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EXHIBIT 10.12
LICENSE AGREEMENT #8824-BLT/WBLT
THIS AGREEMENT SUPERSEDES AND REPLACES THAT CERTAIN LICENSE AGREEMENT
#6803-LTL/WBLT DATED JANUARY 19, 1996 AND ANY RENEWALS AND AMENDMENTS THERETO
BETWEEN WARNER BROS., A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY L.P. AND
GERBER CHILDRENSWEAR, INC.
LICENSE AGREEMENT made March 12, 1998, by and between Warner Bros., a Division
of Time Warner Entertainment Company L.P., c/o Warner Bros. Consumer Products, a
Division of Time Warner Entertainment Company L.P., whose address is 0000 Xxxxxx
Xxxx., Xxxxxxx, XX 00000 (hereinafter referred to as "LICENSOR") and Gerber
Childrenswear, Inc., whose address is 0000 Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xx Xxxxxxxxx and Xxxxx Xxxxxxx (hereinafter
referred to as "LICENSEE").
WITNESSETH:
The parties hereto mutually agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "CHANNELS OF DISTRIBUTION": Licensee may sell the Licensed Products
through the following channels of distribution only (as such
channels are defined in Exhibit 3 attached hereto and incorporated
herein by reference): AAFES, Direct Mail Catalogs on a case by case
basis, Baby Specialty Stores, Chain Drug Stores, Chain Toy Stores,
National Discount/Mass Retailers, Mid- tier Department Stores,
Non-Chain Drug Stores, NonChain Toy Stores, Non-Mall Clothing
Specialty Stores, Off- Price/Closeout Stores, Outlet Stores,
Supermarket/Grocery Stores, Regional Discount/Mass Retailers,
Warehouse Clubs (Licensed Products (26), (31), (32), and (37) only),
Catalog Showrooms on a case by case basis only, Florists (Licensed
Product (31) only), and Home Specialty Stores (Licensed Products (4)
through (16), (31), and (37) only).
All other channels of distribution defined in Exhibit 3, which are
not specified above in this Paragraph l(a), are specifically
excluded from this Agreement. Additionally, Licensee may not
distribute or sell Licensed Products to convenience stores.
(b) "GUARANTEED CONSIDERATION": The sum of $2,100,000 payable as
follows:
$420,000 payable simultaneously with the execution of this
Agreement;
$840,000 payable on or before December 1, 1998; and
$840,000 payable on or before December 1, 1999.
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(c) "LICENSED PRODUCT(S)":
IN RESPECT OF THE LICENSED PROPERTY SET FORTH IN CATEGORY I OF
PARAGRAPH 1(d) BELOW, THE LICENSED PRODUCTS SHALL BE AS FOLLOWS:
Bath Products
(1) Hooded Towels *
(2) Washcloths *
(3) Washmitts
INFANT COORDINATED BEDDING
(4) Sheets *
(5) Comforters *
(6) Dust Ruffles *
(7) Receiving Blankets *
(8) Crib Blankets *
(9) Diaper Stackers *
(10) Birth Certificate Pillows *
(11) Bumper Pads *
(12) Bassinet Sheets *
(13) Lap Pads
(14) Wallpaper Room Borders and Window Treatments to be
supplied by Licensor's current wallpaper licensee on
case by case basis.
(15) Mat and Pillow Combinations
(16) Changing Table Padcovers
Sleepwear
(17) Sleep 'n' Play *
(18) Blanket Sleepers, Sizes 0-24 months and 2-5T *
(19) Pajamas (Footed and Non-Footed), Sizes 0-24 months and
2-5T *
(20) Gowns/Dorm Shirts, Sizes 0-24 months *
(21) Prams, Sizes 0-24 months
Underwear
(22) One Piece for Infants, Sizes NB, S, M, L and XL *
(23) Two Piece for Infants and Toddlers, Sizes NB, S, M, L,
XL and 2-5T *
(24) Longmates for Infants, Sizes NB, S, M, L and XL *
(25) Undershirts for Infants, Sizes NB, S, M, L and XL *
(26) Training Pants, Sizes 2-5T *
Footwear/Socks
(27) Booties
(28) Infant Socks
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Layettes (Disposable Diapers and Vinyl
Diaper Covers are specifically excluded)
(29) Gowns *
(30) Caps *
(31) Gift Sets, to include Infant Gown, Shirt, Bib,
Washcloth, Booties, Towels, Comb (to be supplied by
Gerber Products), Teethers (to be supplied by Gerber
Products) and/or on a case by case basis with Licensor's
prior written approval, any Licensed Products licensed
hereunder and any products purchased by Licensee from
other authorized licensees of Licensor
(32) Cloth Diapers/Burp Cloths*
(33) Diaper Cloths*
Infant and Toddler Playwear (Windwear, Outerwear, Sweaters,
Leggings when sold as a set with Sweaters, and T-Shirts when
sold as coordinates with Swimwear are specifically excluded)
(34) Two Piece Set *
(35) Creepers *
(36) Overalls, Shortalls, Coveralls *
(37) Bibs sold individually
(38) Shirts *
(39) Coordinated Playwear Separates *
(40) Swim Diapers
(41) Xxxxx Rompers
IN RESPECT OF THE LICENSED PROPERTY SET FORTH IN CATEGORY II OF
PARAGRAPH L(d) BELOW, THE LICENSED PRODUCTS SHALL BE AS FOLLOWS:
(42) Toddler Bedding
Licensed Products denoted with n*n shall be sold on an exclusive
basis. All other Licensed Products shall be sold on a non-exclusive
basis.
The use of direct embroidery is approved for Category I characters.
(d) "LICENSED PROPERTY":
(1) CATEGORY I: The fictional cartoon characters BABY BUGS BUNNY,
BABY LOLA BUNNY, BABY DAFFY DUCK, BABY XXXXXXXXX, BABY TWEETY, BABY
TASMANIAN DEVIL, BABY WILE E. COYOTE, BABY ROAD RUNNER AND BABY
XXXXXX THE MARTIAN which constitute "BABY LOONEY TUNES", including
the names of said characters and all trademarks, copyrights,
environmental settings and artwork associated therewith. The
Licensed Property licensed hereunder shall be identified with
Licensor's BABY LOONEY TUNES mass market logo only. Licensee is
obtaining no rights hereunder in
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or to Licensor's upstairs market logo referred to as "BABY LOONEY
TUNES CLASSIC COLLECTION". Furthermore, unless otherwise set forth
below, specifically excluded here from are any other properties,
trademarks or copyrights of Licensor, including but not limited to
the cartoon characters referred to collectively as the "LOONEY
TUNES" characters, and Licensee acknowledges and agrees that it
shall enjoy no rights whatsoever hereunder with respect to such
-properties, trademarks, and copyrights, it being understood that
such properties, trademarks, and copyrights are and will continue to
be the subject of separate licensing agreements with licensees of
Licensor's choice. Without limiting the generality of the foregoing,
Licensee is obtaining no rights hereunder, unless otherwise
specifically set forth below, in or to the adult versions of BUGS
BUNNY, LOLA BUNNY, DAFFY DUCK, XXXXXXXXX, TWEETY, TASMANIAN DEVIL,
WILE E. COYOTE, ROAD RUNNER, AND XXXXXX THE MARTIAN.
(2) CATEGORY II: Notwithstanding the foregoing, the fictional
cartoon characters BUGS BUNNY, LOLA BUNNY, DAFFY DUCK, XXXXXXXXX,
TWEETY, TASMANIAN DEVIL, WILE E. COYOTE, ROAD RUNNER, AND XXXXXX THE
MARTIAN ONLY
(e) "MARKETING DATE": January 1, 1998
(f) "ROYALTY RATE":
(i) Eight Percent (8%) for the calendar year 1998;
(ii) Ten Percent (10%) for the calendar year 1999;
(iii) Twelve Percent (12%) for the calendar year 2000;
(iv) Four Percent (4%) on Closeouts (defined below) and on
Irregulars (defined below).
(g) "TERM": January l, 1998 through December 31, 2000.
(h) "TERRITORY": United States (fifty states), Puerto Rico, United
States Virgin Islands and United States Military Bases throughout
the world excluding Guam and Saipan.
(i) "CLOSEOUTS": shall mean first quality Licensed Products discounted
by twenty percent (20%) or more off the list price for such Licensed
Products for purpose of discontinuing sales of the Licensed Product.
Sales of Closeouts shall not exceed ten percent (10%) of all sales
of Licensed Products in any calendar quarter.
(j) "IRREGULARS": shall mean Licensed Products which contain approved
images and complete legal notices, but which contain slight defects
in the manufacture or printing of the product. Irregulars shall not
include any product
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which is dangerous or hazardous, contains unapproved image, or lacks
a complete legal notice. Sales of Irregulars shall not exceed five
percent (5%) of all sales of Licensed Products in any calendar
quarter.
(k) "APPROVED CLOSEOUTS AND IRREGULARS OUTLETS": Licensee may submit to
Licensor a listing of proposed closeout and irregular outlets which
Licensor will review and, if approved in writing, will be considered
approved outlets for any future sale of Closeouts and/or Irregulars.
Licensee will use its best efforts to prohibit the advertising of
Closeouts and/or Irregulars by the retailer or outlet purchasing
such products.
2. GRANT OF LICENSE:
(a) Subject to the restrictions, limitations, reservations and
conditions and Licensor's approval rights set forth in this
Agreement, Licensor hereby grants to Licensee and Licensee hereby
accepts for the Term of this Agreement, a license to utilize the
Category I and II Licensed Property and to create Artwork, subject
to Licensor's approval, solely on or in connection with the
manufacture, distribution and sale of the Licensed Products as
specified above for the ultimate retail sale to the public
throughout the Territory on an exclusive basis for Licensed Products
denoted with "*" and on a non-exclusive basis for Licensed Products
(3), (13), (14), (15), (16), (21), (27), (28), (31), (40), (41) and
(42).
(b) Without limiting any other approval rights of Licensor as contained
herein, no television commercials may be utilized under this
Agreement without the specific prior written approval of Licensor.
(c) Subject to the Grant of License set forth in Paragraph 2(a), it is
specifically agreed and understood between the parties hereto that
those characters set forth in Paragraph l(d) (i) Category I and l(d)
(ii) Category II above shall only be utilized in connection with the
respectively designated Licensed Products set forth above in
Paragraph l(c).
3. RESERVATION OF RIGHTS; PREMIUMS:
(a) Licensor reserves all rights not expressly conveyed to Licensee
hereunder, and Licensor may grant licenses to others to use the
Licensed Property, artwork and textual matter in connection with
other uses, services and products without limitation.
(b) Notwithstanding anything to the contrary stated herein, Licensor
specifically reserves the right, without limitation throughout the
world, to itself use, or
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license any third party(s) of its choice to use the Licensed
Property for the manufacture, distribution and sale of products
similar or identical to those licensed herein in Paragraph l(c)
above for sale through any catalogue(s) produced or distributed by
or on behalf of Licensor or its Affiliated Companies (defined
below), or for sale or distribution in any theaters or arenas, or
for sale or distribution in any retail stores operated by or on
behalf of Licensor, its Affiliated Companies or franchisees, 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. In addition,
Licensor reserves the right to allow Six Flags Corporation 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 both Six Flags Corporation and Movie World. Affiliated
Companies herein shall mean any company owned either directly or
indirectly by Time Warner, Inc. In addition, Licensor reserves the
right to use, or license others to use, and/or manufacture products
similar or identical to those licensed herein for use as Premiums,
excluding premiums which would be distributed though Licensee's
Channels of Distribution.
(c) Licensee specifically understands and agrees that no rights are
granted herein with respect to the Warner Bros. "shield" logo or
trademark, or any other trademark(s), logo(s) or copyrights owned by
Licensor other than 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.
(d) Licensee understands and agrees that the rights granted herein are
limited only to the cartoon characters set forth above and that any
and all rights in, to or associated with the theatrical motion
picture entitled "SPACE JAM", as well as with any sequels thereto,
are specifically excluded here from, it being understood that all
rights in and to said property are reserved exclusively to Licensor
for use and/or licensing as it deems appropriate to third parties of
its choice.
(e) Licensee agrees that it will not use, or knowingly permit the use
of, and will exercise due care that its customers likewise will
refrain from the use of, the Licensed Products as a premium, except
with the prior written consent of Licensor. Subject to Licensor's
prior written approval as aforesaid, Licensee shall pay to Licensor
a sum equal to TWELVE PERCENT (12%) of all premium sales. For
purposes of this paragraph, the term
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"premium" shall be defined as products offered to the public in
conjunction with the sale or promotion of a product or service,
including but not necessarily limited to, combination "ales, free or
self-liquidating items offered to the public in conjunction with the
sale or promotion of a product or service, programs designed to
build traffic or continuity visits by the consumer/customer, or any
similar scheme or device, the prime intent of which i. to use the
Licensed Products in such a way as to promote, publicize and or sell
the products, services or business image of the user of such item.
Premium shall not include placement of discount coupons or similar
types of rebate or discount offers on other Licensee products
("Cross-couponing"). All instances of Crosscouponing and all artwork
in relation thereto shall be subject to Licensor's prior written
approval.
4. CONSIDERATION
(a) The Guaranteed Consideration paid by Licensee as set forth above
shall be applied against such royalties as are, or have become, due
to Licensor. No part of such Guaranteed Consideration shall be
repayable to Licensee. Royalties earned in excess of the Guaranteed
Consideration applicable to the Term hereof shall not offset any
Guaranteed Consideration required in respect of the succeeding
renewal term (if any); likewise, royalties earned in excess of the
Guaranteed Consideration applicable to the renewal term (if any)
shall not offset any Guaranteed Consideration applicable to any
prior term.
(b) Royalty Payments: Licensee shall pay to Licensor a sum equal to the
Royalty Rate as set forth above of all net sales by Licensee of the
Licensed Product(s) covered by this Agreement. The term "net sales"
herein shall mean the wholesale list price less actual quantity and
placement discounts and actual returns, but no deductions shall be
made for uncollectible accounts and deductions for actual returns
may not exceed 5% of total sales. No costs incurred in the
manufacture, sale, distribution, advertisement, or exploitation of
the Licensed Product(s) shall be deducted from any royalties payable
by Licensee.
(c) For sales of Closeouts and Irregulars-at or below 2,500 units,
Licensee may directly sell such Closeouts and/or Irregulars to
Approved Closeouts and Irregulars Outlets. For sales of Closeouts
and/or Irregulars in excess of 2,500 units, prior to offering such
Closeouts and/or Irregulars, Licensee shall give notice to Licensor
of its intent to offer Closeouts and/or Irregulars, the Licensed
Products to be sold as Closeouts or Irregulars, the quantity
available, the nature of the irregularity,
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a representative sample of the Closeouts and/or Irregulars and the
price they are to be offered at. Licensor shall have ten (10)
business days to give Licensee notice of its election to purchase
some or all of the Closeouts and/or Irregulars. If Licensor does not
purchase all of the Closeouts and/or Irregulars specified in the
notice, Licensee shall further notify Licensor of the retailer or
other outlets which will be offered the Closeouts and/or Irregulars.
If, within five (5) business days of such further notice, Licensor
objects to any particular retailer or outlet and provides a good
faith basis for such objection, Licensee shall not offer such
Closeouts and/or Irregulars to such retailer or outlet.
(d) Royalties shall be payable quarterly with the periodic statements
required in Paragraph 5 hereof, except to the extent offset by
Guaranteed Consideration theretofore remitted.
5. PERIODIC STATEMENTS:
(a) Within thirty days after the initial shipment of the Licensed
Products and promptly on the 15th day of every month thereafter
commencing, Licensee shall furnish to Licensor complete and accurate
statements certified to be accurate by Licensee showing with respect
to all Licensed Product(s) distributed and sold by Licensee during
the preceding calendar month the: (i) number by SKU number; (ii)
wholesale list price; (iii) quantity and placement discounts and
(iv) net sales price, together with any returns made during the
preceding calendar month. Such statements shall be furnished to
Licensor whether or not any of the Licensed Product(s) have been
sold during calendar months to which such statements refer. Receipt
or acceptance by Licensor of any of the statements furnished
pursuant to this Agreement or of any sums paid hereunder shall not
preclude Licensor from questioning the correctness thereof at any
time, and in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be
rectified and the appropriate payments made by Licensee. On a
quarterly basis, concurrent with the furnishing of the statements
described above, Licensee shall make payment of royalties and
provide such information on Licensed Product sales on a character by
character basis as in then readily available to Licensee in such
form as Licensee compiles for its own use. Upon demand of Licensor,
Licensee shall, but not more than once in any TWELVE (12) month
period, furnish to Licensor a detailed statement by an officer of
Licensee showing: (i) number by SKU number; (ii) wholesale list
price; (iii) quantity and placement discounts; and (iv) net sales
price of the Licensed Product(s) covered by this Agreement
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distributed and/or "old by Licensee up to and including the date
upon which Licensor has made such demand.
(b) The statements and payments required hereunder shall be delivered
to:
WARNER BR0S. CONSUMER PRODUCTS
0000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Accounting Manager, Domestic Accounting
(c) Any payments which are made to Licensor hereunder after the due date
required therefore, shall bear interest at the then current prime
rate plus four (4) percent (or the maximum rate permissible by law,
if less than the current prime rate) from the date such payments are
due to the date of payment. Licensor's right hereunder to interest
on late payments shall not preclude Licensor from exercising any of
its other rights or remedies pursuant to this Agreement or otherwise
with regard to Licensee's failure to make timely remittances.
(d) Licensee agrees to provide, at Licensor's request: (i) a letter of
credit issued in favor of Licensor from a financial institution as
approved by Licensor in an amount up to the Guaranteed
Consideration; and/or (ii) such other form of security acceptable to
Licensor. Licensee agrees to execute all documentation as Licensor
may require in connection with perfecting such security interests.
6. B00KS AND RECORDS:
(a) Licensee shall keep, maintain and preserve (in Licensee's principal
place of business) for at least two (2) years following termination
or expiration of the Term of this Agreement or any renewal(s) hereof
(if applicable), complete and accurate records of accounts
including, without limitation, purchase order, inventory records,
invoices, correspondence, banking and financial and other records
pertaining to the various items required to be submitted by Licensee
as well as to ensure Licensee's compliance with local laws as
required pursuant to Paragraph 13(k) hereof. However in no event
will the foregoing be interpreted to require Licensee to keep any
records for longer than its normal retention period, which is four
years from the end of the calendar year to which such records
pertain. Such records and accounts shall be available for inspection
and audit at any time or times during or after the Term of this
Agreement or any renewal(s) hereof (if applicable) during reasonable
business hours and upon reasonable notice by Licensor or its
nominees and at Licensor's expense, subject to Paragraph 6(c)
hereof. Licensee
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agrees not to cause or permit any interference with Licensor or
nominees of Licensor in the performance of their duties. During such
inspections and audits, Licensor shall have the right to take
extracts and/or make copies of Licensee's records which are related
to the statements and/or Licensed Products, as it deems necessary.
(b) The exercise by Licensor in whole or in part, at any time of the
right to audit records and accounts or of any other right herein
granted, or the acceptance by Licensor of any statement or
statements or the receipt and/or deposit by Licensor, of any payment
tendered by or on behalf of Licensee shall be without prejudice to
any rights or remedies of Licensor and such acceptance, receipt
and/or deposit shall not preclude or prevent Licensor from
thereafter disputing the accuracy of any such statement or payment,
except that any objection to the accuracy of any statement or
payment shall be made within two (2) years following termination or
expiration of the Term of this Agreement or any renewal(s) hereof
(if applicable).
(c) If pursuant to its right hereunder Licensor causes an audit and
inspection to be instituted which thereafter 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 3% of all royalties paid by Licensee during the period
covered by the audit, then Licensee shall pay the reasonable costs
and expenses of such audit and inspection. If an audit discloses an
overpayment to Licensor by Licensee, then Licensor shall remit the
amount of such overpayment to Licensee within sixty (60) days of
conclusive agreement that such overpayment occurred.
(d) Licensee understands and agrees that Licensor shall have access to
Licensee's sell-through information, with respect to the Licensed
Products, pertaining to various retail customers (e.g. Wal*Mart, JC
Penney) (the "Sell Through System"). Licensor agrees to keep
confidential all information obtained by Licensor through the Sell
Through Systems except: (i) to the extent necessary to comply with a
law or the valid order of a court of competent jurisdiction, in
which event the party making such disclosure shall so notify the
other and shall seek confidential treatment of such information;
(ii) as part of normal reporting or review procedure to the
respective parties' boards of directors, parent company, auditors
and attorneys who agree to be bound by the provisions of this
subparagraph; (iii) in order to
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enforce its rights or perform its obligations under this Agreement;
or (iv) when discussing the sale of Licensed Products with the
applicable retail customer in an effort to improve business results.
7. INDEMNIFICATIONS:
(a) During the Term, and continuing after the expiration or termination
of this Agreement, Licensor shall indemnify Licensee and shall hold
it harmless from any loss, liability, damage, cost or expense,
arising out of any claims or suits which may be brought or made
against Licensee by reason of the breach by Licensor of the
warranties or representations as set forth in Paragraph 12 hereof,
provided that Licensee shall give prompt written notice, and full
cooperation and assistance to Licensor relative to any such claim or
suit and provided, further, that Licensor shall have the option to
undertake and conduct the defense of any suit so brought. Licensee
shall not, however, be entitled to recover for lost profits.
Licensee shall cooperate fully in all respects with Licensor in the
conduct and defense of said suit and/or proceedings related thereto.
(b) During the Term, and continuing after the expiration or termination
of this Agreement, Licensee shall indemnify Licensor and shall hold
it harmless from any loss, liability, damage, cost or expense
arising out of any claims or suits which may be brought or made
against Licensor by reason of: (i) any breach of Licensee's
covenants and undertakings hereunder; (ii) any unauthorized use by
Licensee of the Licensed Property; (iii) any use of any trademark,
copyright, design, patent, process, method or device, except for
those uses of the Licensed Property that are specifically approved
by Licensor pursuant to the terms of this Agreement; (iv) Licensee's
non-compliance with any applicable federal, state or local laws or
with any other applicable regulations; and (v) any alleged defects
and/or inherent dangers (whether obvious or hidden) in the Licensed
Products or the use thereof.
(c) With regard to 7(b)(v) above, Licensee agrees to obtain, at its own
expense, product liability insurance providing adequate protection
for Licensor and Licensee against any such claims or suits in
amounts no less than three million dollars ($3,000,000) per
occurrence, combined single limits. Simultaneously with the
execution of this Agreement, Licensee undertakes to submit to
Licensor a fully paid policy or certificate of insurance naming
Licensor as an additional insured party and, requiring that the
insurer shall not terminate or materially modify such policy or
certificate of insurance without written notice to Licensor at least
twenty (20) days in advance thereof. Such insurance and
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the delivery of the policy or certificate are material obligations
of Licensee.
8. ARTWORK; COPYRIGHT AND TRADEMARK NOTICES:
(a) The Licensed Property shall be displayed or used only in such form
and in such manner as has been specifically approved in writing by
Licensor in advance and Licensee undertakes to assure usage of the
trademark(s) and character(s) solely as approved hereunder. Licensee
further agrees and acknowledges that any and all Artwork (defined
below) created, utilized, approved and/or authorized for use
hereunder by Licensor in connection with the Licensed Products or
which otherwise features or include. the Licensed Property shall be
owned in its entirety exclusively by Licensor. "Artwork" refers to
incorporating Category I and Category II Licensed Property and shall
include, without limitation, all pictorial, graphic, visual, audio,
audio-visual, digital, literary, animated, artistic, dramatic,
sculptural, musical or any other type of creations and applications,
whether finished or not, including, but not limited to, animation,
drawings, designs, sketches, images, illustrations, film, video,
electronic, digitized or computerized information, software, object
code, source code, on-line elements, music, text, dialogue, stories,
visuals, effects, scripts, voiceovers, logos, one-sheets,
promotional pieces, packaging, display materials, printed materials,
photographs, interstitials, notes, shot logs, character profiles and
translations, produced by Licensee or for Licensee, pursuant to this
Agreement. Licensor reserves for itself or its designees all rights
to use any and all Artwork created, utilized and/or approved
hereunder without limitation.
(b) Licensee acknowledges that, as between Licensor and Licensee, the
Licensed Property and Artwork and all other depictions expressions
and derivations thereof, and all copyrights, trademarks and other
proprietary rights therein are owned exclusively by Licensor and
Licensee shall have no interest in or claim thereto, except for the
limited right to use the same pursuant to this Agreement and subject
to its terms and conditions.
Licensee agrees and acknowledges that any Artwork created by
Licensee or for Licensee hereunder is a "work made for hire" for
Licensor under the U.S. Copyright Act, and any and all similar
provisions of law under other Jurisdictions, and that Licensor is
the author of such work. 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
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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, in perpetuity and throughout the universe, and to all
proprietary depictions, expressions or derivations of the Licensed
Property created by or for Licensee. Licensee acknowledges that
Licensor shall have the right to terminate this Agreement in the
event Licensee asserts any rights (other than those specifically
granted pursuant to this Agreement) in or to the Licensed Property
or Artwork.
Licensee hereby warrants that any and all work created by Licensee
under this Agreement apart from the materials provided to Licensee
by Licensor is and shall be wholly original with or fully cleared by
Licensee and shall not copy or otherwise infringe the rights of any
third parties, and Licensee hereby indemnifies Licensor and will
hold Licensor harmless from any such claim of infringement or
otherwise involving Licensee's performance hereunder. At the request
of Licensor, Licensee shall execute such form(s) of assignment of
copyright or other papers as Licensor may reasonably request in
order to confirm and vest in Licensor the rights in the properties
as provided for herein. In addition, Licensee hereby appoints
Licensor as Licensee's Attorney-in-Fact to take such actions and to
make, sign, execute, acknowledge and deliver all such documents as
may from time to time be necessary to confirm in Licensor, its
successors and assigns, all rights granted herein. If any third
party makes or has made any contribution to the creation of Artwork
authorized for use hereunder, Licensee agrees to obtain from such
party a full confirmation and assignment of rights so that the
foregoing rights shall vest fully in Licensor, in the form of the
Contributor's Agreement attached hereto as Exhibit 2 and by this
reference made a part hereof, prior to commencing work, ensuring
that all rights in the Artwork and Licensed Property arise in and
are assigned to Licensor. Promptly upon entering into each such
Agreement, Licensee shall give Licensor a copy of such 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.
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Upon expiration of termination of this Agreement for any reason, or
upon demand by Licensor at any time, Licensee shall promptly deliver
to Licensor all Artwork or Licensed Property, whether finished or
not, including drawings, drafts, sketches, illustrations, screens,
data, digital files and information, copies or other items,
information or things created in the course of preparing the
Licensed Property and all materials provided to Licensee by Licensor
hereunder, or, at Licensor's option and instruction, shall destroy
some or all of the foregoing and shall confirm to Licensor in
writing that Licensee has done so. Licensee shall not use such
Artwork or Licensed Property, items, information or things,
material, for any purpose other than is permitted under this
Agreement.
(c) Licensee shall, within thirty (30) days of receiving an invoice for
a charge that Licensee has previously approved in writing, pay
Licensor for artwork executed for Licensee by Licensor (or by third
parties under contract to Licensor) for use in the development of
the Licensed Products and any related packaging, display and
promotional materials at Licensor's prevailing commercial art rates.
The foregoing shall include any artwork that, in Licensor's opinion
and subject to Licensee's written approval, is necessary to modify
artwork initially prepared by Licensee and submitted for approval.
Estimates of artwork charges are available upon request.
(d) Licensee shall cause to be imprinted, irremovably and legibly on
each Licensed Products manufactured, distributed or sold under this
Agreement, and all advertising, promotional, packaging and wrapping
material wherein the Licensed Property appears, the following
copyright and/or trademark notice(s):
CATEGORY I:
BABY LOONEY TUNES, CHARACTERS, NAMES, AND ALL RELATED INDICIA
ARE TRADEMARKS OF WARNER BROS., A TIME WARNER ENTERTAINMENT
COMPANY L.P. (C) 19 __.
CATEGORY II:
LOONEY TUNES, CHARACTERS, NAMES, AND ALL RELATED INDICIA ARE
TRADEMARKS OF WARNER BROS., A TIME WARNER ENTERTAINMENT
COMPANY L.P. (C) L9 __.
The year date shall be as instructed by Licensor.
(e) In no event shall Licensee use, in respect to the Licensed Products
and/or in relation to any advertising, promotional, packaging or
wrapping material, any copyright or trademark notices which shall
conflict
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with, be confusing with, or negate, any notices required hereunder
by Licensor in respect to the Licensed Property.
(f) Licensee agrees to deliver to Licensor free of cost six (6) of each
of the Licensed Products together with their packaging and wrapping
material for trademark registration purposes in compliance with
applicable laws, simultaneously upon distribution to the public. Any
copyrights or trademarks with respect to the Licensed Products shall
be procured by and for the benefit of Licensor and at Licensor's
expense. Licensee further agrees to provide Licensor with the date
of the first use of the Licensed Products in interstate and
intrastate commerce.
(g) Licensee shall assist Licensor, at Licensor's expense, in the
procurement, protection, and maintenance of Licensor's rights to the
Licensed Property. Licensor may, in its sole discretion, commence or
prosecute and effect the disposition of any claims or suits relative
to the imitation, infringement and/or unauthorized use of the
Licensed Property either in its own name, or in the name of
Licensee, or join Licensee as a party in the prosecution of such
claims or suits. Licensee agrees to cooperate fully with Licensor in
connection with any such claims or suits and undertakes to furnish
full assistance to Licensor in the conduct of all proceedings in
regard thereto. Licensee shall promptly notify Licensor in writing
of any infringements or imitations or unauthorized uses by others of
the Licensed Property, on or in relation to products identical to
similar to or related to the Licensed Products. Licensor shall in
its sole discretion have the right to settle or effect compromises
in respect thereof. Licensee shall not institute any suit or take
any action on account of such infringements, imitations or
unauthorized uses.
9. APPROVALS AND QUALITY CONTROLS:
(a) Licensee agrees to comply and maintain compliance with the
reasonable quality standards and specifications of Licensor as they
are required of other licensees in respect to all usage of the
Licensed Property on or in relation to the Licensed Product(s)
throughout the Term of this Agreement and any renewals or extensions
thereof. Licensee agrees to furnish to Licensor free of cost for its
written approval as to aesthetic quality and style, samples of each
of the Licensed Product(s), together with their packaging, hangtags,
and wrapping material, as follows in the successive stages indicated
(a) rough sketches/layout concepts; (b) finished artwork or final
proofs; (c) pre-production samples or strike- offs; (d) finished
products, including packaged samples. Finished Products will be
deemed approved if they
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conform in all material respects to the approved pre-production
sample or "strike-off. Licensor will not withhold approval of a
product based on its construction or materials unless the
construction or materials impairs the aesthetic appearance of the
product or is otherwise not in conformity with the general quality
of Licensee's products.
(b) No Licensed Products and no material utilizing the Licensed Property
shall be manufactured, sold, distributed or promoted by Licensee
without prior written approval. Licensee may, subject to Licensor's
prior written approval, use textual and/or pictorial matter
pertaining to the Licensed Property on such promotional, display and
advertising material as may, in its reasonable judgment, promote the
sale of the Licensed Products. All advertising and promotional
material relating to the Licensed Products must be submitted to the
Licensor for its written approval at the following stages
appropriate to the medium used: (i) rough concepts; (ii) layout,
storyboard, script; and (iii) finished materials.
(c) Approval or disapproval shall lie in Licensor's sole discretion.
Licensee shall submit all materials for approval to Xxxxx Xxxxx or
such other person as Licensor may form time to time identify. If
Licensee has not received a response on any submission within ten
(10) business days, Licensee may notify Xx. Xxxxx or her designated
successor by facsimile, receipt of which must be confirmed in
writing, and Licensor will then have three (3) business days to
approve, disapprove or otherwise comment upon the submission.
Failure to respond within three (3) business days after
acknowledging receipt of the facsimile notice shall deem the
submission approved. Any Licensed Products not so approved shall be
deemed unlicensed and shall not be manufactured or sold. If any
unapproved Licensed Products are being sold, Licensor may, together
with other remedies available to it including, but not limited to,
immediate termination of this Agreement, require such Licensed
Products to be immediately withdrawn from the market and to be
destroyed, such destruction to be attested to in a certificate
signed by an officer of Licensee.
(d) Any modification of a Licensed Product which relates to the Artwork
applied to the Licensed Product or results in a material deviation
in the standards or quality of a Licensed Product must be submitted
in advance for Licensor's written approval as if it were a new
Licensed Product. Approval of a Licensed Product which uses
particular artwork does not imply approval of such artwork for use
with a different Licensed Product.
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(e) Licensed Products must conform in all material respects to the final
production samples approved by Licensor. If in Licensor's reasonable
judgment, the quality of a Licensed Product originally approved has
deteriorated in later production runs, or if a Licensed Product has
otherwise been altered, Licensor and Licensee agree to negotiate in
good faith regarding the disposition of such Licensed Products,
which disposition may, in addition to other remedies, require that
such Licensed Product be immediately withdrawn from the market.
(f) Licensee shall permit Licensor to inspect Licensee's manufacturing
operations, testing and payroll records (including those operations
and records of any supplier or manufacturer approved pursuant to
Paragraph lO(b) below) with respect to the Licensed Products.
(g) If any changes or modifications are required to be made to any
material submitted to Licensor for its written approval in order to
ensure compliance with Licensor's specifications or standards of
quality, Licensee agrees promptly to make such changes or
modifications.
(h) Subsequent to final approval, no fewer than twelve (12) production
samples of Licensed Products will be sent to Licensor to ensure
quality control simultaneously upon distribution to the public. In
addition, Licensee shall provide Licensor with six (6) catalogs
which display all of Licensee's products, not just the Licensed
Products. Further, Licensor shall have the right to purchase any and
all Licensed Products in any quantity at the maximum discount price
Licensee charges its best customer in a similar circumstance.
(i) To avoid confusion of the public, Licensee agrees not to associate
other characters or properties with the Licensed Property on the
Licensed Products or in any packaging, promotional or display
materials unless Licensee receives Licensor's prior written
approval. Furthermore, Licensee agrees not to use the Licensed
Property (or any component thereof) on any business sign, business
cards, stationery or forms, nor as part of the name of Licensee's
business or any division thereof. The following licensed properties
are hereby deemed approved for use of Licensed Products for purposes
of this paragraph: the Cotton seal; 3M - Scotchguard; Curity;
Gerber.
(j) Licensee shall use its best efforts to notify its customers of the
requirement that Licensor has the right to approve all promotional,
display and advertising material pursuant to this Agreement.
Notwithstanding the foregoing, Licensee shall not be responsible for
any customers failure to obtain any required approval.
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(k) It is understood and agreed that any animation used in electronic
media, including but not limited to animation for television
commercials and character voices for radio commercials, shall be
produced by Warner Bros. Animation pursuant to a separate agreement
between Licensee and Warner Bros. Animation, subject to Warner Bros.
Animation customary rates. 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 (including without
limitation, the Licensed Products themselves as well as promotional,
display, and advertising materials) shall in no way constitute or be
construed as an approval by Licensor of Licensee's use of any
trademark, copyright and/or other proprietary materials, not owned
by Licensor.
10. DISTRIBUTION; SUB-LICENSE MANUFACTURE:
(a) Within the Channels of Distribution set forth in Paragraph l(a)
hereof, Licensee shall sell the Licensed Products either to jobbers,
wholesalers, distributors or retailers for sale or resale and
distribution directly to the public. Unless explicitly set forth in
Paragraph 1(a) hereof, Licensee shall not sell the Licensed Products
through any cable home shopping service or through electronic media,
including on any on-line network or service. If Licensee sells or
distributes the Licensed Products at a special price, directly or
indirectly, to itself, including without limitation, any subsidiary
of Licensee or to any other person, firm, or corporation affiliated
with Licensee or its officers, directors or major stockholders, for
ultimate sale to unrelated third parties, Licensee shall pay
royalties upon the actual sale of the Licensed Product to an
unrelated third party.
(b) Licensee shall not be entitled to sub-license any of its rights
under this Agreement. In the event Licensee is not the manufacturer
of the Licensed Products, Licensee shall, subject to the prior
written approval of Licensor, which approval shall not be
unreasonably withheld, be entitled to utilize a third party
manufacturer in connection with the manufacture and production of
the Licensed Products, provided that such manufacturer shall execute
a letter in the form of Exhibit 1 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
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rights to subcontractors.
11. GOOD WILL: Licensee recognizes the great value of the publicity and good
will associated with the Licensed Property and acknowledges: (i) such good
will is exclusively that of Licensor; and (ii) that the Licensed Property
has acquired a secondary meaning as Licensor's trademarks and/or
identifications in the mind of the purchasing public. Licensee further
recognizes and acknowledges that a breach by Licensee of any of its
covenants, agreements or undertakings hereunder will cause Licensor
irreparable damage, which cannot be readily remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
Licensor's copyrights, trademarks and/other proprietary rights in, and to
the Licensed Property, thereby entitling Licensor to equitable remedies,
and costs.
12. LICENS0R'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 does not violate any
agreements, rights or obligations of any person, firm or
corporation.
13. LICENSEE'S WARRANTIES AND REPRESENTATIONS: Licensee represents and
warrants to Licensor that, during the Term and thereafter:
(a) It will not attack the title of Licensor (or third parties that have
granted rights to Licensor) in and to the Licensed Property or any
copyright or trademarks pertaining thereto, nor will it attack the
validity of the license granted hereunder;
(b) It will not harm, misuse or bring into disrepute the Licensed
Property, but on the contrary, will maintain the value and
reputation thereof to the best of its ability;
(c) It will manufacture, sell, promote and distribute the Licensed
Products in an ethical manner and in accordance with the terms and
intent of this Agreement, and in compliance with all applicable
government regulations and industry standards;
(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 the Licensed Property;
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(e) It will protect to the best of its ability its right to manufacture,
sell, promote, and distribute the Licensed Products hereunder;
(f) It will at all times comply with all government laws and
regulations, including but not limited to product safety, food,
health, drug, cosmetic, sanitary or other similar laws, and all
voluntary industry standards relating or pertaining to the
manufacture, sale, advertising or use of the Licensed Products, and
shall maintain its appropriate customary high quality standards
during the Term hereof. It shall comply with any laws or regulations
of regulatory agencies which shall have jurisdiction over the
Licensed Products and shall procure and maintain in force any and
all permissions, certifications and/or other authorizations from
governmental and/or other official authorities that may be required
in response thereto. Each Licensed Product and component thereof
distributed hereunder shall comply with all applicable laws,
regulations and voluntary industry standards. Licensee shall follow
reasonable and proper procedures for testing that all Licensed
Products comply with such laws, regulations and standards. Licensee
shall permit Licensor or its designees to inspect testing records
and procedures with respect to the Licensed Products for compliance.
Licensed Products that do not comply with all applicable laws,
regulations and standards shall automatically be deemed unapproved
and immediately taken off the market;
(g) It shall, upon Licensor's request, provide credit information to
Licensor including, but not limited to, fiscal year-end financial
statements (profit-and-loss statement and balance sheet) and
operating statements, all of which will be satisfied by submission
to Licensor of Licensee's annual report;
(h) It will provide Licensor with the date(s) of first use of the
Licensed Products in interstate and intrastate commerce, where
appropriate;
(i) It will, pursuant to Licensor's instructions and at Licensor's
expense, duly take any and all necessary steps to secure execution
of all necessary documentation for the recordation of itself as user
of the Licensed Property in any jurisdiction where this is required
or where Licensor reasonably requests that such recordation shall be
effected. Licensee further agrees that it will at its own expense
cooperate with Licensor in cancellation of any such recordation at
the expiration of this Agreement or upon termination of Licensee's
right to use the Licensed Property. Licensee hereby appoints
Licensor its Attorney-in-Fact for such purpose;
(j) It will not deliver or sell Licensed Products outside
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the Territory or knowingly sell Licensed Products to a third party
for delivery outside the Territory;
(k) It will not use any labor that violates any local labor laws,
including all wage and hour laws, laws against discrimination and
that it will not use prison, slave or child labor in connection with
the manufacture of the Licensed Products;
(l) It shall at all times comply with all manufacturing, sales,
distribution, retail and marketing policies and strategies
promulgated by Licensor from time-to-time; and
(m) It will utilize specific design elements of the Licensed Property
provided to Licensee by Licensor on hangtags, labels, and other
materials.
14. TERMINATION:
(a) By Licensor: Licensor shall have the right to terminate this
Agreement without prejudice to any rights which it may have, whether
pursuant to the provisions of this Agreement, or otherwise in law,
or in equity, or otherwise, upon the occurrence of any one or more
of the following events (herein called "defaults"):
(i) Licensee materially defaults in the performance of any of its
obligations provided for in this Agreement; or
(ii) Licensee shall have failed to deliver to Licensor or to
maintain in full force and effect the insurance referred to in
Paragraph 7(c) hereof; or
(iii) Licensee shall fail to make any payments due hereunder on the
date due; or
(iv) Licensee shall fail to deliver any of the statements required
herein or to give access to the premises and/or license
records pursuant to the provisions hereof to Licensor's
authorized representatives for the purposes permitted
hereunder; or
(v) Licensee shall fail to comply with any laws, regulations or
voluntary industry standards as provided in Paragraph 13(f) or
if any governmental agency or other body, office or official
vested with appropriate authority finds that the Licensed
Products are harmful or defective in any way, manner or form,
or are being manufactured, sold or distributed in
contravention of applicable laws, regulations or
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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 manufacture,
distribute and sell each of the Licensed Products and utilize
each character set forth in the Licensed Property
("Character") throughout the Territory on or before the
Marketing Date and thereafter fails to diligently and
continuously manufacture, distribute and sell each of the
Licensed Products and utilize each Character throughout the
Territory. Such default and Licensor's resultant right of
termination (or recapture) shall only apply to the specific
Character(s) and/or the specific Licensed Products, which or
wherein Licensee fails to meet said Marketing Date
requirement. However, Licensee may cure such default as
follows: upon receipt of notice from Licensor that Licensee
has failed to manufacture, distribute and sell any Licensed
Product, within thirty days, Licensee shall submit to Licensor
a marketing plan for the manufacture, distribution and sale of
such product which shall provide for the product to be
manufactured, distributed and sold in a timely fashion in
accord with industry norms. If Licensee fails to provide such
marketing plan or thereafter fails to materially meet the
provisions of such plan, Licensor shall recapture all rights
to the specific Licensed Product(s), which or wherein Licensee
failed to meet the requirements of this paragraph; or
(viii)Licensee shall manufacture, sell or distribute, whichever
first occurs, any of the Licensed Products without the prior
written approval of Licensor as provided in Paragraph 9
hereof; or
(ix) Licensee undergoes a substantial change of management or
control. A substantial change of control is a nonpublic
offering sale of over 50% of the stock or assets of Licensee
to a person(s) not a member of the current senior management
or an entity(s) not controlled by either Citicorp Venture
Capital or its
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affiliates or by one or more members of the current senior
management of Gerber Childrenswear, Inc. The sale of stock
through a public offering will not be considered a
"substantial change of control"; or (s) A manufacturer
approved pursuant to Paragraph lO(b) hereof shall sell
Licensed Products to parties other than Licensee or engage in
conduct, which conduct if engaged in by Licensee would entitle
Licensor to terminate this Agreement; or
(x) Licensee delivers or sells Licensed Products outside the
Territory or knowingly sells Licensed Products to parties
other than Licensee or engage in conduct, which conduct if
engaged in by Licensee would entitle Licensor to terminate
this Agreement; or
(xi) Licensee delivers or sells Licensed Products outside the
Territory or knowingly sells Licensed Products to a third
party who Licensee knows intends to, or who Licensee
reasonably should suspect intends to, sell or deliver such
Licensed Products outside the Territory; or
(xii) Licensee uses any labor that violates any local labor laws
and/or it uses prison, slave or child labor in connection with
the manufacture of the Licensed Products; or
(xiii)Licensee has made a material misrepresentation or has omitted
to state a material fact necessary to make the statements not
misleading; or
(xiv) Licensee shall breach any other agreement in effect between
Licensee on the one hand and Licensor on the other.
(b) In the event any of these defaults occur, Licensor shall give notice
of termination in writing to Licensee by facsimile and certified
mail. Licensee shall have twenty (20) days from the date of giving
notice in which to correct any of these defaults (except any
defaults based on non-payment of monies to Licensor, which must be
cured within ten (10) days and defaults base on subdivisions (vii),
(viii), (xi) and (xiii) above which are not curable), and failing
such, this Agreement shall thereupon immediately terminate, and any
and all payments then or later due from Licensee hereunder
(including Guaranteed Consideration) shall then be promptly due and
payable in full and no portion of those prior payments shall be
repayable to Licensee.
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(c) BY LICENSEE: Licensee shall have the same right(s) to termination of
this Agreement as provided to Licensor under this paragraph 14, upon
the occurrence of any one or more of the following events (herein
called "defaults" ):
i) If Licensor materially defaults in the performance of any of
its obligations provided for in this Agreement; or
ii) If Licensor shall be unable to pay its debts when due, or
shall make any assignment for the benefit of creditors, or
shall file any petition under the bankruptcy or insolvency
laws of any jurisdiction, county or place, or shall have or
suffer a receiver or trustee to be appointed for its business
or property, or be adjudicated a bankrupt or an insolvent; or
iii) If WBCP shall breach any other agreement in effect between it
and Licensee.
(d) In the event any of these defaults occur, Licensee shall give notice
of termination in writing to Licensor by certified mail. The
Licensor shall have twenty (20) days from the date of giving notice
in which to correct any of these defaults, and failing such,
Licensee shall have the option to immediately terminate this
Agreement, in which event Licensee's obligation to make any further
payments of Guaranteed Consideration provided for in this Agreement
shall also terminate and Licensee's rights shall thereafter be as
set forth in Paragraph 15 hereof.
15. FINAL STATEMENT UPON TERMINATION OR EXPIRATION: Licensee shall deliver, as
soon as practicable, but not later than thirty (30) days following
expiration or termination of this Agreement, a statement indicating the
number and description of Licensed Products on hand together with a
description of all advertising and promotional materials relating thereto.
Following expiration or termination of this Agreement, Licensee shall
immediately cease any and all manufacturing of the Licensed Product.
However, if Licensee has complied with all the terms of this Agreement,
including, but not limited to, complete and timely payment of the
Guaranteed Consideration and Royalty Payments, then Licensee may continue
to distribute and sell its remaining inventory on a non-exclusive basis
for a period not to exceed one hundred eighty (180) days following such
termination or expiration (the "Sell-Off Period"), subject to payment of
applicable royalties thereto. In no event, however, may Licensee
distribute and sell during the Sell-Off Period an amount of Licensed
Products that exceeds the average amount of Licensed Products sold during
any consecutive one hundred eighty (180) day period during the Term. In
the event this Agreement is
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terminated by Licensor for any reason under this Agreement, Licensee "hall
be deemed to have forfeited its Sell-Off Period. If Licensee has any
remaining inventory of the Licensed Products following the Sell-Off
Period, Licensee shall, at Licensor's option, make available such
inventory to Licensor for purchase at or below cost, deliver up to
Licensor for destruction said remaining inventory or furnish to Licensor
an affidavit attesting to the destruction of said remaining inventory.
Licensor shall have the right to conduct a physical inventory in order to
ascertain or verify such inventory and/or statement. In the event that
Licensee refuses to permit Licensor to conduct such physical inventory,
Licensee shall forfeit its right to the Sell-Off Period hereunder or any
other rights to dispose of such inventory. In addition to the forfeiture,
Licensor shall have recourse to all other legal remedies available to it.
16. NOTICES: Except as otherwise specifically provided herein, all notices
which either party hereto is required or may desire to give to the other
shall be given by addressing the same to the other at the address set
forth above, or at such other address as may be designated in writing by
any such party in a notice to the other given in the manner prescribed in
this paragraph. All such notices shall be sufficiently given when the same
shall be deposited so addressed, postage prepaid, in the United States
mail and/or transmitted via facsimile with receipt of a confirming copy
and/or when the same shall have been delivered, so addressed, to a
telegraph or cable company toll prepaid and the date of said mailing or
telegraphing shall be the date of the giving of such notice.
17. NO PARTNERSHIP, ETC.: This Agreement does not constitute and shall not be
construed as constitution of a partnership or joint venture between
Licensor and Licensee. Neither party shall have any right to obligate or
bind the other party in any manner whatsoever, and nothing herein
contained shall give, or is intended to give, any rights of any kind to
any third persons.
18. NO SUBLICENSING/NON-ASSIGNABILITY: This Agreement shall bind and inure to
the benefit of Licensor, its successors and assigns. This Agreement is
personal to Licensee. Licensee shall not sublicense, franchise or delegate
to third parties its rights hereunder (except as set forth in Paragraph
10(b) hereof). Neither this Agreement nor any of the rights of Licensee
hereunder shall be sold, transferred or assigned by Licensee and no rights
hereunder shall devolve by operation of law or otherwise upon any
receiver, liquidator, trustee or other party. Notwithstanding the
foregoing, Licensee shall be permitted to assign its rights and
obligations under this Agreement for collateral security purposes to any
lender providing financing to Licensee that is secured by Licensee's
inventory solely for purposes of permitting such lender to dispose of such
inventory in accordance with the terms hereof upon a default by Licensee
under any such financing.
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19. CONSTRUCTION: This Agreement shall be construed in accordance with the
laws of the State of California of the United States of America without
regard to its conflicts of laws provisions.
20. WAIVER, MODIFICATION, ETC.: No waiver, modification or cancellation of any
term or condition of this Agreement shall be effective unless executed in
writing by the party charged therewith. No written waiver shall excuse the
performance of any acts other than those specifically referred to therein.
The fact that one party has not previously insisted upon the other party
expressly complying with any provision of this Agreement shall not be
deemed to be a waiver of the party's future right to require compliance in
respect thereof and each party specifically acknowledges and agrees that
the prior forbearance in respect of any act, term or condition shall not
prevent the other party from subsequently requiring full and complete
compliance thereafter. If any term or provision of this Agreement is held
to be invalid or unenforceable by any court of competent jurisdiction or
any other authority vested with jurisdiction, such holding shall not
affect the validity or enforceability of any other term or provision
hereto and this Agreement shall be interpreted and construed as if such
term or provision, to the extent the same shall have been held to be
invalid, illegal or unenforceable, had never been contained herein.
Headings of paragraphs herein are for convenience only and are without
substantive significance.
21. ACCEPTANCE BY LICENSOR: This instrument, when signed by Licensee, shall be
deemed an application for license and not a binding agreement unless and
until accepted by Warner Bros. Consumer Products by signature of a duly
authorized officer and the delivery of such a signed copy to Licensee. The
receipt and/or deposit by Warner Bros. Consumer Products of any check or
other consideration given by Licensee and/or delivery of any material by
Warner Bros. Consumer Products to Licensee shall not be deemed an
acceptance by Warner Bros. Consumer Products of this application. The
foregoing shall apply to any documents relating to renewals or
modifications hereof.
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This Agreement shall be of no force or effect unless and until it is signed by
all of the parties listed below:
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LICENSOR: LICENSEE:
WARNER BROS. CONSUMER PRODUCTS, GERBER CHILDRENSWEAR, INC.
a Division of Time Warner
Entertainment Company L.P. on
behalf of itself and as Agent for
Warner Bros., a Division of Time
Warner Entertainment Company L.P.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
_____________________________ _____________________________
Xxxx X. Xxxxx Xxxxxx Xxxxxxxxx
Vice President, Legal Affairs Chairman & CEO
Date:___________________________ Date:_____________________________
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EXHIBIT 1 #8824-BLT/WBLT
Warner Bros. Consumer Products
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Re: Approval of Third Party Manufacturer
Gentlemen:
This letter will serve as notice to you that pursuant to Paragraph lO(b)
of the License Agreement dated __________, 199_ between WARNER BROS., A DIVISION
OF TIME WARNER ENTERTAINMENT COMPANY L.P. and GERBER CHILDRENSWEAR, INC.
("Licensee"), we have been engaged as the manufacturer for Licensee in
connection with the manufacture of the Licensed Products as defined in the
aforesaid License Agreement. We hereby acknowledge that we may not manufacture
Licensed Products for, or sell or distribute Licensed Products to, anyone other
than Licensee. We hereby further acknowledge that we have received a copy and
are cognizant of the terms and conditions set forth in said License Agreement
and hereby agree to observe those provisions of said License Agreement which are
applicable to our function as manufacturer of the Licensed Products. It is
expressly understood that we are obligated to comply with all local laws,
including without limitation, labor laws, wage and hour laws and
anti-discrimination laws and that you or your representatives shall, at anytime,
have the right to inspect our facilities and review our records to ensure
compliance therewith. It is understood that this engagement is on a royalty free
basis and that we may not subcontract any of our work without your prior written
approval.
We understand that our engagement as the manufacturer for Licensee is
subject to your written approval. We request, therefore, that you sign in the
space below, thereby showing your acceptance of our engagement as aforesaid.
Very truly yours,
_________________________________
Manufacturer/company name
By: _________________________________
signature
_________________________________
print name
_________________________________
address
_________________________________
_________________________________
country
_________________________________
date
_________________________________
product(s) manufacturing
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AGREED TO AND ACCEPTED:
WARNER BROS. CONSUMER PRODUCTS,
a Division of Time Warner
Entertainment Company L.P.
By:_____________________________
Xxxx X. Xxxxx
Vice President, Legal Affairs
Date:___________________________
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EXHIBIT 2 #8824-BLT/WBLT
CONTRIBUTOR'S AGREEMENT
I,_____________, the undersigned ("Contributor"), have been engaged by Gerber
Childrenswear, Inc. ("Licensee") to work on or contribute to the creation of
Licensed Products, described as _______________________, by Licensee under an
agreement between Licensee and Licensor [or] Warner Bros., a division of Time
Warner Entertainment Company L.P., c/o Warner Bros. Consumer Products, a
division of Time Warner Entertainment Company L.P. ("Warner") dated
_____________.
I understand and agree that all artwork which includes any Licensed Property of
Warner Bros. ("Work") and which results from my services for Licensee in
connection with such Licensed Products is a "work made for hire" for Licensor
and that all right, title and interest in and to the Work shall vest and remain
with Licensor. I reserve no rights therein. Without limiting the foregoing, I
hereby assign and transfer to Licensor all other rights whatsoever, in
perpetuity throughout the universe which I may have or which may arise in me or
in connection with the Work. I hereby waive all moral right. in connection with
such Work together with any other rights which are not capable of assignment. I
further agree to execute any further documentation relating to such transfer or
waiver or relating to such Work at the request of Licensor or Licensee, failing
which Licensor is authorized to execute same as my Attorney-in-Fact.
Contributor:
By:____________________________
Date:__________________________
Warner Bros. Consumer Products:
By:____________________________
Date:__________________________
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EXHIBIT 3 #8824-BLT/WBLT
CHANNELS OF DISTRIBUTIONS
DEFINITIONS
1. "AAFES" shall mean the U.S. Army and Air force Exchange Service
headquarters as well as individual bases.
2. "Airport Gift Stores" shall mean gift stores located within airports,
excluding Duty-Free Stores. Examples of Airport Gift Stores include,
without limitation, PARADIES AND X.X. XXXXX.
3. "Amusement Game Redemption" shall mean distribution of products as prizes
awarded in amusement games.
4. "Amusement Park Gift Stores" shall mean gift stores located within
amusement parks, such as Six Flags, Paramount Parks, Universal Theme
Parks, Dollywood, Xxxx Disney World and Xxxx Disney Land.
5. "Art & Craft Stores" shall mean stores that offer for sale primarily art
and craft supplies. Examples of Art & Craft Stores include, without
limitation, XXXXX XXXXXXXX, FAST FRAME, MICHAELS AND XXXXXXXX XX DESIGNS.
6. "Athletic Apparel & Footwear Stores" shall means stores that offer for
sale primarily athletic apparel and footwear. Examples of Athletic Apparel
& Footwear Stores include, without limitation, FOOTLOCKER, ATHLETE'S FOOT
AND CHUMPS.
7. "Automotive/Carwash Stores" shall mean (a) stores that offer for sale
primarily automotive supplies, or (b) stores located at carwash or
gasoline station premises.
8. "Baby Specialty Stores" shall mean stores that offer for sale primarily
infant apparel, furniture, accessories and other products designed
specifically for babies. Examples of Baby Specialty Stores include,
without limitation, BABIES R US.
9. "CANEX" shall mean the Canadian Forces Exchange Service headquarters as
well as individual bases.
10. "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.
11. "Chain Book Stores" shall mean chain stores (containing twenty (20) or
more individual stores) that offer for sale primarily books. Examples of
Chain Book Stores include, without limitation, X. Xxxxxx, SuperCrown,
Xxxxxx Books, and Brentano's.
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12. "Chain Comic Book Stores" shall mean chain stores (containing twenty (20)
or more individual stores) that offer for sale primarily comic books.
13. "Chain Drug Stores" shall mean chain stores (containing twenty 120) or
more individual stores) that offer for sale primarily prescription and
over-the-counter drugs, personal care products and household products.
Examples of Chain Drug Stores include without limitation, WALGREENS,
RITE-AIDE, THRIFTY/PAYLESS, C.V.S./REVCO, THRIFT DRUG, PHAR MOR, AND LONGS
DRUGS.
14. "Chain Jewelry Stores" shall mean chain stores (containing twenty (20) or
more individual stores) that offer for sale primarily jewelry. Chain
Jewelry Stores shall specifically exclude Guild Jewelers (as defined
below). Examples of Chain Jewelry Stores include, without limitation,
STERLING, BARRY'S, XXXXXX'X AND HELLSBURG.
15. "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
"tore's total SKU's. Examples of Chain Toy Stores include, without
limitation, Toys R Us.
16. "College/University Stores" shall mean stores located on the campuses of
colleges or universities.
17. "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.
18. "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, 711, AM/PM, DAIRY MART AND CIRCLE R.
19. "Direct Mail Catalogs" shall mean catalogs that offer products for sale
and are mailed directly to consumers' homes. Examples of Direct Mail
Catalogs include, without limitation, XXXXXXX, HEARTH & HOME,
DOMESTICATIONS, TAPESTRY, COMPANY STORE, HAMMACHER SCHLEMMER, FINGERHUT,
AMWAY, AND XXXXXXX XXXXXX.
If Licensor grants to Licensee the right to distribute Licensed Products
through any Direct Mail Catalogs: (a) each such catalog shall be specified
in the Channels of Distribution set forth in the License Agreement or
otherwise expressly approved in writing by Licensor, and (b) each such
catalog depicting or referring to the Licensed Products or
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the Licensed Property must be submitted to Licensor for prior written
approval in accordance with Licensor's Brand Assurance policies and
procedures.
20. "Door-to-Door Solicitation" shall mean offering products for sale through
personal visits by salespersons to consumers' homes.
21. "Duty-Free Stores" shall mean stores usually located in airports, which
offer products for sale to international travelers free of taxes and
duties. If Licensor grants to Licensee the right to distribute products
through Duty-Free Stores, such channels of distribution (like all other
channels of distribution granted) shall be limited to those stores located
within the Territory.
22. "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.
23. "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.
24. "Fashion Accessory Stores" shall mean stores that offer for sale primarily
costume jewelry, hair accessories and other fashion accessories. Examples
of Fashion Accessory Stores include, without limitation, CLAIRE'S
BOUTIQUE, AFTERTHOUGHTS, IT'S ABOUT TIME AND PIERCING PAGODA.
25. "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.
26. "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.
27. "Garden Specialty Stores" shall mean stores that offer for sale primarily
garden supplies and plants. Examples of Garden Specialty Stores include,
without limitation, ARMSTRONG'S, CALLAWAY'S, AND WOLF NURSERIES.
28. "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,
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(c) usually focus more on aesthetics in merchandise displays than on
price, and (d) generally require individual store servicing by suppliers
in merchandise set-up, display, SKU maintenance and reordering. Suppliers
to Gift Retailers typically advertise in trade publications, such as "Gift
& Stationery Business", "Giftware News" and "Gifts & Decorative
Accessories". Suppliers to Gift Retailers usually include companies such
as ENESCO, MIDWEST OF XXXXXX FALLS, NEW CREATIVE ENTERPRISES, XXXX
XXXXXXX, PACIFIC RIM, XXXX XXXXXX, WATERFORD, GIFTCRAFT, XXXXXX
INDUSTRIES, POSSIBLE DREAMS, LENOX, DEPARTMENT 56, LEFTON, SWAROVSKI AND
FLAMBRO. Gift Retailers shall specifically exclude Novelty Gift Stores (as
defined below).
29. "Greeting Card Stores" shall mean stores that offer for sale primarily
greeting cards. Examples of Greeting Card Stores include, without
limitation, HALLMARK.
30. "Guild Jewelers" shall mean stores that offer for sale primarily fine
jewelry which is generally classified in the trade as "best" or "highest"
quality. Examples of Guild Jewelers include, without limitation, MAYERS,
ROGERS, AND BAILY BANKS & XXXXXX.
31. "Hobby & Model Stores" shall mean stores that offer for sale primarily
hobby and model supplies.
32. "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, ROME BASO, AND LOWES.
33. "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.
34. "Internet" shall mean offering products for sale through the electronic
network known as the Internet.
35. "Mall Clothing Specialty Stores" shall mean stores that offer for sale
primarily clothing and are located within a mall. Examples of Mall
clothing Specialty Stores include, without limitation, MILLERS OUTPOST AND
WET SEAL.
36. "Mid-Tier Department Stores" shall mean stores that offer products for
sale in a broad assortment of unrelated product categories, which products
are generally classified in the trade as "better" (but not "best") quality
products. Examples of Mid-Tier Department Stores include, without
limitation, X.X. PENNEY, SEARS, MERVYN'S, STEINMART, XXXXX, XXXX XXXXX AND
XXXXXXXXXX WARDS.
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37. "Music/Video Stores" shall mean stores that offer for sale primarily
musical recordings, on compact discs, cassettes or other media, and/or
movie recordings on videos, laser disks or other media for home use by
consumers. Examples of Music/Video Stores include, without limitation,
BLOCKBUSTER, MUSICLAND, TOWER RECORDS, VIRGIN RECORDS, WAREHOUSE RECORDS,
XXX XXXXX'X, AND SUNCOAST.
38. "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,
(d) generally do not require individual store servicing by suppliers.
Suppliers to National Discount/Mass Retailers typically advertise in trade
publications, such as "Discount Store News" and "Discount Merchandiser",
and usually attend the IMRA (International Mass Retailer Association)
trade show. Examples of National Discount/Mass Retailers include, without
limitation, WALMART, K-MART AND TARGET.
39. "Non-Chain Book Stores" shall mean stores or groups of stores (containing
fewer than twenty (20) individual stores) that offer for sale primarily
books.
40. "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.
41. "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.
42. "Non-Chain Jewelry Stores" shall mean stores or groups of stores
(containing fewer than twenty (20) individual stores) that offer for sale
primarily jewelry. Non-Chain Jewelry Stores shall specifically exclude
Guild Jewelers (as defined above).
43. "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.
44. "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.
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45. "Novelty Gift Stores" shall mean stores that offer for sale primarily
novelty gift items. Examples of Novelty Gift Stores include, without
limitation, SPENCER'S.
46. "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.MAX, XXXX FOR LESS, MIT OR HISS AND TUESDAY MORNING.
47. "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.
48. "Outlet Stores" shall mean stores that offer for sale primarily discounted
merchandise of a particular manufacturer or retailer.
49. "Party Stores" shall mean stores that offer for sale primarily party
supplies. Examples of Party Stores include, without limitation, PARTY CITY
AND PARTY WORLD.
50. "Pet Stores" shall mean stores that offer for sale primarily pet supplies.
Examples of Pet Stores include, without limitation, PETCO AND PETSMART.
51. "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,
(d) usually have gross profit margins of less than fifty percent (50%),
and (e) generally do not require individual store servicing by suppliers.
Suppliers to Regional DiscounttMass Retailers typically advertise in trade
publications, such as "Discount Store News" and "Discount Merchandiser",
and usually attend the IMRA (International Mass Retailer Association)
trade show. Examples of Regional Discount/Mass Retailers include, without
limitation, MEIJERS, CALDOR, XXXX, BRADLEES, HILL'S, ROSE'S, VENTURE, AND
SHOPKO.
52. "Souvenir Stores" shall mean stores that offer for sale primarily
souvenirs.
53. "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.
54. "Sports Stadium Shops" shall mean concessionaire shops located within
stadiums or arenas where sporting events are held.
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55. "Stationery Stores" shall mean stores that offer for sale primarily
stationery. Examples of Stationery Stores include, without limitation,
XXXX'X STATIONAIRES.
56. "Street Peddlers" shall mean individual merchants who offer products for
sale in stands, booths or other non-permanent structures usually located
on the sidewalk and designed to attract passing pedestrians.
57. "Supermarket/Grocery Stores" shall mean stores that offer for sale
primarily packaged food products. Examples of Supermarket/Grocery Stores
include, without limitation, KROGER, SAFEWAY, AMERICAN STORES,
ALBERTSON'S, XXXX XXXXX, FOOD LION, VON'S, FINAST, RALPHS, MARSH, BRISTOL
FARMS, AND GELSONS.
58. "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.
59. "Television Home Shopping" shall mean offering products for sale through
cable and broadcast television, including infomercials, QVC and Home
Shopping Network. Television Home Shopping shall specifically exclude
sales through the Internet, CD-Interactive and other electronic media.
60. "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.
61. "Upstairs Department Stores" shall mean stores that (a) offer products for
sale in a broad assortment of unrelated product categories, which products
are generally classified in the trade as "best" quality products, and (b)
offer a high level of customer service with a strong emphasis on store
aesthetics. Examples of UPSTAIRS DEPARTMENT STORES INCLUDE, WITHOUT
LIMITATION, BLOOMINGDALE'S, MACY'S, NORDSTROM'S, MAY DEPARTMENT STORES,
SAKS FIFTH AVENUE, NEIMAN MARCUS, AND DILLARDS.
62. "Warehouse Clubs" shall mean stores that offer for sale products in large
sizes and quantities with more of an emphasis on price than service or
store aesthetics. Examples of Warehouse Clubs include, without limitation,
SAM'S CLUB AND PRICE COSTCO.
63. "Warners Kids Shops" shall mean the separate departments known as Warner
Kids Shops located within the chain of Toys R Us stores.
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