EXHIBIT 10.16
PROMOTIONAL LICENSE AGREEMENT
THIS AGREEMENT is made as of the 10th day of June, 1999, in New York,
New York, by and between the Major League Baseball Players Association, an
unincorporated association under the laws of the State of New York, with
offices at 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter "MLBPA")
and Famous Fixins, Inc, a New York corporation, (hereinafter "Licensee") with
offices located at 000 X. 00xx Xx. Xxxxx 0000 Xxx Xxxx, XX 00000.
WHEREAS, MLBPA is acting on behalf of all of the active baseball
players of the National League and the American League who have entered into
a Commercial Authorization Agreement with the MLBPA (hereinafter "players");
and who, upon being polled by the MLBPA, have not indicated they have granted
a license for products which would conflict with the license granted herein;
and
WHEREAS, MLBPA in such capacity has the right to negotiate this
Agreement and to grant rights in and to the logo, name and symbol of MLBPA
identified in Schedule A hereto (the "Trademarks") and the names, nicknames,
likenesses, signatures, pictures, playing records, and/or biographical data
of each player described in Schedule A hereto as part of a group (hereinafter
"the Rights"); and
WHEREAS, Licensee desires to use the Rights and/or the Trademarks
solely in connection with a promotion as described in Schedule-- B ("the
Promotion") in the territory identified in Schedule B (the "Licensed
Territory") and for the period identified in Schedule B (the "License
Period").
WHEREAS, MLBPA is willing to grant Licensee such right to use the
Rights and/or the Trademarks in connection with the Promotion in accordance
with the terms and conditions recited herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein contained, it is hereby agreed as follows:
1. GRANT.
(a) MLBPA hereby grants to Licensee and Licensee hereby
accepts the non-exclusive, non-transferable, nonassignable license, without
the right to grant sublicenses, to use the Rights and Trademarks solely in
connection with the Promotion as described in Schedule B. Licensee shall not
knowingly utilize the Trademarks or the Rights, or permit others to use them,
outside of the Licensed Territory or for any other purpose.
(b) MLBPA represents and warrants that it has the authority
to grant the rights licensed herein. MLBPA makes no representation that it
has the authority to grant, nor does it grant herein, the right to utilize
team symbols, insignias or logos, or the name, symbol, or logo of any other
licensee of MLBPA, or reproductions of any products produced by or for any
other licensee of MLBPA. Accordingly, it is understood by the parties hereto
that if any of the foregoing are to be utilized in connection with the
exercise of the license granted hereunder, including without limitation the
likenesses of players utilizing team logos, symbols or insignias, it will be
the responsibility of Licensee to obtain all necessary permissions for the
use of such material.
(c) Unless specifically authorized in advance by MLBPA in
writing, Licensee agrees to utilize the names and/or likenesses of a minimum
of eight (8) players in connection with the Promotion and Licensee agrees
that the names and/or likenesses of all such players will be used with equal
prominence.
(d) The license granted by MLBPA to Licensee herein does not
include the right to, and Licensee shall not in any manner use (or purport to
grant others the right to use) the Rights as a testimonial or endorsement of
any product or service by all or any of the players, or by the MLBPA. Nor
does this license convey the right to feature or highlight any individual
player apart from the group. In the event Licensee is interested in
highlighting any player or in securing the personal endorsement or services
of any player, Licensee understands and agrees that such will require the
personal approval of the individual player involved and a separate payment to
such player, through the MLBPA, independent of and in addition to all payments
due to the MLBPA pursuant to this Agreement
(e) The rights granted by MLBPA to Licensee hereunder do not
include the right to, and Licensee shall not in any manner, use (or purport
to grant others the right to use) the Trademarks or the Rights for the
purpose, in whole or in part, of promoting the purchase of any service or
product other than as specifically set forth herein in connection with the
Promotion.
(f) All rights not expressly granted to Licensee in this
Agreement are specifically reserved to MLBPA.
2. TERM.
This Agreement shall be effective and shall continue for the
License Period set forth on Schedule B, unless sooner terminated pursuant to
a provision of this Agreement.
3. ROYALTIES AND STATEMENTS.
(a) For the license granted herein, immediately upon
execution of this Agreement, Licensee agrees to pay MLBPA a non-refundable
fee in the amount and in the manner set forth on Schedule B ("the Promotional
Rights Fee").
(b) In addition to the Promotional Rights Fee, Licensee
agrees to pay to MLBPA on each of the dates set forth on Schedule B, a
royalty for any premium item and/or product employing the rights and/or the
trademarks in connection with the Promotion as set forth on Schedule B.
(c) Notwithstanding the foregoing subsection (b), if
Licensee obtains the premium item and/or product described above from a
manufacturer licensed by MLBPA ("MLBPA licensee"), Licensee will not be
obligated to pay MLBPA the royalties described therein, provided that
Licensee obtains from such MLBPA licensee and provides to MLBPA a written
agreement stating that such MLBPA licensee will pay to MLBPA the royalties
described above in accordance with the terms of this Agreement
(d) On each of the dates set forth on Schedule B, Licensee
shall provide MLBPA with a full and complete statement (in a form
satisfactory to MLBPA) with respect to any and all premium items and/or
products utilized in connection with the Promotion, said statements) to be
certified as accurately an officer of Licensee and to include any other
information which MLBPA may reasonably request.
(e) All amounts payable to MLBPA by Licensee, together with
a complete and accurate statement setting forth the basis for calculation of
such amounts in a form acceptable to MLBPA, shall be submitted to: Major
League Baseball Players Association 00 X. 00xx Xxxxxx Xxx Xxxx, XX 00000 All
payments made hereunder shall be in United States dollars drawn on a United
States bank, unless otherwise specifically agreed upon by the parties.
(g) Time is of the essence with respect to all payments to
be made hereunder by Licensee. Interest at a rate of the lesser of the
maximum rate allowed by law or one and one-half percent (1-1/2%) per month,
compounded daily, shall accrue on any amount due MLBPA hereunder from and
after the date upon which the payment is due until the date of receipt of
payment.
(h) The receipt and/or acceptance by MLBPA of any of the
royalties paid hereunder to MLBPA (or the cashing of any royalty checks paid
hereunder) shall not preclude MLBPA from questioning the correctness thereof
at any time and, in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be
rectified by Licensee and the appropriate payment shall be made by Licensee.
4. AUDIT.
(a) Licensee agrees to keep accurate books of account and
records as its principal place of business covering all transactions relating
to the license granted herein. MLBPA and its duly authorized representatives
shall have the right, upon reasonable notice, at all reasonable hours of the
day, to audit Licensee's books of account and records and all other documents
and material in the possession or under the control of Licensee with respect
to the subject matter and the terms of this Agreement and to make copies and
extracts thereof. In the event that any such audit reveals an underpayment
by Licensee, Licensee shall immediately upon demand remit payment to MLBPA in
the amount of such underpayment plus interest calculated at the rate of the
lessor of one and one-half percent (1-1/2%) per month or the maximum rate
allowed by law, compounded daily, calculated from the date such payment(s)
were actually due until the date such payment is actually made. In the event
that any such underpayment is greater than Five Thousand Dollars ($5,000) or
two percent (2%) of the royalties due for the period audited, whichever is
less, Licensee shall reimburse MLBPA for the costs and expenses of such
audit.
(b) All books of account and records of Licensee covering
all transactions relating to the license granted herein shall be retained by
Licensee for at least two (2) years after the expiration or termination of
this Agreement for possible inspection by MLBPA.
5. QUALITY, NOTICES, APPROVALS, AND SAMPLES.
(a) All premium items, products, packages, cartons, point-
of-purchase, promotional and advertising materials, if any, associated with
the Promotion as described on Schedule B ("Promotional Material") shall be of
high quality so as to be suited to the favorable advantage, protection and
enhancement of the Trademarks and the Rights, and shall be manufactured, sold
and/or distributed in full conformance with all applicable laws and
regulations.
(b) Before commencing or authorizing third parties to
commence the design or development of any Promotional Material, Licensee
shall submit at its own cost to MLBPA, for approval, (1) complete layouts and
descriptions of the proposed Promotional Material including full information
on the nature and function of such Promotional Material and a general
description of how the Rights and/or Trademarks and other material will be
used thereon; (2) pre-production artwork and proofs; and (3) actual proofs or
final pre-production samples thereof. Licensee may not manufacture, use,
advertise, promote, ship and/or distribute any Promotional Material until it
has submitted such Promotional Material to MLBPA for approval and received
written approval of same from MLBPA at each stage of development in the
manner provided herein. Such approval shall not be unreasonably withheld.
Should MLBPA fail to approve in writing any of the submissions furnished it
by Licensee within seven (7) days from the date of submission thereof, such
failure shall be considered to be a disapproval thereof. Licensee shall send
all submissions, notices, and requests for approval to:
1. Xxxx Xxxxxx
Major League Baseball Players Association
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 1001 7
and
2. Xxxxxxx Xxxxx
MLB Players Choice Promotions
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
(c) Upon commencement of distribution of the Promotional
Material after all required approvals have been given by MLBPA Licensee shall
submit, at its own cost, to MLBPA and to MSA, an additional two (2) copies of
the final approved Promotional Material.
(d) After the required approval of Promotional Material has
been secured from MLBPA pursuant to Section 5(b) above, Licensee shall not
depart from the specifications, quality or appearance thereof in any material
respect without fist obtaining the express written approval of MLBPA.
6. OWNERSHIP OF RIGHTS.
(a) It is understood and agreed that MLBPA is the sole and
exclusive holder of all right, title and interest in and to the Rights;
and/or the Trademarks for the duration of this Agreement.
(b) Nothing contained in this Agreement shall be construed
as an assignment to Licensee of any right, title and/or interest in or to the
Rights and/or the trademarks, it being understood that all right, title and
interest relating thereto are expressly reserved by MLBPA except for the
rights being licensed hereunder.
(c) No license is being granted hereunder for any purpose or
as to any products, services or material other than in connection with the
Promotion as authorized herein and only in the Licensed Territory. MLBPA
reserves for such use as it may determine all rights of any kind other than
the rights herein licensed to Licensee.
(d) Licensee shall not use the Rights and/or the Trademarks
other than as permitted herein and, in particular, shall not incorporate the
Rights and/or the Trademarks in Licensee's corporate or business name in any
manner whatsoever. Licensee agrees that in using the Rights and Trademarks,
it will in no way represent that it has any rights, title and/or interest in
and/or to the Rights and/or the Trademarks other than those expressly granted
under the terms of this Agreement. Licensee further agrees that it will not
use and/or authorize the use, either during or after the term of this
Agreement, of any configuration, trademark, trade name or other designation
confusingly similar to the Rights and/or any of the Trademarks.
(e) Notwithstanding any rights otherwise granted to
Licensee by state or federal trademark or copyright laws or otherwise,
Licensee shall not without express written permission of MLBPA directly or
indirectly use, or authorize others to use, in any manner whatsoever, any
artwork or designs or other material involving the Rights and/or Trademarks,
or any reproductions thereof following the expiration or termination of this
Agreement, notwithstanding their invention or use by Licensee, and Licensee
shall destroy all such artwork and/or designs and/or other material and
furnish to MLBPA satisfactory evidence of their destruction.
7. GOODWILL AND PROMOTIONAL VALUE.
(a) Licensee recognizes the value of the goodwill associated
with the Rights and/or the Trademarks and acknowledges that the Rights and/or
the Trademarks, and all rights therein and the goodwill pertaining thereto,
belong exclusively to MLBPA. Licensee further recognizes and acknowledges
that the Rights and/or the Trademarks have acquired secondary meaning in the
mind of the public. Licensee agrees that during the term of this Agreement,
or thereafter, it will not attack the title or any rights of MLBPA in and to
the Rights and/or the Trademarks or the validity of the license granted
herein.
(b) Licensee agrees that its use of the Rights and/or the
Trademarks shall inure to the benefit of MLBPA and that Licensee shall not,
at any time, acquire any rights in the Rights and/or the Trademarks by virtue
of any use it may make of the Rights and/or of the Trademarks. Licensee
hereby assigns to MLBPA any and all trademarks and trademark rights in the
Trademarks and/or Rights created by such use, together with the good will of
the business in connection with which such Trademarks are used.
(c) Licensee acknowledges that MLBPA is entering into this
Agreement not only in consideration of the sums to be paid here under but
also in recognition of the intrinsic benefit to proper maintenance of the
image and reputation of MLBPA and the places as a result of the conduct of
the Promotion in accordance with the provisions of this Agreement. Licensee
therefore acknowledges that its failure to conduct the Promotion in
accordance with the provisions of this Agreement, including without
limitation its obligations to protect and enhance the value of Rights and
Trademarks, will result in immediate and irreparable damage to MLBPA in
connection with promotion of the Rights and/or the Trademarks and/or to its
members and that there will be no adequate remedy at law for the failure by
Licensee to abide by such provisions of this Agreement. Accordingly,
Licensee agrees that in the event of any breach by Licensee, in addition to
all other remedies available to it hereunder, MLBPA may at its sole option
commence an action in any court having jurisdiction or an arbitration
proceeding, and shall be entitled to injunctive relief against any such
breach as well as such other relief as any arbitrators) or court with
jurisdiction may deem just and proper.
8. TRADEMARK AND COPYRIGHT PROTECTION.
(a) The license granted herein is conditioned upon
Licensee's full and complete compliance with the provisions of the trademark
and copyright laws of the United States and any foreign country or countries
in the Licensed Territory.
(b) Licensee agrees to permanently affix to all Promotional
Material the MLBPA logo and appropriate legends, markings and/or notices as
required by MLBPA, to give appropriate notice to the consuming public of
MLBPA's right, title and interest therein. Licensee agrees that, unless
otherwise specified in writing by MLBPA, each usage of the Trademarks shall
be followed by either the TM or the a Trademark Notice symbol, as
appropriate, and the following legends shall appear at least once on each
piece of Promotional Material:
Copyright (C) MLBPA (year-date)
Licensee also shall include on the Promotion Material the following notice:
Official Licensee --
Major League Baseball Players Association.
(c) Licensee agrees that it will not use or distribute any
Promotional Material which does not carry notices meeting the requirements of
this Agreement.
(d) Licensee shall use no other markings, legends and/or
notices on or in association with the Promotional Material other than those
specified above and on Schedule B hereto and such other markings, legends
and/or notices as may be specified by MLBPA, without first obtaining MLBPA's
express written approval.
(e) Licensee agrees that it shall not at any time within the
Licensed Territory or anywhere else in the world apply for any copyright or
trademark protection which would affect MLBPA's ownership of any rights in
the Rights and/or the Trademarks nor file any document with any governmental
authority or assert directly or indirectly any right or take any other action
which could affect MLBPA's ownership of the Rights and/or the Trademarks or
the publicity rights of the players or knowingly aid or abet anyone else in
doing so.
(f) Licensee agrees to cooperate in all reasonable respects
with MLBPA in protecting and defending the Rights and/or the Trademarks. In
the event that Licensee becomes aware of any claim or problem arising with
respect to the protection of the Right and/or the Trademarks in the Licensed
Territory, Licensee shall promptly advise MLBPA in writing of the nature and
extent of same. MLBPA has no obligation to take any action whatsoever in the
event that any claim or problem arises with respect to the protection of the
Rights and/or the Trademarks.
9. INFRINGEMENTS.
(a) Licensee agrees to cooperate with MLBPA in the
enforcement of MLBPA's rights in the Rights and/or the Trademarks. Licensee
agrees to notify MLBPA in writing of any infringements or imitations by third
parties of the Rights, the Trademarks, and/or the Promotional Material which
may come to Licensee's attention. MLBPA shall have sole right to determine
whether or not any action shall be taken on account of any such infringement
or imitation. MLBPA, if it so desires, may commence or prosecute any claims
or suits in its own name or in the name of Licensee or join Licensee as a
party thereto, provided that nothing in this paragraph shall require Licensee
to incur more than nominal out of-pocket expenses. Licensee agrees not to
contact any third party, not to make any demands or claims, not to institute
any suit nor take any other action on account of such infringements or
limitations without obtaining the prior express written permission of MLBPA.
(b) With respect to all claims and suits involving the
Rights and/or the Trademarks, including suits in which licensee is joined as
a party, MLBPA shall have the sole right to employ counsel of its choosing
and to direct the handling of the litigation and any settlement thereof.
MLBPA shall be entitled to receive and retain all amounts awarded as damages,
profits or otherwise in connection with such suits.
10. INDEMNIFICATION.
Licensee hereby agrees to defend, indemnify and hold harmless
MLBPA, its members, offices, directors, employees and agents from and against
any and all claims, demands, causes of action and judgments ("Claims")
arising out of or in connection with
(a) Licensee's conduct of the Promotion, and/or use of the
Promotional Material, including but not limited to any allegedly unauthorized
use by Licensee of any trademark, copyright, patent, process, idea, method,
device, logo, symbol, insignia, name, term or material other than those
licensed herein;
(b) Licensee's use of any logos, symbols, names, terms or
other material claimed to be the property of any Major League Baseball
club(s) or any other entity affiliated directly or indirectly with any Major
League Baseball club(s), and
(c) Any alleged defects in any product utilized in
connection with the Promotion. With respect to the foregoing indemnity,
Licensee agrees to defend and hold MLBPA and its members harmless at no cost
or expense to the MLBPA whatsoever including, but not limited to, attorneys'
fees and court costs. Under no circumstances shall Licensee have the right
to settle or otherwise compromise any Claim without the prior written consent
of MLBPA. MLBPA and its members shall have the right to defend themselves in
any such action or proceeding with attorneys of MLBPA's selection.
11. INSURANCE.
Licensee shall, throughout the License Period of this Agreement,
obtain and maintain at its own cost and expense from a qualified insurance
company acceptable to MLBPA, or self-insurance as authorized by law,
comprehensive general liability insurance, the form of which must be
acceptable to MLBPA, naming MLBPA and its members as an additional insured.
Such policy shall provide protection against any and all claims, demands and
causes of action arising out of: (a) any defect or failure to perform,
alleged or otherwise, in connection with the Promotion or Promotional
Material; (b) any material used in connection with the Promotion or
Promotional Material; or (c) any advertising of the Promotion or Promotional
Material. The amount of coverage shall be a minimum of Two Million Dollars
($2,000,000) for each single occurrence. The policy shall provide for twenty
(20) days notice to MLBPA from the insurer in the event of any modification,
cancellation or termination. Licensee agrees to furnish MLBPA a certificate
of insurance evidencing same and a copy of any relevant additional insured
endorsement or satisfactory evidence of self-insurance prior to commencement
of the Promotion, and in no event shall Licensee manufacture, advertise,
promote, ship and/or distribute any Promotional Material prior to receipt by
MLBPA of such evidence of insurance and additional insured endorsement.
12. EXPLOITATION BY LICENSEE.
Licensee agrees to vigorously exploit, advertise and promote the
Promotion to the favorable advantage and enhancement of the Trademarks and
the Rights in accordance with the terms of this Agreement and specifically in
the manner described in Schedule B. In the event of Licensee's failure to
comply with this requirement, in addition to all other remedies available to
it, MLBPA shall have the option to terminate this Agreement upon mailing
notice of such termination to Licensee.
13. ASSIGNABILITY AND SUBLICENSING.
The license granted hereunder is and shall be personal to
Licensee and shall not be assigned by any act of Licensee or by operation of
law or otherwise encumbered. Licensee shall not have any Promotional
Material produced for Licensee by a third party unless Licensee first obtains
the express written approval of MLBPA and, if such manufacturer is not an
authorized licensee of MLBPA, such manufacturer shall have signed an
agreement in the form attached hereto as Schedule C. Licensee shall have no
right to grant any sublicenses without MLBPA's prior express written
approval. Any attempt on the part of Licensee to arrange for manufacture by
a third party except as provided herein, or to sublicense, assign, encumber
or alter its rights under this Agreement by operation of law or otherwise
shall result in the automatic termination of this Agreement, and all rights
granted herein shall immediately revert to MLBPA.
14. TERMINATION.
(a) MLBPA's Right of Termination.
(i) Immediate Right of Termination. In addition to
the automatic termination provisions and/or termination rights provided
elsewhere in this Agreement, and notwithstanding any attempts by Licensee to
cure such defaults, MLBPA shall have the right immediately to terminate this
Agreement by giving written notice to Licensee if Licensee does any of the
following:
a. Manufactures, advertises, promotes, ships,
distributes and/or uses in any way any Promotional Material without having
the prior written approval of MLBPA as provided for in this Agreement;
b. Continues to manufacture, advertise, promote,
ship, distribute and/or use in any way any Promotional Material after receipt
of notice from MLBPA disapproving same;
c. Fails to carry on the Promotional Material
the notices specified by MLBPA, as required herein;
d. Becomes subject to any voluntary or
involuntary order of any governmental agency involving the recall of any of
the Promotional Material because of safety, health or other hazards or risks
to the public;
e. Directly or indirectly through its
controlling shareholders or any of its officers, directors or employees,
takes any action in connection with the manufacture, advertising, promotion,
shipment and/or distribution of the Promotional Material which damages or
reflects adversely upon MLBPA, the Rights and/or the Trademarks;
f. Breaches any of the provisions of this
Agreement relating to the unauthorized assertion of right in the Rights
and/or the Trademarks;
g. Fails to obtain or maintain insurance as
required by the provisions of this Agreement.
h. Utilizes the Rights and/or the Trademarks in
any manner or in connection with any product other than as specifically
authorized in this Agreement.
(ii) Curable Breaches by Licensee. If Licensee
a. Commits a material breach of any other terms
of this Agreement, or
b. Files a petition in bankruptcy or is
adjudicated a bankrupt or insolvent, or makes an assignment for the benefit
of creditors, or an arrangement pursuant to any bankruptcy law, or
discontinues its business, or if a receiver is appointed for it or its
business and is not discharged within thirty (30) days, and fails to cure
such default and furnish reasonable proof of its cure to MLBPA within fifteen
(15) days after receiving written notice of breach, MLBPA shall have the
right to terminate this Agreement by giving written notice to Licensee.
(b) Licensee's Right of Termination. If MLBPA commits a
material breach of any of the terms of this Agreement, and fails to cure such
default and furnish reasonable proof of its cure to Licensee within fifteen
(15) days after receiving written notice of breach, Licensee shall have the
right to terminate this Agreement by giving written notice to MLBPA.
15. POST-TERMINATION AND EXPIRATION RIGHTS AND OBLIGATIONS.
(a) Upon termination of this Agreement, Licensee and its
receivers, representatives, trustees, agents, administrators, successors
and/or permitted assigns shall have no right to use in any way the Rights,
the Trademarks, or any Promotional Material.
(b) Upon expiration of this Agreement or termination by
MLBPA, notwithstanding anything to the contrary herein, any and all sums due
to MLBPA shall become immediately due and payable.
(c) After the expiration or termination of this Agreement,
all rights granted to Licensee shall forthwith revert to MLBPA, and Licensee
shall refrain from further use of the Rights and/or the Trademarks or any
further reference to them, either directly or indirectly, in connection with
the manufacture, advertising, promotion, shipment and/or distribution of
Promotional Material or otherwise. Licensee shall further destroy all
artwork, films, transparencies, separations, printing plates, molds and other
materials which reproduce the Trademarks and/or the Rights and shall give
MLBPA satisfactory evidence of their destruction. Licensee shall be
responsible to MLBPA for any damages caused by the unauthorized use by
Licensee or by others of such reproduction materials which are not destroyed.
(d) Licensee acknowledges that its failure to cease use of
the Promotional Material at the termination or expiration of this Agreement
will result in immediate and irreparable damage to MLBPA and/or to the
players and to the rights of any subsequent licensee of the MLBPA. Licensee
acknowledges and admits that there is no adequate remedy at law for failure
to cease such activities and Licensee agrees that in the event of such
failure, in addition to all other remedies available to it hereunder, MLBPA
at its sole option may commence an action in any court having jurisdiction or
an arbitration proceeding, and shall be entitled to equitable relief by way
of injunctive relief and such other relief as any arbitrators or court with
jurisdiction may deem just and proper.
16. FINAL STATEMENT UPON TERMINATION OR EXPIRATION.
Within fifteen (15) days after termination or expiration of this
Agreement, as the case may be, Licensee shall deliver to MLBPA a statement
indicating the number and description of the Promotional Material which it
had on hand as of the expiration or termination date. MLBPA shall have the
option upon prior written notice to Licensee of conducting a physical
inventory at the time of expiration or termination and/or at a later date in
order to ascertain or verify such statement. Licensee shall immediately
destroy such inventory and furnish MLBPA with satisfactory evidence of its
destruction. In the event that Licensee refuses to permit MLBPA to conduct
such physical inventory, MLBPA shall have recourse to all other remedies
available to it.
17. NOTICES.
All notices or other communications required or desired to be
sent to either party shall be in writing and sent by Registered or Certified
Mail, postage prepaid, return receipt requested, or by facsimile or telegram,
charges prepaid. Such notices, including facsimile or telegram, shall be
effective on the date sent, provided that any notice sent by facsimile also
shall be sent by regular mail. The addresses for MLBPA and Licensee shall be
as set forth on Schedule B. Either party may change its address by notice in
writing to the other party.
18. RELATIONSHIP OF THE PARTIES.
This Agreement does not create a partnership or joint venture
between the parties and neither party shall have any power to obligate or
bind the other in any manner whatsoever.
19. APPLICABLE LAW AND DISPUTES.
This Agreement is made within the State of New York and shall be
construed in accordance with the laws of the United States and the State of
New York. Licensee hereby expressly waives any right to the benefits of
remedial legislation, if any, of Licensee's home state.
20. REMEDIES.
(a) Except as otherwise provided herein, any dispute or
disagreement between the parties hereto arising out of or relating to this
Agreement shall be settled by final and binding arbitration, in New York
City, under the rules then obtaining of the American Arbitration Association.
The parties hereto expressly stipulate that the arbitrators) shall have full
subpoena power and full powers to fashion appropriate remedies, including
without limitation the power to grant equitable and/or injunctive and/or
declaratory relief. Judgment upon the award may be entered in any court
having jurisdiction.
(b) Licensee recognizes the unique nature of the Rights and
the Trademarks, and the possibility that breaches of this Agreement by
Licensee may require preliminary or extraordinary relief beyond that
available in arbitration, and the possibility that breaches of this Agreement
may involve third parties or witnesses or issues which are beyond the
practical jurisdiction of arbitrators. Accordingly, notwithstanding the
provisions of paragraph 20(a), MLBPA (but not Licensee) may, at its sole and
exclusive option, elect as an alternative to arbitration to commence an
action or proceeding in any court of competent jurisdiction to enforce this
Agreement or protect the Rights and the Trademarks. MLBPA may also require
the termination of a previously commenced arbitration proceeding so as to
permit a dispute between the parties to be resolved in an action or
proceeding in a court of competent jurisdiction, so long as MLBPA has
theretofore not waived its right to do so by taking substantial steps to
prosecute or defend the arbitration proceeding.
21. CAPTIONS.
The captions used in connection with the paragraphs and
subparagraphs of this Agreement are inserted only for purpose of reference.
Such captions shall not be deemed to govern, limit, modify or in any other
manner affect the scope, meaning or intent of the provisions of this
Agreement or any part thereof nor shall such captions otherwise be given any
legal effect
22. WAIVER.
(a) No waiver by either party of a breach or a default
hereunder shall be deemed a waiver by such party of a subsequent breach or
default of a like or similar nature.
(b) Resort by either party to any remedies referred to in
this Agreement or arising by reason of a breach of this Agreement by the
other party shall not be construed as a waiver by such party of its right to
resort to any and all other legal and equitable remedies available to it.
23. SURVIVAL OF THE RIGHTS.
Any rights and obligations created by this Agreement and which by
necessary implication continue after its expiration or termination shall
survive such expiration or termination.
24. SEVERABILITY.
In the event that any term or provision of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other term or provision and this Agreement shall be interpreted and construed
as if such term or provision, to the extent the same shall have been held to
be invalid, illegal or unenforceable, had never been contained herein.
25. INTEGRATION.
This Agreement represents the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, understandings or agreements, oral or written,
between the parties with respect to the subject matter hereof. This
Agreement cannot be modified except by a written instrument signed by the
parties hereto.
By their execution below, the parties hereto have agreed to all
of the terms and conditions of this Agreement.
MAJOR LEAGUE BASEBALL /s/ Xxxxx Xxxxx
PLAYERS ASSOCIATION ---------------------------
By: /s/ Xxxxxx Xxxx By: Xxxxx Xxxxx
--------------------- ------------------------
Date: 9.15.99 Date: 9/14/99
------------------- ----------------------
SCHEDULE A
TRADEMARKS
MLBPA
Major League Baseball Players Association
MLB Players Choice Logo
THE RIGHTS
The names, nicknames, likenesses, signatures, pictures, numbers,
playing records, and/or biographical data of those active baseball players in
the National League and the American League who have entered into a
Commercial Authorization Agreement with the MLBPA. Licensee shall be
required to submit list(s) of players Licensee desires to use for approval by
the MLBPA. Licensee shall not utilize any players until the MLBPA has
approved, in writing, the player list(s) submitted by Licensee.
SCHEDULE B
DESCRIPTION OF PROMOTION
Licensee shall utilize the granted rights for use in connection with
the sale of its cereal products. Licensee is required to utilize at least
eight players, in equal prominence, on each package, advertisement, and
signing. If Licensee chooses to utilize less than eight players on a box,
highlight agreements with each player must be completed, and one (1) copy
provided to the MLBPA, prior to final approval by the MLBPA.
LICENSE PERIOD
June 1, 1999 to April 14, 2000.
LICENSED TERRITORY
United States, its possessions and territories, Canada, and the Caribbean
PROMOTIONAL RIGHTS FEE
$125,000, payable as follows:
$5,000 upon execution of this agreement, $20,000 on or before
October 15th, 1999, and $100,000 on or before April 14th, 2000.
ROYALTY AND STATEMENTS
Licensee will pay a 13.5% royalty on the total cost of all trading cards, and
10% on the total cost of all other premium items utilizing the granted
rights. Royalties shall be payable as follows: For product distributed prior
to November 15th, 1999, royalties shall be due on or before December 15th,
1999. For product distributed after November 15th, 1999, royalties shall be
due on or before April 30, 2000.
ADDITIONAL CONSIDERATIONS
Licensee will distribute, at a minimum, cereal boxes that highlight the
following players during the term of the agreement: Xxx Xxxxxx, Xx., Xxxxx
Xxxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxx Caminetti, Xxxx Xxxxxxx, Xxxxx Xxxxxx.
Licensee shall include the Players Choice logo and the c MLBPA, on all boxes,
in a manner that is approved by MLBPA in advance and in writing, with the
exception of boxes that have been produced prior to the date of this
agreement for "Cal's Classic O's" cereal. Licensee must submit all
materials, including but not limited to, boxes, in-pack or mail-in premiums,
selling materials, press releases, point-of-purchase materials to MLBPA for
approval prior to production.
ADDRESSES FOR NOTICES
Major League Baseball Players Association
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 1 7
Attn: Xxxx Xxxxxx
Famous Fixins, Inc.
000 Xxxx 00xx Xx.
Xxxxx 0000
XxxXxxx, XX 00000
Attn: Xxxxx Xxxxx
Acknowledged and Approved:
MAJOR LEAGUE BASEBALL /s/ Xxxxx Xxxxx
PLAYERS ASSOCIATION ------------------------------
Famous Fixins, Inc. (LICENSEE)
By: /s/ Xxxxxx Xxxx By: Xxxxx Xxxxx
--------------------- ---------------------------
Date: 9.15.99 Date: 9/14/99
------------------- -------------------------
SCHEDULE C
MANUFACTURER'S AGREEMENT
Licensee: Famous Fixins, Inc.
Licensed Territory: United States, its possessions and territories, Canada,
and the Caribbean
Promotional Materials:
The undersigned understands that the Major League Baseball Players
Association ("MLBPA") has licensed the above named Licensee to produce the
above-named materials ("Promotional Materials") utilizing certain names,
logos, symbols, likenesses, signatures and pictures which are the property of
MLBPA ("the Rights"). In order to induce MLBPA to consent to the manufacture
of the Promotional Materials by the undersigned, the undersigned agrees that
it will not manufacture the Promotional Materials for anyone but the
Licensee; that it will not sell the Promotional Materials to anyone but the
Licensee; that it will not knowingly manufacture/he Promotional Materials for
distribution in any territory other than the above-named Licensed Territory;
that it will not (unless MLBPA otherwise consents in advance in writing)
manufacture any other merchandise utilizing any aspect of the Rights; that it
will permit such representatives as MLBPA may from time to time designate to
inspect the activities of the undersigned with relation to its manufacture of
the Promotional Materials and that whenever the Licensee ceases to require
the undersigned to manufacture the Promotional Materials, the undersigned
will return to the Licensee or to MLBPA any molds, plates, engravings, or
other devices used to reproduce any of the Rights and/or the Trademarks or at
the direction of MLBPA or Licensee will give satisfactory evidence of the
destruction thereof MLBPA shall be entitled to invoke any remedy permitted by
law for violation of this agreement by the undersigned.
Famous Fixins, Inc.
By:_______________________
Title:____________________
SCHEDULE D
Royalty Report for: Major League Baseball Players Association
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Licensee:________________ Date:
________________ Period Covered:______________
________________
SKU ITEM WHOLESALE QUANTITY GROSS SELLING RETURNS RETURNS NET ROYALTY ROYALTY
NUMBER DESCRIPTION PLAYER(S) PRICE/UNIT SHIPPED PRICE (UNITS) (DOLLARS) SALES RATE DUE
We had no sales for the period TOTALLY ROYALTIES DUE: ________
but our product is scheduled LESS GUARANTEED
to start shipping:___________ ROYALTIES PAID TO DATE: ________
[Date]
AMOUNT DUE: _____________________
THIS ROYALTY REPORT WAS CERTIFIED BY:____________________
[Signature]
____________________
[Title]
