EXHIBIT 10(iii)(f)
NAUTICA ENTERPRISES, INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
January 7, 2002
Mr. Xxxxx Xxx
C/o Nautica Enterprises, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Letter Agreement, dated May 1, 1998, between Xxxxx Xxx and
Nautica Enterprises, Inc. (the "1998 Letter Agreement")
Dear Xxxxx:
This letter (this "Sale and Cancellation Agreement") sets forth our
agreement concerning the sale of your rights and the cancellation of Nautica
Enterprises, Inc.'s ("Nautica") obligations under the 1998 Letter Agreement.
In consideration of your full release and complete discharge of Nautica
with respect to any obligations Nautica has or may have pursuant to or arising
out of the 1998 Letter Agreement, the full conveyance by you to Nautica of all
rights you have and may have pursuant to or arising out of the 1998 Letter
Agreement and the cancellation of all past, present and future obligations of
Nautica thereunder, Nautica agrees to pay to you an amount equal to (i) four
million dollars ($4,000,000) in immediately available funds (the "Cash Amount")
and (ii) One Million Six Hundred Thirty Thousand One Hundred and Twenty Three
Dollars ($1,630,123.00) in immediately available funds (the "Gross-up Amount").
In full satisfaction of any obligations Nautica has or may have pursuant
to or arising out of the 1998 Letter Agreement, the full conveyance by you to
Nautica of all rights you have and may have pursuant to or arising out of the
1998 Letter Agreement and the cancellation of all past, present and future
obligations of Nautica thereunder, we will transfer funds to you via wire
transfer pursuant to written transfer instructions received from you, (i) a wire
transfer for the Cash Amount and (ii) a wire transfer for the Gross-up Amount on
January 10, 2002, or such other date, time and place mutually agreed upon by us
in writing (the "Closing Date").
Upon the execution and delivery of this Sale and Cancellation Agreement,
you agree that: all obligations Nautica has or may have pursuant to or arising
out of the 1998 Letter Agreement are canceled; all rights you may have pursuant
to or arising out of the 1998 Letter Agreement are conveyed to Nautica; you are
granting to Nautica full and irrevocable release with respect to any obligations
Nautica has or may have pursuant to or arising out of the 1998 Letter Agreement;
no further payments are owed or due to be made to you by Nautica thereunder with
respect to any prior, current or future fiscal or calendar year; and Nautica's
only obligation to you in connection with the 1998 Letter Agreement and this
Sale and Cancellation Agreement is to pay you the Cash Amount and the Gross-up
Amount on the Closing Date.
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Except to the extent as provided herein, this Sale and Cancellation
Agreement is not intended to alter or change the status quo with respect to our
respective rights to any intellectual property, including rights to any Nautica
name or trademarks. Accordingly, except as provided herein, nothing in this Sale
and Cancellation Agreement will modify any such rights and, except for the
purpose of enforcing the provisions of this Sale and Cancellation Agreement,
neither you nor Nautica will submit, refer, to or otherwise use this letter, or
any of its terms, in any legal, administrative or arbitration proceeding
relating thereto.
Supplementing the foregoing, except for the purpose of enforcing the
provisions of this Sale and Cancellation Agreement, the parties agree that
neither party to this Sale and Cancellation Agreement will be entitled to rely
upon or, except as required by law, refer to the tax accounting and financial
accounting of this transaction or the Gross-up Amount made by the parties hereto
and/or any documents or statements, referring to such election, in any
discussion, interpretation or dispute in connection with any legal,
administrative or arbitration proceeding relating to the parties' respective
rights to any intellectual property and pursuant to any agreements relating to
the "Nautica" trademark.
Nothing herein shall prohibit Nautica from disclosure of this Sale and
Cancellation Agreement under applicable state or federal laws including but not
limited to disclosure under applicable securities laws.
For federal, state and local income tax purposes, the parties hereto
intend that the Gross-up Amount has been computed based on the parties'
agreement to treat the Sale and Cancellation Agreement as a sale of a capital
asset. Neither party hereto shall take any position on his or its tax returns or
with any taxing authority or in any judicial proceeding or take any action or
fail to take any action that is inconsistent with such treatment or that would
cause the Gross-up Amount not to be computed on the basis of a sale of a capital
asset. Nautica shall indemnify and hold you harmless from and against the
imposition of any and all additional taxes, and all interest and penalties
resulting from the imposition of such taxes by the Internal Revenue Service or
any other taxing authority, as finally determined, resulting solely from the
failure to respect or permit the treatment of the transaction as a sale of a
capital asset, in which event, such taxes for purposes of this paragraph shall
be computed at the federal, state and local rates actually applicable to you (as
compared to the taxes which would have been due if the Gross-up Amount had been
computed on the basis of this transaction being treated as a sale of a capital
asset); provided, however, that you (i) have fully complied with the provisions
of the second sentence of this paragraph and (ii) promptly notify Nautica in
writing of any audit or claim by a taxing authority that could result in a
liability of Nautica under this paragraph and, if Nautica so requests, permit
Nautica, at its own expense: (a) to participate in the conduct and defense of
such audit or contest to the extent such audit or contest relates to whether or
not the treatment of any gain realized from this transaction as a capital gain
is appropriate (a "Relevant Audit Issue"); and (b) to engage representation
selected by Nautica and acceptable to you (which acceptance shall not be
unreasonably withheld) to participate in the defense of an audit or contest
related to a Relevant Audit Issue and any administrative or judicial proceeding
resulting therefrom. In the event Nautica undertakes to participate in the
defense or contest of a taxing authority's audit or claim of a Relevant Audit
Issue, you agree not to settle or compromise the Relevant Audit Issue without
Nautica's prior written approval, which approval shall not be unreasonably
withheld.
This Sale and Cancellation Agreement constitutes the entire agreement
between you and Nautica with respect to all matters referred to herein and
supersedes all prior agreements or understandings, written or oral, among us
with respect thereto, and shall be binding upon and for the benefit of you and
Nautica, and our respective successors, assigns heirs and distributees.
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This Sale and Cancellation Agreement shall be governed by and construed in
accordance with the internal substantive laws and not the choice of law rules of
the State of New York.
This Sale and Cancellation Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one instrument, the effective date of which shall be the first date set forth
above.
Please indicate your agreement with and acceptance of the terms and
conditions of this Sale and Cancellation Agreement by signing your name in the
space provided below, and returning an executed copy of this letter to Nautica
at its offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Very truly yours,
NAUTICA ENTERPRISES, INC.
By: s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Agreed and accepted as
of the first date written above
By: s/ Xxxxx Xxx
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Xxxxx Xxx
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