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LICENSE AGREEMENT #96394-BLT/WBLT
LICENSE AGREEMENT made December 3, 1998, by and between Warner Bros., a Division
of Time Warner Entertainment Company L.P., c/o Warner Bros. Consumer Products, a
Division of Time Warner Entertainment Company L.P., whose address is 0000 Xxxxxx
Xxxx., Xxxxxxx, XX 00000 (hereinafter referred to as "LICENSOR") and Gerber
Childrenswear, Inc., whose address is 0000 Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx (hereinafter referred to as
"LICENSEE").
WITNESSETH:
The parties hereto mutually agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "CHANNELS OF DISTRIBUTION": Licensee may sell the Licensed
Products through the following channels of distribution only (as
such channels are defined in Exhibit 1 attached hereto and
incorporated herein by reference): CANEX, Baby specialty Stores,
Chain Drug Stores, Chain Toy Stores, Direct Nail Catalogs on a
case by case basis only, Home Specialty Stores (Licensed
Products (4) through (16) only), Mid-Tier Department Stores
specifically Sears Canada (excluding Licensed Products (34),
(35), (36), (38), (39) and (41)), National Discount/Mass
Retailers, Non-Chain Drug Stores, Non-Chain Toy Stores, Non-Mall
Clothing Specialty Stores, OffPrice/Closeout Stores, Outlet
Stores, Supermarket/Grocery Stores, Regional Discount/Mass
Retailers, Warehouse Clubs (Licensed Products (26), (31), (32),
and (37) only).
All other channels of distribution defined in Exhibit 1, which
are not specified above in this Paragraph 1(a), are specifically
excluded from this Agreement.
(b) "GUARANTEED CONSIDERATION": In full consideration for the
rights, licenses and privileges granted to Licensee, Licensee
shall pay to Licensor the following sums, ninety-eight Percent
(98%) of which shall be deemed consideration in respect of the
copyrights licensed hereunder, and Two Percent (2%) of which
shall be deemed consideration in respect of the Trademarks
licensed hereunder. For the rights herein granted to Licensee
during the Term referred to in Paragraph 1(h) hereof, the sum of
$80,000 U.S., payable as follows:
$30,000 U.S. payable simultaneously with the execution of
this Agreement;
$25,000 U.S. payable on or before December 1, 1998; and
$25,000 U.S. payable on or before December 1, 1999.
ALL PAYMENTS AND ROYALTY REPORTING WITH RESPECT TO THIS
AGREEMENT SHALL BE MADE PAYABLE IN U. S. FUNDS TO THE
CANADIAN OFFICE OF WARNER BROS. CONSUMER PRODUCTS.
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(c) "LICENSED PRODUCT(S)":
In respect of the Licensed Property set forth in CATEGORY I of paragraph
1(d) below, the Licensed Products shall be as follows:
Bath Products
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(1) Hooded Towels *
(2) Washcloths *
(3) Washmitts
Infant Coordinated Bedding
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(4) Sheets *
(5) Comforters *
(6) Dust Ruffles *
(7) Receiving Blankets *
(8) Crib Blankets *
(9) Diaper Stackers *
(10) Birth Certificate Pillows *
(11) Bumper Pads *
(12) Bassinet Sheets *
(13) Lap Pads
(14) Wallpaper Room Borders and Window Treatments
to be supplied by Licenser's current wallpaper
licensee on a case by case basis only
(15) Mat and Pillow Combinations
(16) Changing Table Padcovers
Sleepwear
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(17) Sleep `n' Play *
(18) Blanket Sleepers, Sizes 0-24 months and 2-5T *
(19) Pajamas (Footed and Non-Footed), Sizes 0-24
months and 2-5T *
(20) Gowns/Dorm Shirts, Sizes
0-24 months *
(21) Prams, Sizes 0-24 months
(22) One Piece for Infants, Sizes NB, S, M, L and XL
*
(23) Two piece for Infants and Toddlers, Sizes NB, S,
M, L, XL and 2-5T *
(24) Longmates for Infants, Sizes XX, X, X0 L and XL
*
(25) Undershirts for Infants, Sizes NB, S, M, L and
XL *
(26) Training Pants, Sizes 2-5T *
Footwear/Socks
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(27) Booties
(28) Infant Socks
Layettes (Disposable Diapers and Vinyl Diaper Covers are
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specifically excluded)
(29) Gowns *
(30) Caps *
(31) Gift Sets, to include Infant Gown, Shirt, Bib,
Washcloth, Booties, Towels, Comb (to be supplied
by Gerber Products), Teethers (to be supplied by
Gerber Products) and/or on a case by case basis
with Licensor's prior written
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approval, any Licensed Products licensed
hereunder and any products purchased by Licensee
from other authorized licensees of Licensor
(32) Cloth Diapers/Burp Cloths *
(33) Diaper Covers *
Infant and Toddler Playwear (Windwear, Outerwear,
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Sweaters, Leggings when sold as a set with Sweaters, and
T-Shirts when sold as coordinates with Swimwear are
specifically excluded)
(34) Two Piece Set
(35) Creepers
(36) Overalls, Shortalls, Coveralls
(37) Bibs sold individually *
(38) Shirts
(39) Coordinated Playwear Separates
(40) Swim Diapers
(41) Xxxxx Rompers
In respect of the Licensed Property set forth in Category II of
Paragraph 1(d) below the Products shall be as follows:
(42) Toddler Bedding
Licensed Products denoted with "*" shall be sold on an exclusive basis.
All other Licensed Products shall be sold on a non-exclusive basis.
The use of direct embroidery is approved for Category I character only.
(d) "LICENSED PROPERTY":
(i) CATEGORY I: The fictional cartoon characters BABY BUGS BUNNY, BABY
LOLA BUNNY, BABY DAFFY DUCK, BABY XXXXXXXXX, BABY TWEETY, BABY TASMANIAN
DEVIL, BABY WILE E. COYOTE, BABY ROAD RUNNER AND BABY XXXXXX THE MARTIAN
which constitute "BABY LOONEY TUNES", including the names of said
characters and all trademarks, copyrights, environmental settings and
artwork associated therewith. The Licensed Property licensed hereunder
shall be identified with Licensor's BABY LOONEY TUNES mass market logo
only. Licensee is obtaining no rights hereunder in or to Licensor's
upstairs market logo referred to as "BABY LOONEY TUNES CLASSIC
COLLECTION". Furthermore, unless otherwise set forth below, specifically
excluded herefrom are any other properties, trademarks or copyrights of
Licensor, including but not limited, to the cartoon characters referred
to collectively as the "LOONEY TUNES" characters, and Licensee
acknowledges and agrees that it shall enjoy no rights whatsoever
hereunder with respect to such properties, trademarks, and copyrights,
it being understood that such properties, trademarks, and copyrights are
and will continue to be the subject of separate licensing agreements
with licensees of Licensor's choice. Without limiting the generality of,
the foregoing, Licensee is obtaining no rights hereunder, unless
otherwise specifically set forth below, in or to the adult versions of
BUGS BUNNY, LOLA BUNNY, DAFFY DUCK, XXXXXXXXX, TWEETY, TASMANIAN DEVIL,
WILE E. COYOTE, ROAD RUNEER, and XXXXXX THE MARTIAN.
TRADEMARKS: All registered and unregistered trademark rights of Licensor
relating to the above copyrights.
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Together the Copyrights and Trademarks: as set forth herein shall be
known as "Category I Licensed Property".
(ii) CATEGORY II: Notwithstanding the foregoing, the fictional cartoon
characters BUGS BUNNY, LOLA BUNNY, DAFFY DUCK, XXXXXXXXX, TWEETY,
TASMANIAN DEVIL, WILE B.COYOTE, ROAD RUNNER, and XXXXXX THE MARTIAN
only.
TRADEMARKS: All registered and unregistered trademark rights of Licensor
relating to the above copyrights.
Together the Copyrights and Trademarks as set forth herein shall be
known as "Category II Licensed property.
(e) "MARKETING DATE": July 1, 1998.
(f) "ROYALTY RATE":
(i) Eight Percent (8%) for the calendar year 1998;
(ii) Ten Percent (10%) for the calendar year 1999;
(iii) Twelve Percent (12%) for the calendar year 2000;
(iv) Four Percent (4%) on Closeouts (defined below) and on
Irregulars (defined below).
(g) "TERM": July 1, 1998 through December 31, 2000.
(H) "TERRITORY": CANADA.
(i) "CLOSEOUTS": shall mean first quality Licensed Products
discounted by twenty percent (20%) or more of f the list price for
such Licensed Products for purpose of discontinuing sales of the
Licensed Product. Sales of Closeouts shall not exceed ten percent
(10%) of all sales of Licensed Products in any calendar quarter.
(j) "IRREGULARS": shall mean Licensed Products which contain approved
images and complete legal notices, but which contain slight defects
in the manufacture or printing of the product. Irregulars shall not
include any product which is dangerous or hazardous, contains
unapproved images or lacks a complete legal notice. Sales of
Irregulars shall not exceed five percent (5%) of all sales Licensed
Products in any calendar quarter.
(k) "APPROVED CLOSEOUTS AND IRREGULARS OUTLETS": Licensee may submit to
Licensor a listing of proposed closeout and irregular outlets which
Licensor will review and, if approved in writing, will be considered
approved outlets for any future sale of Closeouts and/or Irregulars.
Licensee will use its best efforts to prohibit the advertising of
Closeouts and/or Irregulars by the retailer or outlet purchasing
such products.
2. GRANT OF LICENSE:
(a) Subject to the restrictions, limitations, reservations and
conditions and Licensor's approval rights set forth in this
Agreement, Licensor hereby grants to Licensee and Licensee hereby
accepts for the Term of this Agreement1 a license to utilize the
Category I and II Licensed Property and to create Artwork, subject
to Licensor's approval, solely on or in connection with the
manufacture, distribution and sale of the Licensed Products as
specified above for the ultimate retail sale
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to the public throughout the Territory on an exclusive basis for
Licensed Products denoted with "*" and on a non-exclusive basis for
Licensed Products (3), (13), (14), (15), (16), (21), (27), (28),
(31), (34), (35), (36), (38), (39), (40), (41) and (42).
(b) Without limiting any other approval rights of Licensor as
contained herein, no television commercials may be utilized under
this Agreement without the specific prior written approval of
Licensor.
(c) Subject to the Grant of License set forth in Paragraph 2(a), it
is specifically agreed and understood between the parties hereto
that those characters set forth in Paragraph 1(d) (i) Category I and
1(d) (ii) Category II above shall only be utilized in connection
with the respectively designated Licensed Products set forth above
in Paragraph 1(c).
3. RESERVATION OF RIGHTS; PREMIUMS:
(a) Licensor reserves all rights not expressly conveyed to Licensee
hereunder, and Licensor may grant licenses to others to use the
Licensed Property, artwork and textual matter in connection with
other uses, services and products without limitation.
(b) Notwithstanding anything to the contrary stated herein, Licensor
specifically reserves the right, without limitation throughout the
world, to itself use, or license any third party(s) of its choice to
use the Licensed Property for the manufacture, distribution and sale
of products similar or identical to those licensed herein in
Paragraph 1(c) above for sale through any catalogue(s) produced or
distributed by or on behalf of Licensor or Licenser's affiliated
companies (Licensor's affiliated companies herein shall mean any
company owned either directly or indirectly by Time Warner, Inc.),
or for sale or distribution in any theaters or arenas, or for sale
or distribution in any retail stores operated by or on behalf of
Licensor, Licensor's affiliated companies or franchisees, or for
sale or distribution in any theme/amusement parks operated by or on
behalf of Licenser or its licensees, Six Flags, Premier Parks, Movie
World, or their affiliated companies (affiliated companies of Six
Flags, Premier Parks and Movie World herein shall mean any company
owned either directly or indirectly by them, or by a company which
owns them). In addition, Licensor reserves the right to a11ow Six
Flags, Premier Parks and Movie World to manufacture (or have
manufactured by a third party) products similar or identical to
those licensed herein for distribution or sale in theme and/or
amusement parks owned or operated by Six Flags, Premier Parks and/or
Movie World. Further, Licensor reserves the right to use, or license
others to use, and/or manufacture products similar or identical to
those licensed herein for use as premiums, excluding premiums which
would be distributed through Licensee's Channels of Distribution.
(c) Licensee specifically understands and agrees that no rights are
granted herein with respect to the Warner Bros. "shield" logo or
trademark, or any other trademark(s), logo(s) or copyrights owned by
Licensor other than these specifically set forth above in the
Licensed Property, it being understood that all rights in and to
said properties are reserved exclusively to Licensor for use and/or
licensing as it deems appropriate to third party(s) of its choice.
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(d) Licensee understands and agrees that the rights granted herein
are limited only to the cartoon characters set forth above and that
any and all rights in, to or associated with the theatrical motion
picture entitled "SPACE JAM", as well as with any sequels thereto,
are specifically excluded herefrom, it being understood that all
rights in and to said property are reserved exclusively to Licensor
for use and/or licensing as it deems appropriate to third parties of
its choice.
(e) Licensee agrees that it will not use, or knowingly permit the use
of, and will exercise due care that its customers likewise will
refrain from the use of, the Licensed Products as a premium, except
with the prior written consent of Licensor. Subject to Licensor's
prior written approval as aforesaid, Licensee shall pay to Licensor
a sum equal to TWELVE PERCENT (12%) of all premium sales. For
purposes of this paragraph, the term "premium" shall be defined as
products offered to the public in conjunction with the sale or
promotion of a product or service, including but not necessarily
limited to, combination sales, free or self-liquidating items
offered to the public in conjunction with the sale or promotion of a
product or service, programs designed to build traffic or continuity
visits by the consumer/customer, or any similar scheme or device,
the prime intent of which is to use the Licensed products in such a
way as to promote, publicize and or sell the products, services or
business image of the user of such item. Premium shall not include
placement of discount coupons or similar types of rebate or discount
offers on other Licensee products ("cross-couponing"). All instances
of Cross-couponing and all artwork in relation thereto shall be
subject to Licensor's prior written approval.
4. CONSIDERATION:
(a) The Guaranteed Consideration paid by Licensee as set forth above
shall be applied against such royalties as are, or have become,
due to Licensor. No part of such Guaranteed Consideration shall
be repayable to Licensee. Royalties earned in excess of the
Guaranteed Consideration applicable to the Term hereof shall not
offset any Guaranteed Consideration required in respect of the
succeeding renewal term (if any); likewise, royalties earned in
excess of the Guaranteed Consideration applicable to the renewal
term (if any) shall not offset any Guaranteed Consideration
applicable to any prior term.
(b) Royalty Payments: Licensee shall pay to Licensor a sum equal to
the Royalty Rate as set forth above of all Net Sales by Licensee
of the Licensed Product(s) covered by this Agreement. The term
"Net Sales" herein shall mean the wholesale list price of the
Licensed Product(s) billed customers, less the following:
(i) actual quantity discounts and placement
discounts and actual returns, but no deductions
shall be made for uncollectible accounts and
deductions for actual returns may not exceed
five percent (5%) of total sales; and
(ii) any sales, excise or value added taxes which are
separately stated and which are required to be
collected from customers and which are payable
to tax authorities. No deduction shall be taken
in computing Net Sales for
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taxes not described immediately above, including
but not limited to income withholding taxes or
remittance taxes.
No costs incurred in the manufacture, sale, distribution,
advertisement, or exploitation of the Licensed Products shall be
deducted from any royalties payable by Licensee.
(c) Licensee will pay all taxes, customs, duties, assessments,
excise except as provided in Subparagraph 4(b)(ii), and other
charges levied upon the importation of or assessed against the
Licensed Product under this Agreement, as well as all Licensee's
costs of doing business and Licensor shall have no liability
therefor.
(d) For sales of Closeouts and Irregulars at or below 2,500 units,
Licensee may directly sell such Closeouts and/or Irregulars to
Approved Closeouts and Irregulars Outlets. For sales of
Closeouts and/or Irregulars in excess of 2,500 units, prior to
offering such Closeouts and/or Irregulars, Licensee shall give
notice to Licensor of its intent to offer Closeouts and/or
Irregulars, the Licensed Products to be sold as Closeouts or
Irregulars, the quantity available, the nature of the
irregularity, a representative sample of the Cl6seouts and/or
Irregulars and the price they are to be offered at. Licensor
shall have ten (10) business days to give Licensee notice of its
election to purchase some or all of the Closeouts and/or
Irregulars. If Licensor does not purchase all of the Closeouts
and/or Irregulars specified in the notice, Licensee shall
further notify Licensor of the retailer or other outlets which
will be offered the Closeouts and/or Irregulars. If, within five
(5) business days of such further notice, Licensor objects to
any particular retailer or outlet and provides a good faith
basis for such objection, Licensee shall not offer such
Closeouts and/or Irregulars to such retailer or outlet.
(e) Royalties shall be payable monthly with the periodic statements
required in Paragraph 5 hereof, except to the extent offset by
Guaranteed Consideration theretofore remitted.
5. PERIODIC STATEMENTS:
(a) Within thirty days after the initial shipment of the Licensed
Products and promptly on the 15th day of every month thereafter
commencing, Licensee shall furnish to Licensor complete and
accurate statements certified to be accurate by Licensee showing
with respect to all Licensed Product(s) distributed and sold by
Licensee during the preceding calendar month the: (i) number by
SKU number; (ii) wholesale list price; (iii) quantity and
placement discounts and (iv) net sales price, together with any
returns made during the preceding calendar month. Such
statements shall be furnished to Licensor whether or not any of
the Licensed Product(s) have been sold during calendar months to
which such statements refer. Receipt or acceptance by Licensor
of any of the statements furnished pursuant to this Agreement or
of any sums paid hereunder shall not preclude Licensor from
questioning the correctness thereof at any time, and in the
event that any inconsistencies or mistakes are discovered in
such statements or payments, they shall immediately be rectified
and the appropriate payments made by Licensee. On a monthly
basis, concurrent with the furnishing of the statements
described above, Licensee shall make payment of royalties and
provide such information on Licensed Product sales on a
character by character basis as is
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then readily available to Licensee in such form as Licensee
compiles for its own use. Upon demand of Licensor, Licensee
shall, but not more than once in any TWELVE (12) month period,
furnish to Licensor a detailed statement by an officer of
Licensee showing: (i) by SKU number; (ii) wholesale list price;
(iii) quantity and placement discounts; and (iv) net sales price
of the Licensed Product(s) covered by this Agreement distributed
and/or sold by Licensee up to and including the date upon which
Licensor has made such demand.
(b) The statements and payments required hereunder shall be
delivered to:
WARNER BROS. CONSUMER PRODUCTS (CANADA)
0000 Xxxxx Xxxxxx - 2nd Floor
North York, Ontario
CANADA M2N 6P1
Attn: Xxxxxx X. Xxxxxxxxx
(c) Any payments which are made to Licensor hereunder after the due
date required therefore, shall bear interest at the then current
prime rate plus four (4) percent (or the maximum rate
permissible by law1 if less than the current prime rate) from
the date such payments are due to the date of payment.
Licensor's right hereunder to interest on late payments shall
not preclude Licensor from exercising any of its other rights or
remedies pursuant to this Agreement or otherwise with regard to
Licensee's failure to make timely remittances.
(d) Licensee agrees to provide, at Licensor's request: (i) a letter
of credit issued in favor of Licensor from a financial
institution as approved by Licensor in an amount up to the
Guaranteed Consideration; and/or (ii) such other form of
security acceptable to Licensor. Licensee agrees to execute all
documentation as Licensor may require in connection with
perfecting such security interests.
(e) Any income taxes, withholding taxes, other taxes and/or fees
which local law requires to be levied against Licensor's royalty
and withheld by Licensee, shall be paid out of such royalties by
Licensee on behalf of Licensor within the period of time
required by local law, provided that Licensee shall not make
such payment if Licensor has advised Licensee in writing not to
do so, and has taken appropriate legal action to contest the
propriety of such taxes and/or fees. In such event, Licensor
shall indemnify Licensee against any principle, interest charges
or penalties with respect to such taxes. Any such taxes or fees
which Licensee pays on behalf of Licensor shall be deducted from
the royalty otherwise payable to Licensor. The original receipt
(or a bonafide copy thereof) for such taxes as may be deducted
from royalties shall accompany the statements described in
Paragraph 5(a) above for the accounting period in which such
deduction is made. Licensee shall timely file all necessary tax
returns or other government documents on Licensor's behalf, as
required by local law, at Licensee's cost.
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6. BOOKS AND RECORDS:
(a) Licensee shall keep, maintain and preserve (in Licensee's
principal place of business) for at least two (2) years
following termination or expiration of the Term of this
Agreement or any renewal(s) hereof (if applicable), complete and
accurate records of accounts including, without limitation,
purchase orders, inventory records, invoices, correspondence,
banking and financial and other records pertaining to the
various items required to be submitted by Licensee as well as to
ensure Licensee's compliance with local laws as required
pursuant to Paragraph 13(k) hereof. However in no event will the
foregoing be interpreted to require Licensee to keep any records
for longer than its normal retention period, which is four years
from the end of the calendar year to which such records pertain.
Such records and accounts shall be available for inspection and
audit at any time or times during or after the Term of this
Agreement or any renewal(s) hereof (if applicable) during
reasonable business hours and upon reasonable notice by Licensor
or its nominees and at Licensor's expense, subject to Paragraph
6(c) hereof. Licensee agrees not to cause or permit any
interference with Licensor or nominees of Licensor in the
performance of their duties. During such inspections and audits,
Licensor shall have the right to take extracts and/or make
copies of Licensee's records which are related to the statements
and/or Licensed Products, as it deems necessary.
(b) The exercise by Licensor in whole or in part, at any time of the
right to audit records and accounts or of any other right herein
granted, or the acceptance by Licensor of any statement or
statements or the receipt and/or deposit by Licensor, of any
payment tendered by or on behalf of Licensee shall be without
prejudice to any rights or remedies of Licensor and such
acceptance, receipt and/or deposit shall not preclude or prevent
Licensor from thereafter disputing the accuracy of any such
statement or payment, except that any objection to the accuracy
of any statement or payment shall be made within two (2) years
following termination or expiration of the Term of this
Agreement or any renewal(s) hereof (if applicable).
(c) If pursuant to its right hereunder Licensor causes an audit and
inspection to be instituted which, thereafter discl6s'es ~
deficiency between the amount found to be due to Licensor and
the amount actually received or credited to Licensor, then
Licensee shall, upon Licensor's demand, promptly pay the
deficiency, together with interest thereon at the then current
prime rate from the date such amount became due until the date
of payment, and, if the deficiency is more than 3% of all
royalties paid by Licensee during the period covered by the
audit, then Licensee shall pay the reasonable costs and expenses
of such audit and inspection. If an audit discloses an
overpayment to Licensor by Licensee, then Licensor shall remit
the amount of such overpayment' to Licensee within sixty (60)
days of conclusive agreement that such overpayment occurred.
(d) Licensee understands and agrees that Licensor shall have access
to Licensee's sell-through information, with respect to the
Licensed Products, pertaining to various retail customers (e.g.
Wal-Mart, JC Penney) (the "Sell Through System"). Licensor
agrees to keep confidential all information obtained by Licensor
through the Sell Through Systems except: (i) to the extent
necessary to
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comply with a law or the valid order of a court of competent
jurisdiction, in which event the party making such disclosure
shall so notify the other and shall seek confidential treatment
of such information; (ii) as part of normal reporting or review
procedure to the respective parties' boards of directors, parent
company, auditors and attorneys who agree to be bound by the
provisions of this subparagraph; (iii) in order to enforce its
rights or perform its obligations under this Agreement; or (iv)
when discussing the sale of Licensed Products with the
applicable retail customer in an effort to improve business
results.
7. INDEMNIFICATIONS:
(a) During the Term, and continuing after the expiration or
termination of this Agreement, Licensor shall indemnify Licensee
and shall hold it harmless from any loss, liability, damage,
cost or expense, arising out of any claims or suits which may be
brought or made against Licensee by reason of the breach by
Licensor of the warranties or representations as set forth in
Paragraph 12 hereof, provided that Licensee shall give prompt
written notice, and full cooperation and assistance to Licensor
relative to any such claim or suit and provided, further, that
Licensor shall have the option to undertake and conduct the
defense of any suit so brought. Licensee shall not, however, be
entitled to recover for lost profits. Licensee shall cooperate
fully in all respects with Licensor in the conduct and defense
of said suit and/or proceedings related thereto.
(b) During the Term, and continuing after the expiration or
termination of this Agreement, Licensee shall indemnify Licensor
and shall h6ld it harmless from any loss, liability, damage,
cost or expense arising out of any claims or suits which may be
brought or made against Licensor by reason of: (i) any breach of
Licensee's covenants and undertakings hereunder; (ii) any
unauthorized use by Licensee of the Licensed Property; (iii) any
use of any trademark, copyright, design, patent, process, method
or device, except for those uses of the Licensed Property that
are specifically approved by Licensor pursuant to the terms of
this Agreement; (iv) Licensee's non-compliance with any
applicable federal, state or local laws or with any other
applicable regulations; and (v) any alleged defects and/or
inherent dangers (whether obvious or hidden) in the Licensed
Products or the use thereof.
(c) With regard to 7(b) (v) above, Licensee agrees to obtain, at its
own expense, product liability insurance providing adequate
protection for Licensor and Licensee against any such claims or
suits in amounts no less than three million dollars ($3,000,000)
per occurrence, combined single limits. Simultaneously with the
execution of this Agreement, Licensee undertakes to submit to
Licensor a fully paid policy or certificate of insurance naming
Licensor as an additional insured party and, requiring that the
insurer shall not terminate or materially modify such policy or
certificate of insurance without written notice to Licensor at
least twenty (20) days in advance thereof. Such insurance and
the delivery of the policy or certificate are material
obligations of Licensee.
8. ARTWORK; COPYRIGHT AND TRADEMARK NOTICES:
(a) The Licensed Property shall be displayed or used only in such
form and in such manner as has been specifically
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approved in writing by Licensor in advance and Licensee
undertakes to assure usage of the trademark(s) and character(s)
solely as approved hereunder. Licensee further agrees and
acknowledges that any and all Artwork (defined below) created,
utilized, approved and/or authorized for use hereunder by
Licensor in connection with the Licensed Products or which
otherwise features or includes the Licensed Property shall be
owned in its entirety exclusively by Licensor. "Artwork" refers
to incorporating Category I and Category II Licensed Property
and shall include, without limitation, all pictorial, graphic,
visual, audio, audio-visual, digital, literary, animated,
artistic, dramatic, sculptural, musical or any other type of
creations and applications, whether finished or not, including,
but not limited to, animation, drawings, designs, sketches,
images, illustrations, film, video, electronic, digitized or
computerized information, software, object code, source code,
on-line elements, music, text, dialogue, stories, visuals,
effects, scripts, voiceovers, logos, one-sheets, promotional
pieces, packaging, display materials, printed materials,
photographs, interstitials, notes, shot logs, character profiles
and translations, produced by Licensee or for Licensee, pursuant
to this Agreement. Licensor reserves for itself or its designees
all rights to use any and all Artwork created, utilized and/or
approved hereunder without limitation.
(b) Licensee acknowledges that, as between Licensor and Licensee,
the Licensed Property and Artwork and all other depictions
expressions and derivations thereof, and all copyrights,
trademarks and other proprietary rights therein are owned
exclusively by Licensor and Licensee shall have no interest in
or claim thereto, except for the limited right to use the same
pursuant to this Agreement and subject to its terms and
conditions.
Licensee agrees and acknowledges that any Artwork created by
Licensee or for Licensee hereunder is a "work made for hire" for
Licensor under the U.S. copyright Act, and any and all similar
provisions of law under other jurisdictions, and that Licensor
is the author of such works for all purposes, and that Licensor
is the exclusive owner of all the rights comprised in the
undivided copyright and all renewals, extensions and reversions
therein, in and to such works in perpetuity and throughout the
universe. Licensee hereby waives and releases in favor of
Licensor all rights (if any) of "droit moral," rental rights and
similar rights in and to the Artwork (the "Intangible Rights")
and agrees that Licensor shall have the right to revise,
condense, abridge, expand, adapt, change, modify, add to,
subtract from, re-title, re-draw, re-color, or otherwise modify
the Artwork, without the consent of Licensee. Licensee hereby
irrevocably grants, transfers and, assigns to Licensor all
right, title and interest, including copyrights, trademark
rights, patent right's and other proprietary rights, it may have
in and to the Artwork, in perpetuity and throughout the
universe, and to all proprietary depictions, expressions or
derivations of the Licensed Property created by or for Licensee.
Licensee acknowledges that Licensor shall have the right to
terminate this Agreement in the event Licensee asserts any
rights (other than those specifically granted pursuant to this
Agreement) in or to the Licensed Property or Artwork.
Licensee hereby warrants that any and all work created by
Licensee under this Agreement apart from the materials
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provided to Licensee by Licensor is and shall be wholly original
with or fully cleared by Licensee and shall not copy or
otherwise infringe the rights of any third parties, and Licensee
hereby indemnifies Licensor and will hold Licensor harmless from
any such claim of infringement or otherwise involving Licensee's
performance hereunder. At the request of Licensor, Licensee
shall execute such form(s) of assignment of copyright or other
papers as Licensor may reasonably request in order to confirm:
and vest in Licensor the rights in the properties as provided
for herein. In addition, Licensee hereby appoints Licensor as
Licensee's Attorney-in-Fact to take such actions and to make,
sign, execute, acknowledge and deliver all such documents as may
from time to time be necessary to confirm in Licensor, its
successors and assigns, all rights granted herein. If any third
party makes or has made any contribution to the creation of
Artwork authorized for use hereunder, Licensee agrees to obtain
from such party a full confirmation and assignment of rights so
that the foregoing rights shall vest fully in Licensor, in the
form of the Contributor's Agreement attached hereto as Exhibit 2
and by this reference made a part hereof, prior to commencing
work, ensuring that all rights in the Artwork and Licensed
Property arise in and are assigned to Licensor. Promptly upon
entering into each such Contributor's Agreement, Licensee shall
give Licensor a copy of such Contributor's Agreement. Licensee
assumes all responsibility for such parties and agrees that
Licensee shall bear any and all risks arising out of or relating
to the performance of services by them and to the fulfillment of
their obligations under the Contributor's Agreement.
Upon expiration or termination of this Agreement for any reason,
or upon demand by Licensor at any time, Licensee shall promptly
deliver to Licensor all Artwork or Licensed Property, whether
finished or not, including drawings, drafts, sketches,
illustrations, screens, data, digital files and information,
copies or other items, information or things created in the
course of preparing the Licensed Property and all materials
provided to Licensee by Licensor hereunder, or, at Licensor's
option and instruction, shall destroy some or all of the
foregoing and shall confirm to Licensor in writing that Licensee
has done so. Licensee shall not use such Artwork or Licensed
Property, items, information or things, material, for any
purpose other than is permitted under this Agreement.
(c) Licensee shall, within thirty (30) days of receiving an invoice
for a charge that Licensee has previously approved in writing,
pay Licensor for artwork executed for Licensee by Licensor (or
by third parties under contract to Licensor) for use in the
development of the Licensed Products and any related packaging,
display and promotional materials at Licensor's prevailing
commercial art rates. The foregoing shall include any artwork
that, in Licensor's opinion and subject to Licensee's written
approval, is, necessary to modify artwork initially prepared by
Licensee and submitted for approval. Estimates of artwork
charges are available upon request.
(d) Licensee shall cause to be imprinted, irremovably and legibly on
each Licensed Products manufactured, distributed or sold under
this Agreement, and all
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advertising, promotional, packaging and wrapping material
wherein the Licensed Property appears, the following copyright
and/or trademark notice(s):
CATEGORY I:
BABY LOONEY TUNES, CHARACTERS, NAMES, AND ALL RELATED
INDICIA ARE TRADEMARKS OF WARNER BROS. (C) 19___.
CATEGORY II:
LOONEY TUNES, CHARACTERS, NAMES, AND ALL RELATED INDICIA
ARE TRADEMARKS OF WARNER BROS.(C) 19___.
The year date shall be as instructed by Licensor.
(e) In no event shall Licensee use, in respect to the Licensed
Products and/or in relation to any advertising, promotional,
packaging or wrapping material, any copyright or trademark
notices which shall conflict with, be confusing with, or negate,
any notices required hereunder by Licensor in respect to the
Licensed Property.
(f) Licensee agrees to deliver to Licensor free of cost six (6) of
each of the Licensed Products together with their packaging and
wrapping material for trademark registration purposes in
compliance with applicable laws, simultaneously upon
distribution to the public. Any copyrights or trademarks with
respect to the Licensed Products shall be procured by and for
the benefit of Licensor and at Licensor's expense. Licensee
further agrees to provide Licensor with the date of the first
use of the Licensed Products in interstate and intrastate
commerce.
(g) Licensee shall assist Licensor, at Licensor's expense, in the
procurement, protection, and maintenance of Licensor's rights to
the Licensed Property. Licensor may, in its sole discretion,
commence or prosecute and effect the disposition of any claims
or suits relative to the imitation, infringement and/or
unauthorized use of the Licensed Property either in its own
name, or in the name of Licensee, or join Licensee as a party in
the prosecution of such claims or suits. Licensee agrees to
cooperate fully with Licensor in connection with any such claims
or suits and undertakes to furnish full assistance to Licensor
in the conduct of all proceedings in regard thereto. Licensee
shall promptly notify Licensor in writing of any infringements
or imitations or unauthorized uses by others of the Licensed
Property, on or in relation to products identical to similar to
or related to the Licensed Products. Licensor shall in its sole
discretion have the right to settle or effect compromises in
respect thereof. Licensee shall not institute any suit or take
any action on account of such infringements, imitations or
unauthorized uses.
9. APPROVALS AND QUALITY CONTROLS:
(a) Licensee agrees to comply and maintain compliance with the
reasonable quality standards and specifications of Licensor as
they are required of other licensees in respect to all usage of
the Licensed Property on or in relation to the Licensed
Product(s) throughout the Term of this Agreement and any
renewals or extensions thereof. Licensee agrees to furnish to
Licensor free of cost for its written approval as to aesthetic
quality and style,
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samples of each of the Licensed Product(s), together with their
packaging, hangtags, and wrapping material, as follows in the
successive stages indicated (a) rough sketches/layout concepts;
(b) finished artwork or final proofs; (c) pre-production samples
or strike-offs; (d) finished products, including packaged
samples. Finished Products will be deemed approved if they
conform in all material respects to the approved pre-production
sample or strike-off. Licensor will not withhold approval of a
product ba5ed on its construction or materials unless the
construction or materials impairs the aesthetic appearance of
the product or is otherwise not in conformity with the general
quality of Licensee's products.
(b) No Licensed Products and no material utilizing the Licensed
Property shall be manufactured, sold, distributed or promoted by
Licensee without prior written approval. Licensee may, subject
to Licensor's prior written approval, use textual and/or
pictorial matter pertaining to the Licensed Property on such
promotional, display and advertising material as may, in its
reasonable judgment, promote the sale of the Licensed Products.
All advertising and promotional material relating to the
Licensed Products must be submitted to the Licensor for its
written approval at the following stages appropriate to the
medium used: (i) rough concepts; (ii) layout, storyboard,
script; and (iii) finished materials.
(c) Approval or disapproval shall lie in Licensor's sole discretion.
If Licensee has not received a response on any submission within
ten (10) business days, Licensee may notify Licensor by
facsimile, receipt of which must be confirmed in writing, and
Licensor will then have three (3) business days to approve,
disapprove or otherwise comment upon the submission. Failure to
respond within three (3) business days after acknowledging
receipt of the facsimile notice shall deem the submission
approved. Any Licensed Products not so approved shall be deemed
unlicensed and shall not be manufactured or sold. If any
unapproved Licensed Products are being sold, Licensor may,
together with other remedies available to it including, but not
limited to, immediate termination of this Agreement, require
such Licensed Products to be immediately withdrawn from the
market and to be destroyed, such destruction to be attested to
in a certificate signed by an officer of Licensee.
(d) Any modification of a Licensed Product which relates to the
Artwork applied to the Licensed Product or results in a material
deviation in the standards or quality of a Licensed Product must
be submitted in advance for Licensor's written approval as if it
were a new Licensed Product. Approval of a Licensed Product
which uses particular artwork does not imply approval of such
artwork for use with a different Licensed Product.
(e) Licensed Products must conform in all material respects to the
final production samples approved by Licensor. If in Licensor's
reasonable judgement, the quality of a Licensed Product
originally approved has deteriorated in later production runs,
or if a Licensed Product has otherwise been altered, Licensor
and Licensee agree to negotiate in good faith regarding the
disposition of such Licensed Products, which disposition may, in
addition to other remedies, require that such Licensed Product
be immediately withdrawn from the market.
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(f) Licensee shall permit Licensor to inspect Licensee's
manufacturing operations, testing and payroll records (including
those operations and records of any supplier or manufacturer
approved pursuant to Paragraph 10(b) below) with respect to the
Licensed Products.
(g) If any changes or modifications are required to be made to any
material submitted to Licensor for its written approval in order
to ensure compliance with Licensor's specifications or standards
of quality, Licensee agrees promptly to make such changes or
modifications.
(h) Subsequent to final approval, no fewer than twelve (12)
production samples of Licensed Products will be sent to Licensor
to ensure quality control simultaneously upon distribution to
the public. In addition, Licensee shall provide Licensor with
six (6) catalogs which display all of Licensee's products, not
just the Licensed Products. Further, Licensor shall have the
right to; purchase any and all Licensed Products in any quantity
the maximum discount price Licensee charges its best customer in
a similar circumstance.
(i) To avoid confusion of the public, Licensee agrees not to
associate other characters or properties with the Licensed
Property on the Licensed Products or in any packaging,
promotional or display materials unless Licensee receives
Licensor's prior written approval. Furthermore, Licensee agrees
not to use the Licensed Property (or any component thereof) on
any business sign, business cards, stationery or forms, nor as
part of the name of Licensee's business or any division thereof.
The following licensed properties are hereby deemed approved for
use of Licensed Products for purposes of this paragraph: the
Cotton seal; 3M - Scotchguard; Curity; Gerber.
(j) Licensee shall use its best efforts to notify its customers of
the requirement that Licensor has the right to approve all
promotional, display and advertising material pursuant to this
Agreement. Notwithstanding the foregoing, Licensee shall not be
responsible for any customer's failure to obtain any required
approval.
(k) It is understood and agreed that any animation used in
electronic media, including but not limited to animation for
television commercials and character voices for radio
commercials, shall be produced by Warner Bros. Animation
pursuant to a separate agreement between Licensee and Warner
Bros. Animation, subject to Warner Bros. Animation customary
rates. It is understood and agreed that, in the event Licensee
utilizes the services of WB Bros, Licensee shall reimburse WB
Toys for all costs and expenses at WB Toys customary rates. Any
payment made to Warner Bros. Animation and/or WB Toys for such
animation and/or services shall be in addition to and shall not
offset the Guaranteed Consideration set forth in Paragraph 1(b).
(l) Licensor's approval of Licensed Products (including without
limitation, the Licensed Products themselves as well as
promotional, display, and advertising materials) shall in no way
constitute or be construed as an approval by Licensor of
Licensee's use of any trademark, copyright and/or other
proprietary materials, not owned by Licensor.
(m) Notwithstanding the foregoing, if any of the Licensed Product(s)
have already received Licensor's written approval under separate
license agreement #8824-BLT/WBLT
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between Licensor and Licensee, then Licensee shall not be
required to resubmit such Licensed Product(s) for approval under
this Agreement, except with respect to any modifications made to
such Licensed Product, or to its packaging, hangtags and/or
advertising materials, expressly for the Territory as defined
under this Agreement.
10. DISTRIBUTION; SUB-LICENSE MANUFACTURE:
(a) Within the Channels of Distribution set forth in Paragraph 1(a)
hereof, Licensee shall sell the Licensed Products either to
jobbers, wholesalers, distributors or retailers for sale or
resale and distribution directly to the public. Unless
explicitly set forth in Paragraph 1(a) hereof, Licensee shall
not sell the Licensed Products through any cable home shopping
service or through electronic media, including on any on-line
network or service. If Licensee sells or distributes the
Licensed Products at a special price, directly or indirectly, to
itself, including without limitation, any subsidiary of Licensee
or to any other person, firm, or corporation affiliated with
Licensee or its officers, directors or major stockholders, for
ultimate, sale to unrelated third parties, Licensee shall pay
royalties upon the actual sale of the Licensed Product to an
unrelated third party.
(b) Licensee shall not be entitled to sub-license any of its rights
under this Agreement. In the event Licensee is not the
manufacturer of the Licensed Products, Licensee shall, subject
to the prior written approval of Licensor, which approval shall
not be unreasonably withheld, be entitled to utilize a third
party manufacturer in connection with the manufacture and
production of the Licensed Products, provided that such
manufacturer shall execute a letter in the form of Exhibit 3
attached hereto and by this reference made a part hereof. In
such event, Licensee shall remain primarily obligated under all
of the provisions of this Agreement and any default of this
Agreement by such manufacturer shall be deemed a default by
Licensee hereunder. In no event shall any such third party
manufacturer agreement include the right to grant any rights to
subcontractors.
11. GOOD WILL: Licensee recognizes the great value of the publicity and good
will associated with the Licensed Property and acknowledges: (i) such
good will is exclusively that of Licensor; and (ii) that the Licensed
Property has acquired a secondary meaning as Licensor's trademarks
and/or identifications in the mind of the purchasing public. Licensee
further recognizes and acknowledges that a breach by Licensee of any of
its covenants, agreements or undertakings hereunder will cause Licensor
irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement
of Licensor's copyrights, trademarks and/other proprietary rights in,
and to the Licensed Property, thereby entitling Licensor to equitable
remedies, and costs.
12. LICENSOR'S WARRANTIES AND REPRESENTATIONS: Licensor represents and
warrants to Licensee that:
(a) It has, and will have throughout the Term of this Agreement, the
right to license the Licensed Property to Licensee in accordance
with the terms and provisions of this Agreement; and
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(b) The making of this Agreement by Licensor does not violate any
agreements, rights or obligations of any person, firm or
corporation.
13. LICENSEE'S WARRANTIES AND REPRESENTATIONS: Licensee represents and
warrants to Licensor that, during the Term and thereafter:
(a) It will not attack the title of Licensor (or third parties that
have granted rights to Licensor) in and to the Licensed Property
or any copyright or trademarks pertaining thereto nor will it
attack the validity of the license granted hereunder;
(b) It will not harm, misuse or bring into disrepute the Licensed
Property, but on the contrary, will maintain the value and
reputation thereof to the best of its ability;
(a) It will manufacture, sell, promote and distribute the Licensed
Products in an ethical manner and in accordance with the terms
and intent of this Agreement, and in compliance with all
applicable government regulations and industry standards;
(4) It will not create any expenses chargeable to Licensor without
the prior written approval of Licensor in each and every
instance. It will not cause or allow any liens or encumbrances
to be placed against the Licensed Property;
(C) It will protect to the best of its ability its right to
manufacture, sell, promote, and distribute the Licensed Products
hereunder;
(f) It will at all times comply with all government laws and
regulations, including but not limited to product safety, food,
health, drug, cosmetic, sanitary or other similar laws, and all
voluntary industry standards relating or pertaining to the
manufacture, sale, advertising or use of the Licensed Products,
and shall maintain its appropriate customary high quality
standards during the Term hereof. It shall comply with any laws
or regulations of regulatory agencies which shall have
jurisdiction over the Licensed Products and shall procure and
maintain in force any and all permissions, certifications and/or
other authorizations from governmental and/or other official
authorities that may be required in response thereto. Each
Licensed Product and component thereof distributed hereunder
shall comply with all applicable laws, regulations and voluntary
industry standards. Licensee shall follow reasonable and proper
procedures for testing that all Licensed Products comply with
such laws, regulations and standards. Licensee shall permit
Licensor or its designees to inspect testing records and
procedures with respect to the Licensed Products for compliance.
Licensed Products that do not comply with all applicable laws,
regulations and standards shall automatically be deemed
unapproved and immediately taken off the market;
(g) It shall, upon Licensor's request, provide credit information to
Licensor including, but not limited to, fiscal year-end
financial statements (profit-and-loss statement and balance
sheet) and operating statements, all of which will be satisfied
by submission to Licensor of Licensee's annual report;
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(h) It will provide Licensor with the date(s) of first use of the
Licensed Products in interstate and intrastate commerce, where
appropriate;
(i) It will, pursuant to Licensor's instructions and at Licensor's
expense, duly take any and all necessary steps to secure
execution of all necessary documentation for the recordation of
itself as user of the Licensed Property in any jurisdiction
where this is required or where Licensor reasonably requests
that such recordation shall be effected. Licensee further agrees
that it will at its own expense cooperate with Licensor in
cancellation of any such recordation at the expiration of this
Agreement or upon termination of Licensee's right to use the
Licensed Property. Licensee hereby appoints Licensor its
Attorney-in-Fact for such purpose;
(j) It will not deliver or sell Licensed Products outside the
Territory or knowingly sell Licensed Products to a third party
for delivery outside the Territory;
(k) It will not use any labor that violates any local labor laws,
including all wage and hour laws, laws against discrimination
and that it will not use prison, slave or child labor in
connection with the manufacture of the Licensed Products;
(1) It shall at all times comply with all manufacturing, sales,
distribution, retail and marketing policies and strategies
promulgated by Licensor from time-to-time; and
(m) It will utilize specific design elements of the Licensed
Property provided to Licensee by Licensor on hangtags, labels,
and other materials.
14. TERMINATION:
(a) By Licensor: Licensor shall have the right to terminate this
Agreement without prejudice to any rights which it may have,
whether pursuant to the provisions of this Agreement, or
otherwise in law, or in equity, or otherwise, upon the
occurrence of any one or more of the following events (herein
called "defaults"):
(i) Licensee materially defaults in the performance of any
of its obligations provided for in this Agreement; or
(ii) Licensee shall have failed to deliver to Licensor or to
maintain in full force and effect the insurance referred
to in Paragraph 7(c) hereof; or
(iii) Licensee shall fail to make any payments due hereunder
on the date due; or
(iv) Licensee shall fail to deliver any of the statements
required herein or to give access to the premises and/or
license records pursuant to the provisions hereof to
Licensor's authorized representatives for the purposes
permitted hereunder; or
(v) Licensee shall fail to comply with any laws, regulations
or voluntary industry standards as provided in Paragraph
13(f) or if any governmental agency or other body,
office or official vested with appropriate authority
finds that the Licensed Products are harmful or
defective in any way, manner or form, or are being
manufactured, sold or
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distributed in contravention of applicable laws,
regulations or standards, or in a manner likely to cause
harm; or
(vi) Licensee shall be unable to pay its debts when due, or
shall make any assignment for the benefit of creditors,
or shall file any petition under the bankruptcy or
county or place, or shall have or suffer a receiver or
trustee to be appointed for its business or property, or
be adjudicated a bankrupt or an insolvent; or
(vii) Licensee does not commence in good faith to manufacture,
distribute and sell each of the Licensed Products and
utilize each character set forth in the Licensed
Property ("Character") throughout the Territory on or
before the Marketing Date and thereafter fails to
diligently and continuously manufacture, distribute and
sell each of the Licensed Products and utilize each
Character throughout the Territory. Such default and
Licensor's resultant right of termination (or recapture)
shall only apply to the specific Character(s) and/or the
specific Licensed Products, which or wherein Licensee
fails to meet said Marketing Date requirement. However,
License may cure such default as follows: upon receipt
of notice from Licensor that Licensee has failed to
manufacture, distribute and sell any Licensed Product,
within thirty days, Licensee shall submit to Licensor a
marketing plan for the manufacture, distribution and
sale of such product which shall provide for the product
to be manufactured, distributed and sold in a timely
fashion in accord with industry norms. If Licensee fails
to provide such marketing plan or thereafter fails to
materially meet the provisions of such plan, Licensor
shall recapture all rights to the specific Licensed
Product(s), which or wherein Licensee failed to meet the
requirements of this paragraph; or
(viii) Licensee shall manufacture, sell or distribute,
whichever first occurs, any of the Licensed Products
without the prior written approval of Licensor as
provided in Paragraph 9 hereof; or
(ix) Licensee undergoes a substantial change of management or
control. A substantial change of control is a nonpublic
offering sale of over 50% of the stock or assets of
Licensee to a person(s) not a member of the current
senior management or an entity(s) not controlled by
either Citicorp Venture Capital or its affiliates or by
one or more members of the current senior management of
Gerber Childrenswear, Inc. The sale of stock through a
public offering will not be considered a "substantial
change of control"; or
(x) A manufacturer approved pursuant to Paragraph 10(b)
hereof shall sell Licensed Products to parties other
than Licensee or engage in conduct, which conduct if
engaged in by Licensee would entitle Licensor to
terminate this Agreement; or
(xi) Licensee delivers or sells Licensed Products outside the
Territory or knowingly sells Licensed Products to a
third party who Licensee knows
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intends to, or who Licensee reasonably should suspect
intends to, sell or deliver such Licensed Products
outside the Territory; or
(xii) Licensee uses any labor that violates any local labor
laws and/or it uses prison, slave or child labor in
connection with the manufacture of the Licensed
Products; or
(xiii) Licensee has made a material misrepresentation or has
omitted to state a material fact necessary to make the
statements not misleading; or
(xiv) Licensee shall breach any other agreement in effect
between Licensee on the one hand and Licensor on the
other.
(b) In the event any of these defaults occur, Licensor shall give
notice of termination in writing to Licensee by facsimile and
certified mail. Licensee shall have twenty (20) days from the
date of giving notice, in which to correct any of these defaults
(except any defaults based on non-payment of monies to Licensor,
which must be cured within ten (10) days and defaults base on
subdivisions (vii), (viii), (xi) and (xiii) above which are not
curable), and failing such, this Agreement shall thereupon
immediately terminate, and any and all payments then or later
due from Licensee hereunder (including Guaranteed Consideration)
shall then be promptly due and payable in full and no portion of
those prior payments shall be repayable to Licensee.
(c) By Licensee: Licensee shall have the same right(s) to
termination of this Agreement as provided to Licensor under
this paragraph 14, upon the occurrence of any one or more of
the following events (herein called "defaults"):
i) If Licensor materially defaults in the performance
of any of its obligations provided for in this
Agreement; or
ii) If Licensor shall be unable to pay its debts when
due, or shall make any assignment for the benefit
of creditors, or shall file any petition under the
bankruptcy or insolvency laws of any jurisdiction,
county or place, or shall have or suffer a receiver
or trustee to be appointed for its business or
property, or be adjudicated a bankrupt or an
insolvent; or
iii) If WBCP shall breach any other agreement in effect
between it and Licensee.
(d) In the event any of these defaults occur, Licensee shall give
notice of termination in writing to Licensor by certified mail.
The Licensor shall have twenty (20) days from the date of
giving notice in which to correct any of these defaults, and
failing such, Licensee shall have the option to immediately
terminate this Agreement, in which event, Licensee's obligation
to make any further payments of Guaranteed Consideration
provided for in this Agreement shall also terminate and,
Licensee's rights shall thereafter be as set forth in Paragraph
15 hereof.
15. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Licensee shall deliver,
as soon as practicable, but not later than thirty (30) days following
expiration or termination of this Agreement, a statement indicating the
number and description
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of Licensed Products on hand together with a description of all
advertising and promotional materials relating thereto. Following
expiration or termination of this Agreement, Licensee shall immediately
cease any and all manufacturing of the Licensed Product. However, if
Licensee has complied with all the terms of this Agreement, including,
but not limited to, complete and timely payment of the Guaranteed
Consideration and Royalty Payments, then Licensee may continue to
distribute and sell its remaining inventory on anon-exclusive basis for
a period not to exceed one hundred eighty (180) days following such
termination or expiration (the "Sell-Off Period"), subject to payment of
applicable royalties thereto. In no event, however, may Licensee
distribute and sell during the Sell-Off Period an amount of Licensed
Products that exceeds the average amount of Licensed Products sold
during any consecutive one hundred eighty (180) day period during the
Term. In the event this Agreement is terminated by Licensor for any
reason under this Agreement, Licensee shall be deemed to have forfeited
its Sell-Off Period. If Licensee has any remaining inventory of the
Licensed Products following the Sell-Off Period, Licensee shall, at
Licensor's option, make available such inventory to Licensor for
purchase at or below cost, deliver up to Licensor for destruction said
remaining inventory or furnish to Licensor an affidavit attesting to the
destruction of said remaining inventory. Licensee shall, at Licensor's
option, deliver to Licensor at no charge all tooling, tooling aids and
other Artwork related to the Licensed Products, deliver up to Licensor
for destruction said tooling, tooling aids and other Artwork or furnish
to Licensor an affidavit attesting to the destruction of said tooling,
tooling aids and other Artwork. Licensor shall have the right to conduct
a physical inventory in order to ascertain or verify such inventory
and/or statement. In the event that Licensee refuses to permit Licensor
to conduct such physical inventory, Licensee shall forfeit its right to
the Sell-Off Period hereunder or any other rights to dispose of such
inventory. In addition to the forfeiture, Licensor shall have recourse
to all other legal remedies available to it.
16. NOTICES: Except as otherwise specifically provided herein, all notices
which either party hereto is required or may desire to give to the other
shall be given by addressing the same to the other at the address set
forth above, or at such other address as may be designated in writing by
any such party in a notice to the other given in the manner prescribed
in this paragraph. All such notices shall be sufficiently given when the
same shall be deposited so addressed, postage prepaid, in the United
States mail and/or transmitted via facsimile with receipt of a
confirming copy and/or when the same shall have been delivered, so
addressed, to, a. telegraph or cable company toll prepaid and the date
of said mailing or telegraphing shall be the date of the giving of such
notice.
17. NO PARTNERSHIP, ETC.: This Agreement does not constitute and shall not
be construed as constitution of a partnership or joint venture between
Licensor and Licensee. Neither party shall have any right to obligate or
bind the other party in any manner whatsoever, and nothing herein
contained shall give, or is intended to give, any rights of any kind to
any third persons.
18. NO SUBLICENSING/NON-ASSIGNABILITY: This Agreement shall bind and inure
to the benefit of Licensor, its successors and assigns. This Agreement
is personal to Licensee. Licensee shall not sublicense, franchise or
delegate to third parties its rights hereunder (except as set forth in
Paragraph 10(b) hereof). Neither this Agreement nor any of the rights of
Licensee hereunder shall be sold, transferred or assigned by
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Licensee and no rights hereunder shall devolve by operation of law or
otherwise upon any receiver, liquidator, trustee or other party.
Notwithstanding the foregoing, Licensee shall be permitted to assign its
rights and obligations under this Agreement for collateral security
purposes to any lender providing financing to Licensee that is secured
by Licensee's inventory solely for purposes of permitting such lender to
dispose of such inventory in accordance with the terms hereof upon a
default by Licensee under any such financing.
19. CONSTRUCTION: This Agreement shall be construed in accordance with the
laws of the State of California of the united States of America without
regard to its conflicts of laws provisions.
20. WAIVER, MODIFICATION, ETC.: No waiver, modification or cancellation of
any term or condition of this Agreement shall be effective unless
executed in writing by the party charged therewith. No written waiver
shall excuse the performance of any acts other than those specifically
referred to therein. The fact that one party has not previously insisted
upon the other party expressly complying with any provision of this
Agreement shall not be deemed to be a waiver of the party's future right
to require compliance in respect thereof and each party specifically
acknowledges and agrees that the prior forbearance in respect of any
act, term or condition shall not prevent the other party from
subsequently requiring full and complete compliance thereafter. If any
term or provision of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction or any other
authority vested with jurisdiction, such holding shall not affect the
validity or enforceability of any other term or provision hereto and
this Agreement shall be interpreted and construed as if such term or
provision, to the extent the same shall have been held to be invalid,
illegal or unenforceable, had never been contained herein. Headings of
paragraphs herein are for convenience only and are without substantive
significance.
21. ACCEPTANCE BY LICENSOR: This instrument, when signed by Licensee, shall
be deemed an application for license and not a binding agreement unless
and until accepted by Warner Bros. Consumer Products by signature of a
duly authorized officer and the delivery of such a signed copy to
Licensee. The receipt and/or deposit by Warner. Bros. Consumer Products
of any check or other consideration given by Licensee and/or delivery of
any material by Warner Bros. Consumer Products to Licensee shall not be
deemed an acceptance by Warner Bros. Consumer Products of this
application. The foregoing shall apply to any documents relating to
renewals or modifications hereof.
This Agreement shall be of no force or effect unless and until it is
signed by all of the parties listed below:
AGREED AND ACCEPTED: AGREED AND ACCEPTED
LICENSOR: LICENSEE:
WARNER BROS. CONSUMER PRODUCTS, GERBER CHILDRENSWEAR, INC.
a Division of Time Warner
Entertainment Company L.P. on
behalf of itself and as Agent for
Warner Bros., a Division of Time
Warner Entertainment Company L.P.
By:/S/ Xxxx X. Xxxxx By:/S/ Xxxxxx Xxxxxxxxx
----------------------- ---------------------
Xxxx X. Xxxxx Xxxxxx Xxxxxxxxx
Vice President, Legal Affairs
Date: 12/3/98 Date: 11/18/98
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EXHIBIT 1 #96394-BLT/WBLT
CHANNELS OF DISTRIBUTION
DEFINITIONS
LICENSEE MAY SELL THE LICENSED PRODUCTS ONLY THROUGH THE CHANNELS OF
DISTRIBUTION AS SPECIFIED ABOVE IN PARAGRAPH 1(a) OF THIS LICENSE AGREEMENT AND
AS SUCH CHANNELS ARE DEFINED IN THIS EXHIBIT 1. ALL OTHER CHANNELS OF
DISTRIBUTION DEFINED IN THIS EXHIBIT 1, WHICH ARE NOT SPECIFIED IN PARAGRAPH
1(A) ABOVE, ARE SPECIFICALLY EXCLUDED FROM THIS LICENSE AGREEMENT.
1. "AAFES" shall mean the U.S. Army and Airforce Exchange Service
headquarters as well as individual bases.
2. "Airport Gift Stores" shall mean gift stores located within airports,
excluding Duty-Free Stores. Examples of Airport Gift Stores include,
without limitation, Paradies and X.X. Xxxxx.
3. "Amusement Game Redemption" shall mean distribution of products as
prizes awarded in amusement games.
4. "Amusement Park Gift Stores" shall mean gift stores located within
amusement parks, such as Six Flags, Paramount Parks, Universal Theme
Parks, Dollywood, Xxxx Disney World and Xxxx Disney Land.
5. "Art & Craft Stores" shall mean stores that offer for sale primarily art
and craft supplies. Examples of Art & Craft St6res include, without
limitation, XXXXX XXXXXXXX, LAST FRAME, MICHAELS and XXXXXXXX XX
DESIGNS.
6. "Athletic Apparel & Footwear Stores" shall means stores that offer for
sale primarily athletic apparel and footwear. Examples of Athletic
Apparel & Footwear Stores include, without limitation, FOOTLOCKER,
ATHLETE'S FOOT and CHAMPS.
7. "Automotive/Carwash Stores" shall mean (a) stores that offer for sale
primarily automotive supplies, or (b) stores located at carwash or
gasoline station premises.
8. "Baby Specialty Stores" shall mean stores that offer for sale primarily
infant apparel, furniture, accessories and other products designed
specifically for babies. Examples of Baby Specialty Stores include,
without limitation, BABIES R US.
9. "Candy/Confectionery Specialty Stores" shall mean stores that offer for
sale primarily candy and confectionery products. Examples of
Candy/Confectionery specialty Stores include, without limitation, FAO
SCHWEETS, and THE SWEET FACTORY.
10. "CANEX" shall mean the Canadian Forces Exchange Service headquarters as
well as individual bases.
11. "Catalog Showrooms" shall mean stores that offer a broad assortment of
products for sale primarily through a catalog along with display of
samples of products in a showroom. Examples of Catalog Showrooms
include, without limitation, SERVICE MERCHANDISE.
12. "Chain Book Stores" shall mean chain stores (containing twenty (20)or
more individual stores) that offer for sale primarily books. Examples of
Chain Book Stores include, without limitation, X. XXXXXX, SUPERCROWN,
XXXXXX BOOKS, AND BRENTANO'S.
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13. "Chain Comic Book Stores" shall mean chain stores (containing twenty
(20) or more individual stores) that offer for sale primarily comic
books.
14. "Chain Drug Stores" shall mean chain stores (containing twenty
(20) or more individual stores) that offer for sale primarily
prescription and over-the-counter drugs, personal care products and
household products. Examples of Chain Drug Stores include, without
limitation, WALGREENS, RITE-AIDE, THRIFTY/PAYLESS, C.V.S./REVCO, THRIFT
DRUG, PHAR MOR, and LONGS DRUGS.
15. "Chain Jewelry Stores" shall mean chain stores (containing twenty (20)
or more individual stores) that offer for sale primarily jewelry. Chain
Jewelry Stores shall specifically exclude Guild Jewelers (as defined
below). Examples of Chain Jewelry Stores include, without limitation,
STERLING, BARRY'S, XXXXXX'X and HELLSBURG.
16. "Chain Toy Stores" shall mean chain stores (containing twenty (20) or
more individual stores) that offer for sale primarily toys. In order to
be considered a "Toy Store" hereunder, the total number of toy-type
SKU's (stock-keeping units) must represent eighty percent (80%) or more
of such store's total SKU's.
Examples of Chain Toy Stores include, without limitation, TOYS R US.
17. "Coffee Specialty Stores" shall mean stores that offer for sale
primarily specialty coffee and related products, such as coffee mugs.
Examples of Coffee Specialty Stores include, without limitation,
STARBUCKS, BUZZ COFFEE, XXXXXX JEANS and THE COFFEE BEANERY.
18. "College/University Stores" shall mean stores located on the campuses of
colleges or universities.
19. "Computer Specialty Stores" shall mean stores that offer for sale
primarily computer equipment and supplies. Examples of Computer
Specialty Stores include, without limitation, COUP USA.
20. "Convenience Stores" shall mean stores that offer for sale primarily
packaged and "quick service" food products, are generally open 24 hours
a day, and are designed to offer greater convenience than larger
Supermarket/Grocery Stores. Examples of Convenience Stores include,
without limitation, 7-11, AM/PM, DAIRY MART and CIRCLE K.
21. "Dental/Medical Profession" shall mean institutions or offices that
provide dental or medical services, such as hospitals or doctors
offices.
22. "Direct Mail Catalogs" shall mean catalogs that offer. products for sale
and are mailed directly to consumers homes. The "Direct Mail Catalogs"
channel shall specifically exclude catalogs for fundraising purposes
which shall be included in the "Fundraising" channel defined below.
Examples of Direct Mail Catalogs include, without limitation, XXXXXXX,
HEARTH & HOME, DOMESTICATIONS, TAPESTRY, COMPANY STORE, HAMMACHER
SCHLEMMER, FINGERHUT, AMWAY, AND XXXXXXX XXXXXX.
If Licensor grants to Licensee the right to distribute Licensed Products
through any Direct Mail Catalogs: (a) each such catalog shall be
specified in the Channels of Distribution set forth in the License
Agreement or otherwise expressly approved in writing by Licensor, and
(b) each such catalog depicting or referring to the Licensed Products or
the Licensed Property must be submitted to Licensor for prior written
approval in accordance with Licensor's Brand Assurance
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policies and procedures.
23. "Door-to-Door Solicitation" shall mean offering products for sale
through personal visits by salespersons to consumers' homes.
24. "Duty-Free Stores" shall mean stores usually located in airports, which
offer products for sale to international travelers free of taxes and
duties. If Licensor grants to Licensee the right to distribute products
through Duty-Free Stores, such channels of distribution (like all other
channels of distribution granted) shall be limited to those stores
located within the Territory.
25. "Educational Institutions" shall mean offering products (generally
books) for sale to public or private schools or other educational
institutions. Examples of Educational Institutions include, without
limitation, the Los Angeles County School District.
26. "Educational Specialty Stores" shall mean stores that offer for sale
primarily educational products. Examples of Educational Specialty Stores
include, without limitation, IMAGINARIUM and NATURE COMPANY.
27. "Electronics Stores" shall mean stores that offer for sale primarily
electronic products. Examples of Electronics Stores include, without
limitation, CIRCUIT CITY, FRY'S, and BEST BUY.
28. "Fashion Accessory Stores" shall mean stores that offer for sale
primarily costume jewelry, hair accessories and other fashion
accessories. Examples of Fashion Accessory Stores include, without
limitation, CLAIRE'S BOUTIQUE, AFTERTHOUGHTS, IT'S ABOUT TIME AND
PIERCING PAGODA.
29. "Florists" shall mean stores or companies that offer for sale primarily
flowers. Examples of Florists include, without limitation, XXXXXX'X,
FTD, AND 1-8OO-FLOWERS.
30. "Fundraising" shall mean offering products for sale through
catalogs, direct mail brochures, prize programs and in-school sales,
which are used by schools and charitable, religious or other
organizations to raise funds. Examples of Fundraising companies include,
without limitation, GIFTCO, SPRINGWATER, and DARLINGTON FARMS.
31. "Garden Specialty Stores" shall mean stores that offer for sale
primarily garden supplies and plants. Examples of Garden Specialty
Stores include, without limitation, ARMSTRONG'S, CALLAWAY'S, AND WOLF
NURSERIES.
32. "Gift Retailers" shall mean stores that (a) offer products for sale that
are in somewhat related product categories and are known as "gifts" in
the trade, which products generally are classified in the trade as
"better" quality and are higher priced (as compared to National and
Regional Discount/Mass Retailers' products), (b) do not usually discount
merchandise or sell it at greatly reduced prices, (c) usually focus more
on aesthetics in merchandise displays than on price, and (d) generally
require individual store servicing by suppliers in merchandise set-up,
display, SKU maintenance and reordering. Suppliers to Gift Retailers
typically advertise in trade publications, such as "Gift & Stationery
Business", "Giftware News" and "Gifts & Decorative Accessories".
Suppliers to Gift Retailers usually include companies such as Enesco,
Midwest of Xxxxxx Falls, New Creative Enterprises, Xxxx Xxxxxxx, Pacific
Rim, Xxxx Xxxxxx, Waterford, GiftCraft, Xxxxxx Industries, Possible
Dreams, Lenox, Department 56, Lefton, Swarovski and Flambro.
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Gift Retailers shall specifically exclude Novelty Gift Stores (as
defined below).
33. "Gourmet Food Specialtv Stores" shall mean stores that offer for sale
primarily gourmet and specialty food products. Examples of Gourmet Food
Specialty Stores include, without limitation, BRISTOL FARMS, WHOLE Foods
and GELSONS.
34. "Greeting Card Stores" shall mean stores that offer for sale primarily
greeting cards. Examples of Greeting Card Stores include, without
limitation, HALLMARK.
35. "Guild Jewelers" shall mean stores that offer for sale primarily fine
jewelry which is generally classified in the trade as "best" or
"highest" quality. Examples of Guild Jewelers include, without
limitation, MAYERS, ROGERS, and XXXXX BANKS & BIDE.
36. "Hobby & Model Stores" shall mean stores that offer for sale primarily
hobby and model supplies.
37. "Home Improvement Stores" shall mean stores that offer for sale
primarily hardware and home improvement supplies. Examples of Home
Improvement Stores include, without limitation, HOME DEPOT, OSH, HOME
BASE, and LOVES.
38. "Home Specialty Stores" shall mean stores that offer for sale primarily
bedding, towels and other bathroom products, kitchen merchandise and
housewares. Examples of Home Specialty Stores include, without
limitation, STROUDS, LINENS 'N' THINGS, 3D BED & BATH, BED/BATH/BEYOND,
AND LUXURY LINENS.
39. "Internet" shall mean offering products for sale through the electronic
network known as the Internet.
40. "Mall Clothing Specialty Stores" shall mean stores that offer for sale
primarily clothing and are located within a mall. Examples of Mall
Clothing Specialty Stores include, without limitation, MILLERS OUTPOST
and WET SEAL.
41 "Mid-Tier Department Stores" shall mean stores that offer products for
sale in a broad assortment of unrelated product categories, which
products are generally classified in the trade as "better" (but not
"best") quality products. Examples of Mid-Tier Department Stores
include, without limitation, X.X. PENNEY, SEARS, MERVYN'S, STEINMART,
XXXXX, XXXX XXXXX AND XXXXXXXXXX WARDS.
42. "Music/Video Stores" shall mean stores that offer for sale primarily
musical recordings, on compact discs, cassettes or other media, and/or
movie recordings on videos, laser disks or other media for home use by
consumers. Examples of Music/Video Stores include, without limitation,
BLOCKBUSTER, MUSICLAND, TOWER RECORDS, VIRGIN RECORDS, WAREHOUSE
RECORDS, XXX XXXXX'X, AND SUNCOAST.
43. "National Discount/Mass Retailers" shall mean stores that (a) have
nation-wide distribution, (b) offer products for sale in a broad
assortment of unrelated product categories, which products generally are
not classified in the trade as "better/best" quality products, (c) are
usually "self-service" with more of an emphasis on price than
aesthetics, and (d) generally do not require individual store servicing
by suppliers. Suppliers to National Discount/Mass Retailers typically
advertise in trade publications, such as "Discount Store News" and
"Discount Merchandiser", and usually attend the IMRA (International Mass
Retailer Association) trade show. Examples of National Discount/Mass
Retailers include, without limitation, WAL-MART, K-MART, TARGET, AND
ZELLERS.
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44. "Non-Chain Book Stores" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for
sale primarily books.
45. "Non-Chain Comic Book Stores" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for
sale primarily comic books.
46. "Non-Chain Drug Stores" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for
sale primarily prescription and over-the-counter drugs, personal care
products and household products.
47. "Non-Chain Jewelry Stores" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for
sale primarily jewelry. Non-Chain Jewelry Stores shall specifically
exclude Guild Jewelers (as defined above).
48. "Non-Chain Toy Stores" shall mean stores or groups of stores (containing
fewer than twenty ~20) individual stores) that offer for sale primarily
toys. In order to be considered a "Toy Store" hereunder, the total
number of toy-type SKU's must represent eighty percent (80%) or more of
such store's total SKU's. Examples of Non-Chain Toy Stores include,
without limitation, Talbot's Toyland and Tons of Toys, Inc.
49. "Non-Mall Clothing Specialty Stores" shall mean stores that offer for
sale primarily clothing and are not located within a mall. Examples of
Non-Mall Clothing Specialty Stores include, without limitation, KIDS
MART, KID. R US, CLOTHESTIME AND FASHION BUG.
50. "Novelty Gift Stores" shall mean stores that offer for sale primarily
novelty gift items. Examples of Novelty Gift Stores include, without
limitation, SPENCER'S.
51. "Off-Price/Closeout Stores" shall mean stores that offer for sale
primarily discounted apparel and other merchandise. Examples of
Off-Price/Closeout Stores include, without limitation, XXXXXXXX'X, X.X.
MAXX, XXXX FOR LESS, HIT OR MISS and TUESDAY MORNING.
52. "Office Specialty Stores" shall mean stores that offer for sale
primarily office supplies. Examples of Office Specialty Stores include,
without limitation, OFFICE DEPOT, STAPLES, and OFFICE MAX.
53 "Outlet Stores" shall mean stores that offer for sale primarily
discounted merchandise of a particular manufacturer or retailer.
54. "Party Stores" shall mean stores that offer for sale primarily party
supplies. Examples of Party Stores include, without limitation, PARTY
CITY and PARTY WORLD.
55. "Pet Stores" shall mean stores that offer for sale primarily pet
supplies. Examples of Pet Stores include, without limitation, PETCO and
PetSmart.
56. "Regional Discount/Mass Retailers" shall mean stores that (a) have
regional distribution, (b) generally offer products for sale in a broad
assortment of unrelated product categories, which products generally are
not classified in the trade as "better/best" quality products, (c) are
usually "self-service" with more of an emphasis on price than
aesthetics1 and (d) generally do not require individual store servicing
by suppliers. Suppliers to Regional Discount/Mass Retailers typically
advertise in trade publications, such as "Discount
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Store News" and "Discount Merchandiser", and usually attend the IMRA
(International Mass Retailer Association) trade show. Examples of
Regional Discount/Mass Retailers include, without limitation, MEIJERS,
CALDOR, XXXX, BRADLEES, HILL'S, ROSE'S, VENTURE, AND SHOPKO.
57. School Book Clubs/Fairs" shall mean offering products for sale through
book catalogs distributed to teachers and students at public or private
schools (usually elementary or high school) or through book fairs
conducted on the premises of such schools. Examples of School Book
Clubs/Fairs include, without limitation, TROLL BOOK CLUB and SCHOLASTIC
BOOK FAIR.
58. "Souvenir Stores" shall mean stores that offer for sale primarily
souvenirs.
59. "Sporting Good Stores" shall mean stores that offer for sale primarily
sporting goods, equipment, athletic apparel, and other merchandise that
reflects a sports theme. Examples of sporting Good Stores include,
without limitation, BIG 5 and SPORTS CHALET.
60. "Sports Stadium Shops" shall mean concessionaire shops located within
stadiums or arenas where sporting events are held.
61. "Stationery Stores" shall mean stores that offer for sale primarily
stationery. Examples of Stationery Stores include, without limitation,
Xxxx'x Stationaires.
62. "Street Peddlers" shall mean individual merchants who offer products for
sale in stands, booths or other non-permanent structures usually located
on the sidewalk and designed to attract passing pedestrians.
63. "Supermarket/Grocery Stores" shall mean stores that offer for sale
primarily packaged food products. Supermarket/Grocery Stores shall
specifically exclude Gourmet Food specialty Stores (as defined above)
and Convenience Stores (as defined above). Examples of
Supermarket/Grocery Stores include, without limitation, KROGER, SAFEWAY,
AMERICAN STORES, ALBERTSON'S, XXXX XXXXX, FOOD LION, VON'S, FINAST,
RALPHS and XXXXX.
64. "Swap Meets/Flea Markets" shall mean offering products for sale through
organized events known as swap meets or flea markets, which involve a
group of vendors offering for sale a variety of products, often
collectibles or antiques.
65. "Television Home Shopping" shall mean offering products for sale through
cable and broadcast television, including infomercials, QVC and Home
Shopping Network. Television Home Shopping shall specifically exclude
sales through the Internet, CD-Interactive and other electronic media.
66. "Toy Wholesalers" shall mean companies that offer for sale primarily
toys to retail stores. In order to be considered a "Toy Wholesaler"
hereunder, the total number of toy-type SKU's must represent eighty
percent (80%) or more of such wholesaler's total SKU's.
67. "Trackside - CART" shall mean offering products for sale at races
organized and sponsored by Championship Auto Racing Teams.
68. "Trackside - NASCAR" shall mean offering products for sale at races
organized and sponsored by the National Association for Stock Car
Racing.
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69. "Trackside - NHRA" shall mean offering products for sale at races
organized and sponsored by the National Hot Rod Association.
70. "Upstairs Department Stores" shall mean stores that (a) offer products
for sale in a broad assortment of unrelated product categories, which
products are generally classified in the trade as "best" quality
products, and (b) offer a high level of customer service with a strong
emphasis on store aesthetics. Examples of Upstairs Department Stores
include, without limitation, BLOOMINGDALE'S, MACY'S, NORDSTROM'S, MAY
DEPARTMENT STORES, SAKS FIFTH AVENUE, NEIMAN MARCUS, and DILLARDS
71. "Warehouse Clubs" shall mean stores that offer for sale products in
large sizes and quantities with more of an emphasis on price than
service or store aesthetics. Examples of Warehouse Clubs include,
without limitation, Sam's Club and Price Costco.
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EXHIBIT 2 #96394-BLT/WBLT
CONTRIBUTOR'S AGREEMENT
I, _________________________the undersigned ("Contributor"), have been engaged
by Gerber Childrenswear, Inc. ("Licensee") to work on or contribute to the
creation of Licensed Products, described as ____________________by Licensee
under an agreement between Licensee and Warner Bros., a division of Time Warner
Entertainment Company L.P., c/o Warner Bros. Consumer Products, a division of
Time Warner Entertainment Company L.P. ("Warner") dated ________________.
I understand and agree that all artwork which includes any Licensed Property of
Warner Bros. ("Work") and which results from my services for Licensee in
connection with such Licensed Products is a "work made for hire" for Licensor
and that all right, title and interest in and to the Work shall vest and remain
with Licensor. I reserve no rights therein. Without limiting the foregoing, I
hereby assign and transfer to Licensor all other rights whatsoever, in
perpetuity throughout the universe which I may have or which may arise in me or
in connection with the Work. I hereby waive all moral rights in connection with
such Work together with any other rights which are not capable of assignment. I
further agree to execute any further documentation relating to such transfer or
waiver or relating to such Work at the request of Licensor or Licensee, failing
which Licensor is authorized to execute same as my Attorney-in-Fact.
Contributor:
By:_____________________________
Date:___________________________
Warner Bros. Consumer Products:
By:_____________________________
Date:___________________________
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EXHIBIT 3 #96394-BLT/WBLT
Warner Bros. Consumer Products
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Re: Approval of Third Party Manufacturer
Gentlemen:
This letter will serve as notice to you that pursuant to Paragraph 10(b)
of the License Agreement dated ________ 199_ between WARNER BROS., A DIVISION OF
TIME WARNER ENTERTAINMENT COMPANY L.P. and GERBER CHILDRENSWEAR, INC.
("Licensee), we have been engaged as the manufacturer for Licensee in connection
with the manufacture of the Licensed Products as defined in the aforesaid
License Agreement. We hereby acknowledge that we may not manufacture Licensed
Products for, or sell or distribute Licensed Products to, anyone other than
Licensee. We hereby further acknowledge that we have received a copy and are
cognizant of the terms and conditions set forth in said License Agreement and
hereby agree to observe those provisions of said License Agreement which are
applicable to our function as manufacturer of the Licensed Products. It is
expressly understood that we are obligated to comply with all local laws,
including without limitation, labor laws, wage and hour laws and
anti-discrimination laws and that you or your representatives shall, at anytime,
have the right to inspect our facilities and review our records to ensure
compliance therewith. It is understood that this engagement is on a royalty free
basis and that we may not subcontract any of our work without your prior written
approval.
We understand that our engagement as the manufacturer for Licensee is
subject to your written approval. We request, therefore, that you sign in the
space below, thereby showing your acceptance of our engagement as aforesaid.
Very truly yours,
----------------------------
manufacturer/company name
By: /s/Xxxxxx Xxxxxxxxx
----------------------------
signature
Xxxxxx Xxxxxxxxx
----------------------------
print name
----------------------------
address
----------------------------
----------------------------
country
----------------------------
date
----------------------------
product(s) manufacturing
AGREED TO AND ACCEPTED:
WARNER BROS. CONSUMER PRODUCTS,
A Division of Time Warner
Entertainment Company L.P.
By: _____________________________
Xxxx X. Xxxxx
Vice President, Legal Affairs
Date:_____________________________
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