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EXHIBIT 10.39
EXCLUSIVE REPRESENTATION AGREEMENT
LAST REVISED MARCH 15, 2000
THIS AGREEMENT is made as of the 20th day of March, 2000, by and between
XXXXX X. HAKAN & ASSOCIATES, INC., a Missouri corporation with its mailing
address of 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 ("Hakan"), and
XXXX.XXX, INC., a Delaware corporation with a mailing address of 000 Xxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Client").
Hakan has offered to act as the Client's licensing representative to
promote the use by third parties of official licensed merchandise directed to
people containing the Xxxx.xxx Sock Puppet (which is set forth on Exhibit A and
is hereinafter referred to as the "Symbol") and, as used in conjunction with the
Symbol, Client's trademarks, logos, names, slogans, designs, likenesses, visual
representations and other commercial Symbol set forth on Exhibit B (hereafter,
such trademarks, logos, names, slogans, designs, likenesses, visual
representations and other commercial Symbol set forth on Exhibit B shall
collectively be referred to as the "Marks").
The Client wishes to retain Hakan to act as its exclusive representative
to promote the use by third parties of the Symbol for the commercial benefit of
the Client, and Hakan has agreed to accept these duties, subject to the terms
and conditions set forth below.
IT IS THEREFORE AGREED AS FOLLOWS:
1. APPOINTMENT OF HAKAN:
(a) The Client hereby appoints Hakan to be its exclusive world-wide
representative (in all countries where Client has rights) to manage the
licensing of the Symbol (and the Marks, but only when used with the Symbol) to
licensees for the purpose of the manufacture and sale of tangible consumer
products directed to people (such as hats, shirts, mugs, watches, mouse pads,
stuffed animals and toys for people) containing the Symbol (collectively
referred to as the "Included Licensing Opportunities").
(b) In the event that Client desires to engage an outside agency to
merchandize an additional commercial character developed by Client during the
term of this Agreement, Client shall notify Hakan in writing of such desire and
shall enter into exclusive good faith negotiations with Hakan for a period of
fourteen (14) days from the date of such written notice. In the event the
parties have not executed a definitive agreement within such fourteen (14) day
period, Client shall be free to negotiate and enter into agreements with any
third party regarding merchandizing any such additional commercial character.
(c) Notwithstanding anything to the contrary herein, Hakan shall have no
right to pursue any licensing agreement or relationship pursuant to which the
Symbol (collectively referred to as the "Excluded Categories"):
(i) will appear in an audio-visual work or audio work, such as a
television show, radio show, television or radio commercial, motion picture,
animated work, video game, audio CD or any work similar to the foregoing in any
media now known or hereafter developed; or
(ii) will appear in any advertising or promotion of Client or any
affiliate of Client in any media now known or hereafter created including
without limitation television, radio, print and online advertising; or
(iii) will appear in connection with the manufacture, sale or
promotion of products directed to pets (such as pet food, pet food bowls, pet
food containers, pet toys, pet apparel, collars, leashes, litter boxes, pet
furniture and cages, pet beds, pet ID tags and pet xxxxx).
(iv) will appear on products manufactured, developed or licensed
exclusively for, and sold exclusively at The Disney Store retail stores.
(d) Client will use commercially reasonable efforts to introduce the
licensees of products directed to people working with Hakan under this agreement
to appropriate personnel within the business operations of The Disney Store
retail stores in the event that Client desires to develop products for sale
exclusively at The Disney Store retail stores.
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(e) All licensing agreements shall be subject to the prior written
approval of the Client as to form and substantive terms and Hakan shall not have
the authority to bind Client to any contract or enter into any agreement on the
behalf of Client. Client may withhold approval of any agreement in its sole and
exclusive discretion. Client's approval of any license agreement shall
conclusively be presumed by execution by the Client of such license agreement.
Hakan will take all reasonable steps to see that all license agreements will be
with responsible third parties, whose merchandise and activities are of high
standard and whose merchandise is of such appearance and style as the enhance
the value of the Symbol and whose policies of sale, distribution and
exploitation will be of high standard. Each license agreement shall contain an
appropriate provision for copyright and trademark labeling, indemnification and
product liability insurance. Promptly upon execution of this Agreement, the
parties will work to develop a standard licensing agreement.
2. DUTIES OF HAKAN:
(a) Hakan shall render all services of this Agreement as an independent
contractor. Nothing in this Agreement shall be construed to (i) create a
partnership between the Client and Hakan, (ii) give either party the power to
direct and control the day-to-day activities of the other, (iii) constitute the
parties as partners, joint venturers, co-owners or otherwise as participants in
a joint undertaking, or (iv) allow Hakan to enter into any contract or agreement
on behalf of the Company for any purpose whatsoever. All financial and other
obligations associated with Hakan's business and obligations under this
Agreement are the sole responsibility of Hakan. Such obligations shall include
but not be limited to the production of style guides for merchandise containing
the Symbol, coordination of retail promotional materials, development of Hakan's
Xxxx.xxx trade show materials, and payment of New York Licensing Show trade show
exhibition fees.
(b) Hakan's duties under this Agreement include soliciting, negotiation
and submitting to the Client opportunities for the licensing of the Symbol.
Hakan agrees to use all diligent and reasonable efforts, consistent with good
business practice, in such manner as to obtain the largest gross receipts from
the licensing and exploitation of the rights covered by this Agreement as shall
be reasonably possible and as shall be consistent with the premium quality and
standards of the Symbol. Each License Agreement shall provide for all payments
thereunder to be made to a separate bank account in Client's name and that the
parties shall, promptly after execution of this Agreement, set forth mutually
agreeable procedures to allow Hakan to withdraw funds from such account.
(c) Hakan shall, on behalf of the Client, supervise the licensees
pursuant to license agreements made in accordance with this Agreement to ensure
full compliance and performance of all obligations and duties of the licensees
thereunder; provided that the Client reserves the right to assert on its own
behalf any and all of its rights as Licensor under the Licensing Agreements.
Nothing in this Agreement shall be construed to permit or obligate Hakan to
institute any legal action of any kind under any License Agreement.
(d) Hakan shall promptly notify the Client of any actual or possible
infringement of Client's rights in the Symbol or the rights granted to any
licensee which may come to the notice of Hakan during the term of this
Agreement. The Client and Hakan shall cooperate with each other regarding the
Client's enforcement of its rights to the Symbol, provided that:
(i) the Client shall not be bound to institute legal proceedings;
(ii) the Client shall approve and conduct all legal proceedings
relating to the Symbol at the Client's sole expense; and
(iii) nothing in this Agreement shall be construed to permit or
obligate Hakan to institute any legal action of any kind against any alleged
infringer; and
(iv) the Client shall, during the term of this Agreement and any
extension or renewal thereof, reasonably defend the Symbol from infringement so
as to preserve its value.
(e) Hakan and its employees will in all instances refer to the Symbol as
the "Xxxx.xxx Sock Puppet."
(f) Hakan shall exhibit and promote products containing the Symbol at
the New York Licensing show and such other trade shows and similar events as
Hakan and Client may determine is in their mutual best interest.
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(g) Hakan and Client shall cooperate to develop guidelines for the use
of the Xxxx.xxx logo and/or trademark in connection with the Symbol, which
guidelines shall be subject to the written approval of Client within its sole
and exclusive discretion, and which may be modified by Client at any time.
(h) Hakan shall bear its own expenses arising out of and relating to
this Agreement. Without limiting the foregoing, Hakan shall be responsible for
expenses incurred for the development and printing of style guides, appropriate
licensing sales materials and New York licensing trade show exhibits.
(i) Hakan shall use commercially reasonable efforts to obtain the
cooperation of licensees to make available to Xxxx.xxx for distribution through
its distribution channels (such as the Xxxx.xxx web site, the Xxxxxx.xxx web
site and The Disney Store online) those products containing the Symbol that
Hakan generates licensing agreements for through its efforts hereunder.
3. COMPENSATION OF HAKAN:
(a) As compensation for all services rendered and expenses incurred by
Hakan in performing its duties under this Agreement, Hakan shall be entitled to
retain [*] of all gross revenues received from Included Licensing Opportunities
other than Excluded Revenues (as defined below) and other than Web/Disney Store
Revenues (as defined below) during the term of this Agreement and any extension
or renewal thereof; whether generated as a result of the efforts of Hakan or the
Client. As used in this Agreement, "Excluded Revenues" means (i) all revenues
derived from the sale or marketing of those products listed on Exhibit D and the
following six (6) products currently under development by Client: Denim Shirt,
Coffee Mug, Posters of outdoor advertising, Kids Watch, Picture Frames and Kids
Back Pack and (ii) all revenue derived from the sale or marketing of any
products within the Excluded Categories.
(b) Hakan shall, following the payment of all expenses in connection
with the collection of such damages, including attorney's and consultant's fees,
be paid [*] of any damages or settlement proceeds recovered by Client in
connection with any dispute with a third party relating to such third party's
right to use the Symbol in connection with tangible consumer products directed
to people.
(c) "Web/Disney Store Revenues" means all revenues (except revenues from
Excluded Categories) derived from the sale or marketing of any products
containing the Symbol made through: (1) any web site owned or operated by
Client, (2) any co-branded version of the Xxxx.xxx web site, (3) the web site of
any affiliate or subsidiary of Client, (4) the Xxxxxx.xxx web site, (5) The
Disney Store, (6) The Disney Store online (collectively the "Web Sites"). Client
agrees that the only tangible consumer products directed to people containing
the Symbol, other than Excluded Categories (and other than those products which
contain the Symbol which are listed on Exhibit D and the following six (6)
products currently under development by Client: Denim Shirt, Coffee Mug, Posters
of outdoor advertising, Kids Watch, Picture Frames and Kids Back Pack), sold at
the Web Sites shall be those products licensed pursuant to the terms and
conditions of this Agreement. As compensation for expenses incurred by Hakan in
the promotion of the Symbol, Hakan shall be entitled to retain ten percent (10%)
of gross Web/Disney Store Revenues derived from the sale of Included Licensing
Opportunities.
(d) The balance of such amounts shall be payable to the Client on a
quarterly basis within forty five (45) days after the close of each calendar
quarter during the term of this Agreement. Client shall have the right to
terminate this Agreement in the event Hakan fails to make a timely payment or
provide a required report if such failure is not cured within the ten (10)
business days following written demand by Client.
(e) Hakan shall submit a report of sales and royalties paid to the
Client at the time payments are due hereunder, in the form, and containing such
detail as the parties shall reasonably agree. The Client shall have the right to
audit Hakan's books and records pertaining to activities under this Agreement,
but not more frequently than annually, and not with less than five (5) business
days written notice. Hakan agrees to pay the reasonable cost of any such audit
if such audit finds that reported revenues for any quarter have been understated
by more than five percent .
(f) In the event that Hakan fails to make a payment or submit a report
to the Client when due, Hakan shall have the right to cure such default within
ten (10) business days from receipt of written notice from the Client
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which states specifically the nature of the problem.
(g) Upon the termination of this Agreement other than any termination by
Client pursuant to Sections 3(b) or 7(e), Hakan shall be entitled to receive:
(i) [*] of the gross royalty revenues and advances (other than
those gross royalty revenues or advances for which Hakan is entitled to receive
payment under Section 3(g)(ii) or 3(g)(iii)) either received by or due to the
Client during the [*] following the termination date from all bona fide leads
for which Hakan has notified Client in a timely manner pursuant to Section 7(d)
that it has solicited business for the Client. Such payment shall be made
quarterly and payment shall made within forty five (45) days of the end of the
calendar quarter in which payment is actually received by Client;
(ii) a trailing commission thereafter of [*] of the gross royalty
revenues and advances generated from Included Licensing Opportunities other than
Excluded Categories and other than Web/Disney Store Revenues received by or due
to the Client during the greater of: (a) the [*] following the termination date;
or (b) the remainder of the original term of such licensing agreements which
have been originally entered into during the term of this Agreement; and
(iii) a trailing commission thereafter of [*] of Web/Disney Store
Revenues derived from the sale of Included Licensing Opportunities received by
or due to the Client during the greater of: (a) the [*] following the
termination date; or (b) the remainder of the original term of such licensing
agreements which have been originally entered into during the term of this
Agreement.
4. THE CLIENT'S DUTIES AND OBLIGATIONS:
(a) All effort and expense to register the rights (patent, copyright,
trademarks or similar rights) pertaining to the Symbol and the Marks undertaken
by Client shall be at Client's expense and Hakan shall not be responsible for
undertaking such activities, except that Hakan shall (without expense to Hakan)
cooperate with Client to perfect and defend such registrations. Client shall
retain all right, title and interest in and to the Symbol and the Marks. All use
by Hakan of the Symbol and the Marks in connection with this Agreement shall
inure to the benefit of Client. Except as explicitly provided in this Agreement,
Hakan shall not, without the prior written approval of Client, use in any
advertising, public announcement, press release or any other promotional
endeavor the Symbol or the Marks. Hakan agrees that it will not in any
jurisdiction use, register or otherwise appropriate any Symbol or Xxxx that is
confusingly similar to the Symbol or the Marks.
(b) The Client shall be responsible for the enforcement of all rights
(patent, copyright, trademarks or similar rights) pertaining to the Symbol. The
Client will reasonably defend its ownership of and rights in the Symbol and will
take all measures which it, in its sole and exclusive discretion, determines are
necessary and appropriate to ensure the best protection of these rights such as
the application of patent, registrations for trademarks and/or enforcement
actions.
(c) The Client shall use all reasonable efforts to obtain the full
cooperation of all of the Client's partners, affiliates and subsidiaries with
Hakan.
(d) The Client shall use commercially reasonable efforts to obtain
agreements from Chiat and Xxxxxxxx Xxxxxxx assigning to Client any rights such
parties may have in the Symbol.
5. THE CLIENT'S WARRANTIES AND REPRESENTATIONS:
(a) Client represents and warrants that:
(i) it has the full corporate right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder; and
(ii) the execution of this Agreement and the performance of its
obligations and duties hereunder, do not and will not violate any agreement to
which Client is a party or by which it is otherwise bound; and
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(iii) when executed and delivered, this Agreement will constitute
a legal, valid and binding obligation of Client, enforceable against Client in
accordance with its terms; and
(iv) the Client has the full and absolute right to grant to Hakan
the exclusive right to represent and license the Symbol in the manner permitted
by this Agreement without obtaining any further consent from any of its
affiliates, subsidiaries or any other third party; In the event of breach of
this section 5(a)(iv) by Client, Hakan's sole remedy and Client's sole liability
shall be indemnification of Hakan pursuant to Section 5(c); and
(v) except as set forth on Exhibit C, to Client's knowledge, the
Symbol is a valid trademark, service xxxx and commercial symbol owned by the
Client and, to Client's knowledge, no other person has any rights therein; and
(vi) except as set forth on Exhibit C, to Client's knowledge,
there are no infringing uses with respect to the Symbol and, to Client's
knowledge, each component of the Symbol is valid and does not infringe upon any
trademarks, copyrights or other license rights of any one; and
(vii) Client has not granted to any party other than Hakan any
right that conflicts with the rights of Hakan pursuant to this Agreement (except
in connection with the sale via the Client website of (1) the products listed on
Exhibit D and (2) the following six (6) products currently being developed by
Client: Denim Shirt, Coffee Mug, Posters of outdoor advertising, Kids Watch,
Picture Frames and Kids Back Pack).
(b) The Client will indemnify, defend (using attorneys reasonably
acceptable to Hakan) and hold harmless Hakan and all of its officers, directors,
agents, contractors, attorneys and employees, together with all successors and
assigns of said parties, from and against any claim, liability cost or expense,
including without limitation reasonable attorney's fees, incurred by said
parties arising from the breach by the Client of any warranty or representation
made in this Agreement; provided that Hakan provides Client with (i) prompt
written notice of such claim or action, (ii) sole control and authority over the
defense or settlement of such claim and (iii) proper and full information and
reasonable assistance to defend and/or settle any such claim or action.
(c) The Client will, at its expense, defend Hakan (using attorneys
reasonably acceptable to Hakan) and all of its officers, directors, agents,
contractors, attorneys and employees, together with all successors and assigns
of said parties, from and against any claim against by said parties based upon
the infringement or unfair competition through the use or license of the Symbol;
and Client shall pay any money damages awarded as a result of such claim;
provided that Hakan provides Client with (i) prompt written notice of such claim
or action, (ii) sole control and authority over the defense or settlement of
such claim and (iii) proper and full information and reasonable assistance to
defend and/or settle any such claim or action.
6. HAKAN WARRANTIES AND REPRESENTATIONS:
Hakan warrants and represents unto the Client as follows:
(a) Hakan represents and warrants that: (a) it has the full corporate
right, power and authority to enter into this Agreement and to perform the acts
required of it hereunder; (b) the execution of this Agreement and the
performance of its obligations and duties hereunder, do not and will not violate
any agreement to which Hakan is a party or by which it is otherwise bound; and
(c) when executed and delivered, this Agreement will constitute a legal, valid
and binding obligation of Hakan, enforceable against Hakan in accordance with
its terms.
(b) Hakan will indemnify, defend (using attorneys reasonably acceptable
to Client) and hold the Client and all of its officers, directors, agents,
contractors, attorneys and employees, together with all successors and assigns
of said parties harmless from and against any and all liability, cost and
expense, including legal fees, incurred by or charged against the Client
resulting from the breach by Hakan of any representation or warranty made by
Hakan under the terms of this Agreement.
(c) Hakan also will indemnify, defend (using attorneys reasonably
acceptable to Client) and hold harmless the Client and all of its officers,
directors, agents, contractors, attorneys and employees, together with all
successors and assigns of said parties from and against any and all liability,
cost and expense, including legal fees, resulting from Hakan's acts and
omissions in the performance of this Agreement which cause damage or injury to
the
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Client or any third persons.
(d) Hakan shall not assert any right or title to or interest in or
directly or indirectly challenge the validity, ownership or title of Client to
the Symbol or the Marks. Hakan shall not take any action which might dilute or
lessen Client's rights, title or interest in any Symbol or the Marks. Any
variation, modification or derivative work of the Symbol or the Marks made by
either party in connection with this agreement shall be the sole and exclusive
property of Client. Hakan hereby assigns to Client all right, title and interest
in and to any variation, modification or derivative work of the Symbol or the
Marks made by Hakan or its employees, consultants, independent contractors or
any third party working with Hakan in connection with this Agreement. Hakan
represents and warrants that all employees, consultants, independent contractors
and third parties who develop any variation, modification or derivative work of
the Symbol or Marks in connection with this Agreement shall execute a written
agreement with Hakan assigning to Hakan all right, title and interest in and to
such variation, modification or derivative work or the Symbol or Marks. Use of
the Symbol and the Marks by Hakan shall be solely as a licensing representative
pursuant to this agreement.
7. TERM:
(a) This Agreement shall be in effect for an initial term starting on
March 15, 2000 and ending on March 31, 2003, unless sooner terminated as set
forth herein.
(b) If Hakan has generated less than [*] in accrued gross revenues
and/or royalty guarantees from licensing Agreements made pursuant to this
Agreement prior to June 30, 2001, then Client shall have the right to terminate
this Agreement upon written notice to Hakan, provided that such notice is given
prior to October 1, 2001.
(c) The parties will meet at a mutually agreed upon time at least one
hundred and twenty (120) days prior to the end of the initial term, or any
extension or renewal term, of this Agreement to discuss and negotiate in good
faith the renewal term. At the end of the initial term of this Agreement, this
Agreement shall automatically renew for an additional term of three (3) years
unless either party gives written notice to the other party at least sixty (60)
days prior to the end of the initial term indicating that, in good faith, it is
not satisfied with the discussions between the parties regarding the renewal
term.
(d) Upon March 31 and September 30 of each year during the term of this
Agreement, and upon termination of this Agreement, Hakan shall provide Client
with a written list of all parties which Hakan has solicited for business on
behalf of the Client.
(e) This Agreement may be terminated at any time by a party, effective
immediately upon notice, if the other party: (a) files a petition in bankruptcy,
(b) makes an assignment for the benefit of its creditors, or (c) breaches any of
its material responsibilities or obligations under the Agreement which breach is
not remedied within thirty (30) days from receipt of written notice of such
breach if such breach is capable of being cured.
(f) The following sections shall survive the termination or expiration
of this Agreement: 3(e), 5, 6, 7(f), and 8-11.
8. GENERAL TERMS:
(a) This writing represents and expresses the entire and final
understanding of the parties regarding the subject matter contained therein. All
prior negotiations and preliminary agreements are merged into and superseded by
this Agreement. None of the provisions of this Agreement can be modified or
amended except by written agreement executed by all parties to this Agreement.
(b) No waiver by either party, whether expressed or implied, of any of
the provisions of this Agreement or of any breach or default hereto shall
constitute a continuing or future waiver of such provisions. Nor shall a waiver
by either party prevent that party from enforcing any and all provisions of this
Agreement or from acting upon the same for a subsequent breach or default of the
other party.
(c) This Agreement is made pursuant to the laws of the State of
California and it is agreed that the
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laws of that State shall control in the enforcement and understanding of this
Agreement.
(d) This Agreement may not be assigned by either party without the prior
written consent of the other, provided, however, that either party may assign
this Agreement to any successor by way of merger, acquisition or sale of all or
substantially all of the assets of said party.
(e) This Agreement shall be binding upon the successors and permitted
assigns of the parties.
(f) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF ANTICIPATED PROFITS OR LOST BUSINESS.
(g) Neither Hakan nor any of its affiliates or subsidiaries shall issue
any press release or similar announcement in connection with this Agreement or
any license agreements entered into in connection with this Agreement without
the prior written consent of Client.
9. NOTICES:
Any notice required or permitted to be given under this Agreement shall
be sufficient if in writing, in the English language, and shall be deemed to be
fully given when personally delivered or sent by confirmed facsimile or two days
after being sent by commercial courier to the addresses first set forth above,
which may be changed from time to time pursuant to ten days' advance notice
hereunder.
10. DISPUTE RESOLUTION:
(a) In the event of a dispute between the parties, Hakan and the Client
agree to attempt to resolve the dispute by a face-to-face meeting with a
qualified mediator to be chosen by mutual agreement.
(b) Except for any dispute arising in whole or in part under Section
4(a), 4(b) or 6(d) of this Agreement, in the event that the dispute can not be
resolved by mediation, either by a failure to promptly cooperate in the
mediation process or otherwise, the parties agree that the dispute shall be
resolved by binding arbitration under the governing rules of the American
Arbitration Association.
(c) The mediation or arbitration shall be conducted in the State of the
party who will be the respondent in that action. For example, if Hakan requests
the mediation or arbitration, it will be conducted in the state where the Client
has its notice address, and if the Client makes the request for arbitration, it
will be conducted in Kansas. The costs of the mediation and/or arbitration shall
be shared equally and each party shall bear its own attorney fees.
11. CONFIDENTIALITY:
The parties hereby acknowledge that in the course of activities under this
Agreement each of them may have access to confidential and proprietary
information which relates to the other party's marketing, business, and
technology (the "Confidential Information"). Each party agrees to: (a) preserve
and protect the confidentiality of the other party's Confidential Information:
(b) refrain from using the other party's Confidential Information except as
contemplated herein; and (c) not disclose such Confidential Information to any
third party except as is reasonably required in connection with the exercise of
its rights and obligations under this Agreement (and only subject to binding use
and disclosure restrictions at least as protective as those set forth herein).
Notwithstanding the foregoing, either party may disclose Confidential
Information of the other party which is: (i) already publicly known; (ii)
discovered or created by the receiving party without reference to the
Confidential Information of the disclosing party, as shown in records of the
receiving party; (iii) otherwise known to the receiving party through no
wrongful conduct of the receiving party, (iv) required in order to enforce such
party's rights under this Agreement, or (v) required to be disclosed by law or
court order. Moreover, any party hereto may disclose any Confidential
Information hereunder to such party's agents, attorneys, lenders, accountants,
financial advisors and other representatives or any court of competent
jurisdiction or any other party empowered hereunder or as reasonably required to
resolve any dispute between the parties hereto. Each party shall treat the terms
of this Agreement as
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"Confidential Information." Hakan acknowledges and agrees that all information
relating to licensing agreements made in accordance with this Agreement, whether
generated by Hakan or Client, shall be deemed to be "Confidential Information"
of Client.
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IN WITNESS WHEREOF, the parties have executed this agreement intending
to be legally bound.
HAKAN: THE CLIENT:
Xxxxx X. Hakan and Associates Xxxx.xxx, Inc.
By: /s/ Xxxxx X. Hakan By: /s/ Xxxxx Xxxx
-------------------------------- ---------------------------------
Xxxxx X. Hakan, President Xxxxx Xxxx, President
Date: 3/20/00 Date: 3/21/00
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EXHIBIT A
The Symbol
Xxxx.xxx Sock Puppet
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EXHIBIT B
The Marks
The Xxxx.xxx logo
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EXHIBIT C
Disclosure Schedule
1. Client received a letter dated February 22, 2000 from Xxxxxx Xxxxxx pursuant
to which Xx. Xxxxxx claims that the Symbol infringes the rights of Xx. Xxxxxx.
2. Client engaged TBWA/CHIAT/DAY, Inc. ("Chiat") in connection with the
development of the Symbol and certain advertising and promotions of Client
including the Symbol. Client does not have an agreement with Chiat under which
the rights to Symbol are assigned to Client. Thus, Chiat may own certain rights
in the Symbol, including copyright and trademark rights.
3. Client engaged Xxxxxxxx Xxxxxxx in connection with the development of certain
products containing the Symbol. Client does not have an agreement with Xxxxxxxx
Xxxxxxx under which the rights to the embodiments of the Symbol developed by
Xxxxxxxx Xxxxxxx are assigned to Client. Thus, Xxxxxxxx Xxxxxxx may own certain
rights in the Symbol, including copyright and trademark rights.
4. Client executed an agreement dated October 12, 1999 with Macy's East, Inc.
under which Macy's developed and provided a balloon in the Macy's Thanksgiving
Day Parade. Pursuant to this Agreement, neither Client nor Macy's may use the
balloon embodiment of the Symbol without the written permission of the other
party.
The foregoing information is provided solely for the purpose of the disclosure
of information to Hakan and shall not be construed as an admission on the part
of Client that any of the above parties have valid claims to any rights in or to
the Symbol or any embodiments thereof.
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EXHIBIT D
Products Directed To People Which Contain The Symbol
And Which Are Currently Sold Via The Xxxx.xxx Web Site
Adult Sweatshirt
Child Sweatshirt
Adult Polar Fleece
Adult T-Shirt
Child T-Shirt
Adult Cap
Child Cap
Adult Watch
