Exhibit 10.10(a)
WORLDWIDE RIGHTS ACQUISITION AGREEMENT
AGREEMENT dated as of September 30, 1997, by and among I. C. Xxxxxx &
Company L.P., a limited partnership organized and existing under the laws of
Delaware ("Buyer"); Brookhurst, Inc., a corporation organized and existing under
the laws of California ("Seller"); and Xxxxxxx Xxx (individually, "Xxx", and
collectively, with Brookhurst, the "Selling Parties").
W I T N E S S E T H :
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, all of Seller's right, title and interest in and to all "BOSS"
trademarks and other proprietary interests, if any, related thereto owned by
Seller and used in connection with its business throughout the world together
with the goodwill symbolized by such trademarks, on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of BOSS Assets. Upon the terms and conditions
herein set forth, Seller shall sell, convey, transfer, assign and deliver to
Buyer on the Closing Date (as hereinafter defined), and Buyer shall purchase
from Seller on the Closing Date, the following assets, properties and rights of
Seller throughout the world (excluding Mexico) (the "Trademark Assets"), all of
which, taken together, represent the business of Seller operating under the BOSS
marks:
(a) any and all right, title and interest of the Selling Parties in and to
the trademarks, service marks, trade names, logos, insignias, designs,
copyrights (if any), and other proprietary interests therein, containing the
term "BOSS" or constituting a stylized B, throughout the world (excluding
Mexico), including, without limitation, all registrations and applications for
registration (including, to the fullest extent permitted by law, all "intent to
use" applications) therefor throughout the world (excluding Mexico) (the
"Trademarks"), and the goodwill symbolized by the Trademarks, together with all
causes of action and the proceeds thereof (except as set forth in paragraph
1.1(d)) in favor of the Selling Parties heretofore accrued or hereafter accruing
with respect to the Trademarks;
(b) all rights of the Selling Parties under license agreements, concurrent
use agreements and other agreements listed on Schedule 1.1(b) and all files
relating thereto (the "Assumed Agreements"), including, without limitation, an
assignment of all copyrights, if any, that the Selling Parties jointly or
severally may own as a result of designs and other works created by any licensee
of any portion of the Seller's BOSS business (including any works created by
Buyer and owned by Seller under Buyer's license from Seller); and
(c) all right, title and interest in and to all records and other
information the Selling Parties or either of them have within their possession
or control applicable to the products they or either of them have previously
licensed under the Trademarks and all trademark files relating to the Trademark
Assets, provided, however, that Seller shall not be responsible for (i)
destruction of records caused by an Act of God or other "Force Majeure" event,
or (ii) any immaterial non-intentional destruction of records.
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(d) Notwithstanding the foregoing, the parties acknowledge and agree that
Buyer is not acquiring any rights of Seller under its license agreements
(including, without limitation, rights to institute legal proceedings pursuant
to such license agreements) with Buyer, Boss Sportswear (U.S.A.) Inc. and
Checkmate Group LLC, all of which license agreements have been (or will at
Closing be) terminated. Nothing set forth in this Section 1.1 (d) shall limit
Seller's rights, if any, to seek indemnification and contribution from licensees
of Seller with regard to Excluded Liabilities, as hereinafter defined, which
rights are specifically reserved to Seller.
1.2 Liabilities. Buyer shall assume no liabilities or obligations,
whether now existing or arising in the future, fixed or contingent, known, or
unknown, relating to the use by the Selling Parties (including, without
limitation, use by any of Seller's affiliates, subsidiaries, predecessors or
licensees other than Buyer) of the Trademarks and any other matter relating to
the conduct of any business relating thereto prior to the Closing or with
respect to any permitted activities of Seller, or any of its affiliates,
subsidiaries, predecessors or licensees after the Closing Date ("Excluded
Liabilities").
1.3 Encumbrances. The sale and transfer of the Trademark Assets
shall be free and clear of all pledges, security interests, mortgages and liens
("Encumbrances").
ARTICLE
CONSIDERATION
2.1 Consideration. In consideration of the sale and transfer of the
Trademark Assets to Buyer,
(a) on the Closing Date, Buyer shall pay cash in the amount of U.S.
$5,625,000 by wire transfer to a bank account designated in writing by Seller;
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(b) on the Closing Date, Buyer shall pay cash in the amount of
U.S.$5,625,000 to the escrow agent identified in the Escrow Agreement;
(c) on the Closing Date, Buyer shall deliver an executed Promissory
Note in the form annexed hereto as Exhibit A (the "Note"); and
(d) on the Closing Date, Buyer shall deliver a guaranty by Hugo Boss
AG ("Hugo Boss") of Buyer's obligations under the Note in the form annexed
hereto as Exhibit B (the"Guaranty").
ARTICLE
THE CLOSING
3.1 Time and Place of Closing. The closing of the purchase and sale
of the Trademark Assets hereunder (the "Closing") shall take place at the
offices of Coudert Brothers located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m. local time on a date agreed to by the parties (the
"Closing Date"), which date shall not be later than eight (8) business days
following the date on which the applicable waiting period, including any
extension thereof, under the HSR Act (as hereinafter defined) shall have
expired.
3.2 Deliveries To Be Made by the Seller. On the Closing Date, Seller
shall have executed and delivered to Buyer the following:
(a) executed trademark assignments substantially in the forms
attached hereto as Exhibit C;
(b) possession of (i) an original of each of Seller's Trademark
registrations currently in effect (except that a copy of Seller's California
state registration may be delivered); (ii) an original of any other
registrations for the Trademarks to the extent in Seller's possession,
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custody or control; and (iii) Seller's original trademark application and
registration files including, for example, letters or other materials from
each of Seller's domestic and foreign trademark counsel showing deadlines for
trademark office actions to the extent in Seller's possession, custody or
control;
(c) an agreement of assignment and assumption of Assumed Agreements
in the form annexed hereto as Exhibit D (the "Assumption Agreement");
(d) an Escrow Agreement substantially in the form attached hereto as
Exhibit E (the "Escrow Agreement");
(e) an executed copy of the Note;
(f) an agreement terminating the License Agreement dated August 11,
l994 between Buyer and Seller substantially in the form annexed hereto as
Exhibit F (the "Termination Agreement"); and
(g) such other instruments and documents as may be elsewhere herein
required.
3.3 Deliveries To Be Made by Buyer. On the Closing Date, Buyer shall
have executed and delivered to Seller the following:
(a) the cash payment provided for in Section 2.1(a);
(b) the executed Note;
(c) the Assumption Agreement;
(d) the Escrow Agreement;
(e) delivery of the payment described in Section 2.1(b) to the
Escrow Agent;
(f) the Guaranty duly executed by Hugo Boss; and
(g) the Termination Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES
Each of the Selling Parties hereby jointly and severally makes the
following representations and warranties, each of which is complete and correct
on and as of the date hereof (it being acknowledged and agreed that Xxx'x
liability under this Agreement is limited by the terms of Section 9.13 hereof).
4.1 Organization and Good Standing of the Seller. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California. Boss Golf Company, Inc. has changed or will change within
thirty days after the Closing Date its name to a name not including the word
"BOSS". All qualifications of such company to do business as well as similar
registrations to do business or business name registrations have been or will
within 90 days after the Closing Date hereof be altered, changed or withdrawn to
reflect such name change.
4.2 Authority; Execution. Seller has all the requisite power and
authority, corporate and otherwise, to execute, deliver and perform its
obligations under this Agreement. The execution and delivery of this Agreement,
and each of the other instruments of transfer, conveyance and assignment
delivered hereunder, have been duly and validly authorized by all necessary
corporate and other action on the part of each of the Selling Parties, as
applicable, and this Agreement and each of such other instruments has been duly
executed by each of the Selling Parties, as applicable. This Agreement
constitutes the valid and binding agreement of each of the Selling Parties, as
applicable, enforceable against the Selling Parties in accordance with its
respective terms.
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4.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Agreement by the
Selling Parties and the consummation of the transactions contemplated hereby
will not: (i) violate or conflict with any provision of the charter documents
or by-laws of Seller; (ii) violate or conflict with, result in the breach or
termination of or otherwise give any other contracting party the right to
terminate, or constitute a default (or an event which, with the lapse of time,
or the giving of notice, or both, will constitute a default) under, any contract
or other instrument to which either Selling Party is a party and which relate to
the Trademark Assets or by which either Selling Party is bound, or result in the
creation of any Encumbrance upon any of the Trademark Assets pursuant to the
terms of any such contract or instrument, or (iii) violate or conflict with any
judgment, order, writ, injunction or decree of any court or governmental body of
any jurisdiction applicable to either Selling Party (excluding any judgments,
orders, writs, injunctions or decrees in any actions or proceedings involving
Hugo Boss or its affiliates) or, to the knowledge of Seller, any law or
regulation materially adversely affecting Buyer's ability to exploit the
Trademark Assets.
(b) Except as set forth on Schedule 4.3(b), there are no notices,
licenses, consents, permissions or approvals of any nature whatsoever which are
required to be obtained by Seller from any Federal, state or local governmental
or regulatory body or other third party or, to Seller's knowledge, from any
foreign governmental or regulatory body for the consummation of the transactions
contemplated by this Agreement, or as a condition to the sale, assignment and
transfer of the Trademark Assets to be effected hereunder.
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4.4 No Claims or Litigation. Except as set forth on Schedule 4.4(a), no
litigation, judicial or arbitral action, claim asserted in writing and received
by Seller or the Selling Parties within the preceding two years or, to the
knowledge of Seller, administrative or regulatory proceeding or adversarial
proceeding in any trademark office, or governmental investigation involving the
Trademark Assets or the transactions contemplated by this Agreement, including,
without limitation, any claim of conflict with or violation of any proprietary
or other right (collectively, "Litigation") is pending or, to the knowledge of
Seller, threatened against Seller. For purposes of the foregoing, "Litigation"
shall not be deemed to include any actions, proceedings or claims involving
Hugo Boss or its affiliates. Except as set forth on Schedule 4.4(b), there
is no judgment, order, injunction, decree or award outstanding (whether
rendered by a court, tribunal, administrative agency or arbitral tribunal and
excluding any judgments, orders, injunctions, decrees or awards in any
actions or proceedings involving Hugo Boss AG or its affiliates), against
Seller or referencing Seller by name or, to Seller's knowledge, by which
Seller is bound which affects the Trademark Assets or the use of the
Trademark Assets in any way.
4.5 Trademarks. Schedule 4.5.A hereto sets forth a correct and complete
list of all registrations currently in effect and pending applications for
registration of the Trademarks, together with dates of registration, including,
without limitation, pending copyright applications or registrations currently in
effect and current trade name or d/b/a applications or registrations, if any.
Schedule 4.5B sets forth, to the knowledge of Seller, all registrations and
applications for registration of Trademarks which are no longer in effect. All
registrations described in Schedule 4.5A are currently in effect and have not
been found to be invalid, and, except as set
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forth in Schedule 4.5.C hereto, to Seller's knowledge, as of the date hereof
no filings or other action is required for at least 120 days from the date
hereof to maintain the registrations or applications described in Schedule
4.5.A in full force and effect. Except as set forth in Schedule 4.5.D,
Seller is not currently licensing any person to use or operate under any of
the Trademarks. True and complete copies and, if not available, descriptions
of all such licenses, including all amendments or modifications, have
heretofore been delivered to Buyer. Except as set forth in Schedule 4.5.E,
and except for customary sell-off rights granted to alleged infringers,
Seller has not affirmatively agreed or consented to the non-use by Seller, or
use by any third party, of any xxxx containing the word BOSS. To Seller's
knowledge, and excluding the use of the stylized "B" and the conduct of
Seller's Mexican licensee, none of Seller's, Seller's affiliates, or its
licensees' use of the Trademarks infringes, unfairly competes or otherwise
conflicts with any proprietary or other rights of any other person, excluding
the rights of Hugo Boss, provided, however, that no representation is made in
the preceding clause as to the rights of any persons in countries outside of
the U.S. in which both (a) Seller or its licensees manufacture products
bearing the Trademarks and (b) Seller does not hold a trademark registration
for BOSS. To Seller's knowledge (such knowledge being based solely on
Seller's actual knowledge and inquiry of its licensees other than its
licensee in Mexico), there are no countries in which Seller or its licensees
(other than Buyer) currently manufacture products bearing the Trademarks.
Other than with respect to counterfeiters whose identities are unknown to
Seller, Seller has, or will within 30 days after the Closing Date have,
delivered to Buyer all written materials in its possession relating to any
possible infringement, unfair competition or other interference with Seller's
rights in the Trademarks involving apparel by any third party.
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Seller has paid, or will pay within a reasonable period of time, in full (or
otherwise to the satisfaction of the invoicing party) all outstanding
invoices of domestic and foreign trademark counsel (except counsel in Mexico)
for work done and disbursements incurred on behalf of the Selling Parties
(whether or not billed on or by the date hereof).
4.6 No Alienation of Rights. Except as set forth in the Assumed
Agreements or any other documents identified on Schedule 4.5.D or E or Schedule
4.6, no Selling Party has transferred, assigned, licensed (which license is
currently outstanding) or otherwise encumbered with Encumbrances any of its
rights in any Trademark Asset.
4.7 Checkmate. Seller has terminated the July 14, 1995 License for Men's
and Boy's underwear ("Checkmate Bodywear License") between Seller and Checkmate
Group LLC ("Checkmate"). Seller has also terminated the June 25, 1996 license
for golf apparel and other items relating to golf ("Checkmate Golf License")
between Seller and Checkmate. The termination of the Checkmate Bodywear License
and the Checkmate Golf License complied, in all material respects, with the
requirements for termination of such licenses under the contracts' provisions.
There is no litigation, judicial, or, arbitral action, or, to the knowledge of
Seller, administrative proceeding pending against any Selling Party by or on
behalf of Checkmate; Seller has no knowledge of any claim by or litigation,
judicial, administrative or arbitral action or proceeding threatened against
Seller by or on behalf of Checkmate. Buyer has been provided with all documents
relating or referring to the termination of the Checkmate Bodywear License and
Checkmate Golf License. Seller has heretofore disclosed to Buyer all material
facts that Seller is aware of which relate to any potential claim by Checkmate
arising out of Seller's termination of the Checkmate Bodywear License and the
Checkmate Golf License.
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4.8 Ownership of Trademark Assets. As between the Selling Parties and
all affiliates and other persons or entities related in any manner to any
Selling Party, Seller owns all rights in and to the Trademark Assets.
4.9 Knowledge. Whenever a statement regarding the existence or absence of
facts in this Agreement is qualified by a phrase such as to Seller's knowledge
or words to similar effect, it is intended by the parties that the information
attributed to Seller be actually known, or information which should have been
known based on reasonable inquiry by Xxx, Xxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxxxx
or any officer or executive of Seller.
4.10 Materiality. The phrase "materially adversely affecting Buyer's
ability to exploit the Trademark Assets" or words of similar effect, shall be
deemed to mean (i) the existence or occurrence at any time from and after the
date hereof of any actual harm, or the existence of any reasonably anticipated
actual harm, to Buyer's ability to exploit the Trademark Assets or (ii) either
(x) the failure of Seller to remedy the breach in question assuming the breach
is remediable or (y) the inability of Seller to remedy the breach in question
without prejudice to Buyer's ability to exploit the Trademark Assets. For
purposes of this Section 4.10, no "actual
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harm" shall be deemed to exist as to the first six claims of harm unless such
claim of harm reasonably involves at least the following amounts in damage or
loss:
First Claim $50,000
Second Claim $25,000
Third Claim $25,000
Fourth Claim $25,000
Fifth Claim $25,000
Sixth Claim $25,000
it being agreed that, without prejudice to, or limitation of, Seller's ability
to claim that such a subsequent claim involves no "actual harm", no such
monetary threshold applies to any subsequent claims.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties each of
which is complete and correct on and as of the date hereof:
5.1 Organization and Good Standing of Buyer. Buyer is a limited
partnership duly organized and validly existing under the laws of Delaware
5.2 Authority; Execution. Buyer has all requisite power and authority,
corporate and otherwise, to execute, deliver and perform its obligations under
this Agreement. The execution and delivery of this Agreement, and each of the
other instruments of transfer, conveyance and assignment delivered hereunder, by
Buyer have been duly and validly authorized by all necessary corporate and other
action on the part of Buyer, and this Agreement and each of such other
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instruments has been duly executed by Buyer, as applicable. This Agreement
constitutes the valid and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms.
5.3 Breach of Statute or Contract.
(a) The execution, delivery and performance of this Agreement by
Buyer and the consummation of the transactions contemplated hereby will not:
(i) violate or conflict with any provision of the certificate of limited
partnership and other organizational documents of Buyer; (ii) violate or
conflict with, result in the breach or termination of or otherwise give any
other contracting party the right to terminate, or constitute a default (or an
event which, with the lapse of time, or the giving of notice, or both, will
constitute a default) under, any contract or other instrument to which Buyer is
a party; or (iii) violate or conflict with any judgment, order, writ, injunction
or decree of any court or governmental body of any jurisdiction applicable to
Buyer (excluding any judgments, orders, injunctions, decrees or awards in any
actions or proceedings involving Seller or its affiliates) or, to the knowledge
of Buyer, any law or regulation materially adversely affecting Buyer's ability
to consummate the transaction contemplated by this Agreement.
(b) Except as provided in Schedule 5.3(B), there are no notices,
licenses, consents, permissions or approvals of any nature whatsoever which are
required to be obtained by Buyer from any Federal, state or local governmental
or regulatory body or other third party or, to Buyer's knowledge, from any
foreign governmental or regulatory body for the consummation of the transactions
contemplated by this Agreement, or as a condition to the sale, assignment and
transfer of the Trademark Assets to be effected hereunder.
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ARTICLE VI
COVENANTS
6.1 Further Assurances.
(a) From time to time until the expiration of six (6) years from the
Closing Date, upon the request and at the expense of Buyer but without further
consideration, Seller shall:
(i) do, execute, acknowledge, deliver and file, or shall cause
to be done, executed, acknowledged, delivered and filed, all such further acts,
deeds, transfers, conveyances, assignments or assurances (including, without
limitation, for purposes of transferring record ownership of the Trademark
Assets to Buyer) as may be reasonably requested by Buyer for transferring,
conveying, assigning and reducing to Buyer's possession, ownership and use of
the Trademark Assets including, without limitation, executing on the Closing
Date any assignments of foreign Trademarks in recordable form reasonably
requested by Buyer; and
(ii) deliver to Buyer such other records, documentation and
information in Seller's possession or control as may be reasonably requested by
Buyer to assist Buyer in the use and protection of the Trademark Assets.
(b) Seller shall keep and preserve any and all records,
documentation and information which relate to the Trademark Assets except as
otherwise provided herein. Seller may dispose or destroy any such records,
documentation and information at any time, provided that Seller first shall
notify Buyer so that Buyer may, at its expense and within a reasonable time
after receipt of such notice, obtain from Seller any or all of said records,
documentation and information. Seller shall not be responsible for (i)
destruction of records caused by an Act of
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God or other "Force Majeure" event, or (ii) any immaterial
non-intentional destruction of records.
6.2 No Further Use of "BOSS". From and after the Closing Date hereof,
Selling Parties, (including, without limitation, all affiliates thereof) shall
cease all use of the name and xxxx "BOSS", all variations thereon and all other
names and marks which incorporate the term "BOSS" and will never use the name or
xxxx "BOSS", any variation thereon or any other names and marks which
incorporate the term "BOSS" in the future, except to the limited extent
permitted in Section 6.6. Notwithstanding the foregoing, Seller may make such
limited use of the name and xxxx "BOSS" as is permitted under the Settlement
Agreement (as hereinafter defined).
6.3 No Effect on Use of Other Marks of Seller. Nothing in this Agreement
shall prohibit the use by Seller, for any purpose, of the name or xxxx
"Brookhurst," or the name or xxxx "Commercial Uniform," as to which trademarks
Brookhurst retains all right, title and interest.
6.4 No Challenge to Ownership or Use of Buyer's and Seller's Marks.
(a) From and after the Closing Date, Selling Parties (including, without
limitation, any affiliates thereof) will not challenge or object to the use,
ownership, registration or validity of any "BOSS" marks or names, any variations
thereon or any other names and marks which incorporate the term "BOSS", by Buyer
(including, without limitation, any affiliates thereof) in any manner including,
without limitation, in any subsequent legal proceeding to enforce this
Agreement.
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(b) From and after the Closing Date, Buyer (including, without limitation,
any affiliates thereof) will not challenge or object to the use, ownership,
registration or validity of any "BROOKHURST" marks or names, any variations
thereon or any other names and marks which incorporate the term "BROOKHURST"
(other than names or marks including BOSS, I.G. DESIGN or XXXXXX), by Seller
(including, without limitation, any affiliates thereof) in any manner.
6.5 Mail and Communications. From and after the Closing Date, Seller shall
promptly remit or refer to Buyer any mail or other communications, including,
without limitation, any written inquiries, relating to the Trademarks Assets
which are received by Seller from and after the Closing for a period of six (6)
years from the date hereof.
6.6 Sell-off of Inventories. (a) Seller currently has: approximately
64,000 finished career apparel garments with a label that bears a BOSS logo in
its possession, the substantial majority of which constitutes uniforms for
United Airlines (such garments being hereinafter collectively referred to as the
"Career Apparel Garments"). Notwithstanding anything to the contrary contained
herein, Seller may for a period of six months after the Closing Date: (i)
continue to sell and distribute the Career Apparel Garments in its possession on
the date hereof with a label that bears a "BOSS by Brookhurst" logo in the
typeface which is set forth on Exhibit G; provided, that Seller may extend the
aforesaid limited use of "BOSS by Brookhurst" labels up to an aggregate
additional period of three years, provided it pays in advance an annual license
fee of $3,500 per year and executes a license agreement with Buyer in a form
mutually agreed to by the parties. Seller agrees that after the Closing Date it
will not order any new labels with a BOSS logo, manufacture or cause to be
manufactured any garments which will bear
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a BOSS logo or label and will destroy its current inventory of labels with a
BOSS logo beyond those already used in the existing inventory of Career
Apparel Garments and will make no further use of any labels with a BOSS logo.
The use of any labels with a BOSS logo, or the sale or distribution of any
Career Apparel Garments with a label containing a BOSS logo in accordance
with the terms of this paragraph shall not constitute a breach of this
Agreement. None of the Career Apparel Garments bears a BOSS xxxx on the
exterior of such garments.
6.7 HSR Matters. As promptly as possible after the date hereof, but in
any case, not later than fifteen (15) business days following the date hereof,
unless the parties shall otherwise agree filing is unnecessary, Buyer and Seller
shall file their respective Notification and Report Forms under the Xxxx-Xxxxx
Xxxxxx Antitrust Improvements Act of 1976 as amended (the "HSR Act") with
respect to the transactions contemplated hereby. The parties further agree to
request early termination of the waiting period applicable to such filings under
the HSR Act and to respond as promptly as practicable to any request for
additional information made pursuant to the HSR Act.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER AND SELLER
7.1 Conditions Precedent to Obligations of Buyer. The obligation of
Buyer to consummate the transactions contemplated under this Agreement is
subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Buyer):
(a) the representations and warranties of the Selling Parties set
forth in Article IV hereof shall be true and correct in all material respects;
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(b) the Selling Parties shall have performed and complied in all
material respects with all covenants, obligations and undertakings required by
this Agreement to be performed or complied with on or prior to the Closing Date:
(c) Buyer shall have been furnished with a certificate, dated the
Closing Date and executed by Xxx individually and as an officer of Seller,
certifying to the fulfillment of the conditions specified in Sections 7.1(a) and
(b)( it being acknowledged that Xxx shall have no liability for money damages
thereunder consistent with Section 9.13 hereof);
(d) the applicable waiting period, including any extension thereof,
under the HSR Act shall have expired without action taken to prevent
consummation of the transactions contemplated by this Agreement;
(e) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Agreement;
(f) a settlement agreement by and among Hugo Boss AG, Hugo Boss
USA, Inc., Hugo Boss Fashions, Inc., Buyer, Seller and Boss Golf Company,
Inc. (i) settling the action commenced by the filing of a complaint dated
February 11, 1993, which complaint was subsequently amended and superseded by
Amended Complaint dated November 5, 1993, (ii) providing for the payment by
defendants therein to Hugo Boss of $2,000,000, (iii) settling any and all
proceedings between Hugo Boss and any of the parties hereto throughout the
world (except Canada, Hong Kong and Mexico) and (iv) including the provisions
set forth in Exhibit H hereto, and otherwise being in form and content
mutually satisfactory to all parties, shall have been entered into by all
parties thereto (the "Settlement Agreement");
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(g) settlement agreements by and between Hugo Boss and Seller shall
have been entered into settling any and all proceedings in Canada, Hong Kong and
Mexico on terms mutually satisfactory to all parties thereto (the "Foreign
Settlement Agreements");
(h) stipulated resolutions of all proceedings in Hong Kong by and
between Hugo Boss, on the one hand, and third party agents or manufacturers of
Buyer, on the other, shall have been entered into on terms satisfactory to Buyer
and Hugo Boss (the "Hong Kong Resolutions");
(i) with respect to any intent-to-use applications for the
Trademarks presently outstanding for which use has been made prior to the date
hereof, a list of first use dates for each product listed in each of said
applications, if any, and documentary support for same to support "amendments
to allege use" shall have been delivered to Buyer; and
(j) the Escrow Agreement shall have been entered into by all parties
thereto.
7.2 Conditions Precedent to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated under this Agreement are
subject to the fulfillment, as of the Closing Date, of each of the following
conditions (any or all of which may be waived by Seller):
(a) the representations and warranties of Buyer set forth in Article
V shall be true and correct in all material respects as of the Closing Date;
(b) Buyer shall have performed and complied in all material respects
with all obligations and undertakings required by this Agreement to be performed
or complied with by Buyer on or prior to the Closing Date;
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(c) Seller shall have been furnished with a certificate, dated the
Closing Date and executed by an officer of Buyer certifying to the fulfillment
of the conditions specified in Sections 7.2(a) and (b);
(d) the applicable waiting period, including any extension thereof,
under the HSR Act shall have expired without action taken to prevent
consummation of the transactions contemplated by this Agreement;
(e) no judgment, order or decree shall have been rendered which has
the effect of enjoining the consummation of the transactions contemplated by
this Agreement; and
(f) the Settlement Agreement shall have been entered into by all
parties thereto; and
(g) the Foreign Settlement Agreements shall have been entered into by
all parties thereto;
(h) The Hong Kong Resolutions shall have been entered into by all
parties thereto; and
(i) the Escrow Agreement shall have been entered into by all parties
thereto.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
INDEMNIFICATION
8.1 All representations and warranties contained in or made pursuant to
this Agreement shall be continuing and shall survive and remain in full force
and effect after the date hereof for a period of five (5) years notwithstanding
any investigation conducted by any party hereto. All claims for indemnification
under this Agreement shall be brought by the parties exclusively pursuant to,
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and shall be disposed of exclusively in accordance with the terms of, this
Article VIII.
8.2 Indemnity Obligations of the Selling Parties. Subject to Section
9.13, the Selling Parties hereby jointly and severally agree to indemnify and
hold Buyer and its subsidiaries, partners, shareholders, affiliates, directors,
officers, employees, agents, successors and permitted assigns (collectively,
"Buyer Affiliates") harmless from, and to reimburse Buyer and each Buyer
Affiliate for, any Buyer Indemnity Claims (as that term is hereinafter defined)
arising under this Agreement. For purposes of this Agreement, the term "Buyer
Indemnity Claim" shall mean any loss, damage, deficiency, claim, liability,
obligation, suit, action, fee, cost or expense of any nature whatsoever arising
out of, based upon or resulting from (i) the breach of any representations and
warranties of the Selling Parties which are contained in or made pursuant to
this Agreement; (ii) any breach or nonfulfillment of, or any failure to perform,
any of the covenants, agreements, obligations or undertakings made by Seller in
or pursuant to this Agreement, including, without limitation, the obligations
set forth in Exhibit H, the content of which will appear in the Settlement
Agreement; (iii) any liabilities or obligations of Seller, or any affiliate or
licensee of Seller other than Buyer, not assumed by Buyer pursuant to the terms
hereof (excluding any matters relating to Mexico or the Letter Agreement by and
between Brookhurst, Inc. and Reebok International Limited dated May 28, 1993);
(iv) any liabilities or obligations arising out of any and all actions, claims,
suits, proceedings, demands, assessments, judgments, recoveries, damages, costs
and expenses or deficiencies incident to the disposal of any matter which is the
subject of indemnification under this Section 8.2; and (v) all interest,
penalties, costs and expenses (including, without limitation, all out-of-pocket
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expenses, reasonable investigation expenses and reasonable fees and
disbursements of accountants and counsel) arising out of any matter which is the
subject of indemnification under this Section 8.2 and in which and to the
proportionate extent Buyer Affiliates prevail. Notwithstanding the foregoing,
Xxx'x liability under this Section 8.2 shall be limited solely to enforcement
through equitable relief of all obligations of Xxx and/or Seller under this
Agreement, and Xxx shall not be liable under any circumstances for monetary
damages pursuant to this Section 8.2.
8.3 Indemnity Obligations of Buyer. Buyer hereby agrees to indemnify and
hold Seller and its respective subsidiaries, shareholders, affiliates,
directors, officers, employees, agents, successors and permitted assigns
(collectively, "Seller Affiliates"), harmless from, and to reimburse Seller and
each Seller Affiliate for, any Seller Indemnity Claims (as that term, is
hereinafter defined) arising under this Agreement. For purposes of this
Agreement, the term "Seller Indemnity Claims" shall mean any loss, damage,
deficiency, claim, liability, suit, action, fee, cost or expense of any nature
whatsoever arising out of, based upon or resulting from (i) the breach of any
representations and warranties of Buyer which are contained in or made pursuant
to this Agreement; (ii) any breach of nonfulfillment of, or failure to perform,
any of the covenants, agreements, obligations or undertakings made by Buyer in
or pursuant to this Agreement; (iii) any liabilities or obligations assumed by
Buyer pursuant to the terms hereof; (iv) any liabilities or obligations arising
out of any and all actions, claims, suits, proceedings, demands, assessments,
judgments, recoveries, damages, costs and expenses or deficiencies incident to
the disposal of any matter which is the subject of indemnification under this
Section 8.3; and (v) all interest, penalties, costs and expenses (including,
without limitation, all out-of-pocket expenses, reasonable investigation
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expenses and reasonable fees and disbursements of counsel and accounts) arising
out of any matter which is the subject of indemnification under this Section 8.3
and in which and to the proportionate extent Seller Affiliates prevail.
8.4 Notification of Claims. In the event of the occurrence of any event
which any party asserts constitutes a Buyer Indemnity Claim or Seller Indemnity
Claim, as applicable, the indemnified party shall provide the indemnifying party
with prompt notice of such event, including, without limitation, any facts and
circumstances which give rise to such claim, and shall otherwise make available
to the indemnifying party all relevant information which is material to the
claim and which is in the possession of the indemnified party. If such event
involves the claim of any third party (a "Third-Party Claim"), the indemnifying
party shall have the right to elect to join in the defense, settlement,
adjustment or compromise of any such Third-Party Claim, and to employ counsel to
assist such indemnifying party in connection with the handling of such claim, at
the sole expense of the indemnifying party, and no such claim shall be settled,
adjusted or compromised, or the defense thereof terminated, without the prior
consent of the indemnifying party unless and until the indemnifying party shall
have failed, after the lapse of a reasonable period of time, but in no event
more than 30 days after written notice to it of the Third-Party Claim, to join
in the defense, settlement, adjustment or compromise of the same. An
indemnified party's failure within a reasonable time to give notice or to
furnish the indemnifying party with any relevant data and documents in its
possession in connection with any Third-Party Claim shall not constitute a
defense (in part or in whole) to any claim for indemnification by such party,
except and only to the extent that such failure shall result in any material
prejudice to the indemnifying party. If so desired by any indemnifying party,
such party may elect, at such party's sole expense, to assume control of the
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defense, settlement, adjustment or compromise of any Third-Party Claim, insofar
as the claim relates to the liability of the indemnifying party, provided that
such indemnifying party shall obtain the consent of all indemnified parties
before entering into any settlement, adjustment and compromise of such claim, or
ceasing to defend against such claim, if as a result thereof, or pursuant
thereto, there would be imposed on an indemnified party any liability or
obligation not covered by the indemnification obligations of the indemnifying
party under this Agreement (including, without limitation, any injunctive relief
or other remedy).
If Buyer has not received a written notice from Seller disputing Buyer's
Buyer Indemnity Claim within ninety (90) days after Buyer's submission of a
notice of such claim to Seller, then Buyer may provide a further notice sent to
Seller by registered or certified mail to the effect that Seller has not
disputed such claim and that Buyer intends to submit a Settlement Notice (as
defined in the Escrow Agreement) based on Seller having been deemed to have
consented to such claim and the computation thereof, as applicable. If Seller
does not within thirty (30) days after receipt of such latter notice dispute in
writing the Buyer Indemnity Claim by notice to Buyer and Escrow Agent, then
Seller shall be deemed to have consented to such claim and, to the extent set
forth in Buyer's notices, the computation thereof.
8.5 Escrow Agreement. (a) At the Closing, Buyer will deposit $5,625,000
with the Escrow Agent, which amount shall be deemed to be part of the "Escrow
Fund" as defined in the Escrow Agreement. In addition, under the terms of the
Note and the Escrow Agreement, Buyer is obligated to deposit portions of certain
installments of principal and interest due under the Note with the Escrow Agent
on and as of the date payment of each such installment is due. Effective upon
each such deposit, such funds shall be deemed to become part of the "Escrow
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Fund" for all purposes thereunder and shall be disbursed pursuant to the terms
of the Escrow Agreement.
8.6 Reservation of Rights. Subject to Section 9.13, notwithstanding
anything to the contrary set forth in this Agreement, neither party shall be
precluded from asserting any claim or cause of action under this Agreement if
the other shall breach this Agreement.
8.7 Termination. This Agreement may be terminated, and the transactions
contemplated herein may be abandoned, (a) by mutual written agreement of the
parties hereto at any time or (b) by either party by written notice to the other
party if the Closing Date shall not have occurred on or before December 31,
1997, provided that the right to terminate this Agreement hereunder shall not be
available to any party whose breach of any representation or warranty or failure
to perform or comply with any obligation under this Agreement has been the cause
of, or resulted in, the failure of the Closing to occur on or before such date.
ARTICLE IX
GENERAL
9.1 Waiver. Any failure of Buyer, on the one hand, or the Selling
Parties, on the other, to comply with any of the obligations or agreements set
forth in this Agreement or to fulfill any condition set forth in this Agreement
may be waived only by written instrument signed by the other party. No failure
by any party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver of such right, nor shall any single or partial exercise of
any right hereunder by any party preclude any other or future exercise of that
right or any other right hereunder by that party.
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9.2 Notices. All notices, requests or other communications required or
permitted hereunder (excluding, however, mail and/or communications covered
under paragraph 6.5 hereof) shall be given or made in writing and shall be (i)
delivered personally (including commercial carrier), (ii) sent by registered or
certified airmail, return receipt requested, postage prepaid or (iii) sent by
telecopier, addressed to the party to whom they are directed at the following
addresses, or at such other address as may from time to time be designated by
such party to the others in accordance with this Section 9.2:
If to Seller, to:
Brookhurst, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx
Telecopier: 310/763-3846
Xxxxxxx Xxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: 310/763-3846
With a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 212/758-9526
If to Buyer, to:
I. C. Xxxxxx & Company L.P.
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and Co-Chief Executive Officer
Telecopier: 410/558-2096
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I. C. Xxxxxx & Company L.P.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman and Co-Chief Executive Officer
Telecopier: 212/695-7579
With a copy to:
Piper & Marbury L.L.P.
Xxxxxxx Center South
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: 410/576-1604
Any notice, request or other communications shall be deemed to have been
given and to be effective upon receipt or refusal by the addressee. Any party
may change its address for notices hereunder, effective upon giving of notice of
such change hereunder to the other parties.
9.3 No Third Party Beneficiaries. Neither this Agreement nor any
provision hereof, nor any document or instrument executed or delivered pursuant
hereto, shall be deemed to create any right in favor of or impose any obligation
upon any person or entity other than Buyer and Selling Parties and their
respective successors and assigns.
9.4 Equitable Remedies. Selling Parties, on the one hand, and Buyer, on
the other hand, each acknowledge that it will be impossible to measure in money
the damages that would be suffered by Buyer and Selling Parties, respectively,
if the other party fails to comply with the obligations imposed on it pursuant
to paragraphs 1.1, 3.2, 3.3, 6.1, 6.2, 6.3, 6.4 and 6.5 of this Agreement and
that, in the event of any such failure, the claiming party will be irreparably
damaged and will not have an adequate remedy at law. Each party shall,
therefore, be entitled to equitable relief, including, without limitation,
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injunctive relief and/or specific performance to enforce such obligations of the
other party and, if any action should be brought in equity to enforce any
provisions of this Agreement, neither party shall raise the defense that there
is an adequate remedy at law. The parties further agree that notwithstanding
the provisions of Section 9.12, either party may, in accordance with the
provisions of this Section 9.4 hereof, seek immediate injunctive relief in court
prior to the initiation of or pending resolution of any dispute in arbitration.
Except as expressly provided in this Agreement, all specific remedies provided
for in this Agreement are cumulative and are not exclusive of one another or of
any other remedies available at law or in equity. Notwithstanding anything to
the contrary set forth herein, nothing contained elsewhere in this Agreement,
including, without limitation, the monetary thresholds set forth in Section 4.10
with respect to the definition of "actual harm", shall be deemed to limit in any
way the availability of equitable relief for any breach of this Agreement.
9.5 Captions and Paragraph Headings. Captions and paragraph headings used
in this Agreement are for convenience only and are not a part of this Agreement
and shall not be used in interpreting or construing it.
9.6 Entire Agreement. The making, execution and delivery of this
Agreement by the parties has been induced by no representations, statements,
warranties or agreements other than those herein expressed. This Agreement
embodies the entire understanding of the parties with respect to the subject
matter hereof. Notwithstanding the foregoing, the parties acknowledge that a
number of different agreements and instruments of which the parties are
signatory are all being executed simultaneously with this Agreement and at
Closing. The parties acknowledge that this Agreement or instrument is to be
interpreted and enforced separately and independently of any other such
-28-
agreement or instrument, and the breach of any such agreement by a party shall
not affect the rights of such party under this Agreement. This Agreement may be
amended or modified only by an instrument of equal formality signed by the
parties or their duly authorized representatives. The parties have made no
representations or warranties not expressly set forth in this Agreement. This
Agreement supersedes and terminates all prior discussions, negotiations,
understandings, arrangements and agreements among the parties relating to the
subject matter hereof, except as expressly set forth herein.
9.7 Counterparts. This Agreement may be executed in any number of
duplicate counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
9.8 Assignability. No party hereto may assign any of its interests,
rights or obligations under the Agreement without the prior written consent of
the other parties. Notwithstanding the foregoing, Buyer may assign its rights,
but not its obligations, under this Agreement to any entity under common control
with Buyer or to any assignee or other successor in interest to any of the
Trademark Assets without the consent of Seller, and Seller may assign its rights
under the Note and the Escrow Agreement in accordance with the terms of such
instruments, provided, that neither party may assign any rights referred to in
this Section 9.8 unless it has complied with all of its obligations under the
instrument the rights under which it wishes to assign. Any impermissible
attempted assignment of this Agreement without such prior written consent shall
be void as to the other parties to this Agreement. Nothing in this Section 9.8
shall be construed as requiring Seller's consent to any assignment of Buyer's
rights under this Agreement to Ambra Inc. or any affiliate thereof and the
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assumption by such assignee of any obligations of Buyer (if any) relating
thereto.
9.9 Expenses. The parties shall each bear their own expenses in
connection with the negotiation, execution and delivery of this Agreement and
the performance of their respective obligations hereunder.
9.10 Successors and Assigns. This Agreement and the provisions thereof
shall be binding upon and inure to the benefit of the respective successors and
permitted assigns of the parties hereto.
9.11 Governing Law. The validity, construction, operation and effect of
any and all of the terms and provisions of this Agreement shall be determined
and enforced in accordance with the laws of the State of New York without giving
effect to principles of conflicts of law thereunder except as to matters solely
involving foreign trademark rights, in which case the applicable foreign
trademark laws shall be applied to determine such foreign trademark rights. In
the event any legal action becomes necessary to enforce or interpret the terms
of this Agreement, the parties agree that such action will be brought in the
U.S. District Court for the Southern District of New York, and the parties
hereby submit to the jurisdiction of such court; provided, however, that any
party may enforce an arbitration award in any court of competent jurisdiction
located in New York City and the parties hereby submit to the jurisdiction of
any such court.
9.12 Arbitration. (a) Notwithstanding anything contained in Section 9.11
above, except as provided in paragraph (b) below and as provided for in
paragraph 9.4 above, all disputes arising from or in any way in connection with
this Agreement shall be finally settled through binding arbitration conducted
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pursuant to the Rules of Conciliation and Arbitration of the International
Chamber of Commerce in effect as of the date of the initiation of any dispute
submitted to arbitration under this section ( ICC Rules ) by three arbitrators
appointed in accordance with the ICC Rules. Except as provided in this Section,
no modification or amendment of the ICC Rules applicable to any such arbitration
shall be binding upon the parties unless agreed to in writing by the parties.
In each such arbitration, each party to the dispute shall appoint one arbitrator
within 30 days of receipt by the defendant of the request for arbitration, and
the arbitrators so appointed by the parties shall appoint the third arbitrator
(who shall be the Chairman), within 30 days of the confirmation of the later of
the two arbitrators appointed by the parties. If any such arbitration involves
multiple claimants or multiple defendants, nomination of arbitrators shall be
governed by the applicable ICC rules. Notwithstanding anything to the contrary
contained in the ICC rules: (i) the arbitration proceedings shall be conducted
in the City of New York, State of New York; (ii) the arbitration proceedings
shall be conducted in the English language; and (iii) the arbitrators shall
apply New York law without regard to such state's choice of law rules, except as
to matters involving solely issues of foreign trademark rights, in which case
the applicable foreign trademark laws shall be applied to determine such foreign
trademark rights. If the arbitrator(s) determine that the set-off was improper,
Buyer shall pay to Seller the amount set-off plus interest thereon at the
reference rate announced by Union Bank of California from time to time as the
"prime rate", plus one percent, computed from the date of the set-off through
and including the date of payment of the set-off amount. If the non-prevailing
party does not comply with an arbitration decision, the prevailing parties may
immediately enforce the arbitration decision in an equitable proceeding in court
-31-
with both parties' court costs and related attorneys' fees paid by the
non-prevailing party in the arbitration, unless the arbitration decision is
modified, or not upheld or enforced, in which case, each side shall bear its own
costs and attorneys' fees.
(b) (i) Notwithstanding anything contained in Section 9.11 above, in
the event Buyer, pursuant to the second paragraph of paragraph 6 of the Note,
sets off funds that were to be paid to Seller pursuant to the payment schedule
contained in the Note, the parties agree to resolve in a fast-track procedure
whether such set-off is appropriate (the Set-Off Dispute ). Such a procedure
shall be initiated by transmission of a request for arbitration to the
defendant. Within thirty (30) days of receipt by defendant of such request, the
parties shall appoint one arbitrator who shall conduct an expedited arbitration
pursuant to the ICC Rules to determine if Buyer can demonstrate a likelihood of
success on the merits of its claim underlying the Set-Off Dispute. If the
parties cannot agree upon an arbitrator within such 30-day period, or such
longer period as may be agreed upon in writing by the parties, then an
arbitrator shall be appointed by the ICC pursuant to its rules. The Set-Off
Dispute arbitration shall be conducted within thirty (30) days of the
confirmation of an arbitrator, unless the parties to the dispute agree in
writing to an extension of the said 30-day period.
(ii) The expedited arbitration shall be conducted in the City of New
York, State of New York in the English language and the arbitrator shall apply
New York law without reference to such state's choice of law rules, except as to
matters involving solely issues of foreign trademark rights, in which case, the
applicable foreign trademark laws shall be applied to determine such foreign
trademark rights. The arbitrator shall render a decision as to Buyer's
likelihood of success on the merits of the claim underlying the Set-Off Dispute
-32-
within thirty (30) days of the final submission to the arbitrator. If the
arbitrator decides that Buyer has shown a likelihood of success on the merits
of its claim, Buyer shall be entitled to retain the set-off funds pending a
full arbitration conducted pursuant to subsection (a) above. If the
arbitrator determines that Buyer has not shown a likelihood of success on the
merits of the claim underlying the Set-Off Dispute, Buyer shall pay such
set-off amount to Seller within ten (10) business days, with interest thereon
from the date of the set-off at an interest rate of 7% per annum.
Notwithstanding the foregoing, either party may commence an arbitration
pursuant to Subsection (a) above with respect to the underlying dispute which
led to the set-off prior to, simultaneously with, during or after
commencement of an expedited arbitration. Unless agreed to by the parties,
the sole arbitrator rendering the decision as to whether Buyer has
demonstrated a likelihood of success on the claim underlying the Set-Off
Dispute shall not serve as an arbitrator for any arbitration of the
underlying dispute conducted pursuant to subsection (a) above, nor shall any
decision or award, in whole or in part, be referred to in any such subsequent
arbitration, or be made known to the arbitrators appointed pursuant to
subsection (a) above for such arbitration. Unless agreed to by the parties,
the pendency of a fast track arbitration under this section shall not be
cause for delay or postponement of any other arbitration between the parties.
9.13 Liability of Xxx. Xxx, as the sole shareholder of Seller, shall be
jointly and severally liable with Seller as a primary obligor and not as a
surety, provided, however, that his liability hereunder shall be limited solely
to the enforcement through equitable relief of all obligations of Xxx and/or
Seller under this Agreement, and Xxx shall not be liable under any circumstances
for monetary damages.
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9.14 Confidentiality. This Agreement, its terms, conditions and
provisions, and the trade secrets and confidential information of the parties
are strictly confidential and shall not be disclosed by either party to any
other person or entity without the prior written consent of the other party, or
as required by law, (i) except financial institutions (including but not limited
to investment bankers and underwriters), attorneys and accountants with which
the parties transact business, provided, however, that such third parties agree
in writing to abide by the terms of this provision; or (ii) except as
appropriate for the parties to protect and/or enforce their respective trademark
rights. Buyer and Seller further agree that disclosure of this Agreement within
their organizations shall be limited to their respective directors, officers and
employees with a "need to know," to carry out the purposes of this Agreement, or
to protect the rights of either party. Nothing in this provision is intended to
prevent or substantially interfere with Buyer's or its partners', affiliates or
stockholders' ability to make all disclosures required by law pursuant to
offering and selling stock to the public, or with respect to the parties' rights
to reflect the terms of this transaction as an asset on any financial
statements.
9.15 Release of Liability Upon Assumption. Notwithstanding anything in
this Agreement to the contrary, the obligations of I.C. Xxxxxx & Company L.P.
("ICI") under this Agreement are expressly conditioned on the Selling Parties'
agreements as follows, and the Selling Parties do hereby irrevocably covenant
and agree as follows:
(a) ICI shall be permitted to assign any or all of its rights under
this Agreement, the Note and the Escrow Agreement to Hugo Boss affiliate
Ambra Inc. ("Ambra") and/or to have Ambra assume (and Ambra shall be
permitted to assume) any or all of ICI's obligations under this Agreement,
the Escrow Agreement and the Note. Upon such assignment and assumption,
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Ambra shall have the right to assert the rights assigned to it directly against
Seller or the Selling Parties, as the case may be, to the full extent that
ICI would have been entitled to assert such rights but for the assignment;
(b) Upon and after Ambra's assumption of any of ICI's obligations
under this Agreement, ICI shall be fully released from such of ICI's obligations
under this Agreement as are assumed by Ambra and:
(i) Neither ICI nor any of ICI's partners, nor (A) any
individual, partnership, joint venture, organization, association, company or
trust which may have any legal or beneficial interest in ICI or its partners, as
the case may be, and (B) any officers, directors, managers, employees, agents,
advisors, successors or assigns of any thereof (ICI, its partners, and such
entities and natural persons are referred to herein as "Exempted Persons"),
shall be personally liable for payment or performance of any obligations arising
under this Agreement or the Escrow Agreement to the extent such obligations are
assumed by Ambra (such obligations under this Agreement and the Escrow Agreement
are referred to herein as the "Obligations"); provided, however, that nothing in
this paragraph 9.15(b)(i) shall release or otherwise limit Seller's rights
against any successor or assignee of ICI's obligations, including, without
limitation, Ambra.
(ii) The Selling Parties shall not seek, pursue, obtain or
enforce any claim or judgment against any of the Exempted Persons for the
Obligations; and
(iii) In the event of any nonpayment or nonperformance of
this Agreement or any of the Obligations, the Selling Parties' sole and
exclusive remedy for such nonpayment or nonperformance shall be to exercise such
rights as the Selling Parties may have against any successor, assignee or
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guarantor of ICI's obligations, including, but not limited to, Ambra or (with
respect to the Guaranty) Hugo Boss.
(c) Promptly upon Ambra assumption of such obligations of ICI under
this Agreement, the Selling Parties shall xxxx and sign all of their originals
of this Agreement with the following legend and deliver a copy of this Agreement
so marked and signed to ICI; provided, however, the failure of the Selling
Parties to so xxxx and sign the originals of this Agreement, or to deliver such
copy to ICI, shall not prejudice ICI's rights under this Section or cause ICI to
remain obligated under this Agreement:
"CERTAIN OBLIGATIONS (AS DEFINED ABOVE) OF I.C. XXXXXX & COMPANY L.P.
("XXXXXX") HAVE BEEN ASSUMED BY AMBRA, INC. AND THE SELLING PARTIES HAVE
RELEASED XXXXXX FROM SAID OBLIGATIONS.
BROOKHURST, INC.
By: /s/ Xxxxxxx Xxx
__________________________________(Seal)
XXXXXXX XXX, PRESIDENT
/s/ Xxxxxxx Xxx
_____________________________________
XXXXXXX XXX, INDIVIDUALLY"
(d) The foregoing clauses of this Section shall be self operative and
shall not require the execution or delivery of any further documentation.
Notwithstanding the foregoing, upon ICI's request upon and after Ambra's
assumption of certain obligations of ICI under this Agreement, the Selling
Parties shall execute and deliver to ICI such further documents as may be
-36-
reasonably requested by ICI from time to time for the purpose of further
confirming to ICI and/or other persons designated by ICI that ICI no longer has
such obligations or liability under this Agreement.
-37-
IN WITNESS WHEREOF, the parties have duly signed this Agreement the day and
year first written above.
BROOKHURST, INC.
By:
---------------------------------
Name: Xxxxxxx Xxx
Title: President
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief
Executive Officer
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief
Executive Officer
XXXXXXX XXX
---------------------------------
IN WITNESS WHEREOF, the parties have duly signed this Agreement the day and
year first written above.
BROOKHURST, INC.
By: /s/ Xxxxxxx Xxx
----------------------------------
Name: Xxxxxxx Xxx
Title: President
I. C. XXXXXX & COMPANY L.P., a Delaware
limited partnership
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and Co-Chief
Executive Officer
By:
--------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Co-Chief
Executive Officer
XXXXXXX XXX
/s/ Xxxxxxx Xxx
---------------------------------
"CERTAIN OBLIGATIONS (AS DEFINED ABOVE) OF I.C. XXXXXX & COMPANY L.P.
("XXXXXX") HAVE BEEN ASSUMED BY AMBRA INC. AND THE SELLING PARTIES HAVE
RELEASED XXXXXX FROM SAID OBLIGATIONS.
BROOKHURST, INC.
By: /s/ XXXXXXX XXX (Seal)
___________________________
XXXXXXX XXX, PRESIDENT
/s/ XXXXXXX XXX
___________________________
XXXXXXX XXX, INDIVIDUALLY"
WORLDWIDE RIGHTS ACQUISITION AGREEMENT
EXHIBITS
Exhibit A The Promissory Note
Exhibit B The Hugo Boss Guaranty
Exhibit C Trademark Assignments
Exhibit D Assumption Agreement
Exhibit E Escrow Agreement
Exhibit F Termination Agreement
Exhibit G "BOSS by Brookhurst" logo typeface
Exhibit H Certain Provisions in Settlement Agreement
SCHEDULE 1.1(b)
ASSUMED AGREEMENTS
1. Trademark License Agreement by and between Brookhurst, Inc. and ProGroup,
Inc. dated February 1, 1993.
2. Agreement by and between Brookhurst, Inc. and Boss Manufacturing Company
dated January 17, 1994.
3. Settlement Agreement by and between Brookhurst, Inc. and Bravo Corporation
dated January 21, 1997.
4. Agreement by and between Brookhurst, Inc. and Hi-Tech Golf, Inc. dated
July 20, 1994.
5. Settlement Agreement by and between Brookhurst, Inc. and Le Boss Sports
Wear, Inc. dated August 9, 1994.
6. Settlement Agreement by and between Brookhurst, Inc. and Xxxxxx Xxxxx
d.b.a. W-Two Tees dated March 31, 1995.
7. Agreement by and between Brookhurst, Inc. and Xxxxxx Industries, Inc.
dated July 19, 1993.
8. Agreement by and between Brookhurst, Inc. and Dayang International, Inc.
dated February 28, 1994.
9. Agreement by and between Brookhurst, Inc. and Xxxx Xxx Trading Co., Inc.
dated February 28, 1994.
10. Agreement by and between The Boss Group Companies and Xxxxxx and Xxx
Xxxxxxxx dated June 9, 1983.
11. Stipulation Terminating Opposition by and between Boss Group Companies,
Inc. and Levi Xxxxxxx & Co. dated June, 1976.
12. Agreement by and between Brookhurst, Inc., Yogi Enterprises, Inc. and New
York Wholesale dated February 21, 1994.
SCHEDULE 4.3(b)
THIRD PARTY CONSENTS AND WAIVERS
Xxxx-Xxxxx-Xxxxxx approval.
SCHEDULE 4.4(a)
LITIGATION
United States
Hugo Boss Fashions, Inc. et al. v. Brookhurst. Inc. et al., 93 Civ.0875
(LMM)(THK)
Brookhurst, Inc. v. Bailiwick Golf, Inc., CV 96-6516 LGB (RNBx) (BOSS OF THE
XXXX)
Brookhurst, Inc. v. Xxxxxx X. Xxxxxxx, Opposition No. 104,087 (B.O.S.2)
Brookhurst, Inc. v. Xxxxxx Xxxxxxx, Opposition No. 100,291 (BOSS OF THE XXXX)
Brookhurst, Inc. v. U.S. Boss Club, Inc., Opposition No. 99,923 (US BOSS CLUB)
Brookhurst, Inc. x. Xxxx Boss A.G., Opposition No. 93,355 (BOSS HUGO BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
89,912 (BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
91,860 (BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
90,751 (BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,577 (BABY BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,224 (BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
97,364 (BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,117 (BOSS AMERICA)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,473 (BOSS BUSINESS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,196 (LITTLE BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,269 (LADY BOSS)
Hugo Boss AG and Hugo Boss Fashions, Inc. v. Brookhurst, Inc., Opposition No.
95,205 (BOSS GOLF)
Brookhurst, Inc. X. Xxxx Boss A.G., Cancellation No. 21,614 (BOSS)
Brookhurst, Inc. X. Xxxx Boss A.G., Cancellation No. 21,616 (BOSS)
Brookhurst, Inc. X. Xxxx Boss A.G., Cancellation No. 22,751 (BOSS)
Brookhurst, Inc. X. Xxxx Boss A.G., Cancellation No. 22,014 (BOSS)
Letters received from Boss Manufacturing Company dated June 13, June 28 and
August 8, 1994.
Canada
Brookhurst, Inc. x. Xxxx Boss AG, Hugo Boss Canada Inc., Carrera Optic AG, Falke
Fashion, Siga Corp., La Xxxx Xxxxxxx, S.p.A., Xxxxx Xxxxx-Xxxxx Strumpffabriken,
New Pel, S.p.A., Federal Court of Canada, Court No. T-l333-93
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx BOSS ELEMENTS, Application Number 766,156, owned
by Hugo Boss AG
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx BOSS XXXX BOSS ELEMENTS DESIGN, Application
Number 766,155, owned by Hugo Boss AG
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx XXXX XXXX BOSS & DESIGN, Application Number
740,329, owned by Hugo Boss AG
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx XXXX XXXX BOSS DESIGN, Application Number
732,109, owned by Hugo Boss AG
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx BOSS XXXX BOSS DESIGN, Application Number
701,377, owned by Hugo Boss AG
Opposition in the Canadian Trade-Marks Office by Brookhurst, Inc. to the
registration of the Trade-xxxx XXXXXXXXXXXX XXXX BOSS DESIGN, Application Number
732,110, owned by Hugo Boss AG
Hong Kong, China and Macau
See attached.
Japan
See attached.
Mexico
Letters received from Merchant & Xxxxx dated August 22 and September 4, 1997.
LIST OF HONG KONG PROCEEDINGS
Date of cease and Date of Writ 1996
desist letter Action No.
Brookhurst, Inc. vs. Hugo Boss 16 August 1996 20 September 1996 10808
AG
Brookhurst, Inc. vs. Hugo Boss 16 August 1996 20 December 1996 14585
AG and Hugo Boss Hong Kong
Limited
Hugo Boss AG vs. CAC 26 July 1996 24 September 1996 10896
Garment Ltd.
Hugo Boss AG vs. Chungkuo 26 July 1996 24 September 1996 10897
Xxxxx Xxx Co Ltd
Hugo Boss AG vs. P'NT 13 July 1996 24 September 1996 10898
Merchandising Co Ltd
Hugo Boss AG and Hugo Boss 31 July 1996 8707
Hong Kong Limited vs.
Ace Merchandising Corp. (a
firm) (3rd party)
Pro-Knit Mfg. Ltd. (Defendant)
Hugo Boss AG vs. Gofar 13 July 1996 5 August 1996 8857
Textiles Limited
Hugo Boss AG and Hugo Boss Amended 174
Hong Kong Limited vs. Statement of Claim
Dodge International Trading pursuant to
Ltd, Dodge Knitting Company Summons dated 9
Ltd, Dodge Trading Ltd (5th to August 1995
7th Defendants);
(Sun Xxxxxx Xxx
Manufacturing Ltd, Xxxxxx Fat
Trading Co. (a firm)(1st and 4th
Defendants); Garment Express
Fashions Co. (a firm)(2nd
Defendant); Harf Sharan (HK)
Co. (3rd Defendant); Wah Kel
Garment Co. (a firm)(8th and
9th Defendants))
Times Trademark Industrial 28 October 1996
Ltd.
LIST OF MACAU PROCEEDINGS
Date of cease and Date of Writ 1996
desist letter Action No.
Fabrica de Vestuano Best 25 July 1996
Found Limitada (received by
Eldex Limited in HK)
[LIST OF PRC PROCEEDINGS]
Date of cease and Date of Writ 1996
desist letter Action No.
[Hugo Boss AG vs. Boss unknown unknown
Sportwear (USA), Inc.]
JAPAN
List of All Legal Matters Involving Boss Trademark
TRIALS
---------------------------------------------------
Trial No. Our Case
---------------------------------------------------
554/1993 S7069 Non-Use Cancellation
Trial against Trademark
Reg. No. 695865 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
555/1993 S7070 Non-Use Cancellation
Trial against Trademark
Reg. No. 695865 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
564/1993 S7071 Non-Use Cancellation
Trial against Trademark
Reg. No. 2190696 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
565/1993 S7072 Non-Use Cancellation
Trial against Trademark
Reg. No. 2190696 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
566/1993 S7073 Non-Use Cancellation
Trial against Trademark
Reg. No. 2190696 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
567/1993 S7074 Non-Use Cancellation
Trial against Trademark
Reg. No. 2190696 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
568/1993 S7075 Non-Use Cancellation
Trial against Trademark
Reg. No. 2190696 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
569/1993 S7076 Non-Use Cancellation
Trial against Trademark
Reg. No. 2197845 "BOSS"
owned by Hugo Boss A.G.
---------------------------------------------------
SCHEDULE 4.4(b)
JUDGMENTS AND ORDERS
See Schedule 4.5.E for references to Levi Xxxxxxx & Co.
SCHEDULE 4.5.A
CURRENT TRADEMARK REGISTRATIONS AND APPLICATIONS
UNITED STATES
Federal Registrations
Registration Number Xxxx/Class(es)* Registration Date
------------------- --------------- -----------------
1,023,305 BOSS/25 10/21/75 renewed 10/21/95
1,214,960 LADY BOSS/25 11/02/82
1,756,992 B(stylized)/25 03/09/93
1,933,326 BOSS/28 11/07/95
State Registrations
Registration Number Xxxx/Class(es) Registration Date
------------------- -------------- -----------------
101509 (California) BOSS/25 7/23/96
Federal Applications
Application Number Xxxx/Class(es)
------------------ --------------
74/074,962 BOSS/21, 24, 25, 28
74/075,953 BOSS/25
74/263,623 BOSS/28
74/269,769 BOSS/28
74/326,997 BOSS/25
74/323,654 BOSS/12, 14, 16, 18, 25, 28
74/801,552 BOSS/24, 26
74/346,231 BABY BOSS/8, 14, 16, 18, 25, 28
74/801,565 BABY BOSS/24, 26
74/346,234 LITTLE BOSS/8, 14, 16, 18, 25, 28
74/801,545 LITTLE BOSS/24, 26
74/346,230 LADY BOSS/12, 14, 16, 18, 25, 28
----------
* Prior to Closing, the Acquisition Agreement shall not be deemed to be
breached by inclusion of incorrect information relating to the Marks and
Classes in this Schedule. Said information shall be reviewed, corrected if
necessary, updated and confirmed by Seller prior to Closing.
2
SCHEDULE 4.5.A
74/801,550 LADY BOSS/24, 26
74/346,232 BOSS AMERICA/12, 14, 16, 18, 25, 28
74/801,551 BOSS AMERICA/24, 26
74/346,233 BOSS GOLF/12, 14, 16, 18, 25, 28
74/801,554 BOSS GOLF/24, 26
74/355,226 BOSS BUSINESS/12, 14, 16, 18, 25, 28
74/801,657 BOSS BUSINESS/24, 26
75/013,293 BOSS/7, 8, 11, 12, 14, 21
Current DBA Applications and Registrations
See attached.
CANADA
Federal Applications
Application Number Xxxx/Class(es)
------------------ --------------
721,562 BOSS/?
ITALY
Registrations
Application Number Xxxx/Class(es) Registration Date
------------------ -------------- -----------------
643416 BOSS AMERICA/25,28 2/21/95
HONG KONG
Application Number Xxxx/Class(es)
------------------ --------------
96/06527 BOSS and
BOSS (Stylized)/25
ROC (TAIWAN)
Application Number Xxxx/Class(es)
------------------ --------------
85032505 BOSS BUSINESS/25
3
SCHEDULE 4.5.A
CHINA
Application for business name for Boss Golf Company
MACAU
Application Number Xxxx/Class(es)
------------------ --------------
N/001305 BOSS/25
MALAYSIA
Application Number Xxxx/Class(es)
------------------ --------------
96/06531 BOSS/25
JAPAN
Application Number Xxxx/Class(es)
------------------ --------------
330801/1992 BOSS AMERICA/9
330803/1992 BOSS AMERICA/20
330804/1992 XXXX XXXXXXX/00
000000/0000 XXXX XXXXXXX/00
XXXXXX
Application Number Xxxx/Class(es)
------------------ --------------
152400 BOSS/25
152401 BOSS BOSS AMERICA/25
152402 BOSS AMERICA/25
SCHEDULE 4.5B
PREVIOUS TRADEMARK REGISTRATIONS AND APPLICATIONS
United States
Registration No. 213,560 dated June 1, 1926, renewed June 1, 1946 for BOSS
Registration No. 127,268 dated November 14, 1919 for XXXXXX BOSS
Registration No. 1,080,019 dated December 20, 1977 for BOSS
Application Serial No. 36,141 for BOSS AND DESIGN
Application Serial No. 36,142 for BOSS TEXTOOL SERVICES
California trademark registration dated February 12, 1897
California trademark registration no. 1434 dated September 19, 1959 for THE BOSS
France
Application No. 93/453,859 for BOSS AMERICA
Japan
Application No. 330802/1992 for BOSS AMERICA
Application Xx. 000000/0000 xxx XXXX XXXXXXX
Xxxx
Trademark registration dated July 7, 1921 for THE BOSS
Mexico
Trademark registration number 16,666 dated June 5, 1919
Trademark registration number 26,603 dated February 23, 1927
Trademark registration number 323615 dated May 29, 0000
Xxxxx
Application No. 93007161 for BOSS BUSINESS
Macau
Application No. 12784/DSE for BOSS
2
SCHEDULE 4.5.C
FILINGS AND ACTIONS REQUIRED WITHIN 120 DAYS
Office Action response due December 8, 1997 for Canadian BOSS trademark
application number 721,562.
Office Action response due October 4, 1997 for Japanese trademark application
number 330805/1992.
Japanese trademark applications which have been denied may be subject to appeal.
AMENDMENT TO SCHEDULE 4.5.C.
TO THE WORLDWIDE RIGHTS ACQUISITION AGREEMENT
DATED SEPTEMBER 30, 1997
----------------------------------------------------------
It is hereby agreed, by and between the undersigned counsel, that
Schedule 4.5.C to the World Wide Rights Acquisition Agreement dated September
30, 1997, should be amended to delete any reference to any "office action
response due October 4, 1997 for Japanese trademark application number
330805/1992."
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
-------------------- -------------------- ---------------------
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Shereff, Friedman, Coudert Brothers Piper & Marbury LLP
Xxxxxxx & Xxxxxxx, LLP 1114 Avenue of the Americas 00 Xxxxx Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Attorneys for Attorneys for Hugo Boss AG Attorneys for I.C. Xxxxxx
Brookhurst, Inc. & Company L.P.
SCHEDULE 4.5.D
CURRENT BOSS LICENSES
LICENSE AGREEMENT dated August 11, 1994 by and between BROOKHURST, INC. and I.C.
XXXXXX & CO., L.P.
TRADEMARK LICENSE AGREEMENT dated February 1, 1993 by and between BROOKHURST,
INC. and PROGROUP, INC.
TRADEMARK LICENSE AGREEMENT dated August 25, 1992 by and between BROOKHURST,
INC. and BOSS AMERICA, S.A. DE C.V.: terminated but there are sell-off rights in
Paragraph Thirteenth of said Agreement.
SCHEDULE 4.5.E
AGREEMENTS RE USE OF TRADEMARK
1. Agreement by and between Brookhurst, Inc. and Boss Manufacturing Company
dated January 17, 1994.
2. Settlement Agreement by and between Brookhurst, Inc. and Bravo Corporation
dated January 21, 1997.
3. Letter to Xxxxxxx X. Pine, attorney for Enjoylife, Inc. dated April 30,
1993.
4. Agreement by and between Brookhurst, Inc. and Hi-Tech Golf, Inc. dated
July 20, 1994.
5. Settlement Agreement by and between Brookhurst, Inc. and Le Boss Sports
Wear, Inc. dated August 9, 1994.
6. Settlement Agreement by and between Brookhurst, Inc. and Xxxxxx Xxxxx
d.b.a. W-Two Tees dated March 31, 1995.
7 Trademark License Agreement by and between Brookhurst, Inc. and ProGroup,
Inc. dated February 1, 1993.
8. Letter to Xxxx X. XxXxxxx, Xx., Esq., attorney for Boss Uniform Service,
from Xxxxx X. Xxxxxxxx, attorney for The Boss Group Companies, dated March
20, 1974.
9. Agreement by and between Brookhurst, Inc. and Xxxxxx Industries, Inc.
dated July 19, 1993.
10. Agreement by and between Brookhurst, Inc. and Dayang International, Inc.
dated February 28, 1994.
11. Agreement by and between Brookhurst, Inc. and Xxxx Xxx Trading Co., Inc.
dated February 28, 1994.
12. Agreement by and between The Boss Group Companies and Xxxxxx and Xxx
Xxxxxxxx dated June 9, 1983.
13. Letter from Xxxxxxx X. Xxxxxx, Xx., attorney for Boss Group Companies,
Inc., to Xxxxxx X. Xxxx, Esq., attorney for H.D. Xxx Company, dated
January 13, 1976.
14. Stipulation Terminating Opposition by and between Boss Group Companies,
Inc. and Levi Xxxxxxx & Co. dated June, 1976.
2
SCHEDULE 4.5.E
15. Agreement (undated and unsigned) by and between Boss Group Companies, Inc.
and Levi Xxxxxxx & Co.
16. Agreement by and among Brookhurst, Inc., Yogi Enterprises, Inc. and New
York Wholesale dated February 21, 1994.
17. Letter Agreement by and between Brookhurst, Inc. and Reebok International
Limited dated May 28, 1993.
18. Settlement Agreement by and among Brookhurst, Inc., Hugo Boss AG and
Xxxxxxx Xxxxxx Mode dated January 6, 1988.
SCHEDULE 4.6
ALIENATION OF RIGHTS
[NONE]
SCHEDULE 5.3(B)
THIRD PARTY CONSENTS
Xxxx-Xxxxx-Xxxxxx approval.
Approval from secured lender, Congress Financial Corporation.