EXHIBIT 10.11(l)
INDEMNIFICATION AGREEMENT
HUGO BOSS AG ("HUGO BOSS"), a corporation organized and existing under the
laws of the Federal Republic of Germany, and I.C. Xxxxxx & Company L.P.
("XXXXXX"), a Delaware limited partnership, in consideration of the mutual
agreements and consideration set forth herein, do hereby agree as follows:
RECITALS
A. HUGO BOSS and XXXXXX are resolving and terminating the litigation
captioned Hugo Boss Fashions, Inc., et al. v. Brookhurst, Inc., et al., Civil
Action Xx. 00 Xxx. 0000 (XXX) ("SDNY Litigation"). In connection with the
resolution and termination of the SDNY Litigation, HUGO BOSS and XXXXXX are
making certain agreements relating to the use of the trademarks "BOSS" and "HUGO
BOSS". HUGO BOSS and XXXXXX desire to proceed with these agreements without
violating the rights of any third parties, including any rights of Boss
Manufacturing Company ("BMC"), particularly those arising out of or relating to
a January 4, 1990 Agreement between HUGO BOSS and BMC ("BMC/HUGO BOSS
Agreement").
X. XXXX BOSS and XXXXXX do not believe that the current provisions of
their agreements relating to the termination and resolution of the litigation
and to the use of the trademarks "BOSS" and "HUGO BOSS" violate any rights of
BMC. However, the parties also acknowledge that the possibility of groundless
litigation cannot be foreclosed and that it is not always possible for the
triers of facts to hear all relevant evidence.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, HUGO BOSS and XXXXXX agree as follows:
1. HUGO BOSS shall indemnify, defend and hold harmless XXXXXX and its
partners and affiliates from and against (a) any legal fees and related
litigation costs relating to any claim or claims brought by BMC or its
successors, assigns, licensees or affiliates against XXXXXX, its partners or
affiliates and/or HUGO BOSS arising out of or related to the BMC/HUGO BOSS
Agreement, regardless of whether such claims sound in contract, tort or
otherwise, and (b) any monetary damages award or settlement amounts of any
nature awarded to or paid over to BMC (or its successors, assigns, licensees or
affiliates) as a result of any such claims.
2. HUGO Boss may elect, in its sole discretion, to assume control of the
defense, settlement, adjustment or compromise of any litigation with BMC (or its
successors, assigns, licensees or affiliates) in which HUGO BOSS has an
indemnity obligation to XXXXXX; provided, that HUGO BOSS shall not, without the
prior written consent of XXXXXX, which consent shall not be unreasonably
withheld, settle, adjust or compromise such litigation if such action would
result in a material adverse impact on Xxxxxx' BOSS business. If the same
counsel can represent both HUGO BOSS and XXXXXX in any litigation with BMC (or
its successors, assigns, licensees
or affiliates), HUGO BOSS need not provide separate counsel for XXXXXX, although
XXXXXX will still be entitled to retain its own separate counsel at XXXXXX' own
expense. If the same counsel cannot represent both HUGO BOSS and XXXXXX, XXXXXX
will be entitled to retain its own separate counsel and HUGO BOSS shall be
responsible for all reasonable and necessary legal fees relating to XXXXXX'
separate counsel.
3. HUGO BOSS' liability to XXXXXX under this Agreement shall be limited as
set forth above and, except as specifically provided herein, HUGO BOSS shall
have no liability to XXXXXX under this Agreement for losses, lost profits,
damages or costs incurred by XXXXXX in connection with the BMC/HUGO BOSS
Agreement.
4. Each party hereto (the "indemnifying party") shall indemnify, defend
and hold harmless the other party and its affiliates (the "indemnified party")
for costs actually incurred by the indemnified party arising out of any matter
involving both (i) the offering or trading of stock or other securities of the
indemnifying party on a stock exchange or in any other market and (ii) the
disclosure of the agreements referred to in Recital A hereto and the
transactions contemplated thereby and hereby.
5. Notwithstanding anything to the contrary set forth in the Foreign Boss
Rights Acquisition Agreement by and between XXXXXX and Ambra dated September 30,
1997, XXXXXX shall indemnify, defend and hold harmless HUGO BOSS and its
affiliates for costs actually incurred relating solely to the conduct of Xxxxxx'
BOSS business prior to the date hereof, excluding any matters involving the SDNY
Litigation or claims made by any party therein which are independently addressed
in the Settlement Agreement as defined in the Foreign Boss Rights Acquisition
Agreement. Notwithstanding anything to the contrary set forth in the Foreign
Boss Rights Acquisition Agreement, HUGO BOSS shall indemnify, defend and hold
harmless XXXXXX and its affiliates for costs actually incurred relating solely
to the conduct of HUGO BOSS' HUGO BOSS business prior to the date hereof
excluding any matters involving the SDNY Litigation or claims made by any party
therein which are independently addressed in the Settlement Agreement.
6. Any failure of HUGO BOSS, on the one hand, or of XXXXXX, on the other,
to comply with any of the obligations or agreements set forth in this Agreement
or to fulfill any condition set forth in this Agreement may be waived only by
written instrument signed by the other party. No failure by any party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver of such right, nor shall any single or partial exercise of any right
hereunder by any party preclude any other or future exercise of that right or
any other right hereunder by that party.
7. All notices, requests or other communications required or permitted
hereunder shall be given or made in writing and shall be (i) delivered
personally (including commercial carrier), (ii) sent by registered or certified
airmail, return receipt requested, postage prepaid or (iii) sent by telecopier,
addressed to the party to whom they are directed at the following
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addresses, or at such other address as may from time to time be designated by
such party to the others in accordance with this Section 7:
If to HUGO BOSS, to:
HUGO Boss AG
Xxxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Attention: Gert Xxxxxx Xxxxxx, Esq.
With a copy to:
COUDERT BROTHERS
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxx, Esq.
and
HOWREY & SIMON
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to XXXXXX, to:
I.C. XXXXXX & COMPANY L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, President and Co-CEO
I.C. XXXXXX & COMPANY, L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Chairman and Co-CEO
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With a copy to:
PIPER & MARBURY L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Any notice, request or other communications shall be deemed to have been
given and to be effective upon receipt or refusal by the addressee. Any party
may change its address for notices hereunder, effective upon giving of notice of
such change hereunder to the other party.
8. This Agreement embodies the entire understanding of the parties with
respect to the subject matter hereof. Notwithstanding the foregoing, the parties
acknowledge that a number of different agreements and instruments of which the
parties are signatory are all being executed simultaneously with this Agreement.
The parties acknowledge that this Agreement or instrument is to be interpreted
and enforced separately and independently of any other such agreement or
instrument, and the breach of any such agreement by a party shall not affect the
rights of such party under this Agreement. This Agreement may be amended or
modified only by an instrument of equal formality signed by the parties or their
duly authorized representatives. The parties have made no representations or
warranties not expressly set forth in this Agreement. This Agreement supersedes
and terminates all prior discussions, negotiations, understandings, arrangements
and agreements among the parties relating to the subject matter hereof, except
as expressly set forth herein.
9. This Agreement may be executed in any number of duplicate counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
10. No party hereto may assign any of its interests, rights or obligations
under this Agreement without the prior written consent of the other party.
Notwithstanding the foregoing, Hugo Boss may assign its rights, but not its
obligations, under this Agreement to any entity under common control with Hugo
Boss or to any successor in interest without the consent of Xxxxxx, and Xxxxxx
may assign its rights hereunder to any parent, subsidiary or other affiliate of
Xxxxxx if Xxxxxx or its successor in interest remains fully liable for the
performance of this Agreement by such assignee or transferee.
11. This Agreement and the provisions thereof shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto.
12. The validity, construction, operation and effect of any and all of the
terms and provisions of this Agreement shall be determined and enforced in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of law.
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13. All disputes arising from or in any way in connection with this
Agreement shall be finally settled through binding arbitration conducted
pursuant to the Rules of Conciliation and Arbitration of the International
Chamber of Commerce in effect as of the date of the initiation of any dispute
submitted to arbitration under this section ("ICC Rules") by three arbitrators
appointed in accordance with the ICC Rules. Except as provided in this Section
12, no modification or amendment of the ICC Rules applicable to any such
arbitration shall be binding upon the parties unless agreed to in writing by the
parties. In each such arbitration, each party to the dispute shall appoint one
arbitrator within 30 days of receipt by the defendant of the request for
arbitration, and the arbitrators so appointed by the parties shall appoint the
third arbitrator (who shall be the Chairman), within 30 days of the confirmation
of the later of the two arbitrators appointed by the parties. If any such
arbitration involves multiple claimants or multiple defendants, nomination of
arbitrators shall be governed by the applicable ICC rules. Notwithstanding
anything to the contrary contained in the ICC rules: (i) the arbitration
proceedings shall be conducted in the City of New York, State of New York; (ii)
the arbitration proceedings shall be conducted in the English language; and
(iii) the arbitrators shall apply New York law without regard to such state's
choice of law rules. If the non-prevailing party does not comply with an
arbitration decision, the prevailing party may immediately enforce the
arbitration decision in an equitable proceeding in court with both parties'
court costs and related attorneys' fees paid by the non-prevailing party in the
arbitration, unless the arbitration decision is modified, or not upheld or
enforced, in which case, each side shall bear its own costs and attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
November 5, 1997.
HUGO BOSS AG
By: /s/ Jorg-Xxxxx Xxxxxx
---------------------------
Name: Jorg-Xxxxx Xxxxxx
Title: Chief Financial Officer
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-fact
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I.C. XXXXXX & COMPANY L.P., a Delaware
Limited Partnership
By: I.G. DESIGN, INC., a Delaware corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief
Executive Officer
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief
Executive Officer
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