Exhibit 10.7
Termination and Release
This Termination and Release dated as of September 15, 1998 is entered into
by and among The Timberland Company ("Timberland"), Gargoyles, Inc.
("Gargoyles") and the kindling company, formerly known as The X.X. Xxxxx Company
("Kindling") with respect to the following facts:
A. Timberland, Gargoyles and Kindling entered into a License Agreement
dated as of May 17, 1996 (the "License Agreement") whereby Timberland licensed
the Timberland and Tree Logo Design trademarks to Gargoyles and Kindling.
B. Timberland, Gargoyles, Kindling and Xxxxxxx X. Xxxxx entered into an
Investor Rights Agreement date as of May 17, 1996 (the "Shareholder Agreement").
C. The parties wish to effect the sale (the "Sale") of substantially all
the assets of Kindling to Adventure Optics L.L.C. ("Newco") pursuant to the
terms of an Asset Purchase Agreement dated as of September 15, 1998 (the "Asset
Purchase Agreement") by and among Newco, Gargoyles, Kindling and Xxxxxxx X.
Xxxxx.
D. It is a condition precedent to Gargoyles' obligation to close the Sale
that Timberland shall have entered into this Release and Termination.
NOW THEREFORE, for good and valuable consideration, and conditioned upon
the closing of the Sale, the parties hereto agree as follows:
1. Consent to Sale. Timberland hereby consents to the Sale.
2. Termination of License Agreement. Timberland, Gargoyles and Kindling
declare and agree that the License Agreement is hereby terminated, subject to
the following:
2.1 The following specific sections of the License Agreement, Sections
5, 11, 12, 30, 32, 34, 44, 46, 56 and 57, shall survive the termination of
the License Agreement; and provided further that Sections 20 and 22 shall
survive for a period of two years following the date of this Agreement.
Furthermore, Section 31 shall survive the termination of the License
Agreement, but only with respect to Licensed Products (as defined therein
manufactured pursuant to the License Agreement;
2.2 Section 13 shall survive termination the License Agreement except
for the first three sentences of Section 13, which shall not survive
termination of the License Agreement. In addition, all actions which
Gargoyles or Kindling may be required to perform under the surviving
portions of Section 13 shall be at the expense of Timberland;
2.3 Section 33 shall survive termination of the License Agreement,
provided that Kindling shall not be required to maintain any insurance.
Kindling shall remain as an additional assured on insurance maintained by
Gargoyles.
2.4 Section 35 shall survive termination of the License Agreement in
its entirety insofar as it applies to Kindling. Section 35 shall not
survive termination of the License Agreement insofar as it applies
Gargoyles, provided, however, that Gargoyles agrees that it will not
research, design or sell any eyewear or related accessories which in
Timberland's reasonable opinion are based on, are derived from or replicate
any products which were Licensed Products during the period that the
License was effective.
3. Release. In consideration of, and conditioned upon Timberland's receipt
of, payment of $255,000 from proceeds of the Sale, Timberland hereby releases
Gargoyles and Kindling, and their respective successors, assigns, directors,
officers, employees, agents, attorneys and representatives (other than Newco),
and Gargoyles and Kindling release Timberland and its successors, assigns,
directors, officers, employees, agents, attorneys and representatives, from any
and all liability for payment of royalty payments and all other obligations of
Gargoyles or Kindling whatsoever, known and unknown, arising under the License
Agreement, excluding those obligations which survive the termination of the
License Agreement pursuant to Section 2, above.
4. Counterparts. This Release and Termination may be executed in any number
of counterparts which, when taken together, shall constitute but one agreement.
IN WITNESS WHEREOF, the parties have executed this Release and Termination
as of the 15th day of September, 1998.
THE TIMBERLAND COMPANY GARGOYLES, INC.
By: /s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxx Xxxxxxxxxxx
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Its: Vice President - Licensing Its: CEO & CFO
the kindling company
By: /s/ Xxx Xxxxxxxxxxx
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Its: CFO
