Exhibit 10.11(f)
OPTION AGREEMENT
THIS OPTION AGREEMENT is entered into as of this 5th day of November, l997
by and between AMBRA INC., a corporation organized and existing under the laws
of Delaware ("Buyer") and I.C. XXXXXX & COMPANY L.P., a limited partnership
organized and existing under the laws of the State of Delaware ("Seller").
WHEREAS, simultaneously with the execution of this Option Agreement, Buyer
is lending to Seller funds in the amount of Eleven Million Two Hundred and Fifty
Thousand Dollars ($11,250,000), which indebtedness of Seller to Buyer is
evidenced in a Secured Limited Recourse Promissory Note of Seller of even date
herewith (the "Note"), which funds are to be used by Seller to purchase certain
trademark rights and related assets from Brookhurst, Inc. ("Brookhurst")
referred to as the "Trademark Assets" in that certain Worldwide Rights
Acquisition Agreement dated September 30, l997 by and among Seller, Brookhurst
and Xxxxxxx Xxx (the "Acquisition Agreement");
WHEREAS, simultaneously herewith, Buyer has purchased from Seller all of
Seller's right, title and interest outside of the United States of America and
its territories and possessions in and to all "BOSS" trademarks and other
proprietary interests, if any, related thereto, together with the good will
related thereto;
WHEREAS, Buyer wishes to acquire an option to purchase from Seller all of
the remaining Trademark Assets of Seller and all rights of Seller under the
Acquisition Agreement and the Escrow Agreement referred to therein, subject to
all obligations of Seller thereunder,
and Seller is willing to grant such option on the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
ARTICLE I
GRANT OF OPTION
1.1 Grant of Option. Upon the terms and subject to the conditions
hereinafter set forth, Seller hereby grants to Buyer the right and option (the
"Option") to purchase (i) all of the Trademark Assets and all rights relating
to, or derived from, the Trademark Assets not already acquired by Buyer, and
(ii) all rights of Seller under the Acquisition Agreement, including, without
limitation, all rights of Seller under the Escrow Agreement referred to therein,
(the "Option Assets"). In the event the Option is exercised, the Option Assets
shall be sold free and clear of all pledges, security interests, mortgages and
liens (other than the lien of Buyer established pursuant to the Note and any
liens on the Option Assets which existed prior to the acquisition of the
Trademark Assets by Seller from Brookhurst) (collectively, "Encumbrances")
subject to the obligations of Seller arising from and after the Closing (as
hereinafter defined) under the Assumed Agreements (as defined in the Acquisition
Agreement) solely insofar as they relate to the use of the Option Assets after
Closing.
1.2 Timing and Exercise Procedure. (a) The Option may be exercised:
(i) At any time during the period commencing on the ninth anniversary
of the date hereof and ending on December 31, 2007; or
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(ii) Prior to the ninth anniversary of the date hereof on or
after such date as (x) Seller shall have been in substantial material
breach of any of Section 2.a, 2.b, 3.b., or 7.a. of the Concurrent Use
Agreement by and between Seller and Hugo Boss AG, which breach has not
been is not cured within thirty (30) days after the date of written
notice by Buyer to Seller of such breach; (y) an "Event of Default"
shall have occurred under the Note, or (z) the Foreign Manufacturing
Rights Agreement of even date herewith by and between Buyer and Seller
(the "Manufacturing Rights Agreement") shall terminate for any reason;
(in either case, the "Exercise Period"). The Option may be exercised by written
notice given by Buyer to Seller (an "Option Notice") at any time during the
Exercise Period, which written notice shall be given in accordance with the
notice provision of this Option Agreement.
(b) Notwithstanding the foregoing, as referred to in the Note, Seller
shall have a Put Option (the "Put Option") to cause Buyer to purchase the Option
Assets, as though the Option of Buyer had been exercised if the Manufacturing
Rights Agreement shall have terminated for any reason. Seller shall exercise
such Put Option by written notice to Buyer given in accordance with the notice
provision of this Option Agreement.
(c) The date on which the Option Notice or Put Notice is given is
hereinafter referred to as the "Exercise Date".
1.3 Exercise Price. In consideration for the sale of the Option Assets,
Buyer agrees to pay to Seller the amount of Eleven Million Two Hundred and Fifty
Thousand Dollars ($11,250,000), less any proceeds collected by Seller (and not
paid over to Buyer) as a result of
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claims against Brookhurst pursuant to the Acquisition Agreement and/or Escrow
Agreement which do not represent Actual Costs of Seller as defined in the Note,
on the Closing Date by wire transfer to a bank account designated in writing by
Seller on at least two (2) business days' notice.
1.4 Closing. The closing of the purchase of the Option Assets (the
"Closing") shall take place, in the event the Option is exercised pursuant to
Section 1.2(a)(i), on December 31, 2007 or, in the event of exercise pursuant to
Section 1.2(ii) or the exercise of the Put Option pursuant to Section 1.2 (b) on
the date thirty (30) days after the Exercise Date (the "Closing Date") at the
offices of Coudert Brothers, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 a.m. local time or at such other time and place mutually agreed to by the
parties. At the Closing the parties shall exchange the various closing
documents referred to in Article II of this Option Agreement.
ARTICLE II
CLOSING DELIVERIES
2.1 Deliveries to be Made by Seller. On the Closing Date, Seller shall
have executed and delivered to Buyer the following:
(a) executed trademark assignments in forms reasonably acceptable to
Buyer and Seller transferring all trademarks (and other proprietary interests
related thereto, if any,) including the good will related thereto, constituting
or relating to Option Assets (the "Trademarks") to Buyer;
(b) possession of (i) an original of each of Seller's trademark
registrations then currently in effect and constituting Option Assets (except
that a copy of Seller's California state
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registration may be delivered) and (ii) Seller's original trademark application
and registration files relating to the Option Assets including, for example,
letters or other materials from each of Seller's domestic trademark counsel
showing deadlines for trademark office actions to the extent in Seller's
possession, custody or control;
(c) appropriate original instruments of consent or waiver executed by
third parties whose consent or waiver is required to consummate the transactions
contemplated hereby;
(d) an executed agreement of assignment and assumption of Assumed
Agreements (the "Assumption Agreement") in a form reasonably acceptable to Buyer
and Seller; and
(e) such other instruments and documents as may be elsewhere herein
required.
2.2 Deliveries To Be Made by Buyer. On the Closing Date, Buyer shall have
executed and delivered to Seller the following:
(a) the payment provided for in Section 1.3(a), which payment may be
satisfied by offset against principal amounts owing to Buyer under the Note; and
(b) the Assumption Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.1 Organization and Good Standing of the Seller. Seller is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware.
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3.2 Authority; Execution. Seller has all the requisite power and
authority, corporate and otherwise, to execute, deliver and perform its
obligations under this Option Agreement. The execution and delivery of this
Option Agreement, and each of the other instruments of transfer, conveyance and
assignment to be delivered hereunder, have been duly and validly authorized by
all necessary corporate and other action on the part of Seller, and this Option
Agreement has been and each of such other instruments to be delivered hereunder
will be duly executed by Seller. This Option Agreement constitutes the valid
and binding agreement of Seller, enforceable against Seller in accordance with
its respective terms.
3.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Option Agreement
by Seller and the consummation of the transactions contemplated hereby will
not: (i) violate or conflict with any provision of the charter documents
or by-laws of Seller; (ii) violate or conflict with, result in the breach
or termination of or otherwise give any other contracting party the right
to terminate, or constitute a default (or an event which, with the lapse of
time, or the giving of notice, or both, will constitute a default) under,
any contract or other instrument to which Seller is a party and which
relate to the Option Assets or by which Seller is bound, or result in the
creation of any Encumbrance upon any of the Option Assets pursuant to the
terms of any such contract or instrument, or (iii) violate or conflict with
any judgment, order, writ, injunction or decree of any court or
governmental body of any jurisdiction applicable to Seller (excluding any
judgments, orders, writs, injunctions or decrees in any actions or
proceedings involving Hugo Boss A.G. or its affiliates) or, to the
knowledge of Seller, any law or regulation materially adversely affecting
Buyer's ability to exploit the Option Assets.
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(b) There are no notices, licenses, consents, permissions or approvals
of any nature whatsoever which are required to be obtained by Seller from any
Federal, state or local governmental or regulatory body or other third party or,
to Seller's knowledge, from any foreign governmental or regulatory body for the
consummation of the transactions contemplated by this Option Agreement, or as a
condition to the sale, assignment and transfer of the Option Assets to be
effected hereunder.
3.4 No Alienation of Rights. Seller has not transferred, assigned,
licensed or otherwise encumbered with Encumbrances any of its rights in any
Option Asset.
3.5 Ownership of Option Assets. As between Seller and all
affiliates and other persons or entities who have an ownership interest in
Seller (or any affiliate thereof) or who may have been expressly authorized by
Seller to use the Option Assets, Seller owns all rights in and to the Option
Assets.
3.6 Knowledge. Whenever a statement regarding the existence or
absence of facts in this Option Agreement is qualified by a phrase such as to
Seller's knowledge or words to similar effect, it is intended by the parties
that the information attributed to Seller be actually known, or information
which should have been known based on reasonable inquiry by the President, the
Chairman, any Chief Executive Officer or the Chief Financial Officer of Seller.
3.7 Materiality. The phrase "materially adversely affecting Buyer's
ability to exploit the Option Assets" shall be deemed to mean (i) the existence
or occurrence at any time from and after the date hereof of any actual harm, or
the existence of any reasonably anticipated actual harm, to Buyer's ability to
exploit the Option Assets or (ii) either (x) the failure of Seller to remedy the
breach in question assuming the breach is remediable or (y) the inability of
Seller
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to remedy the breach in question without prejudice to Buyer's ability to exploit
the Option Assets. For purposes of this Section 3.7, no "actual harm" shall be
deemed to exist as to any of the first three claims of harm unless any such
claim of harm reasonably involves at least the following amounts in damage or
loss:
First Claim $35,000
Second Claim $25,000
Third Claim $25,000
it being agreed that, without prejudice to, or limitation of, Seller's ability
to claim that any subsequent claim involves no "actual harm", no such monetary
threshold applies to any subsequent claims.
3.8 No Representations and Warranties as to Trademark Assets. Seller
makes no representations and warranties of any kind, and shall have no
responsibility, liability or obligations whatsoever to Buyer or any affiliate
thereof (including, without limitation, for any claims for indemnity) with
respect to any matter relating to the Trademark Assets prior to the xxxx Xxxxxx
acquired them, including, without limitation, the quality of title, the
condition or use of the Trademark Assets or the conduct of the business
thereunder prior to the xxxx Xxxxxx acquired the Trademark Assets or with
respect to any actions taken at the direction of Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Organization and Good Standing of Buyer. Buyer is a corporation
duly organized and validly existing under the laws of Delaware.
4.2 Authority; Execution. Buyer has all requisite power and
authority, corporate and otherwise, to execute, deliver and perform its
obligations under this Option Agreement. The
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execution and delivery of this Option Agreement, and each of the other
instruments of transfer, conveyance and assignment delivered hereunder, by Buyer
have been duly and validly authorized by all necessary corporate and other
action on the part of Buyer, and this Option Agreement and each of such other
instruments has been duly executed by Buyer, as applicable. This Option
Agreement constitutes the valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms.
4.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Option Agreement
by Buyer and the consummation of the transactions contemplated hereby will not:
(i) violate or conflict with any provision of the Certificate of Incorporation
or by-laws of Buyer; (ii) violate or conflict with, result in the breach or
termination of or otherwise give any other contracting party the right to
terminate, or constitute a default (or an event which, with the lapse of time,
or the giving of notice, or both, will constitute a default) under, any contract
or other instrument to which Buyer is a party; or (iii) violate or conflict with
any judgment, order, writ, injunction or decree of any court or governmental
body of any jurisdiction applicable to Buyer (excluding any judgments, orders,
injunctions, decrees or awards in any actions or proceedings involving Seller or
its affiliates) or, to the knowledge of Buyer, any law or regulation materially
adversely affecting Buyer's ability to consummate the transactions contemplated
by this Option Agreement.
(b) There are no notices, licenses, consents, permissions or
approvals of any nature whatsoever which are required to be obtained by Buyer
from any Federal, state or local governmental or regulatory body or other third
party or, to Buyer's knowledge, from any
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foreign governmental or regulatory body for the consummation of the transactions
contemplated by this Option Agreement, or as a condition to the sale, assignment
and transfer of the Trademark Assets to be effected hereunder.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER
5.1 Conditions Precedent to Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated under this Option Agreement are
subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Buyer):
(a) the representations and warranties of Seller contained in Article
III of this Option Agreement shall be true and correct in all material respects
as of the Closing Date;
(b) Seller shall have performed and complied in all material
respects with all obligations, covenants and undertakings required by this
Option Agreement to be performed or complied with by Seller on or prior to the
Closing Date;
(c) there has been no material adverse change within the control of
Seller in the Option Assets; provided that in no event shall a decrease in sales
of products sold under the Option Assets or a change in the market for such
products be deemed such a material adverse change;
(d) Buyer shall have been furnished with a certificate, dated the
Closing Date and executed by an officer of Seller, certifying to the fulfillment
of the conditions specified in Sections 5.1(a), (b) and (c); and
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(e) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Option Agreement.
5.2 Conditions Precedent to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated under this Option Agreement
are subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Seller):
(a) the representations and warranties of Buyer set forth in Article
IV of this Option Agreement shall be true and correct in all material respects
as of the Closing Date;
(b) Buyer shall have performed and complied in all material respects
with all obligations, covenants and undertakings required by this Option
Agreement to be performed or complied with by Buyer on or prior to the Closing
Date;
(c) Seller shall have been furnished with a certificate, dated the
Closing Date and executed by an officer of Buyer, to certifying the fulfillment
of the conditions specified in Sections 5.2(a) and (b); and
(d) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Option Agreement.
5.3 Effect of Closing. The parties acknowledge and agree that proceeding
with the Closing shall not prejudice any rights or remedies of either party for
breach of any covenant, representation or warranty of the other party existing
at or prior to Closing.
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ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
6.1 All representations and warranties contained in or made pursuant to
this Option Agreement shall be continuing and shall survive and remain in full
force and effect after the date hereof and for a period of five (5) years
following Closing notwithstanding any investigation conducted by any party
hereto. All claims for indemnification under this Option Agreement shall be
brought by the parties exclusively pursuant to, and shall be disposed of
exclusively in accordance with the terms of, this Article VI.
6.2 Indemnity Obligations of Seller. Seller agrees to indemnify and hold
Buyer and its parent corporations, subsidiaries, shareholders, affiliates,
directors, officers, employees, agents, successors and assigns (collectively,
"Buyer Affiliates") harmless from, and to reimburse Buyer and each Buyer
Affiliate for, any Buyer Indemnity Claims (as that term is hereinafter defined)
arising under this Option Agreement. For purposes of this Option Agreement,
the term "Buyer Indemnity Claim" shall mean any loss, damage, deficiency, claim,
liability, obligation, suit, action, fee, cost or expense of any nature
whatsoever arising out of, based upon or resulting from (i) the breach of any
representations and warranties of Seller which are contained in or made pursuant
to this Option Agreement; (ii) any breach or nonfulfillment of, or any failure
to perform, any of the covenants, agreements, obligations or undertakings made
by Seller in or pursuant to this Option Agreement; (iii) any liabilities or
obligations arising out of any and all actions, claims, suits, proceedings,
demands, assessments, judgments, recoveries, damages, costs and expenses or
deficiencies incident to the disposal of any matter which is the subject of
indemnification under this Section 6.2; and (iv) all interest, penalties, costs
and
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expenses (including, without limitation, all out-of-pocket expenses, reasonable
investigation expenses and reasonable fees and disbursements of accountants and
counsel) arising out of any matter which is the subject of indemnification under
this Section 6.2 and in which and to the proportionate extent Buyer Affiliates
prevail.
6.3 Indemnity Obligations of Buyer. Buyer hereby agrees to indemnify and
hold Seller, and its respective subsidiaries, partners, shareholders,
affiliates, directors, officers, employees, agents, successors and permitted
assigns (collectively, "Seller Affiliates"), harmless from, and to reimburse
Seller and each Seller Affiliate for, any Seller Indemnity Claims (as that term,
is hereinafter defined) arising under this Option Agreement. For purposes of
this Option Agreement, the term "Seller Indemnity Claims" shall mean any loss,
damage, deficiency, claim, liability, suit, action, fee, cost or expense of any
nature whatsoever arising out of, based upon or resulting from (i) the breach of
any representations and warranties of Buyer which are contained in or made
pursuant to this Option Agreement; (ii) any breach or nonfulfillment of, or
failure to perform, any of the covenants, agreements, obligations or
undertakings made by Buyer in or pursuant to this Option Agreement; (iii) any
liabilities or obligations assumed by Buyer pursuant to the terms hereof; (iv)
any obligations or liabilities arising out of any and all actions, claims,
suits, proceedings, demands, assessments, judgments, recoveries, damages, costs
and expenses or deficiencies incident to the disposal of any matter which is the
subject of indemnification under this Section 6.3; and (v) all interest,
penalties, costs and expenses (including, without limitation, all out-of-pocket
expenses, reasonable investigation expenses and reasonable fees and
disbursements of counsel and accountants) arising out of any matter which
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is the subject of indemnification under this Section 6.3 and in which and to the
proportionate extent Seller Affiliates prevail.
6.4 Notification of Claims. In the event of the occurrence of any event
which any party asserts constitutes a Buyer Indemnity Claim or Seller Indemnity
Claim, as applicable, the indemnified party shall provide the indemnifying party
with prompt notice of such event, including, without limitation, any facts and
circumstances which give rise to such claim, and shall otherwise make available
to the indemnifying party all relevant information which is material to the
claim and which is in the possession of the indemnified party. If such event
involves the claim of any third party (a "Third-Party Claim"), the indemnifying
party shall have the right to elect to join in the defense, settlement,
adjustment or compromise of any such Third-Party Claim, and to employ counsel to
assist such indemnifying party in connection with the handling of such claim, at
the sole expense of the indemnifying party, and no such claim shall be settled,
adjusted or compromised, or the defense thereof terminated, without the prior
consent of the indemnifying party unless and until the indemnifying party shall
have failed, after the lapse of a reasonable period of time, but in no event
more than 30 days after written notice to it of the Third-Party Claim, to join
in the defense, settlement, adjustment or compromise of the same. An
indemnified party's failure within a reasonable time to give notice or to
furnish the indemnifying party with any relevant data and documents in its
possession in connection with any Third-Party Claim shall not constitute a
defense (in part or in whole) to any claim for indemnification by such party,
except and only to the extent that such failure shall result in any material
prejudice to the indemnifying party. If so desired by any indemnifying party,
such party may elect, at such party's sole expense, to assume control of the
defense, settlement,
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adjustment or compromise of any Third-Party Claim, insofar as the claim relates
to the liability of the indemnifying party, provided that such indemnifying
party shall obtain the consent of all indemnified parties before entering into
any settlement, adjustment and compromise of such claim, or ceasing to defend
against such claim, if as a result thereof, or pursuant thereto, there would be
imposed on an indemnified party any liability or obligation not covered by the
indemnification obligations of the indemnifying party under this Option
Agreement (including, without limitation, any injunctive relief or other
remedy).
ARTICLE VII
COVENANTS
7.1 Pre-Closing Rights.
Seller covenants and agrees that from the date hereof until the Closing:
(a) It will not, without the prior consent of Buyer, sell, assign,
transfer, license, pledge, encumber, or otherwise dispose of, any of the Option
Assets or enter into any merger or dissolve or liquidate except in a manner
consistent with Section 8.8 hereof.
(b) It will not take or permit any action as would cause its
representations and warranties set forth in Article III to not be true and
correct at Closing in any materially adverse respect.
7.2 Post-Closing Rights.
(a) From and after the Closing, all rights of Seller to use the
Option Assets shall forthwith cease and Seller shall immediately:
(i) cease the manufacture, sale, promotion and distribution of
products bearing the Trademarks except in accordance with this Section 7.2;
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(ii) within thirty (30) days after Closing, delete and henceforth
cease from making any reference to the Option Assets, including, without
limitation, all Trademarks, in, on or in connection with any advertising,
promotional or directory materials and cease all use by Seller of the name and
xxxx "BOSS", all variations thereon and all other names and marks which
incorporate the term "BOSS" in the future, except to the limited extent
presented in Section 7.2(e) hereof;
(b) Buyer shall have the option to purchase all or any portion of the
Seller's inventory of products bearing the Trademarks at sixty-two and one-half
percent (62.5%) of the average net sale price, but in any event at no less
favorable terms than the net sales price made available to any third party
within the prior six (6) months.
(c) Should Buyer not purchase all of the inventory of such products
from Seller, Seller (or its secured inventory lender) shall be entitled to sell
and distribute in the United States of America, its territories, possessions and
commonwealths, except Saipan and American Samoa, any remaining inventory bearing
the trademarks constituting Option Assets on a non-exclusive basis for a period
of nine (9) months from the Closing hereunder. After the expiration of such
nine (9) month period, Seller or Seller's secured inventory lender shall
completely remove the Trademarks (as defined in the Acquisition Agreement) from,
or if complete removal is not possible, destroy any products not sold and
distributed before the expiration of such nine (9) month period.
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7.3 Further Assurances.
(a) From time to time until the expiration of six (6) years from the
Closing Date, upon the request and at the expense of Buyer but without further
consideration, Seller shall:
(i) do, execute, acknowledge, deliver and file, or shall cause
to be done, executed, acknowledged, delivered and filed, all such further
acts, deeds, transfers, conveyances, assignments or assurances (including,
without limitation, for purposes of transferring record ownership of the
Option Assets to Buyer) as may be reasonably requested by Buyer for
transferring, conveying, assigning and reducing to Buyer's possession,
ownership and use of the Option Assets from and after Closing, including,
without limitation, executing on the Closing Date any assignments of
Trademarks in recordable form requested by Buyer; and
(ii) deliver to Buyer such other records, documentation and
information in Seller's possession or control as may be reasonably
requested by Buyer to assist Buyer in the use and protection of the Option
Assets from and after Closing.
(b) Seller shall keep and preserve any and all invoices, letters of
credit, bills of lading, and purchase orders which relate to the Option Assets
for three (3) years from and after Closing except as otherwise provided herein.
Seller may dispose of or destroy any such records, documentation and information
at any time, provided that Seller first shall notify Buyer so that Buyer may, at
its expense and within a reasonable time after receipt of such notice, obtain
from Seller any or all of said records, documentation and information. Seller
shall not
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be responsible for (i) destruction of records caused by an Act of God or other
"Force Majeure" event, or (ii) any immaterial non-intentional destruction of
records.
(c) Seller shall promptly remit or refer to Buyer any mail or other
communications, including without limitation, any written inquiries, relating to
the Option Assets which are received by Seller from and after the Closing for a
period of six (6) years from the date of the Closing.
ARTICLE VIII
GENERAL
8.1 Waiver. Any failure of Buyer, on the one hand, or Seller, on the
other, to comply with any of the obligations or agreements set forth in this
Option Agreement or to fulfill any condition set forth in this Option Agreement
may be waived only by written instrument signed by the other party. No failure
by any party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver of such right, nor shall any single or partial exercise of
any right hereunder by any party preclude any other or future exercise of that
right or any other right hereunder by that party.
8.2 Notices. All notices, requests or other communications required or
permitted hereunder (excluding, however, mail and/or communications covered
under paragraph 7.3(c) hereof) shall be given or made in writing and shall be
(i) delivered personally (including commercial carrier), (ii) sent by registered
or certified airmail, return receipt requested, postage prepaid or (iii) sent by
telecopier, addressed to the party to whom they are directed at the following
addresses, or at such other address as may from time to time be designated by
such party to the others in accordance with this Section 8.2:
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If to Seller, to:
I. C. Xxxxxx & Company L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and Co-Chief Executive Officer
Telecopier: 410/558-2096
I. C. Xxxxxx & Company L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman and Co-Chief Executive Officer
Telecopier: 212/695-7579
With a copy to:
Piper & Marbury L.L.P.
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: 410/576-1604
If to Buyer, to:
Ambra Inc.
c/o Hugo Boss USA Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx XxXxxx
Telecopier: 212/940-0619
With a copy to:
Coudert Brothers
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: 202/775-1168
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and
Howrey & Simon
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: 202/383-6610
Any notice, request or other communications shall be deemed to have been
given and to be effective upon receipt or refusal by the addressee. Any party
may change its address for notices hereunder, effective upon giving of notice of
such change hereunder to the other parties.
8.3 No Third Party Beneficiaries. Neither this Option Agreement nor any
provision hereof, nor any document or instrument executed or delivered pursuant
hereto, shall be deemed to create any right in favor of or impose any obligation
upon any person or entity other than Buyer and Seller and their respective
successors and assigns.
8.4 Equitable Remedies. Seller, on the one hand, and Buyer, on the other
hand, each acknowledge that it will be impossible to measure in money the
damages that would be suffered by Buyer and Seller, respectively, if the other
party fails to comply with the obligations imposed on it pursuant to paragraphs
1.1, 1.2, 2.1, 2.2, 7.1, 7.2 and 7.3 of this Option Agreement and that, in the
event of any such failure, the claiming party will be irreparably damaged and
will not have an adequate remedy at law. Each party shall, therefore, be
entitled to equitable relief, including, without limitation, injunctive relief
and/or specific performance to enforce such obligations of the other party and,
if any action should be brought in equity to enforce any provisions of this
Option Agreement, neither party shall raise the defense that there is an
adequate remedy at law. The parties further agree that notwithstanding the
provisions of Section 8.12 hereof, either party may, in accordance with the
provisions of this Section 8.4 seek
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immediate injunctive relief in court prior to the initiation of or pending
resolution of any dispute in arbitration. Except as expressly provided in this
Option Agreement, all specific remedies provided for in this Option Agreement
are cumulative and are not exclusive of one another or of any other remedies
available at law or in equity. Notwithstanding anything to the contrary set
forth herein, nothing contained elsewhere in this Option Agreement, including,
without limitation, the monetary thresholds set forth in Section 3.7 with
respect to the definition of "actual harm", shall be deemed to limit in any way
the availability of equitable relief for any breach of this Option Agreement.
8.5 Captions and Paragraph Headings. Captions and paragraph headings used
in this Option Agreement are for convenience only and are not a part of this
Option Agreement and shall not be used in interpreting or construing it.
8.6 Entire Agreement. The making, execution and delivery of this Option
Agreement by the parties has been induced by no representations, statements,
warranties or agreements other than those herein expressed. This Option
Agreement embodies the entire understanding of the parties with respect to the
subject matter hereof. Notwithstanding the foregoing, the parties acknowledge
that a number of different agreements and instruments of which the parties are
signatory are all being executed simultaneously with this Option Agreement.
This Option Agreement may be amended or modified only by an instrument of equal
formality signed by the parties or their duly authorized representatives. The
parties have made no representations or warranties not expressly set forth in
this Option Agreement. This Option Agreement supersedes and terminates all
prior discussions, negotiations, understandings, arrangements and agreements
among the parties relating to the subject matter hereof, except as expressly set
forth herein.
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8.7 Counterparts. This Option Agreement may be executed in any number of
duplicate counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
8.8 Assignability. Neither party hereto may assign any of its interests,
rights or obligations under this Option Agreement without the prior written
consent of the other party. Notwithstanding the foregoing, Buyer may assign its
rights, but not its obligations, under this Option Agreement to any entity under
common ownership and control with Buyer or to any successor-in-interest of Buyer
to the Option Assets without the consent of Seller. Any impermissible attempted
assignment of this Option Agreement without such prior written consent shall be
void as to the other parties to this Option Agreement. Notwithstanding anything
to the contrary set forth in this Agreement, Seller shall be permitted to assign
and transfer Seller's rights under this Agreement to any parent, subsidiary or
other affiliate of Seller if Seller or its successor in interest remains fully
liable for the performance of this Agreement by such assignee or transferee and
indemnifies Buyer with respect to any costs and damages Buyer may incur because
of such assignment or transfer.
8.9 Expenses. The parties shall each bear their own expenses in
connection with the negotiation, execution and delivery of this Option Agreement
and the performance of their respective obligations hereunder.
8.10 Successors and Assigns. This Option Agreement and the provisions
thereof shall be binding upon and inure to the benefit of the respective
successors and permitted assigns of the parties hereto.
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8.11 Governing Law. The validity, construction, operation and effect of
any and all of the terms and provisions of this Option Agreement shall be
determined and enforced in accordance with the laws of the State of New York
without giving effect to principles of conflicts of law thereunder. In the
event any legal action becomes necessary to enforce or interpret the terms of
this Agreement, the parties agree that such action will be brought in the U.S.
District Court for the Southern District of New York, and the parties hereby
submit to the jurisdiction of such court; provided, however, that any party may
enforce an arbitration award in any court of competent jurisdiction located in
New York City and the parties hereby submit to the jurisdiction of any such
court.
8.12 Arbitration. (a) Except as provided for in paragraph 8.4 above, all
disputes arising from or in any way in connection with this Option Agreement
shall be finally settled through binding arbitration conducted pursuant to the
Rules of Conciliation and Arbitration of the International Chamber of Commerce
in effect as of the date of the initiation of any dispute submitted to
arbitration under this section ("ICC Rules") by three arbitrators appointed in
accordance with the ICC Rules. Except as provided in this Section, no
modification or amendment of the ICC Rules applicable to any such arbitration
shall be binding upon the parties unless agreed to in writing by the parties.
In each such arbitration, each party to the dispute shall appoint one
arbitrators within 30 days of receipt by the defendant of the request for
arbitration, and the arbitrators so appointed by the parties shall appoint the
third arbitrator (who shall be the Chairman), within 30 days of the confirmation
of the later of the two arbitrators appointed by the parties. If any such
arbitration involves multiple claimants or multiple defendants, nomination of
arbitrators shall be governed by the applicable ICC rules.
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Notwithstanding anything to the contrary contained in the ICC rules: (i) the
arbitration proceedings shall be conducted in the City of New York, State of New
York; (ii) the arbitration proceedings shall be conducted in the English
language; and (iii) the arbitrators shall apply New York law without regard to
such state's choice of law rules. If the non-prevailing party does not comply
with an arbitration decision, the prevailing parties may immediately enforce the
arbitration decision in an equitable proceeding in court with both parties'
court costs and related attorneys' fees paid by the non-prevailing party in the
arbitration, unless the arbitration decision is modified, or not upheld or
enforced, in which case, each side shall bear its own costs and attorneys' fees.
8.13 Confidentiality. This Option Agreement, its terms, conditions and
provisions, and the trade secrets and confidential information of the parties
are strictly confidential and shall not be disclosed by either party to any
other person or entity without the prior written consent of the other party, or
as required by law, (i) except financial institutions (including but not limited
to investment bankers and underwriters), attorneys and accountants with which
the parties transact business, provided, however, that such third parties agree
in writing to abide by the terms of this provision; or (ii) except as
appropriate for the parties to protect and/or enforce their respective trademark
rights. Buyer and Seller further agree that disclosure of this Option Agreement
within their organizations shall be limited to their respective directors,
officers and employees with a "need to know," to carry out the purposes of this
Option Agreement, or to protect the rights of either party. Nothing in this
provision is intended to prevent or substantially interfere with Seller's or its
partners' affiliates', or its stockholders' ability to make all disclosures
required by law pursuant to offering and selling stock to the public.
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Notwithstanding the provisions of this Section, in the event of published
reports regarding this Option Agreement or Seller's relationship with Buyer or
Hugo Boss AG ("Hugo Boss"), Buyer, Hugo Boss and Seller agree to cooperate in
good faith to provide appropriate public responses and comments and the parties
shall be free to make accurate public statements which are appropriate to
correct or clarify the public record.
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IN WITNESS WHEREOF, the parties have duly signed this Option Agreement the
day and year first written above.
I.C. XXXXXX & COMPANY L.P., a Delaware limited
partnership
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief Executive
Officer
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief Executive
Officer
AMBRA INC.
By: /s/ Jorg-Xxxxx Xxxxxx
---------------------------------------
Name: Jorg-Xxxxx Xxxxxx
Title: Chairman
By: /s/ Xxxx-Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxx-Xxxxxx Xxxxxx
Title: Vice President
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