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EXHIBIT 6.1
LICENSE AGREEMENT
THIS AGREEMENT, dated as of the 24th day of July, 1997, is entered
into by and between RAWLINGS SPORTING GOODS COMPANY, INC., a Delaware
corporation located at X.X. Xxx 00000, 0000 Xxxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000 (hereinafter referred to as "Rawlings"), and WSL, INC., a California
corporation located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000
(hereinafter referred to as "WSL").
WHEREAS, Rawlings manufactures, distributes, and sells products relating
to the sporting goods industry and desires to grant a license to WSL in
accordance with this Agreement.
WHEREAS, Rawlings is the Proprietor of the Trademarks set forth in the
attached Schedule I (the "Trademarks").
WHEREAS, Rawlings wishes to grant and WSL wishes to receive, licenses
under the Trademarks, all upon the terms and subject to the conditions set forth
herein.
WHEREAS, Rawlings and WSL (as assignee of Bellmore Sales Corp.)
previously entered into a License Agreement dated March 29, 1990, as amended
(the "Prior Agreement"), in which Rawlings granted WSL a license to Rawlings'
trademarks for commercial quality golf clubs.
WHEREAS, Rawlings and WSL desire to rescind and cancel the Prior
Agreement and substitute this License Agreement therefor as of the Effective
Date herein upon the satisfaction by WSL of all of its obligations under the
Prior Agreement.
NOW, THEREFORE, in consideration of the following terms and mutual
promises and for other good and valuable consideration, the parties agree as
follows:
1. LICENSE GRANT:
1.1 Exclusive License: Rawlings grants to WSL the exclusive right and
license, subject to the terms, covenants and conditions of this
Agreement, for the period from September 1, 1997 (the "Effective Date")
until termination in accordance with paragraphs 3 or 14 below, to use
the Trademarks throughout the World (the "Territory") only in
conjunction with the manufacture, sale, distribution, advertising, and
promotion by WSL of commercial quality licensed products of fully
assembled golf clubs, golf bags, golf accessories including golf tees,
replacement golf spikes, head covers, golf umbrellas, golf gloves and
unmotorized golf carts.
1.2 Non-Exclusive License: Rawlings grants to WSL the non-exclusive
right and license, subject to the terms, covenants and conditions of
this Agreement, for the period from September 1, 1997 until termination
in accordance with paragraphs 3 or 14 below, to use the Trademarks
throughout the World (the "Territory") only in conjunction with the
manufacture, sale, distribution, advertising, and promotion by WSL of
the licensed
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products of golf hats and golf balls (collectively with the products
listed in Paragraph 1.1 referred to as the "Licensed Products"). The
non-exclusive rights to golf balls shall be granted for a period of one
(1) year only (i.e. 9/1/97 to 8/31/98) during which time WSL may elect
to maintain the non-exclusive rights to golf balls for the remainder of
the Initial Term and Renewal Term, if applicable, as those terms are
defined below. If WSL so elects, an additional $25,000.00 per Contract
Year shall be added to the Minimum Royalties of Paragraph 4.
1.3 Rawlings represents and warrants that: (A) Rawlings is the owner of,
and has the right to license, the Trademarks listed in Schedule I in
accordance with the terms and conditions of this License Agreement, and
(B) the Trademarks do not infringe any Trademark or other intellectual
property right of any third party of which Rawlings has knowledge, and
no such claim is pending or, to Rawlings' knowledge, threatened or has
been made (other than claims which have been made and finally resolved
in a manner which does not give rise to any present liability on the
part of Rawlings or its licensees).
1.4 Rawlings reserves unto itself all other rights in and to the
Trademarks, including the right to use its Trademarks on products other
than the Licensed Products and to grant licenses and distributorships
thereunder.
1.5 WSL shall use its commercially reasonable efforts to xxxxxx and
develop the Licensed Products and to maximize the combined sales of the
Licensed Products. However, in the event that WSL does not use
commercially reasonable efforts to xxxxxx and develop the sale of golf
bags, golf accessories, including golf tees, replacement golf spikes,
head covers, golf umbrellas, golf gloves, or unmotorized golf cards
(collectively, the "Additional Products"), Rawlings shall have the
right, exercisable upon 90 days prior written notice to WSL, to withdraw
the license granted hereunder to any individual Additional Product if,
at the end of such 90-day period, Rawlings determines that WSL is not
using commercially reasonable efforts to xxxxxx, develop or sell such
Licensed Product. The right to withdraw the license with respect to any
individual Licensed Product shall only apply to the Additional Products
and not to golf clubs, golf hats or golf balls.
1.6 Notwithstanding the commencement date as stated in Paragraph 3
below, WSL shall have the period of time between the execution date and
September 1, 1997 to design, promote, sell and import Licensed Products
for delivery on or after September 1, 1997.
2. SUBLICENSE: WSL is expressly prohibited from granting any sublicense
under this agreement or permitting any party to use or display the
Trademarks or to distribute or represent any Licensed Products, without
the prior written consent of Rawlings. Approval (i) shall not be
unreasonably withheld and (ii) the determination of whether to consent
shall be made within 10 business days of a request by WSL. Any consent
hereunder shall be in writing and shall be sent to WSL by certified
mail, return receipt requested.
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3. TERM:
3.1 Initial Term: Unless sooner terminated as herein provided, the
rights granted in paragraph 1.1 shall become effective on September 1,
1997 and expire on August 31, 2002 ("Initial Term"). The first "Contract
Year" shall commence on September 1, 1997 and shall end on August 31,
1998. Each successive twelve (12) month period commencing September 1
and ending August 31 shall be referred to as a "Contract Year."
3.2 Renewal: Provided that (a) WSL has not breached any material term of
this Agreement during the Initial Term, and (b) WSL's aggregate Net
Sales of Licensed Products during the Initial Term is at least Fifty
Million Dollars ($50,000,000.00) (the "Renewal Threshold"), this
Agreement will automatically renew for a second five (5) year term,
ending August 31, 2007 ("Renewal Term"), provided that WSL gives
Rawlings written notice of WSL's intention to renew at least twelve (12)
months before the expiration of the Initial Term. If WSL has not reached
the Renewal Threshold by the expiration of the Initial Term, but has
provided twelve months written notice to Rawlings of its intention to
renew this Agreement and has not breached a material term of the
Agreement, the parties will negotiate to reach mutually acceptable
Renewal Term provisions. Rawlings shall not be obligated, however, to
renew this Agreement if the Renewal Threshold has not been reached on or
before the expiration of the Initial Term of the Agreement. All other
terms and conditions of this Agreement shall continue in full force and
effect during any Renewal Term unless such terms are renegotiated and
agreed to by the parties.
4. ROYALTIES:
4.1 Running Royalty: In consideration of the license herein granted, WSL
agrees to pay Rawlings a running royalty of five percent (5%) of Net
Sales of the Licensed Products. Royalty payments shall be made on a
quarterly basis in accordance with Paragraph 4 and Paragraph 6. The
amount of running royalties paid by WSL each quarter shall be credited
against the portion of the annual minimum royalty payment due each
quarter as set forth in Subparagraph 4.2.
4.2 Minimum Royalty: WSL shall pay Rawlings annual minimum royalties as
follows:
INITIAL TERM
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Contract Year Ending: 8/31/98: $425,000
Contract Year Ending: 8/31/99: $450,000
Contract Year Ending: 8/31/00: $500,000
Contract Year Ending: 8/31/01: $550,000
Contract Year Ending: 8/31/02: $600,000
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RENEWAL TERM
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Option Period Ending: 8/31/03 $TBD
Option Period Ending: 8/31/04 $TBD
Option Period Ending: 8/31/05 $TBD
Option Period Ending: 8/31/06 $TBD
Option Period Ending: 8/31/07 $TBD
The annual Minimum Royalty amounts for the Renewal Term, as may
become effective pursuant to Paragraph 3.2, shall be mutually agreed
upon by the parties at least twelve (12) months prior to the expiration
of the Second Term.
WSL shall pay the annual Minimum Royalty in equal quarterly
installments in accordance with the provisions of paragraph 6, less any
applicable credit for that Quarter's Running Royalty in accordance with
the provisions of paragraph 4.1 above. The annual Minimum Royalties
shall be non-refundable.
4.3 "Net Sales" Definition: "Net Sales" means the gross amounts actually
billed by or on behalf of WSL from the sale or distribution of Licensed
Products or the cost of such items to WSL, whichever is greater, after
deducting only the returns; sales, excise and value added taxes
(excluding foreign taxes exceeding 10%); and prepaid transportation
charges, if any, paid or allowed by WSL. If WSL shall invoice any
customer at a price reduced to reflect any other adjustment, including
without limitation, any adjustment for discounts or for advertising or
promotion, or, if WSL shall charge any customer a fee separate from and
not included within the price of the Licensed Products, then in
computing Net Sales the amount of such adjustment and/or fee shall be
added back to the invoice price as if such customer had been billed for
the full price that would have been charged had it not been given any
deduction and had WSL's fee been included in the price of the Licensed
Products.
4.4 Sales to Related Entities: WSL agrees that all sales of the Licensed
Products to entities under common control with WSL shall be at the price
regularly charged by WSL to its bona fide, arms length customers without
discount. For purposes of this subparagraph, the term "common control"
shall mean entities of which WSL holds more than a ten percent (10%)
ownership interest or which holds more than a ten percent (10%)
ownership interest in WSL including any foreign "DISC" corporations and
outlet stores owned by WSL at the time of execution of this Agreement.
For purposes of this Agreement, any sale of Licensed Products to foreign
"DISC" corporations or outlet stores under the common control of WSL
shall be at the highest price offered to any entity not under the common
control of WSL.
4.5 Cross-Licensing: WSL agrees that all sales of Licensed Products used
in conjunction with the sale of any other product or service entitles
Rawlings to a royalty pursuant to Paragraph 4.1. Net Sales of such
products shall be calculated as in Paragraph 4.3.
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5. ROYALTY REPORTS AND RECORDS:
5.1 Reports: WSL agrees to send Rawlings within thirty (30) days after
the end of each quarter of each Contract Year ("Contract Quarter"), a
written report on the form in Schedule II setting forth the details
required for calculation of the royalties due for that Contract Quarter.
The royalty report shall be submitted in the manner and form as may
reasonably be prescribed by Rawlings from time to time. The Contract
Quarters shall end on November 30, February 28, May 31, and August 31 of
each Contract Year.
5.2 Records: WSL agrees to keep complete and accurate copies of all
invoices and records of the data and information necessary for the
calculation of royalties payable under this Agreement, and to allow
Rawlings, at Rawlings' expense, during this Agreement and for three (3)
years thereafter to inspect and audit during reasonable business hours
upon notice to WSL and take copies of or extracts from the records, and
any invoices, receipts, papers or documents in the possession of or
under the control of WSL, including any and all distributor agreements,
which may be necessary to enable Rawlings to verify WSL's Net Sales
hereunder. WSL agrees to keep all these accounts, invoices, receipts,
papers, agreements, and documents readily available at its principal
office. If any audit shows that WSL has underpaid royalties, WSL shall
promptly pay such underpaid amount to Rawlings as well as Rawlings'
costs and expenses associated with the audit.
6. PAYMENT:
6.1 Due Date: WSL agrees to pay to Rawlings all royalties due for each
Contract Quarter on or before thirty (30) days after the last day of
each Contract Quarter.
6.2 Late Payments and Collection: Interest shall accrue at the rate of
one and one-half percent (1.5%) per month on all overdue royalties until
paid. All costs incurred by Rawlings in its efforts to collect any
earned but unpaid royalties shall be borne by WSL including, but not
limited to, court costs and reasonable attorneys' fees.
7. MISCELLANEOUS:
7.1 One-time Royalty Payment: In further consideration of the rights
granted hereunder, WSL shall pay $50,000.00 to Rawlings by September 30,
1997. WSL shall then receive a credit for $50,000.00 against the first
$50,000.00 of running royalties otherwise due for the first quarter only
of this Agreement.
8. USE OF TRADEMARKS: WSL agrees to use the Rawlings Trademarks only in the
manner prescribed by Rawlings and only in connection with such Licensed
Products as are approved by Rawlings in accordance with Paragraph 9.1,
and to apply Rawlings Trademarks to such Licensed Products or have
Rawlings Trademarks applied to Licensed Products for it in accordance
with Rawlings' approved specifications, standards and
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procedures. WSL agrees that it will not engage in any conduct with
respect to Rawlings Trademark that adversely affects Rawlings' image,
reputation and quality associated with its Trademarks. Any modernization
or alteration of the Trademarks or the non-stylized XXXXXXXX xxxx
performed after the execution of this Agreement shall be made available
for use by WSL and shall be added to Schedule I as if originally
contained herein. Rawlings shall have the right to require WSL to use
any such modernized or altered trademarks in place of the current
counterparts to ensure an unified approach to the use of the Trademarks
by Rawlings and its Licensees.
9. INSPECTION OF LICENSED GOODS:
9.1 Samples of Goods and Promotional Materials: The Trademarks shall be
applied only to high quality goods. To ensure this standard, prior to
first use, WSL shall submit to Rawlings free of charge for Rawlings'
written approval and retention, samples of all Licensed Products, and
all labels, advertising, and other materials upon which the said
Rawlings Trademarks appear; and WSL specifically undertakes to modify or
amend, prior to first use, any such Licensed Products, labels,
advertising, and other material if necessary to conform to the
specifications, standards and procedures currently approved by Rawlings.
With respect to all written approvals required by Rawlings, each item
submitted by WSL shall be deemed approved if WSL has not received the
written disapproval of Rawlings within thirty (30) days after its
receipt by Rawlings. Rawlings will not unreasonably withhold approvals
required and will set forth in writing the reasons for any such
disapproval. Rawlings reserves the right to, in its sole discretion,
reasonably establish and modify quality control standards and product
specifications for the Licensed Products and all labels, advertising,
and other materials upon which the said Rawlings Trademarks appear.
Rawlings shall notify WSL of the establishment or modification of said
standards and specifications within sixty (60) days of their
establishment.
9.2 Inspection: So long as WSL is licensed to use the Rawlings
Trademarks, Rawlings and its authorized representatives shall have the
right to inspect the Licensed Products manufactured by or for WSL and
the facilities where the Licensed Products are manufactured. Such
inspection shall be conducted so as to not unreasonably interfere with
the business of WSL. In order to facilitate such inspections, Rawlings
shall have the right to request, receive and retain without cost, from
time to time, one (1) sample of the Licensed Product manufactured by or
for WSL, in addition to those samples provided pursuant to Paragraph 9.1
above; however, such right of inspection shall not be limited to such
samples.
9.3 Notice of Non-Compliance: WSL shall accept any reasonable written
notice given by Rawlings that any Licensed Products manufactured by or
on behalf of WSL do not substantially comply with Rawlings' approved
specifications, standards and procedures, or do not substantially
conform to the samples previously approved by Rawlings in accordance
with paragraph 9.1, and WSL shall immediately cease manufacturing,
selling, distributing, advertising and promoting such Licensed Products
until WSL takes such steps
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as may be reasonably necessary to comply with these approved
specifications, standards and procedures and resubmits the Licensed
Products to Rawlings as set forth in Paragraph 9.1 and obtains the
requisite approval. Rawlings shall not be liable for any consequential
damages to WSL caused by Rawlings' notice(s) pursuant to this Paragraph.
10. TRADE SECRETS: With respect to any written or oral information which is
furnished by one party to the other and which is identified to be
"Proprietary" information of the furnishing party, the other agrees to
receive same in confidence and not use or disclose same to any third
party except to the extent permitted or required by the furnishing
party. This obligation shall continue for three (3) years following the
expiration of this Agreement but shall not apply to any information
which: (a) was already known to the receiving party prior to the
disclosure by the disclosing party hereunder without the use of any
confidential information of the disclosing party; (b) becomes known to
the receiving party from another source having a legal right to
disclose; (c) becomes part of the public domain without the fault of the
receiving party; or (d) the receiving party can prove such information
was totally independently developed. This Paragraph is binding on all
officers, directors, employees and affiliates of each party. The parties
may enforce any breach of this Paragraph by obtaining injunctive or
specific relief from a court of competent jurisdiction, without the
necessity of posting bond or proving lack of an adequate remedy at law.
Such remedy shall be cumulative and not exclusive.
11. RECOGNITION OF TRADEMARK RIGHTS: WSL recognizes Rawlings' right and
title to the Rawlings Trademarks in Schedule I and to all applications
and registrations based thereon, and the goodwill relating thereto, and
shall not at any time do or allow to be done any act or thing which will
in any way impair the right or title of Rawlings to such Trademarks or
any trademark applications or registrations based thereon. It is
understood that WSL shall not acquire and shall not claim any title to
the Trademarks because of this license or through WSL's use of the
Trademarks; and WSL will assign to Rawlings, upon request, all the
rights it may obtain in any of the Rawlings Trademarks, it being the
intention of the Parties hereto that all use of the Rawlings Trademarks
by WSL shall at all times inure to the benefit of Rawlings. WSL shall
execute any documents presented to WSL by Rawlings necessary to register
with authorities of the Territory its use of the Rawlings Trademarks and
shall furnish to Rawlings evidence of its use of the Trademarks on
request.
12. INDEMNIFICATIONS:
12.1 WSL agrees to defend, indemnify and hold harmless Rawlings, and its
subsidiaries and related companies, its agents, affiliates, and
assignees from and against all claims and actions for any loss, damage,
or expense, including attorneys' fees, sustained by Rawlings as a result
of or arising out of the manufacture, use, sale, labeling, distribution,
or advertising of the Licensed Products, except for claims and actions
arising out of claimed infringement based only on the use of the
Trademarks in compliance with this Agreement. Further, WSL shall acquire
and maintain at its sole cost and expense throughout the term
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of this Agreement liability insurance providing protection against
claims for bodily injury and property damage in an amount of not less
than one million dollars ($1,000,000.00) per occurrence and two million
dollars ($2,000,000.00) in the aggregate. Such insurance shall be
evidenced by a certificate of coverage and shall include Rawlings as an
additional insured. At Rawlings' request, WSL shall provide said
certificate from time to time.
12.2 Rawlings agrees to defend, indemnify, and hold harmless WSL, its
subsidiaries and related companies, its agents, affiliates, and
assignees against all claims and actions for any loss, damage, or
expense, including attorneys' fees, sustained by WSL as a result of, or
arising out of, any claim by third parties of infringement for use of
the Trademarks by WSL in compliance with this Agreement.
13. ASSIGNABILITY: This Agreement and all rights and duties of WSL are
personal to WSL, and are not assignable or otherwise transferable by WSL
without Rawlings' written consent. Such rights and duties hereunder may
not be mortgaged or otherwise encumbered. If Rawlings consents in
writing to such assignment or transfer, then this Agreement shall be
binding upon and inure to the benefit of the assignee or transferee.
This Agreement may be assigned by Rawlings without restriction or prior
approval.
14. TERMINATION:
14.1 Immediate Termination: Rawlings shall have the right to immediately
terminate this Agreement and the licenses herein granted upon written
notice to WSL in the event that: (a) WSL becomes or is declared bankrupt
or insolvent or files a voluntary case under the Bankruptcy Code or an
involuntary case is filed against WSL under the Bankruptcy Code; (b) WSL
seeks relief from payment of its debts through agreement by creditors or
protection of judicial proceedings; (c) any entity, including WSL or the
government of the United States or a foreign country, attempts to assign
WSL's rights and delegate WSL's duties under this Agreement to any other
entity; (d) liability insurance required by Paragraph 12 is terminated
or lapses without being replaced so as to comply with paragraph 12; (e)
WSL fails to make the full amount of a royalty payment due hereunder
(including any late fees) within sixty (60) days after its due date, or
fails to pay the aggregate Minimum Royalties as stated in Paragraph 3.2
above; (f) WSL attempts to assign its interest under this Agreement in
violation of Paragraph 13; (g) WSL violates Rawlings' standards of
quality; or (h) WSL misuses the Trademarks in violation of this
Agreement.
14.2 Change of Control: In the event there is a sale of all or
substantially all of the assets or a majority of the shares or interest
of WSL or in the event there is otherwise a change of control of WSL,
Rawlings shall have the option to terminate this Agreement by giving
written notice to WSL. The termination shall take effect ninety (90)
days after receipt by WSL of such notice.
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14.3 Breach: If either WSL or Rawlings materially breaches any
provisions of this Agreement and fails to remedy the default within
thirty (30) days after receiving written notice thereof, then the
non-breaching party will have the right to terminate this Agreement upon
giving thirty (30) days written notice to the breaching party.
Notwithstanding the foregoing, if during the term of this Agreement
either party materially breaches any provision of this Agreement more
than one (1) time, the other party shall be entitled to give a written
notice of termination which shall become effective immediately. No
waiver by either party of any terms of this Agreement or any breach
thereof will be effective unless in writing or will obligate such party
thereafter to waive the same term or any subsequent breach.
14.4 Pre-termination Negotiations: If this Agreement is not extended for
a further term, either by automatic renewal or by mutual agreement of
the parties, then, during the one hundred eighty (180) day period prior
to expiration of the Agreement, Rawlings shall be free to negotiate with
any third party to license the Rawlings Trademarks in connection with
the Licensed Products and to grant a license to any such third party
within said one hundred eighty (180) day period; and any third party
licensed by Rawlings shall be free to solicit and accept orders for the
sale of the Licensed Products and to manufacture, or have manufactured,
the Licensed Products during such period but shall not be free to sell
the Licensed Products prior to termination.
14.5 Discontinued Use of Trademarks: Except as provided in Paragraph
14.6, upon the termination or expiration of this Agreement, WSL shall
immediately discontinue any and all use in any manner whatsoever of the
Rawlings Trademarks or any colorable imitations by themselves or in
combination with any other word, symbol, or design.
14.6 Disposition of Inventory: Upon the expiration or termination of
this Agreement, WSL agrees to offer Rawlings its existing inventory of
Licensed Products as of the date of expiration or termination at WSL's
landed cost plus ten percent (10%). Landed cost is defined as the sum of
the cost of goods, freight and any duties. Rawlings shall have the right
to determine within ninety (90) days after the expiration date or notice
of termination, as applicable, whether or not it will exercise its right
to purchase WSL's existing inventory of Licensed Products.
Notwithstanding the expiration or termination of this Agreement, WSL may
simultaneously continue to sell the inventory of Licensed Products in
the Territory until the earlier of: (1) the date on which WSL receives
from Rawlings a written notice to the effect that Rawlings determines to
purchase WSL then remaining uncommitted existing inventory of Licensed
Products, or (2) the expiration of the continuous period of one hundred
eighty (180) days from the date of expiration or termination subject to
the payment by WSL to Rawlings of the running royalty percentage rate
specified in subparagraph 4.1 hereof.
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15. USE OF RAWLINGS' NAME AND ITS TRADEMARKS
15.1 No Use Of Rawlings' Name: WSL is expressly prohibited from using
the name Rawlings in any capacity as its own corporate name. WSL may use
the name "Rawlings" as a d/b/a in the United States of America.
15.2 Use of Trademarks in Corporate Name: It is further agreed that WSL
shall not include any of the Rawlings Trademarks in any corporate or
business name at any time, unless authorized to do so in writing by
Rawlings. If Rawlings authorizes the use of any of the Trademarks in any
corporate or business name by WSL, immediately upon the termination of
this Agreement, WSL will promptly amend said corporate or business name
to remove any Rawlings Trademarks and will promptly file the necessary
amendment papers with the appropriate authorities to correct the
corporate or other records to remove all references to the Rawlings
Trademarks involved.
16. INFRINGEMENTS: Rawlings will use commercially reasonable efforts to
enforce its Trademarks against infringers of which it has knowledge.
WSL, however, shall not be entitled to call upon Rawlings to take any
action or institute any proceedings to prevent infringement or passing
off by third parties, nor shall WSL itself be entitled on its own
account to take any such action or institute any such proceedings
without the receipt of prior written approval from Rawlings. WSL shall
promptly notify Rawlings of any infringement or passing off in
connection with the Licensed Products which comes to its attention, and
subsequent actions or proceedings of any nature on these matters shall
be entirely within the discretion of Rawlings. Rawlings may call upon
WSL, under supervision from and at the cost and expense of Rawlings, to
prosecute the infringing or tortious conduct related to the Licensed
Products; but such supervision shall be limited to control over the
continuing validity and vitality of the Trademarks. WSL hereby agrees to
render to Rawlings free of charge all (other than the reimbursement of
actual costs incurred by WSL) business assistance in connection with any
matter pertaining to the protection of the Trademarks of Rawlings
related to the Licensed Product whether within the courts,
administrative agencies, or otherwise.
17. GOVERNMENT STANDARDS COMPLIANCE: WSL warrants and agrees that the
Licensed Products shall meet or exceed all national or local laws,
statutes, standards, regulations and guidelines pertaining to such
products, including, but not limited to, those relating to health and
product safety.
18. JOINT VENTURE: Nothing contained in this Agreement shall be construed to
place the parties in the relationship of partners or joint venturers, it
being agreed and understood that WSL is an independent contractor and is
not an employee or agent of Rawlings. WSL shall not have the power to
obligate or bind Rawlings to any obligation to any third party and
Rawlings shall not have the power to obligate or bind WSL to any
obligation of any third party. WSL will not take any action that would
cause Rawlings to be deemed to have a permanent establishment in any
foreign country.
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19. FORCE MAJEURE: Any delays in or failure by either party thereto in the
performance of any obligations hereunder shall be excused if and to the
extent caused by occurrences including, but not limited to, Acts of God,
strikes or other labor disturbances, war, whether declared or not,
sabotage, and any other cause or causes, whether similar or dissimilar
to those herein specified, which cannot reasonably be controlled by such
party.
20. AUTHORITY: Rawlings and WSL each warrants that it has the full and sole
power, right and authority to enter into this Agreement, that this
Agreement has been duly and validly authorized and executed by it and
that this Agreement is the valid and binding obligation of such party.
21. COUNTERPARTS: This Agreement may be executed in identical counterparts,
each of which shall have the force and effect of an original.
22. COMPLETE AGREEMENT: This Agreement contains the complete understanding
between Rawlings and WSL and supersedes all previous understandings and
representations regarding the subject matter hereof and may not be
varied, modified or amended except by written agreement signed by both
parties.
23. SEVERABILITY: In the event that any portion(s) of this Agreement are
adjudged invalid or unenforceable, then the surviving portion(s) of this
Agreement shall constitute the Agreement, unless such surviving
portion(s) fail to retain the essential understanding between the
parties, whereupon this Agreement shall be terminated by mutual consent
of the parties.
24. NOTICES: Except as otherwise provided herein, any notices provided in
this Agreement shall be given by hand delivery or nationally recognized
overnight courier and will be deemed to be delivered when delivered by
hand or when properly addressed and posted to the other party at the
applicable address set forth below, such address being subject to change
upon written notice by either party to the other:
If to WSL: Xx. Xxxxxx X. Xxxx
WSL, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
If to Rawlings: Xx. Xxxxx Xxxxxxx
Director of Licensing
Rawlings Sporting Goods Company, Inc.
X.X. Xxx 00000
0000 Xxxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
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25. APPLICABLE LAW: This Agreement will be construed and interpreted in
accordance with the laws of the State of Missouri.
26. DISPUTES: The prevailing party to any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, shall be
entitled to recover from the other its reasonable attorneys' fees and
costs.
27. RESCISSION OF PRIOR AGREEMENT: Upon the receipt by Rawlings of
$58,333.00 due under the Prior Agreement, which constitutes the minimum
royalties due for July and August, 1997, and the satisfaction of all
other obligations of WSL under the Prior Agreement on or before
September 1, 1997, the Prior Agreement shall be rescinded and canceled
effective September 1, 1997, and this Agreement substituted therefor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date written below.
RAWLINGS SPORTING GOODS COMPANY, INC.
By: /s/ XXXX XXXXXX
-----------------------------------------
Xxxx Xxxxxx, Chief Financial Officer
Date: 9-24-97
WSL, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
Date: 9-16-97
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