Exhibit 10.43
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AGREEMENT FOR ASSIGNMENT AND SALE OF TRADEMARKS
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THIS AGREEMENT FOR ASSIGNMENT AND SALE OF TRADEMARKS (hereafter
"Agreement") is made and entered into this 25th day of November, 1999, by and
between CONVERSE INC., a corporation duly organized and existing under the laws
of the State of Delaware, U.S.A. and having its principal office at One Fordham
Road, North Reading, Massachusetts 01864, U.S.A. (hereafter "Converse"), and
ITOCHU Corporation, a corporation duly organized and existing under the laws of
Japan, having its registered office at 1-3, Kyutaro-machi-4-chome, Chuo-ku,
Osaka 541-8577, Japan (hereafter "Itochu").
WITNESSETH:
A. WHEREAS, Converse has created, developed, adopted and used, by itself
or through its licensees or distributors, certain trademarks for identifying,
advertising, manufacturing, marketing, distributing and selling certain products
and commodities in the Territory (hereinafter defined at Section 1.2) and other
countries in the world;
B. WHEREAS, Converse wishes to assign and sell to Itochu, and Itochu
wishes to acquire from Converse, Converse's entire rights, title, and interest
in the Trademarks (hereinafter defined at Section 1.1) concerned with all the
Products (hereinafter defined at Section 1.3), and Converse's entire Trademarks
Interest (hereinafter defined at Section 1.7) concerned with the Products in the
Territory together with the goodwill of the business of the Trademarks solely in
connection with the Products; and,
C. WHEREAS, Converse wishes to assign and sell to Itochu and Itochu
wishes to acquire from Converse certain License Agreements (hereinafter defined
at Section 1.8) whereby Converse grants to its licensees in the Territory the
right to use certain Trademarks.
NOW THEREFORE, in consideration of the promises and the mutual covenants
herein set forth, and of other good and valuable consideration, the receipt of
which is hereby acknowledged, it is mutually agreed as follows:
Section 1. Definitions. For the purposes of this Agreement, the following
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terms shall have the meanings set forth below:
1.1. "Trademarks" means those trademarks and logos described and
represented in Exhibit A (trademarks registered to Converse, and trademarks
developed by Converse and for which an application of registration has been
filed), and Exhibit B (marks and designs developed by Converse that are neither
registered nor has an application been filed for registration as a trademark,
but that are eligible for registration at the Japanese Trademark Office in the
Territory), attached hereto, currently owned by Converse.
1.2 "Territory" means the geographical area of Japan.
1.3 "Products" means all products and commodities, except footwear and
special sports/gymnastic footwear covered by International Class 25 and the
corresponding former Japanese Classes 22 and 24 according to the Japanese
Trademark Law.
1.4 "Closing Date" means November 26, 1999, or such other date as may be
determined by written agreement between the parties hereto.
1.5 "Closing" means the execution and exchange of all documents and the
performance and consummation of all obligations required to be executed,
exchanged, performed or consummated on the Closing Date in accordance with the
terms and conditions of this Agreement.
1.6 "Footwear Trademarks" means Trademarks in the Territory related to
footwear and special sports/gymnastic footwear covered by International Class 25
and in the corresponding former Japanese Classes 22 and 24 according to the
Japanese Trademark Law.
1.7 "Trademarks Interest" means Converse's entire right, title and
interest, as of the date of this Agreement, in and to the Trademarks concerned
with the Products in the Territory, whether registered or not, or applied for
registration or not, and shall include, but shall not be limited to, (i)
Converse's right to acquire a trademark right with respect to the marks and
logos described and represented in Exhibit B hereto which are concerned with any
of the Products and are eligible for registration at the Japanese Trademark
Office in the Territory; (ii) the rights and benefits accruing from or otherwise
arising out of the use of any of the Trademarks in conjunction with the
marketing of the Products in the Territory; (iii) the benefits of registration
of and applications for registration of the Trademarks now or hereafter made in
the Territory (including the benefits of applications for and registration of
the marks and logos described and represented in Exhibit B); (iv) the goodwill
of the business concerned with the Products for which the Trademarks are used in
the Territory; and, (v) in so far as it is lawful to assign and sell the same,
the right of Converse with respect to the Products to sue for all past acts of
infringement or passing-off in the Territory and to retain all damages and costs
awarded.
1.8 "License Agreements" means any and all agreements or contracts entered
into by Converse, listed in Exhibit C hereto, by which the Trademarks have been
licensed or otherwise allowed to be used with the Products in the Territory, and
"License Agreement" means each of such License Agreements.
Section 2. Assignment and Sale of Trademarks Interest and License Agreement
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2.1. Assignment and Sale of Trademarks Interest. Subject to and upon the
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terms and conditions herein set forth, Converse hereby agrees to assign and sell
to Itochu, and Itochu hereby acquires from Converse, Converse's Trademarks
Interest effective as of the Closing.
2.2 Assignment and Sale of License Agreements. Subject to and upon the
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terms and conditions herein set forth, Converse hereby agrees to assign and sell
to Itochu, and Itochu hereby agrees to acquire from Converse, Converse's entire
interest in all License Agreements regarding the Trademarks concerning the
Products in the Territory, including, but not limited to, the right to all
license fees and other amounts payable under the License Agreements on and after
the Closing Date except as set forth in Section 4.4.2.
2.3 Transfer of Trademarks Interest and License Agreements to Itochu.
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Transfer of the ownership of the Trademarks Interest and the assignment and sale
of the License Agreements (in accordance with Sections 2.1 and 2.2, above, and
with such modifications as set out in Section 3.5 below) from Converse to Itochu
hereunder shall become effective as of the Closing. Converse shall not retain
after the Closing any power, right or interest with respect to the Trademarks
Interest or License Agreements assigned and sold pursuant to Sections 2.1 and
2.2, above. Converse shall retain, however, its interests and rights in the
Footwear Trademarks and license agreements concerning the Footwear Trademarks
other than the License Agreements concerning Footwear Trademarks.
2.4 Purchase Price. Itochu will pay to Converse for the assignment and sale
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of the Trademarks Interest and the License Agreements the sum of Twenty-Five
Million United States Dollars (US$25,000,000.00) (hereafter "Purchase Price").
Section 3. Conditions of Assignment and Sale. All obligations of Itochu and
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of Converse to consummate the transactions contemplated herein are subject to
the fulfillment, to the satisfaction of Itochu, of each of the following
conditions:
3.1 Approval of the Board of Directors. Converse shall have obtained
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approval of the Converse's Board of Directors of this Agreement in the form
attached hereto as Exhibit D;
3.2 Release of Collateral. Converse shall have obtained complete and
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unconditional letters of release for each of the Trademarks and License
Agreements from any security agreement or similar document, including, but not
limited to, any agreement with BT Commercial Corporation, in the form attached
hereto as Exhibit E, that prevents or may prevent Itochu's full ownership of the
Trademarks or assignment of the License Agreements;
3.3 Approval from Zett Create Corporation. Converse shall have obtained the
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written consent of Zett Create Corporation and its parent company Zett
Corporation for the assignment of the License Agreements under this Agreement in
the form attached hereto as Exhibits F and G, respectively.
3.4 Application Documents for Trademark Assignments. Converse shall have
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executed trademark assignments and consents in a form as attached hereto as
Exhibits L, M, N, O, P and Q, as applicable, and shall deliver the same to
Itochu in order to register the assignment of the Trademarks in Japan.
Section 4. Closing and Post-Closing Activities.
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4.1 Time and Place of Closing. The Closing will be held at 7:30 am., Tokyo
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time at the Law Offices of Yanagida & Nomura in Tokyo, Japan on the Closing
Date.
4.2 Actions by Converse. At the Closing, Converse shall deliver each of the
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following documents to Itochu:
4.2.1 A certified copy of the resolution by Converse's Board of
Directors approving each and every term of this Agreement in the form attached
hereto as Exhibit D;
4.2.2 Complete and unconditional letters of release for each of the
Trademarks and License Agreements from any security agreement or similar
document, including, but not limited to, any agreement with BT Commercial
Corporation, in the form attached hereto as Exhibit E, that prevents or may
prevent Itochu's full ownership of the Trademarks;
4.2.3 Written consent from Zett Create Corporation and its parent
company Zett Corporation for the assignment and sale of the Trademarks and
License Agreement under this Agreement in the form attached hereto as Exhibits F
and G, respectively;
4.2.4 An executed letter to each of the licensees under the License
Agreements stating that Itochu has been assigned all rights, title and interest
of Converse in and to the License Agreements, that payment of all license fees,
marketing supplement fees and any other amounts due and payable under the
License Agreements from December 1, 1999, shall be paid to Itochu, and
providing instructions for payment to Itochu, in the form attached hereto as
Exhibit K;
4.2.5 Executed assignments and consents for each of the Trademarks in
a form as attached hereto as Exhibits L, M, N, O, P and Q, as applicable, in
order to register the assignment of the Trademarks in Japan; and,
4.2.6 An executed "Closing Certificate" in the form attached hereto as
Exhibit S.
4.3 Actions by Itochu. Subject to the full satisfaction of the conditions
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to the Closing set forth in Section 3 and the preceding paragraphs of this
Section, Itochu shall pay to Converse at the Closing Twenty Four Million Six
Hundred Fifteen Thousand Five Hundred and Forty Nine United States Dollars and
Fifty-eight cents (US$24,615,549.58) which is the amount of the Purchase Price
less Three-Hundred Eighty Four Thousand Four Hundred Fifty United States Dollars
and Forty-two cents (US$384,450.42) calculated under Section 4.4.1 herein. Said
payment shall be made by wire transfer to Account Number 00196074 at Banker's
Trust, New York, New York, U.S.A. for the account of Converse Inc. ABA Routing
Number 021001033, unless the parties hereto mutually agree in writing to other
terms of payment.
4.4 Settlement of License Fees under Licensing Agreements.
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4.4.1 Guaranteed Minimum Annual License Fee and Marketing Supplemental
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Fee. Converse acknowledges that it has received certain Guaranteed Minimum
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Annual License Fees and Marketing Supplement Fees as advanced payments for
license fees from the licensees as provided for in the License Agreements
(hereafter collectively "Advance Payments"). Converse further acknowledges that
a portion of the Advance Payments after November 30, 1999, calculated to be Four
hundred and Four Thousand Six Hundred Eighty Four United States Dollars and
Sixty-five cents (US$404,684.65), are owing to Itochu, less the amount of Twenty
Thousand Two Hundred Thirty Four United States Dollars and Twenty-three cents
(US$20,234.23) representing fifty-percent (50%) of the Japanese withholding tax
already paid by Converse. Therefore, the parties hereto agree that Itochu shall
offset, on the Closing Date, Three-Hundred Eighty Four Thousand Four Hundred
Fifty United States Dollars and Forty-two cents (US$384,450.42) owing to Itochu
against the amount owing under Section 2.4 of this Agreement.
4.4.2 License Fees. If after the Closing Date Itochu actually
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receives any license fees or Marketing Supplement Fees under a particular
License Agreement in respect to a period prior to November 30, 1999, Itochu
shall pay to Converse, net of applicable withholding tax, the sum equal to such
license fees based on net sales reported by the licensees from the period of the
commencement date of such License Agreement to November 30, 1999, and such
Marketing Supplement Fees prorated on a daily basis from the period of the
commencement date of such License Agreement to November 30, 1999. Such payments
are due to Converse no later than fourteen (14) days from their actual receipt
by Itochu. In addition, Itochu shall forward a tax withholding certificate for
any license fees and Marketing Supplement Fees paid to Converse pursuant to the
preceding sentence.
4.5 Post-Closing Actions by Converse. Within thirty (30) days of the
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Closing Date, Converse shall deliver each of the following documents to Itochu:
4.5.1 Written consent of Moonstar Corporation (hereafter "Moonstar"),
for the assignment and sale by Converse to Itochu of the Japanese trademarks co-
owned by Converse in the form attached hereto as Exhibit H;
4.5.2 Written consent of Moonstar for Itochu to grant license to any
third party the use of trademarks co-owned by Itochu and Moonstar after the
assignment and sale of such co-owned trademarks from Converse to Itochu, in the
form attached hereto as Exhibit I; and,
4.5.3 Written commitment from Gunze Limited (hereafter "Gunze") in
which Gunze waives its right to use the "GRANDMAMA" trademark under the
Trademark License Agreement dated December 1, 1994 between Gunze and Converse,
and acknowledges Itochu's right to collect any and all license fees from the
Closing Date, in the form attached hereto as Exhibit J.
Section 5. Power of Attorney. Converse hereby makes, constitutes and
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appoints Itochu, its successors and assigns as Converse's true and lawful
attorney-in-fact, with full power of substitution and revocation, in Converse's
name and stead but on behalf and for the benefit of Itochu: (i) to assert or
enforce any claim, claim title or right hereby assigned and sold against
infringers or otherwise;(ii) from time to time to institute, prosecute, appear
in, defend and appeal any and all actions, suits and proceedings at law, in
equity or otherwise, which Itochu may reasonably deem proper in order to
enforce the Trademarks Interest; and (iii) to do all acts and things in
relation to the Trademarks Interest which Itochu may reasonably deem desirable
to protect and enforce the Trademark Interest against third parties. Converse
hereby declares that the foregoing powers are coupled with an interest and
shall not be revocable by Converse in any manner or for any reason, known or
unknown on the Closing Date.
Section 6. Representations and Warranties. Converse hereby represents and
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warrants to Itochu, and its successors and assigns as follows:
6.1 Due Incorporation and Good Standing. Converse is a company duly
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incorporated, organized, validly existing and in good standing under the laws
of the
State of Delaware and has not, and does not intend to, (i) made a general
assignment to creditors, (ii) filed any voluntary petition of bankruptcy or
suffered the filing of any involuntary petition by creditors, (iii) suffered the
appointment of a receiver to take possession of all or substantially all of its
assets, (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of its assets, (v) admitted in writing its inability to pay
its debts as they become due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.
6.2 Authority. All acts and conditions required by law on the part of
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Converse to authorize the execution and delivery of this Agreement by Converse
and the transaction contemplated herein and the performance of all obligations
of Converse hereunder have been duly performed and obtained. No registration
with, or consent or approval of, or notice to, or other action by, any trustee
or holder of any indebtedness or obligation of Converse or any governmental
authority on the part of Converse to the execution, delivery and performance of
this Agreement or the assignment hereunder is required, or if required, such
registration has been made, such consent or approval given, such notice given or
such other appropriate action taken and certified copies of such have been
delivered to Itochu.
6.3 Enforceability. This Agreement constitutes, and each document referred
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to in Section 4 above, when executed and delivered by Converse shall constitute,
a valid and legally binding obligation of Converse, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and other
similar laws affecting the rights and remedies of the creditors generally.
6.4 Capacity. Converse has the legal power, right and authority to execute
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and deliver this Agreement and the instruments referenced herein. The persons
executing this Agreement and the instruments referenced herein on behalf of
Converse have the legal power, right and actual authority to bind Converse to
the terms and conditions of this Agreement.
6.5 Legal Conflict. The execution, delivery and performance of this
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Agreement and the consummation of the transactions contemplated hereby will not
result in any violation or default of any provision of any instrument, judgment,
order, writ, decree or contract to which Converse is a party or by which
Converse is bound, or require any consent under or be in conflict with or
constitute, with or without the passage of time and giving notice, either a
violation or default under any such provision.
6.6 Conduct of Business. On and after the date of this Agreement and until
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the Closing Date, Converse shall conduct its business in the ordinary course of
business consistent with past practice and shall not sell, transfer or otherwise
dispose of any of the Trademarks or the License Agreements.
6.7 No Pending Disputes. Except for an opposition filed by Mizuno
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Corporation for Registration No. 4274297, Converse All Star, there is no action,
suit, proceeding, or investigation pending or to the best knowledge of Converse,
threatened against or affecting Converse which questions the validity of this
Agreement, the validity of any of the Trademarks or License Agreements, or the
right of Converse to enter into this Agreement or to consummate the transactions
contemplated hereby.
6.8 Trademarks. Collectively, Exhibits A and B attached hereto create a
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comprehensive list of all registered and non-registered trademarks owned by
Converse, as well as those marks and designs developed by Converse, that are
neither registered nor has an application been filed for registration as a
trademark but that are eligible for registration at the Japanese Trademark
Office in the Territory, for the Products in the Territory.
6.9 License Agreements
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6.9.1 Exhibit C attached hereto is a comprehensive list of all License
Agreements and no other license agreement exists which grants the use of the
Trademarks, except those for the use of the Footwear Trademarks, owned by
Converse.
6.9.2 Each License Agreement is valid, effective and enforceable in
accordance with its terms.
6.9.3 There is no breach of contract, action, suit, proceeding, or
investigation pending or threatened against or affecting Converse under the
License Agreements.
6.9.4 Each License Agreement, except for that between Converse and
Zett Create Corporation and its parent company Zett Corporation, is assignable
without any consent of the licensee to such License Agreement.
6.10 Ownership of Trademarks; Encumbrances. Converse has valid, sole and
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undivided title to and in all and each item of the Trademarks concerned with the
Products in the Territory to be assigned and sold by Converse to Itochu under
this Agreement, free and clear of any lien, pledge, security interest,
encumbrance or other restriction of any kind or character and, upon the
assignment and sale of the Trademarks Interest as provided in this Agreement,
except those trademarks co-owned with Moonstar listed in Exhibit H. Itochu will
acquire valid, sole and undivided title thereto and therein, free and clear of
any lien, pledge security interest, encumbrance or restriction of any kind or
character. On and after the assignment and sale of the Trademarks Interest
pursuant to Section 2 above, Itochu is the sole owner of the Trademarks Interest
with its sole, exclusive, free and complete right to use, affix, assign,
license, advertise and apply for the registration of, the Trademarks concerned
with the Products in whatever form, color or design or arrangement thereof which
Itochu deems appropriate or necessary with respect to the Products.
6.10.1 Trademark License Agreement with Gunze. With regard to the
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Trademark License Agreement dated December 1, 1994, between Converse and Gunze
Limited, involving the "GRANDMAMA" trademark, Converse hereby represents and
warrants that Itochu will not be liable for any payments to Larry Johnson's
Agent under section 5.1(a) of the Trademark License Agreement or any of its
amendments. Any payments now owing or owing in the future to Larry Johnson's
Agent are and will remain the sole responsibility of Converse.
6.11 Registration and Renewal Fees Each of the registrations and
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applications for registration of the Trademarks, when applicable, is in full
force and effect and is not subject to any pending current or notified
cancellation or opposition proceedings (except for Registration No. 4274297,
Converse All Star), and Converse has paid in full all fees necessary to maintain
validity of such registrations or applications for registration that come due
prior to the Closing Date.
6.12 No Infringement. The use of the Trademarks concerned with the
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Products in the Territory for identifying, advertising, manufacturing, selling
or distributing the Products in the Territory, whether registered or not, does
not and will not directly or indirectly violate or infringe upon any trademark
rights or other proprietary or intellectual property right of any third party.
6.13 Information. Converse has fully provided Itochu with all the
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information in Converse's possession that Itochu has requested, in determining
whether to acquire the Trademarks, Trademarks Interest, and License Agreements
and has not failed to disclose to Itochu any condition concerning the Products
in the Territory which has become known to Converse and which does or could
materially affect such Trademarks or their use thereof in the Territory.
6.14 Accuracy of Representations and Warranties. All of Converses
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representations and warranties in this Agreement shall have been accurate in all
material respects as of the date of this Agreement, and shall be accurate in all
material aspects as of the Closing Date as if made on the Closing Date.
Section 7. Covenants of Converse. Converse hereby covenants with Itochu, its
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assigns and successors as follows:
7.1 Information. In addition to the documents delivered to Itochu pursuant
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to Section 4 above, Converse shall promptly upon reasonable notice of Itochu
from time to time provide Itochu with all information, documents and cooperation
necessary to enable Itochu, its nominees or patent attorneys to prepare and file
(within the respective time periods required by the applicable authorities in
the Territory for registration of trademark assignment) applications for (i)
registration of assignment of the Trademarks Interest with competent
offices in the Territory and for (ii) registration of Trademarks which are not
yet registered at the Closing. Itochu shall bear the costs of preparation of
such documents as it requires and of such registration of assignment (which
shall not include attorney's fees for the attorney which Converse may retain in
connection with the above subjects). Such documents shall include, but are not
limited to, consent letters, powers of attorney and certificates of nationality
in such forms and contents as required by the applicable authorities in the
Territory. The consideration for Converse's cooperation pursuant to the
foregoing shall be deemed included in the Purchase Price, and Itochu shall not
be obligated to pay any additional consideration for Converse's cooperation
except for the aforementioned costs which Itochu shall bear under this Section.
7.2 Further Acts. Converse shall assist Itochu in any reasonable manner to
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obtain for its own benefit the Trademarks concerned with the Products in the
Territory, and Converse shall promptly upon request of Itochu execute, deliver,
notarize, file and register applications and assignments (including, without
limitation and where applicable, trademark assignments) thereof to Itochu,
consents to registration and any other lawful documents deemed necessary by
Itochu to preserve or protect the Trademarks Interest assigned and sold to it
hereunder or otherwise carry out the purposes of this Agreement, and Converse
shall further assist Itochu in every way to enforce the Trademarks Interest
assigned to and sold Itochu hereunder, including, without limitation, testifying
in any suit or proceeding involving any Trademarks Interest or executing any
documents deemed necessary by Itochu, all without consideration, but at the
expense of Itochu (which shall not include attorney's fees for the attorney
which Converse may retain in connection with the above subjects).
7.2.1 Future Registration of Trademarks. Converse acknowledges that
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its duties under Section 7.2 include that, in case the Japanese Patent Office
rejects the application by Itochu of trademarks listed in Exhibit B, Converse
will apply for registration of such trademarks under Converse's name, but for
the exclusive benefit of Itochu. After the application for registration of such
trademarks Converse will immediately assign such registered trademarks to Itochu
in a form attached hereto as Exhibit R. Consideration for any action by Converse
under this Section is deemed to be included in the Purchase Price, however,
Itochu shall reimburse Converse for any expenses incurred by Converse (which
shall not include attorney's fees for the attorney which Converse may retain in
connection with the above subjects).
7.3 Approval from Moonstar
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7.3.1 Converse shall have obtained and delivered to Itochu within
thirty (30) days of the Closing Date written consent of Moonstar, in the form
attached hereto as Exhibit H, for the assignment and sale by Converse to Itochu
of the Japanese trademarks co-owned by Converse.
7.3.2 Converse shall have obtained and delivered to Itochu within
thirty (30) days of the Closing Date written consent of Moonstar for Itochu to
grant license to any third party the use of trademarks co-owned by Itochu and
Moonstar after the assignment and sale of such co-owned trademarks from Converse
to Itochu, in the form attached hereto as Exhibit I.
7.4 Letter from Gunze. Converse shall have obtained and delivered to Itochu
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within thirty (30) days of the Closing Date the written commitment from Gunze in
which Gunze waives its right to use the "GRANDMAMA" trademark under the
Trademark License Agreement dated December 1, 1994 between Gunze and Converse,
and acknowledges Itochu's right to collect any and all license fees from the
Closing Date, in the form attached hereto as Exhibit J.
7.5 Indemnity. Converse shall indemnify and hold harmless Itochu, and any
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of its successors and assigns from and against any and all claims, demands,
causes of action, losses, liabilities, judgments, damages, obligations, costs or
expenses, including attorneys fees, arising out of or in connection with (i) any
breach of any covenant or agreement of Converse contained in this Agreement;
and, (ii) any misrepresentation of Converse or any breach of warranties or
representations of Converse contained in this Agreement, including, without
limitation, the obligations and liabilities for any claims asserted by third
parties against Itochu, its successors and assigns, and their licensees and
distributors based on the allegation that the use of the Trademarks for
identifying, advertising, manufacturing, selling or distributing the Products in
any part of the Territory constitutes an infringement of any trademark or other
proprietary or intellectual property rights of any third party.
Section 8. Taxes.
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8.1 Payment of Taxes Any and all taxes (including withholding tax), duties
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or levies to be imposed by the Japanese tax authority on the payment of the
Purchase Price hereunder, if any, shall be borne and paid by Converse. The
evidence of any payment of the above amount withheld by Itochu, if any, shall be
furnished to Converse.
8.2 Tax Treaty. Itochu and Converse acknowledge that this Agreement is a
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sale for the purposes of Articles 14 and 16 of the United States/Japan Tax
treaty.
Section 9. Notice. All notices, demands and other communications permitted
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or required to be given under this Agreement shall be in writing and shall be
delivered personally or transmitted by confirmed facsimile (in each case
followed by confirmation delivered by registered airmail or express courier) or
send by registered airmail or express courier to the other party, postage and
cost of transmission and delivery prepaid, to the parties at the following
addresses:
If to Converse: CONVERSE INC.
One Fordham Road
North Reading, Massachusetts 01864-2619
U.S.A.
Facsimile No. : 1-978-664-7579
Attention: Jack A. Green, Senior Vice President
Administration, General Counsel and
Secretary
If to Itochu:
ITOCHU Corporation
1-3, Kyutaro-machi 4-chome,
Chuo-ku, Osaka 541-8577
JAPAN
Facsimile No. : 81-6-6244-0845
Attention: Kiyoshi Yamaguchi, Manager Textile
& Fashion Goods Division
Section No.4
With a copy to:
PROMINENT USA INC.
1411 Broadway, 35th Floor
New York, NY 10018
U.S.A.
Facsimile No. : 1-212-827-5711
Attention: Richard Tretler
Senior Vice President Finance
Treasurer
If either Converse or Itochu changes its address, as aforesaid, written
notice of such change shall be given to the other party and any such change
shall, by this reference, be adopted into this section and become part of this
Agreement.
Section 10. Miscellaneous
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10.1. Binding Effect; Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties and their respective successors,
representatives, and assigns. Neither party hereto shall assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party.
10.2. Best Efforts. Each of the parties hereto will use its best efforts
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to take, or cause to be taken, all appropriate action to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated in
this Agreement. The parties shall provide to
each other the necessary information to effect the transactions contemplated in
this Agreement as soon as reasonably practicable. In case at any time after the
Closing any further action is necessary to carry out the purposes of this
Agreement, each party to this Agreement shall take such necessary action.
10.3 Waivers. No waiver of any breach of any agreement or provision herein
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contained shall be deemed a waiver of any preceding or succeeding breach thereof
or of any other agreement or provision herein contained.
10.4 Severability. If any term or provision of this Agreement or the
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application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Agreement and the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby, and each term or
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
10.5 Survival. The representations and warranties of Converse made herein,
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and all obligations of Converse and Itochu under this Agreement the full
performance of which is not required prior to the Closing Date, shall each
survive the date of this Agreement and the Closing Date, and shall be fully
enforceable thereafter in accordance with their respective terms.
10.6 Governing Law. This Agreement shall be governed by, and construed with
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the laws of Japan.
10.7 Arbitration and Venue. All disputes, controversies or claims arising
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out, in relations to or in connection with this Agreement, or for any breach
thereof, shall be finally settled by arbitration in Osaka, Japan in accordance
with the Arbitration Rules of the International Chamber of Commerce. Arbitration
shall be conducted in English language. Any award or decision rendered shall be
final and binding upon both of the parties, their successors and assigns.
10.7.1 Equitable Relief. Notwithstanding the preceding terms of this
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paragraph, both parties shall maintain the right to seek equitable relief at its
discretion, e.g. temporary restraining orders, preliminary injunctions, etc.,
for all disputes, controversies or claims arising out, in relations to or in
connection with this Agreement, or for any breach thereof, in a competent court
having jurisdiction.
10.8 Attorney's Fees. Should any party institute any action or proceeding
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to enforce this Agreement or any provision hereof, or for any declaration of
rights hereunder, the prevailing party in such action or proceeding shall be
entitled to receive from the other party all costs and expenses, including,
without limitation, attorneys' fees and expenses and all other litigation costs
and expenses, interest, penalties and all
expenses and costs, incurred by the prevailing party in connection with such
action or proceeding.
10.9 Headings. Headings contained in this Agreement are solely for
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convenience and shall not be used to define or construe any of the provisions
hereof.
10.10 Exhibits. Each of the exhibits referred to in and attached to this
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Agreement is fully incorporated herein by reference.
10.11 Modifications and Amendments. This Agreement may not be modified,
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changed or supplemented, nor may any obligations hereunder be waived or
extensions of time for performance granted, except by written instrument signed
by the party to be charged.
10.12 Entire Agreement. This Agreement constitutes the entire agreement
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between Converse and Itochu with respect to the subject matter hereof and
supercedes any and all prior discussions, promises, covenants, agreements, and
commitments, oral or written, made and entered into between Converse and Itochu.
10.13 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument.
10.14 Execution Required. This Agreement shall not be binding upon the
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party against whom enforcement is sought until such party duly executes this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
CONVERSE INC.
By:____________________________
Laura W Kelley
Deputy General Counsel and
Assistant Secretary
ITOCHU CORPORATION
By:____________________________
Kiyoshi Yamaguchi
Manager
Import Textile & Fashion Goods Division
Section No. 4