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EXHIBIT 10.2
XXXXX & WESSON CORP.
TRADEMARK AGENCY AGREEMENT
An Agreement between UMAREX Sportwaffen, GmbH, a corporation
having its principal office at Xxxxxxxxxx 0, 00000, Xxxxxxx, Xxxxxxx
(hereinafter "UMAREX"); and Xxxxx & Wesson Corp., a corporation having its
principal office at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
(hereinafter "Xxxxx & Wesson") with regard to the subject matter hereof. UMAREX
is the owner of all right title and interest in and to the trademarks listed in
Attachment A (UMAREX Trademarks), and wishes to issue licenses to third parties
to use the aforesaid trademarks with a variety of goods and services listed in
Attachment B (UMAREX Licensed Products and Services). Xxxxx & Wesson is, inter
alia, engaged in the business of obtaining third party licensees for its
trademarks with respect to a wide range of goods and services, and has developed
expertise in the development of potential licensees. UMAREX wishes to retain
Xxxxx & Wesson as art agent for UMAREX to similarly develop third party
licensees for its trademarks. Xxxxx & Wesson is desirous of acting in such a
capacity.
In consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, UMAREX and Xxxxx & Wesson agree as follows:
1. Xxxxx & Wesson shall act as an agent for UMAREX in
soliciting potential licensees for its UMAREX Trademarks to be used in
connection with UMAREX Licensed Products and Services. Xxxxx & Wesson can act as
an agent for UMAREX on a worldwide basis without geographic restriction as to
the location of potential licensees. That is; Xxxxx & Wesson may recruit
potential licensees from the USA and Canada.
2. The agency relationship created by this Agreement between
the Parties shall be non-exclusive. Nothing herein shall preclude UMAREX from
soliciting licensees on its own, or establishing similar relationships with
third parties. Similarly, Xxxxx & Wesson shall not be restricted in its
licensing either its own marks or establishing a similar agency agreement with
third parties.
3. The term of this Agreement shall be for three (3) years or
shall otherwise be coterminous with the Joint Venture Agreement of October,
1999. This Agreement can be extended for a successive three (3) year term after
the conclusion of the initial term if a subsequent agreement between the parties
is negotiated. A Party's determination not to extend this Agreement may be
effected without cause.
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4. Xxxxx & Wesson shall solicit third parties as potential
licensees and negotiate the terms and conditions of each proposed agreement
between a potential licensee and UMAREX. Xxxxx & Wesson shall promptly present
the same to UMAREX for its consideration. UMAREX shall have sole discretion in
accepting or rejecting any licensing agreement presented to it by Xxxxx &
Wesson. Xxxxx & Wesson makes no representations as to any potential licensee,
and UMAREX does not rely on Xxxxx & Wesson in any way in granting or maintaining
a trademark license. In no event shall Xxxxx & Wesson be liable to UMAREX for
any indirect, consequential, incidental, special or punitive damages or lost
profits arising out of or relating to this Agreement or the performance or
breach thereof.
5. UMAREX shall at all times during and after the term of this
Agreement, and to the fullest extent permitted by law, indemnify, defend and
hold harmless Xxxxx & Wesson and it's parents, successors, assigns,
subsidiaries, affiliates and distributors, and the present and former directors,
officers, agents and employees of each of the foregoing entities, from and
against any and all damages, demands, claims, suits, actions, investigations,
administrative proceedings, charges, costs and expenses, including, without
limitation, attorneys fees and court costs, settlement amounts, judgments,
compensation for damages to Xxxxx & Wesson's reputation and any losses of any
nature which arise out of or are based on the acts of Xxxxx & Wesson in
furtherance of its obligations hereunder.
6. Xxxxx & Wesson promises to use its best efforts to obtain
potential licensees for UMAREX. However, Xxxxx & Wesson has no minimum number of
potential licensees it must solicit, nor is there a minimum aggregate licensing
revenue that licensees solicited by Xxxxx & Wesson must produce, either on an
annual basis or for the duration of the Agreement. UMAREX agrees not to reject a
potential licensee identified by Xxxxx & Wesson without reasonable cause.
7. Xxxxx & Wesson shall receive fifty percent (50%) of all
revenues collected from trademark licenses and any renewals thereof in which
Xxxxx & Wesson has acted as an agent for UMAREX, as set forth herein. Xxxxx &
Wesson shall receive no other compensation for its efforts under this Agreement.
However, should a third party become a licensee of UMAREX within six (6) months
of that Party being contacted by Xxxxx & Wesson regarding a potential UMAREX
license, then Xxxxx & Wesson shall still receive fifty percent (50%) of all
revenues collected from that trademark license and any renewals thereof.
8. Xxxxx & Wesson shall collect licensing revenues on behalf
of UMAREX for those trademark Licensees which Xxxxx & Wesson has acted as an
agent. On or before the fifteenth day of the first month of each calendar
quarter beginning July 1, 2000, Xxxxx & Wesson shall furnish to UMAREX full and
accurate statements showing the number, description, total Net Sales Prices and
gross revenue of Licensed Articles and Services sold, distributed or otherwise
provided by each Xxxxx & Wesson sourced Licensee during the preceding calendar
quarter. Xxxxx &
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Wesson shall, simultaneously with such statements, pay to UMAREX the revenues
generated therefrom. Xxxxx & Wesson may credit against any such payment its
fifty percent (50%) share of revenues contemporaneously with such quarterly
statement. On or before the first day of the fourth month following the end of
each Contract Year, Xxxxx & Wesson shall furnish to UMAREX a statement showing
total sales of Licensed Articles and Services, gross revenues therefrom as well
as revenues and revenue share paid Xxxxx & Wesson for the preceding year.
9. All notices and statements to be given hereunder shall be,
in writing, any such notice or statement shall be deemed duly given if mailed by
certified mail, return receipt requested, if to Xxxxx & Wesson, at:
XXXXX & WESSON CORP.
0000 Xxxxxxxxx Xxxxxx
P.O. Box 2208
Springfield, MA 01102-2208, U.S.A.
Attention: Xxxx X. Xxxxxx
Director of Licensing
and if to UMAREX, at:
UMAREX SPORTWAFFEN, GmbH
Xxxxxxxxxx 0
00000 Xxxxxxx, Xxxxxxx
Attention: Xxxx-X. Xxxxxxxx
10. A Party wishing to terminate this Agreement shall give
ninety (90) days notice of termination in accordance with the notice provisions
herein. Note, however, that the duties and obligations with regard to the
payment of fees to Xxxxx & Wesson, and its obligations to account for the same
in accordance with the provisions of this Agreement shall survive termination of
this Agreement.
11. This relationship is separate from all other Walther LLC,
UMAREX, and Xxxxx & Wesson Agreements which are currently in-place. The Parties
hereto agree to create an agency relationship only, no joint venture or other
relationship is contemplated by this Agreement. Furthermore, this Agreement does
not create a license or grant of any other interest in any of the intellectual
property of one Party in favor of the other Party.
12. This Agreement sets forth the entire agreement between the
parties, and supersedes all prior agreements and understandings between the
Parties, relating to the subject matter hereof. None of the terns of this
Agreement may be waived or modified except as expressly agreed, in writing, by
both Parties. Should
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any provision of this Agreement be declared void or unenforceable, the validity
of the remaining provisions shall not be affected thereby. Forbearance on the
part of a Party in exercising its rights hereunder, or as otherwise provided by
law, shall not be construed as a waiver of those rights.
13. No Party shall voluntarily or by operation of law, assign
or transfer this Agreement to a third party, except to a third party which is
controlled by Licensee, or is associated therewith by common ownership. Any
transfer or attempt to transfer of this license to any entity in which the
present directors of Licensee do not have voting control shall be deemed an
assignment prohibited hereunder. The consent of a Party to one assignment,
transfer or sublicense shall not be deemed to be consent to any subsequent
assignment or transfer.
14. This Agreement shall be made in the Commonwealth of
Massachusetts and its terms shall be interpreted in accordance with and governed
by the laws thereof. Any suit, action or other proceeding brought by Licensee
which stems from or relates to the subject matter of this Agreement shall be
limited to an action brought in U.S. District Court in Springfield,
Massachusetts, USA.
15. The Parties hereto have caused this Agreement to be
executed by their duly authorized officers or officials, effective as of the day
and year first above written.
Witnessed by: XXXXX & WESSON CORP
By: /s/ X.X. Xxxxxx
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(Name) X.X. Xxxxxx
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Date: 3-11-2000 (Title) President & CEO
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Witnessed by: UMAREX Sportwaffen, GmbH
By: /s/ Xxxx-X. Xxxxxxxx
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(Name) Xxxx-X. Xxxxxxxx
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Date: 3-11-2000 (Title) President & CEO
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ATTACHMENT A
UMAREX Trademarks
US Registered Trademarks
WALTHER(R)
WALTHER, PLUS BANNER LOGO (R)
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