Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the
14th day of May, 2001 (the "Effective Date"), by and between Callaway Golf
Company, a Delaware corporation, ("Callaway Golf") and Xxxxxxxx, Inc., a
Delaware corporation ("Xxxxxxxx").
RECITALS
X. Xxxxxxxx Golf desires to xxxxx Xxxxxxxx, and Xxxxxxxx wishes
to receive, exclusive and non-exclusive licenses to use certain of Callaway
Golf's trademarks (as described below) to develop, produce and market certain
products pursuant to this Agreement.
X. Xxxxxxxx Golf has used or has an intent to use the trademark
"Callaway Golf" and the trademarks described in Exhibit A attached hereto and
made a part hereof, and those additional existing and future trademarks approved
for Xxxxxxxx'x use by Callaway Golf in writing from time to time, which approval
shall not be unreasonably withheld, delayed or conditioned (collectively, the
"Trademarks"). Specific marks may be deleted for specific products or in
specific countries or territories from Exhibit A if Callaway Golf discontinues
the marketing of substantially all products associated therewith or if and to
the extent a claim or lawsuit is asserted or instituted against Callaway Golf,
and Xxxxxxxx is notified of such deletion in writing.
X. Xxxxxxxx wishes to use the Trademarks on certain products that
meet quality control standards acceptable to Callaway Golf, to be sold and
marketed by Xxxxxxxx within the territory identified in Exhibit B (the
"Territory") to or through (i) retail booths that are managed or supplied by
Xxxxxxxx at invitational or charity golf tournaments ("Retail Tournament
Venues"); (ii) on- and off-course golf specialty shops, men's and women's golf
specialty stores, and other similar golf specialty stores which specifically
target consumers of golf-related products ("Golf Stores"); (iii) premium
department stores as further described in Section 1(o) ("Premium Department
Stores"); (iv) corporate logo programs, incentive programs and promotional event
sales (in each case either directly by Xxxxxxxx or through promotional products
firms); (v) Xxxxxxxx'x Internet site(s) solely for sales to retailers and/or to
corporate customers but not for sales to consumers; (vi) Xxxxxxxx outlet stores
("Xxxxxxxx Stores"); and (vii) other stores as approved in writing by Callaway
Golf, in its sole and absolute discretion ("Other Third-Party Stores").
(Subsections (i) through (vii) are each an "Authorized Distribution Channel" and
are collectively the "Authorized Distribution Channels"). If Xxxxxxxx and
Xxxxxxxx Golf agree, an entity within an Authorized Distribution Channel may
itself place Licensed Products on Internet sites for consumer and other sales.
1
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
X. Xxxxxxxx Golf has previously entered into a license (the
"Third-Party License") with a third-party licensee (the "Third-Party Licensee")
to allow the Third-Party Licensee to use certain of the Trademarks and market
certain of the Licensed Products (as defined below) within the United States of
America and its territories and possessions (the "U.S. Territory"). Callaway
Golf represents and warrants to Xxxxxxxx that (i) all of the Third-Party
Licensee's licenses under the Third-Party License shall terminate on December
31, 2001, except for limited, non-exclusive licenses to use the Trademarks with
respect to the sale within the U.S. Territory of any remaining inventory of the
Licensed Products, all of which licenses shall terminate on or prior to December
31, 2002 (the "Non-Exclusive Sell-Through Licenses"), and (ii) that Xxxxxxxx'x
exercise of the licenses and rights granted herein will not in any manner
violate the Third Party Licensee's rights under any agreement between Callaway
Golf and the Third-Party Licensee. The licenses granted herein to Xxxxxxxx that
are listed as exclusive shall be subject to the Third Party License until
December 31, 2001 and the Non-Exclusive Sell-Through Licenses until December 31,
2002. Beginning on January 1, 2003, continuing for the term of this Agreement
and except as otherwise specifically set forth herein, the licenses granted to
Xxxxxxxx herein that are listed as exclusive shall be exclusive in the Territory
as to all parties, persons and entities.
X. Xxxxxxxx Golf is willing to license and allow Xxxxxxxx to use
the Trademarks under the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing recitals which are hereby
incorporated by reference herein, the covenants hereinafter set forth, and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. GRANT OF TRADEMARK LICENSES.
a. For the term of this Agreement, subject to the Third-Party
License and the Non-Exclusive Sell-Through Licenses of the Third-Party Licensee,
subject to the other terms and conditions of this Agreement, including, but not
limited to those found in Section 2(i), and except as otherwise specifically
provided herein, Callaway Golf hereby grants to Xxxxxxxx an exclusive in the
Territory, non-transferable (except for sublicensing rights as provided in
Section 5 hereof), non-assignable, terminable (in accordance with Section 9
hereof), royalty-bearing right and license to use the Trademarks solely in
connection with designing, sourcing, receiving orders for, manufacturing and
otherwise preparing to sell (but not to sell, which is the subject of a separate
grant below) the products (for both men and women) listed on Exhibit C-1
(collectively, the "Exclusive Products") only in the Authorized Distribution
Channels throughout the Territory; provided, however, that sourcing and
manufacturing may be conducted anywhere in the world.
b. Beginning on January 1, 2002 and continuing for the remainder
of the term of this Agreement and through any Sell-Off Period (as hereinafter
defined), subject to the Third-Party
2
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
License and the Non-Exclusive Sell-Through Licenses of the Third-Party Licensee
and subject to the other terms and conditions of this Agreement, including, but
not limited to those found in Section 2(i), and except as otherwise specifically
provided herein, Callaway Golf hereby grants to Xxxxxxxx an exclusive in the
Territory, non-transferable (except for sublicensing rights as provided in
Section 5 hereof), non-assignable, terminable (in accordance with Section 9
hereof), royalty-bearing right and license to use the Trademarks in connection
with selling, advertising, marketing, promoting, shipping and distributing the
Exclusive Products only in the Authorized Distribution Channels throughout the
Territory.
c. For the term of this Agreement and subject to the other terms
and conditions of this Agreement, Callaway Golf hereby grants to Xxxxxxxx a
non-exclusive, non-transferable (except for sublicensing rights as provided in
Section 5 hereof), non-assignable, terminable (in accordance with Section 1(e)
and Section 9 hereof), royalty-bearing right and license to use the Trademarks
solely in connection with designing, sourcing, receiving orders for,
manufacturing and otherwise preparing to sell (but not to sell, which is the
subject of a separate grant below) the products (for both men and women) listed
on Exhibit C-2 (collectively, the "Non-Exclusive Products") only in the
Authorized Distribution Channels throughout the Territory; provided, however,
that sourcing and manufacturing may be conducted anywhere in the world.
d. Beginning on January 1, 2002 and continuing for the remainder
of the term of this Agreement and through any Sell-Off Period, subject to the
other terms and conditions of this Agreement, and except as otherwise provided
herein, Callaway Golf hereby grants to Xxxxxxxx a non-exclusive,
non-transferable (except for sublicensing rights as provided in Section 5
hereof), non-assignable, terminable (in accordance with Section 1(e) and Section
9 hereof), royalty-bearing right and license to use the Trademarks in connection
with selling, advertising, marketing, promoting, shipping and distributing the
Non-Exclusive Products only in the Authorized Distribution Channels throughout
the Territory.
e. The licenses granted in Section 1(c) and 1(d) may be
terminated in whole or in part by Callaway Golf upon six (6) months written
notice to Xxxxxxxx if Xxxxxxxx Golf wishes to grant an exclusive license for a
Non-Exclusive Product; provided Xxxxxxxx is given the right of first opportunity
to become the exclusive licensee of such Non-Exclusive Products. If, at any time
during the term of this Agreement, Callaway Golf desires to terminate the
licenses granted in Section 1(c) and 1(d), Callaway Golf shall give written
notice to Xxxxxxxx, which notice shall include the contemplated material terms
and conditions of the proposed exclusive license (the "First Opportunity
Notice"), and Callaway Golf shall negotiate with Xxxxxxxx in good faith as to an
exclusive license of such Non-Exclusive Products in accordance with such terms
and conditions. If, within thirty (30) calendar days after Xxxxxxxx'x receipt of
the First Opportunity Notice, Xxxxxxxx and Xxxxxxxx Golf are unable to agree on
mutually acceptable terms and conditions for an exclusive license, then Xxxxxxxx
shall be entitled to a Non-Exclusive Sell-Off Period (as defined below) after
which Callaway Golf may exclusively use and/or exclusively
3
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
license others to use the Trademarks on such Non-Exclusive Products which are
the subject of the license termination if, but only if, the material terms and
conditions offered and provided to any third-party licensee are no more
favorable to the third party than those offered to Xxxxxxxx in the First
Opportunity Notice or in negotiations occurring during the thirty (30) calendar
day period. Xxxxxxxx shall promptly notify all suppliers to cease manufacturing
the relevant Licensed Products upon termination of the non-exclusive license. If
a terminated Licensed Product is in the process of being made at the time of
such notice, it may be completed and shipped as ordered by Xxxxxxxx pursuant to
this Agreement. As provided two sentences above, Xxxxxxxx shall have a
Non-Exclusive Sell-Off Period (as defined below), where Xxxxxxxx shall continue
to comply with the terms and conditions of this Agreement with respect to the
terminated Non-Exclusive Products, specifically including without limitation the
payment of royalties with regard to the sale of such products and Section 2(f),
and shall use commercially reasonable efforts to sell any remaining
Non-Exclusive Product inventory. For purposes of this Agreement, the
"Non-Exclusive Product Sell-Off Period" shall mean (with respect to a terminated
Non-Exclusive Product) a period, which shall equal twelve (12) months in
duration, after expiration of the six (6) month period referred to above.
Notwithstanding anything to the contrary contained herein, Xxxxxxxx shall cease
all sales and deliveries of the terminated Non-Exclusive Products after
expiration of the Non-Exclusive Product Sell-Off Period. Election of the rights
in this section does not constitute a breach of the Agreement entitling Callaway
Golf to claim any damages.
f. At any time after the expiration of the Non-Exclusive Product
Sell-Off Period, Callaway Golf, in its sole and absolute discretion, may
purchase some or all of the Non-Exclusive Products then remaining in Xxxxxxxx'x
possession (the "Terminated Non-Exclusive Product Residual Inventory") at
Xxxxxxxx'x "Landed Cost" (as defined in Section 9) plus the amount actually paid
by Xxxxxxxx to a third party carrier approved by Callaway Golf to ship the
purchased Terminated Non-Exclusive Product Residual Inventory from Xxxxxxxx to
Xxxxxxxx Golf, including the costs of all insurance, taxes and the like. At its
option, Callaway Golf may make its own arrangements for the shipment of the
purchased Terminated Non-Exclusive Product Residual Inventory at its sole cost
and expense. To enable Callaway Golf to determine whether to purchase any or all
of the Terminated Non-Exclusive Product Residual Inventory, Xxxxxxxx shall
provide to Callaway Golf within twenty (20) days of the expiration of the
Non-Exclusive Product Sell-Off Period a list of such Terminated Non-Exclusive
Product Residual Inventory in such detail as Callaway Golf shall reasonably
request. Callaway Golf shall be required to pay the purchase price for such
purchased Terminated Non-Exclusive Product Residual Inventory within thirty (30)
days of the date of delivery to Callaway Golf of the purchased Terminated
Non-Exclusive Product Residual Inventory, and Callaway Golf shall not be
entitled to offset against such purchase price amounts, if any, claimed by
Callaway Golf against Xxxxxxxx. Any purchased Terminated Non-Exclusive Product
Residual Inventory delivered to Callaway Golf in damaged or otherwise
unacceptable condition may be returned to
4
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
Xxxxxxxx at Xxxxxxxx'x expense and Callaway Golf shall be entitled to a refund
for such returned inventory. Xxxxxxxx shall destroy any and all unpurchased
Terminated Non-Exclusive Product Residual Inventory sixty (60) days after the
expiration of the Non-Exclusive Product Residual Sell-Off Period.
g. The parties specifically acknowledge and agree that on the
Effective Date Xxxxxxxx may properly begin designing, sourcing, receiving orders
in Xxxxxxxx'x ordinary course of business for, manufacturing and otherwise
preparing to sell the Exclusive Products and Non-Exclusive Products
(collectively, the "Licensed Products") including marketing, advertising and
promoting on a non-retail basis, which would include, by way of example, press
releases regarding any new license agreement and advertising in trade journals,
but Xxxxxxxx (i) has no right to transfer title to the Licensed Products until
January 1, 2002, and (ii) all advertising, marketing and promotion efforts prior
to January 1, 2002 are to be focused upon and directed at Xxxxxxxx'x prospective
wholesale customers for the Licensed Products as opposed to the ultimate retail
customers for the Licensed Products.
h. The foregoing notwithstanding, Callaway Golf reserves the
right to use and/or license others to use the Trademarks on any Licensed
Products solely for end-user sales to Callaway Golf employees and on-site,
individual guests of Callaway Golf at its company store(s) ("Company Store
Licensed Products"); provided Xxxxxxxx is given the right of first opportunity
to act as the exclusive supplier of such Company Store Licensed Products. If, at
any time during the term of this Agreement which is after January 1, 2002,
Callaway Golf desires to use and/or license others to use the Trademarks on
Company Store Licensed Products, Callaway Golf shall give written notice, which
notice shall include the contemplated terms and conditions of the proposed
supply agreement/order (the "Store Opportunity Notice"), and Callaway Golf
agrees to negotiate with Xxxxxxxx in good faith for appointment of Xxxxxxxx as
the exclusive supplier of such Company Store Licensed Products in accordance
with such terms and conditions. If, within forty-eight (48) hours after
Xxxxxxxx'x receipt of the Store Opportunity Notice, Xxxxxxxx and Callaway Golf
are unable to agree on mutually acceptable terms and conditions for the
appointment of Xxxxxxxx as the supplier, then Xxxxxxxx'x rights and Callaway
Golf's obligations under this section shall terminate and Callaway Golf may use
and/or license others to use the Trademarks on such Company Store Licensed
Products if, but only if, the material terms and conditions offered and provided
to any third-party supplier are no more favorable to the supplier than those
offered to Xxxxxxxx in the Store Opportunity Notice.
i. Except as otherwise provided in Section 1(i), Xxxxxxxx shall
not use "Xxxxxxxx," or any other Xxxxxxxx or Xxxxxxxx subsidiaries trademarks,
service marks or trade names or any other trademarks, service marks or trade
names (collectively, the "Xxxxxxxx Marks") in conjunction with the Trademarks or
the Licensed Products bearing the Trademarks. Each Licensed Product must use one
or more of the Trademarks listed on Exhibit A or subsequently approved by
Callaway Golf for Xxxxxxxx'x use. Except as otherwise provided in this
5
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
Agreement, any other xxxx proposed for use with the Licensed Products must be
submitted to Callaway Golf for its prior review and written approval; such
written approval or disapproval by Callaway Golf in its sole discretion shall
not be unreasonably delayed. Any notice of disapproval by Callaway Golf shall be
in writing and shall specify in reasonable detail the reason(s) for disapproval.
j. Without the prior approval of Callaway Golf, Xxxxxxxx may use
customer logos (other than Xxxxxxxx'x logo) in conjunction with the Licensed
Products bearing the Trademarks provided that such logos are of the same high
standards of quality that Xxxxxxxx would use on Xxxxxxxx products. By way of
example and not by way of limitation, the Trademarks shall not be used in
conjunction with corporate logos on uniforms. Xxxxxxxx shall not use the
Trademarks in conjunction with any logo that promotes, depicts or is otherwise
associated with any product or service that: (a) is illegal or contrary to
community standards of decency or is politically or socially controversial, or
(b) is related to pornographic products or personal hygiene products associated
with sexuality. Xxxxxxxx shall not use the Trademark in conjunction with any
logo where the use of such logo would likely have a material negative effect on
the image and reputation of Callaway Golf.
k. Except as is otherwise set forth herein, Xxxxxxxx shall not
use the Trademarks in connection with designing, sourcing, manufacturing,
advertising, promoting, distributing or selling any product or service,
directly, indirectly or in any other manner, other than the Licensed Products.
Except for such licenses and rights as are specifically granted in or pursuant
to this Agreement, Xxxxxxxx shall have no rights, express or implied, in the
Trademarks, any other patent, trademark, service xxxx, copyright, trade dress or
any goodwill derived from or associated therewith or any other intellectual
property rights of Callaway Golf.
l. Except as specifically set forth in Section 5 hereof, this
Agreement does not confer upon Xxxxxxxx a right to sublicense, assign, or
transfer any of the contractual rights or licenses granted to Xxxxxxxx under
this Agreement without Callaway Golf's prior written consent.
x. Xxxxxxxx shall establish and maintain on its primary website
located at xxxx://xxx.xxxxxxxxxxx.xxx (or any replacement or successor site) a
section titled "Callaway Golf Apparel", or such other title as Callaway Golf
approves, which approval shall not be unreasonably withheld, delayed or
conditioned. The contents of such website section must be approved in advance in
writing by Callaway Golf, which approval shall not be unreasonably withheld,
delayed or conditioned. In such website section, Xxxxxxxx shall provide at least
one direct link to such pages of Callaway Golf's website located at
xxxx://xxx.xxxxxxxxxxxx.xxx (or any replacement or successor site) as may be
requested by Callaway Golf from time to time. Xxxxxxxx shall use commercially
reasonable efforts to ensure its website is in good working order and available
to the public twenty-four (24) hours per day, seven (7) days per week during
6
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
the term of this Agreement. In addition, Xxxxxxxx hereby consents to Callaway
Golf providing a link(s) on its website linking directly to the Callaway Golf
section of Xxxxxxxx'x website.
n. As further described in Recital D above, the licenses and
rights granted in Sections 1(a) and 1(b) shall be exclusive as to all parties,
persons and entities other than the Third-Party Licensee until December 31,
2002. Beginning on January 1, 2003 and continuing for the term of this
Agreement, except as otherwise provided herein the licenses and rights granted
in Sections 1(a) and 1(b) shall be exclusive as to all parties, persons and
entities including the Third-Party Licensee.
o. When selling Licensed Products to Premium Department Stores,
Xxxxxxxx shall only sell to high-end, premium department stores. Premium
Department Stores shall include, by way of example and not by way of limitation,
those stores listed on Exhibit D-1. Under no circumstances will Xxxxxxxx sell
Licensed Products to low-end, discount department stores including, by way of
example and not by way of limitation, those stores listed on Exhibit D-2.
x. Xxxxxxxx Golf reserves the right to use and/or license others
to use the Trademarks on any products not specifically listed as Exclusive
Products herein.
x. Xxxxxxxx agrees not to sell products bearing the Trademarks
(excluding the "Callaway Golf" xxxx) in any country in the Territory unless and
until such correlating trademark application has matured into a registration.
Breach of this specific provision shall not be deemed a breach of this Agreement
unless Xxxxxxxx fails to cease selling such products within thirty (30) calendar
days of Callaway Golf's written notice that such breach has occurred.
2. MERCHANDISING AND DISTRIBUTION.
a. Beginning on the Effective Date of this Agreement and
continuing for the remainder of the term of this Agreement, Xxxxxxxx shall
exercise commercially reasonable efforts to market and promote the Licensed
Products within the Authorized Distribution Channels in accordance with the
terms of this Agreement. Beginning on January 1, 2002 and continuing for the
remainder of the term of this Agreement, Xxxxxxxx shall exercise commercially
reasonable efforts to sell the Licensed Products within the Authorized
Distribution Channels in accordance with the terms of this Agreement. Other than
the Xxxxxxxx apparel line, the Callaway Golf apparel line shall be Xxxxxxxx'x
sole licensed brand for golf and golf lifestyle inspired products and apparel
("Golf-Related Products") designed, sourced, advertised, promoted, distributed
or sold by Xxxxxxxx within the Authorized Distribution Channels in the
Territory. Moreover, Xxxxxxxx shall only design, source, advertise, promote,
sell or distribute golf products or Golf-Related Products in the Territory other
than those bearing the Callaway Golf Trademarks if such golf products or
Golf-Related Products solely bear one or more Xxxxxxxx Marks or "Golfman" design
xxxx. During the term of this Agreement, Xxxxxxxx shall
7
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
not, directly or indirectly, through itself or third parties, design, source,
advertise, promote, manufacture, distribute or sell any product bearing or
associated with, the trademark, logo or service xxxx of a company other than
Callaway Golf or Xxxxxxxx (including any subsidiaries thereof) which produces or
sells any golf products or Golf-Related Products of any nature whatsoever,
anywhere in the Territory.
b. Except as otherwise provided herein, Xxxxxxxx agrees not to
sell or distribute, and shall use commercially reasonable efforts (including, if
necessary, termination of such relationship) in preventing its sublicensees,
subcontractors, vendors or affiliates from selling or distributing, the Licensed
Products outside the Authorized Distribution Channels.
c. Except as otherwise expressly provided herein, Xxxxxxxx shall
not sell or distribute the Licensed Products or use the Trademarks for purposes
of advertising, marketing or promotion (as opposed, for example, to sourcing)
outside the Territory. Callaway Golf and Xxxxxxxx acknowledge that, due to
standard circulation of certain newspapers and magazines and the reach of
television, radio and the Internet, advertisements for sale of the Licensed
Products may be distributed outside the Territory and the parties agree that
such form of extra-territorial advertising shall not be a breach of this
Agreement. In addition, Callaway Golf and Xxxxxxxx agree that neither (i) the
fulfillment of unsolicited orders from outside the Territory if such fulfillment
is undertaken with Callaway's prior written consent, nor (ii) the shipment by a
customer within the Territory to affiliates or employees outside the Territory
(e.g., a U.S. corporation's shipment of Licensed Products to its employees in
Asia) will not constitute a breach of this Agreement. Notwithstanding the
foregoing, Xxxxxxxx shall not specifically target customers outside of the
Territory.
d. For the period between January 1, 2002 and July 31, 2002,
Xxxxxxxx shall use commercially reasonable efforts to provide and maintain a
sales force consisting of at least (i) an aggregate of fifteen (15) sales
representatives for the United States; (ii) an aggregate of two (2) sales
representatives for Europe; and (iii) an aggregate of two (2) sales
representatives for Canada. By August 1, 2002 and continuing for the remainder
of the term of this Agreement, Xxxxxxxx shall use commercially reasonable
efforts to maintain a sales force consisting of at least: (i) thirty (30) sales
representatives for the United States; (ii) four (4) sales representatives for
Europe; and (iii) four (4) sales representatives for Canada. For purposes of
this section, "Europe" shall mean those countries listed under the heading
Europe of Exhibit B. Sales representatives as required herein must be full-time
employees of Xxxxxxxx who act as exclusive sales representatives and whose sole
duties are those relating directly to selling, marketing, promoting, advertising
and distributing the Licensed Products bearing the Trademarks pursuant to this
Agreement. Notwithstanding anything to the contrary contained herein, Xxxxxxxx
may employ independent sales representatives who are not employees of Xxxxxxxx
to sell the Licensed Products as long as at least fifteen (15) sales
representatives are full-time employees of Xxxxxxxx by July 1, 2003 and at least
thirty (30) sales representatives are full-time employees of
8
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
Xxxxxxxx by July 1, 2004; provided, however, that if Xxxxxxxx utilizes
independent sales representatives for sale of the Licensed Products, the
independent sales representatives must not concurrently promote golf balls, golf
clubs, golf bags or competing products.
e. By January 1, 2003 and continuing for the remainder of the
term of this Agreement, Xxxxxxxx shall use commercially reasonable efforts to
employ and maintain such additional sales representatives as described herein:
(i) one (1) sales representative for New Zealand and Australia and (ii) one (1)
sales representative for the country of South Africa. Sales representatives as
required in this Section must be full-time employees of Xxxxxxxx who act as
exclusive sales representatives and whose sole duties are those relating
directly to selling, marketing, promoting, advertising and distributing the
Licensed Products bearing the Trademarks pursuant to this Agreement.
x. Xxxxxxxx shall not sell any Licensed Products to Xxxxxxxx
Stores or Other Third-Party Stores until the season for which the Licensed
Products were intended has ended without the express written consent of Callaway
Golf, which consent shall not be unreasonably withheld, delayed or conditioned.
The parties acknowledge that each season lasts approximately six (6) months from
the date a Licensed Product is first shipped into any of the Authorized
Distribution Channels. In no event may Xxxxxxxx sell the Licensed Products as
"loss leaders" to promote the sale of other Xxxxxxxx products.
x. Xxxxxxxx shall sell Licensed Products to Callaway Golf at the
most favorable prices and terms it sells Licensed Products to the Authorized
Distribution Channels other than the Xxxxxxxx Stores or Other Third-Party Stores
(or to the Xxxxxxxx Stores or Other Third-Party Stores with respect to old, out
of season Licensed Products) ("Most Favored Price"), but during the term of this
Agreement Callaway Golf shall not directly or indirectly resell the Licensed
Products into the Authorized Distribution Channels within the Territory, except
to end-user retail customers through its Company stores.
x. Xxxxxxxx shall establish a toll-free number for Callaway Golf
apparel sales and customer service (the "Callaway Customer Service Line") by
January 1, 2002.
x. Xxxxxxxx may use Callaway Golf professional athletes and
celebrities as approved in advance by Callaway Golf for print ads, points of
purchase and other in-store signage only pursuant to the terms of a separate,
signed written agreement by Callaway Golf, Xxxxxxxx and the Callaway Golf
athlete or celebrity Xxxxxxxx wishes to use. Nothing contained herein shall make
it mandatory for Callaway Golf or an athlete or celebrity to execute such an
agreement, nor shall any such agreement result in any monetary cost to Callaway
Golf. Callaway Golf agrees to provide Xxxxxxxx, upon request, with all relevant
facts as to Callaway Golf's athletes and celebrities and their availability for
promotion of the Licensed Products, provided Callaway Golf has such facts within
its possession (or readily available to it without
9
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
undue expense or effort) and only to the extent Callaway Golf is permitted to do
so under any third-party agreements. Notwithstanding the foregoing, Callaway
Golf expressly reserves the right to use and/or license others to use the
Trademarks on any Licensed Products for use by professional athletes and
celebrities; provided, however, that during the term of this Agreement, if new
opportunities to contract with celebrities and/or professionals for use and/or
promotion of the Trademarks on the Licensed Products arise, Callaway Golf shall
endeavor to include Xxxxxxxx in those negotiations where reasonable.
x. Xxxxxxxx shall spend, at a minimum, the amounts set forth in
Exhibit E attached hereto and incorporated herein, on advertising and promotion
of the Licensed Products. The required advertising expenditures listed on
Exhibit E are measured as a percentage of Net Sales (as defined in Exhibit F-1).
To the extent Net Sales are not calculated until after a particular calendar
year has closed and/or actual Net Sales exceed Xxxxxxxx'x targeted Net Sales for
a given year, any additional required expenditures shall be added to Xxxxxxxx'x
required advertising expenditures for the following calendar year, but shall be
incurred within 150 days of the new calendar year. Such expenditures may
include, without limitation, amounts paid to a third party associated with any
of the following: (i) the production of workbooks for sales representatives;
(ii) fixtures; (iii) image brochures; (iv) fixtures and freight for point of
purchase materials; (v) trade publications; (vi) trade-show and sales meeting
expenses, including booth rental fees; (vii) personal appearances; (viii) all
printed, television, radio and Internet advertising; and (ix) other actions
associated with the advertising and promotion of the Licensed Products as such
other actions may be approved by Callaway Golf in writing, which approval shall
not be unreasonably withheld, delayed or conditioned. No amount of Xxxxxxxx'x
general or administrative charges or overhead shall be included as part of the
required advertising expenditures. Within sixty (60) days of the end of each
calendar year during the term of this Agreement, Xxxxxxxx shall send Callaway
Golf a report itemizing expenses incurred in the advertising and promotion of
the Licensed Products. Failure of Xxxxxxxx to spend the required advertising and
promotion amounts shall constitute a material breach of this Agreement allowing
Callaway Golf to terminate this Agreement pursuant to Section 9(c) if the
shortfall is not spent in the following year. In this regard, it is acknowledged
and agreed that, to avoid a breach of this section, Xxxxxxxx'x expenditures
(equaling the shortfall) must be incurred within the first 150 days of the new
calendar year immediately following the year in which insufficient advertising
and promotion amounts were spent.
k. Within forty-five (45) days of the Effective Date, Xxxxxxxx
shall use commercially reasonable efforts to employ persons to fill the
following positions: (i) Director or Vice President of Merchandising and Design
for Callaway Golf; and (ii) Director or Vice President of Apparel Sales for
Callaway Golf. The persons filling the positions described herein shall report
to the President of Xxxxxxxx. Xxxxxxxx shall use commercially reasonable efforts
to ensure that the two positions described herein remain filled, during the term
of this Agreement,
10
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
by persons suitably qualified for such positions with a level of background and
experience in the industry commensurate with such positions.
3. ROYALTIES.
x. Xxxxxxxx shall pay, in U.S. Dollars, royalties to Callaway
Golf for all Net Sales (as defined in Exhibit F-1) of Licensed Products,
including sales of the Authorized Sublicensed Products by any Xxxxxxxx
sublicensee, which occur during each calendar quarter this Agreement is in
effect, including any Sell-Off Period (as hereinafter defined) and Non-Exclusive
Product Sell-Off Period, in the amounts further described on Exhibit F-1 hereto.
b. In order to induce Callaway Golf to enter into this Agreement,
Xxxxxxxx shall pay to Callaway Golf minimum annual royalties during the term of
this Agreement as follows:
(i) With respect to sales of the Licensed Products, from
the Effective Date until this Agreement is terminated, Xxxxxxxx shall
pay the difference between the minimum annual royalties (the "Minimum
Annual Royalties") set forth on Exhibit F-2 hereto and the actual
royalties paid for a given year pursuant to Exhibit F-1 hereto, if any,
with the royalty payment for the fourth quarter of the relevant
calendar year;
(ii) In the event there occurs a "Force Majeure" Event (as
defined in Section 20), during the continuation of the Force Majeure
Event the Minimum Annual Royalties shall be prorated on a monthly basis
and the Minimum Annual Royalties amount for the calendar year shall be
reduced by the amount attributable to the Force Majeure period.
c. Royalty Payments hereunder shall be made in four (4) quarterly
installments for each calendar year during the term of this Agreement. Payments
shall be made within forty-five (45) days after the calendar quarters ending
March 31, June 30, September 30 and December 31. Along with such payment,
Xxxxxxxx shall send to Callaway Golf a report summarizing Net Sales of Licensed
Products, listed in units and dollars, and categorized by: (i) each Authorized
Distribution Channel; (ii) each type of Licensed Product; (iii) giveaways and
promotions; and (iv) sales to Callaway Golf during said period; such report
shall also include the computation of the payments due to Callaway Golf for that
quarter. When submitting each royalty payment to Callaway Golf, Xxxxxxxx shall
provide a report indicating open orders for Licensed Products by month for the
next six (6) months. The parties specifically acknowledge that no assurances can
be given that open orders will not be cancelled or modified, resulting in lower
Net Sales than might otherwise be expected.
d. All payments provided for herein shall be paid to Callaway
Golf at Callaway Golf Company, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx
00000-0000, and shall be payable in U.S. Dollars. Any payments which are not
timely remitted as provided for in this section shall bear
11
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
interest at the lesser of the announced prime rate of Bank of America then in
effect plus two percent (2%) or the maximum rate allowed by law, and such
interest shall begin to accrue as of the first day when said payment was
initially due.
x. Xxxxxxxx agrees to keep accurate books of account
memorializing all transactions relating to this Agreement. Callaway Golf and its
duly authorized representatives shall have the right, after the giving of at
least five (5) days advance written notice and at all reasonable hours of the
business day (but not more than twice each calendar year), to examine all such
Licensed Products, records and all other relevant documents and materials in
Xxxxxxxx'x possession or control relating directly or indirectly to its
performance under this Agreement, in order to determine its compliance
hereunder. All such records, documents and materials shall be deemed Xxxxxxxx'x
"Proprietary Information" as defined in and for purposes of Section 6 hereof.
All records, documents and materials reasonably necessary to ascertain and
verify the computation of royalties under this Agreement shall be retained and
made available to Callaway Golf for at least eighteen (18) months after the end
of any calendar year for which royalties are due and payable; provided, however,
that if any dispute resolution pursuant to Section 3(f) identifies an
underpayment to Callaway Golf, then Xxxxxxxx shall thereafter make such records
available to Callaway Golf for at least three (3) years after the end of any
calendar year for which royalties are due and payable.
f. In the event Callaway Golf disagrees with Xxxxxxxx'x
calculation of the royalties payable hereunder and in the event Callaway Golf
and Xxxxxxxx are unable to reach a settlement thereof after diligent and good
faith discussions, then either party may institute the following dispute
resolution procedure by giving five (5) days written notice to the other party.
In that event, Xxxxxxxx shall deliver to a "Big Five" accounting firm or other
entity ("Designated Firm") mutually agreed upon by Callaway Golf and Xxxxxxxx
all of Xxxxxxxx'x books and records pertaining to its calculation of the
royalties payable which are the subject of the disagreement. The determination
and calculation of the royalties in dispute by the Designated Firm shall be
final and binding on both parties and the procedure specified in this section
shall be the parties' sole and exclusive recourse for resolving a dispute
concerning the calculation of the royalties payable hereunder. In the event the
procedure discloses an underpayment to Callaway Golf, Xxxxxxxx will forthwith
pay Callaway Golf the difference with interest thereon at the rate set forth in
Section 3(d) above and such interest shall begin to accrue as of the first day
when said underpayment(s) was originally due. In the event the Designated Firm
determines an overpayment to Callaway Golf, Callaway Golf shall forthwith pay
Xxxxxxxx for such overpayment. Callaway Golf shall pay the fees and costs of the
Designated Firm in connection with this procedure; provided, however, that in
the event the Designated Firm determines a deficiency in the disputed royalty
payments of more than three and one-half percent (3 1/2%) between the dollar
amount due Callaway Golf and the dollar amount actually paid by Xxxxxxxx, the
fees and costs of the Designated Firm shall be paid by Xxxxxxxx.
12
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
4. PRODUCT DEVELOPMENT AND QUALITY CONTROL.
x. Xxxxxxxx acknowledges that Callaway Golf has made a
substantial investment in developing golf products with high quality and design
and in developing and fostering an image and reputation of high quality, design,
prestige and integrity under the Trademarks, and that the consuming public and
industry now associate the Trademarks with products of consistently high quality
and design. It is intended by the parties that the Licensed Products will be a
high quality line of goods consistent with the existing reputations of both
Callaway Golf and Xxxxxxxx. Xxxxxxxx further acknowledges that the terms and
conditions of this Agreement, are reasonable and necessary to assure that all
Licensed Products sold under this Agreement consistently conform to high quality
and design standards.
x. Xxxxxxxx shall be responsible for the design and sourcing of
the Licensed Products. Standards adopted by Xxxxxxxx for the Licensed Products
shall be no less stringent than the standards utilized by Xxxxxxxx for other
apparel products that are sold by Xxxxxxxx. Xxxxxxxx shall set up a design
studio for Callaway Golf separate and apart from the design studio for Xxxxxxxx.
Xxxxxxxx shall from time to time solicit logo requirements and concepts from
Callaway Golf. Callaway Golf shall collaborate with Xxxxxxxx, at Xxxxxxxx'x
reasonable request, with regard to fabric, color, model and style of the
Licensed Products. Xxxxxxxx shall keep Callaway Golf reasonably informed of the
Licensed Products' design activities and shall invite Callaway Golf to
participate in the following formal seasonal product development meetings: 1)
initial concept and line direction meeting; 2) design review meeting; and 3)
final adoption meeting. Xxxxxxxx shall also collaborate with Callaway Golf by
inviting Callaway Golf to participate in other meetings as appropriate and/or as
reasonably requested by Callaway Golf from time to time.
c. In the development of the Licensed Products, and prior to
Xxxxxxxx sourcing, marketing, manufacturing or distributing any Licensed
Product, Xxxxxxxx shall submit a sample of the Licensed Product, including
component, logo and color direction (a "Product Submission") to Callaway Golf
for Callaway Golf's prior written approval and consent. All such samples become
the property of Callaway Golf. Any completed Product Submission submitted shall
show how the Trademark will be applied and how it will look.
x. Xxxxxxxx Golf shall have ten (10) calendar days following its
receipt of a new Product Submission within which to approve or disapprove (in
the good faith exercise of its sole and absolute discretion) such Product
Submission, including without limitation the form and appearance of the
Trademarks on the Product Submission. Callaway Golf's approval or disapproval
shall not be unreasonably delayed. Any notice of disapproval by Callaway Golf
shall specify in reasonable detail the reason(s) for disapproval.
13
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
x. Xxxxxxxx represents and warrants that the Licensed Products
shall conform in all material respects to the specifications, data, samples
and/or other information furnished to Callaway Golf and, without limiting the
foregoing, that the Licensed Products shall be merchantable, of good material
and workmanship, and free from any material defects. Xxxxxxxx shall not sell any
Licensed Product bearing a Trademark that materially differs from the sample
previously approved by Callaway Golf without obtaining Callaway Golf's prior
written approval.
x. Xxxxxxxx Golf shall have the right at any time, upon five (5)
days advance notice in the case of Xxxxxxxx and upon ten (10) days advance
notice in the case of Xxxxxxxx'x suppliers or subcontractors, to conduct during
regular business hours an examination, at Xxxxxxxx'x facilities or the
facilities of Xxxxxxxx'x suppliers or subcontractors, of the Licensed Products
to be sold by Xxxxxxxx to determine whether the Licensed Products conform in all
material respects to the samples of the Licensed Products approved by Callaway
Golf and Xxxxxxxx'x compliance with the terms of this Agreement.
g. If at any time during the term of this Agreement the Licensed
Products shall fail to conform in any material respect to the consistent
standards of quality in materials, design, workmanship, use, advertising, and
promotion approved by Callaway Golf, Callaway Golf or its authorized
representative shall so notify Xxxxxxxx in writing, specifying the nature of the
quality problems. Upon such notification Xxxxxxxx shall promptly cease to use
the Trademarks on such deficient Licensed Products and shall not sell such
nonconforming products until the standards of quality have been met to the
reasonable satisfaction of Callaway Golf.
5. SUBLICENSING.
a. Without prior approval of Callaway Golf, Xxxxxxxx may xxxxx a
limited sublicense to a reputable supplier(s) for the sole purpose of permitting
such supplier to manufacture Licensed Products bearing the Trademarks for sale
by such supplier to Xxxxxxxx, provided such supplier enters into, and agrees to
the terms of, a Supplier Limited Trademark Sublicense Agreement, mutually agreed
upon by Callaway Golf and Xxxxxxxx, or an agreement which contains substantively
comparable language.
b. Only with Callaway Golf's prior written consent, Xxxxxxxx may
xxxxx a sublicense to a reputable subcontractor(s) to manufacture and sell
specified Licensed Products ("Authorized Sublicensed Products") provided such
subcontractor enters into, and agrees to the terms of, a form of Subcontractor
Limited Trademark Sublicense Agreement mutually and reasonably satisfactory to
Xxxxxxxx and Callaway Golf.
c. Except as otherwise provided herein, Xxxxxxxx shall be liable
to Callaway Golf for all liability resulting from the action or inaction of its
suppliers and subcontractors.
14
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
Xxxxxxxx shall use commercially reasonable efforts (including, if necessary,
termination) to ensure that its suppliers and subcontractors:
(i) do not use child labor in the manufacturing,
packaging or shipping of the Licensed Products or any other products it
manufactures. The term "child" means a person younger than the
prevailing local minimum working age, but in no event shall any child
younger than age 14 be employed in the manufacturing, packaging or
shipping of the Licensed Products;
(ii) comply in all material respects with all applicable
wage and hour laws, including minimum wage, overtime, maximum hours and
benefits, and use fair employment practices as defined by applicable
laws;
(iii) provide employees with a safe, healthy and humane
workplace;
(iv) do not employ persons other than whose presence is
voluntary and do not use forced labor or corporal punishment or other
forms of mental or physical coercion as a form of discipline of
employees; or
(v) do not design, prototype, manufacture or sell any
products for themselves or any other person confusingly similar to the
Licensed Products or any enhancements or improvements thereto, or any
products which infringe on any patents, trademarks, trade names or
trade dress rights of Callaway Golf or its subsidiaries or which
incorporate a design that is confusingly similar to the Trademarks.
6. CONFIDENTIALITY OF INFORMATION AND USE RESTRICTION.
a. Each party agrees that any Proprietary Information (as defined
below) of the other party to which such party becomes privy as a result of this
Agreement shall not be divulged or disclosed to any third party without the
express and prior written consent of the other party. In addition, each party
agrees to use such Proprietary Information only during the term of this
Agreement and only in a manner that is consistent with the purposes of this
Agreement. In the event either party (the "Disclosing Party") believes that it
is legally required to disclose any of the other party's Proprietary
Information, such Disclosing Party shall give prompt and reasonable written
notice to the other party prior to disclosing such Proprietary Information to a
third party and, if and to the extent so requested in writing by the other
party, the Disclosing Party shall take (at the other party's expense) such
legally permissible steps as are reasonably necessary or appropriate to protect
the Proprietary Information, including, but not limited to, seeking orders from
a court of competent jurisdiction preventing disclosure or limiting disclosure
of such Proprietary Information.
15
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
b. Each party shall hold in confidence all Proprietary
Information received from the other party until such Proprietary Information is
available either to the public generally or to the other party's competitors
through no unauthorized act or fault of such party. Upon the termination of this
Agreement and upon the written request of the other party, each party shall
promptly return any written embodiment of any Proprietary Information of the
other party in its possession, custody or control to the other party (including
any information stored electronically). In addition, upon the termination of
this Agreement for any reason, neither party will directly or indirectly use or
exploit the Proprietary Information of the other party for any purpose
whatsoever.
c. "Proprietary Information" shall mean information, whether
written or oral, not generally available to the public relating to the
trademarks or the business of either party. Without limiting the foregoing,
Proprietary Information includes the non-public concepts and ideas involved in
the products designed, manufactured and/or sold by either party, whether
patentable or not, and includes, but is not limited to, the non-public
strategies, business plans, product plans, customer information, subcontractor
information, processes, formulas, and techniques disclosed by one party to the
other or observed or deduced by either party. Proprietary Information shall not
include any information which: (i) was in the lawful and unrestricted possession
of the party receiving the information prior to its disclosure by the disclosing
party; (ii) is or becomes generally available to the public as a result of acts
other than those of the receiving party after receiving it; (iii) has been
received lawfully and in good faith by the receiving party from a third party
who did not derive it from the disclosing party; or (iv) is shown by acceptable
evidence to have been independently developed by the receiving party.
7. ANCILLARY USE OF LICENSED TRADEMARKS BY XXXXXXXX.
x. Xxxxxxxx is further authorized to use the Trademarks in the
Territory in marketing material related to the Licensed Products including the
use of the Trademarks in publicity, advertising, signs, product brochures,
hangtags and other forms of advertising (collectively, "Marketing Materials"),
subject to the terms and conditions of this Agreement and Callaway Golf's then
current guidelines for the use of Callaway Golf's trademarks by Callaway Golf
itself as well as all other licensees of Callaway Golf's Trademarks (the
"Guidelines") and the then current sales policies or other instructions
regarding merchandising requirements for Callaway Golf customers (the "Sales
Policies"); provided, however, that Xxxxxxxx shall only be obligated to comply
with those Guidelines and Sales Policies which (and when such Policies are)
delivered in writing to Xxxxxxxx. In addition, Callaway Golf may from time to
time propose modifications to the Guidelines and Sales Policies which shall take
effect upon written notice to Xxxxxxxx. In all cases, Callaway Golf will permit
Xxxxxxxx to have a commercially reasonable period of time to effect changes
required by changes in and adoption of the Guidelines and Sales Policies.
Xxxxxxxx shall comply in all material respects with all the Guidelines and Sales
Policies that are in effect and shall not, without the prior written consent of
Callaway Golf,
16
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
knowingly sell the Licensed Products to any Authorized Distribution Channel that
does not comply with the Guidelines and Sales Policies in all material respects.
Xxxxxxxx shall promptly notify Callaway Golf of any Authorized Distribution
Channel not complying with the Guidelines and Sales Policies that are in effect
after Xxxxxxxx becomes aware of such non-compliance.
b. Marketing Materials that (i) use the Trademarks or refer to
Callaway Golf and (ii) are prepared by or at the request of Xxxxxxxx or its
support personnel, shall be subject to Callaway Golf's prepublication review and
written approval (which approval shall not be unreasonably withheld, delayed or
conditioned) with respect to, but not limited to, content, style, appearance,
composition, timing and media. At least one (1) copy of all such Marketing
Materials shall be provided to Callaway Golf at least ten (10) calendar days
prior to placing the material for publication or use. Any notice of disapproval
by Callaway Golf shall be in writing and shall specify in reasonable detail the
reason(s) for such disapproval.
c. Upon request by Callaway Golf, Xxxxxxxx will distribute from
time to time to all Authorized Distribution Channels who prepare or commission
the preparation of Marketing Materials Callaway Golf's Guidelines which are then
in effect under this Agreement. Xxxxxxxx shall also instruct its own personnel
to follow such Guidelines. Xxxxxxxx shall use commercially reasonable efforts to
cause personnel in each Authorized Distribution Channel to furnish to Callaway
Golf copies of all Marketing Materials which use the Trademarks or refer to
Callaway Golf and which are prepared by or at the request of such personnel
promptly after their publication or use. Xxxxxxxx shall discontinue or shall use
commercially reasonable efforts to be caused to be discontinued the subsequent
use of any such Marketing Materials which do not follow the then-effective
Guidelines. In the event of a conflict between the then-effective Guidelines and
the terms of this Agreement, the terms of this Agreement shall control.
x. Xxxxxxxx shall prepare and present to Callaway Golf not less
than twice per year a business review, which describes in reasonable detail
sales performance and advertising, promotional, staffing and product development
activities undertaken by Xxxxxxxx during the prior six (6) months, together with
Xxxxxxxx'x sales forecasts and advertising, promotional, staffing and product
development plans for the ensuing six (6) months. Xxxxxxxx shall provide
Callaway Golf with a report annually comparing the prior year's budgeted
promotional and advertising expenditures with the prior year's actual
advertising and promotional expenditures.
e. The Director or Vice President of Merchandising and Design for
Callaway Golf and the Director or Vice President of Apparel Sales for Callaway
Golf shall meet at least quarterly with Callaway Golf personnel to discuss
products, sales performance and other merchandising issues relating to the
Licensed Products. In preparation for and in connection with such meetings,
Xxxxxxxx shall provide detailed sales reports for each store or similar entity
and other information as may be requested by Callaway Golf from time to time,
which reports
17
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
and other information shall be deemed to be Xxxxxxxx'x "Confidential
Information" for purposes of Section 6 of this Agreement.
8. PROTECTION OF LICENSED TRADEMARKS.
x. Xxxxxxxx acknowledges and agrees that Callaway Golf is the
owner of the Trademarks and shall not during the term of this Agreement or
thereafter, directly or indirectly, through itself or third parties contest or
challenge Callaway Golf's rights in the Trademarks. Xxxxxxxx shall not at any
time use the Callaway Golf Trademarks in any manner in derogation of Callaway
Golf's rights therein or claim any rights in the Trademarks adverse to Callaway
Golf. Xxxxxxxx also agrees that any and all rights that may be acquired by the
use of the Trademarks by Xxxxxxxx, including but not limited to any goodwill
associated with the use of the Trademarks, shall inure to the sole benefit of
Callaway Golf. Xxxxxxxx agrees to execute all papers reasonably requested by
Callaway Golf to effect further registration of, maintenance and renewal of the
Trademarks and, if requested by Callaway Golf and at Callaway Golf's expense, to
record Xxxxxxxx as a registered user of the Trademarks. Except in connection
with the specific activities authorized by Callaway Golf in this Agreement,
Xxxxxxxx shall not use the Trademarks or any part thereof as a corporate name,
domain name, e-mail address, trade name, service xxxx, fictitious business name
or d.b.a., nor directly or indirectly use any name or xxxx, resembling,
confusingly similar, deceptive or misleading with respect to the Trademarks.
Xxxxxxxx further acknowledges that it has no ownership interest in any of the
logos, designs and marks in which the Trademarks may appear. Xxxxxxxx hereby
quitclaims to Callaway Golf any right, title or interest it has or may acquire
through operation of law or otherwise with respect to the Trademarks, any and
all logos, designs and marks in which the Trademarks may appear and all goodwill
associated therewith.
x. Xxxxxxxx further agrees not to directly or indirectly, through
itself or third parties, register the Trademarks in any country, or any name or
xxxx resembling, confusingly similar to, deceptive or misleading with respect to
the Trademarks. If any application for registration is or has been filed in any
country by Xxxxxxxx that relates to any name or xxxx which resembles, is
confusingly similar, deceptive or misleading with respect to the Trademarks,
Xxxxxxxx shall immediately abandon any such application or registration or, at
Callaway Golf's sole and absolute discretion, assign it to Callaway Golf.
Xxxxxxxx shall reimburse Callaway Golf for all reasonable costs and expense of
any opposition, cancellation or related legal proceedings, including reasonable
attorneys' fees, incurred by Callaway Golf or its authorized representative, in
connection with any such registration or application by Xxxxxxxx.
x. Xxxxxxxx Golf is solely responsible for all Trademark
prosecution and maintenance decisions, efforts and fees, including but not
limited to conferring with relevant domestic and foreign counsel, communicating
with relevant domestic and foreign trademark offices, filing new applications,
affidavits, extensions and other necessary or appropriate
18
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
documents, submitting application fees, extension fees, renewal fees, attorneys'
fees and other necessary disbursements. To the extent it has not already done
so, Callaway Golf shall apply for and use commercially reasonable efforts to
pursue trademark registrations for every Primary Xxxx as designated on Exhibit A
of this Agreement in every country or community listed on Exhibit B in
International Class 25 within thirty (30) days of the Effective Date of this
Agreement. Callaway Golf shall apply for and use commercially reasonable efforts
to pursue trademark registrations for every Primary Xxxx as designated on
Exhibit A of this Agreement in every country or community listed on Exhibit B
(excluding the fifteen individual countries included in the European Community
but not excluding the European Community itself) in International Classes 16,
18, 20 and 24. Callaway Golf shall apply and use commercially reasonable efforts
to pursue trademark registrations for those Secondary Marks as designated on
Exhibit A of this Agreement in every country or community listed on Exhibit B
(excluding the fifteen individual countries included in the European Community
but not excluding the European Community itself) in any of the International
Classes 16, 18, 20, 24 and 25 Xxxxxxxx reasonably requests based upon Xxxxxxxx'x
decisions to proceed with specific product introductions, within thirty (30)
days of Xxxxxxxx'x written request (Xxxxxxxx deems the "ERC II" Secondary Xxxx
as necessary and therefore requires Callaway Golf to pursue trademark
registrations in every country or community listed on Exhibit B in International
Classes 16, 18, 20, 24 and 25). Callaway Golf shall apply and use commercially
reasonable efforts to pursue trademark registration for those additional
existing and future trademarks approved for Xxxxxxxx'x use by Callaway Golf in
writing from time to time, which approval shall not be unreasonably withheld,
delayed or conditioned, in every country or community listed on Exhibit B of
this Agreement in any of the International Classes 16, 18, 20, 24 and 25
Xxxxxxxx reasonably requests, within thirty (30) days of Callaway Golf's written
approval. Upon Xxxxxxxx'x commercially reasonable request of Callaway Golf,
which request will not be unreasonably denied, Callaway Golf shall pursue
trademark registrations in one or more of the fifteen individual countries of
the European Community.
d. During the Initial Term (as defined below) and any extension
thereof of this Agreement, and at all times thereafter, Xxxxxxxx shall not use
any name, logo or design identified with, identical to, confusingly similar to,
deceptive or misleading, or which makes reference to, in any manner whatsoever,
the Trademarks or any one of them, except to the extent permitted by this
Agreement or specifically approved by Callaway Golf in writing in its sole and
absolute discretion.
e. In the event that Xxxxxxxx learns of any infringement or
threatened infringement of the Trademarks or that any third party alleges or
claims that the Trademarks are liable to cause deception or confusion to the
public, or are liable to dilute or infringe any right of any third party,
Xxxxxxxx shall forthwith notify Callaway Golf or its authorized representative
giving particulars thereof and Xxxxxxxx shall provide available information (and
any information not readily available which may be compiled without unreasonable
burden or expense) and
19
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
assistance to Callaway Golf or its authorized representative in the event that
Callaway Golf determines that proceedings should be commenced or defended. Any
such proceedings (including out-of-pocket disbursements of Xxxxxxxx) shall be at
the expense of Callaway Golf, and any recoveries shall belong to Callaway Golf.
Except for Callaway Golf's indemnification obligations pursuant to Section 10 of
this Agreement, nothing in this Agreement or otherwise shall be deemed to
require Callaway Golf (or to permit Xxxxxxxx) to enforce or defend the
Trademarks against others; provided, however, Callaway Golf shall take all
commercially reasonable actions necessary or appropriate to avoid abandonment of
the Trademarks, which it is obligated to pursue pursuant to Section 8(c), in the
Territory during the term of this Agreement (except those Trademarks removed
pursuant to Recital B).
f. In the performance of this Agreement, Xxxxxxxx shall comply in
all material respects with all material applicable laws and regulations,
including those laws and regulations particularly pertaining to the proper use
and designation of the Trademarks in the Territory. Should Xxxxxxxx be or become
aware of any applicable laws or regulations that are inconsistent with the
provisions of this Agreement, Xxxxxxxx shall promptly notify Callaway Golf in
writing of such inconsistency. Callaway Golf may, at its option, waive the
performance of such inconsistent provisions or make such modifications to this
Agreement as may be mutually agreed by the parties hereto which are to be
reasonable in their terms.
9. TERM AND TERMINATION.
a. This Agreement shall commence on the Effective Date and shall
continue in effect until December 31, 2010 (the "Initial Term"). Upon expiration
of the Initial Term, the term of this Agreement may, in Xxxxxxxx'x sole
discretion, be extended for one five (5) year term (the "Renewal Term") if (i)
Xxxxxxxx meets or exceeds sales levels for the Licensed Products for each of
calendar year 2008 and 2009, necessary to produce royalties equal to or greater
than the Minimum Annual Royalties for the Licensed Products for each such year;
(ii) Xxxxxxxx provides Callaway Golf with notice of Xxxxxxxx'x intention to
renew by January 1, 2010; and (iii) Xxxxxxxx is not in material breach of this
Agreement.
b. In addition to all other rights granted hereunder, or by law,
equity or otherwise, Callaway Golf may, at its option and upon written notice to
Xxxxxxxx, terminate this Agreement and all rights and licenses granted by
Callaway Golf to Xxxxxxxx under this Agreement in connection with Xxxxxxxx'x
sales of Licensed Products (except as provided in Section 9(f) hereof) should
any of the following occur (each, a "Termination Event") if Callaway Golf
provides such written notice of termination within ninety (90) calendar days
after the expiration of the relevant cure period, if any, or within ninety (90)
calendar days after Callaway Golf becomes aware of the occurrence of such
Termination Event:
20
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
(i) Xxxxxxxx fails to achieve sales levels for the
Licensed Products necessary to produce royalties exceeding seventy-five
percent (75%) of the Minimum Annual Royalties for the Licensed Products
as set forth on Exhibit F-2 attached hereto for two (2) consecutive
years (excluding 2002); provided, however, that in the event of such
termination by Callaway Golf under this subsection, no damages of any
kind or nature shall be payable by Xxxxxxxx to Xxxxxxxx Golf as a
result thereof;
(ii) a Change in Control (as such term is defined in
Section 15 of this Agreement) of Xxxxxxxx to which Callaway Golf did
not consent; provided, however, that in the event of such termination
by Callaway Golf under this subsection, no damages of any kind or
nature shall be payable by Xxxxxxxx to Xxxxxxxx Golf as a result
thereof;
(iii) a Force Majeure Event (as defined below) shall
continue for one hundred twenty (120) successive days; provided,
however, that in the event of such termination by Callaway Golf under
this subsection, no damages of any kind or nature shall be payable by
Xxxxxxxx to Xxxxxxxx Golf as a result thereof; or
(iv) Xxxxxxxx fails to make any payment when due hereunder
and such payment is not made within ten (10) days after Xxxxxxxx'x
receipt of written notice from Callaway Golf of the failure to make
such payment.
c. In addition to Section 9(b) above, in the event of any
material breach by either party of any of the other terms, covenants, agreements
or conditions contained herein (including, without limitation, Xxxxxxxx'x
failure to provide sales reports, as required by Section 3(c) of this Agreement)
and such breach shall continue for thirty (30) days after the breaching party's
receipt of written notice specifying in reasonable detail the nature of the
breach from the non-breaching party, or in the event of any proceeding,
voluntary or involuntary, in bankruptcy or insolvency by or against either party
which remains unstayed for, or is not dismissed within, a period of ten (10)
days, including any proceeding under the United States bankruptcy laws, or in
the event of the appointment, with or without either party's consent, of a
receiver or an assignee for the benefit of creditors, then, and in the case of
any of those events, the non-defaulting party shall have the right, in addition
to all other rights granted hereunder, or by law, equity or otherwise, to
terminate this Agreement by giving written notice to the other party if such
notice of termination is given within ninety (90) calendar days after the
expiration of the relevant cure period. The termination date shall be stated
within such notice and shall be no less than the expiration of any applicable
cure period referred to above. Upon the termination of this Agreement, all
rights, except as otherwise noted in this Section 9, of both parties hereunder
shall wholly cease, expire and come to an end as if the date specified in said
notice were expressly set for the expiration of this Agreement, but without
prejudice to any claims which a party may have against the other for such
party's default.
21
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
d. Termination or expiration of this Agreement shall not relieve
the parties of any remaining liability, obligations or rights as should
appropriately survive termination of this Agreement.
e. Without limiting any other right of Callaway Golf under this
Agreement, the parties hereto expressly agree that if Xxxxxxxx (or its suppliers
or subcontractors) uses any Trademark in material breach of any term of this
Agreement, it will cause irreparable harm to Callaway Golf, Callaway Golf's
remedies at law in the event of such breach would be inadequate, and accordingly
in the event of any such breach, a restraining order or injunction or both may
be issued against such party.
f. Upon Xxxxxxxx'x sending or receipt (as applicable) of the
notice of termination or expiration of this Agreement, Xxxxxxxx shall promptly
notify all suppliers to cease manufacturing Licensed Products. If a Licensed
Product is in the process of being made at the time of such notice, it may be
completed and shipped as ordered by Xxxxxxxx pursuant to this Agreement. During
the Sell-Off Period (as defined below), Xxxxxxxx shall continue to comply with
the terms and conditions of this Agreement, specifically including without
limitation the payment of royalties with regard to the sale of such products and
Section 2(f), and shall use commercially reasonable efforts to sell any
remaining Licensed Product inventory. For purposes of this Agreement, the
"Sell-Off Period" shall mean a period, which shall equal twelve (12) months in
duration after the termination or expiration of this Agreement, during which
Xxxxxxxx is permitted to sell the Licensed Products as provided herein.
Notwithstanding anything to the contrary contained herein, Xxxxxxxx shall cease
all sales and delivery of the Licensed Products after expiration of the Sell-Off
Period.
g. Upon expiration of the Sell-Off Period, Callaway Golf, in its
sole and absolute discretion, may purchase some or all of the Licensed Products
then remaining in Xxxxxxxx'x possession (the "Residual Inventory") at Xxxxxxxx'x
"Landed Cost" (as defined below) plus the amount actually paid by Xxxxxxxx to a
third party carrier approved by Callaway Golf to ship the purchased Residual
Inventory from Xxxxxxxx to Xxxxxxxx Golf, including the costs of all insurance,
taxes and the like. For purposes of this Agreement, "Landed Cost" shall mean the
actual cost paid by Xxxxxxxx to its suppliers and others for such Licensed
Product consistent with past practice, including all insurance, taxes, freight
duty and other costs associated with such Licensed Products. At its option,
Callaway Golf may make its own arrangements for the shipment of the purchased
Residual Inventory at its sole cost and expense. To enable Callaway Golf to
determine whether to purchase any or all of the Residual Inventory, Xxxxxxxx
shall provide to Callaway Golf within twenty (20) days of the expiration of the
Sell-Off Period a list of such Residual Inventory in such detail as Callaway
Golf shall reasonably request. Callaway Golf shall be required to pay the
purchase price for such purchased Residual Inventory within thirty (30) days of
the date of delivery to Callaway Golf of the purchased Residual Inventory, and
Callaway Golf shall not be entitled to offset against such purchase price
amounts, if any,
22
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
claimed by Callaway Golf against Xxxxxxxx. Any purchased Residual Inventory
delivered to Callaway Golf in damaged or otherwise unacceptable condition may be
returned to Xxxxxxxx at Xxxxxxxx'x expense and Callaway Golf shall be entitled
to a refund for such returned inventory. Xxxxxxxx shall destroy any and all
unpurchased Residual Inventory sixty (60) days after expiration of the Sell-Off
Period.
h. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE MAXIMUM AMOUNT OF
DAMAGES PAYABLE FROM ONE PARTY TO THE OTHER ARISING OUT OF ONE OR MORE BREACHES
OF THIS AGREEMENT SHALL NOT EXCEED AN AGGREGATE AMOUNT OF $4,000,000; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO THE INDEMNIFICATION
OBLIGATIONS FOR THIRD PARTY CLAIMS PURSUANT TO SECTION 10 HEREOF.
10. INDEMNITY.
x. Xxxxxxxx Golf warrants on a continuing and, as relevant,
updated basis as new marks are registered that, at all times during the term of
this Agreement, the Trademarks do not and shall not materially infringe any
trademark or other intellectual property rights (collectively, "Rights") of
third parties in the countries in the Territory in which Callaway Golf has
obtained a registered xxxx with respect to the classes of goods for which
registration was obtained. Callaway Golf shall defend, indemnify and hold
Xxxxxxxx and Xxxxxxxx'x suppliers, subcontractors and customers harmless from
and against any and all claims, suits, liabilities, damages, losses and
expenses, including reasonable attorneys' fees (collectively "Losses"), incurred
by Xxxxxxxx and/or Xxxxxxxx'x suppliers, subcontractors and customers by reason
of or arising out of any alleged infringements by the Trademarks of any such
Rights of third parties in the Territory in which Callaway Golf has obtained a
registered xxxx, including without limitation any challenge by Callaway Golf
Gardens of the Trademarks.
x. Xxxxxxxx shall indemnify, defend and hold Callaway Golf
harmless from and against any Losses resulting from or arising out of third
party claims relating to the Licensed Products (including strict liability and
breach of warranty claims), or third party claims relating to the negligence,
product liability, breach of warranty or willful misconduct by Xxxxxxxx or its
employees, suppliers, subcontractors independent contractors or agents,
including but not limited to losses arising out of third party claims relating
to the manufacture, advertising, marketing, distribution, sale or handling of
the Licensed Products in breach of this Agreement or any improper or
unauthorized use of the Trademarks.
11. NOTICES.
All notices required or permitted pursuant to this Agreement shall be
in writing and sent by U.S. mail, postage prepaid, or by delivery via a
reputable courier company, or by electronic
23
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
mail if marked as urgent and sent to both electronic addresses listed below, or
by confirmed facsimile message followed by delivery of a copy via U.S. mail or a
reputable courier company, to Callaway Golf or Xxxxxxxx at their addresses as
listed herein or to such other address as either party may from time to time
advise in writing in accordance with this section.
Callaway Golf Company Xxxxxxxx, Inc.
0000 Xxxxxxxxxx Xxxx 0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxxxxx Attn: Xxxxxxx X. Xxxxxx, Xx.
e-mail: e-mail:
xxxxxx@xxxxxxxxxxxx.xxx xxxxx.xxxxxx@xxxxxxxxxxx.xxx
xxxxx@xxxxxxxxxxxx.xxx xxxxxxx.xxxxx@xxxxxxxxxxx.xxx
All notices required or permitted under this Agreement which are
addressed as provided in this section, if delivered by facsimile, shall be
effective upon transmission provided a confirmation copy is sent; within one
business day by express mail or same-day or overnight courier; if sent by
electronic mail, shall be effective upon completed transmission, if sent by
Federal Express or other reliable overnight delivery service, shall be effective
upon delivery; and if delivered by U.S. Mail, shall be effective five (5) days
after deposit in the U.S. Mail.
12. ENTIRE AGREEMENT; GOVERNING LAW.
a. The provisions of this Agreement contain the entire agreement
between the parties relating to the subject matter hereof. This Agreement may
not be released, discharged, abandoned, changed or modified in any manner except
by an instrument in writing signed by the parties.
b. This Agreement will be governed by and interpreted under the
laws of the State of California (U.S.A.), without regard to choice of law
principles.
13. GOVERNMENTAL LICENSES, PERMITS AND APPROVALS.
Except as provided in Section 8(c) with regard to the Trademarks,
Xxxxxxxx, at its expense, shall be responsible for obtaining and maintaining all
licenses, permits and approvals which are required by all appropriate
governmental authorities in connection with this Agreement and the Licensed
Products in the Territory. Xxxxxxxx shall furnish to Callaway Golf written
evidence from such governmental authorities of any such licenses, permits,
clearances, authorizations, approvals, registration or recording.
24
Exhibit 10(V)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
14. NO EMPLOYMENT AGREEMENT.
Nothing contained herein shall be construed to constitute either party
as a partner, employee or general agent of the other party nor shall either
party have any authority to bind the other except as expressly provided for
herein. The parties shall remain independent contractors. The officers, agents
and employees of one party shall not be considered agents or employees of the
other. Neither party has any power or authority to make any statement or
representation or to incur any debt, obligation or liability on behalf of the
other party, and each party agrees not to hold itself out or permit others to
hold themselves out as having such authority.
15. ASSIGNABILITY.
Neither party may assign, encumber or in any way transfer or delegate
any interest, right or duty under this Agreement without the prior written
consent of the other, which may be withheld for any reason or no reason. A
"Change in Control" of either party shall be deemed an assignment with respect
to which the consent of the other party is required. For purposes of this
Agreement, a "Change in Control" shall mean (a) when a person or entity who or
which is not an Affiliate (as defined below) of the party hereto acquires,
directly or indirectly, beneficial ownership of (i) twenty percent (20%) or more
of the then outstanding voting stock of such party or (ii) securities
exchangeable or convertible into voting stock of such party equal to or greater
than twenty percent (20%) of the outstanding voting stock of such party based
upon the number of shares of voting stock outstanding as of the date of issuance
of the exchangeable or convertible securities, (b) when a reorganization, merger
or consolidation of the party hereto with any other person or entity who or
which is not an Affiliate of such party results in a change of thirty percent
(30%) or more of the direct or indirect beneficial ownership of the then
outstanding voting stock of such party, (c) upon the sale or other disposition
by the party hereto of all or substantially all of such party's assets to a
person or entity who or which is not an Affiliate of such party, or (d)
individuals who, as of the Effective Date, constitute the Board of Directors of
a party (as of the date hereof, the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors of such party; provided
that any person becoming a director subsequent to the Effective Date of this
Agreement whose election, or nomination for election by such party's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors of such
party, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended) shall be, for purposes of this
Agreement, considered as though such person was a member of the Incumbent Board.
For purposes of this section, "Affiliate" shall mean an individual or entity
that directly, or indirectly through one or more intermediaries' controls, or is
controlled by, or is under common control of such party. Any assignment in
violation of this provision shall be null and void and of no force or effect. In
the event of an assignment by either
25
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
party without the consent of the other party, the other party shall have the
right to terminate this Agreement upon thirty (30) days written notice to the
party making the Assignment if such written notice of termination is sent within
ninety (90) days of the Change in Control.
16. BINDING NATURE.
This Agreement shall be binding on the heirs, successors, subsidiaries
and permitted assigns of the parties hereto.
17. WAIVER.
The waiver by either party or the failure by either party to claim a
breach or default of any provision of this Agreement shall not constitute a
waiver of any subsequent breach or default. Nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring.
18. MISCELLANEOUS.
a. If any provision of this Agreement violates or is
unenforceable under any applicable law of any jurisdiction in which activities
hereunder are performed, that provision shall be deemed void and the remaining
provisions shall remain in full force and effect.
b. Except as specifically set forth in Section 3(f), in any
dispute, whether or not litigation is commenced, the prevailing party shall be
entitled to its costs and expenses incurred, including reasonable attorneys'
fees.
c. This Agreement may be executed by the parties hereto in
several counterparts, and each such counterpart shall be deemed to be an
original and all such counterparts shall together constitute one and the same
agreement.
d. The language in this Agreement shall in all cases be construed
as a whole and in accordance with its fair meaning. This Agreement shall not be
construed for or against either party as a result of the initial preparation or
drafting by a party of any provision hereof.
e. The headings of the sections are inserted for convenience of
reference only and are not intended to affect the meaning or interpretation of
this Agreement.
19. LAW FIRM CONFLICT.
The parties acknowledge that Xxxxxxxx is represented by the law firm of
Xxxxxx, Xxxx & Xxxxxxxx LLP ("Xxxxxx Xxxx") in connection with this transaction
and that both parties provided an informed written consent in respect of such
representation. The parties acknowledge
26
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
that Xxxxxx Xxxx in other matters represents Callaway Golf. In the event of any
dispute arising out of this Agreement, the parties agree that Xxxxxx Xxxx shall
not represent either Callaway Golf or Xxxxxxxx in matters relating to such
dispute.
20. FORCE MAJEURE.
If the performance of any part of this Agreement by either party is
prevented, hindered or delayed by reason of any cause beyond the control of such
party, which shall include war, mobilization, revolution, civil commotion, riot,
strike, lockout, flood, hurricane, act of God or public enemy, restriction or
restraint imposed by law, rule, regulation or order by government authority, or
interruption of transportation facilities ("Force Majeure Event"), the party
affected shall promptly provide notice thereof to the other party and shall be
excused from such performance to the extent that it is necessarily prevented,
hindered or delayed thereby during the continuance of any such happening or
event; provided, however, that the party affected shall use commercially
reasonable efforts to resume the performance of its obligations under this
Agreement.
21. DISPUTE RESOLUTION.
a. The parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except for an action seeking a
temporary restraining order or injunction related to the purposes of this
Agreement, a suit to compel compliance with this dispute resolution process, or
the entry and enforcement of any judgment on any arbitration award, the parties
agree to meet and negotiate in good faith to resolve any dispute arising under
this Agreement. The location, format, frequency, duration and conclusion of
these discussions shall be left to the discretion of the parties. Except as
otherwise provided, the discussions will commence within thirty (30) days after
written notice of a dispute from any party.
b. Except as otherwise provided, if a determination is made by
any party that continuation of the negotiation process is not warranted, the
dispute shall be submitted to mediation by a mediator in San Diego County
pursuant to the Commercial Mediation Rules of the American Arbitration
Association. Any party may demand such mediation in writing in accordance with
the procedures set out in those rules, which shall commence within sixty (60)
days of such demand.
c. Except as otherwise provided, if a determination is made by
any party that continuation of the mediation process is not warranted or if all
of the matters in dispute are not resolved through mediation, the dispute shall
be submitted to binding arbitration by an arbitrator mutually agreed upon by the
parties or, if no arbitrator is mutually selected within sixty (60) days of a
written demand therefor, then by a retired judge from the Judicial Arbitration
and Mediation Service/Endispute ("JAMS") office located in San Diego,
California, who shall have the powers
27
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
to hear motions, control discovery, conduct hearings and otherwise do all that
is necessary to resolve the matter. The arbitration shall be held in San Diego
County. The arbitration award shall be final and binding, and judgment on the
award may be entered in any court having jurisdiction thereof. It is expressly
understood that the parties have chosen arbitration to avoid the burdens, costs
and publicity of a court proceeding, and the arbitrator is expected to handle
all aspects of the matter, including discovery and any hearings, in such a way
as to minimize the expense, time, burden and publicity of the process, while
assuring a fair and just result. In particular, the parties expect that the
arbitrator will limit discovery by controlling the amount of discovery that may
be taken (e.g., the number of depositions or interrogatories) and by restricting
the scope of discovery to only those matters clearly relevant to the dispute. It
is further understood that any award of punitive damages by the arbitrator would
be inconsistent with the commercial purposes of the Agreement and the status of
the parties with respect to one another, and therefore neither the arbitrator
nor any other tribunal is authorized or empowered to award punitive damages in
any proceeding based upon this Agreement or the dealings hereby.
28
Exhibit 10(v)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its duly authorized representative as of the date first written
above.
XXXXXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Xxxxxxx X. Xxxxxx, Xx.
Chairman, President and CEO
CALLAWAY GOLF COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx,
Senior Executive Vice President,
Chief Legal Officer and Secretary
29
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT INDEX
Exhibit A Trademarks - Font Independent
Exhibit B Territory
Exhibit C-1 Exclusive Licensed Products
Exhibit C-2 Non-Exclusive Licensed Products
Exhibit D-1 Premium Department Stores
Exhibit D-2 Low-End Department Stores
Exhibit E Advertising and Promotion
Exhibit F-1 Royalties
Exhibit F-2 Minimum Annual Royalties
Exhibit G (Intentionally Deleted)
Exhibit H (Intentionally Deleted)
Exhibit I (Intentionally Deleted)
Exhibit J-1 Net Sales Target Amounts
Exhibit J-2 Net Sales Target Amount Percentage Breakdown
30
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT A
TRADEMARKS- FONT INDEPENDENT
PRIMARY MARKS
Big Xxxxxx
Xxxxxxxx Golf
SECONDARY XXXXX
XX-1
Demonstrably Superior and Pleasingly Different
Holy Grail
Rule 35
TRADEMARKS- FONT SPECIFIC
SECONDARY MARKS
Big Xxxxxx and Design
C and Design
Callaway Golf and Design (new)
Callaway Golf Center Medallion and Design (new)
ERC II and Design
Hawkeye Device Design
Hawkeye Device VFT and Design
Odyssey and Design
Rule 35 and Design
Tri-Hot and Design
VFT and Design
White Hot and Design
EXHIBIT A
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)l
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v)l WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT B
TERRITORY
1. United States of America
2. Canada
3. Europe
Europe shall be defined as:
Andorra
Austria
Belgium
Benelux (Belgium, Netherlands and Luxembourg)
Denmark
European Community*
Finland
France
Germany
Greece
Ireland
Italy
Luxembourg
Netherlands
Norway
Portugal
Spain
Sweden
Switzerland
United Kingdom
4. Xxxxxxxxx
0. Xxx Xxxxxxx
6. The country of South Africa
* European Community includes the following countries only and not
countries which become members after the Effective Date:
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland,
Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and the United
Kingdom
EXHIBIT B
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT C-1
EXCLUSIVE LICENSED PRODUCTS
Belts Skirts
Blazers Skorts
Blouses Slacks
Body suits Socks
Camisoles Sport Coats
Coats Sweatpants
Dickies Sweatshirts
Dresses Sweaters
Hosiery Swimwear
Jackets T-Shirts
Jump Suits Tank Tops
Knit shirts Tights
Outer wear Tops
Pants Underwear
Pull overs Vests
Scarves Warm-ups
Shirts Wind shirts
Shorts
EXHIBIT C-1
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT C-2
NON-EXCLUSIVE LICENSED PRODUCTS
Briefcases
Caps, hats, visors and other headwear
Children's clothing
Desk supplies
Leather and non-leather handbags (not luggage)
Office accessories
Picture frames
Portfolios
Purses
Rainwear
Sleepwear
Sports/duffle bags (not golf bags)
Towels
Umbrellas
Valuables pouch
EXHIBIT C-2
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT D-1
PREMIUM DEPARTMENT STORES
Bergdorf Xxxxxxx
Bloomingdales
Saks Fifth Avenue
Xxxxxx-Xxxxxx
Xxxxxxxxx
The Bon (Bon Marche)
Macy's (E & W)
Parisians
Proffitts (A Doors)
Belk (A + B + C Doors)
Dillards
Xxxxxxxx Xxxxxx
XxXxx'x (A Doors)
Burdines (A + B Doors)
Xxxxxxxx May
Lord & Xxxxxx (A & B Doors)
Gayfers (A Doors)
Rich's (A Doors)
Rochester Big & Tall
EXHIBIT D-1
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT D-2
LOW-END DEPARTMENT STORES
X.X. Penney
Clubs (Sam's + Costco)
Sears
K Mart
Target
Kohl's
Wal-Mart
EXHIBIT D-2
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT E
ADVERTISING AND PROMOTION
Period Required Expenditures
------------------------------ ------------------------------------------
INITIAL TERM
05/1/2001-12/31/2002 [**] of Net Sales
01/1/2003-12/31/2003 [**] of Net Sales
01/1/2004-12/31/2004 [**] of Net Sales
01/1/2005-12/31/2005 [**] of Net Sales
01/1/2006-12/31/2010 [**] of Net Sales each year for years 2006
through 2010.
RENEWAL TERM
01/01/2011-12/31/2015 [**] of Net Sales each year for years 2011
through 2015.
For purposes of this section, "NET SALES" shall have the definition set forth in
EXHIBIT F-1 of this Agreement.
EXHIBIT E
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT F-1
ROYALTIES
1st 50% 2nd 50% Over 100%
of Net Sales Target of Net Sales Target of Net Sales Target
Amount Amount Amount
--------------------------------------------------------------------
INITIAL TERM
05/1/2001-12/31/2002 [**] Royalty [**] Royalty [**] Royalty
01/1/2003-12/31/2003 [**] Royalty [**] Royalty [**] Royalty
01/1/2004-12/31/2004 [**] Royalty [**] Royalty [**] Royalty
01/1/2005-12/31/2005 [**] Royalty [**] Royalty [**] Royalty
01/1/2006-12/31/2010 [**] Royalty [**] Royalty [**] Royalty
RENEWAL TERM
01/1/2011-12/31/2015 [**] Royalty [**] Royalty [**] Royalty
Xxxxxxxx and Callaway Golf agree to meet at the end of each selling
season to discuss the level of the existing inventory and the possibility of
reducing the royalty rates to facilitate the efficient liquidation of excess
inventory positions. For purposes of this Agreement, "Net Sales" shall mean (i)
the revenue invoiced by Xxxxxxxx for sale of the Licensed Products and (ii) for
sales of Licensed Products to Callaway Golf pursuant to Section 1(b) the
revenues received by Xxxxxxxx based on the actual prices paid by Callaway Golf,
in the case of each of (i) and (ii) less returns and post-sale markdowns and
excluding all tariffs, duties, sales taxes, use taxes, and other similar levies
and taxes and excluding all insurance, shipping, freight and delivery charges.
Xxxxxxxx shall pay Callaway Golf royalties at rates that will vary
depending upon the percentage of the Net Sales Target Amount reached for the
relevant royalty period. The Net Sales Target Amount for each period shall be as
set forth on Exhibit J-1 attached hereto and incorporated herein. To assist in
the calculation of the royalties required hereunder, Net Sales Target Amounts
are broken down by percentages in Exhibit J-2.
For example, if Net Sales for the year 2003 were $[**] then the
royalty amount due would be $[**], calculated as follows:
Net Sales made
Royalty Rate within the applicable range during Applicable Royalty Royalty Amount
Range 2003 Rate %
------------ ---------------------------------- ------------------ --------------
1st 50% [**] [**] [**]
---------------------------------------------------------------------------------------------
2nd 50% [**] [**] [**]
---------------------------------------------------------------------------------------------
Over 100% [**] [**] [**]
---------------------------------------------------------------------------------------------
Total Royalties Due [**]
--------------
EXHIBIT F-1
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT F-2
MINIMUM ANNUAL ROYALTIES
INITIAL TERM
05/1/2001-12/31/2002 [**]
01/1/2003-12/31/2003 [**]
01/1/2004-12/31/2004 [**]
01/1/2005-12/31/2005 [**]
01/1/2006-12/31/2010 [**]
RENEWAL TERM
1/1/2011-12/31/2015 Minimum annual royalties shall be the
greater of [**]or [**]% of the average
annual actual royalties for the two-year
period of 1/1/2009-12/31/2010
EXHIBIT F-2
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT G
INTENTIONALLY DELETED
EXHIBIT G
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT H
INTENTIONALLY DELETED
EXHIBIT H
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT I
INTENTIONALLY DELETED
EXHIBIT I
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT J-1
NET SALES TARGET AMOUNTS
INITIAL TERM
01/1/2002-12/31/2002 [**]
01/1/2003-12/31/2003 [**]
01/1/2004-12/31/2004 [**]
01/1/2005-12/31/2005 [**]
01/1/2006-12/31/2010 [**] Each year for years
2006 through 2010.
RENEWAL TERM
01/01/2011-12/31/2015 [**] Each year for years
2011 through 2015.
EXHIBIT J-1
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT 10(v)
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. THE OMITTED INFORMATION IS INDICATED BY THE
SYMBOL "[**]" AT EACH PLACE IN THIS EXHIBIT 10(v) WHERE THE OMITTED INFORMATION
APPEARED IN THE ORIGINAL.
EXHIBIT J-2
NET SALES TARGET AMOUNT
PERCENTAGE BREAKDOWN
1st 50% 2nd 50% Over 100%
Net Sales Net Sales Net Sales
AMOUNT BREAKDOWN Target Amount Target Amount Target Amount
-------------------------------------------------
INITIAL TERM
01/1/2002-12/31/2002 [**] - [**] [**] +
[**] [**]
01/1/2003-12/31/2003 [**] [**] [**] +
[**] [**]
01/1/2004-12/31/2004 [**] [**] [**] +
[**] [**]
01/1/2005-12/31/2005 [**] [**] [**] +
[**] [**]
01/1/2006-12/31/2010 [**] [**] [**] +
[**] [**]
RENEWAL TERM
01/01/2011-12/31/2015 [**] [**] [**] +
[**] [**]
EXHIBIT J-2
