EXHIBIT 10.65
Final March 11, 2005
AGREEMENT
This Agreement is entered into by and between
- Xxxxxx Xxxx, in his capacity solely as insolvency trustee
(individually referred to as the "MB QUART TRUSTEE") of MB Quart
GmbH, a German limited liability company, ("MB QUART GMBH" and,
collectively with the MB Quart Trustee, "MB QUART"),
- Rockford Corporation, an Arizona corporation (individually referred
to as "ROCKFORD US"), and
- Rockford Europe Vertriebs GmbH, a German limited liability company
(individually referred to as "ROCKFORD GMBH" and, together with
Rockford US, "ROCKFORD").
WHEREAS, MB Quart GmbH is the successor, through the purchase of certain
assets from Xx. Xxxxxx Xxxxxxxxx in his capacity as insolvency trustee for MB
Quart Akustik GmbH ("MB QUART AKUSTIK"), to MB Quart Akustik und Elektronik GmbH
(individually referred to as "MB QUART ELEKTRONIK") and MB Quart Akustik
(collectively referred to as "MB QUART GERMANY").
WHEREAS, MB Quart Elektronik adopted and began using the "MB Quart" name
and xxxx in Germany in or around 1975 and expanded its business worldwide until
1998 when it became insolvent. In the early 1980's, MB Quart Elektronik began
selling acoustic products in the U.S., Canada, and elsewhere in North, Central
and South America (the "Americas") under the name and xxxx "MB Quart". In 1987,
MB Quart Elektronik created a U.S. corporation, M.B. Quart Electronics U.S.A.,
Inc., a Massachusetts corporation (hereafter "MB QUART USA") to distribute "MB
Quart" products in the U.S., Canada and elsewhere in the Americas. MB Quart USA
used the "MB Quart" name and xxxx in the U.S., Canada and elsewhere in the
Americas.
WHEREAS, MB Quart USA registered the "MB Quart" xxxx (in word and design
form) and also registered several related marks in the countries and under the
registrations identified on Appendix A (collectively, the "MB QUART
REGISTRATIONS").
WHEREAS, MB Quart Elektronik was placed into an insolvency proceeding in
Germany in 1998. In the insolvency proceeding, the assets of MB Quart
Elektronik, including its stock in MB Quart USA and the rights in the "MB Quart"
name and xxxx, were sold to MB Quart Akustik.
WHEREAS, MB Quart Akustik continued to operate the MB Quart Germany
business after the purchase of assets from MB Quart Elektronik.
WHEREAS, in 2001 MB Quart Akustik was placed into insolvency proceedings
in Germany and Xx. Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00 xx 00000 Xxxxxxxxxx,
Xxxxxxx acted as its insolvency trustee.
WHEREAS, Xx. Xxxxxxxxx, as insolvency trustee for MB Quart Akustik, sold
(a) the assets of MB Quart Akustik, except for the shares of MB Quart USA, to MB
Quart GmbH, and (b) the shares of MB Quart USA to Rockford US. Since 2001 until
MB Quart GmbH's insolvency in 2004, Rockford has operated MB Quart GmbH as a
100% owned subsidiary
1
Final March 11, 2005
including the creation and maintenance of many of MB Quart GmbH's business and
financial records.
WHEREAS, in 2002, Rockford US caused MB Quart USA to be merged into
Rockford US such that Rockford US became the title holder of record of the MB
Quart Registrations. Since the merger, Rockford has acted as the sole
distributor for MB Quart Products in the Americas. In this agreement, "MB QUART
PRODUCTS" means all models of products sold under the MB Quart Marks before the
date MB Quart GmbH was placed into receivership, excluding amplifiers and
subwoofers in the car audio field.
WHEREAS, in 2004, MB Quart GmbH was placed into insolvency proceedings in
Germany and the MB Quart Trustee was appointed as MB Quart GmbH's insolvency
trustee.
WHEREAS, the "MB Quart" name and xxxx have been used continuously in the
U.S., Canada and elsewhere in the Americas since the early 1980's until the
present by MB Quart and its predecessors in interest or by MB Quart USA and
Rockford US since Rockford acquired MB Quart GmbH (in each case, either on their
own behalf or through their licensees) to identify acoustic products and
ancillary clothing, and since the early 1980's retailers and consumers in the
U.S., Canada and elsewhere in the Americas have associated the MB Quart Marks
with products designed, engineered and manufactured by MB Quart and its
predecessors in interest or Rockford US and its predecessors in interest.
WHEREAS, MB Quart, MB Quart USA or Rockford, and their predecessors in
interest, have used the MB Quart name and xxxx and the MB Quart Registrations,
and have also used related names, domain names and marks, whether identified in
Appendix A, or not, worldwide (collectively the "MB QUART ANCILLARY MARKS"), to
identify their businesses and products designed, engineered and manufactured by
or for MB Quart or Rockford, or their predecessors.
WHEREAS, Rockford and MB Quart have each made monetary claims against the
other in connection with the insolvency proceedings and have disputed the
appropriate scope and amount of the other's claims.
WHEREAS, Rockford and MB Quart have asserted, and have disputed the
other's rights with respect to certain rights to the MB Quart Marks in the U.S.,
Canada and elsewhere in the Americas.
WHEREAS, Rockford has an inventory of products packaged and branded under
the "MB Quart" xxxx that it wishes to sell in the normal course of its business
(hereinafter the "ROCKFORD INVENTORY").
WHEREAS, MB Quart and Rockford want to resolve all their differences and
disputes in such a manner as to permit the MB Quart Trustee, to maximize the
value of MB Quart, its business and its estate and to sell MB Quart for fair
value; and
WHEREAS, the Parties intend that nothing in this Agreement, in the drafts
of this Agreement, or in their negotiations to reach this Agreement are or were
intended as an admission by any party that the position, in whole or in part, of
the party itself or of any adverse party with respect to their contentions is
either correct or incorrect in any respect.
THEREFORE, MB Quart and Rockford, in full resolution of their disputes,
agree as follows:
2
Final March 11, 2005
1. Assignment. Rockford and the MB Quart Trustee agree to appoint an
escrow agent in Germany (the "ESCROW AGENT") whose costs shall be borne equally
by Rockford and MB Quart to facilitate the transaction contemplated by this
agreement. The Escrow Agent shall hold the assets assigned hereunder in trust
for the potential future sale to one or more possible Purchaser(s) and dispose
of them as set out in Section 4 below. Should German law or any other law
require a special form for the assignment then MB Quart, Rockford and the Escrow
Agent shall participate in the necessary assignments without undue delay and
effective immediately upon the appointment by Rockford and the MB Quart Trustee
of the Escrow Agent. Subject to receiving a written confirmation by the Escrow
Agent as set out in Appendix H, Rockford hereby transfers and assigns to the
Escrow Agent:
a. All right, title and interest Rockford may have in the "MB
Quart" name and xxxx and the MB Quart Ancillary Marks worldwide, any
registrations or applications for registration thereof, including without
limitation the MB Quart Registrations, and the goodwill of the business in
connection with the "MB Quart" name and xxxx and the MB Quart Ancillary Marks
(collectively the "MB QUART MARKS");
b. All right, title and interest of whatever nature in every
country in the world in copyrights in instructions, manuals, packages,
advertisement, marketing materials, websites, and any other original work that
relates or refers to any product marketed under the MB Quart Marks (together:
the "MARKETING MATERIAL"), except for the Marketing Material held in stock by
Rockford relating to the Rockford Inventory. (The copyright rights referred to
in this Section will be referred to as the "COPYRIGHTS");
c. All right, title and interest of whatever nature, including
without limitation, patents, patent rights, trade secrets, inventions,
industrial designs, and maskworks and the right to apply for patents, industrial
designs and maskworks protection, on all acoustic products and components of
acoustic products designed, developed, engineered or invented by MB Quart or for
MB Quart (together, the "PATENT RIGHTS" and, when excluding the Excluded Patent
Rights, the "MB QUART PATENT RIGHTS"), except this transfer does not include,
and Rockford retains all rights with respect to (a) Patent Rights developed by
Rockford or its agents exclusively for Rockford and (b) patent rights relating
to amplifiers and subwoofers in the car audio field (the "EXCLUDED PATENT
RIGHTS"). For the avoidance of doubt the parties agree that all the technology
used for the production of speakers sold under the label MB Quart at MB Quart's
facility in Obrigheim, Germany, or at any other location except Rockford
facilities in the US has belonged and will belong to MB Quart and that all the
technology for subwoofers and amplifiers for the car audio field has belonged
and will belong to Rockford;
d. Rockford's entire right, title and interest in and to any and
all claims and demands it may have, at law or in equity, for past infringement
of the MB Quart Marks, the Copyrights, and the MB Quart Patent Rights;
e. All ownership rights and claims of whatever nature owned by
Rockford or any company or person related to Rockford, in any and all shares in
MB Quart GmbH owned by Rockford (the "ROCKFORD MB QUART SHARES").
f. All claims of whatever nature Rockford, and all Rockford
affiliates and subsidiaries, hold, by themselves or for any company or person
related to them, against MB Quart GmbH excluding all claims arising post
insolvency which will among other claims be released according to Section 7 (b)
(the "ROCKFORD MB QUART CLAIMS").
3
Final March 11, 2005
2. Rockford Warranties. Rockford warrants as follows:
a. To the best of Rockford senior management's knowledge, but
without having done any inquiry or investigation (either to others at Rockford
or to any third party), no company or person other than Rockford and MB Quart
claim any rights in the MB Quart Marks, in the Copyrights, or the Patent Rights
and there is no infringement of such rights by any other person.
b. To the best of Rockford senior management's knowledge, but
without having done any inquiry or investigation (either to others at Rockford
or to any third party), no company or person, except as set forth in Appendix B
claims to hold, have or own a security interest in any assets of MB Quart, or in
the Rockford MB Quart Shares, in the MB Quart Marks, in the Copyrights or in the
Patent Rights.
c. Rockford has the right, power and authority to enter into this
Agreement and to perform all terms of this Agreement, including without
limitation, the sale and assignment of its rights, title and interest, if any,
in the Rockford MB Quart Shares, the MB Quart Marks, the Copyrights, and the MB
Quart Patent Rights and the Rockford MB Quart Claims.
d. Rockford has not registered, or filed an application to
register, and does not claim an interest, direct or indirect, in any trademark
registration or application to register a trademark anywhere in the world for
the MB Quart Marks, or any xxxx confusingly similar thereto, except for the MB
Quart Registrations.
e. Rockford has the right, power and authority to allow MB Quart
to use the Singapore Warehouse as described in Section 3(c), and to allow MB
Quart to use the Oracle Software as described in Section 3(d).
f. The Rockford Inventory has a cost (measured by the Rockford US
cost and not taking into account any intercompany eliminations) as shown on
Appendix C and is of a quality at least as high as comparable acoustic products
designed, engineered, manufactured and sold by MB Quart. The approximate amount
of each product in the Rockford Inventory is set forth in Appendix C.
3. Rockford Obligations. Subject to payment of the Rockford
Consideration and MB Quart's performance of its obligations under this
Agreement, Rockford agrees to do and permit the following:
a. If any person claims through Rockford any right in the U.S.,
Canada or elsewhere in the Americas in the MB Quart Marks, any of the
Copyrights, or any of the MB Quart Patent Rights, Rockford will assist, at
Rockford's expense, MB Quart or the Purchaser(s) of such right from MB Quart to
establish their right, title and interest in the intellectual property rights at
issue free and clear of any claim of such other person through Rockford, to the
extent reasonably requested by MB Quart or the Purchaser(s).
b. Rockford will, at its own expense, take any and all actions
necessary to have all security interests that Rockford caused or permitted to be
created as identified in Appendix B released. Rockford will use commercially
reasonable efforts to complete the release without undue delay and will use
commercially reasonable efforts to provide a confirmation to the Escrow Agent
within 30 (thirty) days after the Effective Date from the
4
Final March 11, 2005
holder of the security interest that a release will be granted upon payment of
the consideration as set out in Section 4 (a) (i) or (ii).
c. Rockford will permit MB Quart at no cost or expense to MB
Quart to use for three (3) months from the Effective Date the Singapore
warehouse owned or controlled by Rockford with its location as identified in
Appendix D (the "SINGAPORE WAREHOUSE"), to the same extent as MB Quart made use
of the Singapore Warehouse prior to the Effective Date. MB Quart will be
responsible for all freight costs when Rockford ships MB Quart's products
from the Singapore Warehouse and will be responsible for the cost of insurance
for MB Quart's products kept at the Singapore warehouse.
d. Rockford will permit MB Quart at no cost, expense, royalty or
license fee, to use for three (3) months from the Effective Date the Oracle
software currently used in the MB Quart facility in Obrigheim, Germany,
including support and delivery of non-customized reports by Rockford to the
extent such support and reports have been provided prior to the Effective Date.
Following the initial three (3) month period, until the earlier of (a) six (6)
months after the initial three (3) month period or (b) three (3) months after
completion of a sale to a Purchaser, MB Quart or the Purchaser(s) shall have the
right to continue to use the Oracle Software and obtain comparable support and
reports from Rockford to the extent such support and reports have been provided
prior to the Effective Date, for a monthly fee of US $ 18,925.34. MB Quart or
the Purchaser(s) will pay the amount of US $ 18,925.34 monthly on the 15th day
of the month before the month in which services are to be rendered. Rockford may
discontinue access to the Oracle software and support if Rockford makes material
changes to its own use of the Oracle software, or discontinues its own use of
the Oracle software, so that the continued provision of software access and
support to MB Quart or the Purchaser(s) is not commercially practical. Rockford
hereby confirms that it does not have any current plans to terminate or make
such changes to its use of the Oracle software within the next 9 months.
Rockford will give MB Quart or the Purchaser(s) written notice of any such
discontinuance promptly after it learns that the discontinuance is contemplated
or will be necessary.
e. Rockford will execute all documents necessary or convenient to
accomplish its undertakings under this Agreement, including but not limited to
transferring all right, title and interest in the MB Quart Marks, the Copyrights
and the MB Quart Patent Rights and to file documents of such assignment as
appropriate with the relevant authorities, including without limitation with the
U.S. Patent and Trademark Office, the Canadian Trade Marks Office and the Panama
Minister of Government and Industry. Such documents shall include, without
limitation, the "Notice of Release of Security Interest in Trademarks" and two
(2) forms of the "Assignment of Trademark" in Appendix F.
f. Rockford will provide MB Quart and/or one or more Purchaser(s)
under the German insolvency proceeding, access to and, at MB Quart's cost,
copies of records kept and maintained by Rockford relating to the financial
records of MB Quart and the records of sale, warranty and repair of MB Quart
products.
g. Rockford will reasonably cooperate and will not knowingly
interfere with the sale of MB Quart GmbH or any of its assets to a third person
and will cooperate in the administration of the MB Quart insolvency proceeding
in Germany. Nothing in this paragraph will restrict Rockford's right to
cooperate in good faith and with the intent to facilitate the sale of MB Quart
GmbH's business by the MB Quart Trustee with one or more potential Purchaser(s)
who request Rockford's assistance with respect to their proposals to the MB
Quart Trustee.
5
Final March 11, 2005
h. For the avoidance of doubt, as part of the resolution of
disputes, Rockford US and/or Rockford GmbH each will and hereby do release all
claims against MB Quart for the use of the Oracle Software and the Singapore
Warehouse, and all other services Rockford provided to MB Quart after September
22, 2004, except for services provided after the Effective Date, as described in
Sections 3(c) and 3(d) above, and will not file any future claims against MB
Quart in the German insolvency proceeding or the Ancillary Proceeding for such
services, except for services provided after the Effective Date as described in
Sections 3(c) and 3(d) above.
i. Rockford, within ninety (90) days after the Effective Date,
will deliver to MB Quart, at no cost or expense to MB Quart, all Marketing
Material (excluding Marketing Material relating to the Rockford Inventory) to a
place to be designated by MB Quart, FCA Rockford's facility (as such terms are
defined in INCOTERMS 2000).
j. Rockford will cooperate with MB Quart, at no cost or expense
to MB Quart, to provide information or other reasonable assistance needed to
allow MB Quart to respond to any inquiries or assessments by the German tax
authorities.
k. Rockford will transfer, to the extent permitted by applicable
law and agreements and at MB Quart's discretion, Rockford's agreements to have
MB Quart Products bought, stocked, distributed, sold, and any other agreements
related to MB Quart Products, in the U.S., Canada or elsewhere in the world.
Transfers will be effective only if the other party to such agreements agrees to
release Rockford from any obligations relating to such agreements after the
effective date of the transfer. Transfers will exclude any agreements that
relate both to MB Quart Products and to products sold under other Rockford
brands, since Rockford shall have the right to continue using such agreements
for its other brands. Rockford will deliver to MB Quart a complete list, and one
(1) copy of each agreement that is eligible for transfer to MB Quart and will
use commercially reasonable efforts to provide this list within thirty (30) days
after the Effective Date. Rockford will also provide within thirty (30) days
after the Effective Date to MB Quart a list of the contracts not eligible for
transfer. This list will also identify the other party and, to the extent known
to Rockford, will identify the nature and amount of MB Quart Products sold or
delivered by or to the other party during the calendar years 2004 and 2005. MB
Quart or the Purchaser(s) shall have the right to enter into agreements with all
other parties, regardless if the contracts are eligible for transfer or not,
provided that MB Quart and the Purchaser(s) must agree not to interfere with, or
seek to have the third party terminate its contracts relating to, the sale of
other Rockford products to such third parties.
l. Rockford agrees that MB Quart owns the specifications, tools,
dies, and any other materials ("Materials") related to and for MB Quart Products
("MB QUART MATERIALS") that have been provided to any and all manufacturers of
MB Quart Products in any and all countries, excluding Materials whose
amortization is built into the piece part cost of the parts supplied by the
manufacturers and which belong to the manufacturer. To the extent Rockford or a
third party on behalf of Rockford holds any of the MB Quart Materials, and if MB
Quart does not direct that the third party should continue to hold the MB Quart
Materials, then Rockford will make commercially reasonable efforts to deliver,
or have third parties holding the MB Quart Materials deliver, within ninety (90)
days after the Effective Date, all copies and units of such MB Quart Materials,
to a place to be designated by MB Quart, FCA Rockford's facility (as such terms
are defined in INCOTERMS 2000). Rockford will have no obligation with respect to
MB Quart Materials held by MB Quart or held by a third party directly for MB
Quart.
6
Final March 11, 2005
m. Rockford agrees that any license, express or implied, for it
to use the MB Quart Marks, any of the Copyrights, and any of the MB Quart Patent
Rights will hereby expire and no longer be of any effect as of the Effective
Date, except for the provisions set out in Section 6 below.
n. Rockford agrees that its rights, if any, to act as a
distributor, sales representative or franchisee of MB Quart in the U.S., Canada
or anywhere else in the world will hereby expire and no longer be of any effect
as of the Effective Date, except for the provisions set out in Section 6 below.
o. Rockford will pay to MB Quart (euro) 52,110.27 payable only
upon Rockford's receipt from the Escrow Agent of a payment for a completed
transaction under 4(a)(i) or 4(a)(ii), for goods delivered by MB Quart GmbH
prior to its insolvency.
p. Rockford US and Rockford GmbH shall be jointly and severally
liable for all Rockford obligations in this Agreement.
4. Consideration.
a. The MB Quart trustee will in his discretion and with the
intent to maximize the proceeds dispose of the business of MB Quart GmbH by (i)
an asset deal going concern, (ii) a share deal after MB Quart GmbH reorganizes
through an insolvency plan under German law or (iii) a liquidation of MB Quart
GmbH's business if a going concern sale is not possible. The consideration for
Rockford's actions (the "ROCKFORD CONSIDERATION") described herein depends on
how the MB Quart trustee disposes of the business of MB Quart GmbH.
i. Asset Deal
Following and depending on the purchase by one or more
third parties (the "PURCHASER(S)") of all MB Quart
GmbH's assets or of substantially all of MB Quart GmbH's
assets including the assets assigned under Section 1 (a)
to (d) above as a going concern the purchase price for
such assets shall be paid to an escrow account held by
the Escrow Agent (the "ESCROW AMOUNT"). Rockford and the
MB Quart Trustee hereby irrevocably instruct the Escrow
Agent to deal with the Escrow Amount and the other
assets he holds in trust as follows:
1. The greater of euro 1,500,000.00 or the amount
allocated to Rockford by an investment banker
based on the relative value attributed to the
purchase price paid by the Purchaser(s) for the
following assets (1) the MB Quart Marks, but
limited to the Americas and limited to those named
in Appendix A compared to (2) all other MB Quart
GmbH's assets acquired by the Purchaser(s) shall
be paid to Rockford US as soon as the security
interests are released according to Section 3 (b)
above. The remainder of the purchase price shall
be paid to the MB Quart Trustee or to any person
named by the MB Quart Trustee. In order to make
this allocation, the parties will jointly appoint
an investment banker, whose fees and costs will be
borne equally by the parties. The investment
banker will be directed to evaluate the relative
portion of the purchase price paid by the
7
Final March 11, 2005
Purchaser(s) that is attributable to (1) ) the MB
Quart Marks, but limited to the Americas and
limited to those named in Appendix A compared to
(2) all other MB Quart GmbH's assets acquired by
the Purchaser(s). Should the MB Quart Trustee
notify the Escrow Agent and Rockford US in writing
that he does not wish to hire an investment banker
to do the allocation, then the Rockford
Consideration shall be euro 2,000,000.00. In this
case the Escrow Agent shall act accordingly and
pay from the Escrow Amount euro 2,000,000.00 to
Rockford US once the security interests have been
released as set out in clause 3 (b) above. The
remainder of the purchase price shall be paid to
the MB Quart Trustee or to any person named by the
MB Quart Trustee, who shall use or distribute the
remainder of the purchase price in accordance with
the requirements of German insolvency law,
including requirements relating to the priority
for payment of insolvency expenses and making of
distributions to creditors and shareholders of MB
Quart GmbH.
2. The Rockford MB Quart Shares and the Rockford MB
Quart Claims shall be reassigned to Rockford.
Rockford is free to pursue the Rockford MB Quart
Claims in the insolvency proceeding of MB Quart
GmbH.
3. The Escrow Agent shall transfer all assets
assigned to him under Section 1 (a), (b), (c) and
(d) to the Purchaser(s) or any other person
nominated by the MB Quart Trustee if such transfer
is made after the Escrow Amount has been received
by the Escrow Agent or under the condition that
the Escrow Amount is paid according to Section 4
(a) (i) (1).
ii. Share Deal
Following and depending on the signing of a notarized
purchase contract, which may include a provision
according to which the payment of the purchase price is
contingent upon the release of the security interests
according to Section 3 (b), by the Purchaser(s) for the
Rockford MB Quart Shares and/or the other assets
assigned to the Escrow Agent according to Section 1 (a)
through (f) of this Agreement for a purchase price of at
least euro 2,000,000.00 Rockford and the MB Quart
Trustee hereby irrevocably instruct the Escrow Agent to
deal with the assets he holds in trust as follows:
All Assets assigned to the Escrow Agent
under Section 1 (a) through (f) above shall
be assigned to the Purchaser(s) or any other
person nominated by MB Quart Trustee if such
transfer is made after the Purchase price
for the MB Quart Shares and the other assets
assigned to the Escrow Agent according to
Section 4 (a) (ii) of this Agreement has
been paid to Rockford US or
8
Final March 11, 2005
if the assignment is made under the
condition that the purchase price is paid to
Rockford US.
In the event of a sale of the shares of MB Quart GmbH
under this Section 4(a)(ii), at a purchase price in
excess of (euro) 2,000,000.00 the MB Quart Trustee shall
pay the entire purchase price to Rockford.
iii. Liquidation
If the MB Quart Trustee notifies the Escrow Agent and
Rockford US in writing that the business of MB Quart
GmbH can not be sold on a going concern basis Rockford
US and the MB Quart Trustee hereby irrevocably instruct
the Escrow Agent as follows:
All Assets assigned to the Escrow Agent
under Section 1 (a) through (f) of this
Agreement shall be reassigned by the Escrow
Agent to Rockford US
In this event Rockford and MB Quart will jointly sell
the MB Quart Marks worldwide, including MB Quart's
rights in the rest of the world and in the Americas (if
any) and Rockford's rights in the rest of the world (if
any) and the Americas. The purchase price shall be
shared between Rockford and MB Quart, with Rockford to
receive 40 % of the total purchase price and MB Quart to
receive 60 % of the total purchase price. If Rockford
and MB Quart receive a final and binding offer for the
MB Quart Marks worldwide which both are willing to
accept, Rockford US has the right to buy the rights of
MB Quart for a purchase price equal to 60 % of the
purchase price proposed in the offer. Upon such a
purchase Rockford will own all rights and interest in
the MB Quart Marks worldwide and MB Quart will not
contest such ownership and rights.
b. Following the Effective Date, each party will reasonably
cooperate with the other parties in all matters relating to any continuing
obligations under this Agreement, including without limitation, execution and
delivery of all documents necessary or convenient to finalize the transfers
described in Section 1, to the extents such documents are consistent with the
terms of this Agreement.
c. This Agreement, and the payment to Rockford of the Rockford
Consideration paid pursuant to this Agreement, can be subject to approval by the
United States Bankruptcy Court for the District of Arizona (the "BANKRUPTCY
COURT") filed for by the MB Quart Trustee under Bankruptcy Codes Section.304, 11
U.S.C. Section.304 if a Purchaser(s) requests, after MB Quart and Purchaser have
signed and delivered a definitive agreement for a transaction satisfying the
requirements of Section 4(a)(i) or 4(a)(ii), the initiation of such a proceeding
by the MB Quart Trustee. In this case such approval of the Bankruptcy Court will
be sought and obtained pursuant to a motion filed by MB Quart in an ancillary
proceeding before the Bankruptcy Court that the MB Quart Trustee will commence
as the German insolvency trustee and foreign representative of MB Quart GmbH and
the MB Quart Trustee, under Bankruptcy Code Section.304, 11 U.S.C. Section.304
(the "ANCILLARY CASE"). Rockford and Rockford GmbH will make appropriate filings
in support of the motion. All such parties to the motion and all parties
supporting the motion will support the filing of the Ancillary Case by the MB
Quart Trustee and will stipulate to the Bankruptcy Court's entry of an order
9
Final March 11, 2005
approving this Agreement in its entirety and making all of the following
specific adjudications:
i. This Agreement resolves bona fide disputes among MB
Quart GmbH, the MB Quart Trustee, Rockford US and
Rockford GmbH.
ii. MB Quart (or any third party beneficiaries thereof
nominated by the MB Quart Trustee as described in
Section 10) is and will be the sole, exclusive, and
undisputed owner of all interests of Rockford, including
without limitation Rockford US and Rockford GmbH,
purchased by MB Quart or Purchaser(s) pursuant to this
Agreement.
iii. In light of, but not limited to, the existence of the
bona fide disputes resolved by this Agreement, all
amounts paid by MB Quart or the Purchaser(s) to Rockford
or the Escrow Agent pursuant to this Agreement
constitute both fair consideration and reasonably
equivalent value to Rockford (including both Rockford US
and Rockford GmbH individually and Rockford
collectively) for all transactions provided in this
Agreement and everything required and done to implement
those transactions, including, but not limited to, all
provisions of Sections 1, 2 and 3 of this Agreement, and
further including, but not limited to, the sale,
transfer and assignment by Rockford US or Rockford GmbH
(and collectively Rockford) of all interests of any
kind, and the continuing obligations of Rockford US or
Rockford GmbH (and collectively Rockford), as provided
in Sections 1, 2 and 3 of this Agreement (including
Rockford's future obligations to designated Purchaser(s)
of MB Quart as provided in Section 10 of this
Agreement). Further, neither this Agreement in its
entirety nor any transaction provided in this Agreement
is intended to hinder, delay, or defraud any creditor of
Rockford US, Rockford GmbH or MB Quart GmbH. This
Agreement, as well as every transaction provided in this
Agreement, also provides the simultaneous payment of new
value to Rockford US and Rockford GmbH in consideration
for all interests assigned by Rockford, all shares
transferred by Rockford US or Rockford GmbH, and all
loans, debts and other claims against MB Quart GmbH or
the MB Quart Trustee assigned or released under this
Agreement. Accordingly, neither this Agreement nor any
transaction provided in this Agreement is avoidable
under any provisions of the bankruptcy laws of the
United States or any applicable state laws (such state
laws being those of the State of Arizona). Based on the
parties' stipulation hereby made in this Agreement, the
Bankruptcy Court also may note and adjudicate the
parties' stipulation that neither this Agreement nor any
transaction provided in this Agreement is avoidable in
Germany under the insolvency laws of Germany.
5. MB Quart Warranties. MB Quart warrants it has the right, power and
authority to enter into and perform this Agreement, subject only to
the approval of the creditor's committee in the pending German insolvency
proceeding.
6. Transition. MB Quart agrees that until June 30, 2005 Rockford may
continue to sell in the U.S. and Canada its existing stock of Rockford Inventory
in the normal course of its business. Rockford also has the right, for an
indefinite period, to sell in the U.S. and Canada
10
Final March 11, 2005
its existing stock of MB Quart branded subwoofers and amplifiers (including as
existing stock finished goods built from existing raw materials inventory and
finished goods subject to binding purchase commitments as of the date of this
Agreement). Rockford will offer to MB Quart (or the Purchaser(s) if a
transaction is completed) all Rockford Inventory still in Rockford's inventory
as of July 1, 2005, at a price to be agreed to by Rockford and MB Quart (or the
Purchaser(s) as the case may be). If MB Quart (or the Purchaser(s) as the case
may be) does not agree to purchase the Rockford Inventory, then Rockford will
have the continuing right to sell the Rockford Inventory in the US and Canada in
the ordinary course of business. Rockford agrees that after Effective Date MB
Quart (or the Purchaser(s) if a transaction is completed) may sell its product
in the US, Canada and Panama, elsewhere in the Americas and throughout the world
under the MB Quart Marks, except until June 30, 2005 it may not sell in the US
or Canada those products which are still in the Rockford Inventory on or before
June 30, 2005 unless MB Quart or the Purchaser(s) (a) sell at a price at least
equal to the prices at which Rockford is generally offering the Rockford
Inventory (taking into account shipping and other costs) and (b) advise Rockford
of such sale in which case Rockford has the right to make the delivery on its
own account. Rockford has the right to offer the Rockford Inventory at the
prices and on the terms it deems necessary in order to sell the inventory, but
will use reasonable good faith efforts to make such sales on terms that do not
unreasonably affect the market and general pricing of MB Quart products in the
United States and Canada. The parties acknowledge that further details of the
transition which might lead to a continuation of Rockford's role as a
distributor of MB Quart Products in the US and Canada may be negotiated. If
there is a sale of the MB Quart marks worldwide to Rockford under Section
4(a)(iii), then MB Quart will cease selling products using the MB Quart Marks
and will cooperate to transition to Rockford the worldwide distribution under
the MB Quart Marks.
7. Releases. Except for the obligations established in this Agreement:
a. In consideration of the terms, conditions, and mutual releases
contained in this Agreement, MB Quart GmbH and the MB Quart Trustee each fully
and finally release and forever discharge Rockford US and Rockford GmbH
individually, and their predecessors, successors, parent, and sister companies
(excluding MB Quart GmbH), and each of their directors, officers, employees and
agents, assigns and attorneys from any and all liabilities, claims, demands,
causes of action and suits that MB Quart GmbH and the MB Quart Trustee each have
or may have of whatever kind and nature, known or unknown, presently existing or
arising in the future, including, but not limited to, those arising out of or in
any way related to or directly or indirectly arising from or out of the MB Quart
GmbH insolvency in Germany. MB Quart GmbH and the MB Quart Trustee each hereby
waive the benefits of any provisions of the law of Arizona, the law of any other
state of the United States, and the law of Germany which provides that a general
release does not extend to claims which the party does not know or expect to
exist in its favor at the time of executing the release, which if known to the
releasing party may have materially affected the settlement. It is the intention
of MB Quart GmbH and the MB Quart Trustee to each forever discharge and release
known and unknown, present and future claims within the scope of the releases
set forth herein.
b. In consideration of the terms, conditions, and mutual releases
contained in this Agreement, Rockford, including without limitation, Rockford US
and Rockford GmbH, each fully and finally release and forever discharge MB Quart
GmbH and the MB Quart Trustee, and their predecessors and successors, agents,
assigns and attorneys from any and all remaining liabilities, claims, demands,
causes of action and suits that Rockford has or may have of whatever kind and
nature, known or unknown, presently existing or arising in the future,
including, but not limited to, those arising out of or in any way related to or
directly or
11
Final March 11, 2005
indirectly arising from or out of the MB Quart GmbH insolvency in Germany,
excluding only the claims assigned under Section 1(f). Rockford hereby waives
the benefits of any provisions of the law of Arizona, the law of any other state
of the United States, and the law of Germany which provides that a general
release does not extend to claims which the party does not know or expect to
exist in its favor at the time of executing the release, which if known to the
releasing party may have materially affected the settlement. It is the intention
of Rockford to forever discharge and release any remaining known and unknown,
present and future claims within the scope of the releases set forth herein.
c. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT A PORTION OF THE
CONSIDERATION BEING GIVEN UNDER THIS AGREEMENT IS IN CONSIDERATION FOR THE
RELEASE OF CLAIMS THE NATURE, EXTENT AND AMOUNT OF WHICH ARE NOT, AND DESPITE
REASONABLE DILIGENCE COULD NOT NOW BE, KNOWN ("UNKNOWN CLAIMS") AND THAT, ANY
PRINCIPAL OR RULE OF LAW TO THE CONTRARY, THE INTENT AND AGREEMENT OF THE
PARTIES IS THAT ANY AND ALL UNKNOWN CLAIMS ARE AND SHALL BE RELEASED BY VIRTUE
OF THE FOREGOING PROVISIONS OF THIS AGREEMENT.
8. Indemnities. Rockford shall indemnify, defend, and hold harmless MB
Quart, and their affiliates and their respective directors, officers, employees
and agents, any successor or permitted assignee, and one or more Purchasers
under the German insolvency proceeding ("MB QUART INDEMNITEES"), from and
against any and all liabilities, damages, losses, claims, costs and expenses
(including reasonable attorneys' and professional fees and expenses, and other
expenses of litigation and arbitration) resulting from any claim or claims, suit
or proceeding brought by a third party against an MB Quart Indemnitee, arising
from or occurring, as a result of activities performed by Rockford and its
affiliates and agents (other than MB Quart and MB Quart's predecessors,
successors, and agents) in connection with the design, manufacture, marketing,
use or sale of any products sold by Rockford under the MB Quart Marks prior to
the Effective Date and during the period Rockford is selling the Rockford
Inventory as described in Section 6. Any MB Quart Indemnitee that intends to
claim indemnification under this Section shall promptly notify Rockford in
writing of any loss, claim, damage, liability or action in respect of which the
MB Quart Indemnitee intends to claim such indemnification.
9. Governing Law and Venue. The terms of this Agreement will be
governed by, and construed and enforced in accordance with the laws of the
United States of America and, to the extent not inconsistent therewith, the
internal laws of the State of Arizona (without regard to conflict of laws
principles that would require the application of the laws of any other
jurisdiction). In the event that a dispute arises under this Agreement, unless
the parties agree in writing to arbitration, the dispute will be heard in the
United States District Court for the District of Arizona (or the United States
Bankruptcy Court for the District of Arizona in accordance with 28 U.S.C.
Section. 157(a) with respect to the Ancillary Case and any matter arising in or
related to the Ancillary Case). If any such federal court of the District of
Arizona lacks subject matter jurisdiction, the dispute will be heard in the
Superior Court for Maricopa County, Arizona, and all of the parties hereto
hereby irrevocably submit themselves to the jurisdiction and venue of said
Courts.
10. Third Party Beneficiary. Any Purchaser(s) of MB Quart assets or
shares, as described in Section 4(a) above, shall be considered a third party
beneficiary under this Agreement; provided, however, such third party
beneficiaries may accept the benefits of this Agreement only if they expressly
join in the provisions regarding venue in Section 9.
12
Final March 11, 2005
11. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties, and their respective parent companies,
subsidiaries, successors, and assigns. Except as otherwise provided in this
Agreement, neither party may assign any right, duty or obligation under this
Agreement without the prior written consent of the other party, which consent
will not be unreasonably withheld, and any attempted assignment without such
consent shall be voidable by the other party.
12. Waiver and Modification. Any waiver by any party of a breach of any
provision or condition of this Agreement will not be considered to be a waiver
of any subsequent breach of the same or any other provision or condition hereof.
This Agreement may be amended or modified only by an instrument in writing duly
executed by the parties.
13. Severability. If any provision of this Agreement, or the application
thereof, shall for any reason and to any extent be invalid or unenforceable, the
remainder of this Agreement and the application of such provisions to other
persons or circumstances will be interpreted so as to give best effect to the
intent of the parties. The parties further agree to replace such unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business, and other purposes of
the unenforceable provision.
14. Counterparts. This Agreement may be executed in any number of
counterparts, including counterparts transmitted by facsimile or electronic
transmission, each of which will be an original as against any party whose
signature appears thereon and all of which together will constitute one and the
same instrument.
15. Notice. Any notice provided for or permitted under this Agreement
will be treated as having being given when (a) delivered personally, (b) sent by
confirmed facsimile or telecopy, or (c) sent by commercial courier with written
verification of receipt to the party to be notified, at the addresses set forth
in Appendix G (or at any other address of which the parties have been notified
in writing and in accordance with this Section).
16. Entire Agreement. This Agreement (together with its Appendixes) and
the document and instruments referred to herein constitute the entire
understanding among the parties with respect to the subject matter herein and
supercede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
17. Headings. The captions of Sections in this Agreement are inserted
only as a matter of convenience and in no way define, limit, affect, extend or
describe the scope of this Agreement or the intent of any provisions hereof.
18. Liquidation of MB Quart. If the MB Quart Trustee gives a written
announcement to Rockford US and the Escrow Agent according to Section 4 (a)
(iii) to the effect that he will not be able to sell the business of MB Quart
GmbH on a going concern basis the parties shall have no further obligations
under this Agreement, except that the parties agree to cooperate in good faith
in reasonable efforts to sell the MB Quart Marks and associated goodwill
worldwide with the intent to maximize the proceeds from such a sale. Nothing in
this Section is meant to release the Escrow Agent from his obligations under
this Agreement.
19. Confidentiality. Each party acknowledges that it may have access to
various items of proprietary and confidential information of the other in the
course of completing some of the transactions contemplated by this Agreement.
Each party agrees that any such confidential
13
Final March 11, 2005
information received from the other party shall be kept confidential and shall
not be used for any purpose other than to facilitate the arrangement of
financing for and the consummation of the transactions contemplated in this
Agreement including the transactions described in Section 4 (a) (i) and (ii). MB
Quart may disclose to prospective Purchaser(s), prospective participants in
commercial agreements with MB Quart for distribution of its products, and to
others with a commercial interest related to MB Quart that it has reached an
agreement with Rockford according to which MB Quart is in a position to resume
selling its product in the US under the xxxx MB Quart and according to which the
MB Quart Trustee is in a position to negotiate the sale of the MB Quart Marks.
MB Quart may disclose the terms of this Agreement (a) to prospective Purchasers
provided that MB Quart secures the agreement of the persons to whom MB Quart
discloses the information to maintain it in confidence on terms consistent with
those set forth in this Agreement, (b) in filings or other proceedings required
under applicable German insolvency law including for the avoidance of doubt the
meetings of the creditors committee and the creditors meeting in the insolvency
proceedings of MB Quart GmbH, or (c) as agreed by Rockford. Confidential
information shall include any business or other information which is delivered
by one party to the other, unless such information (i) is already public
knowledge or (ii) becomes public knowledge through no fault, action or inaction
of the receiving party, or (iii) was known by the receiving party, or any of its
directors, officers, employees, representatives, agents or advisors prior to the
disclosure of such information by the disclosing party to the receiving party.
The parties agree to jointly address dealers, distributors and sales
representatives, and others who have a business relationship to the parties,
promptly after the Effective Date, and inform the addressees that the parties
have reached an agreement and about their expected cooperation with respect to
the MB Quart Marks. Until signing of a definitive agreement with Purchaser(s)
for a transaction meeting the requirements of Section 4 (a) (i) or (ii) or
reassignment of the assets to Rockford US under the requirements of Section 4
(a) (iii), no party hereto, nor its respective officers, directors, employees,
accountants, attorneys, or agents shall intentionally disclose the existence or
nature of, or any of the terms and conditions relating to, the transaction
referred to herein, to any third person; provided, however, that such
information may be disclosed (i) with the consent of the other parties or as
expressly permitted in this Agreement, (ii) in Securities Filings that any party
files based on advice of counsel that such filing is required by applicable SEC
rules, (iii) to the advisors of each party hereto, or (iv) pursuant to court
order or subpoena.
14
Final March 11, 2005
IN WITNESS WHEREOF, the parties, intending to be bound, have by their duly
authorized representatives executed this Agreement as of the dates written
below.
Xxxxxx Xxxx, in his capacity solely as
insolvency trustee of MB Quart GmbH
("MB QUART TRUSTEE")
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Date: March 11, 2005
Title: Insolvency Trustee of MB Quart GmbH
Rockford Corporation Rockford Europe Vertriebs GmbH
("ROCKFORD US") ("ROCKFORD GMBH")
By: /s/ W. Xxxx Xxxxxx By: /s/ W. Xxxx Xxxxxx
---------------------------- --------------------
Name: W. Xxxx Xxxxxx Name: W. Xxxx Xxxxxx
Title: President & CEO Title: Managing Director
Date: March 11, 2005 Date: March 11, 2005
15
Final March 11, 2005
APPENDIX A
MB QUART AND ANCILLARY XXXXX
XXXX GOODS/SERVICES LOCATION OF REGISTRATION
--------------------- ------------------------------------ ----------------------------------
MB QUART (word and Electrical apparatus, namely U.S. Registration No. 1,905,485 &
design marks) loudspeakers, midrange drivers, 1,905,486
coaxial speakers, headphones,
in-wall speakers, indoor/outdoor
speakers, marine speakers, tweeters,
woofers, subwoofers, midrange
drivers, and crossovers.
MB QUART (design plus Clothing, namely T-shirts, polo U.S. Registration No. 1,907,458
words) shirts, jackets, hats, athletic
wear, namely sweat shirts and sweat
pants
MB QUART Electrical apparatus, namely Canadian Registration No. TMA 467266
component systems, loudspeakers,
midrange drivers, coaxial
components, headphones, in-wall
speakers, indoor/outdoor speakers,
marine speakers, soundsets,
tweeters, woofers, subwoofers,
midrange drivers, crossovers and
accessories for installation.
BALCONY Electronic products, specifically U.S. Registration No. 1,996,649
audio speakers
MUSICOMP Electronic products, specifically U.S. Registration No. 2,041,266
audio speakers
XXXX Loudspeakers for home theater U.S. Registration No. 2,809,456
systems.
xxx.xxxxxxx.xxx
16
Final March 11, 0000
XXXXXXXX X
SECURITY INTERESTS
Assets of MB Quart: Security Interest granted in all assets of Rockford
Corporation and its subsidiaries granted to Congress Financial Corporation
(Western), as Agent, pursuant to the Loan and Security Agreement dated as of
March 29, 2004.
"MB Quart" name and xxxx: Security Interest in all Intellectual Property of
Rockford Corporation and its subsidiaries granted to Congress Financial
Corporation (Western), as Agent pursuant to the Loan and Security Agreement
dated as of March 29, 2004.
MB Quart Ancillary Marks: Security Interest in all Intellectual Property of
Rockford Corporation and its subsidiaries granted to Congress Financial
Corporation (Western), as Agent pursuant to the Loan and Security Agreement
dated as of March 29, 2004.
Copyrights: Security Interest in all Intellectual Property of Rockford
Corporation and its subsidiaries granted to Congress Financial Corporation
(Western), as Agent, pursuant to the Loan and Security Agreement dated as of
March 29, 2004.
MB Quart Patent Rights: Security Interest in all Intellectual Property of
Rockford Corporation and its subsidiaries granted to Congress Financial
Corporation (Western), as Agent, pursuant to the Loan and Security Agreement
dated as of March 29, 2004.
17
Final March 11, 2005
APPENDIX C
ROCKFORD PRODUCT INVENTORY AND WHOLESALE VALUE
See attached Exhibit A
18
Final March 11, 0000
XXXXXXXX X
XXXXXXXX XX XXXXXXXXX WAREHOUSE
Rockford Singapore
000X Xxxxx Xxxxxxx Xxxx
#00-00 Xxxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx 000000
19
Final March 11, 0000
XXXXXXXX X
[INTENTIONALLY OMITTED]
20
Final March 11, 2005
APPENDIX F
TRADEMARK ASSIGNMENT FORMS
[From MB Quart]
- Form of "Notice of Release of Security Interest in Trademarks" attached.
- Form of U.S. "Assignment of Trademarks" attached.
- Form of Canada "Assignment of Trademark" attached.
- Form of Panama "Assignment of Trademark" attached.
21
Final March 11, 0000
XXXXXXXX X
ADDRESSES FOR NOTICE
Rockford Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, President
Steptoe & Xxxxxxx LLP
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Rockford Europe Vertriebs GmbH
Xx Xxx Xxxxxxxx 00, 00000 Xxxxx
Xxxxxxx
Attn: Xxxxx Xxxxxx, Managing Director
MB Quart GmbH
Xxxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx
Xxxxxx Xxxx
Rechtsanwalt
Wellensiek Grub & Partner
Xxxxxxxxxxxxx 00
00000 Xxxxxxxxxx
Xxxxxxx
Xxxxxxx & Xxxxx Xxxxxxx Xxxxx LLP
One Renaissance Square
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxx
22
Final March 11, 2005
APPENDIX H
ACCEPTANCE BY ESCROW AGENT
I,_______________________________, have taken note of the agreement (the
"AGREEMENT") between Rockford Corporation ("ROCKFORD US") and Rockford Europe
Vertriebs GmbH ("ROCKFORD GMBH") and Xxxxxx Xxxx in his capacity as insolvency
administrator for MB Quart GmbH (the "MB QUART TRUSTEE") a copy of which is
attached hereto.
I hereby confirm that I will act as Escrow Agent pursuant to the Agreement
and that I will fulfill the instructions by Rockford US and the MB Quart Trustee
contained in the Agreement.
23
