EXHIBIT 10.2
JL SWEDEN SERVICES AGREEMENT
This Services Agreement (this "AGREEMENT") is made and entered into
effective as of July 1, 2008 (the "EFFECTIVE DATE"), by and between J. Lindeberg
AB, a Swedish company ("JL SWEDEN") and J. Lindeberg USA, LLC, a California
limited liability company ("COMPANY"). JL Sweden and the Company are
collectively referred to herein as the "PARTIES".
RECITALS
A. The Company was formed by Xxxxx Xxxx, LLC, a California limited
liability company ("BR"), and a wholly-owned subsidiary of People's Liberation,
Inc., a Delaware corporation, and J. Lindeberg USA Corp, a New York corporation
("JLUS"), and a wholly-owned subsidiary of JL Sweden, on June 27, 2008, by the
filing of the Articles with the Office of the Secretary of State of the State of
California.
B. Concurrently herewith, the Company, BR and JLUS are entering into a
Limited Liability Company Agreement (the "OPERATING AGREEMENT") to govern the
relationship between BR and JLUS and the affairs of the Company and the conduct
of its business, including its management and distribution of profits and
losses.
C. The Company and JL Sweden desire to enter into this Agreement
pursuant to which JL Sweden will, among other things, provide for the
factory-direct purchase by the Company of J. Lindeberg(TM) branded apparel on
terms no less favorable to the Company then terms received by JL Sweden or its
Affiliates for the same or substantially the same merchandise.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
Section 1. Services
1.1 DESIGN. During the Term, at the time during each season when a
new collection of J. Lindeberg(TM) branded apparel is first
marketed for sale to apparel wholesalers and retailers, JL
Sweden shall make available to Company for purchase all such
new collections and shall provide to Company the technical
specifications for such new collections, in the format
provided or agreed to by the Company.
1.2 PRODUCT LOCALIZATION SERVICES. During the Term, upon written
request from Company, JL Sweden agrees to modify, adapt and
otherwise facilitate the preparation of J. Lindeberg(TM)
branded apparel for sale by the Company in the United States
and the marketing thereof in accordance with technical and
other specifications provided by Company to JL Sweden. For any
such services provided after Xxxxxx 00, 0000, XX Xxxxxx shall
invoice Company, and the Company shall pay, for such product
localization services at prevailing market prices to be
negotiated in good faith and agreed upon by the Parties.
1.3 PROCUREMENT OF J. LINDEBERG(TM) BRANDED APPAREL. During the
Term, JL Sweden will provide for and facilitate the
factory-direct purchase by Company of J. Lindeberg(TM) branded
apparel on terms, including at prices (which prices shall not
include transfer pricing), no less favorable to Company than
terms received by JL Sweden or its affiliates for the same or
substantially the same merchandise. JL Sweden will
additionally facilitate, to the extent practically possible,
the direct shipment from factory to a location designated by
Company of all purchased J. Lindeberg(TM) branded apparel. JL
Sweden shall provide Company all reasonable and necessary
support in achieving the objectives outlined in this SECTION
1.3, which shall include, by way of example, to the extent
practically possible notifying Company at least sixty (60)
days prior to JL Sweden's placement of a purchase order for J.
Lindeberg(TM) branded apparel with the factory so that Company
may include in JL Sweden's purchase order any units of J.
Lindeberg(TM) branded apparel that Company desires.
1.4 MARKETING SERVICES. During the Term, JL Sweden shall provide
look-books on a seasonal basis as well as all global marketing
materials developed by JL Sweden for the Company to use in the
United States in connection with the marketing, promotion,
advertising, distribution, and sale of J. Lindeberg(TM)
branded apparel; provided, however, that JL Sweden shall not
be required to provide marketing materials if the use of such
marketing materials in the United States would infringe on the
rights of any third parties. JL Sweden shall invoice the
Company for all copying charges associated with the
reproduction of such look-books and global marketing materials
provided to Company by JL Sweden, and the Company shall pay
such invoices within thirty (30) days.
The services performed by JL Sweden for Company pursuant to the terms hereof
shall be in addition to, and shall not otherwise affect JL Sweden's own
responsibilities for Company's operations resulting from JL Sweden's indirect
ownership of 50% of Company's equity interests.
Section 2. PERFORMANCE AND AUTHORITY.
2.1 STANDARD OF CARE. JL Sweden shall provide the services set
forth in SECTION 1 (the "SERVICES") in a timely and current
manner, consistent with standards, methods and procedures
conforming with (i) all applicable laws and (ii) the degree of
care, skill, diligence and prudence which would generally be
expected from a reasonably prudent person providing the kind
of services required to be provided by JL Sweden under this
Agreement.
2.2 INDEPENDENT CONTRACTOR RELATIONSHIP. With respect to its
performance of the Services, JL Sweden is an independent
contractor, with the authority to control, oversee and direct
the performance of the details of the Services.
2.3 NO JOINT VENTURE OR PARTNERSHIP. This Agreement is not
intended to and shall not be construed as creating a joint
venture, partnership, agency or other association within the
meaning of the common law or under the laws of any state.
Section 3. COMPENSATION FOR SERVICES. Except as set forth in SECTION 1.2,
JL Sweden shall not receive any fee for its Services provided hereunder during
the Term.
Section 4. TERM. The respective rights, duties, and obligations of the
parties hereunder shall commence on the date hereof and shall continue until the
date the Operating Agreement is terminated or JLUS or its permitted transferees
no longer hold Membership Units in the Company.
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Section 5. COVENANTS RELATING TO JL SWEDEN & PERFORMANCE. JL Sweden
agrees to cause the Services to be performed as and when required by this
Agreement and to provide all personnel and assistance necessary or appropriate
to cause such performance.
Section 6. MISCELLANEOUS
6.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the
entire agreement among all the Parties hereto concerning the
subject matter hereof and supersedes all prior understandings,
agreements, and representations by or among the Parties and
their respective Affiliates, written or oral, to the extent
they relate in any way to the subject matter hereof, including
the Term Sheet, dated June 10, 2008, between People's
Liberation, Inc. and JL Sweden. This Agreement may only be
amended by a writing signed by all of the Parties hereto.
6.2 GOVERNING LAW. This Agreement, the application and
interpretation hereof shall be governed exclusively by its
terms and the laws of the State of California without regard
to its conflict of laws provisions.
6.3 CONSENT TO JURISDICTION AND VENUE. Any action, suit or
proceeding in connection with this Agreement must be brought
against any Party in a court of record of the State of
California, County of Los Angeles, or of the United States
District Court for the Central District of California or in
any state or federal court in the State of California, County
of Los Angeles, each Party hereby consenting and submitting to
the exclusive jurisdiction thereof; and to the fullest extent
permitted by law, service of process may be made upon any
Party, by certified or registered mail, at the address to be
used for the giving of notice to such Party under SECTION
6.10. Nothing herein shall affect the right of any Party to
serve process in any manner permitted by applicable law. In
any action, suit or proceeding in connection with this
Agreement, each Party hereby waives any claim that Los Angeles
County or the Central District of California or the State of
California is an inconvenient forum.
6.4 CONSTRUCTION. This Agreement and any documents or instruments
delivered pursuant hereto shall be construed without regard to
the identity of the Person who drafted the various provisions
of the same. Further, each Party has been or has declined to
be represented by legal counsel in connection with the
drafting and negotiation of this Agreement and the other
agreements referred to herein. Consequently, each Party
acknowledges and agrees that any rule of construction that a
document is to be construed against the drafting Party shall
not be applicable either to this Agreement or such other
documents and instruments.
6.5 HEADINGS. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe,
interpret, define, or limit the scope, extent or intent of the
Agreement or any provision hereof.
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6.6 WAIVERS. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any
covenant or condition of this Agreement shall not prevent a
subsequent act, which would have originally constituted a
violation, from having the effect of an original violation.
6.7 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
provided by this Agreement are cumulative and the use of any
one right or remedy by any party shall not preclude or waive
the right to use any or all other remedies. Such rights and
remedies are given in addition to any other rights the Parties
may have by law, statute, ordinance or otherwise.
6.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which
shall constitute one and the same instrument. Any signature
page of any such counterpart, or any electronic facsimile
thereof, may be attached or appended to any other counterpart
to complete a fully executed counterpart of this Agreement,
and any telecopy or other facsimile transmission of any
signature shall be deemed an original and shall bind such
party.
6.9 FURTHER ASSURANCES. The Parties each agree to cooperate, and
to execute and deliver in a timely fashion any and all
additional documents necessary to effectuate the purpose of
this Agreement.
6.10 NOTICES. All notices, consents, requests and other
communications hereunder shall be in writing and shall be sent
by hand delivery, by certified or registered mail
(return-receipt requested) or by a recognized national
overnight courier service to the addresses set forth on the
signature page hereto. Notices delivered pursuant to this
SECTION 6.10 shall be deemed given: at the time delivered, if
personally delivered; three (3) business days after being
deposited in the mail, if mailed; and one (1) business day
after timely delivery to the courier, if by overnight courier
service. Any Party may change the address to which notice is
to be sent by written notice to the other Party hereto in
accordance with this SECTION 6.10.
6.11 INTERPRETATION. Whenever the singular form is used in this
Agreement, and when required by the context, the same shall
include the plural and vice versa, and the masculine gender
shall include the feminine and neuter genders and vice versa.
The words "herein" "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision. The
words "including" and "include" and other words of similar
import shall be deemed to be followed by the phrase "without
limitation."
6.12 ASSIGNMENT. Neither party shall be permitted to assign this
Agreement, or the rights and obligations existing hereunder,
without the prior written consent of the Company and the
Manager.
[Signatures on Following Page]
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IN WITNESS WHEREOF, each of the Parties hereto has executed or has
caused this Agreement to be executed by its duly authorized representative to be
effective as of the Effective Date.
J. LINDEBERG AB, a Swedish company
/s/ Xxxxxx Xxxxxxxx
By:__________________________________________________
Xxxxxx Xxxxxxxx, Chief Executive Officer
Address:
Xxxxxxxxxxxxxx 00X
XX-00000 Xxxxxxxxx
Xxxxxx
COMPANY:
J. LINDEBERG USA, LLC, a California limited liability
company
/s/ Xxxxx Xxxx
By:__________________________________________________
Xxxxx Xxxx, Manager
Address:
000 Xxxx Xxxxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, XX 00000
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