Exhibit 10.10
WORLDWIDE RIGHTS ACQUISITION AGREEMENT
AGREEMENT dated as of September 30, 1997, by and among I. C. Xxxxxx &
Company L.P., a limited partnership organized and existing under the laws of
Delaware ("Buyer"); Brookhurst, Inc., a corporation organized and existing under
the laws of California ("Seller"); and Xxxxxxx Xxx (individually, "Xxx", and
collectively, with Brookhurst, the "Selling Parties").
W I T N E S S E T H :
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, all of Seller's right, title and interest in and to all "BOSS"
trademarks and other proprietary interests, if any, related thereto owned by
Seller and used in connection with its business throughout the world together
with the goodwill symbolized by such trademarks, on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of BOSS Assets. Upon the terms and conditions
herein set forth, Seller shall sell, convey, transfer, assign and deliver to
Buyer on the Closing Date (as hereinafter defined), and Buyer shall purchase
from Seller on the Closing Date, the following assets, properties and rights of
Seller throughout the world (excluding Mexico) (the "Trademark Assets"), all of
which, taken together, represent the business of Seller operating under the BOSS
marks:
(a) any and all right, title and interest of the Selling Parties in and to
the trademarks, service marks, trade names, logos, insignias, designs,
copyrights (if any), and other proprietary interests therein, containing the
term "BOSS" or constituting a stylized B, throughout the world (excluding
Mexico), including, without limitation, all registrations and applications for
registration (including, to the fullest extent permitted by law, all "intent to
use" applications) therefor throughout the world (excluding Mexico) (the
"Trademarks"), and the goodwill symbolized by the Trademarks, together with all
causes of action and the proceeds thereof (except as set forth in paragraph
1.1(d)) in favor of the Selling Parties heretofore accrued or hereafter accruing
with respect to the Trademarks;
(b) all rights of the Selling Parties under license agreements, concurrent
use agreements and other agreements listed on Schedule 1.1(b) and all files
relating thereto (the "Assumed Agreements"), including, without limitation, an
assignment of all copyrights, if any, that the Selling Parties jointly or
severally may own as a result of designs and other works created by any licensee
of any portion of the Seller's BOSS business (including any works created by
Buyer and owned by Seller under Buyer's license from Seller); and
(c) all right, title and interest in and to all records and other
information the Selling Parties or either of them have within their possession
or control applicable to the products they or either of them have previously
licensed under the Trademarks and all trademark files relating to the Trademark
Assets, provided, however, that Seller shall not be responsible for (i)
destruction of records caused by an Act of God or other "Force Majeure" event,
or (ii) any immaterial non-intentional destruction of records.
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(d) Notwithstanding the foregoing, the parties acknowledge and agree that
Buyer is not acquiring any rights of Seller under its license agreements
(including, without limitation, rights to institute legal proceedings pursuant
to such license agreements) with Buyer, Boss Sportswear (U.S.A.) Inc. and
Checkmate Group LLC, all of which license agreements have been (or will at
Closing be) terminated. Nothing set forth in this Section 1.1 (d) shall limit
Seller's rights, if any, to seek indemnification and contribution from licensees
of Seller with regard to Excluded Liabilities, as hereinafter defined, which
rights are specifically reserved to Seller.
1.2 Liabilities. Buyer shall assume no liabilities or obligations,
whether now existing or arising in the future, fixed or contingent, known, or
unknown, relating to the use by the Selling Parties (including, without
limitation, use by any of Seller's affiliates, subsidiaries, predecessors or
licensees other than Buyer) of the Trademarks and any other matter relating to
the conduct of any business relating thereto prior to the Closing or with
respect to any permitted activities of Seller, or any of its affiliates,
subsidiaries, predecessors or licensees after the Closing Date ("Excluded
Liabilities").
1.3 Encumbrances. The sale and transfer of the Trademark Assets
shall be free and clear of all pledges, security interests, mortgages and liens
("Encumbrances").
ARTICLE
CONSIDERATION
2.1 Consideration. In consideration of the sale and transfer of the
Trademark Assets to Buyer,
(a) on the Closing Date, Buyer shall pay * by wire transfer to a
bank account designated in writing by Seller;
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(b) on the Closing Date, Buyer shall pay * to the escrow agent
identified in the Escrow Agreement;
(c) on the Closing Date, Buyer shall deliver an executed Promissory
Note in the form annexed hereto as Exhibit A (the "Note"); and
(d) on the Closing Date, Buyer shall deliver a guaranty by * of
Buyer's obligations under the Note in the form annexed hereto as Exhibit B
(the"Guaranty").
ARTICLE
THE CLOSING
3.1 Time and Place of Closing. The closing of the purchase and sale
of the Trademark Assets hereunder (the "Closing") shall take place at the
offices of Coudert Brothers located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m. local time on a date agreed to by the parties (the
"Closing Date"), which date shall not be later than eight (8) business days
following the date on which the applicable waiting period, including any
extension thereof, under the HSR Act (as hereinafter defined) shall have
expired.
3.2 Deliveries To Be Made by the Seller. On the Closing Date, Seller
shall have executed and delivered to Buyer the following:
(a) executed trademark assignments substantially in the forms
attached hereto as Exhibit C;
(b) possession of (i) an original of each of Seller's Trademark
registrations currently in effect (except that a copy of Seller's California
state registration may be delivered); (ii) an original of any other
registrations for the Trademarks to the extent in Seller's possession,
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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custody or control; and (iii) Seller's original trademark application and
registration files including, for example, letters or other materials from
each of Seller's domestic and foreign trademark counsel showing deadlines for
trademark office actions to the extent in Seller's possession, custody or
control;
(c) an agreement of assignment and assumption of Assumed Agreements
in the form annexed hereto as Exhibit D (the "Assumption Agreement");
(d) an Escrow Agreement substantially in the form attached hereto as
Exhibit E (the "Escrow Agreement");
(e) an executed copy of the Note;
(f) an agreement terminating the License Agreement dated August 11,
l994 between Buyer and Seller substantially in the form annexed hereto as
Exhibit F (the "Termination Agreement"); and
(g) such other instruments and documents as may be elsewhere herein
required.
3.3 Deliveries To Be Made by Buyer. On the Closing Date, Buyer shall
have executed and delivered to Seller the following:
(a) the cash payment provided for in Section 2.1(a);
(b) the executed Note;
(c) the Assumption Agreement;
(d) the Escrow Agreement;
(e) delivery of the payment described in Section 2.1(b) to the
Escrow Agent;
(f) the Guaranty duly executed by *; and
(g) the Termination Agreement.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES
Each of the Selling Parties hereby jointly and severally makes the
following representations and warranties, each of which is complete and correct
on and as of the date hereof (it being acknowledged and agreed that *.
4.1 Organization and Good Standing of the Seller. Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California. * All qualifications of such company to do
business as well as similar registrations to do business or business name
registrations have been or will within 90 days after the Closing Date hereof
be altered, changed or withdrawn to reflect such name change.
4.2 Authority; Execution. Seller has all the requisite power and
authority, corporate and otherwise, to execute, deliver and perform its
obligations under this Agreement. The execution and delivery of this Agreement,
and each of the other instruments of transfer, conveyance and assignment
delivered hereunder, have been duly and validly authorized by all necessary
corporate and other action on the part of each of the Selling Parties, as
applicable, and this Agreement and each of such other instruments has been duly
executed by each of the Selling Parties, as applicable. This Agreement
constitutes the valid and binding agreement of each of the Selling Parties, as
applicable, enforceable against the Selling Parties in accordance with its
respective terms.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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4.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Agreement by the
Selling Parties and the consummation of the transactions contemplated hereby
will not: (i) violate or conflict with any provision of the charter
documents or by-laws of Seller; (ii) violate or conflict with, result in the
breach or termination of or otherwise give any other contracting party the
right to terminate, or constitute a default (or an event which, with the
lapse of time, or the giving of notice, or both, will constitute a default)
under, any contract or other instrument to which either Selling Party is a
party and which relate to the Trademark Assets or by which either Selling
Party is bound, or result in the creation of any Encumbrance upon any of the
Trademark Assets pursuant to the terms of any such contract or instrument, or
(iii) violate or conflict with any judgment, order, writ, injunction or
decree of any court or governmental body of any jurisdiction applicable to
either Selling Party (excluding any judgments, orders, writs, injunctions or
decrees in any actions or proceedings involving * or its affiliates) or, to
the knowledge of Seller, any law or regulation materially adversely affecting
Buyer's ability to exploit the Trademark Assets.
(b) Except as set forth on Schedule 4.3(b), there are no notices,
licenses, consents, permissions or approvals of any nature whatsoever which are
required to be obtained by Seller from any Federal, state or local governmental
or regulatory body or other third party or, to Seller's knowledge, from any
foreign governmental or regulatory body for the consummation of the transactions
contemplated by this Agreement, or as a condition to the sale, assignment and
transfer of the Trademark Assets to be effected hereunder.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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4.4 No Claims or Litigation. Except as set forth on Schedule 4.4(a), no
litigation, judicial or arbitral action, claim asserted in writing and
received by Seller or the Selling Parties within the preceding two years or,
to the knowledge of Seller, administrative or regulatory proceeding or
adversarial proceeding in any trademark office, or governmental investigation
involving the Trademark Assets or the transactions contemplated by this
Agreement, including, without limitation, any claim of conflict with or
violation of any proprietary or other right (collectively, "Litigation") is
pending or, to the knowledge of Seller, threatened against Seller. For
purposes of the foregoing, "Litigation" shall not be deemed to include any
actions, proceedings or claims involving * or its affiliates. Except as set
forth on Schedule 4.4(b), there is no judgment, order, injunction, decree or
award outstanding (whether rendered by a court, tribunal, administrative
agency or arbitral tribunal and excluding any judgments, orders, injunctions,
decrees or awards in any actions or proceedings involving * or its
affiliates), against Seller or referencing Seller by name or, to Seller's
knowledge, by which Seller is bound which affects the Trademark Assets or the
use of the Trademark Assets in any way.
4.5 Trademarks. Schedule 4.5.A hereto sets forth a correct and complete
list of all registrations currently in effect and pending applications for
registration of the Trademarks, together with dates of registration, including,
without limitation, pending copyright applications or registrations currently in
effect and current trade name or d/b/a applications or registrations, if any.
Schedule 4.5B sets forth, to the knowledge of Seller, all registrations and
applications for registration of Trademarks which are no longer in effect. All
registrations described in Schedule 4.5A are currently in effect and have not
been found to be invalid, and, except as set
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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forth in Schedule 4.5.C hereto, to Seller's knowledge, as of the date hereof
no filings or other action is required for at least 120 days from the date
hereof to maintain the registrations or applications described in Schedule
4.5.A in full force and effect. Except as set forth in Schedule 4.5.D,
Seller is not currently licensing any person to use or operate under any of
the Trademarks. True and complete copies and, if not available, descriptions
of all such licenses, including all amendments or modifications, have
heretofore been delivered to Buyer. Except as set forth in Schedule 4.5.E,
and except for customary sell-off rights granted to alleged infringers,
Seller has not affirmatively agreed or consented to the non-use by Seller, or
use by any third party, of any xxxx containing the word BOSS. * there are no
countries in which Seller or its licensees (other than Buyer) currently
manufacture products bearing the Trademarks. Other than with respect to
counterfeiters whose identities are unknown to Seller, Seller has, or will
within 30 days after the Closing Date have, delivered to Buyer all written
materials in its possession relating to any possible infringement, unfair
competition or other interference with Seller's rights in the Trademarks
involving apparel by any third party.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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Seller has paid, or will pay within a reasonable period of time, in full (or
otherwise to the satisfaction of the invoicing party) all outstanding
invoices of domestic and foreign trademark counsel (except counsel in Mexico)
for work done and disbursements incurred on behalf of the Selling Parties
(whether or not billed on or by the date hereof).
4.6 No Alienation of Rights. Except as set forth in the Assumed
Agreements or any other documents identified on Schedule 4.5.D or E or Schedule
4.6, no Selling Party has transferred, assigned, licensed (which license is
currently outstanding) or otherwise encumbered with Encumbrances any of its
rights in any Trademark Asset.
4.7 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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4.8 Ownership of Trademark Assets. As between the Selling Parties and
all affiliates and other persons or entities related in any manner to any
Selling Party, Seller owns all rights in and to the Trademark Assets.
4.9 Knowledge. Whenever a statement regarding the existence or absence of
facts in this Agreement is qualified by a phrase such as to Seller's knowledge
or words to similar effect, it is intended by the parties that the information
attributed to Seller be actually known, or information which should have been
known based on reasonable inquiry by *.
4.10 Materiality. The phrase "materially adversely affecting Buyer's
ability to exploit the Trademark Assets" or words of similar effect, shall be
deemed to mean (i) the existence or occurrence at any time from and after the
date hereof of any actual harm, or the existence of any reasonably anticipated
actual harm, to Buyer's ability to exploit the Trademark Assets or (ii) either
(x) the failure of Seller to remedy the breach in question assuming the breach
is remediable or (y) the inability of Seller to remedy the breach in question
without prejudice to Buyer's ability to exploit the Trademark Assets. For
purposes of this Section 4.10, no "actual
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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harm" shall be deemed to exist as to the first six claims of harm unless such
claim of harm reasonably involves at least the following amounts in damage or
loss:
First Claim *
Second Claim *
Third Claim *
Fourth Claim *
Fifth Claim *
Sixth Claim *
it being agreed that, without prejudice to, or limitation of, Seller's ability
to claim that such a subsequent claim involves no "actual harm", no such
monetary threshold applies to any subsequent claims.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties each of
which is complete and correct on and as of the date hereof:
5.1 Organization and Good Standing of Buyer. Buyer is a limited
partnership duly organized and validly existing under the laws of Delaware
5.2 Authority; Execution. Buyer has all requisite power and authority,
corporate and otherwise, to execute, deliver and perform its obligations under
this Agreement. The execution and delivery of this Agreement, and each of the
other instruments of transfer, conveyance and assignment delivered hereunder, by
Buyer have been duly and validly authorized by all necessary corporate and other
action on the part of Buyer, and this Agreement and each of such other
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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instruments has been duly executed by Buyer, as applicable. This Agreement
constitutes the valid and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms.
5.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Agreement by
Buyer and the consummation of the transactions contemplated hereby will not:
(i) violate or conflict with any provision of the certificate of limited
partnership and other organizational documents of Buyer; (ii) violate or
conflict with, result in the breach or termination of or otherwise give any
other contracting party the right to terminate, or constitute a default (or an
event which, with the lapse of time, or the giving of notice, or both, will
constitute a default) under, any contract or other instrument to which Buyer is
a party; or (iii) violate or conflict with any judgment, order, writ, injunction
or decree of any court or governmental body of any jurisdiction applicable to
Buyer (excluding any judgments, orders, injunctions, decrees or awards in any
actions or proceedings involving Seller or its affiliates) or, to the knowledge
of Buyer, any law or regulation materially adversely affecting Buyer's ability
to consummate the transaction contemplated by this Agreement.
(b) Except as provided in Schedule 5.3(B), there are no notices,
licenses, consents, permissions or approvals of any nature whatsoever which are
required to be obtained by Buyer from any Federal, state or local governmental
or regulatory body or other third party or, to Buyer's knowledge, from any
foreign governmental or regulatory body for the consummation of the transactions
contemplated by this Agreement, or as a condition to the sale, assignment and
transfer of the Trademark Assets to be effected hereunder.
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ARTICLE VI
COVENANTS
6.1 Further Assurances.
(a) From time to time until the expiration of * from the Closing
Date, upon the request and at the expense of Buyer but without further
consideration, Seller shall:
(i) do, execute, acknowledge, deliver and file, or shall cause
to be done, executed, acknowledged, delivered and filed, all such further acts,
deeds, transfers, conveyances, assignments or assurances (including, without
limitation, for purposes of transferring record ownership of the Trademark
Assets to Buyer) as may be reasonably requested by Buyer for transferring,
conveying, assigning and reducing to Buyer's possession, ownership and use of
the Trademark Assets including, without limitation, executing on the Closing
Date any assignments of foreign Trademarks in recordable form reasonably
requested by Buyer; and
(ii) deliver to Buyer such other records, documentation and
information in Seller's possession or control as may be reasonably requested by
Buyer to assist Buyer in the use and protection of the Trademark Assets.
(b) Seller shall keep and preserve any and all records,
documentation and information which relate to the Trademark Assets except as
otherwise provided herein. Seller may dispose or destroy any such records,
documentation and information at any time, provided that Seller first shall
notify Buyer so that Buyer may, at its expense and within a reasonable time
after receipt of such notice, obtain from Seller any or all of said records,
documentation and information. Seller shall not be responsible for (i)
destruction of records caused by an Act of
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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God or other "Force Majeure" event, or (ii) any immaterial
non-intentional destruction of records.
6.2 No Further Use of "BOSS". From and after the Closing Date hereof,
Selling Parties, (including, without limitation, all affiliates thereof) shall
cease all use of the name and xxxx "BOSS", all variations thereon and all other
names and marks which incorporate the term "BOSS" and will never use the name or
xxxx "BOSS", any variation thereon or any other names and marks which
incorporate the term "BOSS" in the future, except to the limited extent
permitted in Section 6.6. Notwithstanding the foregoing, Seller may make such
limited use of the name and xxxx "BOSS" as is permitted under the Settlement
Agreement (as hereinafter defined).
6.3 No Effect on Use of Other Marks of Seller. Nothing in this
Agreement shall prohibit the use by Seller, for any purpose, of the name or
xxxx "Brookhurst," or the name or xxxx * as to which trademarks Brookhurst
retains all right, title and interest.
6.4 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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*
6.5 Mail and Communications. From and after the Closing Date, Seller
shall promptly remit or refer to Buyer any mail or other communications,
including, without limitation, any written inquiries, relating to the
Trademarks Assets which are received by Seller from and after the Closing for
a period of *.
6.6 Sell-off of Inventories. (a) Seller currently has: approximately
* finished career apparel garments with a label that bears a BOSS logo in its
possession, the substantial majority of which constitutes uniforms for *
(such garments being hereinafter collectively referred to as the "Career
Apparel Garments"). Notwithstanding anything to the contrary contained
herein, Seller may for a period of * after the Closing Date: (i) continue to
sell and distribute the Career Apparel Garments in its possession on the date
hereof with a label that bears a * logo in the typeface which is set forth on
Exhibit G; provided, that Seller may extend the aforesaid limited use of *
labels up to an aggregate additional period of three years, provided it pays
in advance an annual license fee of * and executes a license agreement with
Buyer in a form mutually agreed to by the parties. Seller agrees that after
the Closing Date it will not order any new labels with a BOSS logo,
manufacture or cause to be manufactured any garments which will bear
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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a BOSS logo or label and will destroy its current inventory of labels with a
BOSS logo beyond those already used in the existing inventory of Career
Apparel Garments and will make no further use of any labels with a BOSS logo.
The use of any labels with a BOSS logo, or the sale or distribution of any
Career Apparel Garments with a label containing a BOSS logo in accordance
with the terms of this paragraph shall not constitute a breach of this
Agreement. None of the Career Apparel Garments bears a BOSS xxxx on the
exterior of such garments.
6.7 HSR Matters. As promptly as possible after the date hereof, but in
any case, not later than * following the date hereof, unless the parties
shall otherwise agree filing is unnecessary, Buyer and Seller shall file
their respective Notification and Report Forms under the Xxxx-Xxxxx Xxxxxx
Antitrust Improvements Act of 1976 as amended (the "HSR Act") with respect to
the transactions contemplated hereby. The parties further agree to request
early termination of the waiting period applicable to such filings under the
HSR Act and to respond as promptly as practicable to any request for
additional information made pursuant to the HSR Act.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER
7.1 Conditions Precedent to Obligations of Buyer. The obligation of
Buyer to consummate the transactions contemplated under this Agreement is
subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Buyer):
(a) the representations and warranties of the Selling Parties set
forth in Article IV hereof shall be true and correct in all material respects;
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(b) the Selling Parties shall have performed and complied in all
material respects with all covenants, obligations and undertakings required by
this Agreement to be performed or complied with on or prior to the Closing Date:
(c) Buyer shall have been furnished with a certificate, dated the
Closing Date and *;
(d) the applicable waiting period, including any extension thereof,
under the HSR Act shall have expired without action taken to prevent
consummation of the transactions contemplated by this Agreement;
(e) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Agreement;
(f) a settlement agreement by and among *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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*
(i) with respect to any intent-to-use applications for the
Trademarks presently outstanding for which use has been made prior to the date
hereof, a list of first use dates for each product listed in each of said
applications, if any, and documentary support for same to support "amendments
to allege use" shall have been delivered to Buyer; and
(j) the Escrow Agreement shall have been entered into by all parties
thereto.
7.2 Conditions Precedent to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated under this Agreement are
subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Seller):
(a) the representations and warranties of Buyer set forth in Article
V shall be true and correct in all material respects as of the Closing Date;
(b) Buyer shall have performed and complied in all material respects
with all obligations and undertakings required by this Agreement to be performed
or complied with by Buyer on or prior to the Closing Date;
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(c) Seller shall have been furnished with a certificate, dated the
Closing Date and executed by an officer of Buyer certifying to the fulfillment
of the conditions specified in Sections 7.2(a) and (b);
(d) the applicable waiting period, including any extension thereof,
under the HSR Act shall have expired without action taken to prevent
consummation of the transactions contemplated by this Agreement;
(e) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Agreement; and
*
(i) the Escrow Agreement shall have been entered into by all parties
thereto.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
INDEMNIFICATION
8.1 All representations and warranties contained in or made pursuant to
this Agreement shall be continuing and shall survive and remain in full force
and effect after the date hereof for a period of * notwithstanding any
investigation conducted by any party hereto. All claims for indemnification
under this Agreement shall be brought by the parties exclusively pursuant to,
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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and shall be disposed of exclusively in accordance with the terms of, this
Article VIII.
8.2 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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*
8.3 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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*
8.4 Notification of Claims. In the event of the occurrence of any event
which any party asserts constitutes a Buyer Indemnity Claim or Seller Indemnity
Claim, as applicable, the indemnified party shall provide the indemnifying party
with prompt notice of such event, including, without limitation, any facts and
circumstances which give rise to such claim, and shall otherwise make available
to the indemnifying party all relevant information which is material to the
claim and which is in the possession of the indemnified party. If such event
involves the claim of any third party (a "Third-Party Claim"), the indemnifying
party shall have the right to elect to join in the defense, settlement,
adjustment or compromise of any such Third-Party Claim, and to employ counsel to
assist such indemnifying party in connection with the handling of such claim, at
the sole expense of the indemnifying party, and no such claim shall be settled,
adjusted or compromised, or the defense thereof terminated, without the prior
consent of the indemnifying party unless and until the indemnifying party shall
have failed, after the lapse of a reasonable period of time, but in no event
more than 30 days after written notice to it of the Third-Party Claim, to join
in the defense, settlement, adjustment or compromise of the same. An
indemnified party's failure within a reasonable time to give notice or to
furnish the indemnifying party with any relevant data and documents in its
possession in connection with any Third-Party Claim shall not constitute a
defense (in part or in whole) to any claim for indemnification by such party,
except and only to the extent that such failure shall result in any material
prejudice to the indemnifying party. If so desired by any indemnifying party,
such party may elect, at such party's sole expense, to assume control of the
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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defense, settlement, adjustment or compromise of any Third-Party Claim, insofar
as the claim relates to the liability of the indemnifying party, provided that
such indemnifying party shall obtain the consent of all indemnified parties
before entering into any settlement, adjustment and compromise of such claim, or
ceasing to defend against such claim, if as a result thereof, or pursuant
thereto, there would be imposed on an indemnified party any liability or
obligation not covered by the indemnification obligations of the indemnifying
party under this Agreement (including, without limitation, any injunctive relief
or other remedy).
If Buyer has not received a written notice from Seller disputing Buyer's
Buyer Indemnity Claim within ninety (90) days after Buyer's submission of a
notice of such claim to Seller, then Buyer may provide a further notice sent to
Seller by registered or certified mail to the effect that Seller has not
disputed such claim and that Buyer intends to submit a Settlement Notice (as
defined in the Escrow Agreement) based on Seller having been deemed to have
consented to such claim and the computation thereof, as applicable. If Seller
does not within thirty (30) days after receipt of such latter notice dispute in
writing the Buyer Indemnity Claim by notice to Buyer and Escrow Agent, then
Seller shall be deemed to have consented to such claim and, to the extent set
forth in Buyer's notices, the computation thereof.
8.5 Escrow Agreement. (a) At the Closing, Buyer will deposit * with
the Escrow Agent, which amount shall be deemed to be part of the "Escrow
Fund" as defined in the Escrow Agreement. In addition, under the terms of
the Note and the Escrow Agreement, Buyer is obligated to deposit portions of
certain installments of principal and interest due under the Note with the
Escrow Agent on and as of the date payment of each such installment is due.
Effective upon each such deposit, such funds shall be deemed to become part
of the "Escrow
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-24-
Fund" for all purposes thereunder and shall be disbursed pursuant to the terms
of the Escrow Agreement.
8.6 *
8.7 *
ARTICLE IX
GENERAL
9.1 Waiver. Any failure of Buyer, on the one hand, or the Selling
Parties, 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.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-25-
9.2 Notices. All notices, requests or other communications required or
permitted hereunder (excluding, however, mail and/or communications covered
under paragraph 6.5 hereof) 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
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 9.2:
If to Seller, to:
Brookhurst, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx
Telecopier: 310/763-3846
Xxxxxxx Xxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: 310/763-3846
With a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 212/758-9526
If to Buyer, to:
I. C. Xxxxxx & Company L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and Co-Chief Executive Officer
Telecopier: 410/558-2096
-26-
I. C. Xxxxxx & Company L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman and Co-Chief Executive Officer
Telecopier: 212/695-7579
With a copy to:
Piper & Marbury L.L.P.
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: 410/576-1604
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 parties.
9.3 No Third Party Beneficiaries. Neither this Agreement nor any
provision hereof, nor any document or instrument executed or delivered pursuant
hereto, shall be deemed to create any right in favor of or impose any obligation
upon any person or entity other than Buyer and Selling Parties and their
respective successors and assigns.
9.4 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-27-
*
9.5 Captions and Paragraph Headings. Captions and paragraph headings used
in this Agreement are for convenience only and are not a part of this Agreement
and shall not be used in interpreting or construing it.
9.6 Entire Agreement. The making, execution and delivery of this
Agreement by the parties has been induced by no representations, statements,
warranties or agreements other than those herein expressed. 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 and at
Closing. The parties acknowledge that this Agreement or instrument is to be
interpreted and enforced separately and independently of any other such
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-28-
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.
9.7 Counterparts. 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.
9.8 Assignability. No party hereto may assign any of its interests,
rights or obligations under the Agreement without the prior written consent of
the other parties. Notwithstanding the foregoing, Buyer may assign its rights,
but not its obligations, under this Agreement to any entity under common control
with Buyer or to any assignee or other successor in interest to any of the
Trademark Assets without the consent of Seller, and Seller may assign its rights
under the Note and the Escrow Agreement in accordance with the terms of such
instruments, provided, that neither party may assign any rights referred to in
this Section 9.8 unless it has complied with all of its obligations under the
instrument the rights under which it wishes to assign. Any impermissible
attempted assignment of this Agreement without such prior written consent shall
be void as to the other parties to this Agreement. Nothing in this Section 9.8
shall be construed as requiring Seller's consent to any assignment of Buyer's
rights under this Agreement to * or any affiliate thereof and the
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-29-
assumption by such assignee of any obligations of Buyer (if any) relating
thereto.
9.9 Expenses. The parties shall each bear their own expenses in
connection with the negotiation, execution and delivery of this Agreement and
the performance of their respective obligations hereunder.
9.10 Successors and Assigns. 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.
9.11 Governing Law. 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 * without giving effect to
principles of conflicts of law thereunder except as to matters solely
involving foreign trademark rights, in which case the applicable foreign
trademark laws shall be applied to determine such foreign trademark rights.
In the event any legal action becomes necessary to enforce or interpret the
terms of this Agreement, the parties agree that such action will be brought
in *.
9.12 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-30-
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-31-
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-32-
*
9.13 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-33-
9.14 *
9.15 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-34-
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-35-
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-36-
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
-37-
IN WITNESS WHEREOF, the parties have duly signed this Agreement the day and
year first written above.
BROOKHURST, INC.
By:
---------------------------------
Name: Xxxxxxx Xxx
Title: President
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
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
XXXXXXX XXX
---------------------------------
IN WITNESS WHEREOF, the parties have duly signed this Agreement the day and
year first written above.
BROOKHURST, INC.
By: /s/ Xxxxxxx Xxx
----------------------------------
Name: Xxxxxxx Xxx
Title: President
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief
Executive Officer
By:
--------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief
Executive Officer
XXXXXXX XXX
/s/ Xxxxxxx Xxx
---------------------------------
"CERTAIN OBLIGATIONS (AS DEFINED ABOVE) OF I.C. XXXXXX & COMPANY L.P.
("XXXXXX") HAVE BEEN ASSUMED BY * AND THE SELLING PARTIES HAVE RELEASED
XXXXXX FROM SAID OBLIGATIONS.
BROOKHURST, INC.
By:__________________________(Seal)
XXXXXXX XXX, PRESIDENT
___________________________________
XXXXXXX XXX, INDIVIDUALLY"
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
WORLDWIDE RIGHTS ACQUISITION AGREEMENT
EXHIBITS
Exhibit A The Promissory Note
Exhibit B The * Guaranty
Exhibit C Trademark Assignments
Exhibit D Assumption Agreement
Exhibit E Escrow Agreement
Exhibit F Termination Agreement
Exhibit G "BOSS by Brookhurst" logo typeface
Exhibit H Certain Provisions in Settlement Agreement
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 1.1(b)
ASSUMED AGREEMENTS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.3(b)
THIRD PARTY CONSENTS AND WAIVERS
Xxxx-Xxxxx-Xxxxxx approval.
SCHEDULE 4.4(a)
LITIGATION
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
*
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
LIST OF MACAU PROCEEDINGS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
JAPAN
List of All Legal Matters Involving Boss Trademark
TRIALS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.4(b)
JUDGMENTS AND ORDERS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.5.A
CURRENT TRADEMARK REGISTRATIONS AND APPLICATIONS
*
* Prior to Closing, the Acquisition Agreement shall not be deemed to be
breached by inclusion of incorrect information relating to the Marks and
Classes in this Schedule. Said information shall be reviewed, corrected if
necessary, updated and confirmed by Seller prior to Closing.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
SCHEDULE 4.5.A
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
3
SCHEDULE 4.5.A
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.5B
PREVIOUS TRADEMARK REGISTRATIONS AND APPLICATIONS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Mexico
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
SCHEDULE 4.5.C
FILINGS AND ACTIONS REQUIRED WITHIN 120 DAYS
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.5.D
CURRENT BOSS LICENSES
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.5.E
AGREEMENTS RE USE OF TRADEMARK
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
SCHEDULE 4.5.E
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
SCHEDULE 4.6
ALIENATION OF RIGHTS
[NONE]
SCHEDULE 5.3(B)
THIRD PARTY CONSENTS
Xxxx-Xxxxx-Xxxxxx approval.
Approval from secured lender, Congress Financial Corporation.
Exhibit A to 10.10
EXHIBIT A/WWA
PROMISSORY NOTE
October __, 1997
FOR VALUE RECEIVED, I.C. XXXXXX & COMPANY L.P., a limited
partnership organized and existing under the laws of Delaware with its
principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 ( Maker
), hereby promises to pay to BROOKHURST, INC., a corporation organized and
existing under the laws of the State of California with its principal place
of business located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000
("Brookhurst"), the principal sum of U. S. $11,000,000, on the dates and in
the amounts hereinafter set forth. This Promissory Note is the promissory
note issued by Maker pursuant to a Worldwide Rights Acquisition Agreement by
and between Maker and Brookhurst (the Rights Agreement"). Capitalized terms
used but not defined herein shall have the respective meanings ascribed to
them in the Rights Agreement. This Promissory Note is hereinafter referred
to as the "Note".
1. Interest. The outstanding principal amount of this Note shall
bear simple interest at the per annum rate of * (computed on the basis of a
365 day year and the number of actual days elapsed), and shall be payable
quarterly, commencing with the quarterly payment due January 1, 1998 as set
forth in paragraph 2. Interest shall accrue as of the date of this Note and
thereafter on the outstanding and unpaid principal amount of this Note, and
shall be payable quarterly, as set forth in paragraph 2.
2. Principal, Interest and Maturity Date.
(a) Subject to paragraph 2(b) below, the following
principal and interest payments are to be made by Maker to
Brookhurst on the dates indicated:
Payment Due Date Principal Due Quarterly Interest
----------------- -------------- ------------------
Jan. 1, 1998 *
Apr. 1, 1998 *
July 1, 1998 *
Oct. 1, 1998 *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Jan. 1, 1999 *
Apr. 1, 1999 *
July 1, 1999 *
Oct. 1, 1999 * *
Jan. 1, 2000 *
Apr. 1, 2000 *
July 1, 2000 *
Oct. 1, 2000 * *
Jan. 1, 2001 *
Apr. 1, 2001 *
July 1, 2001 *
Oct. 1, 2001 * *
Jan. 1, 2002 *
Apr. 1, 2002 *
July 1, 2002 *
Oct. 1, 2002 * *
(b) The parties agree that subject to the provision of paragraph 3.2(e)
of the Escrow Agreement by and between Maker and Brookhurst of even date
herewith ("Escrow Agreement") * due under paragraph 2(a) of this Note shall
be transmitted by Maker to the Escrow Agent for deposit in the Escrow Fund
(as defined in the Escrow Agreement) under the terms and conditions of the
Escrow Agreement.
3. Prepayment. This Note may be prepaid at any time by Maker
upon payment of the total amount of principal and interest due as provided in
paragraph 2 *, less payments previously made hereunder, or upon such other
terms as the parties may agree.
4. General Payment Provisions. All payments of principal and
interest and other sums due pursuant to this Note to Brookhurst shall be made
* or to such other account as Brookhurst shall have previously designated to
Maker in writing not later than * Business Days (as defined below) prior to
the date on which such payment becomes due.
(ii) All payments of principal and interest and other
sums due pursuant to this Note to the Escrow Fund shall be made
pursuant to the requirements of the Escrow Agreement.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
(iii)If the due date of any payment under this Note
would otherwise fall on a day which is not a Business Day, such
date will be extended to the immediately succeeding Business Day.
The term "Business Day" shall mean any day other than Saturday,
Sunday, or a banking holiday of the United States, State of New
York, or *.
(iv) A late payment fee of * of any principal or interest payment
made more than * days after the due date hereunder shall be due with such
late payment, notwithstanding any right of cure by Maker. All such late
payments shall continue to accrue interest of the rate of * per annum from
the due date until the date actually paid.
5. Events of Default. An Event of Default shall
occur upon one or more of the following events:
(a) Maker shall default in the payment when due of any principal
or interest under this Note and such default shall continue unremedied for a
period of *, provided, however, that upon written notice from Brookhurst
Maker shall have * to cure any such non-payment, and such cure shall preclude
Brookhurst from declaring an Event of Default based upon non-payment; or
(b) Maker shall admit in writing its inability to, or
be generally unable to, pay its debts as such debts generally
become due; or
(c) Maker shall (i) apply for or consent in writing to
the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidation of itself or of all or a
substantial part of its property, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case
under Title II of the United States Code (as now or hereafter in
effect) (the "Bankruptcy Code"), or such other such similar law
in any jurisdiction, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of
debts, (v) acquiesce in writing to any petition filed against it
in an involuntary case under the Bankruptcy Code, or (vi) take
any corporate action for the purpose of effecting any of the
foregoing; or
(d) a proceeding or case shall be commenced, without
the application or consent of Maker in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of
its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such entity or
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
3
of all or any substantial part of its assets, or (iii) similar
relief in respect of such entity, under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of ninety (90)
days; or an order for relief against any such entity shall be
entered in an involuntary case under the Bankruptcy Code or such
other similar law in any jurisdiction;
Upon and during the continuance of an Event of Default, and subject
to the provisions of Section 15 of this Note, (i) Brookhurst may, by written
notice to Maker, declare the principal amount then outstanding of, and the
total interest on, this Note (ie., *), to be forthwith due and payable,
whereupon such amount shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which
are hereby expressly waived by Maker; (ii) Maker shall pay all of the
expenses of Brookhurst incurred for the collection of this Note, including
reasonable attorneys' fees and legal expenses, and (iii) Brookhurst may
exercise from time to time any other rights and remedies available to it by
law, including without limitation those available under any agreement or
other instrument relating to the amounts owed under this Note. No delay on
the part of Brookhurst in the exercise of any right or remedy shall operate
as a waiver thereof, and no single or partial exercise by Brookhurst of any
right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy.
6. *
7. No Assignment. The rights and obligations under this Note may
be assigned by Maker only with the written consent of Brookhurst; provided
that nothing in this Section 7 shall be construed as requiring Brookhurst's
consent to an assumption of the obligations and assignment of the rights of
Maker under this Note by * or its subsidiary * as permitted under Section 15
of this Note and nothing in this Section 7 shall be construed as affecting
Maker's rights under Section 15. Upon assignment, Brookhurst agrees that the
assignee shall stand in the shoes of Maker, and shall have all of the
obligations and rights as Maker, including, without limitation, the rights
and obligations assumed by Maker under the Rights Agreement, the Escrow
Agreement, and the right of setoff as provided in paragraph 6 of this Note.
Brookhurst may assign this Note to any third party, provided that such
assignment does not in any way limit Maker's right of setoff as provided in
paragraph 6 of this Note.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
4
8. Entire Agreement. Except as set forth in this
Section 8 and the definition of capitalized terms used in this
Note, the terms of this Note evidence the entire agreement
between Maker and Brookhurst regarding the indebtedness evidenced
by this Note and the terms and provisions of the Rights Agreement
shall in no way control, interpret, amend, add to or affect the
rights, duties and obligations of Maker and Brookhurst under this
Note.
9. Governing Law. This Note shall be governed by, and construed
in accordance with, the laws of * applicable to contracts made and to be
performed entirely in the * without regard to such state's choice of law
rules.
10. Notices. All notices, demands or requests or
other communications relating to any matter set forth herein
shall be given or made in writing and shall be (i) delivered
personally (including commercial courier), or (ii) sent by
registered or certified airmail, return receipt requested,
postage prepaid, addressed to the party to whom they are directed
at the following address, or at such other address as may be
designated by notice from such party.
If to Brookhurst: Brookhurst, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn.: Xxxxxxx X. Xxx
with a copy to: Shereff, Friedman, Xxxxxxx &
Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxx, Esq.
If to Maker: I.C. Xxxxxx & Company, L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
President and Co-Chief
Executive Officer
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
5
and
I.C. Xxxxxx & Company, L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Chairman and Co-Chief
Executive Officer
With a copy to:
Piper & Marbury L.L.P.
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Any notice, request, demand or other communication
given or made in the manner prescribed in this paragraph 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 notice of such change
hereunder to the other party.
11. Adjustment of Interest Rate or Fees. No provision
of this Note shall require the payment of interest to the extent
that receipt of any such payment by Brookhurst would be contrary
to the provisions of United States law, if any, limiting the
maximum amount of interest or fees that may be charged to or
collected from Maker, and if any sum in excess of such maximum
rate of interest of fees is paid or charged, the excess will be
returned to Maker, without premium or penalty, and all payments
made thereafter will be appropriately applied to interest and
principal to give effect to such maximum rate, and after such
application any amount paid in excess of principal due Brookhurst
shall be immediately refunded to Maker.
If the maximum rate of interest, if any, now permitted
by law to be charged for this transaction is increased, then for
so long as the increase is in effect, the applicable maximum rate
permitted to be charged as referred to in the paragraph
immediately preceding will be deemed to be such increased rate.
If the maximum rate of interest, if any, now permitted by law to
be charged for this transaction should be eliminated so that
there would be no maximum rate, then interest on this Note shall
thereafter be paid at the rate provided in this Note.
6
12. Waiver. Maker hereby waives diligence,
presentment, protest, demand for payment and notice of default,
dishonor or nonpayment to or upon Maker with respect to this Note
except as otherwise provided herein. No delay on the part of
Brookhurst in exercising any right hereunder shall operate as a
waiver of such right under this Note.
13. Modifications in Writing. This Note may not be
changed orally, but only by an agreement in writing, signed by
the party against whom enforcement of any waiver, change,
modification or discharge is sought.
14. *
15. *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
7
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
8
16. Execution by Brookhurst. Notwithstanding anything
in this Note to the contrary, this Note shall not be effective
and enforceable against Maker unless and until it has been signed
below by Brookhurst. Brookhurst signs below to further evidence
Brookhurst's agreement to be bound by the terms of this Note.
I.C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By: I.G. DESIGN, INC., a Delaware
corporation, its general partner
By: ___________________________________
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief
Executive Officer
By: ___________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief
Executive Officer
Brookhurst, Inc.
By: ___________________________________
Name:
Title:
THE OBLIGATIONS (AS DEFINED ABOVE) OF I.C. XXXXXX & COMPANY L.P. ( XXXXXX )
HAVE BEEN ASSUMED BY * AND BROOKHURST HAS RELEASED XXXXXX FROM THE
OBLIGATIONS. XXXXXX HAS NO OBLIGATIONS UNDER THIS NOTE OR THE ESCROW
AGREEMENT.
BROOKHURST, INC.
By: (Seal)
Xxxxxxx Xxx, President
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
9
EXHIBIT B/WWA
GUARANTY OF PROMISSORY NOTE
For valuable consideration, the undersigned, * ("Guarantor"),
hereby unconditionally guarantees the due, prompt and complete performance
(including payment) at stated maturity, by acceleration or otherwise by I.C.
Xxxxxx & Company L.P., a Delaware limited partnership ("Buyer"), of each and
every obligation and liability now or hereafter existing of Buyer under that
certain Promissory Note, dated September ___, 1997 ("Note") to Brookhurst,
Inc. ("Seller") whether for principal, interest, fees, expenses, attorneys'
fees, court costs and collection charges incurred by Seller in enforcing this
Guaranty ("the "Obligations") or otherwise.
The obligations of Guarantor under this Guaranty are independent of
the obligations of Buyer, and a separate action or actions may be brought
against Guarantor, whether action is brought against Buyer or whether Buyer is
joined in any such action or actions; provided, however, Seller shall be
required to first comply with any procedures specified in the Note or any
agreement ancillary thereto with respect to demands to be made against Buyer or
actions to be taken in order to quantify an amount due or identify an issue in
dispute.
If any provision of this Guaranty is held invalid or unenforceable,
the remainder of this Guaranty shall not be affected thereby, the provisions of
this Guaranty being severable in any such instance.
Guarantor guarantees that the Obligations will be paid strictly in
accordance with the terms of the Note, regardless of any law, regulation or
order, except an order with respect to the liability of Buyer or Guarantor under
this Note now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of Seller with respect thereto. The liability of Guarantor
under this Guaranty *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
*
Any action, inaction, change, extension, waiver, or consent referred to above
may be in such manner and upon such terms Seller and Buyer may deem proper, and
without notice to or further assent from the Guarantor, and all without
affecting this Guaranty or the obligations of the Guarantor hereunder, which
shall continue in full force and effect until all of the Obligations and all
obligations of the Guarantor hereunder shall be fully paid and performed.
Guarantor hereby waives promptness, diligence, presentment, demand,
protest, notice of acceptance or of the occurrence of an Event of Default and
any other notice with respect to any of the Obligations and this Guaranty and
any requirement that Seller exhaust any right or take any action against Buyer
or other person or entity.
Guarantor hereby represents and warrants as follows:
(i) The execution, delivery and performance by Guarantor of this
Guaranty do not contravene any law or contractual restriction
binding on or affecting Guarantor.
(ii) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and
performance by Guarantor of this Guaranty.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
(iii) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable in accordance with its terms.
No amendment or waiver of any provision of this Guaranty nor consent
to any departure by Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by Seller.
No failure on the part of Seller to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
*
*
This Guaranty shall be governed by, and construed in accordance
with, the laws of * without reference to its choice of law rules.*
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written. This Guaranty shall terminate immediately upon satisfaction
of the Note.
Dated September ___, 1997 *
By:
-------------------------
Name:
-----------------------
Title:
----------------------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
3
WITNESSES:
-------------------------
-------------------------
4
EXHIBIT C/WWA
TRADEMARK ASSIGNMENT
This Assignment is effective as of the ____ day of __________________,
1997, by and between Brookhurst, Inc., a California corporation with its
principal place of business at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Assignor") and I.C. Xxxxxx, X.X., a Delaware Limited Partnership with its
principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain trademarks in the United States
of America constituting or containing the word BOSS and the Stylized B,
including common law rights and rights in certain trademark registrations and
applications for registration listed on the "Schedule of Trademarks" attached
hereto, together with the good will of the business associated therewith (the
"Trademarks");
WHEREAS, Assignee desires to acquire all right, title and interest of
Assignor in and to the Trademarks;
NOW, THEREFORE, to All Whom It May Concern, be it known that for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Assignor does hereby sell, assign, transfer and set over, to
Assignee, its successors and assigns forever, its entire right, title and
interest in and to the Trademarks, the same to be held and enjoyed by Assignee
for its own use and enjoyment, and for the use and enjoyment of its successors,
assigns or other legal representatives forever, as fully and entirely as the
same would have been held and enjoyed by Assignor had the assignment and sale
set forth herein not been made.
IN TESTIMONY WHEREOF, Assignor has caused these presents to be signed by
its officer thereunto duly authorized, and its corporate seal to be hereto
affixed.
BROOKHURST, INC.
By:
-------------------------------
Name:
Title:
COUNTY OF NEW YORK :
:ss:
STATE OF NEW YORK :
On this ____ day of _____________, 1997, before me personally appeared
________________, to me personally known, who, being duly sworn, did say that he
is ________________ of ____________________, a California corporation, and that
the foregoing instrument was signed and sealed on behalf of the corporation by
authority of its Board of Directors, and that he acknowledges such instrument to
be the free deed and act of said corporation for the purposes therein set forth
and intending that this instrument be recorded.
--------------------------------
Notary Public
-2-
SCHEDULE OF TRADEMARKS
Brookhurst, Inc.'s BOSS
U.S. Trademark Applications/Registrations
*
* Prior to Closing, the Acquisition Agreement shall not be deemed to be
breached by inclusion of incorrect information relating to the
Classification or Status in this Schedule. Said information shall be
reviewed, corrected if necessary, updated and confirmed by Seller prior to
Closing.
** For ease of reference the description of goods in this chart is
generalized.
------------------------------------------------------------------------------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
------------------------------------------------------------------------------
U.S. Trademark Applications/Registrations (Page 2 of 3)
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
U.S. Trademark Applications/Registrations (Page 3 of 3)
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
EXHIBIT C/WWA
TRADEMARK ASSIGNMENT
This Assignment is effective as of the ____ day of __________________,
1997, by and between Brookhurst, Inc., a California corporation with its
principal place of business at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Assignor") and I.C. Xxxxxx, X.X., a Delaware Limited Partnership with its
principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of certain trademarks outside of the United
States of America except Mexico constituting or containing the word BOSS and the
Stylized B, including common law rights and rights in trademark registrations
and applications for registration outside the United States of America except
Mexico and listed on the Schedule of Trademarks attached hereto, together with
the good will of the business outside the United States of America except Mexico
associated therewith throughout the world (the "Trademarks");
WHEREAS, Assignee desires to acquire all right, title and interest of
Assignor in and to the Trademarks;
NOW, THEREFORE, to All Whom It May Concern, be it known that for and in
consideration of good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged. Assignor does hereby sell, assign, transfer and
set over, to Assignee, its successors and assigns forever, its entire right,
title and interest in and to the Trademarks, the same to be held and enjoyed by
Assignee for its own use and enjoyment, and for the use and enjoyment of its
successors, assigns or other legal representatives forever, as fully and
entirely as the same would have been held and enjoyed by Assignor had the
assignment and sale set forth herein not been made.
IN TESTIMONY WHEREOF, Assignor has caused these presents to be signed by
its officer thereunto duly authorized, and its corporate seal to be hereto
affixed.
BROOKHURST, INC.
By:_________________________
Name:
Title:
COUNTY OF NEW YORK :
:ss:
STATE OF NEW YORK :
On this ____day of _____________, 1997, before me personally appeared
_____________, to me personally known, who, being duly sworn, did say that he is
________________ of ___________________, a California corporation, and that the
foregoing instrument was signed and sealed on behalf of the corporation by
authority of its Board of Directors, and that he acknowledges such instrument to
be the free deed and act of said corporation for the purposes therein set forth
and intending that this instrument be recorded.
______________________
Notary Public
-2-
SCHEDULE OF TRADEMARKS
Brookhurst Inc.'s BOSS
Non-U.S. Trademark Applications/Registrations*
*
* Prior to Closing, the Acquisition Agreement shall not be deemed to be
breached by inclusion of incorrect information relating to the
Classification or Status in this Schedule. Said informaion shall be
reviewed, corrected if necessary, updated and confirmed by Seller prior to
Closing.
** For ease of reference the decsription of goods in this chart is
generalized.
------------------------------------------------------------------------------
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
------------------------------------------------------------------------------
EXHIBIT D/WWA
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into this ___
day of September, 1997, by and between Brookhurst, Inc., a California
corporation ("Brookhurst") and I.C. Xxxxxx & Company L.P., a Delaware limited
partnership ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Brookhurst has agreed to sell, transfer and assign to Xxxxxx, and
Xxxxxx has agreed to purchase and accept from Brookhurst certain assets of
Brookhurst pursuant to a Worldwide Rights Acquisition Agreement entered into on
September __, 1997 between Brookhurst and Xxxxxx (the "Acquisition Agreement");
WHEREAS, Xxxxxx has agreed to assume certain obligations related to said
acquired assets;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is agreed as follows:
1. Capitalized terms used herein and not defined herein shall have the
meanings given such terms in the Acquisition Agreement.
2. Brookhurst hereby assigns to Xxxxxx all its rights under the agreements
identified on the schedule attached hereto constituting the Assumed Agreements,
and all files relating thereto, free and clear of all Encumbrances.
3. Xxxxxx hereby assumes all obligations of Seller arising from and after
the date hereof under the Assumed Agreements solely insofar as they arise after
Closing.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day, month and year first above written.
BROOKHURST, INC.
By:_________________________
Name:_______________
Title:______________
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By:_______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief Executive Officer
By:_______________________________________________
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief Executive Officer
-2-
SCHEDULE
See Schedule 1.1(b)
Exhibit E to 10.10
EXHIBIT E/WWA
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into this ___ day of September 1997, by
and among (i) I. C. Xxxxxx & Company L.P., a Delaware limited partnership
("Buyer"); (ii) Brookhurst, Inc., a California corporation ("Seller") and
(iii) ______________________________________________ (the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, Seller and Buyer are parties to a Worldwide Rights Acquisition
Agreement dated September __, 1997 (the "Acquisition Agreement") pursuant to
which Seller has sold to Buyer, and Buyer has purchased from Seller, subject
to the terms and conditions set forth in the Agreement, certain assets,
subject to certain liabilities, of Seller constituting the assets of the
BOSS business of Seller;
WHEREAS, Buyer and Seller wish to enter into this Escrow Agreement in
order to establish an escrow arrangement for certain funds that are being and
will be deposited with the Escrow Agent pursuant to the terms of the
Acquisition Agreement and a promissory note of even date herewith in favor of
Seller (the "Note");
WHEREAS, funds deposited with the Escrow Agent hereunder shall be
referred to as the "Escrow Fund";
WHEREAS, Buyer and Seller wish to appoint the Escrow Agent, and the
Escrow Agent has agreed to act, as a depository and administrator of the
Escrow Fund upon the terms, conditions and provisions hereinafter set forth;
and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, receipt of which
is hereby acknowledged by the Escrow Agent, it is hereby agreed among the
parties hereto as follows:
1. Appointment of the Escrow Agent
1.1 Buyer and Seller hereby designate the Escrow Agent, and the Escrow
Agent hereby agrees to act, as a depository and administrator of the Escrow
Fund, subject to the terms and conditions set forth herein.
1.2 The Escrow Agent's duties and responsibilities, in its capacity as
such, shall be limited to those expressly set forth in this Escrow Agreement,
and the Escrow Agent shall not be subject to, nor obligated to recognize, any
other agreement between any or all of the parties hereto even though
reference thereto may be made herein, except to the extent that definitions
contained in the Acquisition Agreement are incorporated into this Escrow
Agreement. This Escrow Agreement may not be amended at any time in such a
way as to affect the rights, responsibilities, obligations, liabilities or
fees of the Escrow Agent except with the Escrow Agent's prior written
consent, as evidenced by an instrument in writing signed by all the parties
hereto.
1.3 The Escrow Agent, in its capacity as such, is authorized, in its
sole discretion, to disregard any and all notices or directions given by
Buyer or Seller or by any other person, firm or corporation, except (i) such
notices, directions, instructions as are specifically provided for herein,
(ii) joint written instructions received by the Escrow Agent from Buyer and
Seller and (iii) a Final Order (as hereinafter defined). If any property
subject hereto is at any time attached, garnished or levied upon under a
Final Order, or in case the payment, assignment, transfer, conveyance or
delivery of any such property shall be stayed or enjoined by the Final Order,
or in case the Final Order shall be made or entered affecting such property
or any part thereof, then and in any of such events the Escrow Agent is
authorized to rely upon and comply with any such Final Order which the Escrow
Agent is advised by competent and experienced legal counsel of its own
choosing, or by legal counsel selected by mutual consent of Seller and Buyer,
is not subject to further review or appeal and is binding upon the Escrow
Agent for purposes hereof . The term "Final Order" as used herein shall mean
a final judgment, order or award of a court of competent jurisdiction or
arbitrator, as evidenced by a certified copy of such judgment, order or
award, as certified by such court or arbitrator, as the case may be, provided
that such judgment, order or award is not appealable or the time for taking
an appeal has expired, or in the case of an arbitral award, payment is not
stayed by a court of competent jurisdiction.
1.4 (a) In the event that the Escrow Agent shall be uncertain as to its
duties or actions hereunder, or shall receive instructions from Buyer or
Seller which, in the opinion of the Escrow Agent, are in conflict with any of
the provisions of this Agreement, it shall be entitled to maintain the Escrow
Fund and may decline to take any further action until the Escrow Agent
receives joint written instructions from Buyer and Seller (or a Final Order)
directing the disbursement of all or any portion of such Escrow Fund, in
which case the Escrow Agent shall then make such disbursement in accordance
with such instructions (or Final Order). Should any dispute arise with
respect to the payment or ownership or right of possession of any proposed
disbursement, the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of the amount of
such proposed disbursement until such dispute shall have been settled either
by mutual agreement of the parties concerned or by a Final Order, provided
that the Escrow Agent shall be under no duty whatsoever to institute or
defend any such proceedings, and, provided further, that if any such dispute
continues for more than 120 days, the Escrow Agent may, in its discretion,
upon written notice to Buyer and Seller
interplead the Escrow Fund (or that portion thereof which is the subject of such
dispute) to a court of competent jurisdiction (subject to the provisions of
Section 6.4(b) hereof).
(b) Notwithstanding the foregoing, the interpleader by the Escrow
Agent of any sum to a court of competent jurisdiction (the "Interpleader
Action") shall in no way operate to alter or affect the parties' obligations
to arbitrate any dispute pursuant to paragraph 6.4(b) of this Agreement. In
furtherance of the parties' obligations to arbitrate any dispute arising
hereunder the parties agree to execute any reasonably necessary document,
including but not limited to any stipulation, stipulated order and/or
stipulation of discontinuance, to cause any sum interpleaded to a court of
competent jurisdiction by the Escrow Agent to be transferred to an account
under the control of the arbitrator(s) selected pursuant to paragraph 6.4(b)
of this Agreement and to have the Interpleader Action dismissed.
Thereafter, the dispute related to the interpleaded funds shall be resolved
in arbitration pursuant to paragraph 6.4(b) of the Agreement.
1.5 (a) It is understood and agreed that the Escrow Agent shall:
(i) be under no duty to accept notices or instructions from any
person other than as expressly provided for in this Escrow Agreement;
(ii) be protected in acting upon any notice, opinion, request,
certificate, approval, consent or other document reasonably believed by it
to be genuine and what it purports to be;
(iii)be deemed conclusively to have given and delivered any
notice required to be given or delivered hereunder if the same is in
writing, signed by any one of its authorized officers and (A) mailed, by
registered or certified mail, return receipt requested, postage prepaid,
(B) sent via expedited courier service that regularly requires signed
receipts evidencing delivery, or (C) hand delivered, in a sealed wrapper,
manually receipted for by the addressee, in each case to Buyer or Seller
with a copy to the other party to this Agreement at the addresses set
forth in Section 6.3 hereof;
(iv) be indemnified and held harmless jointly by Buyer and
Seller from and against any claim made against it by reason of its acting
or failing to act in connection with any of the transactions contemplated
hereby and against any loss, liability or expense, including reasonable
attorneys' fees and other reasonable expenses of defending itself against
any claim of liability it may sustain in carrying out the terms of this
Escrow Agreement, except for claims which are successfully asserted
against the Escrow Agent based upon the Escrow Agent's failure to comply
with the terms and conditions of this Escrow Agreement or the bad faith,
gross negligence or willful misconduct of the Escrow Agent; provided
however, that (A) promptly after the receipt by the Escrow Agent of
notice of any demand or claim or the commencement of any such action,
suit or proceeding, the Escrow Agent shall notify all parties hereto in
writing of the existence of such demand, claim, action, suit or
proceeding; (B) the
indemnitor shall be entitled, at its own expense, to participate in
and assume the defense of any such action, suit or proceeding; and (C)
the aforesaid indemnity obligations shall survive the termination of
this Escrow Agreement or the resignation of the Escrow Agent;
(v) have no liability in respect of or duty to inquire into
the terms and conditions of the Acquisition Agreement or any other
document or agreement executed in connection with or pursuant to the
Acquisition Agreement, its duties under this Escrow Agreement being
understood by the parties to be ministerial in nature;
(vi) be permitted to consult with counsel of its choice which
is reasonably experienced in legal matters of a nature similar to those
arising under this Escrow Agreement, and shall not be liable for any
action taken, suffered or omitted by it in good faith in accordance with
the advice of such counsel; provided, however, that nothing contained in
this subsection (vi), nor any action taken by the Escrow Agent or by such
counsel, shall relieve the Escrow Agent from liability for any claims
which are occasioned by its failure to comply with the terms and
conditions of this Escrow Agreement or the bad faith, gross negligence or
willful misconduct of the Escrow Agent, as provided in subparagraph (iv)
above;
(vii) not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Escrow Agreement, unless
the same shall be in writing and signed by both Buyer and Seller and
notice thereof is provided to the Escrow Agent, except to the extent that
any such modification, amendment, termination, cancellation, rescission
or supersession affects the rights, responsibilities, obligations,
liabilities or fees of the Escrow Agent hereunder, in which case any
document or instrument reflecting such changes shall also be signed by
the Escrow Agent;
(viii) be entitled to refrain from taking any action other than
to keep all cash and other payments and all other property held by it in
escrow and to make the investments as herein provided until it shall be
directed otherwise in writing by Buyer and Seller, or as otherwise
provided herein or by a Final Order; and
(ix) not have any interest in the Escrow Fund, other than
possession thereof in its capacity as escrow agent hereunder.
(b) Any payments of interest or income from the Escrow Fund shall
be subject to withholding regulations then in force with respect to federal,
state and local taxes. The parties will provide the Escrow Agent with
appropriate W-9 forms for taxpayer identification number certifications. It
is understood that the Escrow Agent shall be responsible for income reporting
only with respect to income earned on investment of funds which are part of
the Escrow Fund and shall not be responsible for any other reporting. This
paragraph shall survive
notwithstanding any termination of this Escrow Agreement or the resignation
of the Escrow Agent.
(c) Notwithstanding anything to the contrary herein, unless and
until funds are deposited with the Escrow Agent pursuant to Section 2.1, the
Escrow Agent shall not have any liability or responsibility whatsoever to
Buyer or Seller or any other person under this Escrow Agreement, except for
its failure or refusal to accept delivery of any funds deposited in escrow
with the Escrow Agent in the manner specified in Section 2.1 or to hold such
funds thereafter pursuant to the terms hereof.
1.6 From and after the date hereof, Buyer and Seller shall deliver or
cause to be delivered to the Escrow Agent such further documents and
instruments, or cause to be done such further acts, as the Escrow Agent may
reasonably request in order to enable the Escrow Agent to carry out more
effectively the provisions and purposes of this Escrow Agreement, to evidence
compliance with this Escrow Agreement or to assure itself that it is
reasonably protected in acting under this Escrow Agreement.
1.7 (a) For its services hereunder, the Escrow Agent shall be entitled
to be paid an annual fee in the amount specified in Exhibit A, payable in
advance. The Escrow Agent hereby acknowledges receipt from Buyer and Seller
of the fee for the first annual period hereunder. Payment of the relevant
fee for all subsequent annual periods shall be due on each anniversary of
the date hereof.
(b) All fees of the Escrow Agent hereunder shall be paid by Buyer
and Seller, such parties sharing equally in such costs.
2. Establishment of Escrow Fund
2.1 The parties acknowledge and agree that * has been deposited with the
Escrow Agent as of the date hereof and from time to time further funds will
be deposited with the Escrow Agent. The parties further agree that subject
to the provisions of paragraph 3.2(e), * due under paragraph 2 of the Note
shall be transmitted by the maker thereunder to the Escrow Agent for deposit
in the Escrow Fund. Under no circumstances shall Seller be obligated to
deposit any funds in the Escrow Fund beyond the amounts set forth in this
Section 2.1 which are deposited by the maker with the Escrow Agent.
2.2 The Escrow Fund shall be held by the Escrow Agent in a separate
account and disbursed to Buyer or Seller in accordance with the terms of this
Agreement.
2.3 The Escrow Agent shall invest all funds on deposit from time to time
in the Escrow Fund, and all undistributed income earned thereon, and keep the
same invested in certain instruments as Seller shall from time to time direct
the Escrow Agent in writing, subject to the restrictions and limitations
hereinafter provided, and disburse the same
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
terms, conditions and provisions hereof. The Escrow Agent shall invest the
Escrow Fund solely in accordance with Seller's instructions, provided that
Seller's instructions and the Escrow Agent's authority shall be restricted
to: (i) obligations issued or unconditionally guaranteed by the Government of
the United States of America or any State or political subdivision thereof;
(ii) certificates of deposit and interest-bearing deposit accounts of any
domestic bank or trust company which has a combined capital and surplus of at
least $200,000,000; (iii) certificates of deposit with a maturity not to
exceed one year or (iv) commercial paper with a maturity of no more than one
year issued by any corporation organized and existing under the laws of the
United States of America or any state thereof, which at the time of purchase
has been rated, and the ratings for which are not less than, "A-1" if rated
by Standard and Poor's Corporation or "P-1" if rated by Xxxxx'x Investors
Services, Inc. In no event shall the Escrow Agent invest the Escrow Fund or
any undistributed income earned thereon in any security or instrument having
a maturity extending beyond one year, provided, that such limitation shall
not apply to the obligations described in clause (i) above. The Escrow Agent
shall have authority to invest daily cash receipts received by the Escrow
Fund in the Xxxxx Xxxxxx Money Market Fund, or equivalent brokerage house
money market fund pending investment of such funds in accordance with the
provisions of this Section 2.3.
3. Disposition of Escrow Fund
3.1 All funds on deposit from time to time in the Escrow Fund shall be
held, invested and reinvested by the Escrow Agent pursuant to the terms of
this Escrow Agreement until the funds therein shall be disbursed in
accordance with the terms of this Escrow Agreement.
3.2 The Escrow Agent shall make disbursement of funds on deposit in the
Escrow Fund only as set forth in this Section 3.2.
(a) Buyer shall promptly provide Seller and the Escrow Agent with a
copy of all Buyer Indemnity Claims submitted by Buyer pursuant to Section 8.2
of the Acquisition Agreement, whether such Buyer Indemnity Claims are issued
before or after any funds are deposited into escrow hereunder.
(b) Promptly following its receipt of notice of any Buyer Indemnity
Claims, and without any further duty of investigation or inquiry on its part,
the Escrow Agent shall establish a reserve (a "Reserve") in the Escrow Fund,
which in all events shall be equal to the full amount of each claim
identified in such notice (which shall include, without limitation, Buyer's
good faith estimate of the costs and expenses reasonably expected to be
incurred by Buyer in investigating and disposing of any such claim). Subject
to Sections 9.12(b) and (c) of the Acquisition Agreement concerning release
of funds from the Escrow Fund following *, the Escrow Agent shall not be
authorized to release any funds from the Escrow Fund as to which a Reserve
has been established pursuant to this Section 3.2(b) unless and until the
relevant Buyer Indemnity Claim that gave rise to such Reserve has been
Definitively Resolved and the Escrow Agent has received written notice of
such resolution pursuant to the requirements of Section 3.2(c) below. Until
they are Definitively Resolved in
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
the manner hereinafter provided, all unresolved Buyer Indemnity Claims shall
be referred to herein as "Pending Claims."
(c) For purposes hereof, a Pending Claim shall be deemed to have
been "Definitively Resolved" when any of the following events has occurred:
(i) a claim is settled by mutual written agreement of Buyer and Seller; or
(ii) a Final Order deciding such claim has been rendered; or
(iii) ninety (90) days have elapsed since Seller's initial receipt of
notice of a Buyer Indemnity Claim ("First Notice") and neither
Buyer nor Escrow Agent has received, on or before that date, a
written notice from Seller disputing such claim in whole or in
part, and Buyer has provided a further notice ("Second Notice")
sent to Seller by registered or certified mail to the effect that
Seller has not disputed such claim and that Buyer intends to submit
a Settlement Notice (as hereinafter defined) and Seller has not
within thirty (30) days after receipt of such Second Notice
disputed in writing the Buyer Indemnity Claim by written notice to
Buyer or Escrow Agent.
The Escrow Agent shall not be deemed to have received notice that a Pending
Claim has been Definitively Resolved, and shall not be obligated to take any
action with respect thereto, until 10 days after the Escrow Agent shall have
received one of the following (a "Settlement Notice"): (A) with respect to
subparagraph (i) above, a copy of joint written instructions duly signed by
Buyer and Seller stating that a Pending Claim has been settled by mutual
agreement of Buyer and Seller; (B) with respect to subparagraph (ii) above, a
certified copy of the final arbitration award which has not been stayed by a
court of competent jurisdiction within 30 days thereafter, or the final
non-appealable judgment, order or award of the relevant court, together with
a certificate duly signed by the prevailing party in such proceeding
certifying that such judgement, order or award is final and non-appealable
for all purposes hereof; and (C) with respect to subparagraph (iii) above,
written certification from Buyer issued to the Escrow Agent in good faith to
the effect that Buyer has provided the First Notice and the Second Notice as
described in subparagraph (iii) above without having received a written
dispute notice from Seller, as provided above. Each Settlement Notice shall
stipulate the amount(s) to be paid to Buyer or Seller in connection with
such Definitively Resolved claim, and copies thereof shall be provided to
each of the parties hereunder at the same time it is provided to the Escrow
Agent. Buyer and Seller hereby acknowledge and agree that the Escrow Agent
shall have the right to rely upon any Settlement Notice duly given jointly by
Buyer and Seller under (A) in the preceding sentence, by Buyer or Seller
under (B) in the preceding sentence and by Buyer under (C) in the preceding
sentence, and shall be authorized to act upon any such written notice.
(d) A Buyer Indemnity Claim that has been Definitively Resolved
shall be referred to herein as a "Settled Claim". To the extent that a
Settled Claim has been resolved in favor of Buyer, the Escrow Agent shall
promptly disburse the full amount (or the relevant
portion, as applicable) of such claim to Buyer (or such other person as Buyer
may direct) from the Escrow Fund (to the extent of funds in the Escrow Fund)
in accordance with the relevant Settlement Notice. Following such payment,
all Reserves that relate to such Buyer Indemnity Claim and are not due Buyer
in accordance with the terms of the Settlement Notice shall be released, but
the funds subject thereto shall remain in the Escrow Fund until otherwise
disbursed in accordance with the terms hereof.
(e) On November 30, 1999, the excess of the outstanding principal
amount of the Escrow Fund over *, as such excess amount is further reduced by
the aggregate amount of all outstanding Reserves, shall be disbursed by the
Escrow Agent to Seller on five (5) days' prior written notice to Buyer. On
November 30, 2000, the excess of the outstanding principal amount of the
Escrow Fund over *, as such excess amount is further reduced by the aggregate
amount of all outstanding Reserves, shall be disbursed by the Escrow Agent to
Seller on five (5) days' prior written notice to Buyer. On November 30,
2001, the excess of the outstanding principal amount of the Escrow Fund over
*, as such amount is further reduced by the aggregate amount of all
outstanding Reserves, shall be disbursed by the Escrow Agent to Seller on
five (5) days' prior written notice to Buyer. On November 30, 2002, the
excess of the outstanding principal amount of the Escrow Fund over the
aggregate amount of all outstanding Reserves, shall be disbursed by the
Escrow Agent to Seller on five (5) days' prior written notice to Buyer.
(f) Subject to paragraph (e) above, all funds deposited with the
Escrow Agent shall continue to be held in escrow hereunder until November 30,
2002, on which date the balance of the Escrow Fund, net of any Reserves,
shall be distributed to Seller. Any amounts remaining with the Escrow Agent
thereafter shall be released from time to time as and when all remaining
Pending Claims to which such funds relate have been Definitively Resolved.
The Escrow Agent shall promptly disburse to Buyer the full amount of each
Settled Claim resolved in favor of Buyer in accordance with the relevant
Settlement Notice and any funds in the Escrow Fund in excess of remaining
Reserves shall be distributed to Seller. Notwithstanding the foregoing, all
funds deposited with the Escrow Agent shall be distributed to Buyer and/or
Seller in accordance with any joint written instructions of Buyer and Seller.
(g) The Escrow Agent shall provide written notice of any proposed
distributions of funds to Buyer or Seller hereunder five (5) days before
making any such disbursement. For purposes of such five (5)-day notice
period, such period shall commence on the date on which the relevant notice
is given by the Escrow Agent to Buyer and Seller and shall terminate at
midnight on the fifth business day thereafter. The Escrow Agent shall also
send copies of all notices it receives hereunder to the other parties hereto.
3.3 The party or parties receiving a disbursement from the Escrow Fund
shall, upon request, furnish to the Escrow Agent concurrently with its
receipt of such disbursement, a signed receipt for the amount of such
disbursement.
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
4. Disposition of Income
All income earned from time to time by the Escrow Fund ("Income") shall
be pooled with all other funds held in the Escrow Fund for investment
purposes and shall become part of the Escrow Fund for all purposes, provided
that on December 31 of each calendar year or any other date mutually
agreeable to Buyer, Seller and the Escrow Agent, Escrow Agent shall disburse
to Seller * (net of losses or any other expenses) unless such Income amounts
are subject to a Reserve, Pending Claim or Settled Claim. Any losses
realized upon any investment of the Escrow Fund pursuant to Section 2.3 or
otherwise shall be charged to the Escrow Fund.
5. Term
5.1 The term of this Escrow Agreement shall commence on the date hereof
and continue until the entire amount of principal and Income on deposit in
the Escrow Fund shall have been disbursed by the Escrow Agent as provided in
this Escrow Agreement, whereupon this Escrow Agreement and the escrow
arrangements created hereunder shall terminate, and the Escrow Agent shall be
released and discharged from all further duties and obligations hereunder,
but without prejudice to any liability of the Escrow Agent for its failure to
comply with the terms and conditions of this Escrow Agreement or its bad
faith, gross negligence or willful misconduct hereunder.
5.2 The Escrow Agent shall have the right, upon termination of this
Escrow Agreement as hereinabove provided, to require the other parties
hereto, as a condition to receiving a final disbursement from the Escrow
Fund, if applicable, to execute, acknowledge and deliver to the Escrow Agent
releases of the Escrow Agent, in its capacity as such, reasonably
satisfactory to the Escrow Agent in form and content; provided, however, that
the Escrow Agent shall have accounted to each party delivering such release
with respect to the Escrow Agent's administration of the Escrow Fund and
provided further that any such release shall not extend to any acts of bad
faith, gross negligence or willful misconduct on its part in connection with
the Escrow Agent's administration of the Escrow Fund.
6. Miscellaneous
6.1 (a) Buyer and Seller may, upon at least 30 days' prior written
notice to the Escrow Agent executed by each of them, dismiss the Escrow Agent
hereunder and jointly appoint a successor. In such event, the Escrow Agent
shall promptly account for and deliver to the successor escrow agent named in
such notice the then balance of the Escrow Fund, if any, including all
investments thereof and accrued income thereon. Upon acceptance thereof and
of such accounting by such successor escrow agent, and upon reimbursement to
the Escrow Agent by Buyer and Seller of all expenses due to it hereunder
through the date of such accounting and delivery, the Escrow Agent, in its
capacity as such, shall be released and discharged from all of its duties and
obligations hereunder, but without prejudice to any liability of the Escrow
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Agent for failure to comply with the terms and conditions of this Escrow
Agreement or its bad faith, gross negligence or willful misconduct hereunder.
(b) (i) Without limiting the foregoing, the Escrow Agent (and any
successor escrow agent hereunder) shall have the right, as provided in (ii)
below, at any time to resign as such by delivering the Escrow Fund to any
successor escrow agent jointly designated by the other parties hereto in
writing , or to any escrow agent which constitutes a national banking
association with assets in excess of _________________ who is willing to
serve under this Agreement], or to any court of competent jurisdiction,
[or to an account under the control of the arbitrator(s) selected pursuant to
paragraph 9.12 of the Acquisition Agreement, whereupon the Escrow Agent shall be
discharged of and from any and all further obligations arising in connection
with this Escrow Agreement, but without prejudice to any liability of the
Escrow Agent for its bad faith, gross negligence or willful misconduct
hereunder.
(ii) The resignation of the Escrow Agent will take effect on the
earlier of (a) the appointment of a successor escrow agent (including a
court of competent jurisdiction) or (b) the day which is 30 business days
after the date of delivery of its written notice of resignation to the
other parties hereto. If at that time the Escrow Agent has not received a
designation of a successor escrow agent hereunder, the Escrow Agent's sole
responsibility after that time shall be to safekeep the Escrow Fund until
receipt of a designation of successor escrow agent hereunder or a joint
written disposition instruction by the other parties hereto or a final
order.
6.2 This Escrow Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, heirs,
remaindermen, assigns, executors, administrators, personal representatives,
trustees and fiduciaries. The Escrow Agent shall have the right to rely upon
any proper evidence of the authority of any such successors, heirs,
remaindermen, assigns, executors, administrators, personal representatives,
trustees and fiduciaries. Notwithstanding anything to the contrary herein
contained, no beneficial interest of any person in the Escrow Fund shall be
subject to anticipation or assignment by such person, nor shall the Escrow
Fund be subject to interference or control of any creditor of such person, or
be taken or reached by any legal or equitable process in satisfaction of any
debt or other liability of such person prior to disbursement, and each party
hereby agrees to indemnify the other parties in connection with any loss or
diminution of such party's interest in the Escrow Fund as a result of any
such matter.
6.3 Any notice, direction, instruction 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 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 6.3:
If to Buyer, to:
I. C. Xxxxxx & Company L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and Co-Chief Executive Officer
Telecopier: 410/558-2096
I. C. Xxxxxx & Company L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman and Co-Chief Executive Officer
Telecopier: 212/695-7579
With a copy to:
Piper & Marbury L.L.P.
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: 410/576-1604
If to Seller, to:
Brookhurst, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxx
Telecopier: 310/763-3846
With a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 212/758-9526
If to the Escrow Agent, to:
____________________
____________________
____________________
Attention:
Telecopier:
Copies of any written communications sent by Buyer or Seller to the
Escrow Agent relating to this Escrow Agreement shall be sent to the other
parties hereto, and copies of any written communications sent by the Escrow
Agent relating to this Escrow Agreement shall be sent to Buyer and Seller.
Notwithstanding the foregoing, Buyer and Seller shall have the right to
engage in direct written communications between themselves relating to this
Escrow Agreement without providing copies thereof to the Escrow Agent, except
to the extent otherwise required under the terms of this Escrow Agreement.
All notices, directions, instructions and communications hereunder shall
be effective, and deemed given, if and when delivered, on and as of the date
of receipt thereof, as evidenced by a written receipt by or on behalf of the
party to which the same is so delivered, and, if mailed or sent by expedited
courier, on and as of the date of delivery, as evidenced by the
acknowledgement of delivery issued with respect thereto by the applicable
postal authorities or by the confirmation of delivery issued by the
applicable courier service. Any party may change its address for notices
hereunder, effective upon giving of notice of such change hereunder to the
other parties.
6.4 (a) 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 thereunder, except as to matters
solely involving foreign trademark rights, in which case the applicable
foreign trademark laws shall be applied to determine such foreign trademark
rights. In the event any legal action becomes necessary to enforce or
interpret the terms of this Agreement, the parties agree that such action
will be brought in *.
*
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
*
6.5 This Escrow Agreement, and any notice, direction or other document
or instrument delivered in connection herewith, may be executed in
counterparts, each of which shall constitute an original instrument, but all
of which together shall constitute a single agreement, notice, direction,
document or instrument as the case may be. Buyer and Seller agree to
cooperate with each other in good faith in joining in any notices or written
instructions that are required to be delivered to the Escrow Agent jointly by
Buyer and Seller.
6.6 The provisions of this Escrow Agreement shall not be altered or
terminated by operation of law or by the occurrence of any event (except as
otherwise specified herein), including, without limitation, the death or
incapacity or the termination of the legal existence of any party hereto.
6.7 No party hereto may assign any of its interests, rights or
obligations under this Agreement without the prior written consent of the
other parties. Notwithstanding the foregoing, Buyer may, without the consent
of Seller, assign rights and obligations under this Agreement to any entity
under common control with Buyer or to any successor-in-interest, in whole or
in part, to the assets acquired by Buyer from Seller, and Seller may assign
its rights and obligations to any successor-in-interest to the assets of
Seller by merger or liquidation. In addition, Seller may direct in writing
to Escrow Agent (with a copy sent to Buyer) that proceeds of the Escrow Fund
be paid to any third party Seller shall designate in writing. Nothing in
this Agreement shall be construed as requiring Seller's or the Escrow Agent's
consent to (a) the assignment, in whole or in part, of ICI's (as hereinafter
defined) rights under this Agreement (including the right to make claims
against and obtain proceeds from the Escrow Fund) to *, any affiliate of *,
or (b) the assumption, in whole or in part, of ICI's obligations under this
Agreement by *. In the event of such assignment and/or assumption, * shall
be recognized as "Buyer" for purposes of all claims submitted by * as Buyer
pursuant to Section 3, including, without limitation, for purposes of
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
distribution of funds pursuant to Settled Claims resulting therefrom.
Nothing in this Agreement shall be construed as affecting Buyer's rights
under Section 6.10.
6.8 All monetary amounts stated herein or determined hereunder are and
shall be denominated in United States dollars, and all liabilities and
obligations of any party hereunder, to the extent calling for the payment of
money, shall be satisfied in United States dollars.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the day and year first above written.
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By: ____________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief Executive
Officer
By: ____________________________________
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief Executive
Officer
BROOKHURST, INC.
By: ____________________________________
Name: ________________
Title: _________________
_____________________________,
as Escrow Agent
By:
Name:
Title:
EXHIBIT F/WWA
TERMINATION OF LICENSE AGREEMENT
THIS TERMINATION OF LICENSE AGREEMENT ("Agreement") is entered into and
effective as of the ____ day of ______, 1997 ("Effective Date"), by and between
BROOKHURST, INC., a California corporation ("LICENSOR"), and I.C. XXXXXX & CO.,
L.P., a Delaware limited partnership ("LICENSEE").
RECITALS
A. LICENSOR and LICENSEE entered into that certain License Agreement dated
August 11, 1994 regarding the use of the xxxx BOSS ("License Agreement").
B. LICENSOR and LICENSEE mutually desire to terminate the License
Agreement effective as of the Effective Date.
NOW, THEREFORE, the parties agree as follows:
1. TERMINATION
The License Agreement is hereby terminated in all respects except as
otherwise provided herein, effective as of the Effective Date.
2. ROYALTIES
On or before 30 days after the Effective Date, LICENSEE shall pay to
LICENSOR *. On or before 90 days after the Effective
Date, Licensee shall pay to Licensor *. Notwithstanding anything to the contrary
contained in the License Agreement, the sole permitted deduction from Royalties
earned shall be a deduction for bad debts incurred by the Licensee in connection
with the sale of the Licensed Products. *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
3. *
4. *
IN WITNESS WHEREOF, the parties agree that this Agreement shall take
effect as of the date first written above.
BROOKHURST, INC., a
California corporation
By:_______________________
Xxxxxxx Xxx, President
I.C. XXXXXX & CO., L.P., a
Delaware limited partnership
By: Isbuyco, Inc., General Partner
By:_______________________
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Exhibit G
["Boss by Brookhurst." logo typeface]
EXHIBIT H/WWA
1. *
2. *
3. *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
4. *
* Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
2
ATTACHMENT TO EXHIBIT H
From 1889 to 1997, Brookhurst and its predecessor companies manufactured and
sold clothing under the Brookhurst BOSS label.
