Exhibit 10.128
AGREEMENT
Xxxxxxx & Co. Japan Inc.
Mitsukoshi Limited
AGREEMENT
AGREEMENT made this 1st day of February, 2009, by and between (i) Xxxxxxx & Co.
Japan, Inc. ("Tiffany-Japan"), a corporation organized and existing under the
laws of the State of Delaware with its Japan branch offices at 0-0-00,
Xxxxxx-Xxxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx, and (ii) Mitsukoshi Limited
("Mitsukoshi"), a corporation organized and existing under the laws of Japan
with its executive offices at 4-1, Nihombashi Xxxxxxxxx 0-xxxxx, Xxxx-Xx, Xxxxx
000-0000, Xxxxx.
WITNESSETH:
Whereas, Mitsukoshi and Tiffany-Japan are among the parties to a certain
Agreement dated August 1, 2001, as amended (the "2001 Agreement");
Whereas the parties to this Agreement wish to provide for the operation of
XXXXXXX & CO. boutiques within the stores of Mitsukoshi and its affiliates in
Japan; and
Whereas, the parties to this Agreement wish to replace the 2001 Agreement with
this Agreement;
NOW THEREFORE, in consideration of the foregoing facts and objectives, and the
mutual promises set forth below, the parties hereto agree as follows:
ARTICLE I
Defined Terms
As used in this Agreement, the following initially capitalized words and phrases
shall have the meanings ascribed to them below:
"Affiliate" means, with respect to any party to this Agreement, a company or
other business entity controlling, controlled by or under common control with
such party through stock ownership exceeding fifty percent (50%).
"Adjustment Value" means, with respect to any item of Tiffany Merchandise, the
Current Retail Price, less the applicable Base Percentage, plus the amount of
the applicable consumption tax.
"Base Percentage" means the applicable percentage of Net Sales for the month in
question, as follows:
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Boutique Base Percentage
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Nihombashi; Landmark; Shinjuku; Ginza;
Chiba; Niigata; Sapporo; Sendai; Nagoya Sakae; 16% plus Sales Adjustment Factor
Takamatsu; Matsuyama; and Fukuoka
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Kanazawa 14% plus Sales Adjustment Factor
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"Boutique" means a defined selling area identified with signage and decor
specific to XXXXXXX & CO. which is located in Boutique Location as indicated in
Schedule I attached, where Tiffany-Japan shall provide Tiffany Staff at its own
expense. The indication of the specific name of a Boutique Location such as
Nihombashi, Landmark, etc. means Boutique located in such Boutique Location.
"Boutique Location" means the location for each Boutique as indicated in
Schedule I attached (where a location of Boutique is changed after the date of
this Agreement, the location changed).
"Current Period" means twelve (12) months starting February 1 and ending January
31 every year, during the term of this Agreement.
"Current Retail Price" means the retail price established by Tiffany-Japan, from
time to time, for sale of Tiffany Merchandise in Japan.
"Effective Date" means February 1, 2009 at 12:00 a.m., Tokyo time.
"Expiration Date" means January 31, 2014.
"Exterior Work" means work to redesign facade.
"Full Renovation" means the complete dismantling and demolishing of an existing
Boutique and performing of both of Exterior Work and Interior Work.
"Housekeeping Operations" means the various housekeeping operations to be
performed in each Boutique as provided in Schedule II attached.
"Interior Work" means work to redesign floor, wall, ceiling and furniture within
a Boutique.
"Liability Insurance" means a comprehensive general liability policy naming both
Mitsukoshi and Tiffany-Japan as insureds, covering operations conducted at the
Boutiques and having the following limits of liability: (Y)2.5 Billion Aggregate
and (Y)2.5 Billion any single occurrence.
"Light Renovation" means performing Interior Work with respect to an existing
Boutique.
"Net Sales" means the aggregate retail selling price for sales of Tiffany
Merchandise made in Boutiques, not reduced by the amount of any rent, fee or
commission, if any, paid to Mitsukoshi as a percentage of sales, but reduced by
consumption or other tax collected from the consumer and by returns of Tiffany
Merchandise accepted from consumers for credit.
"Operating Manual" means the operating manual for XXXXXXX & CO. boutiques
published by Tiffany-Japan as such manual may be amended from time to time.
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"Price Reduction Program" means any program, practice, scheme or promotion
offered or participated in by Mitsukoshi by which merchandise is awarded to a
retail consumer or made available for purchase by a retail consumer at a price
below that which would otherwise be effective, including, but not limited to:
(i) any store- or department-wide temporary price reduction; or (ii) any price
reduction by means of a discount, rebate, credit, award or gift-with-purchase
(whether through the accumulation of points, purchase credits or otherwise)
offered in connection with the use of a credit or charge card or charge account,
or in connection with frequent- or repeat-shopper status or in connection with
any program to encourage purchases.
"Prior Period" means twelve (12) months starting February 1 and ending January
31, immediately before Current Period, during the term of this Agreement.
"Renovation" means either or both of Full Renovation and Light Renovation.
"Repair" means any or all of replacement of carpet, repaint of wall and
replacement of furniture, within a Boutique.
"Sales Adjustment Factor" means Zero Point One Percent (0.1%) for each Boutique
that achieves Net Sales of at least One Point Five Billion Yen
((Y)1,500,000,000) but less than Two Billion Yen ((Y)2,000,000,000) in the
applicable Current Period; One Percent (1%) for each Boutique that achieves Net
Sales of at least Two Billion Yen ((Y)2,000,000,000) but less than Two Point
Five Billion Yen ((Y)2,500,000,000) in the applicable Current Period; One Point
Five Percent (1.5%) for each Boutique that achieves Net Sales of at least Two
Point Five Billion Yen ((Y)2,500,000,000) but less than Three Billion Yen
((Y)3,000,000,000) in the applicable Current Period; Two Percent (2%) for each
Boutique that achieves Net Sales of at least Three Billion Yen
((Y)3,000,000,000) but less than Three Point Five Billion Yen ((Y)3,500,000,000)
in the applicable Current Period; Two Point Five Percent (2.5%) for each
Boutique that achieves Net Sales of at least Three Point Five Billion Yen
((Y)3,500,000,000) but less than Four Billion Yen ((Y)4,000,000,000) in the
applicable Current Period; or Three Percent (3%) for each Boutique that achieves
Net Sales of at least Four Billion Yen ((Y)4,000,000,000) in the applicable
current period.
"Tiffany" means Xxxxxxx and Company, a corporation organized and existing under
the laws of the State of New York with its executive offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 Xxxxxx Xxxxxx of America.
"Xxxxxxx Merchandise" means XXXXXXX & CO. brand merchandise.
"Tiffany Staff" means the employees of Tiffany-Japan assigned as sales staff
within a Boutique.
"Trademarks" means the trademarks and tradenames XXXXXXX & CO. or TIFFANY, the
trademark TIFFANY-SCHLUMBERGER and the trademarks of the designers XXXX XXXXXXX,
XXXXXX XXXXXXX and XXXXX XXXXX.
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ARTICLE II
Effective Date
2.1 This Agreement shall become effective on the Effective Date, and shall
remain effective until the Expiration Date.
2.2 Prior to the Effective Date, the 2001 Agreement and the Memorandum of
Understanding with respect to the 2001 Agreement shall continue to apply.
ARTICLE III
Operation of Boutique
3.1 Except as otherwise provided below, Tiffany-Japan and Mitsukoshi shall
operate each Boutique in the Boutique Locations in accordance with the
terms of this Agreement.
3.2 Except as provided in Section 3.3, 3.4 and 3.5 hereof, no Boutiques will be
closed, relocated or reduced in size (except as may be mutually agreed
between Tiffany-Japan and Mitsukoshi) and all Boutiques will be permitted
to operate in accordance with the provisions of this Agreement without
hindrance or disruption by the parties hereto.
3.3 Each party may close or, subject to mutual agreement in connection with
place and form of business, relocate such Boutique as described in (i)
below, at Mitsukoshi's expense, at any time after one (1) year has passed
from the date of this Agreement. The party planning the above closure or
relocation shall give a written notice to the other party at least six (6)
months prior to the date on which the Boutique will be closed or relocated.
Any closed Boutique shall be no longer operated as Boutique.
(i) Ginza
3.4 Each party may close or, subject to mutual agreement, relocate any or all
of Boutiques as described in (ii) to (vii) below, at Mitsukoshi's expense,
at any time after three (3) years have passed from the date of this
Agreement; provided, however, that in the event that Light Renovation is
performed with respect to any or all of Boutiques as described in (ii),
(iii) and (vi) below, such Boutique will not be closed, relocated or
reduced in size, for two (2) years from the opening date after such
Renovation. With respect to such Boutique as described in (vii) below, in
the event that transfer of title to, change of person to operate, or
demolition of, store of Mitsukoshi in which such Boutique is located, each
party may close such Boutique even before three (3) years have passed from
the date of this Agreement. The party planning the above closure or
relocation shall give a written notice to the other party at least six (6)
months prior to the date on which the Boutique will be closed or relocated.
Any closed Boutique shall be no longer operated as Boutique.
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(ii) Sapporo
(iii)Niigata
(iv) Matsuyama
(v) Chiba
(vi) Takamatsu (vii)Shinjuku
3.5 With respect to such Boutique as described in (viii) below, Mitsukoshi will
determine when and where to relocate such Boutique and will agree on such
matters with Tiffany-Japan by the end of January, 2010. In the event the
parties do not reach an agreement by the above date, either party may close
such Boutique, at Mitsukoshi's expense. The party planning the above
closure shall give a written notice to the other party at least six (6)
months prior to the date on which the Boutique will be closed. Any closed
Boutique shall be no longer operated as Boutique.
(viii) Kanazawa
ARTICLE IV
Responsibilities for Tiffany Merchandise
4.1 Tiffany-Japan shall place Tiffany Merchandise in the Boutiques for sale
pursuant to the terms of this Agreement.
4.2 No merchandise other than Tiffany Merchandise may be sold in the Boutiques.
Mitsukoshi shall not sell Tiffany Merchandise at any location within
Mitsukoshi other than the Boutiques, and Mitsukoshi shall not sell Tiffany
Merchandise at any other location, by catalog or through the Internet.
4.3 It shall be Tiffany-Japan's responsibility to select and furnish a
sufficient quantity and assortment of Tiffany Merchandise for sale in the
Boutiques.
4.4 Tiffany-Japan shall stock the Boutiques with Tiffany Merchandise and
replenish such stock as items are sold. Tiffany-Japan will use reasonable
efforts, consistent with the terms of this Agreement, to maximize the sale
of Tiffany Merchandise in the Boutiques through replenishment; however,
Mitsukoshi agrees that Tiffany-Japan shall not be required to maintain more
than a reasonable reserve stock and that out-of-stock situations will
sometimes occur; Tiffany-Japan shall not be required to account for lost
Base Percentage due to out-of-stock situations.
4.5 Tiffany-Japan shall not be obliged to supply Tiffany Merchandise bearing
the trademarks XXXX XXXXXXX, XXXXX XXXXX or XXXXXX XXXXXXX if Xxxxxxx-Japan
or its Affiliates cease to be licensed to distribute such merchandise in
Japan.
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4.6 Ownership of and title to Tiffany Merchandise shall remain with
Tiffany-Japan from such time as the Tiffany Merchandise is placed in a
Boutique until such time as it is sold to a customer. In the event that any
Tiffany Merchandise sold to a customer from a Boutique is later accepted
from the customer for return, ownership of and title to such merchandise
shall revert to Tiffany-Japan upon acceptance of the return at the
Boutique.
4.7 In a Boutique, risk of loss or damage to Tiffany Merchandise shall remain
with Tiffany-Japan from such time as the Tiffany Merchandise is placed in a
Boutique until such time as it is sold to a customer. Mitsukoshi shall have
no obligation to verify receipt of Tiffany Merchandise by a Boutique. In
the event that any Tiffany Merchandise sold to a customer from a Boutique
is later accepted from the customer for return, risk of loss and damage in
respect of such merchandise shall revert to Tiffany-Japan upon acceptance
of the return at the Boutique. Notwithstanding the foregoing, in a
Boutique, Mitsukoshi shall be responsible for and reimburse the Adjustment
Value in respect of: thefts of Tiffany Merchandise which can be attributed
to named agents, servants or employees of Mitsukoshi or damage to Tiffany
Merchandise attributable to the gross negligence or intentional misconduct
of agents, servants or employees of Mitsukoshi.
4.8.1 In the event Tiffany Merchandise is returned to a Boutique by customers
because it is defective or in need of repair, responsibility for loss or
damage shall rest with Tiffany-Japan from the time that such Tiffany
Merchandise is returned to a Boutique and received by the Tiffany Staff.
Tiffany-Japan shall promptly acknowledge receipt of such defective Tiffany
Merchandise or Tiffany Merchandise in need of repair.
4.8.2 Tiffany-Japan shall carry out an inventory of the Tiffany Merchandise on
hand in each Boutique in January of each year and Mitsukoshi acknowledges
this inventory by Tiffany-Japan.
4.8.3 Mitsukoshi and Tiffany-Japan shall each be entitled to review each other's
inventory and sales records relating to the Tiffany Merchandise from time
to time and on reasonable advance notice.
4.9 It shall be the responsibility of Tiffany-Japan to affix its price tag to
the Tiffany Merchandise in each Boutique.
ARTICLE V
Sale of Tiffany Merchandise
5.1 In consideration of the Base Percentage, Mitsukoshi shall act for
Tiffany-Japan in the sale of the Tiffany Merchandise from the Boutiques,
deliver the Tiffany Merchandise to the customer, accept receipt of payment
and hold the proceeds of sale as provided below.
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5.2 Tiffany Merchandise shall be sold to the customer at the Current Retail
Price in the Boutiques, and shall not be included in any Price Reduction
Program. Mitsukoshi shall clearly indicate that Tiffany Merchandise is not
subject to any Price Reduction Program in representative advertisements and
documents describing or promoting any Price Reduction Program published or
otherwise made available to customers. If Mitsukoshi fails to make such an
indication in any advertisement or document, and if, as a consequence,
Tiffany-Japan is required by law or good customer relations practices to
offer a price concession to any customer relying upon such an advertisement
or publication, for the purposes of calculating Net Sales hereunder such
price concession shall be added back into Net Sales, as if the same had
never been offered at all, and Mitsukoshi shall not request that
Tiffany-Japan make any compensation or reimbursement for Mitsukoshi's
losses resulting from such price concession.
5.3 In Kanazawa, Mitsukoshi shall operate cash registers supplied by
Mitsukoshi.
5.4 In Boutiques excluding Kanazawa, cash registers supplied by Mitsukoshi will
be operated by Tiffany Staff who will be trained in the operation of such
registers and credit authorization procedures by Mitsukoshi. Tiffany Staff
shall be responsible to follow such credit authorization procedures and
Tiffany-Japan will be responsible for any discrepancies in the amount of
cash proceeds occurring while in the custody of Tiffany Staff, which
discrepancies shall be accounted for on a monthly basis.
5.5 Mitsukoshi shall collect proceeds of all sales at the end of each day and
hold the same. Mitsukoshi shall be responsible for any discrepancies in the
amount of cash proceeds occurring while in the custody of Mitsukoshi, which
discrepancies shall be accounted for on a monthly basis.
5.6 Mitsukoshi shall close its accounts for the sale and return of Tiffany
Merchandise at the end each month and report Net Sales to Tiffany-Japan by
the 15th day of the following month.
5.6.1 On 20th day of certain month (or, if such day is a bank holiday, the next
bank business day), Mitsukoshi shall remit to a bank account designated by
Tiffany-Japan (a) Net Sales for the month in question plus the applicable
consumption tax reduced by (b) the associated Base Percentage and the
applicable consumption tax with respect to such Base Percentage.
5.6.2 In calculating the applicable Base Percentage that may be retained by
Mitsukoshi, the applicable Sales Adjustment Factor in a Current Period
shall be initially determined by Net Sales in the concerned Boutique during
the immediately preceding Prior Period. If, at the conclusion of such
Current Period, Net Sales in such Boutique during such Current Period would
require payment of a greater or lesser Base Percentage, any necessary
adjustment shall be made on the first Remission Date following the close of
such Current Period by retention of an additional portion of Net Sales or
by retention of a smaller portion of Net Sales, as the case may be, or to
the extent such means of adjustment is not available or sufficient, by
immediate cash payment.
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5.7 Subject to the provisions concerning Price Reduction Programs set forth in
Section 5.2 above, Mitsukoshi shall make available to customers in the
Boutiques credit terms generally available to customers in its stores and
shall bear the risk of credit losses. Sales of Tiffany Merchandise made on
credit shall be accounted for to Tiffany-Japan as though they were made on
a cash basis and Tiffany-Japan shall not be charged for any credit losses
that Mitsukoshi may incur in connection with such sales. Notwithstanding
the foregoing, in any Boutique in which Tiffany Staff operates cash
registers, Tiffany-Japan will be responsible for any credit loss incurred
due to the failure of Tiffany Staff to follow Mitsukoshi's credit
authorization procedure.
5.8 Tiffany-Japan agrees that Boutiques will accept the return of Tiffany
Merchandise purchased by Mitsukoshi's customers in accordance with return
policies generally available to customers of Mitsukoshi.
5.9 Without prior approval from Tiffany-Japan, Mitsukoshi shall not sell
Tiffany Merchandise to customers who evidence an intention to re-sell the
Tiffany Merchandise or to use the Tiffany Merchandise for promotional
purposes as premiums or novelty gifts-with-purchase that would, in the
reasonable opinion of Tiffany-Japan, adversely affect the marketing image
of Tiffany Merchandise.
5.10 As provided below, information shall be collected, in the form of "customer
cards", from and about customers who purchase Tiffany Merchandise in the
Boutiques and such information shall be shared between Tiffany-Japan and
Mitsukoshi. Information concerning such customers, including names,
addresses, phone numbers, and purchase histories related to Tiffany
Merchandise (the "Customer Information") shall be considered personal
information and Mitsukoshi and Tiffany-Japan agree that Customer
Information shall be handled according to the guidelines established by the
Japan Department Store Association and as required under applicable law. In
handling Customer Information, the parties further agree as follows:
5.10.1 the parties shall consult with each other in advance before obtaining,
using or disclosing Customer Information and shall appropriately manage and
safeguard the Customer Information by instructing their respective
employees to protect the privacy of such information and prevent
unauthorized disclosure;
5.10.2 before obtaining Customer Information, Tiffany-Japan or Mitsukoshi, as
the case may be, shall first obtain the customer's consent and explain the
purposes for which the Customer Information may be used; neither
Tiffany-Japan nor Mitsukoshi shall use the Customer Information for any
purpose other than as authorized by the customer or as permitted by law or
the guidelines referred to above; and
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5.10.3 if Customer Information is used or disclosed in violation of the
provisions of this Section 5.10 as a result of the intentional acts or
negligence of Tiffany-Japan, Mitsukoshi or their respective employees, the
party responsible shall attempt to resolve such matter at its own
initiative and cost and in consultation with the other party.
ARTICLE VI
Construction, Renovation, Maintenance and Improvement of Boutiques
6.1 Mitsukoshi shall, at its cost, provide all necessary wall-coverings,
furniture, display cases, jewelry forms, window display units, lighting
fixtures and lighting supplies for the Boutiques.
6.2 Mitsukoshi shall provide, at their cost and expense, electricity, water,
heat and air-conditioning for all Boutique operations. Cash registers,
facsimile machines and phone systems for the Boutiques shall be supplied by
Mitsukoshi, at their cost and expense.
6.3 Merchandise accounting systems for the Boutiques shall be provided by
Tiffany-Japan.
6.4 In the event that a Boutique is newly established, such Boutique shall be
constructed and outfitted at Mitsukoshi's cost and expense to
Tiffany-Japan's standards for Boutique design, construction and appearance.
All plans and specifications for material and equipment for the
construction or outfitting of the Boutiques will be prepared by Mitsukoshi
and reviewed with Tiffany-Japan prior to the start of construction and
Mitsukoshi agrees to make any changes necessary to conform such plans and
specifications to Tiffany-Japan's standards.
6.5 Mitsukoshi shall perform Renovation and Repair of the following Boutiques
in accordance with the following schedule:
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Business Year Business Year Business Year Business Year Business Year
2008 2010 2011 2012 2013
(from the date (from April 1, (from (from (from
of this 2010 April 1, 2011 April 1, 2012 April 1, 2013
Agreement to to to to to
March 31, 2009) March 31, 2011) March 31, 2012) March 31, 2013) the expiration
date of this
Agreement)
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Full Renovation Sendai Nagoya Sakae, Nihombashi Landmark
Fukuoka
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Sapporo,
Light Renovation Niigata, - - -
Takamatsu
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Repair - Shinjuku - -
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Provided, however, that the following conditions shall be added for
the following Boutiques:
(i) For Nihombashi, in the event that renovation of the Mitsukoshi
Nihombashi Main Store in an entire level (including ground floor
thereof) after 2012 is planned, Mitsukoshi may, subject to an
agreement with Tiffany-Japan, extend Renovation of such Boutique
until the timing of implementation of the said renovation.
(ii)For Landmark, in the event that renovation of the Landmark Tower
in an entire level (including third floor thereof) after 2013 is
planned, Mitsukoshi may, subject to an agreement with
Tiffany-Japan, extend Renovation of such Boutique until the
timing of implementation of the said renovation.
(iii) For Shinjuku, Mitsukoshi shall perform Repair of such Boutique
in Business Year 2011 (from April 1, 2011 to March 31, 2012) only
if such Boutique continues to be operated as Boutique
notwithstanding second sentence of Section 3.4.
If, due to damage from an unforeseen calamity, any Boutique ceases to
be in first rate condition, consistent with Tiffany-Japan's standards,
Mitsukoshi shall promptly perform Repair or Renovation for the
relevant part of such Boutique, unless the entire store remains closed
as a consequence of such calamity, in which case either Repair or
Renovation shall not be required until such store reopens for
business, if at all.
6.6 Both parties shall, at their own cost and expense, perform Housekeeping
Operations for each Boutique as provided in Schedule II attached.
6.7 In each Boutique, Mitsukoshi agrees to install, on or before the Effective
Date, at Mitsukoshi's cost and expense, security equipment consistent with
Tiffany-Japan's standards. Such equipment shall include: merchandise
storage vaults; secure premises that may be closed off after trading hours
by means of a rolling locking gate; and electronic security measures such
as closed circuit television monitoring, intrusion monitoring and alarms
and panic buttons. In addition, for each Boutique, Mitsukoshi shall, at
Mitsukoshi's cost and expense, provide security guard services to the same
extent such services are provided for other departments within the store
location.
ARTICLE VII
Brand and Boutique Management
7.1 Tiffany-Japan shall manage the XXXXXXX & CO. brand within the Boutiques
subject to the Mitsukoshi's store-wide operational guidelines.
7.2 All Boutiques shall be managed in accordance with the Operating Manual to
the extent that the Operating Manual is not inconsistent with the express
terms of this Agreement and Mitsukoshi's store-wide operational guidelines.
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7.3 In the event an issue arises which is not dealt with in this Agreement or
in the Operating Manual, both parties shall discuss such issue and resolve
it to the satisfaction of both parties.
ARTICLE VIII
Staffing of Boutiques
8.1 For each Boutique, Tiffany-Japan shall provide, at its own expense, Tiffany
Staff.
8.2 Tiffany Staff shall be the employees of Tiffany-Japan and shall comply with
the supervision and instruction provided by Tiffany-Japan. With respect to
working hours, security procedures and other operating procedures necessary
for the day-to-day operation of a department store, they shall adhere to
the supervision and instruction of Tiffany-Japan to the extent that such
supervision and instructions do not contradict the rules of Mitsukoshi.
Tiffany Staff shall have access to the employees' cafeteria, rest-rooms and
other welfare facilities within the stores of Mitsukoshi used by
Mitsukoshi's employees.
8.3 When Tiffany-Japan wishes to dispatch an employee as Tiffany Staff to a
Boutique, Tiffany-Japan shall write the name, sex, age and brief personal
history of such employee on a form agreed by the parties in advance and
submit the same to Mitsukoshi for informational purposes only. Mitsukoshi
shall keep such information strictly confidential and shall not use the
same for any purposes other than the purpose for which the concerning
information is disclosed.
8.4 The salary, welfare expenses, responsibilities under related laws and
regulations and any other responsibilities related to employment of Tiffany
Staff shall be borne by Tiffany-Japan.
8.5 The working conditions for Tiffany Staff shall be controlled by
Tiffany-Japan.
8.6 For Tiffany Staff, Tiffany-Japan shall, by the end of each month, submit a
monthly work schedule for the coming month to Mitsukoshi.
ARTICLE IX
Display and Packaging of Tiffany Merchandise
9.1 Tiffany-Japan shall determine the manner in which the Tiffany Merchandise
is displayed within a Boutique subject to Mitsukoshi's store-wide display
guidelines.
9.2 Subject to Mitsukoshi's store-wide display guidelines, Tiffany-Japan shall
determine the
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manner in which store windows, vitrines and other showcases associated with
a Boutique are decorated and the selection of Tiffany Merchandise to be
displayed in such windows, vitrines and other showcases. Mitsukoshi shall
not diminish, appropriate or reassign any store windows, vitrines or other
showcases associated with Boutiques as of the date of this Agreement.
9.3 For a Boutique, Tiffany-Japan shall provide, at its own expense, packaging
materials (blue boxes, ribbons, wrapping materials, felt bags, jewelry
boxes and shopping bags) meeting the worldwide standards for design, color,
quality and security (including measures designed to protect against
counterfeiting) established by Tiffany-Japan's controlling Affiliate from
time to time and use such materials whenever Tiffany Merchandise is sold
from a Boutique.
9.4 For a Boutique, Tiffany-Japan shall provide and display, at its own
expense, fresh floral arrangements conforming to Tiffany-Japan's standards,
which arrangements shall be changed weekly.
9.5 For a Boutique, Tiffany-Japan shall provide, at its own expense, all
decorative items used in the Boutique and all employee uniforms worn by
Tiffany Staff. All such items and uniforms shall conform to Tiffany-Japan's
standards for design, color and quality.
9.6 All signs used in connection with the Boutiques shall conform to the
standards established by Tiffany-Japan.
ARTICLE X
Advertising, Promotion and Public Relations
10.1 Except as provided in Schedule III attached, Tiffany-Japan shall be
responsible to advertise and promote Tiffany Merchandise in Japan and shall
make all arrangements with respect to advertising, promotion and public
relations in respect of Tiffany Merchandise, the Trademarks, Tiffany-Japan
or its Affiliates or the designers associated with Tiffany-Japan's
Affiliates. Mitsukoshi shall be responsible for certain costs of
advertising and promotional activity as indicated in Schedule III attached.
10.2 Unless otherwise expressly agreed in writing between the parties, expenses
for advertising and promotion for Tiffany Merchandise shall be allocated
between Mitsukoshi and Tiffany-Japan as set forth in Schedule III attached.
10.3 Except as noted in Schedule III attached, Tiffany-Japan shall have complete
control of the all elements of advertising, promotion and public relations
relating to Tiffany Merchandise, the Trademarks, Tiffany-Japan and its
Affiliates or the designers associated with Tiffany-Japan's Affiliates,
including graphic design, photography, copy, scheduling, media selections
and advertising agencies.
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10.4 In all advertising for Tiffany Merchandise, Mitsukoshi shall use creative
materials (mechanical and films) provided by Tiffany-Japan.
10.5 In the event that Mitsukoshi wishes to undertake any advertising or
promotional activity with respect to Tiffany Merchandise in addition to
that conducted by Tiffany-Japan, it shall first seek the permission of
Tiffany-Japan. Such advertising shall be conducted at Mitsukoshi's own cost
and expense and Mitsukoshi shall conform to the following procedures:
10.5.1 Mitsukoshi shall first meet with a representative of Tiffany-Japan and
discuss the objectives of the advertising or promotional activity and how
it will complement advertising and promotional activity undertaken by
Tiffany-Japan;
10.5.2 Before use of any advertising or promotional material not supplied by
Tiffany-Japan or the Trademarks, Mitsukoshi shall first obtain the written
approval of Tiffany-Japan to such use; and
10.5.3 Before commencement of any promotional or public relations activity
relating to Tiffany Merchandise, the Trademarks, Tiffany-Japan or its
Affiliates or the designers associated with Tiffany-Japan's Affiliates,
Mitsukoshi shall first obtain the written approval of Tiffany-Japan to such
activity.
10.6 Mitsukoshi shall not issue or make any public statement on behalf of
Tiffany-Japan or any of its Affiliates or concerning Tiffany Merchandise,
Tiffany-Japan, its Affiliates or any of the designers associated with such
Affiliates unless and until such public statement shall first have been
reviewed and approved by Tiffany-Japan, it being understood and agreed that
the only designated public spokesperson for Tiffany-Japan shall be the
President of Tiffany-Japan or his designate.
10.7 Unless otherwise expressly agreed in writing between the parties,
allocation of expenses for events held in connection with a Boutique and
planning of such events shall be as set forth in Schedule IV attached.
ARTICLE XI
Expiration or Termination of Agreement
11.1 On the Expiration Date, this Agreement shall terminate unless previously
terminated for default as provided below.
11.2 The occurrence of any one or more of the following events (regardless of
the reason therefor) shall constitute a default allowing the non-defaulting
party to terminate this Agreement on written notice and/or to pursue other
remedies available at law or otherwise under this Agreement:
13
11.2.1 Any party shall fail to pay any monies due under this Agreement and the
same shall not be paid within thirty (30) days after written notice from
the party to whom such monies shall be due;
11.2.2 Any party shall fail or neglect to perform, keep, or observe any term,
provision, condition, covenant, warranty or representation contained in
this Agreement or in any other agreement, contract or undertaking
contemplated under this Agreement and the same shall not be cured to the
other party's satisfaction within thirty (30) days after written notice
identifying such event or condition or, in the event such failure or
neglect is not reasonably susceptible to cure within thirty (30) days, the
party charged with such failure or neglect shall have further failed to
commence cure and diligently proceed to completion of such cure;
11.2.3 The insolvency of any party (for this purpose, "insolvency" shall mean
the inability to satisfy its debts as they come due);
11.2.4 The institution of any proceeding or arrangement by or against any party
relating to or in the nature of bankruptcy, insolvency, or an assignment
for the benefit of creditors, which proceeding or arrangement is consented
to by the party against whom it is instituted or is not dismissed or
discontinued within sixty (60) days after the institution of such
proceeding or arrangement;
11.2.5 The making of any assignment for the benefit of creditors or the
appointment of a receiver of or for any party or of or for all or
substantially all of the business, assets or properties of any party;
11.2.6 The transfer or attempted transfer (or any transaction the effect of
which is to transfer) of any license, right or privilege granted under this
Agreement except as expressly permitted under this Agreement; or
11.2.7 Any conduct by Mitsukoshi which is materially injurious to the value of
the Trademarks or to Tiffany's name and/or reputation or to the name and/or
reputation of any other owner of one of the Trademarks.
11.2.8 Any conduct by Tiffany-Japan which is materially injurious to the value
of the trademarks, name and/or reputation of Mitsukoshi.
In addition to or in lieu of the remedies for default stated above, in the
event of default which concerns one or more Boutiques, Tiffany-Japan may
elect to terminate the Agreement only in respect to the offending
Boutiques.
14
11.3 Termination of the Agreement shall not discharge the obligation of any
party to pay monies or other obligation due under this Agreement as of the
date of termination.
11.4 Upon the termination of the Agreement, Mitsukoshi shall immediately remove
from its Boutiques, at its own expense, all fixtures and signs bearing the
Trademarks and all other indications of the brand identity of XXXXXXX & CO.
and otherwise cease to identify itself as a source of Tiffany Merchandise.
ARTICLE XII
Insurance and Indemnity
12.1 Tiffany-Japan shall provide Liability Insurance.
12.2 To the extent not covered by the Liability Insurance, Mitsukoshi shall,
during and after the term of this Agreement, indemnify, defend and hold
Tiffany-Japan harmless from and against any and all claims, demands, suits,
actions, causes of action, loss, damage, liability and attorney's fees, and
other costs and expenses incurred by Tiffany-Japan as the result of any
violation of this Agreement by, or any act of omission or commission on the
part of Mitsukoshi, or any of its agents, servants, or employees.
12.3 To the extent not covered by the Liability Insurance, Tiffany-Japan shall
during and after the term of this Agreement, indemnify, defend and hold
Mitsukoshi harmless from and against any and all claims, demands, suits,
actions, causes of action, loss, damage, liability and attorney's fees, and
other costs and expenses incurred by Mitsukoshi as a result of any
violation of this Agreement by, or any act of omission or commission on the
part of Tiffany or Tiffany-Japan, or any of their respective agents,
servants, or employees, and from all claims, damages, causes in action, tax
liabilities, fines, or suits arising from the sale of defective merchandise
(provided, however, that in the case of claims, damages, etc. based upon a
product liability case, i.e. a case in which it is claimed that bodily
injury or property damage (other than to the product itself) has been
incurred as result of a defect (including a defect, non-statement or
mis-statement in labeling etc.) or a claimed defect in Tiffany Merchandise,
any and all the claims, damages, etc. arising from the sale of such
merchandise, regardless of whether such merchandise is defective or not,
shall be included in this indemnity) or as a result of use of the
Trademarks as permitted in this Agreement.
ARTICLE XIII
Miscellaneous
13.1 Neither party will make any press release announcing the signing of this
Agreement until the other party shall have had an opportunity to review and
comment upon the
15
proposed press release.
13.2 Neither this Agreement, nor any part hereof, shall be construed to create
in favor of Tiffany or Tiffany-Japan a lease or possession right or, except
as expressly stated in this Agreement, any other rights, in the Boutiques
located in Mitsukoshi.
13.3 This Agreement may not be modified, altered or amended except by an
agreement in writing signed by both parties.
13.4 Except as expressly provided in this Agreement, neither party may sell,
delegate, assign or transfer this Agreement, or any part hereof, without
the consent of the other party. In the event that title to a store of
Mitsukoshi in which a Boutique is located is transferred to, or person to
operate such store of Mitsukoshi is changed to, an Affiliate of Mitsukoshi,
the said Boutique shall benefit from, and be subject to, this Agreement as
if the said Boutique continued to be operated in a store of Mitsukoshi, on
condition that the said store of Mitsukoshi is continued to be operated
under the Mitsukoshi brand; provided, however, that in such case Mitsukoshi
shall perform its obligations under this Agreement by acquiring rights with
respect to such Boutique which are necessary for performing its obligations
under this Agreement from such Affiliate in a form of license, etc. or
causing such Affiliate to perform such obligations.
13.5 The failure by any party, at any time or times, to require strict
performance by the other party of any provision of this Agreement shall not
waive, affect or diminish any right thereafter to demand strict compliance
and performance therewith. Any suspension or waiver (which must be in
writing) by any party of a default under this Agreement by the other party
shall not suspend, waive or affect any other default under this Agreement,
whether the same is prior or subsequent thereto and whether the same or of
a different type.
13.6 Wherever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement; provided that if
any provision which has been a material consideration to either party
entering into this Agreement is so prohibited or invalid the party to which
such provision was material may terminate this Agreement if the other party
is unwilling or unable, after negotiation in good faith, to modify this
Agreement to replace such material provision with a valid substitute
provision which is reasonably acceptable.
13.7 Subject to the provisions of Section 13.4, this Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the parties
hereto.
16
13.8 This Agreement shall in all respects be governed by and construed in
accordance with the laws of Japan applicable to agreements executed,
delivered and performed within Japan, without regard to Japan's conflict of
laws rules, including all matters of construction, validity and
performance.
13.9 Except as otherwise provided herein, any notice necessary or desirable
hereunder shall be in writing, and shall be deemed to have been validly
served, given or delivered (i) effective upon hand delivery to an officer
of the recipient or (ii) effective two (2) days following posting by
registered mail, with proper postage prepaid, and addressed to the party to
be notified as follows:
If to Tiffany-Japan, at: 0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx, Attn: President
If to Mitsukoshi, at: 4-1, Nihombashi Xxxxxxxxx 0-xxxxx, Xxxx-Xx,
Xxxxx 000-0000, Xxxxx, Attn: General Manager of Merchandising Division
13.10 The Article titles contained in and throughout this Agreement are and
shall be without substantial meaning or content of any kind whatsoever and
are not a part of this Agreement.
13.11 The parties shall discuss and attempt to solve in good faith all disputes,
controversies or differences that arise between them. All disputes,
controversies, or differences which may arise between the parties, out of
or in relation to or in connection with this Agreement, or the breach
hereof, which cannot be resolved by discussion between the parties shall be
finally decided by court proceedings. The parties hereto agree that the
Tokyo District Court sitting in Tokyo, Japan shall have jurisdiction over
such proceedings.
13.12 Neither party shall be deemed to have breached this Agreement by reason of
delay or failure in performance resulting from a cause beyond the control
and without the fault or negligence of such party. Said causes shall
include, but not be limited to: acts of God; acts of war; riot; epidemics,
fires, floods or other disasters; acts of government; strikes or lockouts.
In the event a casualty loss or other such event beyond its control renders
it impossible or reasonably unlikely that Mitsukoshi will be able to
operate one or more of the Boutiques for a period in excess of three (3)
months, Tiffany-Japan shall have the right to effect a partial termination
of this Agreement in respect of the affected Boutique(s) only and this
Agreement shall continue in full force and effect with respect to the
unaffected Boutiques.
13.13 This Agreement shall be entered into in duplicate in both English and
Japanese; however, in the event that any conflict in meaning arises when
the Japanese version of this Agreement is compared to the English version
of this Agreement, it is hereby agreed that the Japanese version will
supersede the English version, it being
17
acknowledged that this Agreement was negotiated in the Japanese language.
13.14 This is the entire agreement between the parties with respect to the
subject matter hereof. It supersedes all prior agreements, memoranda, oral
agreements or understandings between the parties. Nothing in this Agreement
shall be deemed to impose an exclusive relationship upon either party and
both parties shall be free to deal with others in all respects unless
expressly provided otherwise in this Agreement.
(Remainder of page intentionally left blank)
18
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST
WRITTEN ABOVE.
MITSUKOSHI LIMITED
("Mitsukoshi")
By: /s/ Xxxxxxx Xxxxxx
_______________________________________
Name: Xxxxxxx Xxxxxx
Title: Managing Executive Officer
Departmentstore Business Headquarters
General Manager, Merchandising Division
XXXXXXX & CO. JAPAN, INC.
("Tiffany-Japan")
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
19
SCHEDULES TO AGREEMENT
Schedule I: Boutique and Boutique Location
Schedule II: Housekeeping Operations
Schedule III: Allocation of Expenses for Advertisements and Media
Schedule IV: Allocation of Expenses for Events
Schedule I
Boutique and Boutique Location
---------------------------------------------------------------------------------------------------------------------
Boutique Boutique Location
---------------------------------------------------------------------------------------------------------------------
Nihombashi Mitsukoshi Nihombashi Main Store, 1-4-1, Nihombashi Muromachi, Chuo-ku, Tokyo
---------------------------------------------------------------------------------------------------------------------
Landmark Landmark Plaza, 2-2-1-2, Minatomirai, Nishi-ku, Yokohama City, Kanagawa
---------------------------------------------------------------------------------------------------------------------
Shinjuku Mitsukoshi Shinjuku Arcot Store, 3-29-1, Shinjuku, Shinjuku-ku, Tokyo
---------------------------------------------------------------------------------------------------------------------
Ginza Mitsukoshi Ginza Store, 0-0-00, Xxxxx, Xxxx-xx, Xxxxx
---------------------------------------------------------------------------------------------------------------------
Chiba Mitsukoshi Chiba Store, 0-0-0, Xxxxxx, Xxxx-xx, Xxxxx Xxxx, Xxxxx
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxx, 0-000, Xxxxxxxxxxxxx, Chuo-ku, Niigata City, Niigata
---------------------------------------------------------------------------------------------------------------------
Sendai Mitsukoshi Sendai Store, 0-0-00, Xxxxxxxxxx, Xxxx-xx, Xxxxxx Xxxx, Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Sapporo Mitsukoshi Sapporo Store, 3-8, Minami-Ichijo-Nishi, Chuo-ku, Sappro City, Hokkaido
---------------------------------------------------------------------------------------------------------------------
Nagoya Sakae Mitsukoshi Nagoya Sakae Store, 0-0-0, Xxxxx, Xxxx-xx, Xxxxxx Xxxx, Xxxxx
---------------------------------------------------------------------------------------------------------------------
Takamatsu Mitsukoshi Takamatsu Store, 7-1, Uchimachi, Takamatsu City, Kagawa
---------------------------------------------------------------------------------------------------------------------
Matsuyama Mitsukoshi Matsuyama Store, 3-1-1, Ichibancho, Matsuyama City, Ehime
---------------------------------------------------------------------------------------------------------------------
Fukuoka Mitsukoshi Fukuoka Store, 2-1-1, Tenjin, Chuo-ku, Fukuoka City, Fukuoka
---------------------------------------------------------------------------------------------------------------------
Kanazawa Kitaguni Xxxxxx Xxxx., 0-0-00, Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx
---------------------------------------------------------------------------------------------------------------------
Schedule II
--------------------------------------------------------------------------------
Housekeeping Operations
--------------------------------------------------------------------------------
Daily Housekeeping Party
--------------------------------------------------------------------------------
Store Front
--------------------------------------------------------------------------------
Clean Sidewalk Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Inside Store
--------------------------------------------------------------------------------
Vacuum Carpet Tiffany-Japan
--------------------------------------------------------------------------------
Clean Mirrors Tiffany-Japan
--------------------------------------------------------------------------------
Clean Stainless Steel showcase trim Tiffany-Japan
--------------------------------------------------------------------------------
Clean xxxxx Xxxxxxx-Japan
--------------------------------------------------------------------------------
Dust Millwork Tiffany-Japan
--------------------------------------------------------------------------------
Empty Trash Tiffany-Japan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Back Office
--------------------------------------------------------------------------------
Vacuum Carpet Tiffany-Japan
--------------------------------------------------------------------------------
Clean Furniture Tiffany-Japan
--------------------------------------------------------------------------------
Empty Trash Tiffany-Japan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Weekly Housekeeping
--------------------------------------------------------------------------------
Store Front
--------------------------------------------------------------------------------
Clean Doors and Surrounding Part Mitsukoshi
--------------------------------------------------------------------------------
Clean Mirrors Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Inside Store
--------------------------------------------------------------------------------
Clean Artwork Frame & Xxxxx Xxxxxxx-Japan
--------------------------------------------------------------------------------
Vacuum Furniture Fabric Xxxxxxx-Japan
--------------------------------------------------------------------------------
Clean Wall Covering Tiffany-Japan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Back Office
--------------------------------------------------------------------------------
Wet mop tile floor Tiffany-Japan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Semiannual Housekeeping
--------------------------------------------------------------------------------
Store Front
--------------------------------------------------------------------------------
Clean Stainless Steel Frames Mitsukoshi
--------------------------------------------------------------------------------
Clean Xxxxxxx & Co. Sign Mitsukoshi
--------------------------------------------------------------------------------
Clean Ektachrome Mitsukoshi
--------------------------------------------------------------------------------
Clean Glass Wall Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Inside Store
--------------------------------------------------------------------------------
Clean Air Conditioning Vents + Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Housekeeping Operations (cont)
--------------------------------------------------------------------------------
Annual Housekeeping Party
--------------------------------------------------------------------------------
Store Front
--------------------------------------------------------------------------------
Clean Marble + Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Inside Store
--------------------------------------------------------------------------------
Shampoo Deep Clean Carpet + Mitsukoshi
--------------------------------------------------------------------------------
Clean Furniture fabric and curtains + Mitsukoshi
--------------------------------------------------------------------------------
Touch Up Millwork + Mitsukoshi
--------------------------------------------------------------------------------
Touch Up Ceiling Paint + Mitsukoshi
--------------------------------------------------------------------------------
Clean Ceiling Coves + Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Back Office
--------------------------------------------------------------------------------
Service Security System CCTV + Mitsukoshi
--------------------------------------------------------------------------------
Clean Tile Floor + Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
As Needed Housekeeping
--------------------------------------------------------------------------------
Store Front
--------------------------------------------------------------------------------
Replace out Ektachrome lighting Mitsukoshi
--------------------------------------------------------------------------------
Replace out Exterior Vitrine lighting Mitsukoshi
--------------------------------------------------------------------------------
Repair Sidewalk Mitsukoshi
--------------------------------------------------------------------------------
Repair Wall adjacent to Boutique Mitsukoshi
--------------------------------------------------------------------------------
Repair Public Ceiling, Lighting in Space adjacent to Boutique Mitsukoshi
--------------------------------------------------------------------------------
Pest Control Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Inside Store
--------------------------------------------------------------------------------
Replace out lamps, ceiling, showcase, wall units Mitsukoshi
--------------------------------------------------------------------------------
Repair/Replace broken locks Mitsukoshi
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Back Office
--------------------------------------------------------------------------------
Replace out lamps on ceiling and desks Mitsukoshi
--------------------------------------------------------------------------------
Repair/Replace broken locks Mitsukoshi
--------------------------------------------------------------------------------
Service Security Alarm Systems + Mitsukoshi
--------------------------------------------------------------------------------
+ Need Professional Treatment
Schedule III
Allocation of Expenses for Advertisements and Media
-----------------------------------------------------------------------------------------------------------------------------
Mitsukoshi
Type of Expenses to Store Name Mitsukoshi
Medium Advertising or be borne by Expenses to be borne and Location Logo to be
Event Xxxxxxx-Japan by Mitsukoshi to be Printed Used Remarks
-----------------------------------------------------------------------------------------------------------------------------
NEWSPAPER Boutique Opening --- Media and production Mitsukoshi Yes Opening day
expenses Store for New placement;
Boutique paper with
highest
circulation
in the city
of the
Boutique
------------------------------------------------------------------------------------------------------
Xxxxxxx-Japan- Media and --- All Stores No ---
sponsored production where
merchandise expenses Boutique is
promotion located,
including
non-Mitsukoshi
stores
------------------------------------------------------------------------------------------------------
Media
determined
Mitsukoshi-sponsored Media and production Host Store by
ads --- expenses sponsoring ad Yes Mitsukoshi
and
Xxxxxxx-Japan
-----------------------------------------------------------------------------------------------------------------------------
MAGAZINES Product or Media and --- --- No ----
image promotion production
expenses
-----------------------------------------------------------------------------------------------------------------------------
BACK LIGHT Film
Ektachrome Change Visual: production Mitsukoshi
(all locations other as determined and Maintenance expenses Stores in Yes ---
than Boutique Facade) by Xxxxxxx-Japan installation and rent Region
expenses
-----------------------------------------------------------------------------------------------------------------------------
Boutique Ectachrome 2nd annual
(Boutique Facade) change (film 1st annual change
Change Visual: production (film production and
as determined by and installation --- No ---
Xxxxxxx-Japan installation expenses)
expenses)
-----------------------------------------------------------------------------------------------------------------------------
TV - Xxxxxxx-Japan Media and
Sponsored As determined production --- --- No ---
by Xxxxxxx-Japan expenses
-----------------------------------------------------------------------------------------------------------------------------
Catalog --- Production Postage --- No ---
-----------------------------------------------------------------------------------------------------------------------------
Direct Marketing Opening Production Printing/Postage Yes Yes ---
Expenses
------------------------------------------------------------------------------------------------------
Invitation Production/ Postage Yes Yes ---
(event outside Printing/
Boutique)
------------------------------------------------------------------------------------------------------
Invitation Production/
(event inside Printing/ None Yes Yes ---
boutique) Postage
------------------------------------------------------------------------------------------------------
Response card
(Guest Production/
accept/rejects Printing/ None Yes Yes ---
invitation Postage
------------------------------------------------------------------------------------------------------
Production/
Other customer Printing/ None Yes Yes ---
communication Postage
-----------------------------------------------------------------------------------------------------------------------------
* For Kanazawa, Mitsukoshi-sponsored newspaper ad (one-time on only one
newspaper) will be conducted during holiday season of each year.
Schedule IV
Allocation of Expenses for Events
----------------------------------------------------------------------------------------------------------------
Event Item Funded by Xxxxxxx-Japan Funded by Mitsukoshi
----------------------------------------------------------------------------------------------------------------
Events outside Space rent Half of rent Half of rent
of Boutique
(only at the first-class
hotel in the region)
--------------------------------------------------------------------------------------
Decoration Half of cost Half of cost
(Event Hall)
--------------------------------------------------------------------------------------
Decoration (Flower) Half of cost Half of cost
--------------------------------------------------------------------------------------
Showcase (including Half of cost Half of cost
shipping cost)
--------------------------------------------------------------------------------------
Gift Half of cost Half of cost
--------------------------------------------------------------------------------------
Catalogue production cost Entire cost -
--------------------------------------------------------------------------------------
DM materials Entire cost -
--------------------------------------------------------------------------------------
DM printing Entire cost -
--------------------------------------------------------------------------------------
Postage - Entire cost
-------------------------------------------------------------------------------------
Light refreshments served Half of cost Half of cost
--------------------------------------------------------------------------------------
Presentation Entire cost -
(See "Note" below)
--------------------------------------------------------------------------------------
Announcement board Half of cost Half of cost
--------------------------------------------------------------------------------------
Events in Boutique Decoration Entire cost -
(Customer communication (Event Hall)
events)
--------------------------------------------------------------------------------------
Decoration (Flower) Entire cost -
--------------------------------------------------------------------------------------
Gift Entire cost -
--------------------------------------------------------------------------------------
DM materials Entire cost -
---------------------------------------------------------------------------------------
DM printing Entire cost -
--------------------------------------------------------------------------------------
Postage Entire cost -
--------------------------------------------------------------------------------------
Presentation
(including costs of food
and drink such as light Entire cost -
refreshment or catering)
--------------------------------------------------------------------------------------
Announcement board Entire cost -
----------------------------------------------------------------------------------------------------------------
Xxxxxxx-Japan shall make planning of Presentation.
For allocation of any other items of expenses, the parties shall otherwise
determine upon consultation.
MEMORANDUM OF UNDERSTANDING
Xxxxxxx & Co. Japan Inc.
Mitsukoshi Limited
MEMORANDUM OF UNDERSTANDING
This MEMORANDUM OF UNDERSTANDING (the "MOU") is made as of this 1st day of
February, 2009, by and between (i) Xxxxxxx & Co. Japan, Inc. ("Xxxxxxx-Japan"),
a corporation organized and existing under the laws of the State of Delaware
with its Japan branch offices at 0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx, and (ii) Mitsukoshi Limited ("Mitsukoshi"), a corporation
organized and existing under the laws of Japan with its executive offices at
4-1, Nihombashi Xxxxxxxxx 0-xxxxx, Xxxx-Xx, Xxxxx 000-0000, Xxxxx. Terms defined
in the Agreement (as amended, the "2001 Agreement") dated August 1, 2001 between
Xxxxxxx-Japan and Mitsukoshi shall, unless otherwise expressly provided herein,
have the same meaning where used herein.
ARTICLE 1 Closure of Ikebukuro Store and Kagoshima Store
----------------------------------------------
Xxxxxxx-Japan and Mitsukoshi agree to close, at Mitsukoshi's expense, (i) the
Boutique located in the Mitsukoshi Ikebukuro Store at 0-0-0, Xxxxxxx Xxxxxxxxx,
Xxxxxxx-xx, Xxxxx, Xxxxx ("Ikebukuro Store") as of March 28, 2009 and (ii) the
Boutique located in the Mitsukoshi Kagoshima Store at 0-0, Xxxxxx-xxx, Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxx ("Kagoshima Store") as of May 6, 2009, and to no longer
operate either of them as Boutique.
ARTICLE 2 Continuing Application of Provisions in the 2001 Agreement
--------------------------------------------------------------------
Notwithstanding the termination and expiration of the 2001 Agreement, during the
period from the date of this MOU until the date of such closure as provided in
Article 1 hereof, with respect to Ikebukuro Store and Kagoshima Store, any
provisions in the 2001 Agreement which applied to the said stores shall continue
to apply; provided, however, that in the event of any conflict between this MOU
and the 2001 Agreement, this MOU shall supersede the 2001 Agreement.
ARTICLE 3 Jurisdiction and Governing Law
------------------------------
This MOU shall be governed by and construed in accordance with the laws of
Japan, and all disputes arising out of or in connection with this MOU shall be
subject to the exclusive, first instance jurisdiction of the Tokyo District
Court.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS MOU AS OF THE DATE FIRST
WRITTEN ABOVE.
MITSUKOSHI LIMITED
By: /s/ Xxxxxxx Xxxxxx
_______________________________________
Name: Xxxxxxx Xxxxxx
Title: Managing Executive Officer
Departmentstore Business Headquarters
General Manager, Merchandising Division
XXXXXXX & CO. JAPAN INC.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title:President
