Exhibit 10.1
FIRST AMENDMENT TO LICENSE AGREEMENT
BY AND BETWEEN TGI FRIDAY'S INC. ("FRIDAY'S)
AND XXXXX BROTHERS, INC. ("LICENSEE")
DATED AS OF APRIL 3, 2000 (THE "AGREEMENT")
WHEREAS, the parties hereto have entered into the Agreement, pursuant to which
Friday's licensed the Proprietary Marks to Licensee in connection with the
manufacture, marketing, sale and distribution of certain Products as set forth
therein; and
WHEREAS, the parties hereto desire to amend the Agreement to add Mexico to the
Territory and to extend the Term of the Agreement as more particularly set forth
herein below.
NOW THEREFORE, in consideration of the mutual promises and conditions set forth
in the Amendment and other valuable consideration the receipt of which the
parties hereto acknowledge, the parties agree as follow:
Article 1. Amendments to Section 1 Definitions:
(a) The following new term "Consumer Price Index" shall be added
Consumer Price Index - means the U.S. City Average Consumer Price
Index ("CPI") as reported by the Bureau of Labor Statistics, U.S.
Department of Labor, on an unadjusted basis for the month of June in
each calendar year (base reference period 1982 - 4 = 100). For
purposes of calculating the increase in Minimum Sales due under this
Agreement, the CPI shall be calculated as follows:
FORMULA HYPOTHETICAL CALCULATION
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CPI for current period (June, 2008) 136.0
Less CPI for previous period (June, 2007) 129.9
Equals index point change 6.1
Divided by previous period CPI 129.9
Equals 0.047
Result multiplied by 100 0.047 x 100
Equals percent change 4.7
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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(b) The definition of the term "Minimum Sales" is hereby amended in its
entirety and replaced with the following definition:
Minimum Sales - Minimum Sales means: [*]
(c) The definition of the term "Territory" is hereby amended in its
entirety and replaced with the following definition:
Territory - the United States of America, territories and possessions,
U.S. Military bases and Puerto Rico as geographically constituted on
the Effective Date, and such other geographic regions that are added
with the mutual written consent of the parties. In addition, Licensee
shall have the right to distribute Products in Mexico in Wal-Mart,
Sam's Club and Price/Costco stores.
(d) The definition of the term "Term" is hereby amended in its entirety
and replaced with the following definition:
Term - a period commencing on the Effective Date and continuing,
unless terminated earlier pursuant to the terms of this Agreement,
until May 31, 2014. The parties agree to begin good faith renewal term
negotiations at least 180 days prior to the expiration of this
Agreement.
Article 2. Section 7.C. is amended in its entirety and replaced with the
following new section:
"7. REPORTS, ROYALTIES, PAYMENTS, STATEMENTS
C. ANNUAL MEETING. High level executives of Licensee and Friday's
shall meet yearly at Friday's corporate headquarters (or such other place as the
parties shall agree upon) to discuss the Friday's brand, new product
development, marketing, sales and other business issues."
Article 3. New Exhibit "A"
Attached hereto, and made a part hereof is a new Exhibit "A"
setting forth the Proprietary Marks in the Territory.
Article 4. Defined Terms. Capitalized terms used herein and not otherwise
defined or amended herein, shall have the respective meanings
given to them in the Agreement.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Article 5. Conflicts, Effects on Agreement. Any conflict between the terms
of this Amendment and the Agreement, the terms of this Amendment
shall prevail and, except as specifically provided in this
Amendment, the Agreement shall remain in full force and effect in
accordance with its terms. By execution of this Agreement, each
party hereto ratifies and confirms the terms of the Agreement, as
amended, and acknowledges that the Agreement is not currently
subject to any defaults.
Article 6. Governing Law. This Amendment shall be considered as having been
entered into in the State of Texas, United States of America, and
shall be construed and interpreted in accordance with the laws
thereof.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed on
this 11th day of July, 2001.
XXXXX BROTHERS, INC. TGI FRIDAY'S INC.
By: By:
--------------------------------- -------------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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EXHIBIT A
Any and all registrations or applications for the Proprietary Marks are held in
the name of TGI Friday's of Minnesota, Inc. ("TGIFM"), a wholly owned subsidiary
of Friday's.
UNITED STATES
PROPRIETARY MARKS
APPLICATION OR
TRADEMARK CLASS STATUS REGISTRATION NUMBER
--------- ----- ------ -------------------
Friday's 30 (Note 1) Pending 75/417,743
T.G.I. Friday's 30 (Note 1) Pending 75/417,742
T.G.I. Friday's & Design 30 (Note 1) Pending 75/418,630
Friday's 29 (Note 2) Registered 2,294,718
T.G.I. Friday's 29 (Note 2) Registered 2,294,717
T.G.I. Friday's & Design 29 (Note 2) Registered 2,300,670
Friday's 42 (Restaurant & bar services) Registered 977,903
T.G.I. Friday's 42 (Restaurant & bar services) Registered 925,656
T.G.I. Friday's & Design 42 (Restaurant & bar services) Registered 1,902,042
Friday's Fire Bites 30 (Note 3) Pending 76/220,938
Friday's 30 (Note 3) Pending Not Available
T.G.I. Friday's 30 (Note 3) Pending Not Available
T.G.I. Friday's & Design 30 (Note 3) Pending Not Available
NOTE 1. This application or registration covers the following goods: Fresh and
frozen appetizers consisting of pasta, dumplings or tortillas containing cheese,
vegetables, meat and/or other fillings; sauces, excluding cranberry sauce and
applesauce; ice cream; condiments, seasonings, seasoning mixes, spices and
marinades.
NOTE 2. This application or registration covers the following goods: Fresh and
frozen appetizers consisting primarily of vegetables, meat and/or cheese;
dairy-based dips; and soups.
NOTE 3. This application or registration covers the following goods: Pretzels,
crackers, corn chips, taco chips, tortilla chips, flour-based chips and/or grain
based chips,
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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MEXICO
PROPRIETARY MARKS
APPLICATION OR
REGISTRATION
TRADEMARK CLASS STATUS NUMBER
--------- ----- ------ ------
Friday's Local Class 38 (Note 1) Registered 351775
Friday's Local Class 46 (Note 2) Registered 351777
Friday's Local Class 66 (Restaurant Services) Registered 359198
T.G.I. Friday's Local Class 38 (Note 1) Registered 351772
T.G.I. Friday's Local Class 46 (Note 2) Registered 351774
T.G.I. Friday's Local Class 66 (Restaurant Services) Registered 311265
T.G.I. Friday's & Design 42 (Restaurant Services) Registered 495591
NOTE 1: This application or registration covers the following goods: Prints and
publications.
Note 2: This application or registration covers the following goods: Foods and
ingredients thereof.
Licensee and each Principal acknowledge that there can be no assurance that
TGIFM will succeed in obtaining or maintaining registrations of the Proprietary
Marks FRIDAY'S, T.G.I. FRIDAY'S, T.G.I. FRIDAY'S & DESIGN or any other
Proprietary Marks in the United States or Mexico.
TGIFM shall pursue registrations in the United States and Mexico of the
Proprietary Marks FRIDAY'S, T.G.I. FRIDAY'S, T.G.I. FRIDAY'S & DESIGN and any
other Proprietary Marks in the manner and to the extent determined by Friday's
or TGIFM in its sole discretion. The failure of Friday's or TGIFM to obtain
registration of any Proprietary Xxxx shall not be actionable by Franchisee or
any Principal. Nothing herein shall require that Friday's or TGIFM pay any
monies to any party to secure any such registration. Friday's or TGIFM may
abandon any applications or registrations for the Proprietary Marks at any time,
without notice to, or consent of, Licensee or any Principal.
Neither Friday's nor TGIFM shall incur any liability or obligations to
Licensee or any Principal by reason of (i) any of the foregoing or (ii) the
ownership of, or application for ownership of, the Proprietary Marks.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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