Agreement.
2.2 Notwithstanding Paragraphs 9 and 10 of the Predecessor
Agreement,
Eagle shall have the right to continue use
of the trademarks that were the
subject of the Predecessor Agreement for a
period of six (6) months after the
Effective Date. However, Eagle agrees (i)
not to order after the Effective Date
any additional supplies and documents which
have imprinted thereon the
trademarks that were the subject of the
Predecessor Agreement; and (ii) as soon
as practicable during said six-month
period, to
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT
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remove all signs and identifiers used in
the Eagle Business that refer to
Centex, except as provided in Section 3
below.
2.3 Eagle acknowledges and agrees that six months after the
Effective
Date, it can no longer use or display the
name "Centex" or any variations
thereof, or other trademarks, tradenames,
logos or identifiers using the name
"Centex" or otherwise owned by or licensed
to Centex which have not been
assigned or licensed to Eagle without the
prior written consent of Centex.
However, nothing contained in this
Agreement shall prevent Eagle from using the
"Centex" name in public filings with
governmental authorities, materials
intended for distribution to Eagle
stockholders, or any other communication in
any medium which describes the current or
former relationship between Centex,
CXP and/or Eagle.
3. THE CENTEX MATERIALS MARKS
3.1 License Grant. Centex hereby grants to CM, and CM hereby
accepts, a
non-sublicensable, exclusive, perpetual,
and royalty-free license to use the
Centex Materials Marks in connection with
its ready-mix concrete and aggregates
operations within the State of Texas,
subject to the limitations set forth in
this Agreement. The grant of the license
hereunder to the Centex Materials Marks
is non-transferable and non-assignable,
except that CM may transfer and/or
assign the license to a Subsidiary that is
the surviving company of a merger,
reorganization or consolidation with CM or
another Subsidiary of the Eagle
Group. Except as expressly set forth
herein, no rights or licenses are granted
to C