Exhibit 10.1
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "AGREEMENT") is entered into as of
June 20, 2007, by and among Luxottica Group S.p.A., a company organized under
the laws of the Republic of Italy ("PARENT"), Xxxxx Acquisition Corp., a
Washington corporation and an indirect wholly owned subsidiary of Parent
("MERGER SUB"), and Oakley, Inc. a Washington corporation (the "COMPANY"), and
Xxx Xxxxxxx ("SHAREHOLDER").
RECITALS
A. Shareholder is a founder, majority shareholder and the Chairman of the
Board of the Company and, accordingly, has acquired: (i) valuable trade secrets
and other confidential and proprietary information relating to the Company's and
its Subsidiaries' current business of designing, manufacturing, marketing,
selling, and distributing eyewear and optical products including, without
limitation, sunglasses, eyewear lenses, goggles and electronically enabled
eyewear (the "BUSINESS") and (ii) the ability to control the goodwill of the
Business conducted by the Company and its Subsidiaries. For the avoidance of
doubt, the "Business" as used herein shall not include Xxx.xxx, Inc.'s ("RED")
current business of manufacturing, designing, licensing, selling, marketing and
distributing digital cinematography cameras, including the lenses, sensors,
filters and other parts used in digital cinematography cameras, as well as
accessories to digital cinematography cameras (the "RED BUSINESS").
B. Shareholder's noncompetition and nonsolicitation covenants and
confidentiality agreements as reflected in this Agreement are each essential
parts of the transactions described in that certain Agreement and Plan of
Merger, dated as of June 20, 2007 (the "MERGER AGREEMENT"), by and among Parent,
Merger Sub and the Company, pursuant to which, among other things, Merger Sub
will be merged with and into the Company (the transactions contemplated in
connection with the Merger Agreement are referred to hereinafter as the
"MERGER").
C. As a result of the Merger, Shareholder will dispose of his entire
ownership interest in the Company, as defined by Section 16601 of the California
Business and Professions Code (the "BPCC"), and Parent will indirectly acquire
this interest and the parties confirm that the Shareholder's entry into this
Agreement is a material inducement to Parent and Merger Sub to consummate the
Merger.
D. The parties agree that it is in the best interests of all parties for
Parent and Merger Sub to obtain the full benefit of the entire goodwill of the
Company, and that failure to receive the entire goodwill contemplated by the
Merger would materially reduce the value of the Merger and the Company to Parent
and Merger Sub.
E. In order to protect the trade secrets and other confidential and
proprietary information and the entire goodwill related to the Business, and as
a condition of Parent and Merger Sub entering into the Merger Agreement,
Shareholder has agreed to the noncompetition and nonsolicitation covenants and
the confidentiality agreements provided in this Agreement,
which Agreement is being executed and delivered concurrently with the execution
and delivery of the Merger Agreement.
F. Accordingly, the Merger Agreement requires Shareholder to execute and
deliver this Agreement as a condition precedent to Parent and Merger Sub's
obligation to consummate the Merger under the Merger Agreement.
G. The Shareholder and the Company are parties to an Amended and Restated
Consultant Agreement dated May 12, 1998 (the "CONSULTANT AGREEMENT"), a copy of
which is annexed hereto.
H. The parties hereto intend that, effective as of the occurrence of the
closing under the Merger Agreement (the "CLOSING"), certain terms and conditions
of the Consultant Agreement shall be incorporated by reference into and shall
thereupon become part of this Agreement, as if set forth herein at length and
that, subject to such incorporation by reference, the Consultant Agreement shall
thereupon be terminated and cancelled in all respects.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and to induce Parent and
Merger Sub to consummate the Merger, Shareholder hereby covenants and agrees as
follows:
1. Effectiveness of Agreement. This Agreement is effective upon execution
but is conditioned upon (i) the Closing and (ii) the satisfaction of the
condition set forth in Section 18 and shall be null and void ab initio should
the Merger Agreement be terminated, or the Merger not close or be completed for
any reason, or the condition set forth in Section 18 not be satisfied in the
time period provided therein.
2. Noncompetition.
(a) Shareholder, Parent, the Company and Merger Sub agree that, due to
the nature of Shareholder's association with the Company and its subsidiaries,
Shareholder has: (i) acquired valuable trade secrets and other confidential and
proprietary information relating to the Business and (ii) acquired the ability
to control and direct the goodwill of the Business. Shareholder acknowledges
that such intellectual property and goodwill is crucial to the success,
profitability and viability of the Company's Business and will continue to be so
after the Closing. Shareholder further agrees that Shareholder's disclosure or
unauthorized use of such information or redirection of goodwill will cause
substantial loss and harm to the Company, its subsidiaries and Parent and its
Subsidiaries. In light of the foregoing, the parties also agree that the
covenants set forth in this Agreement are necessary to protect the entire
goodwill and value of the intellectual property of the Company through and
following the Merger.
(b) During the period commencing at the Closing and ending five years
later (the "RESTRICTED PERIOD"), Shareholder agrees that Shareholder shall not,
anywhere in the Business Area (as defined below), directly or indirectly, own,
manage, operate, join, control, participate in, or be connected with (as a
stockholder, partner, member, investor, lender (treating, for purposes of this
Section 2(b), any donation as if it were a loan if the Shareholder actually
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knows, at the time of making the donation, that its proceeds will be used for a
purpose that, if made as a loan, would be prohibited by this Section 2(b)),
guarantor, or credit enhancer), or provide consultative services or otherwise
provide services to (whether as an employee or consultant, with or without pay),
any business, individual (including, without limitation, any relative of the
Shareholder), corporation, limited liability company, partnership, firm or other
entity that is then, or to Shareholder's actual knowledge intends to be, a
competitor of the Company or any of its Subsidiaries, including any individual
or entity then engaged, or to Shareholder's actual knowledge is intending to
engage, in the Business (each such individual or entity is referred to herein as
a "COMPETITOR"); provided, however, that notwithstanding the restrictions set
forth in this Section 2(b), the Shareholder may (i) own, directly or indirectly,
solely as a passive investment, securities of any entity in competition with the
Business where equity securities are traded on any national securities exchange,
provided that Shareholder is not a controlling person of, or a member of a group
which controls, such entity and does not, directly or indirectly, "beneficially
own" (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) five percent (5.0%) or more of any class of securities of such entity;
and (ii) be an investor, partner, member, director or principal of a private
equity firm, venture capital firm, or hedge fund that makes investments in a
Competitor, provided that Shareholder completely recuses himself from selecting,
advising or managing the investment in any such Competitor.
(c) "BUSINESS AREA" as used herein, means any place in the world.
3. Nonsolicitation of the Company's and its Subsidiaries' Employees,
Customers and Suppliers.
(a) During the Restricted Period, Shareholder shall not, directly or
indirectly, solicit, recruit, request, cause, induce or encourage to leave the
employment of the Company or any of its subsidiaries (such conduct is
collectively referred to as "SOLICITATION") any person who is then employed by
the Company other than Shareholder's son and up to six other employees of the
Company or its subsidiaries who receive a base salary of less than $100,000 per
year; provided, however, that the foregoing restriction will not prevent the
Shareholder from hiring any such person (i) who contacts such Shareholder on his
or her own initiative without any direct or indirect solicitation by or
encouragement from such Shareholder or (ii) as a result of placing general
advertisements on websites, in trade journals, newspapers or similar
publications which are not directed at the Company or its subsidiaries or such
employees.
(b) During the Restricted Period, Shareholder shall not, directly or
indirectly, solicit, recruit, request, cause, induce or knowingly encourage any
customer, vendor, supplier, distributor, partner or other person or entity
currently under contract with the Company or currently doing business with the
Company to terminate, or materially and adversely reduce or alter, its business
with the Company as it pertains to the Business; provided, however, that
Shareholder and Red may each contract directly with Weeks, Xxxxxxx, Xxxxxx and
Xxxxxxx Law, a partnership, for legal and other services without having to
obtain prior written consent of Parent or the Company.
4. Personal Reference, Office and Executive Assistant. Provided that he is
and remains in compliance with this Agreement, Shareholder shall be entitled to
refer to himself as,
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"Founder" and "Mad Scientist" of the Company at all times following the Closing.
The Company shall also continue to allow Shareholder to maintain and enjoy full
access to his current office at One Icon, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, and
provide Shareholder the services of his current executive assistant (and, as
necessary, any reasonably comparable successor) who shall be employed and
compensated by the Company, for so long as the Company occupies the premises of
such office.
5. Assignment of Intellectual Property Rights and Confidentiality;
Incorporation by Reference of Consultant Agreement. The provisions of Section 3,
entitled "Assignment of Intellectual Property Rights" and Section 5(a), entitled
"Confidentiality" of the Consultant Agreement are hereby incorporated by
reference herein, as if set forth at length herein, with all references therein
to "Jannard" and to "Oakley" deemed to be to the Shareholder and the Company,
respectively, and, as so incorporated, shall inure to the benefit of Parent for
the full term of this Agreement, notwithstanding the termination of the
Consultant Agreement provided for herein; provided, however, that the parties
acknowledge that Shareholder has developed certain designs, inventions,
discoveries, products, systems, processes, techniques and technologies and
related intellectual property in the field of the Red Business in connection
with his position as founder and principal investor of Red (collectively, the
"RED INTELLECTUAL PROPERTY") and agree that, notwithstanding Section 3(a) of the
Consulting Agreement, the definition of "Inventions" therein shall not include
any Red Intellectual Property, all of which are owned by Red.
6. Injunctive Relief. Shareholder acknowledges and agrees that the
noncompetition, nonsolicitation, and other covenants and agreements made by
Shareholder herein each are of substantial value to Parent and the Company and
that a breach of any of those covenants and agreements will cause irreparable
harm to Parent, Merger Sub and the Company and its subsidiaries, for which
Parent, Merger Sub and the Company and its subsidiaries have no adequate remedy
at law. Therefore, in addition to any other remedies that may be available to
Parent and the Company and its subsidiaries under this Agreement or otherwise,
Parent and the Company and its subsidiaries shall be entitled to temporary
restraining orders, preliminary and permanent injunction or other equitable
relief to specifically enforce Shareholder's duties and obligations under this
Agreement, or to enjoin any breach of this Agreement, or to restrain Shareholder
from engaging in any conduct that would constitute a breach of this Agreement.
Nothing herein contained shall be construed as prohibiting Parent and the
Company and its subsidiaries from pursuing any other remedies available to
Parent and the Company and its subsidiaries for such breach or threatened
breach, including, without limitation, the recovery of damages from Shareholder.
7. Reasonableness and Enforceability of Covenants and Agreements.
(a) The parties expressly agree that the character, duration and
geographical scope of this Agreement are reasonable in light of the
circumstances as they exist on the date upon which this Agreement has been
executed, including, but not limited to, Shareholder's material economic
interest in the Merger and Shareholder's position of confidence and trust as a
founder, majority shareholder, and the Chairman of the Board of Directors of the
Company.
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(b) Shareholder represents and warrants that (i) as part of the
Merger, Parent will indirectly acquire all of Shareholder's ownership interest
in the Company; (ii) it is Shareholder's understanding that the Company and its
subsidiaries will carry on the Business after the Closing; (iii) Shareholder has
been fully advised by his own counsel of his own choosing in connection with the
negotiation, drafting, execution and delivery of this Agreement and the
transactions contemplated by the Merger Agreement and this Agreement; (iv) the
transactions contemplated by the Merger Agreement are designed and intended to
qualify as a sale (or other disposition) by Shareholder of all of the
Shareholder's ownership interest in the Company within the meaning of Section
16601 of the BPCC, which section provides as follows:
Any person who sells the goodwill of a business, or any owner of a
business entity selling or otherwise disposing of all of his or her
ownership interest in the business entity, or any owner of a business
entity that sells (a) all or substantially all of its operating assets
together with the goodwill of the business entity, (b) all or
substantially all of the operating assets of a division or a
subsidiary of the business entity together with the goodwill of that
division or subsidiary, or (c) all of the ownership interest of any
subsidiary, may agree with the buyer to refrain from carrying on a
similar business within a specified geographic area in which the
business so sold, or that of the business entity, division, or
subsidiary has been carried on, so long as the buyer, or any person
deriving title to the goodwill or ownership interest from the buyer,
carries on a like business therein. For the purposes of this section,
"BUSINESS ENTITY" means any partnership (including a limited
partnership or a limited liability partnership), limited liability
company, or corporation. For the purposes of this section, "OWNER OF A
BUSINESS ENTITY" means any partner, in the case of a business entity
that is a partnership (including a limited partnership or a limited
liability partnership), or any member, in the case of a business
entity that is a limited liability company, or any owner of capital
stock, in the case of a business entity that is a corporation. For the
purposes of this section, "OWNERSHIP INTEREST" means a partnership
interest, in the case of a business entity that is a partnership
(including a limited partnership a limited liability partnership), a
membership interest, in the case of a business entity that is a
limited liability company, or a capital stockholder, in the case of a
business entity that is a corporation. For the purposes of this
section, "SUBSIDIARY" means any business entity over which the selling
business entity has voting control or from which the selling business
entity has a right to receive a majority share of distributions upon
dissolution or other liquidation of the business entity (or has both
voting control and a right to receive these distributions.)
(c) Shareholder further represents, warrants, acknowledges and agrees
that he has read Section 16601 of the BPCC, understands its terms, and agrees
that Section 16601 of the BPCC applies in the context of the transactions
contemplated by the Merger Agreement and this Agreement, and that such
transactions are within the scope and intent of Section 16601 of the BPCC and an
exception to Section 16600 of the BPCC, and agrees to be fully bound by the
restrictive covenants and the other agreements contained in this Agreement.
Accordingly,
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Shareholder agrees to be bound by the restrictive covenants and the other
agreements contained in this Agreement to the maximum extent permitted by law,
it being the intent and spirit of the parties that the restrictive covenants and
the other agreements contained in this Agreement shall be valid and enforceable
in all respects and subject to the terms and conditions of this Agreement.
(d) If any court of competent jurisdiction determines that any
covenant or agreement contained herein, or any part thereof, is unenforceable
because of the character, duration or geographic scope of such provision, such
court shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be
enforceable to the maximum extent permitted by applicable law.
8. Severability. If any of the provisions of this Agreement shall otherwise
contravene or be invalid under the laws of any state, country or other
jurisdiction where this Agreement is applicable but for such contravention or
invalidity, such contravention or invalidity shall not invalidate all of the
provisions of this Agreement, but rather this Agreement shall be construed,
insofar as the laws of that state, country or jurisdiction are concerned, as not
containing the provision or provisions contravening or invalid under the laws of
that state, country or jurisdiction, and the rights and obligations created by
this Agreement shall be construed and enforced accordingly in such state,
country or jurisdiction.
9. Construction; Jurisdiction and Venue. This Agreement shall be construed
and enforced in accordance with and governed by the laws of the State of
California, without regard to any principles of conflicts of laws or choice of
laws. Each of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any federal district court within Orange County, State of
California in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (iii) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated hereby in any
court other than any federal court within Orange County, State of California,
(iv) consents to service of process by first class certified mail, return
receipt requested, postage prepaid, or by overnight courier to the address at
which such party is to receive notice and (v) waives any objection to the laying
of venue with respect to such dispute in any federal court within Orange County,
State of California and waives and agrees not to plead or claim in any such
court that any such dispute brought in any such court has been brought in an
inconvenient forum.
10. Waivers. Parent's or the Company's or its subsidiaries' failure to
insist upon strict compliance with any of the terms, covenants, or conditions
hereof shall not be deemed a waiver of such term, covenant, or condition, nor
shall any waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or more times be deemed
a waiver or relinquishment of such right or power at any other time or times. No
breach of any covenant, agreement, warranty or representation shall be deemed
waived unless expressly waived in writing by the party waiving the breach. No
waiver of any breach hereunder shall be construed to be, nor shall be, a waiver
of any other breach of this Agreement.
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11. Entire Agreement; Amendments. Shareholder understands that this
Agreement, including the exhibits hereto, together with the Merger Agreement and
the ancillary documents executed in connection therewith, contains the entire
agreement and understanding of the parties relating to the subject matter hereof
and, except as expressly stated in this Agreement, supersedes any prior
agreement (including the Consulting Agreement), understanding or negotiations
respecting such subject. No change to or modification of this Agreement shall be
valid or binding unless it is in writing and signed by Shareholder, a duly
authorized officer of the Company, and a duly authorized representative of
Parent.
12. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same Agreement. The parties may execute
more than one copy of this Agreement, each of which copies shall constitute an
original. A facsimile signature shall be deemed to be the same as an original
signature.
13. Section Headings. The headings of each section, subsection or other
subdivision or portion of this Agreement are for convenience and reference only,
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provisions hereof.
14. Assignment. Shareholder agrees that he will not assign, sell, transfer,
delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by
operation of law, any rights or obligations under this Agreement. Parent,
Company and Merger Sub agree that they will not assign, sell, transfer,
delegate, or otherwise dispose of, whether voluntarily or involuntarily, any
rights or obligations under this Agreement; provided, however, that Parent or
Company may assign their rights hereunder to an entity controlled, directly or
indirectly, by Parent or to a purchaser of the Business as then operated by the
Company. Any such purported assignment, transfer, or delegation in violation of
this Section 14 shall be null and void. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns.
15. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or two (2) business
days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub:
Luxottica Group S.p.A.
Xxx X. Xxxxx 0
00000 Xxxxx, Xxxxx
Facsimile: 011 39 02 8699 6550
Attention: Xxxxxx Xxxxxxxxx, Chief Financial Officer
with a copy to (which shall not constitute notice):
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx
(b) if to the Company:
Oakley, Inc.
One Icon
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Cos Lykos, Vice President of Business Development
(c) if to Shareholder:
c/o Weeks, Xxxxxxx, Xxxxxx and Xxxxxxx Law, a partnership
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx
16. Joint Drafting. Shareholder understands and agrees that this Agreement
is deemed to have been jointly drafted by the parties. Any uncertainty or
ambiguity shall not be construed for or against any party based on attribution
of drafting to any party.
17. Termination of Consultant Agreement. Effective as of the Closing, the
Consultant Agreement shall be terminated and cancelled in all respects, except
that: (a) the terms and provisions of the Consultant Agreement that have been
incorporated by reference shall, as provided herein, survive as a part of this
Agreement; and (b) Section 6, entitled "Fringe Benefits," and Section 7,
entitled "Products", shall survive such termination and remain enforceable by
the Shareholder against the Company and Parent.
18. Ancillary Agreements. It is an express condition to all of
Shareholder's obligations under this Agreement that, within one business day
following the Closing, each of the agreements attached to this Agreement as
Exhibit A have been signed by the Company (and by Parent, where applicable) and
delivered to Shareholder at the notice address provided in Section 15.
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EXHIBIT A
ANCILLARY AGREEMENTS
[attached hereto]
AGREEMENT REGARDING HISTORICAL ARTIFACTS
This Agreement Regarding Historical Artifacts ("AGREEMENT") is entered into
as of ___________ ___, 2007 by and among Luxottica Group S.p.A., a corporation
organized under the laws of the Republic of Italy ("PARENT"), Oakley, Inc., a
Washington corporation (the "COMPANY"), and Xxx Xxxxxxx (the "JANNARD").
RECITALS
WHEREAS, the Company has developed a library which contains the history of
the Company as a business entity, and includes discontinued advertising and
other marketing materials and product samples produced prior to May 1998 (such
materials collectively, the "ARTIFACTS");
WHEREAS, the Company, Parent and Xxxxx Acquisition Corp. ("MERGER SUB"),
entered into an Agreement and Plan of Merger dated June __, 2007, pursuant to
which Merger Sub was merged (the "MERGER") with and into the Company, with the
Company being the surviving corporation of the Merger and a wholly-owned
subsidiary of Parent; and
WHEREAS, each of the Parties now desires to acknowledge and confirm the
ownership of the Artifacts and rights of removal of same.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, each of Jannard, Parent and the Company, each a "PARTY" and
collectively, the "PARTIES," do hereby agree as follows:
AGREEMENT
1. Ownership of Artifacts. The Parties hereby agree that Jannard shall, as
among the Parties, retain all right, title and interest in and to the Artifacts.
The Company and Parent each hereby covenants that it will not assert any claim
that either the Company or Parent possesses any ownership right, title or
interest in the Artifacts.
2. Right to Remove Artifacts. The Parties hereby agree that Jannard shall
have the right at any time, in his sole discretion, but subject at all times to
Section 3 hereof, to remove the Artifacts from the premises of the Company or
any other location at which the Artifacts may be kept.
3. Procedure for Removal of Artifacts. Prior to removing any Artifacts
pursuant to Section 2 hereof, Jannard shall provide written notification (a
"REMOVAL NOTIFICATION") to [the Chief Executive Officer/Chief Financial
Officer/Corporate Secretary] of the Company (the "DESIGNATED OFFICER") of such
removal. In such Removal Notification, Jannard shall provide reasonable detail
concerning the identity of the Artifacts proposed to be removed (the "REMOVAL
ITEMS"). Jannard shall not remove any Removal Items until the earliest of (i)
his receipt of written confirmation from the Designated Officer that the Company
does not object to the removal of the Removal Items, (ii) the lapse of five
business days from the provision of the Removal Notification if Jannard has not
prior to such time received any return notification from the Designated Officer,
or (iii) if the Designated Officer notifies Jannard that the
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Company deems the Removal Items not to constitute Artifacts for purposes of this
Agreement, upon the resolution of such matter pursuant to Section 4 hereof.
4. Dispute Resolution. The Parties shall make a good-faith attempt to
resolve any controversy, claim, or dispute between the Parties arising out of or
related to this Agreement or the rights of the Parties hereunder (including the
characterization of any Removal Item as an Artifact for purposes of this
Agreement) through informal negotiation between the Parties. In the event that
any such dispute is not settled by good-faith negotiations by the date which is
thirty (30) days after notice by the Jannard, on the one hand, or the Company or
Parent, on the other hand, to the other that a dispute exists, any such Party
may submit the dispute to arbitration. Such arbitration shall proceed in
accordance with the then-current rules for arbitration established by Judicial
Arbitration Mediation Services, Inc. ("JAMS"), unless the Parties collectively
agree otherwise. The award rendered by the arbitrator shall include (i) a
provision that the prevailing Party in such arbitration recover from the other
Party or Parties its costs and reasonable attorneys' fees relating to the
arbitration, (ii) the amount of such costs and fees, and (iii) an order that the
losing Party or Parties pay the fees and expenses of the arbitrator. Any
arbitration proceeding initiated pursuant to this Section 4 shall take place in
JAMS' Orange County, California offices.
5. Notices. Any communications required or permitted to be given by any
provision of this Agreement or which any Party may desire to give the other
shall be given as set forth herein, either in person or at the addresses or
numbers set forth below, or to such other addresses or numbers as said Party may
hereafter or from time to time designate by written notice to the other Parties.
To Jannard:
c/o Weeks, Xxxxxxx, Xxxxxx and Xxxxxxx Law, a partnership
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
To Company:
Oakley, Inc.
One Icon
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Cos Lykos, Vice President of Business Development
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
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Attention: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
To Parent:
Luxottica Group S.p.A.
Xxx X. Xxxxx 0
00000 Xxxxx, Xxxxx
Facsimile: 011 39 02 8699 6550
Attention: Xxxxxx Xxxxxxxxx, Chief Financial Officer
with a copy to:
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx
6. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties hereto pertaining to the subject matter hereof, and the
final, complete and exclusive expression of the terms and conditions hereof. All
prior agreements, representations, negotiations and understandings of the
Parties, oral or written, express or implied, on the subject matter hereof are
hereby superseded and merged herein.
7. Governing Law. The validity, construction and operational effect of this
Agreement shall be governed by the laws of the State of California.
8. Invalidity of Provision. If any portion of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall remain in full force and effect.
9. Amendments. This Agreement may be amended only by written agreement
signed by both of the Parties hereto.
10. Counterparts. This Agreement may be executed in several counterparts
and all such executed counterparts shall constitute one agreement, binding on
all of the Parties hereto, notwithstanding that all of the Parties hereto are
not signatories to the original or to the same counterpart. This Agreement shall
not be binding unless and until all Parties hereto have executed the Agreement.
11. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the Parties hereto.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
date first above written.
Jannard:
----------------------------------------
XXX XXXXXXX
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Parent: LUXOTTICA GROUP S.P.A.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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AMENDMENT NO. 2
TO
TRADEMARK LICENSE AGREEMENT
AND ASSIGNMENT OF RIGHTS
This Amendment No. 2 to Trademark License Agreement and Assignment of
Rights (this "AMENDMENT") is entered into as of ___________ ___, 2007 by and
between Oakley, Inc., a Washington corporation (the "COMPANY"), and Y, LLC, a
Delaware limited liability company ("Y, LLC").
WHEREAS, the Company and Y, LLC previously entered into that certain
Trademark License Agreement and Assignment of Rights as of March 31, 2000, and
that certain Amendment thereto as of June 1, 2002 (collectively, the
"AGREEMENT"); and
WHEREAS, the Company and Y, LLC now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section (vi)(2) of the Agreement is hereby amended and restated in
its entirety as follows:
"(2) TERMINATION. At any time after [INSERT DATE OF SECOND ANNIVERSARY
OF EFFECTIVE TIME OF THE MERGER OF XXXXX ACQUISITION CORP. INTO OAKLEY, INC.],
this Agreement may be terminated by either party upon 30 days' written notice to
the other party."
2. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
3. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
4. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
5. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Y, LLC: Y, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMENDMENT NO. 1
TO
LEASE AGREEMENT
This Amendment No. 1 to Lease Agreement (this "AMENDMENT") is entered
into as of ___________ ___, 2007 by and between Oakley, Inc., a Washington
corporation (the "COMPANY"), and N2T, Inc., an Oregon corporation ("LESSOR").
WHEREAS, the Company and Lessor previously entered into that certain
Lease Agreement effective as of January 30, 2006 (the "AGREEMENT"); and
WHEREAS, the Company and Lessor now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section 1.29 of the Agreement is hereby amended and restated in its
entirety as follows:
"1.29 Term. The term "Term" means the lease term hereunder beginning
on the Delivery Date and (i) ending on January 31, 2009; or (ii) to the extent
this Agreement is renewed as provided in Section 3.1, then ending one (1) year
following the last such renewal term hereunder."
2. The first sentence of Section 3.2 of the Agreement is hereby
amended by the replacement of the initial word "The" with the following: "At any
time after January 31, 2009, the".
3. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
4. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
5. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Lessor: N2T, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMENDMENT NO. 1
TO
TIME SHARING AGREEMENT
This Amendment No. 1 to Time Sharing Agreement (this "AMENDMENT") is
entered into as of ___________ ___, 2007 by and between Oakley, Inc., a
Washington corporation (the "COMPANY"), and Xxx Xxxxxxx ("LESSEE").
WHEREAS, the Company and Lessee previously entered into that certain
Time Sharing Agreement effective as of January 30, 2006 (the "AGREEMENT"); and
WHEREAS, the Company and Lessee now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section 7.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"7.1 TERM. This Agreement is entered into as of the Effective Date and
will continue until January 31, 2009, unless terminated earlier as provided
herein. The term of this Agreement may be renewed by the Parties in writing, in
each case, for successive additional one (1) year periods, unless terminated
earlier as provided herein."
2. Subsection (a) of Section 7.2 of the Agreement is hereby amended
and restated in its entirety as follows:
"(a) At any time after January 31, 2009, by either Oakley or Jannard
upon at least fifteen (15) days' prior written notice to the other Party for any
reason, with or without cause; or"
3. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
4. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
5. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Lessee:
----------------------------------------
XXX XXXXXXX
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMENDMENT NO. 1
TO
TIME SHARING AGREEMENT
This Amendment No. 1 to Time Sharing Agreement (this "AMENDMENT") is
entered into as of ___________ ___, 2007 by and between Oakley, Inc., a
Washington corporation (the "COMPANY"), and Xxx.xxx, Inc., a Washington
corporation ("LESSEE").
WHEREAS, the Company and Lessee previously entered into that certain
Time Sharing Agreement effective as of January 30, 2006 (the "AGREEMENT"); and
WHEREAS, the Company and Lessee now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section 7.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"7.1 TERM. This Agreement is entered into as of the Effective Date and
will continue until January 31, 2009, unless terminated earlier as provided
herein. The term of this Agreement may be renewed by the Parties in writing, in
each case, for successive additional one (1) year periods, unless terminated
earlier as provided herein."
2. Subsection (a) of Section 7.2 of the Agreement is hereby amended
and restated in its entirety as follows:
"(a) At any time after January 31, 2009, by either Oakley or Xxx.xxx
upon at least fifteen (15) days' prior written notice to the other Party for any
reason, with or without cause; or"
3. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
4. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
5. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Lessee: XXX.XXX, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMENDMENT NO. 1
TO
TIME SHARING AGREEMENT
This Amendment No. 1 to Time Sharing Agreement (this "AMENDMENT") is
entered into as of ___________ ___, 2007 by and between Oakley, Inc., a
Washington corporation (the "COMPANY"), and X, LLC, Inc., a Washington limited
liability company ("LESSEE").
WHEREAS, the Company and Lessee previously entered into that certain
Time Sharing Agreement effective as of January 30, 2006 (the "AGREEMENT"); and
WHEREAS, the Company and Lessee now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section 7.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"7.1 TERM. This Agreement is entered into as of the Effective Date and
will continue until January 31, 2009, unless terminated earlier as provided
herein. The term of this Agreement may be renewed by the Parties in writing, in
each case, for successive additional one (1) year periods, unless terminated
earlier as provided herein."
2. Subsection (a) of Section 7.2 of the Agreement is hereby amended
and restated in its entirety as follows:
"(a) At any time after January 31, 2009, by either Oakley or X, LLC
upon at least fifteen (15) days' prior written notice to the other Party for any
reason, with or without cause; or"
3. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
4. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
5. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Lessee: X, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
AMENDMENT NO. 1
TO
TIME SHARING AGREEMENT
This Amendment No. 1 to Time Sharing Agreement (this "AMENDMENT") is
entered into as of ___________ ___, 2007 by and between Oakley, Inc., a
Washington corporation (the "COMPANY"), and Y, LLC, Inc., a Washington limited
liability company ("LESSEE").
WHEREAS, the Company and Lessee previously entered into that certain
Time Sharing Agreement effective as of January 30, 2006 (the "AGREEMENT"); and
WHEREAS, the Company and Lessee now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereby agree as follows:
1. Section 7.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"7.1 TERM. This Agreement is entered into as of the Effective Date and
will continue until January 31, 2009, unless terminated earlier as provided
herein. The term of this Agreement may be renewed by the Parties in writing, in
each case, for successive additional one (1) year periods, unless terminated
earlier as provided herein."
2. Subsection (a) of Section 7.2 of the Agreement is hereby amended
and restated in its entirety as follows:
"(a) At any time after January 31, 2009, by either Oakley or Y, LLC
upon at least fifteen (15) days' prior written notice to the other Party for any
reason, with or without cause; or"
3. Except as expressly modified herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
4. Capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Agreement.
5. The validity, construction and operational effect of this Amendment
shall be governed by the laws of the State of California.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered on the day and year first above written.
Lessee: Y, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Company: OAKLEY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
