DESIGNATION AND
This Agreement is made as of the 25th day of March, 1996 by and between PGA
TOUR, INC., a Maryland corporation with its principal offices located at ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TOUR") and KELLER MANUFACTURING COMPANY,
an Indiana corporation ("Keller") with its principal offices located at ▇.▇. ▇▇▇
▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ in the following circumstances:
WITNESSETH
WHEREAS, TOUR is the organization of certain professional tournament
golfers that, among other things, sanctions, cosponsors and promotes certain
professional golf tournaments ("PGA TOUR Events"); and
WHEREAS, TOUR is the proprietor of the PGA TOUR trademarks and logos set
forth on Attachment I hereto (the "Marks") and has the right to authorize the
use of the Marks as more fully provided herein; and
WHEREAS, ▇▇▇▇▇▇ is a nationally recognized manufacturer of fine furniture;
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained the parties do hereby agree as follows:
1.0 TERM. The term of this Agreement shall commence as of the date of this
Agreement and shall terminate on February 28, 1998 ("Term").
2.0 GRANT OF OFFICIAL DESIGNATION LICENSE. TOUR hereby grants to ▇▇▇▇▇▇,
subject to the provisions and conditions hereof to designate itself as the
"Official Sponsor of the PGA TOUR Storm Alert Program" (the "Designation"). This
license shall include the right to use the Marks on premium items (i.e., items
used for promotional purposes and not for sale) which also incorporate the
▇▇▇▇▇▇ trademark and/or logo; provided, however, that ▇▇▇▇▇▇ will purchase such
premium products from TOUR's licensee for such products or, if TOUR has no
licensee for such product, ▇▇▇▇▇▇ Will coordinate the purchase of such items
through TOUR's licensing agent. ▇▇▇▇▇▇ understands and agrees that the license
rights granted herein shall not affect TOUR's rights to license the use of the
Marks. In consideration of the license rights granted above, ▇▇▇▇▇▇ shall pay to
TOUR royalties in the amount of $150,000 per year. All annual amounts will be
due and payable monthly beginning April 1, 1996.
3.0 ON-SITE EXPOSURE. Whenever possible, Tour, in its sole discretion, will
arrange for on-site exposure of the Designation at PGA TOUR, SENIOR PGA TOUR and
NIKE TOUR Events where the Storm Alert Program is in operation.
4.0 USE OF MARKS: QUALITY CONTROL.
4.1 Prior Approval. All uses of the Marks made by ▇▇▇▇▇▇ pursuant
hereto shall be subject to TOUR's prior approval. ▇▇▇▇▇▇ shall submit
materials pertaining to all proposed uses of the Marks to TOUR for its
review. TOUR shall have ten (10) days from the date of receipt of such
materials to either approve or disapprove of the proposed use. Should TOUR
fail to notify ▇▇▇▇▇▇ of TOUR's approval or disapproval of any proposed use
of the Marks, such proposed use shall be deemed approved.
4.2 Guidelines. ▇▇▇▇▇▇ agrees to follow the instructions set forth in
Attachment II hereto with regard to proper usage of the Marks, including
the display of trademark and service ▇▇▇▇ registration symbols and notices.
5.0 TITLE TO MARKS: BENEFIT OF USE.
▇▇▇▇▇▇ acknowledges that TOUR is the proprietor of the Marks and that all
rights arising from ▇▇▇▇▇▇'▇ use of the Marks under this Agreement shall inure
to the benefit of TOUR. ▇▇▇▇▇▇ further acknowledges that it is not acquiring any
interest or rights in the marks apart from the rights set forth in this
Agreement. ▇▇▇▇▇▇ will not contest or deny the validity of the Marks or the
proprietary interest of TOUR therein. Upon termination of this Agreement for any
reason, ▇▇▇▇▇▇ shall immediately discontinue entirely all uses of the Marks, and
all rights granted in and to the Marks shall revert to TOUR. ▇▇▇▇▇▇ agrees that
it will not knowingly use any other word, trademark, service ▇▇▇▇, brand name,
trade name, symbol, design or the like that infringes TOUR's trademark rights.
▇▇▇▇▇▇ will not intentionally take any action that might harm or prejudice the
Marks or TOUR's rights therein in any way.
6.0 REPRESENTATIONS AND WARRANTIES.
6.1 TOUR represents and warrants that it has the exclusive right to
license for commercial purposes the use of the Marks in the United States
during the Term.
6.2 TOUR warrants that it has the exclusive power and authority to
convey the rights granted herein to Keller.
6.3 TOUR represents that United States trademark registrations for the
Marks, during the Term, will remain current, valid and subsisting, that
TOUR has the right to license the use of the Marks, that no third party has
any prior or superior rights in the Marks in the United States and that use
of the Marks in the United States by ▇▇▇▇▇▇ shall not violate the rights of
any third party.
7.0 PROTECTION OF THE MARKS.
▇▇▇▇▇▇ will promptly notify TOUR of any infringement or imitation of the
Marks, or of any use by third persons of a trademark, service ▇▇▇▇, trade name,
symbol, design or the like similar to the Marks or of any acts of unfair
competition involving the Marks of which it becomes aware. TOUR may take such
action as it deems advisable for the protection of its rights in and to the
Marks and ▇▇▇▇▇▇ shall, if requested by TOUR, cooperate in all respects, therein
at TOUR's expense. In no event, however, shall TOUR be required to take any
action if it deems it inadvisable to do so, and ▇▇▇▇▇▇ shall have no right to
take any action with respect to the Marks without the prior written approval of
TOUR.
8.0 INDEMNIFICATION.
8.1 By ▇▇▇▇▇▇. ▇▇▇▇▇▇ covenants and agrees to indemnify and hold TOUR,
its affiliated entities and each of their respective officers, directors,
employees and agents (collectively, the "Tour Indemnitees") harmless from
and against any and all losses, claims, damages, expenses, judgments,
awards, petitions, demands or liabilities (including reasonable attorneys'
fees, whether incurred in preparation for trial, at trial, on appeal or in
bankruptcy proceedings), joint or several to which the TOUR Indemnitees may
become subject on account of any default by ▇▇▇▇▇▇ in the performance of
▇▇▇▇▇▇'▇ obligations hereunder and/or on account of the sale,
advertisement, promotion or use of the Licensed Product or premiums
permitted pursuant to Section 2 hereof. TOUR will notify ▇▇▇▇▇▇ promptly
upon receipt of notice of any such claim. Upon such notice to ▇▇▇▇▇▇,
▇▇▇▇▇▇ shall assume responsibility for the defense of the interests of the
TOUR Indemnitees.
8.2 By TOUR. TOUR covenants and agrees to indemnify and hold ▇▇▇▇▇▇,
its affiliated entities and each of their respective officers, directors,
employees and agents (collectively, the "▇▇▇▇▇▇ Indemnitees") harmless from
and against any and all losses, claims, damages, expenses judgments,
awards, petitions, demands or liabilities (including reasonable attorneys'
fees, whether incurred in preparation for trial, at trial, on appeal or in
bankruptcy proceedings), joint or several, to which the ▇▇▇▇▇▇ Indemnitees
may become subject on account of the use of the Marks in accordance with
the terms hereof and/or on account of any default by TOUR in the
performance of its obligations hereunder or for any breach of the
representations and warranties contained herein. ▇▇▇▇▇▇ will notify TOUR
promptly upon receipt of notice of any such claim. Upon such notice to
TOUR, TOUR shall assume responsibility for the defense of the interest of
the ▇▇▇▇▇▇ Indemnitees.
8.3 Survival. The obligations of the parties set forth in subsections
8.1 and 8.2 hereof shall survive any termination of this Agreement.
9.0 ASSIGNMENT.
This Agreement and any rights herein granted are personal to the parties
hereto and shall not be assigned, sublicensed, encumbered or otherwise
transferred by either party without the prior written consent of the other
party, and any attempt at violative assignment, sublicense, encumbrance or other
transfer, whether voluntary or by operation of law, shall be void and of no
force or effect.
10.0 EARLY TERMINATION.
10.1 Default. In the event either party defaults in its obligations
provided herein, the other party shall give the defaulting party written
notice of such default. If the defaulting party does not cure such default
within thirty (30) days after receipt of such notice, this Agreement shall
be immediately terminable by the non-defaulting party. TOUR and ▇▇▇▇▇▇
acknowledge and agree that, in the event of a termination, for any reason,
of the Services Agreement, then this License Agreement shall be terminable
by the non-defaulting party upon the giving of written notice of such
termination.
10.2 Insolvency. Either party may terminate this Agreement effective
upon written notice to the other in the event of the other's insolvency,
adjudication of bankruptcy or the filing of a petition for voluntary or
involuntary bankruptcy of the other, or the other's making of an
arrangement with or an assignment for the benefit of creditors or the
appointment of a receiver or trustee for the assets of the other.
10.3 Effect of Termination. Subject to the provision of Section 10.1,
termination of this Agreement pursuant to this Section 10.0 shall not
prohibit a party from seeking payment of amounts owed to it hereunder and
all other damages to which it may be entitled.
11.0 MISCELLANEOUS.
11.1 No Waiver. Failure of either party to complain of any act or
omission on the part of the other party shall not be deemed to be a waiver
by either party of its rights under this Agreement
11.2 Notices. Notice by either party hereunder shall be deemed given
when mailed, postage prepaid, certified or registered, return receipt
requested, sent by guaranteed twenty-four hour delivery service or
facsimile transmission, addressed to the other party at the address
appearing below:
TOUR: PGA TOUR, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President - Marketing
▇▇▇▇▇▇: ▇▇▇▇▇▇ Manufacturing Company
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Either party may, by written notice to the other, change the address to which
any such communications shall be sent, and after notice of such change has been
received, any communications shall be sent directly to such party at such
changed address.
11.3 No Agency. This Agreement shall not constitute or be considered a
partnership, employer-employee relationship, joint venture or agency
between the parties hereto. Neither party hereto nor any of its employees
or agents shall have the power or authority to bind or obligate the other
party.
11.4 Binding Effect. Subject to the provisions of this Agreement
governing assignment, this Agreement shall be binding upon and shall inure
to the benefit of the successors of the parties hereto.
11.5 Severability. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance
shall, to any extent be invalid or unenforceable, the remainder of this
Agreement or application of such term or provision to any person or
circumstance, other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant,
condition or provision of this Agreement shall be valid and shall be
enforced to the fullest extent provided by law.
11.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
cannot be amended, added to or modified in any way except by a subsequent
writing signed by both parties.
11.7 Attachments. All attachments hereto are incorporated within and
made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PGA TOUR, INC. ▇▇▇▇▇▇ MANUFACTURING
COMPANY
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: EVP & CFO Title: V.P. of Sales & Marketing
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement") made this 25th day of
March, 1996 between PGA TOUR, INC., a Maryland corporation ("TOUR") and ▇▇▇▇▇▇
MANUFACTURING COMPANY, an Indiana corporation ("Licensee").
BACKGROUND:
A. TOUR is the internationally recognized organization of certain
professional tournament golfers that, among other things, sanctions, cosponsors
and promotes certain professional golf tournaments.
B. TOUR owns the exclusive rights to use the valuable registered trademarks
and service marks described in Exhibit A (collectively, the "Marks"), such Marks
being well known and recognized by the general public and associated in the
public mind with TOUR.
C. Licensee is a nationally known manufacturer of fine furniture products.
D. Licensee intends to develop a new line of furniture designed and
marketed around the PGA TOUR.
E. Licensee desires to use the Marks in connection with the Licensed
Products.
F. TOUR and Licensee have entered into that certain Designation and
of even date herewith (the "D&S Agreement").
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
1. GRANT OF LICENSE.
(a) Articles. Subject to the terms and conditions set forth in this
Agreement, TOUR hereby grants to Licensee, and Licensee hereby accepts from
TOUR, a non-exclusive, limited license to use the Marks solely upon and in
connection with the manufacture, sale and distribution of the articles described
in Exhibit B (collectively, the "Articles") solely in the "Territory" (as
defined below).
(b) Territory. The license granted in Section 1(a) above (the "License")
extends only in the United States (the "Territory"). Licensee agrees that it
will not: (i) make or authorize any direct or indirect use of the Marks outside
the Territory; or (ii) knowingly sell the Articles to persons who intend or are
likely to resell such Articles outside the Territory.
(c) Goodwill. Licensee recognizes the great value of the goodwill
associated with each of the Marks, and acknowledges that the TOUR owns the
exclusive right to use the Marks and all rights therein and goodwill pertaining
thereto. Licensee agrees that its use of the Marks shall inure solely to the
benefit of TOUR and that Licensee shall not at any time acquire any rights in
any of the Marks by virtue of its use thereof pursuant to this Agreement or
otherwise. Notwithstanding the foregoing, Licensee hereby transfers to TOUR any
rights, equities, goodwill, or other rights in and to the Marks which it may
obtain or which may vest in Licensee as the result of any of the activities
authorized by this Agreement or any other activities of Licensee, and agrees to
execute any instruments requested by TOUR to accomplish or confirm the foregoing
transfer.
(d) Further Documentation and Actions.
(1) Licensee agrees to execute and deliver to TOUR any further
documents and instruments, and do any and all further acts, deemed
necessary by TOUR to give full force and effect to the License, this
Agreement and the intentions of the parties with respect thereto.
(2) Licensee covenants that it will not, during the term of this
Agreement or after its termination, adopt or use any trademark, trade name,
service ▇▇▇▇ or logo which, in TOUR's opinion, is similar to or likely to
conflict or cause confusion with any of the Marks.
(3) Licensee and TOUR each agree to comply with all applicable laws
and regulations and to take all actions necessary to ensure such
compliance, maintain the validity of the License and effect the intentions
of the parties.
2. ROYALTY.
(a) Rate. Licensee agrees to pay to TOUR a royalty a sum equal to five
percent (5%) of all gross sales by Licensee or any of its affiliated, associated
or subsidiary companies, or any of their agents, of any or all of the Articles
(collectively, the "Royalties").
(b) Periodic Statements. During the term of this Agreement, promptly on the
fifteenth (15th) day of each calendar month, Licensee shall furnish to TOUR a
complete and accurate statement (the "Statement") certified to be accurate by
Licensee and in a form acceptable to TOUR showing the number, description and
gross sales price, of each Article distributed and/or sold by Licensee during
the preceding calendar mouth, together with any returns made during the
preceding calendar month. Each Statement shall be furnished to TOUR whether or
not any Articles have been sold during the preceding calendar month.
(c) Royalty Payments. Royalties shall be due on the fifteenth (15th) day of
the month following the calendar month in which earned, and payment shall
accompany each Statement. The receipt or acceptance by TOUR of any Statement or
of any Royalties paid hereunder shall not preclude TOUR from questioning the
accuracy thereof at any time, and in the event that any inconsistencies or
mistakes are discovered in any such Statement or payments, they shall
immediately be rectified and the appropriate payment made by Licensee. Payment
of all Royalties shall be made in readily available U.S. currency. All taxes
shall be payable by Licensee.
3. TERM. The term of this Agreement (the "Initial Term") shall be effective on
the date of this Agreement and shall be coterminous with the Designation and
.
4. TOUR'S TITLE AND PROTECTION OF THE MARKS.
(a) Licensee acknowledges that TOUR is the owner of the exclusive rights to
use the Marks. licensee agrees that it will not during the term of this
Agreement, or thereafter, attack the title or any rights of TOUR in and to the
Marks or attack the validity of the License. Licensee further agrees that it
shall not ▇▇▇▇▇▇, aid or encourage, either directly or indirectly, any conduct
by any third party to (i) infringe the Marks; (ii) make any use of the Marks not
authorized in this Agreement; or (iii) attack the validity of the Marks.
(b) If during the term of this Agreement Licensee becomes aware that one or
more third parties are infringing the Marks, Licensee shall immediately notify
TOUR of such infringement. Such notice shall include all details in Licensee's
possession concerning the nature of the infringement, the date and location of
each infringement of which Licensee is aware and any other such pertinent
information Licensee may possess. Within thirty (30) days of the date of such
notification, TOUR shall determine whether it desires to commence an action in
its own name or in Licensee's name with respect to such infringements. If TOUR
elects to commence such action, Licensee shall give TOUR such assistance in
prosecuting such action as TOUR may reasonably request. Licensee may not under
any circumstances commence an action against such third party, without TOUR's
prior written consent.
5. INDEMNIFICATION BY LICENSEE AND PRODUCT LIABILITY INSURANCE. Licensee hereby
indemnifies TOUR and undertakes to defend and hold TOUR harmless from any and
all claims, suits, loss or damage arising out of any allegedly unauthorized use
of any trademark, copyright, patent process, idea, method or device by Licensee
in connection with any of the Articles or any other alleged action by Licensee
and also from any claims, suits, loss or damage arising out of alleged defects
in any of the Articles. Licensee agrees that it will obtain, at its own expense,
product liability insurance from a recognized insurance company acceptable to
TOUR, providing adequate protection (at least in the amount of $ 1,000,000) for
TOUR (as well for Licensee) against any claims, suits, loss or damage arising
out of any alleged defects in the Articles. Evidence of such insurance coverage
satisfactory to TOUR shall be provided to TOUR upon the execution of this
Agreement. As used in the first two sentences of this Section 6, "TOUR" shall
also include the officers, directors, agents, and employees of the TOUR, or any
of its subsidiaries or affiliates.
6. QUALITY CONTROL. Licensee agrees that all of the Articles shall: (i) be of a
high quality and of such style, appearance and quality as to be adequate and
suited to their exploitation to the best advantage and to the protection and
enhancement of the Marks and the goodwill pertaining thereto; (ii) be
manufactured, sold and distributed in accordance with all applicable Federal,
state and local laws of the United States and all laws of each country in the
Territory; (iii) shall not reflect adversely upon the good name of TOUR or any
of the Marks. To this end, TOUR shall have the right to approve all Articles
prior to their sale and Licensee shall, before selling or distributing any of
the Articles, furnish to TOUR free of cost, for its written approval, a
reasonable number of samples of each Article and the cartons, containers and
packing and wrapping material to be used with each such Article. The quality and
style of such samples, as well as of any carton, container or packing or
wrapping material shall be subject to the approval of TOUR. Any item submitted
to TOUR shall not be deemed approved unless and until the same shall be approved
by TOUR in writing. After samples have been approved pursuant to this Section 7,
Licensee shall not depart therefrom in any material respect without TOUR's prior
written consent, and TOUR shall not withdraw its approval of the approved
samples except on sixty (60) days' prior written notice to Licensee. From time
to time after Licensee has commenced selling the Articles and upon TOUR's
written request, Licensee shall furnish without cost to TOUR additional random
samples of each Article being manufactured and sold by Licensee hereunder,
together with any cartons, containers and packing and wrapping material used in
connection therewith.
7. LABELING. Licensee agrees that it will cause to appear on or within each
Article sold by it under this Agreement and on or within all advertising,
promotional or display material bearing any of the Marks, the appropriate
statutory notice of registration or application for registration thereof, as
determined by TOUR in its sole discretion, and any other notice desired by TOUR.
In the event that any Article is marketed in a carton container and/or packing
or wrapping material bearing the Marks, such notice shall also appear upon each
such item. Each and every tag, label, imprint or other device containing any
such notice and all advertising, promotional or display material bearing the
Marks shall be submitted to TOUR for its written approval prior to use by
Licensee. Approval by TOUR shall not constitute waiver of TOUR's rights or
Licensee's duties under any provision of this Agreement.
8. DISTRIBUTION.
(a) licensee agrees that during the term of this License it will diligently
and continuously manufacture, distribute and sell the Articles and that it will
make and maintain adequate arrangement for the distribution and sale of the
Articles.
(b) Licensee shall not, without prior written consent of TOUR, sell or
distribute any of the Articles to jobbers, wholesalers, distributors, retail
stores or merchants whose sales or distribution are or will be made for
publicity or promotional tie-in purposes, combination sales, premiums,
giveaways, or similar methods of merchandising, or whose business methods are
questionable.
9. RECORDS. Licensee agrees to keep accurate books of account and records
covering all transactions relating to this Agreement, and TOUR and its duly
authorized representatives shall have the right at all reasonable hours of the
day to an examination of such books of account and records and of all other
documents and materials in the possession or under the control of Licensee with
respect to the subject matter and terms of this Agreement, and shall have free
and full access thereto for such purposes and for the purpose of making copies
thereof. Upon demand of TOUR, Licensee shall, at its own expense, furnish to
TOUR a detailed statement by an independent certified public accountant showing
the number, description, gross sales price of the Articles distributed and/or
sold by Licensee to the date of TOUR's demand. All books of account and records
shall be kept available for at least two (2) years after the termination of this
Agreement.
10. REMEDIES FOR BREACH.
(a) If Licensee shall not have commenced in good faith to distribute and
sell the Articles in substantial quantities within three (3) months after the
date of this Agreement or if at any time thereafter in any calendar month
Licensee fails to sell any of the Articles (or any class or category of the
Articles), TOUR in addition to all other remedies available to it hereunder may
terminate this Agreement with respect to any such Articles (or class or category
thereof) which have not been distributed and sold during such mouth, by giving
written notice of termination to Licensee. Such notice shall be effective when
mailed by TOUR. Licensee further acknowledges that such failure shall result in
immediate and irreparable damages to TOUR.
(b) if licensee files a petition in bankruptcy or is adjudicated a bankrupt
or if a petition in bankruptcy is filed against Licensee or if it becomes
insolvent, or makes an assignment for the benefit of its creditors or an
arrangement pursuant to any bankruptcy law, or if Licensee discontinues its
business or if a receiver is appointed for it or its business, this Agreement
shall automatically terminate without any notice. In the event this Agreement is
so terminated, Licensee, its receivers, representatives, trustees, agents,
administrator, successors and/or assigns shall have no right to use any of the
Marks or sell, exploit or in any way deal with or in any of the Articles or any
carton, container, packing or wrapping material, advertising, promotional or
display material pertaining thereto, except with and under the special consent
and instructions of TOUR in writing, which they shall be, obligated to follow.
(c) If Licensee shall breach any of its other obligations under the terms
of this Agreement or the D&S Agreement, TOUR shall have the right to terminate
this Agreement upon ten (10) days' notice in writing, and such notice of
termination shall become effective unless Licensee shall completely remedy the
breach within the ten (10)-day period and satisfy TOUR that such breach has been
remedied.
(d) Termination of this Agreement pursuant to this Section 10 shall be
without prejudice to any rights which TOUR may otherwise have against Licensee.
Upon the termination of this Agreement, notwithstanding anything to the contrary
herein, all Royalties on sales made prior to such termination shall become
immediately due and payable.
11. FINAL STATEMENT UPON TERMINATION OR EXPIRATION. Sixty (60) days before the
expiration or termination of this Agreement, and, in the event of its
termination, ten (10) days after receipt of notice of termination or the
happening of the event which terminates this Agreement where no notice is
required, a statement showing the number and description of Articles covered by
this Agreement on hand or in process shall be furnished by Licensee to TOUR.
TOUR shall have the right to take a physical inventory to ascertain or verify
such inventory and statement, and refusal by Licensee to submit to such physical
inventory by TOUR shall forfeit Licensee's right to dispose of such inventory.
12. DISPOSAL OF INVENTORY UPON TERMINATION OR EXPIRATION. After termination or
expiration of this Agreement, Licensee, except as otherwise provided in this
Agreement, may dispose of Articles which are on hand or in process at the time
notice of termination is received for a period of sixty (60) days after notice
of termination, provided Royalties with respect to that period are paid and
Statements are furnished for that period in accordance with Section 2.
Notwithstanding anything to the contrary herein, Licensee shall not manufacture,
sell or dispose of any Articles after the expiration or termination of this
Agreement based on the failure of Licensee to affix notice of copyright,
trademark or service ▇▇▇▇ registration or rights or any other notice to the
Articles, cartons, containers, or packing or wrapping material or advertising,
promotional or display material, or because of the departure by Licensee from
the quality and style approved by TOUR pursuant to Section 7.
13. EFFECT OF TERMINATION OR EXPIRATION.
(a) Upon and after the expiration or termination of this Agreement, the
License shall be terminated and all other rights granted to Licensee hereunder
shall be terminated and shall revert to TOUR, who shall be free to license
others to use the Marks in connection with the manufacture, sale and
distribution of any of the Articles in the Territory. Licensee will refrain from
further use of any of the Marks or any direct or indirect further reference to
any of them, or anything deemed by TOUR to be similar to any of the Marks in
connection with the manufacture, sale or distribution of Licensee's products,
except as is necessary to dispose of remaining inventory in accordance with
Section 13 of this Agreement.
(b) Licensee acknowledges that its failure (except as otherwise provided
herein) to cease the manufacture, sale or distribution of any of the Articles at
the termination or expiration of this Agreement will result in immediate and
irreparable damage to TOUR and to the rights of any subsequent licensee.
Licensee acknowledges and admits that there is no adequate remedy at law for
such failure and agrees that in the event of such failure TOUR shall be entitled
to equitable relief by way of temporary and permanent injunctions and such other
further relief as any court with jurisdiction may deem just and proper.
14. NOTICES. All notices and statements to be given, and all payments to be made
hereunder, shall be given or made at the respective addresses of the parties as
set forth below, unless notification of a change of address is given in writing,
and the date of mailing shall be deemed the date the notice or statement is
sent:
If to TOUR:
PGA TOUR, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Marketing
If to Licensee:
▇▇▇▇▇▇ Manufacturing Company
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
15. NO JOINT VENTURE. Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and Licensee shall
have no power to obligate or bind TOUR in any manner whatsoever.
16. GENERAL. Licensee and TOUR each warrant that they have full authority to
enter into this Agreement and to consummate the transactions contemplated
herein, and that such action is not in violation of any agreement to which they
are a party. This Agreement is not transferable or assignable by Licensee, in
whole or in part, without TOUR's prior written consent and any attempted
transfer or assignment without TOUR's prior written consent shall be null and
void. This Agreement is governed by Florida law and constitutes the entire
agreement of the parties with respect to its subject matter and supersedes all
agreements, quotations or negotiations between the parties, whether oral or
written. Licensee shall reimburse TOUR for all attorneys' fees and collection
and court costs incurred as a result of any breach of or default by Licensee in
the performance of any of its obligations under this Agreement. Each provision
of this Agreement is severable and the invalidity of any part or paragraph shall
not affect the enforceability of the remainder. No waiver or amendment to this
Agreement shall be binding unless in writing and signed by both parties hereto.
All Exhibits to this Agreement are incorporated into and form on integral part
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed as of the day and year first above written.
LICENSEE:
▇▇▇▇▇▇ MANUFACTURING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: V.P. of Sales and Marketing
PGA TOUR, INC.
By: ___________________________________
Title: EVP & CFO
EXHIBIT A
MARKS
GRAPHIC I [Insignia of the PGA Tour.
Rectangular box with the term "Tour" written vertically along the left side and
the term "PGA" written horizontally along the top. A silhouette image of a male
golfer at the top of his swing is beside the vertically written "Tour"]
GRAPHIC II
[Same as GRAPHIC I Except approximately half its size]
GRAPHIC III [Same as GRAPHIC II Except approximately half its size]
SERVICES AGREEMENT
This Agreement is made as of the 25th day of March, 1996 by and between
PGA TOUR, INC., a Maryland corporation with its principal offices located at ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TOUR") and KELLER MANUFACTURING
COMPANY, an Indiana corporation with its principal offices located at ▇.▇. ▇▇▇
▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇") in the following circumstances:
WITNESSETH
WHEREAS, TOUR is the organization of certain professional tournament
golfers that, among other things, sanctions, cosponsors and promotes certain
professional golf tournaments ("PGA TOUR Events"); and
WHEREAS, ▇▇▇▇▇▇ is a nationally recognized manufacturer of fine furniture;
and
WHEREAS, TOUR and ▇▇▇▇▇▇ desire to form a sponsorship relationship for
their mutual benefit;
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained the parties do hereby agree as follows:
1.0 TERM. The term of this Agreement shall commence as of the date of this
Agreement and shall terminate on February 28, 1998 ("Term").
2.0 RIGHTS OF AND OBLIGATIONS TO ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have the following
rights and obligations during the Term of this Agreement:
2.1 Television Exposure. Each year during the term of this Agreement,
TOUR's television production unit PGA TOUR PRODUCTIONS ("PRODUCTIONS"),
will provide periodic mentions of ▇▇▇▇▇▇ and its sponsorship of the Storm
Alert Program on at least one of its three shows INSIDE THE PGA TOUR,
INSIDE THE SENIOR PGA TOUR and THIS IS THE PGA TOUR. Additionally, each
year during the term of this Agreement, PRODUCTIONS will produce one
feature on the Storm Alert Program which will feature ▇▇▇▇▇▇'▇ sponsorship
to air on one of the above-mentioned shows.
2.2 Print Exposure. During the term of this Agreement, ▇▇▇▇▇▇ will be
featured in any editorial features which feature the Storm Alert Program in
any of the following print vehicles: ON TOUR magazine, TOUR's monthly
magazine, Business of the PGA TOUR, SENIOR TOUR JOURNAL, special
supplements appearing in Business Week Magazine, TOUR, a special supplement
appearing in Golf Magazine, TOUR News, TOUR's weekly newsletter, and all
TOUR media Guides.
2.3 Consumer Promotions. At ▇▇▇▇▇▇'▇ request, TOUR will work with
▇▇▇▇▇▇ to develop appropriate and impactful consumer promotions designed to
reach ▇▇▇▇▇▇'▇ target consumer.
2.4 Hospitality Packages. Each year during the term of this Agreement,
▇▇▇▇▇▇ agrees to purchase hospitality packages at PGA TOUR and SENIOR PGA
TOUR Events, of at least $35,000. This amount will be due and payable each
February 28 during the term of this Agreement; provided that the first such
annual payment shall be due and payable on April 1, 1996. TOUR and ▇▇▇▇▇▇
will work together to develop a comprehensive plan for ▇▇▇▇▇▇ hospitality
purchase. All hospitality purchases will be coordinated through TOUR.
3.0 ADDITIONAL BENEFITS TO ▇▇▇▇▇▇. TOUR shall provide the following to
▇▇▇▇▇▇ during the Term of this Agreement:
3.1 Pro-Am Spots: Tournament Tickets. During the term of this
Agreement, TOUR provides ▇▇▇▇▇▇ 12 pro am spots each year as follows: four
(4) spots at PGA TOUR events, four (4) spots at SENIOR PGA TOUR events, and
four (4) spots at NIKE TOUR events. In addition, TOUR will provide ▇▇▇▇▇▇
with a maximum of Fifty (50) tournament tickets to PGA TOUR, SENIOR PGA
TOUR and NIKE TOUR events. ▇▇▇▇▇▇ understands and agrees that no more ten
(10) tournament tickets will be provided for any one event and no more than
thirty (30) of the total number of tickets will be for PGA TOUR events.
3.2 Club Memberships. During the term of this Agreement, TOUR shall
provide ▇▇▇▇▇▇ with a corporate membership at the Tournament Players Club
of ___________ with one (1) individual designee. ▇▇▇▇▇▇ will not be
required to pay any initiation fees or dues for such membership. All other
terms and conditions of ▇▇▇▇▇▇ memberships shall be the same as those which
are applicable to other corporate members at the club. Such membership will
expire immediately upon expiration or termination of this Agreement.
3.3 Money Clips. ▇▇▇▇▇▇ will receive two (2) PGA TOUR corporate
sponsor money clips for use during the Term. The privilege of using such
corporate sponsor money clips for access to TOUR-sponsored or co-sponsored
events shall terminate upon the expiration or termination of this
Agreement.
4.0 CONSIDERATION TO TOUR.
4.1 Financial Consideration. In consideration of the rights granted
▇▇▇▇▇▇ in this Agreement, each year during the term of this Agreement
▇▇▇▇▇▇ shall pay to TOUR, $60,000. All annual amounts will be due and
payable monthly beginning April 1, 1996.
4.2 Preferential Pricing. ▇▇▇▇▇▇ will provide to all TOUR players and
staff preferential pricing and ordering for ▇▇▇▇▇▇'▇ entire furniture line.
TOUR will work with ▇▇▇▇▇▇ to properly present its fine to TOUR players.
5.0 INDEMNIFICATION.
5.1 By ▇▇▇▇▇▇. ▇▇▇▇▇▇ covenants and agrees to indemnify and hold TOUR,
its affiliated entities and each of their respective officers, directors,
employees and agents (collectively, the 'TOUR Indemnities") harmless from
and against any and all losses, claims, damages, expenses, judgments,
awards, petitions, demands or liabilities (including reasonable attorneys,
fees, whether incurred in preparation for trial, at trial, on appeal or in
bankruptcy proceedings), joint or several, to which the TOUR Indemnities
may become subject on account of any default by ▇▇▇▇▇▇ in the performance
of ▇▇▇▇▇▇'▇ obligations hereunder. TOUR will notify ▇▇▇▇▇▇ Promptly upon
receipt of notice of any such claim. Upon such notice to ▇▇▇▇▇▇, ▇▇▇▇▇▇
shall assume responsibility for the defense of the interests of the TOUR
Indemnities.
5.2 By TOUR. TOUR covenants and agrees to indemnify and bold ▇▇▇▇▇▇,
its affiliated entities and each of their respective officers, directors,
employees and agents (collectively, the "▇▇▇▇▇▇ Indemnities") harmless from
and against any and all losses, claims, damages, expenses, judgments,
awards, petitions, demands or liabilities (including reasonable attorneys'
fees, whether incurred in preparation for trial, at trial, on appeal or in
bankruptcy proceedings), joint or several, to which the ▇▇▇▇▇▇ Indemnities
may become subject on account of any default by TOUR in the performance of
its obligations hereunder or any injury to person or property which may
result from the maintenance or operation of the Scoreboards. ▇▇▇▇▇▇ will
notify TOUR promptly upon receipt of notice of any such claim. Upon such
notice to TOUR, TOUR shall assume responsibility for the defense of the
interest of the ▇▇▇▇▇▇ Indemnities.
5.3 Survival. The obligations of the parties set forth in subsections
5.1 and 5.2 hereof shall survive any termination of this Agreement.
Agreement.
6.0 ASSIGNMENT.
This Agreement and any rights herein granted are personal to the parties
hereto and shall not be assigned, sublicensed, encumbered or otherwise
transferred by either party without the prior written consent of the other
party, and any attempt at violative assignment sublicense, encumbrance or other
transfer, whether voluntary or by operation of law, shall be void and of no
force or effect.
7.0 EARLY TERMINATION.
7.1 Default. In the event either party defaults in its obligations
provided herein, the other party shall give the defaulting party written
notice of such default. If the defaulting party does not cure such default
within thirty (30) days after receipt of such notice, this Agreement shall
be immediately terminable by the non-defaulting party. TOUR and ▇▇▇▇▇▇
acknowledge and agree that, in the event of a termination, for any reason,
of the License Agreement, then this Agreement shall be deemed in default
and terminable by the non-defaulting party upon the giving Of written
notice of such termination.
7.2 Insolvency. Either party may terminate this Agreement effective
upon written notice to the other in the event of the other's insolvency,
adjudication of bankruptcy or the filing of a Petition for voluntary Or
involuntary bankruptcy of the other, or the other's making of an
arrangement with or an assignment for the benefit of creditors or the
appointment of a receiver or trustee for the assets of the other.
7.3 Effect of Termination. Subject to the provisions of Section 6.1,
termination of this Agreement pursuant to this Section 6.0 shall not
prohibit a party from seeking payment of amounts owed to it hereunder and
all other damages to which it may be entitled.
8.0 MISCELLANEOUS.
8.1 No Waiver. Failure of either party to complain of any act or
omission on the part of the other party shall not be deemed to be a waiver
by either party of its rights under this Agreement.
8.2 Notices. Notice by either party hereunder shall be deemed given
when mailed, postage prepaid. certified or registered, return receipt
requested, sent by guaranteed twenty-four hour delivery service or
facsimile transmission, addressed to the other party at the address
appearing below:
TOUR: PGA TOUR, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President - Marketing
▇▇▇▇▇▇: ▇▇▇▇▇▇ Manufacturing Company
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Either party may, by written notice to the other, change the address to which
any such communications shall be sent, and after notice of such change has been
received, any communications shall be sent directly to such party at such
changed address.
8.3 No Agency. This Agreement shall not constitute or be considered a
partnership, employer-employee relationship, joint venture or agency
between the parties hereto. Neither party hereto nor any of its employees
or agents shall have the power or authority to bind or obligate the other
party.
8.4 Binding Effect. Subject to the provisions of this Agreement
governing assignment, this Agreement shall be binding upon and shall inure
to the benefit of the successors of the, parties hereto.
8.5 Severability. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement or application of such term or provision to any person or
circumstance, other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant,
condition or provision of this Agreement shall be valid and shall be
enforced to the fullest extent provided by law.
8.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
cannot be amended, added to or modified in any way except by a subsequent
writing signed by both parties.
8.7 Attachments. All attachments hereto are incorporated within and
made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PGA TOUR, INC. ▇▇▇▇▇▇ MANUFACTURING COMPANY
By: ______________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP & CFO Title: V.P. of Sales & Marketing
