EXHIBIT 10.33
RETAIL AND PROMOTIONAL LICENSE
WARNER BROS. CONSUMER PRODUCTS
#13770-WBLT
PROMOTIONAL LICENSE AGREEMENT made November 20, 2002 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 XXXXX BROTHERS, INC., whose address is 0000 X. Xx Xxxxxx Xxxxx,
Xxxxxxxx, XX 00000, Attention: Xxxx Xxxxx (hereinafter referred to as
"LICENSEE").
W I T N E S S E T H:
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 conduct the Licensed
Promotion and shall sell and distribute the Licensed Products and/or
the Licensed Premiums through the following Channels of Distribution
only (as such channels are defined and numbered in Exhibit 1 attached
hereto and incorporated herein by reference):
CHANNEL EXHIBIT 1 NUMBER
[*]
All other Channels of Distribution defined in Exhibit 1 which are not
specified above in this Paragraph l(a) are specifically excluded from
this Agreement.
[*]
(b) "GUARANTEED CONSIDERATION": [*]
(c) "LICENSED PREMIUM(S)": Licensee shall have the right to include
premiums incorporating the Licensed Property in association with the
Licensed Promotion.
Any and all such premiums shall be determined by the parties at a
later date and shall be added to this License Agreement pursuant to a
written amendment, provided, however, that Licensor shall have the
absolute right to approve in writing all the elements (i.e. all
premiums as well as all product packaging, advertising, etc.) prior to
manufacture of said premiums.
For purposes of this subparagraph, the term "premium" shall be defined
as 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, including traffic
building or continuity visits by the consumer/customer, or any similar
scheme or device, the prime intent of which is to use the premiums in
such a way as to promote, publicize and or sell the products, services
or business image of the user of such item.
(d) "LICENSED PRODUCTS": Salted Snacks Category defined as: Potato Chips,
Potato Crisps, 2-D Potato or Corn Snacks, 3-D Potato or Corn Snacks,
Pretzels, Cheese Puffs, Tortilla Chips, Pellet Fried Snacks, Extruded
Fried Snacks.
It is understood and agreed that for the purposes of this Agreement,
Salted Snacks Category shall exclude the following: pre-popped
popcorn, nuts, crackers, and cookies.
(e) "LICENSED PROMOTION": The right to utilize the Licensed Property in
connection with the advertising and promotion of the Licensed Products
and with the manufacture, distribution and advertisement of Licensed
Premiums as set forth below:
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AMENDED.
Licensee shall invest [*] of its annual Net Sales (as defined in
Paragraph 4(b) below) of the Licensed Products towards trade and
consumer marketing support which shall include a minimum of one (1)
FSI per calendar year (the "Annual FSI Requirement"). [*] of such
marketing investment shall be allocated towards television media
commitments (the "TV Commitment") on AOL TW networks each calendar
year to support the Licensed Products. In the event, Licensor is no
longer affiliated with television media outlets during the Term,
Licensee may utilize other television networks to fulfill the TV
Commitment.
It is understood and agreed that the Annual FSI Requirement shall be
fulfilled for the calendar year 2003 with the FSI for the Looney
Tunes: Back in Action property as provided for in separate license
agreement #13771-WBLT/BIA.
(f) "LICENSED PROPERTY": The fictional cartoon characters BUGS BUNNY,
DAFFY DUCK, XXXXXXXXX, TWEETY, ROAD RUNNER, WILE E. COYOTE, TASMANIAN
DEVIL, XXXXX XXXX, PORKY PIG, XXXXXX THE MARTIAN, GOSSAMER and MISS
WITCH XXXXX, YOSEMITE XXX, XXXX XX XXX, FOGHORN LEGHORN which
constitute "LOONEY TUNES", including the names of said characters and
all trademarks, copyrights, environmental settings and artwork
associated therewith. Licensee specifically understands and agrees
that no rights are granted herein with respect to the Warner Bros.
"BABY LOONEY TUNES" or "BABY LOONEY TUNES CLASSIC COLLECTION"
properties, 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 parties of its choice.
Licensee further understands and agrees that the rights granted herein
are limited only to the cartoon characters set forth above as depicted
in Licensor's Style Guide, as such Style Guide may be revised from
time to time, and that any and all rights in, to or associated with
any theatrical motion picture, including without limitation the motion
picture presently entitled LOONEY TUNES: BACK IN ACTION, any
television motion picture, movie of the week, television special,
television pilot, television series, direct to video or any other
audiovisual work of any type now known or hereafter devised intended
for exploitation in any medium now known or hereafter devised
containing "LOONEY TUNES", whether live action, animation or both, as
well as with any sequels, spin-offs and all other types of derivative
works based thereon, are specifically excluded herefrom, it being
understood that all rights in and to such properties are reserved
exclusively to Licensor for use and/or licensing as it deems
appropriate to third parties of its choice. Any and all rights in any
film clips, stills, sound bites, voices, music or other audio clips
are specifically excluded herefrom. If Licensee wishes to use any such
elements, Licensee must separately procure the necessary rights and
any rights clearance or related fees arising from same shall be at
Licensee's sole expense.
(g) "MARKETING DATE": Date Licensed Products first shipped to customer,
but not later than September 15, 2003.
(h) "ROYALTY RATE": Licensee shall pay to Licensor the following sums:
(i) [*] of Net Sales of all Licensed Products; and
(ii) [*] of Net Purchase Price of all Licensed Premiums distributed
by Licensee hereunder. The term "Net Purchase Price" herein
shall mean the price actually paid by Licensee for any Licensed
Premium(s) authorized and distributed hereunder. It is
understood and agreed that any Royalties paid to Licensor on
Net Purchase Price of Premiums shall be in addition to and
shall not offset the Guaranteed Consideration hereunder.
(g) "STYLE GUIDE": Any materials provided by Licensor to Licensee which
sets forth the style, format, characterization and any artwork
depicting the Licensed Property which has been approved by Licensor in
writing
(i) "TERM": [*]
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(j) "TERRITORY": United States (fifty states), Puerto Rico, United States
Virgin Islands, and United States Military Bases.
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 Agreement, a license to utilize the Licensed Property solely on
or in connection with the Licensed Promotion and the Licensed Products
and/or Licensed Premiums throughout the Territory on an exclusive
basis in the Salted Snack Category as defined in Paragraph 1(d),
except that sales of Licensed Products and Licensed Premiums sold
through Airport Gift and Other Airport Stores shall be on a
non-exclusive basis.
(b) [*]
(c) Without limiting any other approval rights of Licensor as contained
herein, no television commercials (animated or live action) may be
utilized under this Agreement without the specific prior written
approval of Licensor.
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, for
itself and its affiliates, 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 marketing,
manufacture, distribution and sale of products and/or the promotion of
services similar or identical to those licensed herein in Paragraphs
l(c) and l(d) above for sale through any catalogue(s) or online
website produced or distributed by or on behalf of Licensor or its
affiliated companies, or for sale or distribution in any theaters,
arenas or restaurants or for sale or distribution in connection with
any home video product, including DVD or other formats, or for sale or
distribution in the retail stores known as "Warner Bros. Studio
Stores" and any other retail stores operated by or on behalf of
Licensor or its affiliated companies, or for sale or distribution in
any theme/amusement parks operated by or on behalf of Licensor and its
affiliated companies, including without limitation, the Six Flags and
Movie World parks or its licensees, Six Flags, Movie World, or their
affiliated companies. In addition, Licensor reserves the right to
allow Six Flags 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 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. Nothing contained herein shall be construed to mean
that Licensee is granting a license to Licensor to utilize Licensee's
proprietary and/or patented technology.
(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 those 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.
Notwithstanding the foregoing Licensee may use the Warner Bros. shield
logo in connection with the legal line referenced in Paragraph 8(d)
below as instructed by Licensor's Brand Assurance Department.
(d) 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 premiums or the Licensed
Premiums as products for retail sale, except with the prior written
consent of Licensor.
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AMENDED.
(e) Licensee specifically understands and agrees that no rights are
granted hereunder with respect to the Warner Bros. "BABY LOONEY TUNES"
infant property, 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.
(f) Licensee further 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.
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 (i) all Net Sales by Licensee of
the Licensed Products and/or (ii) Net Purchase Price of the Licensed
Premiums covered by this Agreement. The term "net sales" herein shall
mean [*]. 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) Royalties shall be payable concurrently with the periodic statements
required in Paragraph 5(a) hereof, except to the extent offset by the
Guaranteed Consideration theretofore remitted.
5. PERIODIC STATEMENTS:
(a) Within thirty (30) days after the end of the first fiscal quarter
after the date of execution of the License Agreement and promptly on
the 25th day after the end of each fiscal quarter thereafter, Licensee
shall furnish to Licensor complete and accurate statements certified
to be accurate by Licensee, or if a corporation, by an officer of
Licensee, showing the (i) number of units; (ii) country in which
manufactured, sold, distributed and/or to which shipped; (iii)
Description (as such term is defined below) of the Licensed Products
and/or Licensed Premiums; (iv) gross sales price or Net Purchase Price
(if applicable); and (v) itemized deductions from gross sales price
and net sales price (if applicable) together with any returns made
during the preceding fiscal quarter. Such statements shall be in such
formats as Licensor shall reasonably require (which formats may be
amended by Licensor from time to time) and shall be furnished to
Licensor whether or not any of the Licensed Products and/or Licensed
Premiums have been distributed during fiscal quarters 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. Upon demand of Licensor, Licensee shall at its own expense,
but not more than once in any twelve (12) month period, furnish to
Licensor a detailed statement by an officer of Licensee showing the
(i) number of units; (ii) country in which manufactured, sold,
distributed and/or to which shipped; (iii) Description of the Licensed
Products and/or Licensed Premiums; (iv) gross sales price or Net
Purchase Price (if applicable); and (v) itemized deductions from gross
sales price and net sales price (if applicable) of the Licensed
Products and/or Licensed Premiums covered by this Agreement
distributed and/or sold by Licensee up to and including the date upon
which Licensor has made such demand. For purposes of this Paragraph
5(a), the term "Description" shall mean a detailed description of the
Licensed Products and/or Licensed Premiums including the nature of
each of the Licensed Products and/or Licensed Premiums, any and all
names and likenesses, whether live actors or animated characters, from
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the Licensed Property utilized on the Licensed Products and/or
Licensed Premiums and/or any related packaging and/or wrapping
material, and any other components of the Licensed Property utilized
on the Licensed Products and/or Licensed Premiums and/or any related
packaging and/or wrapping material. In the event Licensor is
responsible for the payment of any additional third party
participations based on Licensee not reporting by character name and
likeness as provided above, Licensee shall be responsible for
reimbursing Licensor for the full amount of all such third party
claims, including without limitation the participation itself,
interest, audit and reasonable attorneys' fees. Licensee understands
and agrees that it is a material term and condition of this Agreement
that Licensee include the Description on all statements. In the event
Licensee fails to do so, Licensor shall have the right to terminate
this Agreement, in accordance with the provisions of Paragraph 14
herein.
(b) For the statements and payments required hereunder, Licensee shall
reference the contract number(s) on all statements and payments. If
the United States Postal Service is used deliver to the following:
WARNER BROS. CONSUMER PRODUCTS
00000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
If sent by Federal Express or any other Courier Service deliver to the
following:
BANK ONE
Attention WBCP lockbox #21477
525 West Monroe
0xx Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Telephone Number 000-000-0000
(c) Any payments which are made to Licensor hereunder after the due date
required therefor, shall bear interest at the then current prime rate,
as published in The Wall Street Journal (New York edition), plus three
(3%) percent (or the maximum rate permissible by law, if less) 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.
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 expiration or
termination 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. Such records and accounts shall be available
for inspection and audit up to two (2) times per year 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. Licensee agrees not to cause 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
relevant records as it deems reasonably necessary. Licensor agrees to
keep confidential all information and copies obtained by Licensor
pursuant to this Paragraph other than with respect to required
disclosures in connection with disputes between the parties or as
otherwise required by law, court order or governmental process.
(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
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not preclude or prevent Licensor from thereafter disputing the
accuracy of any such statement or payment.
(c) If pursuant to its right hereunder Licensor causes an audit and
inspection to be instituted which thereafter discloses a 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 five percent
(5%) of all payments made by Licensee during the period covered by the
audit, then Licensee shall pay the reasonable costs and expenses of
such audit and inspection.
7. INDEMNIFICATIONS:
(a) During the Term, and continuing after the expiration or termination of
this Agreement, Licensor shall indemnify Licensee and its affiliates
and shall hold them harmless from any loss, liability, damage, cost or
expense, including reasonable attorneys' fees, arising out of any
claims or suits which may be brought or made against Licensee and its
affiliates 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, Time Warner
Entertainment Company, L.P. ("TWE") and each of its affiliates, and
shall hold them harmless from any loss, liability, damage, cost or
expense, including reasonable attorneys' fees, arising out of any
claims or suits which may be brought or made against Licensor, TWE or
any of its affiliates, 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 or
copyright on or in connection with the Licensed Products, the Licensed
Premiums or the Licensed Promotion (except trademarks or copyrights in
the Licensed Property used in accordance with the terms of this
Agreement), design, patent, process, method or device on or in
connection with the Licensed Products, Licensed Premiums or Licensed
Promotion; (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 and/or Licensed Premiums, or the use
thereof. Provided, however, that Licensor shall give prompt written
notice, and full cooperation and assistance to Licensee relative to
any claim or suit and provided, further, that Licensee shall have the
option to undertake and conduct the defense of any suit so brought.
Licensor shall cooperate fully in all respects with Licensee in the
conduct and defense of said suit and/or proceedings related thereto.
Provided, however, that Licensor shall give prompt written notice, and
full cooperation and assistance to Licensee relative to any such claim
or suit and provided, further, that Licensee shall have the option to
undertake and conduct the defense of any suit so brought. Licensor
shall cooperate fully in all respects with Licensee in the conduct and
defense of said suit and/or proceedings related thereto.
(c) With regard to Paragraph 7(b) above, Licensee agrees to obtain, at its
own expense, Commercial General Liability Insurance, including product
liability and contractual liability coverage 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, TWE and each
of its affiliates as additional insured parties and, requiring that
the insurer shall not terminate or materially modify such policy or
certificate of insurance without written notice to Licensor at least
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thirty (30) days in advance thereof. Such insurance shall at all times
be primary and not contributory with any insurance carried by
Licensor, TWE or any of their affiliates. Further the delivery of the
policy or certificate, as provided in this Paragraph 7(c) 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 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 which features or includes the Licensed Property shall be
owned exclusively by Licensor excluding intellectual property rights
in and to any elements that are owned by Licensee or licensed by
Licensee from a third party and do not include the Licensed Property.
"Artwork" as used herein 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,
tooling and tooling aids, 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 excluding intellectual property rights in and to any
elements that are owned by Licensee or licensed by Licensee from a
third party and do not include the Licensed Property. Nothing
contained herein shall be construed to mean that Licensee is granting
a license to Licensor to utilize Licensee's proprietary, patented
technology, and/or intellectual property rights whether alone or in
combination with the Licensed Property.
(b) Licensee acknowledges that, as between Licensor and Licensee, the
Licensed Property and Artwork and all derivative works 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.
Licensor acknowledges that, as between Licensor and Licensee, the
Licensee's intellectual property and all derivative works thereof, and
all copyrights, trademarks and other proprietary rights therein are
owned exclusively by Licensee and Licensor shall have not interest in
or claim thereto.
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 rights and other proprietary
rights, it may have in and to the Artwork and all derivative works, in
perpetuity and throughout the universe. 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 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
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involving Licensee's performance hereunder, under the terms of
Paragraph 7(b). 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, and subject to
the prior written approval of Licensor, 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.
(c) 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,
excluding any elements that are owned by Licensee or licensed by
Licensee from a third party 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. For any Licensee
elements and/or intellectual property that utilize Licensed Property
or Artwork in whole or in part, Licensee shall destroy such elements
and/or intellectual property upon expiration or termination of this
Agreement for any reason and shall confirm to Licensor in writing that
Licensee has done so.
(d) Licensee shall, within thirty (30) days of receiving an invoice, 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/or Licensed Premiums 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.
Licensor shall submit to Licensee, for Licensee's prior approval, any
increases of ten percent (10%) or more above the estimate originally
approved by Licensee, and Licensee shall not be obligated to pay for
such increased cost if Licensee has not provided its approval thereof.
(e) Licensee shall cause to be imprinted, irremovably and legibly on the
packaging of each Licensed Product and/or Licensed Premium
manufactured, distributed or sold under this Agreement, and all
printed and/or televised advertising, promotional, packaging and
wrapping material wherein the Licensed Property appears, the following
copyright and/or trademark notice(s) or such other notice as may be
approved by Licensor:
LOONEY TUNES, CHARACTERS, NAMES AND ALL RELATED INDICIA ARE TRADEMARKS
OF AND (C) WARNER BROS.
(S02)
(The year date shall be as instructed by Licensor.)
(f) In no event shall Licensee use, in respect to the Licensed Products
and/or Licensed Premiums 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.
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(g) Licensee agrees to deliver to Licensor free of cost six (6) of each of
the Licensed Premiums 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 Promotion or
Licensed Products and/or Licensed Premiums 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 and/or Licensed Premiums in interstate and
intrastate commerce.
(h) 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 known infringements
or imitations or unauthorized uses by others of the Licensed Property,
on or in relation to promotions similar to the Licensed Promotion or
products identical to similar to or related to the Licensed Products
and/or Licensed Premiums. 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.
(i) Licensee acknowledges receipt of Licensor's Style Guide and undertakes
to utilize the depictions of the Licensed Property (and, if authorized
by Licensor, any emblems and/or devices associated therewith) in the
form as set forth therein on all Licensed Products as well as
advertising, promotional, packaging or wrapping materials. In the
event that Licensee desires to utilize renditions which vary from
those as set forth in the Style Guide, Licensee shall make a request
to Licensor in that connection, and if the request is approved,
Licensor shall prepare appropriate Artwork and deliver same to
Licensee. Licensee shall utilize such Artwork solely in the form
furnished by Licensor, if Licensee decides to use such Artwork in
Licensee's sole discretion, shall pay a reasonable fee to Licensor in
respect thereof not later than one month after delivery thereof by
Licensor to Licensee, and such fee shall be additional to and not
offset by any Guaranteed Consideration referred to in Paragraph 1(b)
hereinabove.
(j) If Licensee is unable or unwilling to use artwork from the Licensor's
Style Guide and if Licensor is unable or unwilling to provide Licensee
with Artwork as described in subparagraph (h) above and if Licensor
expressly consents in writing, which consent shall not be unreasonably
withheld, but may be subject to such conditions as Licensor may elect
in its sole discretion, then and only then may the Licensee create or
procure the creation of Artwork. In any event, Licensee shall assign
or procure the assignment in writing of all rights, copyright and
otherwise, in and to any Artwork, and it is intended that this
provision shall take effect as an assignment of prospective copyrights
in Artwork yet to be created by or for. The Licensee further
undertakes to take all and any steps necessary for the recordal or
registration of the assignment(s) referred to hereinabove.
9. APPROVALS AND QUALITY CONTROLS:
(a) Licensee agrees to strictly comply and maintain compliance with the
quality standards, specifications and rights of approval of Licensor
in respect to any and all usage of the Licensed Property on or in
relation to the Licensed Products and/or Licensed Premiums throughout
the Term of this Agreement and any renewals or extensions thereof (if
applicable). Licensee agrees to furnish to Licensor free of cost for
its written approval as to quality and style, samples of each of the
Licensed Products and/or Licensed Premiums, together with their
packaging, hangtags, and wrapping material, as follows in the
successive stages indicated: (i) rough sketches/layout concepts; (ii)
finished artwork or final proofs; (iii) pre-production samples or
strike-offs; and (iv) finished products, including packaged samples.
(b) No Licensed Products and/or Licensed Premiums and no material
utilizing the Licensed Property shall be manufactured, sold,
distributed or promoted by Licensee without prior written approval. In
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AMENDED.
addition to the foregoing, Licensee understands that it shall furnish
to Licensor, scripts and storyboards of any proposed media use of the
Licensed Property as may be authorized hereunder, in sufficient time
for Licensee to make all revisions which Licensor in its sole
discretion may request. Licensee may, subject to Licensor's prior
written approval, use textual and/or pictorial matter pertaining to
the Licensed Property on promotional, display and advertising material
as may, in its reasonable judgment, promote the sale of the Licensed
Products and/or Licensed Premiums. All advertising and promotional
materials relating to the Licensed Promotion and Licensed Products
and/or Licensed Premiums must be submitted to the Licensor for its
written approval at the following stages appropriate to the medium
used. For print materials, submissions are to be made at the following
stages: (a) rough sketches or layout concepts; (b) finished artwork or
final proofs; and (c) finished materials. For television commercials,
if approved by Licensor, submissions are to be made at the following
stages: (a) initial concept; (b) storyboard, including written text;
(c) pencil tests and voice-overs for animation and/or selection of
performers for live action; and (d) a cassette of the finished
commercial prior to air date. For radio or other audio materials, if
approved by Licensor, submissions are to be made at the following
stages: (a) initial concept; (b) script; (c) voice-overs; and (d) a
cassette of the finished commercial prior to the air date.
(c) Approval or disapproval shall lie in Licensor's sole discretion.
Licensor shall use its best efforts to approve, disapprove or
otherwise comment upon any items submitted to it for approval as may
be required hereunder within ten (10) business days after receipt by
it of such item(s). In the event that Licensor fails to approve,
disapprove or otherwise comment upon the item(s) so submitted within
said ten (10) business days, then Licensee shall have the right to
notify Licensor of such failure by facsimile (evidenced by written
confirmation of facsimile transmittal) and Licensor shall thereafter
be required to approve, disapprove or otherwise comment upon the
item(s) so submitted within seven (7) business days after receipt by
it of said facsimile and failure to do so shall be deemed approval of
any item(s) so submitted. Any Licensed Products and/or Licensed
Premiums not so approved in writing shall be deemed unlicensed and
shall not be manufactured, distributed or sold. If any unapproved
Licensed Products and/or Licensed Premiums are being distributed or
sold, Licensor may, together with other remedies available to it
including, but not limited to, immediate termination of this
Agreement, require such Licensed Products and/or Licensed Premiums 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 material modification of a Licensed Product and/or Licensed
Premium must be submitted in advance for Licensor's written approval
as if it were a new Licensed Product and/or Licensed Premium. Any
change involving the Artwork appearing on a Licensed Product shall
constitute a material modification of such Licensed Product. Approval
of a Licensed Product and/or Licensed Premium which uses particular
artwork does not imply approval of such artwork for use with a
different Licensed Product and/or Licensed Premium.
(e) Licensed Products and/or Licensed Premiums 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 and/or Licensed Premium originally approved has
deteriorated in later production runs, or if a Licensed Product and/or
Licensed Premium has otherwise been altered, Licensor may, in addition
to other remedies available to it, require that such Licensed Product
and/or Licensed Premium be immediately withdrawn from the market.
(f) Licensee shall permit Licensor to inspect Licensee's manufacturing
operations, testing and manufacturing payroll records (including those
operations and relevant records of any supplier or manufacturer
approved pursuant to Paragraph 10(b) below) with respect to the
Licensed Products and/or Licensed Premiums.
(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.
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AMENDED.
(h) Subsequent to final approval, no fewer than twenty-four (24)
production samples of Licensed Products and/or Licensed Premiums will
be sent to Licensor, to ensure quality control simultaneously upon
distribution to the public. In addition, Licensor shall have the right
to purchase any and all Licensed Products and/or Licensed Premiums in
any quantity at the maximum discount price Licensee charges its best
customer, assuming similar quantities and shipment terms.
(i) To avoid confusion of the public, Licensee agrees not to associate
other characters or properties with the Licensed Property on the
Licensed Products and/or Licensed Premiums 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.
(j) Pursuant to this Agreement, Licensee shall use its reasonable
commercial efforts to notify its customers of the requirement that
Licensor has the right to approve all promotional, display and
advertising materials that incorporate the Licensed Property. It is
understood and agreed that the use of images featuring the Licensed
Product and its approved packaging in promotional, display and
advertising materials is excluded from this requirement, provided,
however, none of the Licensed Property is utilized separately from the
Licensed Product and its packaging.
(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. pursuant to a separate agreement between
Licensee and Warner Bros. Animation, subject to Warner Bros.
Animation's customary rates. Any payment made to Warner Bros.
Animation for such animation 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 and/or Licensed Premiums
(including, without limitation, the Licensed Products and/or Licensed
Premiums 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.
10. DISTRIBUTION; SUBLICENSE MANUFACTURE:
(a) Within the Channels of Distribution set forth in Paragraph l(a)
hereof, Licensee shall sell the Licensed Products/Licensed Premiums to
wholesalers, distributors or retailers for sale or resale and
distribution directly to the public. If Licensee sells or distributes
the Licensed Products/Licensed Premiums 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 (including any affiliated distributors) or its officers,
directors or major stockholders, for ultimate sale to unrelated third
parties, Licensee shall pay royalties with respect to such sales or
distribution, based upon the price generally charged the trade by
Licensee.
(b) Licensee shall not be entitled to sublicense any of its rights under
this Agreement. In the event Licensee is not the manufacturer of the
Licensed Products and/or Licensed Premiums, 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 and/or Licensed Premiums, 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. GOODWILL: Licensee recognizes the great value of the publicity and goodwill
associated with the Licensed Property and acknowledges: (i) such goodwill
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
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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
(b) The making of this Agreement by Licensor and use by Licensor of the
Licensed Property pursuant to this Agreement 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;
(c) It will conduct the Licensed Promotion as well as manufacture, promote
and distribute the Licensed Products and/or Licensed Premiums in
accordance with the terms of this Agreement, and in compliance with
all applicable government regulations and industry standards;
(d) 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, or
grant any security interest (except to U.S. Bank National Association,
a National banking association) in, the Licensed Property, and/or it
will not intentionally cause or allow any liens or encumbrances to be
placed against, or grant any security interest (except to U.S. Bank
National Association, a National banking association) in Licensee's
inventory, contract rights and/or accounts receivables, and/or
proceeds thereof, with respect to the Licensed Products without
Licensor's prior written consent;
(e) It will use reasonable commercial efforts to protect its right to
manufacture, promote and distribute the Licensed Products and/or
Licensed Premiums 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 relating or pertaining to the
conduct of the Licensed Promotion as well as the manufacture,
distribution, advertising or use of the Licensed Products and/or
Licensed Premiums, and shall maintain its appropriate customary high
quality standards during the Term hereof. It shall comply with any
regulatory agencies which shall have jurisdiction over the Licensed
Promotion or Licensed Products and/or Licensed Premiums 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/or Licensed Premium and component thereof distributed
hereunder shall comply with all applicable laws and regulations.
Licensee shall follow reasonable and proper procedures for testing
that all Licensed Products and/or Licensed Premiums 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 and/or Licensed Premiums for compliance.
Licensed Products and/or Licensed Premiums that do not comply with all
applicable laws, regulations and standards shall automatically be
deemed unapproved and immediately taken off the market;
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(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;
(h) It will provide Licensor with the date(s) of first use of the Licensed
Products and/or Licensed Premiums in interstate and intrastate
commerce, where appropriate;
(i) It will, pursuant to Licensor's instructions, 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 and/or Licensed Premiums
outside the Territory or knowingly deliver or sell Licensed Products
and/or Licensed Premiums 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 and/or Licensed Premiums;
(l) It shall not send, share with or otherwise disclose any Artwork to any
third party, including licensees of Licensor, but with the exception
of approved third party manufacturers hereunder, without the prior
written consent of Licensor;
(m) It shall at all times comply with all commercially reasonable
manufacturing, sales, distribution, retail and marketing policies and
strategies promulgated in writing by Licensor from time-to-time, and
provided the same shall not materially increase the costs of
manufacturing, sales, distribution, retail and marketing the Licensed
Products; and
(n) If requested by Licensor to do so, it will use reasonable efforts to
utilize specific design elements of the Licensed Property provided to
Licensee by Licensor on any promotional or advertising materials
and/or hangtags, labels or other materials with respect to the
Licensed Products and/or Licensed Premiums.
14. TERMINATION BY LICENSOR:
(a) 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 anyone 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 in all material respects with any
laws, or regulations as provided in Paragraph 13(f) or any
governmental agency or other body, office or official vested
with appropriate authority finds that the Licensed Products
and/or Licensed Premiums are harmful or defective in any way,
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AMENDED.
manner or form, or are being manufactured, sold or 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 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
(vii) Licensee does not commence in good faith to execute the
Licensed Promotion (i.e. manufacture, distribute and sell the
Licensed Products and/or Licensed Premiums) on or before the
Marketing Date or thereafter fails to diligently and
continuously execute the Licensed Promotion; or
(viii) Licensee shall execute the Licensed Promotion and/or
manufacture, sell or distribute (whichever first occurs) any of
the Licensed Products and/or Licensed Premiums without the
prior written approval of Licensor as provided in Paragraph 9
hereof; or
(ix) Licensee undergoes a change of control as defined in Attachment
A, attached hereto and incorporated herein by reference,
provided that Licensor must give written notice of termination,
if at all, within thirty (30) days after written notice of the
change in control is given to Licensor by Licensee; or
(x) Licensee uses Artwork which has not been approved by Licensor
in compliance with the provisions of Paragraph 8(h), (i) or (j)
hereof; or
(xi) A manufacturer approved pursuant to Paragraph 10(b) hereof
shall sell Licensed Products and/or Licensed Premiums to
parties other than Licensee or engage in conduct, which conduct
if engaged in by Licensee would entitle Licensor to terminate
this Agreement; or
(xii) Licensee delivers or sells Licensed Products and/or Licensed
Premiums outside the Territory or knowingly sells Licensed
Products and/or Licensed Premiums(s) to a third party who
Licensee knows intends to, or who Licensee reasonably should
suspect intends to, sell or deliver such Licensed Products
and/or Licensed Premiums outside the Territory; or
(xiii) 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 and/or Licensed
Premiums; or
(xiv) Licensee has made a material misrepresentation or has omitted
to state a material fact necessary to make the statements not
misleading as they pertain to this Agreement; or
(xv) Licensee shall materially 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 in the manner prescribed in
Paragraph 16 below. Licensee shall have ten (10) business days from
the date of giving notice in which to correct any of these defaults
(except subdivisions (vii), (viii), (x) and (xii) 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
immediately due and payable in full and no portion of those prior
payments shall be repayable to Licensee.
(c) Licensee shall have the right to terminate this Agreement without
prejudice to any other rights which it may have, whether pursuant to
the provisions of this Agreement, or otherwise at law or in equity, if
Licensor defaults in the performance of any of its obligations
provided for in this Agreement or in the event of a material breach by
Licensor of its warranties or representations set forth in this
Agreement. In the event any such default occurs, Licensee shall give
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AMENDED.
notice of termination in writing to Licensor by certified mail.
Licensor shall have thirty (30) days from the date of giving notice in
which to correct any default or, if the correction would reasonably
take more than thirty (30) days, such additional time as is needed so
long as Licensor diligently pursues such correction, and failing such
correction, this Agreement shall thereupon immediately terminate, and
any and all Guaranteed Consideration later due from Licensee hereunder
shall no longer be due; provided, however, that no portion of prior
payments hereunder shall be repayable to Licensee.
15. FINAL STATEMENT UPON EXPIRATION OR TERMINATION: Licensee shall deliver, as
soon as practicable, but not later than forty-five (45) days following
expiration or termination of this Agreement, a statement indicating the
number and description of Licensed Products and/or Licensed Premiums 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 Products and/or Licensed Premium. 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 its remaining inventory,
on a non-exclusive basis only, for a period not to exceed ninety (90) days
following such expiration (the "Sell-Off Period"), subject to payment of
applicable royalties thereto. In no event, however, may Licensee distribute
during the Sell-Off Period an amount of Licensed Products and/or Licensed
Premiums that exceeds the average amount of Licensed Products and/or
Licensed Premiums distributed during any consecutive ninety (90) 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 and/or Licensed Premiums 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 Artwork (except
tooling and tooling aids) related to the Licensed Products, deliver up to
Licensor for destruction Artwork or furnish to Licensor an affidavit
attesting to the destruction of said Artwork. Licensee shall furnish to
Licensor an affidavit attesting to the destruction or removal of the
Licensed Property from all tooling and tooling aids. 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 are 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 when the same shall have been delivered, so addressed, by facsimile
or by overnight delivery service and the date of transmission by facsimile,
receipt of overnight delivery service or two business days after mailing
shall for the purposes of this Agreement be deemed 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) without the prior written consent of Licensor. Neither this
Agreement nor any of the rights of Licensee hereunder shall be sold,
transferred or assigned by Licensee and no rights hereunder shall devolve
by operation of law or otherwise upon any receiver, liquidator, trustee or
other party. Notwithstanding the foregoing, Licensor shall not seek
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
injunctive relief to prevent Licensee from consummating a "change of
control" as defined in Attachment A, and any termination of this Agreement
as a result of a "change of control" shall be in accordance with Paragraph
14(a)(ix) above.
19. BANKRUPTCY RELATED PROVISIONS:
(a) The parties hereby agree and intend that this Agreement is an
executory contract governed by Section 365 of the U.S. Bankruptcy Code
("Bankruptcy Code").
(b) In the event of Licensee's bankruptcy, the parties intend that any
royalties payable under this Agreement during the bankruptcy period be
deemed administrative claims under the Bankruptcy Code because the
parties recognize and agree that the bankruptcy estate's enjoyment of
this Agreement will (i) provide a material benefit to the bankruptcy
estate during its reorganization and (ii) deny Licensor the benefit of
the exploitation of the rights through alternate means during the
bankruptcy reorganization.
(c) The parties acknowledge and agree that any delay in the decision of
trustee of the bankruptcy estate to assume or reject the Agreement
(the "Decision Period") materially xxxxx Licensor by interfering with
Licensor's ability to alternatively exploit the rights granted under
this Agreement during a Decision Period of uncertain duration. The
parties recognize that arranging appropriate alternative exploitation
would be a time consuming and expensive process and that it is
unreasonable for Licensor to endure a Decision Period of extended
uncertainty. Therefore, the parties agree that the Decision Period
shall not exceed sixty (60) days.
(d) Licensor, in its interest to safeguard its valuable interests
(including, without limitation, its intellectual property rights in
the Licensed Property), has relied on the particular skill and
knowledge base of Licensee. Therefore, the parties acknowledge and
agree that in a bankruptcy context this Agreement is a license of the
type described by Section 365(c)(1) of the Bankruptcy Code and may not
be assigned without the prior written consent of the Licensor.
20. CONSTRUCTION AND DISPUTE RESOLUTION: 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. Any and all
controversies, claims or disputes arising out of or related to this
Agreement or the interpretation, performance or breach thereof, including,
but not limited to, alleged violations of state or federal statutory or
common law rights or duties, and the determination of the scope or
applicability of this agreement to arbitrate ("Dispute"), except as set
forth in subparagraphs (b) and (c), below, shall be resolved according to
the procedures set forth in subparagraph (a), below, which shall constitute
the sole dispute resolution mechanism hereunder:
(a) ARBITRATION: In the event that the parties are unable to resolve any
Dispute informally, then such Dispute shall be submitted to final and
binding arbitration. The arbitration shall be initiated and conducted
according to either the JAMS Streamlined (for claims under $250,000)
or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules
and Procedures, except as modified herein, including the Optional
Appeal Procedure, at the Los Angeles office of JAMS, or its successor
("JAMS") in effect at the time the request for arbitration is made
(the "Arbitration Rules"). The arbitration shall be conducted in Los
Angeles County before a single neutral arbitrator appointed in
accordance with the Arbitration Rules. The arbitrator shall follow
California law and the Federal Rules of Evidence in adjudicating the
Dispute. The parties waive the right to seek punitive damages and the
arbitrator shall have no authority to award such damages. The
arbitrator will provide a detailed written statement of decision,
which will be part of the arbitration award and admissible in any
judicial proceeding to confirm, correct or vacate the award. Unless
the parties agree otherwise, the neutral arbitrator and the members of
any appeal panel shall be former or retired judges or justices of any
California state or federal court with experience in matters involving
the entertainment industry. If either party refuses to perform any or
all of its obligations under the final arbitration award (following
appeal, if applicable) within thirty (30) days of such award being
rendered, then the other party may enforce the final award in any
court of competent jurisdiction in Los Angeles County. The party
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
seeking enforcement shall be entitled to an award of all costs, fees
and expenses, including attorneys' fees, incurred in enforcing the
award, to be paid by the party against whom enforcement is ordered.
(b) INJUNCTIVE RELIEF: Notwithstanding the foregoing, either party shall
be entitled to seek injunctive relief (unless otherwise precluded by
any other provision of this Agreement) in the state and federal courts
of Los Angeles County.
(c) OTHER MATTERS: Any Dispute or portion thereof, or any claim for a
particular form of relief (not otherwise precluded by any other
provision of this Agreement), that may not be arbitrated pursuant to
applicable state or federal law may be heard only in a court of
competent jurisdiction in Los Angeles County.
21. 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 the Licensor has not previously insisted upon Licensee
expressly complying with any provision of this Agreement shall not be
deemed to be a waiver of Licensor's future right to require compliance in
respect thereof and Licensee specifically acknowledges and agrees that the
prior forbearance in respect of any act, term or condition shall not
prevent Licensor 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.
22. CONFIDENTIALITY: The Artwork and the materials and information supplied to
one party by the other hereunder constitute, relate to, contain and form a
part of confidential and proprietary information of the disclosing party,
including, but not limited to, Style Guides, design elements, character
profiles, unpublished copyrighted material, release dates, marketing and
promotional strategies, information about new products, properties and
characters, the terms and conditions of this Agreement, and other
information which is proprietary in nature or is a trade secret
(collectively, the "Proprietary Information"). The parties acknowledge and
agree that the Proprietary Information is highly confidential and that
disclosure of the Proprietary Information will result in serious harm to
the owner thereof. Among other damage, unauthorized disclosure of the
Proprietary Information will (i) damage carefully planned marketing
strategies, (ii) reduce interest in the Licensed Property, (iii) make
unique or novel elements of the Licensed Property susceptible to imitation
or copying by competitors, infringers or third parties prior to Licensor's
release of the information or materials, (iv) damage proprietary protection
in undisclosed or unpublished information or materials, and (v) provide
unauthorized third parties with materials capable of being used to create
counterfeit and unauthorized merchandise, audio-visual products or other
products, all of which will seriously damage the parties' rights and
business. Except as expressly approved in writing by the owner of the
Proprietary Information, the other party shall not reproduce or use the
Proprietary Information of the other party and shall not discuss,
distribute, disseminate or otherwise disclose the Proprietary Information
or the substance or contents thereof, in whole or in part, in its original
form or in any other form, with or to any other person or entity other than
employees of the parties and, in the case of Licensee, third parties who
have executed a Contributor's Agreement (as provided in Paragraph 8(b)) or
third party manufacturer's agreement (as provided in paragraph 10(b)) and
been approved by Licensor as provided hereunder, and such employees and
third parties shall be given access to the Proprietary Information only on
a "need-to-know" basis. The foregoing restrictions shall not apply to any
information which, (i) at the time of disclosure, is in the public domain
or which, after disclosure, becomes part of the public domain by
publication or otherwise through no action or fault of the receiving party;
(ii) information which the receiving party can show was in its possession
at the time of disclosure and was not acquired, directly or indirectly,
from the other party; (iii) information which was received from a third
party having the legal right to transmit the same; (iv) information which
is independently developed, conceived, or created without use of or
reference to any Proprietary Information of the other party; or (v)
information which is disclosed pursuant to valid court order, other legal
process, or disclosure laws.
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("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
23. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement between
the parties concerning the subject matter hereof and cancels and supersedes
any prior understandings and agreements between the parties hereto with
respect thereto. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, expressed, implied or
statutory, between the parties other than as expressly set forth in this
Agreement.
24. 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:
WARNER BROS. CONSUMER PRODUCTS XXXXX BROTHERS, INC.
a division of Time Warner
Entertainment Company, L.P.
By: /s/ XXXX X. XXXXX By: /s/ XXXX X. XXXXX
-------------------------------- -----------------------------
Xxxx X. Xxxxx, Senior Vice President
Business & Legal Affairs
Date: 11/20/02 Date: 11/18/02
------------------------------ ---------------------------
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AMENDED.
EXHIBIT 1
#13770-WBLT
CHANNELS OF DISTRIBUTION
DEFINITIONS
LICENSEE MAY SELL THE LICENSED PRODUCTS ONLY THROUGH THE CHANNELS OF
DISTRIBUTION AS SPECIFIED ABOVE IN PARAGRAPH L(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
L(a) ABOVE, ARE SPECIFICALLY EXCLUDED FROM THIS LICENSE AGREEMENT.
1. "AIRPORT GIFT AND OTHER AIRPORT STORES" shall mean gift and other stores
located within airports, excluding Duty-Free Store Operators (as defined
below). Examples of Airport Gift and Other Stores include, without
limitation, PARADIES and X.X. XXXXX.
2. "AMUSEMENT GAME REDEMPTION" shall mean distribution of products as prizes
awarded in amusement games.
3. "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 the Disneyland Resort.
4. "ART & CRAFT STORES" shall mean stores that offer for sale primarily art
and craft supplies. Examples of Art & Craft Stores include, without
limitation, FAST FRAME, MICHAELS and XXXXXXXX XX DESIGNS.
5. "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.
6. "AUTOMOTIVE/CARWASH STORES" shall mean (a) stores that offer for sale
primarily automotive supplies, or (b) stores located at carwash or gasoline
station premises.
7. "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.
8. "BEAUTY SUPPLY STORES" shall mean stores that offer for sale primarily
cosmetics, haircare products, beauty accessories and personal grooming
related items.
9. "BUSINESS TO BUSINESS" shall mean when a licensee sells product to another
business and the items sold are used for CORPORATE GIFTS, PRIZES, ETC.
10. "CAMERA/PHOTO SPECIALTY STORES" shall mean stores that offer for sale
primarily camera equipment and supplies.
11. "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
SCHWEETZ AND THE SWEET FACTORY.
12. "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.
13. "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.
Exhibit 1 - Page 1
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
14. "CHAIN COMIC BOOK STORES" shall mean chain stores (containing twenty (20)
or more individual stores) that offer for sale primarily comic books.
15. "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-AID, THRIFTY/PAYLESS, C.V.S./REVCO, THRIFT DRUG, PHAR MOR, LONGS
DRUGS, XXXX XXXXX, LONDON DRUGS and SHOPPER'S DRUG MART.
16. "CHAIN JEWELRY STORES" shall mean chain stores (containing twenty (20) or
more individual stores) that offer for sale primarily jewelry. The "Chain
Jewelry Stores" channel shall specifically exclude Guild Jewelers (as
defined below). Examples of Chain Jewelry Stores include, without
limitation, STERLING, BARRY'S, XXXXXX'X and HELLSBURG.
17. "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. The "Chain Toy Stores" channel shall specifically
exclude Toy Specialty/Better Toy Chain Stores (as defined below). Examples
of Chain Toy Stores include, without limitation, TOYS R US.
18. "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.
19. "COLLEGE/UNIVERSITY STORES" shall mean stores located on the campuses of
colleges or universities.
20. "COMMERCIAL FACILITIES" shall mean offering products for sale to
architectural firms or interior designers working with commercial
facilities, such as hotels and daycare facilities.
21. "COMPUTER SPECIALTY STORES" shall mean stores that offer for sale primarily
computer equipment and supplies. Examples of Computer Specialty Stores
include, without limitation, COMP USA.
22. "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.
23. "DENTAL/MEDICAL PROFESSION" shall mean institutions or offices that provide
dental or medical services, such as hospitals, laboratories or doctors'
offices.
24. "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, SPIEGEL, HEARTH & HOME,
DOMESTICATIONS, TAPESTRY, COMPANY STORE, HAMMACHER SCHLEMMER, FINGERHUT,
AMWAY, XXXXXXX XXXXXX, REGAL, AVON and SEARS CATALOG. (continued...)
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 Paragraph l(a) of the License
Agreement or otherwise expressly approved in writing by Licensor on a
case-by-case basis, 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
policies and procedures.
25. "DIRECT RESPONSE" shall mean print advertisement, free standing inserts
("FSI's") and other promotional material (except catalogs) that are mailed
directly to consumers' homes for the purpose of soliciting product sales
directly from consumers. The "Direct Response" channel shall specifically
exclude direct mail catalogs which shall be included in the "Direct Mail
Catalog" channel defined above.
Exhibit 1 - Page 2
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
If Licensor grants to Licensee the right to distribute Licensed Products
through Direct Response, each print advertisement, FSI and other
promotional material 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 policies and procedures.
26. "DOOR-TO-DOOR SOLICITATION" shall mean offering products for sale through
personal visits by salespersons to consumers' homes.
27. "DUTY-FREE OPERATORS" shall mean (a) stores usually located in transit
locations (i.e. airports, in-flight, train, ferry stations, cruise lines
and ports) which offer products for sale to international travelers free of
taxes and duties and (b) sales offered to diplomat shops, diplomat
suppliers and individual diplomats free of taxes and/or duties. If Licensor
grants to Licensee the right to distribute products through Duty-Free
Operators, such channels of distribution (like all other channels of
distribution granted) shall be limited to those stores located within the
Territory.
28. "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 Unified School District.
29. "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.
30. "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.
31. "FAMILY RESTAURANTS" shall mean a food service establishment or group of
food service establishments that offer a sit down meal menu conducive to
all members of the family and generally offers table service to customers.
Examples of Family Restaurants include, without limitation, DENNY'S and
FRIENDLY'S.
32. "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, PIERCING PAGODA, ARDENE and BENTLEY'S.
33. "FASHION SPECIALTY BOUTIQUES" shall mean stores that offer for sale
primarily fashion apparel product. Examples of Fashion Specialty Boutiques
include, without limitation, XXXX XXXXX, URBAN OUTFITTERS, AMERICAN RAG,
and DR. J'S.
34. "FLORISTS" shall mean stores or companies that offer for sale primarily
flowers. Examples of Florists include, without limitation, XXXXXX'X, FTD
and 1-800-FLOWERS.
35. "FOOD SERVICE" shall mean locations that provide food service to consumers
in cafeterias, hospital food services, school lunch programs, and similar
institutional food service locations.
36. "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.
37. "FURNITURE STORES" shall mean stores that offer for sale primarily
furniture. Examples of Furniture Stores include, without limitation,
WICKES, HOMEMAKERS, KIDDLES and XXXXXX.
38. "GARDEN SPECIALTY STORES" shall mean stores that offer for sale primarily
garden supplies and plants. Examples of Garden Specialty Stores include,
without limitation, XXXXXXXXX'X; CALLAWAY'S and WOLF Nurseries.
39. "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
Exhibit 1 - Page 3
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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. The "Gift Retailers" channel shall
specifically exclude Novelty Gift Stores (as defined below), Duty-Free
Store Operators (as defined above), and Airport Gift and Other Airport
Stores (as defined above).
40. "GOURMET FOOD SPECIALTY 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.
41. "GREETING CARD STORES" shall mean stores that offer for sale primarily
greeting cards. Examples of Greeting Card Stores include, without
limitation, HALLMARK.
42. "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, XXXXXX,
XXXXXX and XXXXXX XXXXX & XXXXXX.
43. "HOBBY & MODEL STORES" shall mean stores that offer for sale primarily
hobby and model supplies.
44. "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, Lowes and HOME
HARDWARE.
45. "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.
46. "ICE CREAM SHOPS" shall mean stores that offer for sale primarily ice
cream, ice cream cakes and similar frozen dessert products. Examples of Ice
Cream Shops include, without limitation, XXXXXX-XXXXXXX, DAIRY QUEEN and
BEN AND JERRY'S SHOPS.
47. "IN-STORE BAKERIES" shall mean the in-store bakery departments within
Supermarket/Grocery Stores, National and Regional Discount/Mass Retailers
and Warehouse Clubs. Such departments offer for sale primarily freshly
baked breads, cakes, cookies and similar bakery items.
48. "INTERNET" shall mean offering products for sale through the electronic
network known as the Internet.
49. "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, WET SEAL, AU
COIN DES PETITES, LA SENZA, XXXXX XXXXX and REITMANS.
50. "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, JC PENNEY, SEARS, MERVYN'S, STEINMART, XXXXX, XXXX XXXXX, THE
BAY, CLEMONT and SIMON'S.
51. "MILITARY EXCHANGE SERVICES" shall mean military headquarters as well as
individual bases of armies and/or airforces of each country within the
Territory. Examples of Military Exchange Services include, without
limitation, U.S. ARMY AND AIRFORCE EXCHANGE SERVICE ("AAFES") and THE
CANADIAN FORCES EXCHANGE SERVICE ("CANEX"). If Licensor grants to Licensee
the right to distribute products through Military Exchange Services, such
channel of distribution shall be limited to the Military Exchange Services
of the countries within the Territory, but shall include all of such
Military Exchange Services' stores located anywhere in the world.
52. "MUSIC/VIDEO STORES" shall mean stores that offer for sale primarily
musical recordings, on compact discs, cassettes or other media, and/or
Exhibit 1 - Page 4
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BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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, WHEREHOUSE RECORDS,
XXX XXXXX'X and SUNCOAST.
53. "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. The "National Discount/Mass Retailers" channel shall specifically
exclude the in-store bakery departments of such stores, which shall be
included in the "In-Store Bakeries" channel defined above. Examples of
National Discount/Mass Retailers include, without limitation, WALMART,
K-MART, TARGET, ZELLERS, BIWAY and CANADIAN TIRE.
54. "NON-CHAIN BOOK STORES" shall mean stores or groups of stores (containing
fewer than twenty (20) individual stores) that offer for sale primarily
books.
55. "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.
56. "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.
57. "NON-CHAIN JEWELRY STORES" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for sale
primarily jewelry. The "Non-Chain Jewelry Stores" channel shall
specifically exclude Guild Jewelers (as defined above).
58. "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.
59. "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, KIDS R
US, CLOTHESTIME and FASHION BUG.
60. "NOVELTY GIFT STORES" shall mean stores that offer for sale primarily
novelty gift items. The "Novelty Gift Stores" channel shall specifically
exclude Airport Gift and Other Airport Stores and Duty-Free Operators (as
such terms are defined above). Examples of Novelty Gift Stores include,
without limitation, SPENCER'S and IT STORES.
61. "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 DRESS FOR
LESS, HIT OR MISS, TUESDAY MORNING and WINNERS.
62. "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.
63. "OUTLET STORES" shall mean stores that offer for sale primarily discounted
merchandise of a particular manufacturer or retailer.
64. "PARTY STORES" shall mean stores that offer for sale primarily party
supplies. Examples of Party Stores include, without limitation, PARTY CITY
and PARTY WORLD.
65. "PET STORES" shall mean stores that offer for sale primarily pet supplies.
Examples of Pet Stores include, without limitation, PETCO and PETSMART.
Exhibit 1 - Page 5
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
66. "QUICK SERVICE RESTAURANTS" shall mean a food service establishment or
group of food service establishments that offer rapid meal menus to
consumers and generally do not offer table service to customers. Examples
of Quick Service Restaurants include, without limitation, SUBWAY and BURGER
KING.
67. "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 aesthetics, 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 STORE NEWS" and "DISCOUNT MERCHANDISER",
and usually attend the IMRA (International Mass Retailer Association) trade
show. The "Regional Discount/Mass Retailers" channel shall specifically
exclude the in-store bakery departments of such stores, which shall be
included in the "In-Store Bakeries" channel defined above. Examples of
Regional Discount/Mass Retailers include, without limitation, MEIJERS,
CALDOR, XXXX, BRADLEES, HILL'S, ROSE'S, VENTURE, SHOPKO, COTTER, FIELDS,
GIANT TIGER, HARTS, NORTHWEST and SAAN STORES.
68. "RETAIL BAKERIES" shall mean stores that offer for sale primarily freshly
baked breads, cakes, cookies and similar bakery items. The "Retail
Bakeries" channel shall specifically exclude In-Store Bakeries (as defined
above).
69. "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.
70. "SOUVENIR STORES" shall mean stores that offer for sale primarily
souvenirs.
71. "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.
72. "SPORTS STADIUM SHOPS" shall mean concessionaire shops located within
stadiums or arenas where sporting events are held.
73. "STATIONERY STORES" shall mean stores that offer for sale primarily
stationery. Examples of Stationery Stores include, without limitation,
XXXX'X STATIONAIRES.
74. "STREET VENDORS" 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.
75. "SUPERMARKET/GROCERY STORES" shall mean stores that offer for sale
primarily packaged food products. The "Supermarket/Grocery Stores" channel
shall specifically exclude the in-store bakery departments of such stores,
which shall be included in the "In-Store Bakeries" channel defined above.
The "Supermarket/Grocery Stores" channel 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, XXXXX and SUPERSTORES.
76. "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.
77. "TELEVISION HOME SHOPPING" shall mean offering products for sale through
cable and broadcast television, including infomercials, QVC and Home
Shopping Network. The "Television Home Shopping" channel shall specifically
exclude sales through the Internet, CD-Interactive and other electronic
media.
78. "THEATRICAL CONCESSIONS" shall mean the retail section that sells such
items as popcorn, soda and candy within chain and non-chain movie theater
locations such as Cineplex Odeon, Loews and Cinemark.
Exhibit 1 - Page 6
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
79. "TOY SPECIALTY/BETTER TOY CHAIN STORES" shall mean companies that offer for
sale primarily specialty toys. Examples of Toy Specialty/Better Toy Chain
Stores include, without limitation, FAO XXXXXXX, ZANY BRAINY, IMAGINARIUM,
and NOODLE KIDOODLE.
80. "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.
81. "TRACKSIDE - CART" shall mean offering products for sale at races organized
and sponsored by Championship Auto Racing Teams.
82. "TRACKSIDE - NASCAR" shall mean offering products for sale at races
organized and sponsored by the National Association for Stock Car Racing.
83. "TRACKSIDE - NHRA" shall mean offering products for sale at races organized
and sponsored by the National Hot Rod Association.
84. "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, MAY DEPARTMENT STORES, SAKS
FIFTH AVENUE, NEIMAN MARCUS and DILLARDS.
85. "VENDING MACHINES" shall mean self-contained automated dispensing equipment
operated by insertion of coin or paper currency or the equivalent thereof
(i.e. debit cards, credit cards, etc.).
86. "WALL DECOR STORES" shall mean stores that offer for sale primarily wall
decor products. Examples of Wall Decor Stores include, without limitation,
DECK THE XXXXX, XXXXX BROTHERS and PRINTS PLUS.
87. "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. The "Warehouse Clubs" channel shall specifically exclude
the in-store bakery departments of such stores, which shall be included in
the "In-Store Bakeries" channel defined above. Examples of Warehouse Clubs
include, without limitation, SAM'S CLUB and PRICE Costco.
88. "WBSS INTERNATIONAL" shall mean the retail stores known as Warner Bros.
Studio Stores, which are operated outside the United States.
If Licensor grants to Licensee the right to sell Licensed Products to WBSS
International: (a) such rights shall be worldwide, notwithstanding any
restrictions as to "Territory" contained in the Agreement, and (b) such
rights shall be non-exclusive, notwithstanding any exclusivity provisions
contained in the Agreement.
Exhibit 1 - Page 7
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 2 #13770-WBLT
CONTRIBUTOR'S AGREEMENT
I, _______________, the undersigned ("Contributor"), have been engaged by XXXXX
BROTHERS, 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 the Licensed Products, and all Artwork or other
results of my services for Licensee in connection with such Licensed Products
("Work") is a "work made for hire" for Warner and that all right, title and
interest in and to the Work shall vest and remain with Warner. I reserve no
rights therein. Without limiting the foregoing, I hereby assign and transfer to
Warner 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 Warner or Licensee, failing which Warner is authorized to
execute same as my Attorney-in-Fact.
Contributor:
________________________________________
Signature
________________________________________
Print Name
________________________________________
Address
________________________________________
________________________________________
Country
________________________________________
Date
Warner Bros. Consumer Products:
By: _______________________________
Date: _____________________________
Exhibit 2 - Page 1
EXHIBIT 3
#13770-WBLT
WARNER BROS. CONSUMER PRODUCTS
0000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx 000 Xxxxx - 0xx Xxxxx
Xxxxxxx, XX 00000
Re: APPROVAL OF THIRD PARTY MANUFACTURER
To Whom It May Concern:
This letter will serve as notice to you that pursuant to Paragraph 10(b) of the
License Agreement dated _____________________, 200_ between WARNER BROS., A
DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P. and XXXXX BROTHERS, 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 of the
relevant terms and conditions 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
________________________________________
Signature
________________________________________
Print Name
________________________________________
Address
________________________________________
________________________________________
Country
________________________________________
Date
________________________________________
Product(s) Manufacturing
AGREED and ACCEPTED:
WARNER BROS. CONSUMER PRODUCTS
a division of Time Warner
Entertainment Company L.P.
By: _____________________________________
Xxxx X. Xxxxx, Senior Vice President
Business & Legal Affairs
Date: ___________________________________
Exhibit 3 - Page 1
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 OF THE SECURITIES EXCHANGE act of 1934, AS
AMENDED.
ATTACHMENT A
#13770-WBLT
(a) "CHANGE OF CONTROL" means and includes each of the following:
(1) Any transaction or series of transactions, whereby any person (as
that term is used in Section 13 and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), is or becomes the beneficial owner (as
that term is used in Section 13(d) of the Exchange Act) directly or indirectly,
of securities of the Licensee representing more than fifty percent (50%) of the
combined voting power of the Licensee's then outstanding securities; PROVIDED,
that for purposes of this paragraph, the term "person" shall exclude (A) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Licensee or a subsidiary of Licensee and (B) a corporation owned directly or
indirectly by the stockholders of the Licensee in substantially the same
proportions as their ownership in the Licensee;
(2) Any merger, consolidation, other corporate reorganization or
liquidation of the Licensee in which the Licensee is not the continuing or
surviving corporation or entity or pursuant to which shares of Stock would be
converted into cash, securities, or other property, other than (A) a merger or
consolidation with a wholly owned subsidiary, (B) a reincorporation of the
Licensee in a different jurisdiction, or (C) other transaction in which there is
no substantial change in the stockholders of the Licensee;
(3) Any merger or consolidation of the Licensee with or into another
entity or any other corporate reorganization, if more than fifty percent (50%)
of the combined voting power of the continuing or surviving entity's securities
outstanding immediately after such merger, consolidation or other reorganization
is owned by persons who were not stockholders of the Licensee immediately prior
to such merger, consolidation or other reorganization;
(4) The sale, transfer, or other disposition of all or substantially
all of the assets of the Licensee; or
(5) A change or series of related or unrelated changes in the
composition of the Board of Directors of Licensee, during any twenty-four (24)
month period beginning on the first anniversary of the date of this Agreement,
as a result of which fewer than fifty percent (50%) of the incumbent directors
are directors who either (i) had been directors of the Licensee on the later of
such first anniversary or the date twenty-four (24) months prior to the date of
the event that may constitute a Change of Control (the "Original Directors") or
(ii) were elected, or nominated for election, to the Board of Directors of the
Licensee with the affirmative votes of a least a majority of the aggregate of
the Original Directors who were still in office at the time of the election or
nomination and the directors whose election or nomination was previously so
approved.
Exhibit 3 - Page 2
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
