Exhibit 10.3
March 28, 2003
FEDERAL EXPRESS
Xx. Xxxxxxx X. X'Xxxxx
President and Chief Executive Officer
The Hockey Company
0000 Xxxx. xx Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx
Re: NHL LICENSE FOR AUTHENTIC JERSEYS FOR 30
TEAMS AND OTHER PRODUCTS - 2004-2014
Dear Matt:
This letter agreement (together with the exhibits attached hereto, the
"AGREEMENT") will confirm the agreement and understanding between NHL
Enterprises, L.P., NHL Enterprises Canada, L.P. and NHL Enterprises B.V., on the
one hand (collectively, "NHLE"), and Sport Maska Inc., Maska U.S., Inc., Jofa
AB, KHF Finland Oy (the preceding four parties being hereinafter referred to
collectively as "THC"), The Hockey Company, and, subject to Paragraph B.1.d
below, The Hockey Company Holdings Inc. ("HOLDINGS"), on the other hand, with
respect to the license agreement for the Term (as defined below) for authentic
and replica jerseys and certain other products (the "LICENSE"). NHL Enterprises,
L.P. and NHL Enterprises Canada, L.P. shall hereinafter be referred to
individually as "NHLE US" and "NHLE CANADA," respectively. All amounts set forth
herein are in United States dollars.
A. THC PUBLIC OFFERING.
1. In the event that Holdings undertakes a public offering of its securities
(the "THC PUBLIC OFFERING") and the THC Public Offering closes before September
1, 2003 (the date of such closing being hereinafter referred to as the "CLOSING
DATE"), then:
Xx. Xxxxxxx X. X'Xxxxx 2 March 28, 2003
a. Within three (3) business days following the Closing Date, THC shall
pay to NHLE a fee of thirty million dollars ($30,000,000) (the "LONG
TERM CONTRACT COMMITMENT FEE"), which payment shall be made via wire
transfer in immediately available funds to the following accounts,
unless specified otherwise in writing by NHLE:
i. THC shall pay * million dollars ($ * ) to:
Account Name: NHL Enterprises, L.P.
Bank: *
Address: *
*
ABA number: *
Account number: *
ii. THC shall pay * million dollars ($ * ) to:
Account Name: NHL Enterprises Canada, L.P.
Bank: *
Address: *
*
*
Bank I.D.: *
Branch: *
Account number: *
b. The Letter Agreement, dated February 15, 2001, as amended, between
NHLE and THC regarding an NHL license for authentic jerseys for 30
teams and other products, together with the exhibits attached thereto
(the "2001 LICENSE"), shall be deemed to be terminated in all respects
and be of no further force or effect as of June 30, 2004; PROVIDED
that THC shall have paid to NHLE the Long Term Contract Commitment Fee
in accordance with Paragraph A.1.a above; PROVIDED FURTHER, that the
indemnification and other provisions of the 2001 License which by
their terms survive termination or expiration of the 2001 License
shall survive such termination and shall remain in full force and
effect and be binding on THC and its successors (such obligations
being hereinafter
Xx. Xxxxxxx X. X'Xxxxx 3 March 28, 2003
referred to as the "2001 CONTINUING OBLIGATIONS"). THC hereby
acknowledges and agrees that the 2001 Continuing Obligations shall be
deemed for all purposes to be obligations under this Agreement and the
2001 Continuing Obligations shall be due as provided under the 2001
License.
Further, in accordance with the terms of the 2001 License, no later
than fifteen (15) days prior to the expiry date of the letter of
credit required under the 2001 License and issued in favor of NHLE US,
on behalf of NHLE, and existing as the date hereof (the "EXISTING
LETTER OF CREDIT"), THC shall cause to be delivered to NHLE a letter
of credit (the "REPLACEMENT LETTER OF CREDIT") in replacement of the
Existing Letter of Credit. THC hereby agrees that the Replacement
Letter of Credit shall be issued to NHLE US, on behalf of NHLE, by a
bank reasonably acceptable to NHLE and having a corresponding branch
in Montreal, New York or Toronto, and agrees that the terms of the
Replacement Letter of Credit shall contain the provisions required by
the 2001 License and shall also provide for an expiry date of no
earlier than June 30, 2004. NHLE hereby agrees that, provided that THC
shall have paid to NHLE the Long Term Contract Commitment Fee in
accordance with Paragraph A.1.a above and shall have delivered to NHLE
the Letter of Credit in accordance with Paragraph B.6.d below and
EXHIBIT K attached hereto, on the Commencement Date (as defined in
Paragraph B.2 below), NHLE shall execute and deliver to THC's bank a
notice of termination of the Replacement Letter of Credit.
c. Upon THC's payment to NHLE of the Long Term Contract Commitment Fee in
accordance with Paragraph A.1.a above, Section B of this Agreement
shall become effective.
2. In lieu of undertaking the THC Public Offering, THC may, with the prior
written consent of NHLE, pay the Long Term Contract Commitment Fee from other
sources available to it. First, THC must provide NHLE with written notice, not
later than September 1, 2003, specifying its plans for payment from such other
sources. NHLE shall then have twenty (20) days from receipt of such notice to
provide or withhold in writing its consent to THC's plans. During this
Xx. Xxxxxxx X. X'Xxxxx 4 March 28, 2003
thirty-day period, THC shall promptly provide NHLE with any reasonably requested
information or documentation relating to its plans. If NHLE provides its
consent, THC shall then pay the Long Term Contract Commitment Fee to NHLE in
accordance with Paragraph A.1.a above by the later of twenty (20) days following
the date of THC's receipt of such consent and September 30, 2003, in which event
such payment shall, for all purposes of this Agreement, be deemed to be payment
of the Long Term Contract Commitment Fee.
3. For clarity, failure by THC to deliver the Letter of Credit in accordance
with the terms of Paragraph B.6.d of this Agreement and Exhibit K attached
hereto shall entitle NHLE, upon five (5) days prior written notice, to draw the
full remaining balance of the Existing Letter of Credit or Replacement Letter of
Credit, as the case may be.
B. LICENSE.
1. GRANT OF RIGHTS.
a. NHLE shall grant to THC an exclusive license, except where indicated
on EXHIBIT A attached hereto that the license for a particular product
is not exclusive, to manufacture, sell and market certain NHLE
products (the "PRODUCTS") under several different brand names, all as
described in such EXHIBIT A, subject to and in accordance with the
terms set forth herein, including without limitation the terms of
NHLE's Standard Terms and Conditions as set forth on EXHIBIT B
attached hereto (the "STANDARD TERMS AND CONDITIONS").
b. The terms of the letter agreement, dated May 11, 2000 (a copy of which
is attached hereto as EXHIBIT C), between the parties regarding logo
placement and size, shall remain in effect through the Term; PROVIDED,
HOWEVER, that THC shall have the right, subject to receipt of NHLE's
written approval, twice during the Term to rebrand the jersey Products
using a hockey-related brand controlled by THC.
Xx. Xxxxxxx X. X'Xxxxx 5 March 28, 2003
c. To the extent that any of the rights set forth in clauses (i), (ii) or
(iii) below (the "ADDITIONAL RIGHTS") become available during the Term
through the expiration or termination of NHLE's agreement for such
rights with another supplier, and if NHLE is not contemplating
renewing such agreement with such supplier, NHLE shall notify THC of
such fact, and upon THC's request, NHLE shall negotiate in good faith
with THC for at least thirty (30) days to conclude an agreement for
such rights. The Additional Rights are: (i) * ; (ii) * ; and
(iii) * .
d. Sport Maska Inc., Maska U.S., Inc., Jofa AB, KHF Finland Oy, The
Hockey Company and The Hockey Company Holdings Inc. shall be jointly
and severally liable for the obligations of THC under the License and
this Agreement; PROVIDED, HOWEVER, that in the event that the THC
Public Offering does not close before September 1, 2003, The Hockey
Company Holdings Inc. shall cease to be a party to this Agreement and
shall have no liability hereunder.
2. TERM. The term ("Term") of the License and this Agreement shall be from July
1, 2004 (the "Commencement Date") through June 30, 2014, or as may be extended
in accordance with Paragraph B.17 below. Notwithstanding the foregoing, if THC
shall not have paid the Long Term Contract Commitment Fee to NHLE in accordance
with Paragraph A.1 or A.2 above, the License and this Agreement shall be null
and void, with no further force and effect, in which event the 2001 License
shall remain in effect and continue in accordance with the terms thereof. Each
period from July 1 of a particular year of the Term though June 30 of the next
succeeding year of the Term shall hereinafter be referred to as a "License
Year."
3. TERRITORY. Worldwide.
4. TEAM ALLOCATION. All 30 NHL member teams.
5. ROYALTIES. THC shall pay to NHLE as royalties the percentages (each such
percentage, a "ROYALTY RATE") of Net Sales (as such term is defined in Section
2(g) of the Standard Terms and Conditions) set forth below for the following
Product groups (as such Product groups are defined on EXHIBIT A attached hereto)
and
Xx. Xxxxxxx X. X'Xxxxx 6 March 28, 2003
the following time periods. A list of Royalty Rates by individual Product is
set forth in SCHEDULE 1 TO EXHIBIT A:
a. for the period from July 1, 2004 through June 30, 2008:
i. Authentic jersey Products and Center Ice Products: * %
ii. Replica jersey Products: * %
iii. Named/Numbered Jerseys: * %
iv. Licensed Blank Jerseys: * %
v. player-identified Fan Apparel and Vintage Apparel: a royalty
rate (the "NHLPA ROYALTY RATE") equal to * , but not less
than * %
vi. all other Products: * %
b. for the period from July 1, 2008 through June 30, 2010:
i. Authentic jersey Products and Center Ice Products: * %
ii. Replica jersey Products: * %
iii. Named/Numbered Jerseys: * %
iv. Licensed Blank Jerseys: * %
v. player-identified Fan Apparel and Vintage Apparel: * ,
but not less than * %
vi. all other Products: * %
c. for the period from July 1, 2010 through June 30, 2014:
i. Authentic jersey Products and Center Ice Products: * %
ii. Replica jersey Products: * %
iii. Named/Numbered Jerseys: * %
iv. Licensed Blank Jerseys: * %
v. player-identified Fan Apparel and Vintage Apparel: * , but
not less than * %
vi. all other Products: * %
THC shall submit royalty reports for sales of all Products for each month during
the Term by the 20th day of the following month, in accordance with Section 4 of
the Standard Terms and Conditions, together with Royalty Payments (as
Xx. Xxxxxxx X. X'Xxxxx 7 March 28, 2003
defined in Section 2(h) of the Standard Terms and Conditions) for sales of
Licensed Blank Jerseys. Except as provided in Paragraph B.6.f below, THC shall
not be obligated to make monthly Royalty Payments on sales of Products other
than Licensed Blank Jerseys.
6. ADDITIONAL LICENSE FEE, CASH ROYALTY GUARANTEES AND EARNED ROYALTIES. THC
shall pay the following amounts to NHLE on or before the dates set forth below
and shall be subject to the following terms and conditions:
a. An additional license fee of $ * (the "ADDITIONAL LICENSE FEE"),
which shall be in addition to, and shall not be credited towards, the
Cash Royalty Guarantees (as defined below) or any other obligations of
THC under this Agreement. THC shall pay the Additional License Fee in
the following annual amounts, which in each case shall be delivered in
twelve (12) equal installments on the first day of each month of the
applicable License Year, commencing with the first such payments for
the 2004-2005 License Year due and payable on July 1, 2004:
i. for the 2004-2005 License Year: $ * to NHLE US and
$ * to NHLE Canada;
ii. for the 2005-2006 License Year: $ * to NHLE US and
$ * to NHLE Canada;
iii. for the 2006-2007 License Year: $ * to NHLE US and
$ * to NHLE Canada;
iv. for the 2007-2008 License Year: $ * to NHLE US and
$ * to NHLE Canada;
v. for the 2008-2009 License Year: $ * to NHLE US and
$ * to NHLE Canada; and
vi. for the 2009-2010 License Year: $ * to NHLE US and
$ * to NHLE Canada.
b. [Intentionally omitted.]
c. As set forth on EXHIBIT E attached hereto, a guaranteed minimum
payment for each License Year (the "CASH ROYALTY GUARANTEE"). THC
shall pay the Cash Royalty Guarantee in twelve (12) equal
Xx. Xxxxxxx X. X'Xxxxx 8 March 28, 2003
installments on the first day of each month of the applicable License
Year, commencing with the first such payment for the 2004-2005 License
Year due and payable on July 1, 2004;
d. As partial security for THC's obligation to pay the Cash Royalty
Guarantees, the Additional License Fee and the 2001 Continuing
Obligations, THC shall deliver to NHLE US on or prior to June 10, 2004
an irrevocable standby letter of credit for the benefit of NHLE US, on
behalf of NHLE, in the amount of $ * million, issued by a bank
reasonably acceptable to NHLE and having a corresponding branch in
Montreal, New York or Toronto, in a form acceptable to and previously
approved by NHLE and THC's bank (as defined on EXHIBIT K attached
hereto, the "LETTER OF CREDIT"). The terms of the Letter of Credit and
the rights and obligations of the parties in connection therewith are
set forth on EXHIBIT K attached hereto;
e. For each License Year, royalties earned on Net Sales (as defined in
EXHIBIT B hereto) (such royalties on Net Sales being hereafter
referred to as "EARNED ROYALTIES") during such License Year for all
Products except Licensed Blank Jerseys shall be credited towards the
Cash Royalty Guarantee due for such License Year. No other amounts
shall be credited towards the Cash Royalty Guarantees due hereunder.
For clarity, Earned Royalties for Licensed Blank Jerseys shall not be
credited towards the Cash Royalty Guarantees and shall be paid to NHLE
as Royalty Payments on a monthly basis, as provided in Paragraph B.5
above and in accordance with Section 4 of the Standard Terms and
Conditions;
f. For each License Year, all Earned Royalties for all Products except
Licensed Blank Jerseys which shall be in excess of the amount set
forth below for such License Year (each such amount, a "ROYALTY
TARGET"), which excess Earned Royalties shall be paid to NHLE within
thirty (30) days following the end of the applicable License Year.
Earned Royalties in excess of the Royalty Target for a particular
License Year shall be in addition to, and shall not be credited
towards, the Cash Royalty Guarantees or any other
Xx. Xxxxxxx X. X'Xxxxx 9 March 28, 2003
obligations of THC under this Agreement. The Royalty Target for each
License Year shall be as follows:
i. for the 2004-2005 License Year: $ *
ii. for the 2005-2006 License Year: $ *
iii. for the 2006-2007 License Year: $ *
iv. for the 2007-2008 License Year: $ *
v. for the 2008-2009 License Year: $ *
vi. for the 2009-2010 License Year: $ *
vii. for the 2010-2011 License Year: $ *
viii. for the 2011-2012 License Year: $ *
ix. for the 2012-2013 License Year: $ *
x. for the 2013-2014 License Year: $ *
For clarity, except as provided in Paragraph B.17, in no event shall
Earned Royalties accruing in a License Year for all Products except
Licensed Blank Jerseys be payable under this Agreement if the amount
thereof is equal to or less than the amount of the Royalty Target with
respect to such License Year.
g. Notwithstanding anything to the contrary contained elsewhere herein,
none of the following payments or amounts, to be paid by THC to NHLE
or to be paid by THC to the NHL teams or to be spent by THC, shall be
subject to offset, reduction or repayment by or to THC for any reason:
i. the Long Term Contract Commitment Fee, as provided in Paragraph
A.1.a, which payment shall be fully earned upon receipt by NHLE;
ii. the Additional License Fee, as provided in Paragraph B.6.a;
iii. the Cash Royalty Guarantees, as provided in Paragraph B.6.c,
except that such payments may be reduced, among other things,
solely in accordance with Paragraphs B.16 or B.17 of the
Agreement, or Section 11(a)(vi) of EXHIBIT B attached hereto, or
offset and reduced solely in accordance with Section 11(f) of
EXHIBIT B;
Xx. Xxxxxxx X. X'Xxxxx 10 March 28, 2003
iv. Earned Royalties for Licensed Blank Jerseys, as provided in
Paragraph B.6.e, except that such payments may be offset and
reduced solely in accordance with Section 11(f) of EXHIBIT B;
v. for a particular License Year, Earned Royalties for all Products
except Licensed Blank Jerseys in excess of the Royalty Target for
such License Year, as provided in Paragraph B.6.f, except that
such payments may be offset and reduced solely in accordance with
Section 11(f) of EXHIBIT B;
vi. the $ * funding for the NHL/THC Design Center, as provided in
Paragraph B.7, except that the parties may consider a reduction
of such amount in accordance with Paragraph B.7;
vii. the $ * credit for NHLE's purchase of THC Products, as
provided in Paragraph B.12.c.ii;
viii. the * Fee and the * Fee, as provided in Paragraph
* , except that such payments may be offset and reduced
solely in accordance with Section 11(f) of EXHIBIT B;
ix. the League Marketing Commitment, as provided in Paragraph B.8,
except that such spending may be reduced, among other things,
solely in accordance with Paragraphs B.16 or B.17 of the
Agreement, or Section 11(a)(vi) of EXHIBIT B;
x. the Team Marketing Commitments, as provided in Paragraph B.9,
except that such payment may be reduced, among other things,
solely in accordance with Paragraphs B.16 or B.17 of the
Agreement, or Section 11(a)(vi) of EXHIBIT B.
7. NHL/THC DESIGN CENTER. As soon as practicable following the Closing Date, and
at its own expense and in consultation with NHLE, THC shall create and operate
for the duration of the Term an NHL/THC Design Center, which shall work on
product design and innovation. THC shall staff the NHL/THC Design Center with at
least five (5) product and graphic designers. The NHL/THC Design Center will
offer design services to the NHL teams at discount rates. For the period from
July 1, 2004 through June 30, 2006, THC will spend a
Xx. Xxxxxxx X. X'Xxxxx 11 March 28, 2003
minimum of $ * to fund the NHL/THC Design Center, which amount shall be in
addition to, and shall not be credited towards, the Cash Royalty Guarantees or
any other obligations of THC under this Agreement; PROVIDED, HOWEVER, that the
parties will consider a reduction of such amount in the event that during a
particular License Year there occur any Missed Games (as defined below). Any
trademark, copyright or other property rights arising from any creation and/or
design of NHL Indicia (as defined in Section 2(k) of EXHIBIT B attached hereto)
by employees or independent contractors of the NHL/THC Design Center, regardless
of whether such designs are actually used on Licensed Products, shall be
governed by the Standard Terms and Conditions, including but not limited to
Sections 3(k) and 3(l).
8. GENERAL LEAGUE MARKETING COMMITMENT. During each License Year, THC shall
spend a minimum of $ * on NHL marketing (which, for these purposes, shall
mean media and production purchases and/or subsidization of NHL retail
activation programs for the purpose of growing consumer sales of THC's
NHLE-licensed products), as mutually agreed upon by NHLE and THC (the "LEAGUE
MARKETING COMMITMENT"). The League Marketing Commitment shall be in addition to,
and shall not be credited towards, the Cash Royalty Guarantees or any other
obligations of THC under this Agreement.
9. TEAM MARKETING COMMITMENTS. During each License Year, THC shall spend the
amounts set forth below with each NHL team on team marketing (each, a "TEAM
MARKETING COMMITMENT"). The Team Marketing Commitments shall be in addition to,
and shall not be credited towards, the Cash Royalty Guarantees or any other
obligations of THC under this Agreement. * . The Team Marketing Commitments
for each License Year on an aggregate and a per-team basis are as follows:
a. for the 2004-2005 License Year: $ * million/$ * per team
b. for the 2005-2006 License Year: $ * million/$ * per team
c. for the 2006-2007 License Year: $ * million/$ * per team
d. for the 2007-2008 License Year: $ * million/$ * per team
e. for the 2008-2009 License Year: $ * million/$ * per team
f. for the 2009-2010 License Year: $ * million/$ * per team
g. for the 2010-2011 License Year: $ * million/$ * per team
h. for the 2011-2012 License Year: $ * million/$ * per team
Xx. Xxxxxxx X. X'Xxxxx 12 March 28, 2003
i. for the 2012-2013 License Year: $ * million/$ * per team
j. for the 2013-2014 License Year: $ * million/$ * per team
THC shall negotiate with each team a marketing agreement covering the marketing
assets to be delivered in consideration for the Team Marketing Commitment for a
particular License Year. Such team marketing assets will be valued at the team's
then-prevailing rates (which shall mean, with respect to each such asset, the
best price at which THC would be able to purchase such asset, on a stand-alone
basis and not as part of a package, on the open market through THC's media
buying agency).
To the extent that, after it has negotiated in good faith with a particular
team, THC fails to agree on the marketing assets to be delivered to THC for a
particular License Year, THC may elect to "rollover" to one or more future
License Years the team's delivery of the marketing assets; PROVIDED, HOWEVER,
that THC's marketing agreement with such team must specify the marketing assets
to be delivered in such future License Years; PROVIDED FURTHER that THC may not
"rollover" to a future License Year its delivery of the Team Marketing
Commitment (I.E., THC must deliver the * to the team in each License Year).
Any marketing assets "rolled over" to a particular License Year shall be in
addition to the marketing assets otherwise required to be delivered for such
License Year.
To the extent that, after it has negotiated in good faith with a particular
team, THC fails to agree on the "rollover" of marketing assets for a particular
License Year, NHLE will, upon written request from THC, work with THC and the
team to reach agreement. In the extraordinary circumstance that, after working
with NHLE, THC remains unable to reach agreement with the team, NHLE will
deliver NHLE-controlled marketing assets to THC to make up the difference
between the marketing assets provided by the team and the Team Marketing
Commitment for such License Year; PROVIDED, HOWEVER, that NHLE shall not be
required to deliver in the aggregate more than $ * in value of
NHLE-controlled marketing assets in any one License Year, regardless of the
number of teams with which THC has failed to reach agreement; PROVIDED FURTHER
that NHLE-controlled inventory shall be valued at NHLE's then-prevailing rates
(which shall mean, with respect to each such asset, the best price at which THC
would be
Xx. Xxxxxxx X. X'Xxxxx 13 March 28, 2003
able to purchase such asset, on a stand-alone basis and not as part of
a package, on the open market through THC's media buying agency).
10. [Intentionally omitted.]
11. PRODUCT PRODUCTION AND DELIVERY, AND MAINTENANCE OF PRODUCT INVENTORIES. For
each License Year, THC shall meet the Product production deadlines set forth on
EXHIBIT F attached hereto and the Product delivery deadlines set forth on
EXHIBIT G attached hereto, and shall maintain the Product inventories set forth
on EXHIBIT H attached hereto, subject to the conditions set forth in each such
exhibit. Notwithstanding anything to the contrary contained elsewhere herein,
during the last six (6) months of the last License Year of the Term, unless NHLE
and THC have agreed in writing that the License will be renewed or extended, THC
shall manufacture only such quantities of the Products which are to be sold at
retail as are reasonably necessary to fulfill orders for delivery to be made
during such last License Year.
12. * .
a. During the Term, THC shall be the exclusive supplier on-ice of
practice jerseys and of jerseys and pants/shells for NHL on-ice
officials (I.E., referees and linesmen), which products shall be
produced under the Jofa brand name, and of Vintage jerseys, which
Products shall be produced under the CCM brand name. Notwithstanding
the foregoing, THC shall have the right, subject to receipt of NHLE's
written approval, once during the Term to rebrand the above on-ice
officials products using a hockey-related brand controlled by THC.
b. THC agrees that during the Term THC will supply equipment to the NHL
teams on terms consistent with the past practice of THC and the teams,
including with respect to favorable pricing and delivery.
c. i. NHLE shall grant THC the following rights to supply NHL players
during NHL games with on-ice equipment bearing THC brand names
("ON-ICE RIGHTS"). For each License Year of the Term, THC shall
have On-Ice Rights in the equipment
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categories listed below (the "DESIGNATED EQUIPMENT CATEGORIES")
for the THC brand names designated below or the name of any THC
sub-brand incorporating such brand names (the "DESIGNATED BRAND
NAMES"). THC shall have the right, subject to receipt of NHLE's
written approval, for any License Year to replace any
Designated Brand Name with another hockey equipment brand name
controlled by THC. The fee for the On-Ice Rights shall be * .
In addition to the terms set forth in this Paragraph B.12.c,
the On-Ice Rights will be subject to the terms set forth on
EXHIBIT J attached hereto. On-Ice Rights for any other
equipment (I.E., other than equipment in the Designated
Equipment Categories bearing the Designated Brand Names, or a
replacement therefor as provided above) will be subject to a
separate fee and the execution of a separate agreement. The
Designated Equipment Categories are: gloves, goalie masks,
goalie equipment, goalie/player pants, shin pads, shoulder
pads, elbow pads, helmets, visors, hockey sticks and skates.
The Designated Brand Names are: CCM, Canadien, Xxxxxx, Jofa,
Koho and Titan.
ii. * THC shall provide NHLE during each License Year of the Term
with a $ * credit for the purchase of THC products at THC's
wholesale price * , which credit is listed in Section 2.a of
EXHIBIT G attached hereto. Such credit shall be in addition to,
and shall not be credited towards, the Cash Royalty Guarantees
or any other obligations of THC under this Agreement.
d. *
e. *
f. *
Xx. Xxxxxxx X. X'Xxxxx 15 March 28, 2003
13. NHLE STOCK OPTIONS. Within fifteen (15) days following the execution of this
Agreement, NHLE US shall enter into an option agreement (the "NHLE OPTION
AGREEMENT"), in form and substance reasonably satisfactory to NHLE, with
Holdings, pursuant to which Holdings shall, subject to the receipt of any
Canadian regulatory approval which may be required, on the date thereof, grant
to NHLE US or its designee options to purchase seventy-five thousand (75,000)
common shares of Holdings the "NHLE OPTIONS" on the following general terms:
a. Each NHLE Option shall be exercisable, at a price equal to the price
first offered to the public in the THC Public Offering, for one (1)
common share of Holdings.
b. The NHLE Options shall vest in five (5) equal annual installments
beginning on the one-year anniversary of the date of grant.
c. All unexercised NHLE Options, whether or not vested, shall terminate
immediately upon the termination of this Agreement by either party
pursuant to the terms of the Agreement.
d. The NHLE Options shall expire on the last day of the Term.
e. If any change is made to the common stock of Holdings (whether by
stock dividend, stock split or reverse stock split, or otherwise),
then THC shall preserve the value of the shares issuable upon exercise
of the NHLE Options by adjusting the number of shares issuable per
each NHLE Option to reflect such change to the common stock of
Holdings and by making appropriate adjustments to the exercise price
of the NHLE Options.
f. Upon a change of control (as defined in the NHLE Option Agreement),
the board of directors of Holdings shall determine whether all
unvested NHLE Options shall vest on an accelerated schedule; PROVIDED
that if unvested options to purchase common shares of Holdings that
have been granted to any other party shall vest on an accelerated
schedule upon such change of control, then the board of directors of
Holdings shall determine that all
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unvested NHLE Options shall vest on the same accelerated schedule.
In the event that Holdings does not receive any required regulatory approval and
is therefore not able to grant the NHLE Options to NHLE, the parties shall
negotiate in good faith to agree to replace THC's obligations under this
Paragraph B.13 with other obligations of comparable value.
14. QUALITY CONTROL, ETC. The Products and their manufacture, sale and
marketing, as well as certain other terms and conditions, shall be subject to
the Standard Terms and Conditions.
15. CHANGE OF CONTROL.
a. THC shall, in the event of a proposed Change of Control (as defined
below), request the prior written consent of NHLE, which consent shall
not be unreasonably withheld. NHLE shall, within ten (10) business
days of its receipt of a written request for such consent, either: (i)
grant such consent in writing; or (ii) provide written reasons
explaining its refusal to grant such consent. In the event that THC or
the entity acquiring control is unable, within a reasonable period of
time, to address such written reasons to the satisfaction of NHLE,
acting reasonably, and the Change of Control is consummated, NHLE may
terminate this Agreement and the License immediately upon delivery of
notice to THC.
b. "CHANGE OF CONTROL" shall mean: (i) any assignment, transfer or
sublicense, other than any sublicense otherwise permitted under the
terms of this Agreement, of the rights and obligations of THC under
this Agreement and the License to any third party other than a
subsidiary controlled by THC (such Change of Control also referred to
herein as an "ASSIGNMENT"); or (ii) except in connection with the THC
Public Offering, any transaction or series of transactions or any
reorganization or similar event that results in any entity or person
other than an entity or person presently having Effective Control (as
defined below), including without limitation Wellspring Capital
Management LLC, (x) acquiring more
Xx. Xxxxxxx X. X'Xxxxx 17 March 28, 2003
than 50% of the equity interest, voting power or economic interest of
THC, (y) otherwise acquiring effective control of THC, whether by
contract, operation of law or otherwise (the items in this clause (y)
collectively, "EFFECTIVE CONTROL"), or (z) acquiring a substantial
portion of the operating assets of THC necessary to carry on its
business as presently conducted. For clarity, an Assignment of less
than all of the rights and obligations under this Agreement and the
License shall not be permitted.
c. NHLE agrees that it shall act in good faith in making its
determination under this Paragraph B.15 and may withhold consent to
any Change of Control only if:
i. the reputation of the proposed assignee, transferee, sublicensee,
pledgee or purchaser, as the case may be (any such person being
herein referred to as the "PROPOSED PARTY"), within the Proposed
Party's business or industry, and, in the case of an Assignment,
including the Proposed Party's reputation for offering quality
and reliable services, is such that it would adversely affect the
reputation of NHLE; or
ii. the financial condition of the Proposed Party is such that it may
materially impair the ability of THC to fulfill its obligations
under this Agreement and the License, as reasonably determined by
NHLE; or
iii. in the case of an Assignment, the Proposed Party does not have
the ability to fulfill the obligations of THC under this
Agreement and the License as assigned, transferred or sublicensed
to the Proposed Party.
Notwithstanding the foregoing, THC shall not engage in or permit to
occur a Change of Control if the Proposed Party, or any principal
owner or any director, member of senior management, executive, or
officer of the Proposed Party, (i) has publicly documented connections
to legal or illegal gambling activity, (ii) has been convicted in a
criminal action, or (iii) is listed on the side letter
Xx. Xxxxxxx X. X'Xxxxx 18 March 28, 2003
delivered to THC by NHLE on the date hereof regarding prohibited
Proposed Parties.
d. In the event that NHLE withholds its consent to a proposed Change of
Control and a dispute arises as to whether such withholding of consent
was permitted under this Xxxxxxxxx X.00, XXX may elect to have such
dispute settled on an expedited basis by binding arbitration. In such
an event, THC shall send written notice to NHLE of its desire to
arbitrate, and NHLE and THC shall jointly select an arbitrator. If an
arbitrator is not selected within ten (10) days after NHLE's receipt
of such notice from THC, the American Arbitration Association in New
York, New York shall select the arbitrator. The arbitrator shall have
financial and marketing expertise in sports marketing and licensing.
The arbitration shall take place in New York, New York. The arbitrator
shall adopt the rules and procedures for commercial arbitration of the
American Arbitration Association. The arbitrator shall endeavor to
render a final decision within thirty (30) days of the selection of
the arbitrator. The arbitrator shall award to the prevailing party its
fees and expenses, including reasonable attorneys' fees. The
arbitrator's judgment shall be final and binding on the parties.
Judgment on the arbitrator's award may be entered in any court having
jurisdiction. In the event that THC does not elect to have such
dispute settled by binding arbitration, THC may proceed with any other
legal remedies it may have.
e. In the event that THC assigns, transfers or sublicenses its rights and
obligations under this Agreement and the License to a subsidiary
controlled by THC, which act does not qualify as a Change of Control
in accordance with Paragraph B.15.b above, THC shall guarantee the
performance by such subsidiary of the obligations under this Agreement
and shall remain secondarily liable therefor.
16. EXPANSION/CONTRACTION.
a. If the NHL expands by adding additional teams, certain financial
Xx. Xxxxxxx X. X'Xxxxx 19 March 28, 2003
obligations of THC shall be increased for the remainder of the Term,
commencing with the License Year in which the expansion takes effect,
as set forth below:
i. The annual Cash Royalty Guarantee and League Marketing Commitment
shall be increased by an amount equal to * percent ( * %) of the
pro rata amount of such obligation calculated on a per-team
basis, multiplied by the number of additional teams. The annual
Royalty Target will be increased by * for the corresponding
License Year. For clarity, if the NHL were to expand by one team
for the 2004-2005 License Year, then the Cash Royalty Guarantee
for such License Year would be increased by an amount equal to
* % of the quotient of such Cash Royalty Guarantee and the number
of previously existing NHL teams, multiplied by the number of
additional teams: $ * /30 x * x 1 = $ * . The increase in the
League Marketing Commitment for the 2004-2005 License Year would
be: $ * /30 x * x 1 = $ * . The increase in the Royalty Target
for the 2004-2005 License Year would be: $ * ; and
ii. The aggregate annual Team Marketing Commitment shall be increased
by an amount equal to * percent (* %) of the pro rata amount of
such obligation calculated on a per-team basis, multiplied by the
number of additional teams. For clarity, if the NHL were to
expand by two teams for the 2004-2005 License Year, then the
aggregate annual Team Marketing Commitment for such License Year
would be increased by an amount equal to * % of the quotient of
the Team Marketing Commitment and the number of previously
existing NHL teams, multiplied by the number of additional teams:
$ * /30 x * x 2 = $ * .
b. If the XXX xxxxxxxxx by terminating existing teams, the annual Cash
Royalty Guarantee, Royalty Target, League Marketing Commitment and
Team Marketing Commitments for the remainder of the Term shall be
reduced, commencing with the License Year in which the contraction
takes effect, by amounts consistent with the
Xx. Xxxxxxx X. X'Xxxxx 20 March 28, 2003
expansion increases provided in Paragraph B.16.a above.
17. WORK STOPPAGE.
a. If by April 1, 2004, or by April 1 of any particular License Year (the
License Year in which such April 1 occurs, the "PRE-WORK STOPPAGE
LICENSE YEAR"), the NHL and the NHLPA have not entered into a
Collective Bargaining Agreement or other arrangement (a "CBA")
covering the following NHL season (the License Year corresponding to
such following NHL season, the "WORK STOPPAGE LICENSE YEAR"), then:
i. the Cash Royalty Guarantee and the Royalty Target for the Work
Stoppage License Year shall each be reduced to * ;
ii. THC shall pay to NHLE US on behalf of NHLE, or in accordance with
NHLE's instructions, Earned Royalties for all Products for the
Work Stoppage License Year on a monthly basis during such Work
Stoppage License Year simultaneously with THC's submission of the
monthly statements required under Section 4 of EXHIBIT B attached
hereto; and
iii. The Term shall be extended automatically for an additional
License Year (an "ADDITIONAL LICENSE YEAR"), unless THC elects to
forego the Additional License Year by delivery of written notice
to NHLE prior to June 1 of the Pre-Work Stoppage License Year.
The Additional License Year shall be subject to the same terms
and conditions as those that apply to the immediately preceding
License Year, except that:
A. the Cash Royalty Guarantee for the Additional License Year
shall be increased by * percent ( * %), and shall be
paid to NHLE US and NHLE Canada in the same
Xx. Xxxxxxx X. X'Xxxxx 21 March 28, 2003
proportion as for the immediately preceding License Year;
and
B. the Royalty Target for the Additional License Year shall be
the sum of the Cash Royalty Guarantee and $ * .
b. Regardless of when (or whether) a CBA covering a particular NHL season
is entered into, if any scheduled regular season NHL games are not
played during such season as the result of a player strike, management
lockout or comparable work stoppage league-wide (such games not
played, the "MISSED GAMES," and the License Year corresponding to such
season, the "WORK STOPPAGE LICENSE YEAR") and if such Missed Games
amount to * percent ( * %) or more of the scheduled NHL regular season
for the Work Stoppage License Year, then:
i. the Cash Royalty Guarantee and the Royalty Target for the Work
Stoppage License Year shall each be reduced to * ;
ii. THC shall pay to NHLE US on behalf of NHLE, or in accordance with
NHLE's instructions, Earned Royalties for all Products for the
Work Stoppage License Year on a monthly basis during such Work
Stoppage License Year simultaneously with THC's submission of the
monthly statements required under Section 4 of EXHIBIT B attached
hereto; and
iii. The Term shall be extended automatically for an Additional
License Year, unless THC elects to forego the Additional License
Year by delivery of written notice to NHLE within sixty (60) days
following the occurrence of Missed Games amounting to more than
* percent ( * %) of the scheduled NHL regular season for the Work
Stoppage License Year. The Additional License Year shall be
subject to the same terms and conditions as those that apply to
the immediately preceding License Year, except that:
Xx. Xxxxxxx X. X'Xxxxx 22 March 28, 2003
A. the Cash Royalty Guarantee for the Additional License Year
shall be increased by * percent ( * %), and shall be paid to
NHLE US and NHLE Canada in the same proportion as for the
immediately preceding License Year; and
B. the Royalty Target for the Additional License Year shall be
the sum of Cash Royalty Guarantee for the Additional License
Year and $ * .
iv. if such Missed Games amount to * percent ( * %) or more of the
scheduled NHL regular season for the Work Stoppage License Year,
the League Marketing Commitment and the Team Marketing Commitment
for the Work Stoppage License Year shall each be reduced pro
rata, I.E., by an amount equal to such League Marketing
Commitment or Team Marketing Commitment, as applicable,
multiplied by a fraction, the numerator of which shall be the
number of Missed Games, and the denominator of which shall be the
total number of NHL regular season games originally scheduled for
the Work Stoppage License Year. For clarity, neither the League
Marketing Commitment, nor the Team Marketing Commitment nor the
team marketing assets to be delivered as consideration therefor,
shall be reduced if Missed Games amount to less than * percent
(* %) of the scheduled NHL regular season for the Work Stoppage
License Year. For purposes of illustration, if there occur 246
Missed Games during the 2004-2005 NHL season (and the total
number of scheduled regular season games for such season is
1230), then the aggregate Team Marketing Commitment for such
License Year would be: $ * - ($ * x 246/1230) = $ *. The League
Marketing Commitment for such License Year would be: $ * - ($ * x
246/1230) = $ * ; and
Xx. Xxxxxxx X. X'Xxxxx 23 March 28, 2003
v. if such Missed Games amount to more than * percent ( * %) of the
scheduled NHL regular season for the Work Stoppage License Year,
NHLE will prohibit the introduction of NHL team uniform changes
for the following NHL season, unless NHLE and THC agree
otherwise.
c. For clarity, the provisions of Paragraphs B.17.a and B.17.b shall
operate to reduce only those obligations of THC which are set forth
therein and only for the License Year indicated therein, and shall not
affect any other obligations of THC for such License Year or any
obligations of THC for any other License Year.
d. Notwithstanding the foregoing, if there occur in the Work Stoppage
License Year Missed Games amounting to an extensive portion of the
scheduled NHL regular season for the Work Stoppage License Year, THC
and NHLE will discuss in good faith whether and to what extent the
requirements for deliveries of Products to the NHL teams in accordance
with EXHIBIT G attached hereto should be reduced for the License Year
following the Work Stoppage License Year; PROVIDED, HOWEVER, that if
the NHL teams do not hold training camp in the Work Stoppage License
Year, and there occur Missed Games amounting to * percent ( * %) of
the scheduled NHL regular season for the Work Stoppage License Year,
and if THC has met its obligations to deliver Product to the NHL teams
for the Work Stoppage License Year in accordance with EXHIBIT G, THC
shall not be obligated to deliver such Products for the License Year
following the Work Stoppage License Year.
18. JOFA PRODUCTS. NHLE hereby grants to THC certain rights to manufacture, sell
and market Jofa hockey equipment using certain NHL trademarks and/or indicia, as
set forth on EXHIBIT L attached hereto.
19. [Intentionally omitted.]
20. CONFIDENTIALITY. Due to the confidential nature of this transaction, no
party will make any announcement or disclosure regarding this transaction
Xx. Xxxxxxx X. X'Xxxxx 24 March 28, 2003
(including without limitation the details of the negotiations and the terms of
the transaction and any details in connection with or associated with its
implementation) without the prior written consent of the other, unless and
except as required by applicable law. The foregoing restriction will not apply
to any information that (i) was or since the time of disclosure has become part
of the public domain through no act or failure by the recipient party, (ii) was
already in the possession of any receiving party when initially disclosed, (iii)
is or was received from a third party before or after the time of disclosure (so
long as such information was not disclosed by such third party in violation of
any confidentiality agreement of which the receiving party had knowledge), or
(iv) may be required to be disclosed by law or legal process. Notwithstanding
the foregoing, the parties agree that NHLE may disclose the terms of this
transaction to the NHL and to the NHL teams.
21. [Intentionally omitted.]
22. MISCELLANEOUS.
a. To the extent that any conflict exists between the terms of this
Agreement and the Standard Terms and Conditions, the terms of this
Agreement shall govern.
b. This Agreement shall be governed by the internal laws of the State of
New York, and the United States District Court for the Southern
District of New York and the state courts of New York in the county of
Manhattan shall have exclusive jurisdiction over any issues arising
out of or relating to this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Xx. Xxxxxxx X. X'Xxxxx 25 March 28, 2003
If the foregoing accurately sets forth our agreement and understanding, please
so indicate by signing and dating, and returning to us a copy of this Agreement
prior to 5:00 P.M. on March 31, 2003, at which time if not fully executed this
Agreement shall expire and be of no effect.
Sincerely yours,
NHL ENTERPRISES, L.P. NHL ENTERPRISES B.V.
By: NHL Enterprises, Inc., its general partner By: NHL Enterprises, Inc., its Managing Director
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Group Vice President, Title: Group Vice President,
Consumer Products Marketing Consumer Products Marketing
NHL ENTERPRISES CANADA, L.P.
By: National Hockey League Enterprises
Canada, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Group Vice President,
Consumer Products Marketing
AGREED AND ACCEPTED
this 28th day of March, 2003:
SPORT MASKA INC. MASKA U.S., INC.
By: /s/ Xxxxxxx X. X'Xxxxx By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. X'Xxxxx Name: Xxxxxxx X. X'Xxxxx
Title: President and Title: President and
Chief Executive Officer Chief Executive Officer
Xx. Xxxxxxx X. X'Xxxxx 26 March 28, 2003
JOFA AB KHF FINLAND OY
By: /s/ Xxxxxxx X. X'Xxxxx By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. X'Xxxxx Name: Xxxxxxx X. X'Xxxxx
Title: Authorized Signatory Title: Authorized Signatory
THE HOCKEY COMPANY THE HOCKEY COMPANY HOLDINGS, INC.
By: /s/ Xxxxxxx X. X'Xxxxx By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. X'Xxxxx Name: Xxxxxxx X. X'Xxxxx
Title: President and Title: President and
Chief Executive Officer Chief Executive Officer
