EXHIBIT 10.3
Confidential treatment has been requested for portions of this Exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as (******). A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
----------
TRADEMARK LICENSE AGREEMENT
BETWEEN
TOMMY BAHAMA GROUP, INC.
AND
PHOENIX DELAWARE ACQUISITION, INC.
----------
INDEX
Section 1. Definitions
Section 2. Grant of License
SECTION 3. Sale of Licensed Products
Section 4. Approval of Licensed Products
Section 5. Licensor's Use of Licensed Product
Section 6. Minimum Net Sales
Section 7. Guaranteed Royalty & Earned Royalty
Section 8. Sales & Royalty Reports
Section 9. National Advertising & Marketing Support
Section 10. Advertising, Marketing, Promotions & Packaging Approval
Section 11. Media Approval
Section 12. Duration of Approvals
Section 13. Tommy Bahama Marks
Section 14. Confidential & Proprietary Information
Section 15. Payments
Section 16. Notices & Other Communications
Section 17. Records & Inspection
Section 18. Manufacturing, Compliance & Code of Conduct
Section 19. Assignment, Changes of Control
Section 20. Termination
Section 21. Indemnity & Disclaimer
Section 22. Insurance & Loss
Section 23. Joint Venture
Section 24. Force Majeure
Section 25. Choice of Law & Forum
Section 26. Compliance With Laws
Section 27. Waiver
Section 28. Validity
Section 29. Entire Agreement
Section 30. Reservation of Rights
Section 31. Exhibits
Section 32. Survival
Section 33. Interpretation
EXHIBITS
A. Authorized Licensed Trademarks
B. Authorized Licensed Products And Territories
C. Contract Term
D. Sales of Licensed Products to TB Retail Stores
E. Minimum Net Sales
F. Guaranteed Royalty
G. Earned Royalty
H. Branded Marketing Materials
I. Approved Additional Licensors, Brands and Logos of Licensee
J. Approved Retailers
K. Quarterly Royalty Statements
L. Statement of Estimated Monthly Net Sales
M. Advertising Policy
N. Notice to Third Parties
O. Supplier Agreement and Certification
LICENSE AGREEMENT
This License Agreement ("Agreement") made and entered into this 3rd
day of August, 2005 ("Effective Date"), by and between the Tommy Bahama Group,
Inc., with its principal place of business at 1071 Avenue of the Americas, 11th
Floor, New York, New York 10018 ("Licensor"), and Phoenix Delaware Acquisition,
Inc., a Delaware corporation with its principal place of business at 5759 Fleet
Street, Suite 220, Carlsbad, California 92008 ("Licensee").
RECITALS
A. Licensor is the owner of the well-known TOMMY BAHAMA(R) trademark
and related intellectual-property rights which prior to the date hereof it
licensed to Paradise Shoe Company LLC ("Paradise") for the manufacture,
advertising, promotion, sale, offering for sale, and distribution of Licensed
Products (defined below) and related promotional and packaging which constituted
Paradise's sole business.
B. Concurrently herewith Paradise, Paradise' members and Licensee have
executed and delivered to one another an Asset Purchase Agreement pursuant to
which Licensee has purchased from Paradise all of Paradise's assets and
business. Licensor is a 50% member of Paradise and is receiving a portion of the
proceeds from such sale.
C. Pursuant to and as contemplated by the Asset Purchase Agreement,
concurrently herewith, Licensor and Paradise have terminated the license
agreement between them with respect to the TOMMY BAHAMA(R) trademark and related
intellectual-property rights and Licensor and Licensee have executed and
delivered this Agreement so that Licensee shall have the right to use the
trademark TOMMY BAHAMA, and other trademarks and service marks attached to this
Agreement as "Exhibit A" and related rights pertaining to each of them (the
"TOMMY BAHAMA Marks"), within the Territory (as defined in "Exhibit B") on the
terms and conditions herein.
In consideration of the mutual promises and conditions contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1. "Affiliate" shall mean, for any party, its officers, directors,
parents, corporations, subsidiary corporations, partnerships, joint
ventures or other entities (whether incorporated or not) substantially
under the control or direction of the party and with respect to
Licensor only, its shareholders.
1.2. "Close-Outs" shall mean second quality, irregular, out of season or
damaged Licensed Products that remain merchantable, or Licensed
Products which are sold for more than ****** percent (******%)
below the suggested wholesale price.
1.3. "Code of Conduct" shall mean Licensor's written policy governing
issues related to employment, working conditions, the environment and
human dignity and other issues. The Code of Conduct is attached hereto
as "Addendum 1 to Exhibit O" and by this reference incorporated
herein.
1.4. "Competing Event" shall mean any event by which Licensee shall become
a competitor in the Normal Channels of Distribution with an "island
lifestyle" product or category of products included in the Licensed
Products, whether by acquisition, internal development or otherwise.
1.5. "Confidential Information" shall mean secret or proprietary
information of, or data maintained as confidential by either party. It
shall include, without limitation, the terms and conditions of this
Agreement (except to the extent that such terms and conditions must be
disclosed pursuant to U.S. Securities and Exchange Commission
requirements, and if so, the parties will use best efforts to forgo
disclosing sensitive financial information), Licensor Designs,
information concerning products, techniques, developments, product
plans, equipment, inventions, patent applications, ideas, designs,
processes, methods, research, sales, licensing, customers, operations
and work product of Licensor or its Affiliates. Nothing shall be
considered Confidential Information which (i) either party learns from
other sources which have a right to that information free from
confidentiality restrictions; (ii) is available to the public or
readily discernible from information available to the public; (iii)
enters the public domain other than through the actions or inactions
of either party; or (iv) is independently developed by either party
without reference to, or reliance on, the Confidential Information. In
the event any item of Confidential Information is subject to required
disclosure pursuant to any order, judgment, ruling or degree, despite
the terms of this Agreement, the involved party shall immediately
notify the other party, which shall have the right to seek a
protective order or similar relief.
1.6. "Contract Term" shall mean the term of this Agreement, as set forth on
Exhibit C, unless sooner terminated in accordance with the terms of
this Agreement. Any renewal or extension that may be granted in the
future deemed included in the Contract Term.
1.7. "Contract Year" shall mean a period of twelve (12) successive months
commencing on any first day of June during the Contract Term, except
that the first Contract Year shall commence on the Effective Date and
shall continue until May 31, 2007.
1.8. "Designated Agency" shall mean an advertising agency selected by
Licensor for the creation and development of advertising and marketing
themes, concepts and ideas,
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
including, without limitation, creative content for Licensed Product
designs, color combinations and styles relating to the TOMMY BAHAMA
Marks.
1.9. "Design Documentation" shall mean color strike-offs, photographs or
drawings of sample Licensed Products, together with line plans, all
other artwork, specifications, sketches, renderings, samples,
marketing and pricing information, cost analyses and similar materials
relating to the proposed Licensed Products.
1.10. "Design Rights" shall mean any Licensee-developed trademarks, logos,
copyrights, sketches, schematics, technical drawings, or technical
properties that are specifically developed for the Licensed Products
and are incorporated into, or used in connection with, Licensed
Products. Design Rights do not include Licensee-owned trademarks,
technical or design patents, trade-names, service marks or logos
existing as of the Effective Date and used in connection with Licensed
Products in a manner permitted under the terms of this Agreement, nor
do they include trademarks, logos, technical properties or patents
that were developed for parties other than the Licensor but are still
used in connection with the Licensed Products as permitted under the
terms of this Agreement.
1.11. "Distributor" shall mean a party that may reasonably be expected to
sell merchandise of the kind and character of the Licensed Products to
persons or entities other than consumers.
1.12. "Earned Royalty" shall mean, for each Contract Year, the amount of
money Licensee shall pay to Licensor in consideration for the grant of
this license. Such amount is calculated as a percentage of Net Sales,
specified in "Exhibit G."
1.13. "Expiration Date" shall mean the date upon which the Agreement ends
because of the end of the Contract Term.
1.14. "Guaranteed Royalty" shall mean, for each Contract Year, the minimum
royalty payment to be made to Licensor by Licensee, as specified in
"Exhibit F," regardless of actual Net Sales.
1.15. "Licensed Product" shall mean any Product, as specified in "Exhibit
B," for which rights are granted to Licensee under this Agreement, and
bear the TOMMY BAHAMA Marks, or incorporate Licensor Designs or Design
Rights. Regardless of the extent to which a Licensed Product
incorporates any Licensor Design or Design Rights, it shall be a
unique, exclusive design.
1.16. "Licensor Designs" shall mean styles, designs, patterns, color
combinations, design and marketing directions, and seasonal concepts,
supplied by Licensor.
1.17. "Marketing Support" shall mean costs of showroom displays and all
other branded marketing and promotional materials created and
developed by or on behalf of Licensee to be used to promote the
distribution and sale of Licensed Products to the trade.
Notwithstanding the foregoing, Marketing Support does not include
costs associated with in-store seminars.
1.18. "Minimum Net Sales" shall mean, for any Contract Year, the amount of
Net Sales which would produce the applicable Guaranteed Royalty for
such Contract Year as a percentage of such amount.
1.19. "National Advertising" shall mean advertisements, brochures, catalogs
and similar marketing materials published and distributed to
consumers; included in publications intended for consumers; or
broadcast through television, the Internet, radio or other media; that
are designed and intended to promote the sale of Licensed Products,
including point-of-purchase displays for use by retailers and
marketing and promotional pieces provided to retailers for use in
sales promotions to consumers.
1.20. "Net Sales" shall mean the invoiced billing price of all Licensed
Products sold and shipped by Licensee to its customers, excluding only
federal and state taxes, tariffs, freight, returns evidenced by credit
memoranda, normal trade discounts, and sales allowances. For purposes
of determining the Earned Royalty and meeting Minimum Nets Sales,
regardless of how much the foregoing deductions amount to, Licensee
shall not deduct from Net Sales an amount that would exceed ******
percent (******%) of annual gross sales of Licensed Products.
Notwithstanding the previous sentence, if the deduction percentage is
materially skewed by a larger than average return volume by Licensor
of Licensed Products in any given Contract Year, which is outside the
normal course of business, a greater percentage of allowed deductions
will be mutually agreed upon between the parties. No deduction may be
made for early payments, bad debts, advertising allowances or special
promotions of any kind or for costs incurred in manufacture, sales,
advertising or promotion.
1.21. "Prime Rate" shall mean the prime rate of interest charged by
SunTrust Bank, Atlanta, Georgia or any successor institution, as
published in the Wall Street Journal for the applicable period.
1.22. "Monthly Statement" shall mean a combination sales and royalty
statement issued by Licensee to Licensor with respect to each calendar
month during the Contract Term. If the initial or last Monthly
Statement shall be for a period less than a calendar month, it shall
be issued with respect to that shorter period.
1.23. "Regular Price" shall mean Licensed Products sold for the suggested
wholesale price, or for a price which is no more than a ******
percent (******%) discount from the suggested wholesale price.
1.24. A "Sale" shall occur when Licensed Products are invoiced by Licensee
to its customers.
1.25. "Sell-Off Period" shall mean the first six (6) months following the
expiration or termination of this Agreement.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
1.26. "Termination Date" shall mean the date upon which the Agreement ends
due to any other cause except expiration of the Term.
2. GRANT OF LICENSE
2.1. Licensor hereby grants to Licensee a nontransferable, non-assignable
(except as permitted hereby), non-divisible, and exclusive (as limited
by Section 2.2) license, without the right to grant sublicenses, to
use the TOMMY BAHAMA Marks, solely in the Territory and solely on or
in connection with the manufacture, advertising, promotion, sale,
offering for sale, and distribution of Licensed Products and related
promotional and packaging material during the Contract Term of this
Agreement or until this Agreement is sooner terminated as hereinafter
set forth. Notwithstanding the previous sentence, the license shall be
non-exclusive for the last one hundred and twenty (120) days of the
Contract Term for which no extension is available under the terms of
this Agreement. Nothing in the foregoing shall limit the rights of
Licensor or Licensor's Affiliates with respect to the TOMMY BAHAMA
Marks outside of the Territory.
2.2. Notwithstanding Section 2.1, Licensor shall have the right to
manufacture and sell Licensed Products ("Special Make-Up Products")
and other products containing the TOMMY BAHAMA Marks in the Territory,
through stores and websites owned, controlled, or operated by Licensor
("TB Store(s)"). The foregoing is subject to Licensee's first right of
refusal to present a proposal to manufacture and sell Special Make-Up
Products to Licensor. Such proposal must be submitted within twenty
(20) days of request from Licensor, and shall include a general
business plan, manufacturing minimums and pricing. Licensor has five
(5) days to review such proposal and notify Licensee of its decision.
If Licensor elects to source the Special Make-Up Products itself,
Licensor agrees to give Licensee the reasonable right to "match" a
proposal made by another potential manufacturer of the Special Make-Up
Products, and if Licensee matches the proposal, then Licensor shall
purchase the Special Make-Up Products from Licensee, pursuant to the
terms of the matched proposal. The parties acknowledge that the
production of Special Make-Up Products is an activity that is
anticipated to occur on an occasional basis, and not with great
frequency throughout the Term of the Agreement. The parties agree that
all TB Store Licensed Products sold Licensor shall be non-returnable.
For avoidance of doubt, neither the foregoing nor anything else
permits Licensor nor any Licensor Affiliate to manufacture or sell
Licensed Product to Distributors or the wholesale market within the
Territory.
2.3. All Licensed Products shall bear at least one of the TOMMY BAHAMA
Marks and no Licensed Products shall be sold or otherwise distributed
under any marks other than the TOMMY BAHAMA Marks. Licensor reserves
all rights to the TOMMY BAHAMA Marks except as specifically granted
herein to Licensee, and Licensor may exercise such reserved rights at
any time.
2.4. Licensee shall use reasonable efforts to sell and promote the Licensed
Products in the Territory while maintaining the high standard,
quality, image and prestige represented by the TOMMY BAHAMA Marks and
consistent with the channels of distribution specified in "Exhibit J."
2.5. Licensee agrees to exercise reasonable efforts to present the Licensed
Products Territory-wide to the trade in the number of styles or
designs reasonably anticipated under this Agreement.
2.6. The parties acknowledge that it is in their mutual best interest to
maintain inventory and periodically refresh attractive displays of
Licensed Products at each of the TB Stores. The terms and conditions
for sales of Licensed Products to TB Stores are set forth on Exhibit
D.
2.7. Licensee shall also make available to Licensor and its retail accounts
(other than TB Stores), the opportunity to purchase reasonable
quantities of Licensed Products for ultimate retail sale to consumers
and for marketing, promotional, and sales-incentive purposes. Licensee
agrees that such Licensed Products will be made available throughout
the Contract Term and the Sell-Off Period for purchase by Licensor and
its retail accounts at Licensee's lowest then-applicable wholesale
sales price, in accordance with Licensee's standard dealer terms and
conditions, the terms of which shall not be inconsistent with this
Agreement.
2.8. During the Contract Term, Licensee or any Licensee Affiliate may not
engage in any Competing Event without the prior written approval of
Licensor. Attached to this Agreement as "Exhibit I" is a list of
current licensors, brands and logos, of Licensee or its Affiliates;
each of those licensors is deemed approved by Licensor regardless of
any existing Competing Event. During the Contract Term, however,
Licensee shall provide notice, pursuant to the notice provisions in
this Agreement, to Licensor seeking written approval of any proposed
Competing Event. If Licensor should fail to respond, in writing,
within the first fifteen (15) business days after Licensee's notice,
Licensee shall provide a second notice of the proposed Competing
Event, pursuant to the notice provisions in this Agreement. Licensor
shall then have five (5) additional business days to approve or
disapprove, in writing, the potential Competing Event. Failure of the
Licensor to respond to a request for approval under this Section 2.8
within the combined thirty (30) business day period shall be deemed
approval by Licensor of the request. Licensor may require that
Licensee provide Licensor with such additional documentation as shall
be reasonably necessary to facilitate Licensor's analysis of the
proposed Competing Event. Delay by Licensee in providing the
additional documentation shall toll the time for Licensor to respond
to the notice.
2.9. Licensee shall at all times employ one full-time National Sales/Brand
Manager who shall be dedicated to the sale of Type C (specified on
"Exhibit B") Licensed Product. Said National Sales/Brand Manager must
be approved by Licensor and have significant experience in selling
products similar to the Licensed Products. Additionally, Licensee
shall at all times employ at least one full-time Designer/Merchandiser
(plus as many other designers / merchandisers as needed) who is
dedicated to the design and merchandising of Type C Licensed Product.
Said Designer/Merchandiser must be approved by Licensor and have
significant experience in designing and merchandising products similar
to the Licensed Products. Licensee shall at all times employ one
full-time National Sales/Brand Manager who shall be dedicated to the
sale of Type D (specified on "Exhibit B") Licensed Product, and who
has significant experience in
selling products similar to the Licensed Products. Said National
Sales/Brand Manager must be approved by Licensor, which approval may
be granted upon request pursuant to the notice provisions in this
Agreement. In the process of reviewing such a request, Licensee shall
allow Licensor the opportunity to meet with the candidate and review
credentials. If Licensor should fail to respond in writing to a
request for any such approval within the first five (5) business days
after the request is first submitted, Licensee shall provide a second
notice of the request, pursuant to the notice provisions in this
Agreement and Licensor shall have ten (10) additional business days to
approve or disapprove, of the candidate in writing. Additionally,
Licensee shall at all times employ at least one full-time
Designer/Merchandiser (plus as many other designers / merchandisers as
needed) who is dedicated to the design and merchandising of Type D
Licensed Products, and has significant experience in designing and
merchandising products similar to the Licensed Products. Said
Designer/Merchandiser must be approved by Licensor in accordance with
the same request, notice and approval procedures set forth above for
the National Sales / Brand Manager. If at any time Licensee decides to
appoint a "President" (or similar responsibility level) of its "Tommy
Bahama" division (overseeing all of the Licensed Products), such
individual must be approved by Licensor in accordance with the same
request, notice and approval procedures set forth above for the
National Sales / Brand Manager and Designer / Merchandiser.
2.10. Licensor and its Affiliates may, but shall not be obligated to,
supply Licensee with Licensor Designs. Licensee agrees that Licensor
Designs shall be utilized by Licensee only in the production,
advertisement, marketing, promotion, distribution and sale of Licensed
Products. If Licensee shall retain or employ any subcontract
manufacturer other than an Affiliate of Licensee, each such
manufacturer shall be provided with a written notice in the form set
forth in "Exhibit N," notifying that manufacturer that Licensor
Designs may be used only in compliance with the requirements of this
agreement, and that any violation by the manufacturer of these
restrictions shall be grounds for immediate termination of the
manufacturer's services for Licensee relating to Licensed Products, in
addition to Licensor's right to seek damages from each subcontract
manufacturer for the use of Licensor's Designs not in conformance with
the terms of this agreement. Licensee shall monitor the completion of,
and be accountable to Licensor for, the subcontract manufacturers'
notices; copies of each shall be supplied to Licensor within ten (10)
days of its receipt by Licensee.
3. SALE OF LICENSED PRODUCTS
3.1. Licensee agrees that Licensed Products, including Close-outs, shall be
distributed for retail sale only through better specialty stores,
national buying groups, department stores and mail-order catalogs
which are appropriate for the superior reputation, quality-control
standards and public image of the TOMMY BAHAMA Marks ("Normal Channels
of Distribution"). Licensee agrees to distribute Licensed Products,
including Close-Outs, only to those retailers that are listed on
"Exhibit J" and any other customer approved hereafter by Licensor.
Before any order from any other prospective customer is accepted,
including, but not limited to, internet retailers, Licensee shall
submit an Additional Authorized Retailer Request Form (set forth on
Addendum 1 to Exhibit J), to
notify Licensor of the identity of the customer and provide sufficient
information to enable Licensor to determine whether it is acceptable.
Approval or disapproval of additional authorized retailers shall be
determined on a case-by-case basis and provided by Licensor in
writing. Approval of any retail account may be withdrawn by Licensor,
on sixty (60) days advance written notice to Licensee pursuant to the
notice requirements set forth in this Agreement, at any time if
Licensor determines that advertising, marketing, promotion or sales by
that retail account shall have been, or shall have become,
inconsistent with the reputation, quality-control standards and public
image of the TOMMY BAHAMA Marks. In the event that Licensor withdraws
any such approval, Licensee may continue to sell to such customer
until all pending orders have been filled. However, Licensee may not
accept any new orders from the customer whose approval has been
withdrawn after written notice of the withdrawal has been provided by
Licensor in accordance with the foregoing.
3.2. Licensee expressly agrees that Licensee shall not distribute or sell
Licensed Products, including Close-Outs, to any Distributor (other
than its own contract sales affiliates), and Licensee shall distribute
and sell Licensed Products, including Close-Outs, only through its
Normal Channels of Distribution and only for accounts directly
reselling to consumers.
3.3. Except with Licensor's prior written approval, all Close-Outs may be
disposed of by Licensee through its Normal Channels of Distribution
for Close-Outs, as described in "Exhibit J" and hereafter approved in
accordance with Section 3.1. However, damaged and / or irregular
Close-outs must be clearly marked as such, and remain of a quality not
inconsistent with the quality-control standards of Licensor. All
royalties due with respect to Close-outs shall be paid as required
under this Agreement.
3.4. Licensor shall use commercially reasonable efforts to provide to
Licensee contacts, make introductions and provide addresses of anyone
who is selling TOMMY BAHAMA apparel or other products.
4. APPROVAL OF LICENSED PRODUCTS
4.1. Licensor shall have the right to approve or disapprove in advance of
sale the general design, quality, style, colors, appearance, material
and workmanship of all Licensed Products, and to approve or disapprove
in advance any brands, endorsements, trademarks, service marks, trade
names, designs and logotypes, (whether included in the TOMMY BAHAMA
Marks or not) used in connection with Licensed Products. Licensee
shall not show, distribute or sell any Licensed Product which has not
been approved in advance by Licensor in accordance with the terms of
this Agreement. Licensor reserves the right to revoke approval of
Licensed Products that were approved in previous seasons, however,
Licensor agrees to that it will not do so unless Licensor reasonably
concludes that such Licensed Products no longer reflect the taste,
style, or quality associated with the TOMMY BAHAMA Marks. If Licensor
revokes approval in accordance with the previous sentence, Licensee
shall still be allowed to close out open
orders of such Licensed Products, and to sell them off for a period of
one (1) year from the date which such approval was revoked.
4.2. The parties acknowledge that it may not be practical for Licensee to
submit actual samples of Licensed Products to Licensor for Licensor's
examination and approval or disapproval. Licensee shall submit Design
Documentation to Licensor at its New York address set forth below, at
no cost or expense to Licensor. Licensee's submissions shall include,
in addition, evidence or notations of the use of labels, tags or other
form of identification proposed to be used on Licensed Products.
Licensee shall submit Design Documentation to Licensor at least ninety
(90) days prior to production of the applicable Licensed Products. If
Licensor should fail to respond, in writing, within the first twenty
(20) business days after Licensee's submission of the Design
Documentation, Licensee shall resubmit the Design Documentation
pursuant to the notice provisions in this Agreement. Licensor shall
then have ten (10) additional business days to approve or disapprove,
in writing, the Design Documentation. Failure of the Licensor to
respond to a request for approval, in writing, under Section 4.2
within the combined thirty (30) business day period shall be deemed
approval by Licensor of the Design Documentation. If Licensor
reasonably desires additional information with respect to the design,
fabrication or manufacture of any affected Licensed Product, Licensee
agrees to provide that additional information. Delay by Licensee in
providing the additional information shall toll the period for
Licensor to provide a written response to the request to approve the
Design Documentation. If any item is disapproved, in each case,
Licensee will be advised of the specific reasons. Upon request,
Licensee shall reimburse Licensor for any import duties, shipping
charges or other costs or expenses incurred by Licensor in connection
with delivery of samples to Licensor.
4.3. In the event any Licensed Product is disapproved, Licensee agrees to
consult with Licensor regarding Licensor's objections and any changes
or modifications proposed by Licensor, and will, within thirty (30)
days following receipt of Licensor's disapproval, use good-faith
efforts to make mutually agreeable modifications or adjustments. In
the event of a dispute between Licensor and Licensee regarding any
Licensed Product, Licensor will have final control and approval with
respect to the style, overall design, decorative details, engineering,
structural integrity, production capabilities, manufacturing
efficiencies, materials sourcing, product safety and similar matters.
4.4. Licensee assigns to Licensor all of Licensee's right, title, and
interest in each design developed and used by Licensee (excluding such
design elements that are excluded by the definition of Design Rights)
in connection with any of the Licensed Products, and all rights
associated with them, including, without limitation, all Design
Rights. Licensee shall promptly execute and deliver all forms of
assignment and other documents as may be reasonably required to
transfer to Licensor any of Licensee's rights of ownership in the
Design Rights.
4.5. Licensor shall not unreasonably withhold or delay any approval
required hereunder and all requests by Licensee shall be considered by
Licensor in good faith.
5. LICENSOR'S USE OF LICENSED PRODUCT
For each style, model or variation of each Licensed Product, during
the Contract Term, Licensee shall supply Licensor, at no charge and at
no cost or expense, with up to five (5) Licensed Products per Contract
Year, as Licensor may reasonably request for the marketing or
promotional use of Licensor (not for resale), including, but not
limited to, use in Licensor's showrooms and trade-show exhibits. In
addition, Licensor may purchase Licensed Products from Licensee (at
Licensee's manufacturer's cost) for the marketing or promotional use
of Licensor (not for resale), including, but not limited to, use in
Licensor's showrooms and trade-show exhibits. Upon request by
Licensor, Licensee shall promptly provide one sample of all finished
products, including hangtags using the TOMMY BAHAMA Marks for
intellectual property purposes.
6. MINIMUM NET SALES
6.1. With respect to each Contract Year during the Contract Term, Licensee
must generate the Minimum Net Sales as set forth on "Exhibit E."
7. GUARANTEED ROYALTY AND EARNED ROYALTY
7.1. In consideration for the license granted by the Licensor hereunder,
Licensee shall pay to Licensor the Guaranteed Royalty set forth on
"Exhibit F" hereto if and to the extent that the Earned Royalty during
any calendar quarter (starting June 1 of each Calendar Year) is less
than one quarter (1/4th) of the Guaranteed Royalty for the applicable
Calendar Year. To the extent that a Guaranteed Royalty payment is due
for any calendar quarter, such amount shall be paid following the
thirtieth day after the end of such calendar quarter (September 30,
December 30, March 30 and June 30). And to the extent that the Earned
Royalty exceeds the Guaranteed Royalty for other quarters (before or
after) a quarter in which a Guaranteed Royalty payment is due, such
Earned Royalty may be applied toward the calculation of Guaranteed
Royalty for such quarter.
7.2. Licensee shall pay to Licensor an Earned Royalty on Net Sales for all
Sales of all Licensed Products by Licensee during each Contract Year
based on the rates set forth on "Exhibit G" hereto. Earned Royalty
payments shall be payable within thirty (30) days following the
conclusion of each calendar month. Within each Contract Year, the
Earned Royalty is paid as a non-refundable advance towards amount due
as Guaranteed Royalty for Licensed Products. No part of any Earned
Royalty may be carried forward or backward as a credit from one
Contract Year to any other (though it may be carried forward or
backward as a credit from one quarter to another within a specific
Contract Year, as set forth in Section 7.1), or to any applicable
Sell-Off Period. Past-due payments shall bear interest at a per annum
rate of interest equal to (a) the Prime Rate plus ****** percent
(******%) per annum, or (b) the maximum interest rate permissible
under law, whichever is less.
7.3. All royalties due Licensor shall accrue upon the Sale of the Licensed
Products regardless of time of collection by Licensee (subject to
credits for returned Licensed Products).
8. SALES & ROYALTY REPORTS
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
8.1. Promptly following the execution of this Agreement and within twelve
(12) months prior to the beginning of every subsequent Contract Year
during the Contract Term, Licensee will send Licensor its sales
projection for that next Contract Year, broken out by month, along
with a detailed list of all media placements for Marketing Support.
8.2. Licensee shall supply Licensor with a Monthly Statement, as shown on
"Exhibit K," with respect to all sales of Licensed Products sold
during each calendar month. Each Monthly Statement shall be delivered
to Licensor within thirty (30) days following the conclusion of the
applicable month.
8.3. In addition, Monthly Statements for the final month of each Contract
Year shall include, without limitation, an annual report of the
foregoing for the entire Contract Year. The Licensee's Chief Financial
Officer shall indicate by signature that s/he has reviewed and agrees
with such annual report. On request by Licensor, Licensee shall
provide backup and support materials with respect to any item
contained in any Quarterly Statement so that Licensor shall have
sufficient information to evaluate the sources for any item contained
in the Quarterly Statement and to track Licensee's performance under
this Agreement.
8.4. Within thirty (30) days following the end of each calendar quarter,
Licensee shall fax to Licensor an Estimated Net Sales Report as
detailed on "Exhibit L". This report is:
A) A re-forecasted estimate of the monthly Net Sales of Regular
Price Licensed Products for the remainder of the Licensor's
"Fiscal Year" (currently June 1 through May 31).
B) A re-forecasted estimate of the monthly Net Sales of Close-Out
Licensed Products for the remainder of the Licensor's Fiscal Year
8.5. It is the responsibility of the Licensee to submit the information
required by this Agreement on a timely basis as required herein, and
in a businesslike manner. It shall not be the responsibility of the
Licensor to call, fax, write or otherwise attempt to obtain the
required information from Licensee.
9. NATIONAL ADVERTISING AND MARKETING SUPPORT
9.1. Licensee shall use good-faith reasonable efforts to provide National
Advertising to promote the sale of Licensed Products to consumers
throughout the Territory in a manner consistent with the goals and
aspirations of the Tommy Bahama brand, and the terms set forth on
Exhibits H and M. During each Contract Year, Licensee shall spend no
less than ****** percent (******%) of Net Sales of Type C and Type D
Licensed Products toward such National Advertising, and must comply
with the Marketing Materials approval standards provided in Sections
10, 11 and 12 of this Agreement.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
9.2. Licensee shall use good-faith reasonable efforts to provide Marketing
Support for the Licensed Products throughout the Territory and conform
to the Branded Marketing Materials as set forth on "Exhibit H."
Licensee may use a portion of the Licensor's New York showroom (at
Licensee's expense to be determined based on a percentage of space
required and the current rent paid by Licensor) to display and market
the Licensed Products, such displays having been approved in advance,
in writing by Licensor. During the Contract Term, if Licensee
participates in the M.A.G.I.C. Trade Show in connection with the
Licensed Products, Licensee agrees to do so only in conjunction with
the Tommy Bahama Booth, and to reimburse Licensor for Licensee's
pro-rata share of trade show expenses based upon Licensee's square
foot usage of the Tommy Bahama Booth, as allocated by Licensor in its
sole discretion. The invoice setting forth such expenses shall be paid
within thirty (30) days of the date of receipt. Licensee may show
Licensed Products at the FFANY and WSA trade shows (and any successor
trade shows) and, subject to Licensor's prior written approval, any
other industry trade shows. All signage and decor of Licensee's
display space at any such trade show is subject to Licensor's prior
written approval.
9.3. Promptly following the execution of this Agreement, and within twelve
months prior to the beginning of every subsequent Contract Year,
Licensee shall submit for approval by Licensor a written production,
sales and marketing plan for the forthcoming Contract Year. Such plan
shall be sent in accordance with the notice provisions provided under
this Agreement. If Licensor should fail to respond, in writing, within
the first twenty (20) days after Licensee's submission, Licensee shall
resubmit the production, sales, and marketing plan pursuant to the
notice provisions in this Agreement. Licensor shall then have ten (10)
additional days to approve or disapprove, in writing, the production,
sales, and marketing plan. Failure by the Licensor to respond to a
request for approval, in writing, under Section 9.3 within the
combined thirty (30) business day period shall be deemed approval by
Licensor of the production, sales, and marketing plan. If Licensor
reasonably desires additional information with respect to the
production, sales, and marketing plan, Licensee agrees to provide that
additional information. Delay by Licensee in providing the additional
information shall toll the period for Licensor to provide a written
response to the request to approve the production, sales, and
marketing plan. In the event that Licensor shall disapprove any plan
so submitted, Licensee shall have ten (10) days in which to submit a
revised written plan. At the written request of Licensee, however,
Licensor and Licensee shall discuss in good faith the reasons for that
disapproval. The failure to submit a revised written plan in a form
satisfactory to Licensor within the above period shall constitute a
default under this Agreement, subject to the cure provisions set forth
in this Agreement.
10. ADVERTISING, MARKETING, PROMOTIONS & PACKAGING APPROVAL
10.1. Before producing, publishing or distributing any National
Advertising, market advertising, packaging, or press releases
("Marketing Materials") related to the transactions contemplated by
this Agreement or Licensed Products, Licensee shall submit to Licensor
for its examination and approval or disapproval, a sample of the
Marketing Materials, including text, coloring and a copy of any
photograph proposed to be used. If Licensor should fail to respond, in
writing, within the first fifteen (15) days after Licensee's
submission, Licensee shall resubmit the Marketing Materials pursuant
to
the notice provisions in this Agreement. Licensor shall then have ten
(10) additional days to approve or disapprove, in writing, the
Marketing Materials. Failure by the Licensor to respond to a request
for approval, in writing, under Section 10.1 within the combined
thirty (30) business day period shall be deemed approval by Licensor
of the Marketing Materials. If Licensor reasonably desires additional
information with respect to the Marketing Materials, Licensee agrees
to provide that additional information. Delay by Licensee in providing
the additional information shall toll the period for Licensor to
provide a written response to the request to approve the Marketing
Materials. If Licensor objects to any Marketing Materials and delivers
written notice of that objection to Licensee within ten (10) days
following receipt of the applicable Marketing Materials, Licensee
agrees to consult with Licensor regarding its objections and any
changes or modifications proposed by Licensor. Licensee shall then
make mutually agreeable modifications or adjustments. Licensee shall
not make material changes to any approved piece of Marketing Material
bearing the TOMMY BAHAMA Marks without consulting with Licensor;
however, once approval is obtained for any particular piece of
Marketing Material, it shall not be necessary to obtain approval for
each separate, substantially similar use of the TOMMY BAHAMA Marks in
substantially similar Marketing Materials.
10.2. All Marketing Materials, and all packaging, labels, and other
materials used in connection with the advertising, marketing and sale
of Licensed Products, or otherwise used in connection with the
transactions under this Agreement, shall make reference only to the
TOMMY BAHAMA Marks and shall not include any brands, endorsements,
trademarks, service marks, trade names or logotypes other than
Licensee's own corporate identifiers, as reasonably appropriate to
identify Licensee as either manufacturer or distributor, as the case
may be. For the avoidance of doubt, co-branding is not permitted
without Licensor's prior written approval.
10.3. Throughout the Contract Term, Licensor shall continue to designate
one advertising agency (currently Foundation of Seattle, Washington)
as Licensor's Designated Agency. Licensee shall employ the Designated
Agency for the development and sourcing of similar creative content
for use by Licensee in the production of Marketing Material and
Licensed Products pursuant to this Agreement. Applicable costs and
expenses shall be for the account of Licensee. However, Licensee shall
have the right to retain any other reputable advertising agency for
the placement of advertising for which the creative content shall have
been developed by the Designated Agency.
10.4. Licensed Products shall not be sold or given away by Licensee free of
charge or sold or exchanged for nominal value, or authorized by
Licensee to be so given away, sold or exchanged, so as to promote the
products, services or business of any individual or entity other than
Licensee. If Licensee desires to give away or sell for nominal value
Licensed Products for the promotion of the products, services or
business of any individual or entity other than Licensee, Licensee
shall obtain Licensor's written approval prior to any such
arrangement, and such approval shall not be unreasonably withheld.
Licensee may submit such a request to Licensor in writing, setting
forth all of the details of such proposed commercial tie-in or premium
use, and Licensor shall have complete discretion in deciding whether
or not to waive the foregoing prohibition. If Licensor should fail to
respond, in writing, within the first twenty (20) business days after
Licensee's
submission, Licensee shall resubmit the request pursuant to the notice
provisions in this Agreement. Licensor shall then have ten (10)
additional business days to approve or disapprove the request in
writing. Failure by the Licensor to respond to a request for approval,
in writing, under Section 10.4 within the combined thirty (30)
business day period shall be deemed approval. by Licensor of the
request. If Licensor reasonably desires additional information with
respect to the request, Licensee agrees to provide that additional
information. Delay by Licensee in providing the additional information
shall toll the period for Licensor to provide a written response to
the request.
10.5. Licensee shall adhere to the Advertising Policy as specified in
"Exhibit M."
11. MEDIA APPROVAL
11.1. Licensee agrees that Licensor shall have the right to approve or
disapprove, in advance, each medium of advertising through which
Licensee may desire to advertise and promote Licensed Products, and to
approve or disapprove, in advance, each individual media vehicle
through which Licensee proposes to publish or distribute Marketing
Materials relating to Licensed Products. If Licensor should fail to
respond, in writing, within the first fifteen (15) days after
Licensee's request, Licensee shall resubmit the request to use the
proposed medium of advertising pursuant to the notice provisions in
this Agreement. Licensor shall then have ten (10) additional days to
approve or disapprove, in writing, the request. Failure by the
Licensor to respond to a request for approval, in writing, under
Section 11.1 within the combined thirty (30) business day period shall
be deemed approval by Licensor of the use of the proposed medium of
advertising. If Licensor reasonably desires additional information
with respect to the request to use the proposed medium of advertising,
Licensee agrees to provide that additional information. Delay by
Licensee in providing the additional information shall toll the period
for Licensor to provide a written response to the request. All
advertising media and advertising placements shall be consistent with
the high quality and prestige of the TOMMY BAHAMA Marks and no less
than consistent with the manner in which Licensee markets its own
products.
11.2. Licensee shall submit to Licensor, in advance, written notification
of the particular media vehicle in which the Marketing Material would
be placed. If Licensor should fail to respond, in writing, within the
first fifteen (15) days after Licensee's request, Licensee shall
resubmit the request to use the media vehicle pursuant to the notice
provisions in this Agreement. Licensor shall then have ten (10)
additional days to approve or disapprove, in writing, the request.
Failure by the Licensor to respond to a request for approval, in
writing, under Section 11.2 within the combined thirty (30) business
day period shall be deemed approval by Licensor of the use of the
media vehicle. If Licensor reasonably desires additional information
with respect to the request, Licensee agrees to provide that
additional information. Delay by Licensee in providing the additional
information shall toll the period for Licensor to provide a written
response to the request to use the media vehicle. If any media vehicle
is disapproved, Licensee will be advised of the specific reasons in
each case. Once a particular media vehicle has been approved in
accordance with this provision, it shall not be necessary to obtain
approval for each separate but substantially similar use of that media
vehicle. However, if any previously approved media vehicle undergoes a
significant change following the date it shall have
been approved by Licensor, Licensee shall resubmit that media vehicle
to Licensor for its approval pursuant to the approval procedures set
forth in this provision.
12. DURATION OF APPROVALS
All approvals by Licensor of Marketing Materials and all packaging, labels
and materials used in connection with the advertising, marketing and sale
of Licensed Products under this Agreement shall have a duration of twelve
(12) months unless sooner withdrawn pursuant to the terms of any other
section of this Agreement. Any continuation of any approval for such
materials beyond that period must be requested in writing within thirty
(30) days prior to the expiration of that period.
13. TOMMY BAHAMA MARKS
13.1. During the Contract Term, Licensor shall not grant or sanction any
other party to use any mark identical with, or substantially similar
to, the TOMMY BAHAMA Marks in a manner which is in conflict with the
rights granted to Licensee under this Agreement.
13.2. Licensee shall have no right, title or interest in the TOMMY BAHAMA
Marks except the licensed rights in accordance with this Agreement.
Each and every part of the TOMMY BAHAMA Marks is, and shall remain,
the sole property of Licensor. Any use by Licensee of any part of the
TOMMY BAHAMA Marks, and the goodwill arising from them, shall inure to
the benefit of Licensor.
13.3. During the Contract Term, and at any time thereafter, Licensee shall
not contest, raise any objections to the validity of, or attack
Licensor's title to, or rights in, the TOMMY BAHAMA Marks.
13.4. During the Contract Term, and at any time thereafter, Licensee shall
not file any application for any mark, or obtain or attempt to obtain
ownership of any mark or trade name, in any country of the world,
which refers to, or is substantially similar to, any of the TOMMY
BAHAMA Marks, and shall promptly notify Licensor if Licensee becomes
aware of any attempts to do so by third parties.
13.5. Licensee shall, at its own expense, take such anti-counterfeiting
measures as may be reasonably requested by Licensor from time to time
to protect the TOMMY BAHAMA Marks with respect to Licensed Products.
In order to monitor and trace the source of any diversion activities,
Licensee shall code Licensed Products using state-of-the-art computer
or other indelible codes or markings (such as bar codes) consistent
with industry standards and acceptable to Licensor.
13.6. In the event a third party asserts that the TOMMY BAHAMAS Marks, or
the sale of Licensed Products (collectively, the "Rights") infringe
upon such third party's rights in the Territory, the Licensor, at its
sole expense, shall take commercially reasonable actions to protect
and validate the Rights including, without limitation, arbitration,
mediation and litigation. Licensor shall have the right at any time,
and in its sole discretion, to reach a settlement in any action to
protect and validate the Rights. If a settlement is reached, or it is
determined that the Rights do infringe on such third party's
rights, then Licensor shall procure for the Licensee, at the
Licensor's expense, the right to continue the manufacturing,
marketing, sale and distribution of the Licensed Products in the
Territory as contemplated by this Agreement.
13.7. The parties shall promptly notify the other party in writing of any
learned use that may be an infringement or imitation of the TOMMY
BAHAMA Marks on articles similar to the Licensed Products, and of any
use which may be an infringement or imitation of the related designs,
design patents and copyrights in the Territory. In the event a third
party is allegedly infringing or threatens to infringe the Rights in
the Territory, as determined by the Licensor or the Licensee, the
Licensor shall have the first right, but not the obligation to bring
an infringement action against any actual or alleged infringer with
respect to the TOMMY BAHAMA Marks. Licensor may, in its sole judgment
and at its own expense, institute, control, settle, and defend such
action and recover any damages, awards, or settlements resulting
therefrom. Licensee shall reasonably cooperate and use commercially
reasonable efforts to assist Licensor in any such litigation. Licensor
shall reimburse Licensee for its out-of-pocket expenses incurred as a
result of such cooperation. Any damages, award, or settlement
recovered by Licensor shall first be used to reimburse Licensor and
Licensee for all reasonable expenses incurred during said litigation.
After reimbursement of the aforesaid expenses and costs, all damages
representing lost profits shall be allocated to Licensee, and Licensee
shall pay the Earned Royalty amount on such profits to Licensor to the
extent that equivalent royalties are not specifically allotted in the
damage award. Any damages representing royalties shall be allocated
solely to Licensor. The remainder of the damages, award or settlement
that is attributable to any infringement or alleged infringement in
the Territory shall be divided equally between Licensor and Licensee.
All other damages, awards, or settlement amount shall be paid to
Licensor.
13.8. If Licensor declines to pursue any action against an actual or
alleged infringer for infringement in the Territory, Licensee shall
have the right, but not the obligation, to bring an infringement
action with respect to the TOMMY BAHAMA Marks against such actual or
alleged infringer, either in its own name or in the name of the
Licensor. Licensee may, in its sole judgment, and at its own expense,
institute, control, settle, and defend such action and recover any
damages, awards, or settlements resulting therefrom. Licensor shall
reasonably cooperate and use commercially reasonable efforts to assist
Licensee in any such litigation. Any damages, award, or settlement
recovered by Licensee shall first be used to reimburse Licensee and
Licensor for all reasonable expenses incurred during said litigation.
The remainder of the damages, award or settlement that is attributable
to any infringement or alleged infringement in the Territory shall be
divided equally between Licensor and Licensee. All other damages,
awards, or settlement amount shall be paid to Licensor.
13.9. Licensee shall take commercially reasonable action and all actions
reasonably requested by Licensor, at Licensor's expense, to prevent or
avoid any misuse of the TOMMY BAHAMA Marks or Licensed Products by any
of its customers, contractors, sublicensees, suppliers, or other
resources. Licensor shall take all actions reasonably requested by
Licensee, at Licensee's expense, to prevent any misuse of the TOMMY
BAHAMA Marks or Licensed Products.
13.10. Licensee shall reasonably assist and cooperate with Licensor, at
Licensor's expense, in any other efforts to obtain, perfect and
protect its rights to the TOMMY BAHAMA Marks in the Territory with
respect to the Licensed Products. Licensee shall execute any documents
reasonably required by Licensor in connection with the foregoing.
13.11. Licensee shall cause to be imprinted legibly on each Licensed
Product manufactured, distributed or sold under this Agreement, and on
all Marketing Materials, labels and tags used in connection with
Licensed Products, and any other such materials in which the TOMMY
BAHAMA Marks appear, the designation(R)or(TM)as Licensor shall advise
as being appropriate and approved by Licensor. The tag or label
accompanying each Licensed Product shall contain one of the following
notices, as reasonably modified by Licensor from time to time:
"Manufactured by Tommy Bahama Footwear under license from the Tommy
Bahama Group, Inc. TOMMY BAHAMA is a trademark of the Tommy Bahama
Group, Inc."; "Manufactured by Tommy Bahama Footwear under license
from the Tommy Bahama Group, Inc. TOMMY BAHAMA is a registered
trademark of the Tommy Bahama Group, Inc."; or "The TOMMY BAHAMA
trademark is used under license from the Tommy Bahama Group, Inc." In
addition, Licensee shall file a fictitious business name statement (or
"d/b/a") for "Tommy Bahama Footwear" and shall cause "Tommy Bahama
Footwear" to be listed in the telephone and business directories along
with Licensee's address.
13.12. Following the termination of the rights granted under this Agreement
with respect to the TOMMY BAHAMA Marks, Licensee shall, except as
provided in Section 20.2, cease absolutely, and Licensee shall not
thereafter manufacture or sell, or have manufactured or sold, any item
branded under, or making reference to, the TOMMY BAHAMA Marks, nor
shall Licensee publish or display, or authorize or permit the
publication or display of, further or additional quantities of any
advertising or marketing materials which incorporate the TOMMY BAHAMA
Marks
13.13. Licensor represents and warrants to Licensee as follows:
(a) Licensor has the corporate power and authority to enter into and
perform this agreement. Licensor 's execution and delivery of,
and its performance of all of its obligations under, this
Agreement have been duly and validly authorized by all necessary
corporate action on the part of Licensor. This Agreement is a
valid and binding agreement of Licensor enforceable against
Licensor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors rights generally.
(b) Licensor's execution, delivery and performance of this Agreement
does not and will not violate, breach or constitute a default
under, or require the consent of any third party under, (i) any
provision of any contract, understanding or court order to which
Licensor is a party or by which it is or the TOMMY BAHAMA Marks
are bound or (ii) any law, rule, regulation or other provision or
restriction of any kind or character to which Licensor or the
TOMMY BAHAMA Marks are subject.
(c) Licensor is the exclusive equitable and record owner of the
trademark registrations of, and the registration applications
for, the TOMMY BAHAMA Marks in the Territory. Licensor owns the
TOMMY BAHAMA Marks for the Licensed Products in all jurisdictions
in which a registration for the TOMMY BAHAMA Marks has issued in
the applicable class. To the knowledge of Licensor, the TOMMY
BAHAMA Marks are properly registered in each jurisdiction in the
Territory. Licensor does not use the TOMMY BAHAMA Marks by
consent of any other person and is not required to and does not
make any payments to others with respect thereto. To the
knowledge of Licensor, there are no liens, claims, or
encumbrances on the TOMMY BAHAMA Marks. To the knowledge of
Licensor, there are no prior users of any of the TOMMY BAHAMA
Marks in any of such jurisdictions such that the use of the TOMMY
BAHAMA Marks by Licensee as contemplated by this Agreement would
give rise to a likelihood of confusion. To the best knowledge of
Licensor, the TOMMY BAHAMA Marks have not been registered by any
person in any jurisdiction within the Territory.
(d) To the knowledge of Licensor, the use of the TOMMY BAHAMA Marks
as contemplated by this Agreement will not infringe upon or
violate the copyright, trademark rights, or any other
intellectual property rights, of any person or entity within the
Territory. No complaint or claim alleging any infringement with
respect to the TOMMY BAHAMA Marks, is currently pending or, to
the best knowledge of Licensor, threatened or asserted by any
governmental body or third party in the Territory, and to the
best knowledge of Licensor, there exists no valid basis for such
a claim. To the best knowledge of Licensor, no third party has
interfered with, infringed upon, misappropriated, or violated any
of the TOMMY BAHAMA Marks in any material respect.
14. CONFIDENTIAL & PROPRIETARY INFORMATION
14.1. During the Contract Term, either party may provide the other with
access to and/or allow them to become familiar with various aspects of
their Confidential Information. Both parties shall hold all revealed
Confidential Information which has been provided in strict confidence,
shall not use in any way or disclose any Confidential Information
directly or indirectly to any other party and such information shall
be used by Licensee only in those facilities where Licensed Products
are manufactured and only in connection with the manufacture, use and
sale of Licensed Products. All records, files, documents, information,
data and other similar items relating to either party's business
operations, regardless of who prepared them and which are not
otherwise in the public domain, shall remain the exclusive property of
the owning party.
14.2. Apart from the license granted herein to use the TOMMY BAHAMA Marks
in connection with the manufacture, advertising, promotion, sale,
offering for sale and distribution of Licensed Products, this
Agreement does not grant Licensee any rights whatsoever in the
Confidential Information of Licensor under any of Licensor's
patent(s), patent application(s), trademark(s), trademark
applications(s), copyrights, copyright application(s), service mark(s)
or proprietary technology or any other rights in the TOMMY BAHAMA
Marks not granted herein. THE LICENSEE SHALL NOT USE ANY PROPRIETARY
INFORMATION OUTSIDE THE SCOPE OF THIS
GRANT OF LICENSE. THE LICENSEE DOES NOT GRANT LICENSOR ANY RIGHTS
WHATSOEVER IN THE CONFIDENTIAL INFORMATION OF LICENSEE BY VIRTUE OF
THIS AGREEMENT OR OTHERWISE.
14.3. In addition to obligations set forth in Section 18 of this Agreement,
Licensee shall cause every third party manufacturer, subcontractor,
supplier, distributor, transporter, or other similar relationship,
that has access to any Confidential Information, or the Licensed
Products themselves, to acknowledge by signature the statements set
forth upon "Exhibit N." Within thirty (30) days of establishing a new
relationship with such a third party, Licensee shall provide Licensor
this properly executed document along with any agreements, such as a
Supplier Agreement, that may be necessary at that time.
15. PAYMENTS
All royalty payments required under the provisions of this Agreement
are payable by wire transfer as follows:
SunTrust Bank
25 Park Place
Atlanta Georgia
Telex: 542210
Swift: SNTRUS3A
ABA number: 061000104
Account Name: Oxford Industries, Inc
Account Number: 8800828975
16. NOTICES & OTHER COMMUNICATIONS
16.1. All reports, approvals, requests, demands, notices and other
communications required or permitted by this Agreement shall be in
writing and signed by a duly authorized officer of or such other
individual designated in writing by a party. Communications shall be
duly given if delivered personally, if mailed (by certified or
registered mail, return receipt requested) or if delivered by
nationally-recognized overnight courier or mail service that requires
the addressee to acknowledge, in writing, the receipt thereof, to the
party concerned. Notice may be sent by facsimile transmission, with
prompt hard-copy follow-up in the manner described above (for which
the date of delivery shall be deemed to be the date of facsimile
transmission).
16.2. All Communications to Licensor shall be sent to:
Tommy Bahama Group, Inc.
Attn: Director of Licensing
1071 Avenue of the Americas
10th Floor
New York, NY 10018
Facsimile: (212) 391-4663
With a copy to:
Tommy Bahama Group, Inc.
a/d/o Oxford Industries, Inc.
Attn: Legal Department
222 Piedmont Avenue, NE
Atlanta, Georgia 30308
Facsimile: 404-653-1545
(Copies are not necessary for standard reports, approvals or
requests, but are required for all demands, notices or other
communications).
All communications to Licensee shall be sent to:
Phoenix Delaware Acquisition, Inc. d/b/a Tommy Bahama Footwear
5759 Fleet Street
Carlsbad, California 92008
Attention: Richard White, CEO & President
And Tommy Bahama Footwear National Brand Manager
17. RECORDS & INSPECTION
17.1. Licensee shall maintain invoices and books of account for the sale of
Licensed Products relating to this Agreement during the Contract Term
for a period of three years following the Contract Term. Such books of
account shall be complete and accurate in accordance with generally
accepted accounting practices. Licensor, through its representatives
including its internal and external auditors, shall have the right
upon reasonable prior notice to reasonable inspection of books and
records of Licensee relating to the sales of all Licensed Products
subject to this Agreement. Licensor hereby agrees that any financial
information regarding sales furnished by Licensee is to be held in
confidence. Acceptance by Licensor of any statement furnished or
royalty paid shall not preclude the Licensor from questioning its
correctness and, in the event such mistakes are discovered, they shall
be immediately rectified.
17.2. If, upon any examination of Licensee's books and records pursuant to
Section 17.1 hereof, Licensor shall discover any royalty underpayment
by Licensee, Licensee will make all payments required to be made to
correct and eliminate such underpayment within ten (10) business days
of Licensor's demand. In addition, if said examination reveals a
royalty underpayment of ****** percent (******%) or more for any
royalty period, Licensee will reimburse Licensor for the cost of said
examination within ten (10) business days of Licensor's demand.
17.3. In addition to any other remedy available to Licensor, if any payment
due under this Agreement is delayed for any reason, Licensor may make
a written request to Licensee to pay the delayed payment immediately.
Licensee shall have seven (7) days after the
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
written request of Licensor to cure its delay by making full payment
of the amount due. If Licensee fails to pay the amount due within the
seven (7) day cure period, interest shall accrue and be payable, to
the extent legally enforceable, on such unpaid principle amounts from
and after the last day of the cure period, at a per annum amount equal
to ****** (******%) percent.
18. MANUFACTURING, COMPLIANCE AND CODE OF CONDUCT
18.1. Licensee shall not, in any manner, authorize or purport to authorize
another to use the TOMMY BAHAMA Marks, except to the extent
specifically provided herein. Notwithstanding the foregoing, Licensee
may have the TOMMY BAHAMA Marks affixed to Licensed Products wherever
being manufactured, provided Licensee takes all necessary precautions
to prevent labels, tags and other indicia of the TOMMY BAHAMA Marks
from being used otherwise than in connection with the Licensed
Products. Licensee may manufacture, or have manufactured, the Licensed
Products outside of the Territory, however, under no circumstances may
Licensee manufacture or have manufactured Licensed Products in Myanmar
and such countries as Licensor shall advise Licensee are prohibited
based on their noncompliance with applicable labor laws and Licensor's
Code of Conduct, as required in the manufacturing agreement ("Supplier
Agreement"), attached hereto as "Exhibit O", and made a part of this
Agreement or such other reasons as Licensor shall in its sole
discretion determine.
18.2. Code of Conduct. Licensor's Code of Conduct applies to any entity
manufacturing, or otherwise in the line of production of Licensed
Products (including the components thereof) and it is attached hereto
as "Addendum 1 to Exhibit O". Licensee must exercise commercially
reasonable efforts to have all third party manufacturers,
subcontractors and suppliers ("Supplier") comply with the terms of the
Code of Conduct and will evidence such efforts by:
(a) Prior to the commencement of the manufacturing of Licensed
Products, Licensee executing, and having all Suppliers
execute, the Code of Conduct in the form attached hereto,
retaining such documents in a safe place and providing such
documents immediately to Licensor at its request; and
(b) Displaying and having all Suppliers display the Code of
Conduct in the language of the applicable country, in a
clearly visible location in Licensee's manufacturing
facilities (if applicable) and in the manufacturing
facilities of Licensee's Suppliers, at all times during the
Contract Term.
In the event Licensor provides Licensee with written notice that
Licensee or a Supplier is not complying with the Code of Conduct,
Licensee shall have ten (10) business days to comply or attempt to
cause the violating Supplier to comply with the Code of Conduct.
Licensee shall move its business immediately from any Supplier failing
to comply with the Code of Conduct within the ten (10) business day
period to an approved Supplier who does comply with the Code of
Conduct.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
18.3. Monitoring Program. Licensee agrees that prior to the commencement of
the manufacturing of Licensed Products, it will have in effect, to the
satisfaction of Licensor, a program of monitoring manufacturing
facilities, whether operated by Licensee or by Suppliers, that is
sufficient to ensure their compliance with the Code of Conduct and all
applicable laws and regulations pertaining to wages, overtime
compensation, benefits, hours, hiring and employment, workplace
conditions and safety, the environment, collective bargaining, and
freedom of association, and that the other products manufactured by
Supplier and the components thereof are made without the use of child
(persons under the age of 15 or younger than the age for completing
compulsory education, if that age is younger than 15), prison,
indentured, exploited, bonded, forced or slave labor. Such compliance
will be evidenced by Licensee, upon execution of this Agreement, by
executing and abiding by the Certification in the form presented on
"Addendum 2 to Exhibit O" to the Supplier Agreement, as may be amended
from time to time, and executing and abiding by any such other form as
may be provided by Licensor from time to time. If Licensee uses an
agent for monitoring Suppliers, then such agent(s) shall be approved
in writing by Licensor. If Licensee already has in place such agent(s)
pursuant to a preexisting contract, then Licensor shall be authorized
to engage its own agent to monitor Licensee's Suppliers on an as
needed basis, but at least once quarterly, at Licensee's expense.
Additionally, without notice, Licensor, or its authorized agents,
shall have the right to audit all manufacturing facilities.
18.4. Third Party Manufacturing Agreement. All of Licensee's third party
manufacturing agreements must conform with the Supplier Agreement,
attached hereto as "Exhibit O" and made a part hereof, as may be
amended from time to time by Licensor. Within thirty (30) days after
establishing a new arrangement with a Supplier, Licensee must inspect
each Supplier and provide approval, signed by an authorized employee
or agent of Licensee that such Supplier is in compliance with this
Section 18.1, and will obtain and immediately provide to Licensor, the
properly executed Supplier Agreement from each Supplier, and/or such
other forms as may be provided by Licensor from time to time. Within
thirty (30) days after establishing a new arrangement with a Supplier,
Licensee must obtain and provide to Licensor, the signature of an
authorized representative from each Supplier on a Certification in the
form set forth in "Addendum 2 to Exhibit O" or such other form as may
be provided by Licensor from time to time. In the event Licensee has
knowledge of, has reason to believe, or should have reason to know
that any Supplier is in breach of the Supplier Agreement and/or
Certification, as the case may be, Licensee must immediately notify
Licensor and Licensee shall, at its sole expense, take immediate
action to rectify such breach, including, where Licensor deems it
necessary, immediate termination of its relationship with such
Supplier. If Licensee fails to take immediate action or such action is
not successful, Licensee will assign its rights to proceed against any
such Supplier to Licensor and Licensor will, at Licensee's sole
expense, have the right to pursue all available remedies to protect
its rights. Notwithstanding the foregoing, Licensee acknowledges that
it will remain primarily liable and completely obligated under all of
the provisions of this Agreement in respect of the production of
Licensed Products hereunder. Further, such Licensee failure shall be
grounds for termination of this Agreement.
18.5. Supplier Reports. In addition to all other reports required by this
Agreement, in order to maintain Licensor's high standard of quality
control and to ensure that appropriate measures are taken against
counterfeiting, Licensee shall provide a report to Licensor on a
quarterly basis with all of the following information:
A. The name and address of each Supplier, including a
contact person's name;
B. The type of Licensed Products manufactured by each
Supplier;
C. The quantity of Licensed Products to be manufactured by
each Supplier;
D. The type of components provided by each Supplier; and
E. Any other relevant information regarding all such
entities, as requested by Licensor.
19. ASSIGNMENT, CHANGES OF CONTROL
19.1. The license and rights granted to Licensee hereunder are personal in
nature, and Licensee may not and shall not sell, transfer, lease,
pledge sublicense or assign this Agreement or its rights and interest
hereunder, or any part hereof, whether by operation of law or
otherwise, without the prior written consent of Licensor, which
consent may be withheld by Licensor in its sole discretion. Any such
attempted sale, transfer, lease, sublicense or assignment shall, in
Licensor's sole discretion, result in the immediate termination of
this Agreement.
19.2. A sale or other transfer of all or substantially all of the assets of
Licensee or a change in the control of Licensee by the assignment or
transfer of substantially all of its assets shall all be deemed an
assignment of Licensee's rights and interests under this Agreement.
19.3. Licensor shall have a complete and unrestricted right to sell,
transfer, lease or assign its rights and interests in this Agreement
to any domestic or foreign corporation or other business entity,
providing that such transferee agrees to be bound by all of the terms
hereof and is the holder of the Trademark and all registrations
thereof in the Territory. When Licensor wishes to sell, transfer,
lease or assign its rights and interests in this Agreement, Licensor
shall do so on sixty (60) days advance notice to Licensee. Not
withstanding the previous sentence, Licensor shall have the right to
sell, transfer, lease, or assign its rights or interests in the
Agreement to any subsidiary of Licensor without having to provide
notice to Licensee. In the event of a sale, transfer, lease, or
assignment to a subsidiary of Licensor, Licensor shall remain liable
for any of its obligations under the Agreement.
20. TERMINATION
20.1. (a) This Agreement may be terminated immediately upon the occurrence
of any of the following events:
(i) If Licensee makes any unauthorized assertion of rights in
the TOMMY BAHAMA Marks which is inconsistent with the
Licensor's interest in the TOMMY BAHAMA Marks;
(ii) If Licensee attempts to or actually sells, transfers,
leases, pledges, sublicenses, assigns (including, without
limitation, a deemed assignment under paragraph 20.2 above)
or otherwise encumbers or disposes of this Agreement or any
of Licensee's rights or obligations hereunder other than to
a permitted assignee;
(iii) If Licensee is dissolved or merged into another entity,
whereby Licensee is not the surviving entity;
(iv) If Licensee ceases to engage in its business;
(v) If Licensee should materially default, after a forty-five
(45) day cure period, under any other agreement to which
Licensor and Licensee are parties, excluding the Asset
Purchase Agreement and ancillary documents thereto signed by
the parties contemporaneous to this Agreement;
(vi) If Licensee fails to offer Licensed Products for sale for a
period of sixty (60) consecutive days;
(vii) If the insurance coverage required by Section 22 herein
should be canceled for any reason and Licensee fails to cure
same within thirty (30) days after the insurer's notice
thereof to Licensee or Licensor; or
(b) This Agreement may be terminated by either party as follows:
(i) If either party fails to perform or fulfill any material
obligation required to be performed or fulfilled by it, in
the time and manner herein provided, and if such default
shall continue for thirty (30) days after receipt of written
notice thereof from the non-defaulting party, then the
non-defaulting party shall have the right to terminate this
Agreement immediately by written notice of termination to
the defaulting party. Such right to terminate this Agreement
shall be in addition to and shall not be prejudicial to any
right or remedies, at law or in equity, which said
non-defaulting party may have on account of such default.
(ii) In addition to and not in limitation of a party's remedies
for any event of default set forth in this section or breach
of this Agreement, after one breach by a party of the same
provision of this Agreement occurring within a ninety (90)
day period, for which the defaulting party has been given
notice and an opportunity to cure (if any) as provided
herein, the non-defaulting party may also immediately
terminate this Agreement upon any subsequent breach of the
same provision within such ninety
(90) day period without providing notice of breach or
opportunity to cure.
20.2. Upon expiration or termination of this Agreement, Licensee shall
immediately cease the manufacture of Licensed Products other than work
in process, which may be completed, and shall not thereafter use TOMMY
BAHAMA Marks on the Licensed Products or on any promotional and
packaging materials, labels, literature, stationary or other items
bearing the TOMMY BAHAMA Marks; provided, however, in the event of the
expiration or termination of this Agreement, Licensee shall have the
Sell-Off Period to dispose of its inventory of Licensed Products in
stock from the Termination Date or Expiration Date, whichever applies,
on a non-exclusive basis, provided:
(a) If the parties have not agreed to extend the Contract Term, then
six (6) months prior to the Expiration Date, Licensee shall
furnish Licensor with a written statement stating the quantity of
on-hand and in-process inventory of Licensed Product it has in
stock;
(b) Within thirty (30) days before the Expiration Date or within ten
(10) days after the Termination Date, Licensee shall provide
Licensor with a statement indicating the number and description
of Licensed Products which it has on hand, or is in the process
of manufacturing, as of the date of expiration or termination,
and the amount of such inventory necessary to fill Licensee's
existing customer orders by Licensor.
(c) Licensor shall have the option of conducting a physical inventory
in order to ascertain or verify such inventory and/or statement.
Licensor shall have the right during the first ten (10) days
after the Termination Date or Expiration Date and after receiving
from Licensee a statement indicating the quantity of on-hand and
in-process inventory of Licensed Product Licensee has in stock
to, in its sole discretion and by written notice to Licensor,
purchase all such inventory at the cost of the inventory,
excluding, however, inventory necessary for Licensee to fulfill
existing orders. In the event that Licensor has not received a
statement of Licensed Product inventory from Licensee at the end
of the first ten (10) days after the Termination Date or
Expiration Date, Licensor's right to purchase Licensee's
inventory shall be extended until ten (10) days after Licensor
receives such statement. Licensor shall pay the purchase price
concurrently with notice of its election to purchase the
inventory and upon receipt thereof, Licensee shall promptly
deliver title to the purchased inventory to Licensor. In such
event and upon payment of the purchase price therefore, Licensee
shall forfeit its rights hereunder to dispose of such inventory
in accordance with the Sell-Off Period except for retained
inventory that is sold to fill any pending and unfilled orders.
(d) Licensee shall provide Licensor with a monthly inventory report
during the Sell-Off Period;
(e) Such Licensed Product conforms to the samples previously approved
in accordance with Section 4;
(g) Licensee shall not then be in default in payment of royalties
hereunder or material breach of any provisions of this Agreement
or is in the process of curing any such breach;
(h) All royalties, with respect to such Sell-Off Period, shall be
reported and paid on a monthly basis on a form substantially
similar to the Monthly Statements on "Exhibit K," and shall be
paid monthly based on Licensee's actual sales of Licensed Product
during the Sell-Off Period and said royalties shall not be
credited against any Guaranteed Minimums, unless Licensee is in a
Sell-Off Period due to breach of this Agreement and Guaranteed
Minimums have accelerated and become due.
(i) All sales of Licensed Products during the Sell-Off Period are
subject to the provisions of this Agreement;
(j) Licensee shall not sell Licensed Product to jobbers, and
(k) The Licensor may itself use or license the use of TOMMY BAHAMA
Marks in any manner so long as it does not preclude sales by
Licensee of the Licensed Products during the Sell-Off Period.
20.3. In the event such Licensed Products do not conform to the samples
submitted in accordance with Section 4, Licensee shall immediately
remove all TOMMY BAHAMA Marks, including labels and promotional and
packaging materials from the Licensed Products. In all other events,
Licensee shall remove and return to Licensor all TOMMY BAHAMA Marks
including labels and promotional and packaging material from any
Licensed Product remaining in its inventory six (6) months after the
date of termination or expiration of this Agreement.
20.4. Upon expiration or termination of this Agreement, Licensor shall be
entitled to all royalties due as of the date of expiration or
termination.
20.5. Within ten (10) business days after expiration or termination,
Licensee and Licensor shall deliver and return to other any and all
documents embodying the other party's Confidential Information.
20.6. Neither the expiration nor earlier termination of this Agreement by
Licensor due to causes imputable to Licensee shall relieve Licensee
from its duty of nondisclosure provided herein, or from obligations
for payments then due or accrued hereunder, or for any damage caused
to Licensor.
20.7. Upon termination or expiration of this Agreement, except as provided
in Section 20.2, all rights granted herein shall revert to Licensor,
which may license others to use the TOMMY BAHAMA Marks in any way
whatsoever. Except as provided in Section 20.2, Licensee shall,
thereafter, refrain from all further use of TOMMY BAHAMA Marks.
20.8. In the event of termination by Licensor due to default or breach of
this Agreement by Licensee, or in the event of termination by Licensee
without cause (meaning a default or breach by Licensor), then Licensee
shall pay to Licensor any royalties then owed to it pursuant to this
Agreement, the total Guaranteed Minimum Annual Royalty amounts
remaining unpaid for the balance of the Contract Term, as well as an
amount equal to any other actual damages Licensor may have suffered on
account of such termination or the acts or omissions from which
termination resulted.
20.9. Licensor shall have and hereby reserves all rights and remedies which
it has, or which are granted to it by operation of law, to enjoin the
unlawful or unauthorized use of the TOMMY BAHAMA Marks, to collect
royalties payable by Licensee pursuant to this Agreement and to be
compensated for damages for breach of this Agreement.
20.10. Bankruptcy.
(a) If either party shall become insolvent under either the U.S.
Bankruptcy Code or the Uniform Commercial Code of the State of
New York, or shall make an assignment for the benefit of
creditors, or files for any relief under any bankruptcy law or
regulation in any jurisdiction or place, including, without
limitation, the Bankruptcy Code, or shall make an assignment for
the benefit of creditors, or if either party shall be made a
defendant in any proceeding under bankruptcy, insolvency,
reorganization or receivership law, other than an involuntary
bankruptcy which is not stayed or discharged within ninety (90)
days, or if either party shall be adjudged bankrupt, or if a
receiver or trustee for the property of a party shall be
appointed, this Agreement shall hereupon terminate at the option
of the other party, and shall be subject to the procedures set
forth in Section 20.2.
(b) The parties hereby agree and intend that this Agreement is an
executory contract governed by Section 365 of the Bankruptcy
Code.
(c) In the event of Licensee's bankruptcy, the parties intend that
all royalties payable under this Agreement following the
commencement of a bankruptcy case shall be deemed administrative
priority claims under the Bankruptcy Code because the parties
recognize and agree that the bankruptcy estate's enjoyment of
this Agreement will (i) provide a material benefit to the
bankruptcy estate during its reorganization and (ii) deny
Licensor the benefit of the exploitation of the rights through
alternate means during the bankruptcy reorganization.
(d) The parties acknowledge and agree that any delay in the decision
of a debtor-in-possession or trustee of the bankruptcy estate to
assume or reject the Agreement (the "Decision Period") materially
harms the party that is not subject to the bankruptcy proceeding
by interfering with such party's ability to alternatively exploit
the rights granted under this Agreement during a Decision Period
of uncertain duration. The parties recognize that arranging
appropriate alternative exploitation of the TOMMY BAHAMA Marks or
replacing it is a time consuming and expensive process and that
it is unreasonable for Licensor to endure a Decision Period of
extended uncertainty. Therefore, the parties agree that the
Decision Period shall not exceed sixty (60) days.
(e) Licensor, in its interest to safeguard its valuable interests
(including, without limitation, its intellectual property rights
in the TOMMY BAHAMA Marks), has relied on the particular skill
and knowledge base of Licensee. Therefore, the parties
acknowledge and agree that in a bankruptcy context this Agreement
is a license of the type described by Section 365(c)(1) of the
Bankruptcy Code and may not be assigned without the prior written
consent of Licensor.
21. INDEMNITY AND DISCLAIMER
21.1. Licensor hereby agrees to defend, indemnify and hold the Licensee
and/or any of its related entities, officers, directors, employees,
and/or agents ("Licensee Indemnitees") harmless against any and all
claims, demands, causes of action, damages and judgments of any third
parties arising solely out of the use of the TOMMY BAHAMA Marks by the
Licensee in accordance with this Agreement or material breach by
Licensor of this Agreement, provided that the Licensee shall give
notice to the Licensor within ten (10) business days after
notification of each such claim, demand, cause of action or judgment;
provided, however, that any failure to provide such notice shall not
affect Licensor's obligation to indemnify Licensee and the Licensee
Indemnitees except to the extent that Licensor is prejudiced thereby.
With respect to the foregoing indemnity, the Licensor agrees to defend
and hold the Licensee and the Licensee Indemnitees harmless from any
third party claims at no cost or expense to Licensee whatsoever,
including, but not limited to, reasonable attorney's fees, expert fees
and court costs. The Licensor shall have the right to undertake and
conduct the defense of any cause of action so brought and handle any
such claim or demand with attorneys of its own choosing. Licensor
shall keep Licensee reasonably advised of the progress of the matter,
including providing Licensee with copies of all pleadings and
correspondence or protective orders entered in the matter.
Notwithstanding anything stated in this paragraph, Licensor has no
duty to indemnify or otherwise hold harmless the Licensee or any of
the Licensee Indemnitees in the event the claims, demands, causes of
action and judgments of any third parties are caused by Licensee's
breach of this Agreement or any use of the TOMMY BAHAMA Marks outside
the scope of this Agreement, misuse of the TOMMY BAHAMA Marks, or any
negligence on the part of the Licensee and/or any of the Licensee
Indemnities.
21.2. Licensee hereby agrees to defend, indemnify and hold the Licensor
and/or any of its related entities, officers, directors, employees
and/or agents ("Licensor Indemnitees") harmless against any and all
claims, demands, causes of action and judgments arising out of
Licensee's manufacture, distribution, shipment, advertising,
promotion, offering for sale and/or sale of Licensed Products and/or
the Promotional and Packaging Material depicting such TOMMY BAHAMA
Marks or relating to any material breach by Licensee of this Agreement
(excluding matters for which indemnification is to be provided by
Licensor under Section 21.1) provided that the Licensor shall give
notice to the Licensee within ten (10) business days after
notification of each such claim, demand, cause of action or judgment;
provided, however, that any failure to provide such notice shall not
affect Licensee's obligation to indemnify Licensor except to the
extent that Licensee is prejudiced thereby. With respect to the
foregoing indemnity, the Licensee agrees to defend and hold the
Licensor and the Licensor Indemnitees harmless at no cost or expense
to the Licensor whatsoever, including, but not limited to, reasonable
attorney's fees, expert fees and court costs. The Licensee shall have
the right to
undertake and conduct the defense of any cause of action so brought
and handle any such claim or demand with attorneys of its own
choosing. Nothing in this provision shall limit Licensor's right to
have attorneys of its choosing, at Licensor's cost. Licensee shall
keep Licensor reasonably advised of the progress of the matter,
including providing Licensor with copies of all pleadings and
correspondence to the extent allowable under any confidentiality
agreement or protective orders entered in the matter. Notwithstanding
anything stated in this Section, Licensee has no duty to indemnify or
otherwise hold harmless the Licensor or any of the Licensor
Indemnitees to the extent the claims, causes of action, damages or
judgments are caused by Licensor's breach of this Agreement or any
negligence on the part of the Licensor and/or any of the Licensor
Indemnitees.
21.3. The provisions of this Section 21 and the parties' obligations
hereunder shall survive the expiration or termination of this
Agreement.
21.4. The expressed warranties, if any, contained in this Agreement are in
lieu of all other warranties, guarantees, promises, affirmations or
representations, express or implied, which could be deemed applicable
to this license and to the Licensed Products manufactured, used or
sold hereunder. NO EXPRESSED WARRANTIES AND NO IMPLIED WARRANTIES AS
TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR
OTHERWISE, OF THE LICENSED PRODUCTS OTHER THAN THOSE WHICH MAY BE
EXPRESSLY SET FORTH IN THIS AGREEMENT SHALL APPLY. LICENSEE HEREBY
WAIVES ALL OTHER WARRANTIES, GUARANTEES, CONDITIONS AND LIABILITIES,
EXPRESSED OR IMPLIED, ARISING BY LAW OR OTHERWISE.
22. INSURANCE & LOSS
22.1. Licensee shall maintain, at its sole expense, the following insurance
coverage, with a financially sound insurance company having an A.M.
Best Rating of A-(VI) or better, throughout the term of this Agreement
and for a period of three (3) years after its expiration or
termination: (i) worker's compensation, occupational disease,
employer's liability (with limits of not less than $1 million for
bodily injury by accident for each accident, and $1 million for bodily
injury by disease for each employee), disability benefit and other
similar insurance required under laws of the state that apply to the
activities to be performed by Licensee under this Agreement; (ii)
commercial general liability insurance including products liability,
blanket contractual liability, personal injury and advertising
liability coverage with a combined single limit of $3 million per
occurrence for bodily injury, including death and property damage;
(iii) comprehensive automotive liability insurance for both owned and
non-owned vehicles used by Licensee either on or away from premises
with a combined single limit of $1 million per occurrence for bodily
injury, including death and property damage; and (iv) umbrella excess
liability insurance, with a combined single limit of $2 million per
occurrence for bodily injury, including death and property damage.
22.2. Licensee shall ensure that OXFORD INDUSTRIES, INC., it's
subsidiaries, divisions (including TOMMY BAHAMA GROUP, INC.), joint
ventures, directors, officers, employees, agents and assigns, shall be
named as additional insureds with respect to the insurance described
in clause (ii) through (iv) of Section 22.1. Licensee shall, within
ten (10) days after execution of this Agreement, deliver to Licensor a
certificate of such
insurance from the insurance carriers, describing the scope of
coverage and the limits of liability, naming the additional insureds
required by this Section 22 and providing that the policy may not be
canceled or amended without at least thirty (30) days prior written
notice to Licensor.
22.3. Regardless of any limited liability associated with Section 24 of
this Agreement, in the event of partial loss or destruction of any
Licensed Products due to an unanticipated event such as, but not
limited to, fire, water damage, vandalism, or transport mishap,
Licensee must gain approval from Licensor, in writing, before any
methods of salvage or destruction of the Licensed Products are used.
Under no circumstances will Licensee's insurance carrier be in a
position to control the destiny of such products. Licensor's approval
of a reasonable disposal method shall not be unreasonably withheld.
Any salvage activity that could diminish the reputation or integrity
of the TOMMY BAHAMA mark and its well-known reputation for superior
quality shall be deemed unreasonable.
23. JOINT VENTURE
This Agreement does not create an agency, partnership, franchise, or joint
venture. Nothing herein contained shall be so construed as constituting
Licensee an agent of or authorizing Licensee to incur financial obligations
on Licensor's behalf without Licensor's authorization in writing, except as
specifically stated herein.
24. FORCE MAJEURE
Neither party shall be liable to the other for any loss, injury, delay or
damage whatsoever suffered or incurred by the other party due to causes
beyond such party's control, including but not limited to, acts of God,
strikes or other labor disturbances or third parties, war, act of terror,
sabotage, and any other cause or causes, whether similar or dissimilar to
those herein specified, which cannot be controlled by such party.
25. CHOICE OF LAW & FORUM
25.1. This Agreement has been negotiated, prepared, executed and delivered
in several jurisdictions, including the State of New York, United
States of America. Accordingly, in order to establish with certainty
that this Agreement will be governed by one body of well-developed
commercial law, the parties hereto have expressly agreed that this
Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, applicable to contracts executed and
fully to be performed therein, to the exclusion of any other
applicable body of governing law including, without limitation, the
United Nations Convention on Contracts for the International Sale of
Goods.
25.2. The parties hereby consent to the exclusive jurisdiction of the
United States District Court for the Southern District of New York and
of any of the courts of the State of New York in any dispute arising
under this Agreement and agree further that service of process or
notice in any such action, suit or proceeding will be effective if in
writing and issued as provided in Section 16.
26. COMPLIANCE WITH LAWS
Licensee shall comply with all laws, rules, regulations and requirements of
any governmental body governing or otherwise pertaining to the operations
of Licensee contemplated under this Agreement, including, without
limitation, as they relate to the manufacture, import, export,
distribution, sale, advertising, marketing or promotion of Licensed
Products. Licensor shall also comply with all laws, rules, regulations and
requirements of any governmental body governing or otherwise pertaining to
the operations of this Agreement.
27. WAIVER
The failure of either party at any time or times to demand strict
performance by the other of any of the terms, covenants or conditions set
forth herein shall not be construed as a continuing waiver or
relinquishment of said rights or of any other right hereunder, and each
party may at any time demand strict and complete performance by the other
of any of the terms, covenants or conditions set forth herein.
28. VALIDITY
In the event that any one or more provisions or terms contained in this
Agreement are found invalid or unenforceable, the validity or
enforceability of this Agreement as a whole or of any remaining provisions
or terms contained herein shall not in any way be affected or impaired.
29. ENTIRE AGREEMENT
29.1. This Agreement is the entire agreement between the parties hereto
with respect to the subject matter hereof. This Agreement and the
license granted herein shall be binding upon and inure to the benefit
of the parties and their respective successors, permitted assignees,
heirs, executors and personal representatives.
29.2. The making, execution, and delivery of this Agreement has not been
induced by any representations, statements or warranties, other than
those expressly set forth herein. All the terms of this Agreement are
herein set forth and neither this Agreement or any part hereof may be
waived, modified, supplemented, or otherwise altered, unless by a
writing signed by an officer of each party.
30. RESERVATION OF RIGHTS
Any right not specifically granted herein to Licensee is expressly reserved
by Licensor.
31. EXHIBITS
All Exhibits are incorporated into this Agreement and may be revised by
Licensor at any time, subject to the consent of Licensee to any substantive
change in the performance required from Licensee.
32. SURVIVAL
The obligations contained Sections 13.12, 14, 20, 21, and 22 herein shall
survive any termination of this agreement.
33. INTERPRETATION
The headings of the sections of this Agreement are for convenience only and
in no way limit or affect the terms or conditions of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
TOMMY BAHAMA GROUP, INC.
By: /s/ Thomas C. Chubb, III
-----------------------------------
Name: Thomas C. Chubb, III
Title: Vice President
PHOENIX DELAWARE ACQUISITION, INC.
By: /s/ Richard E. White
-----------------------------------
Name: Richard E. White
Title: Chief Executive Officer
EXHIBIT A
AUTHORIZED LICENSED TRADEMARKS
UNDER THIS AGREEMENT
TRADEMARK FEDERAL REGISTRATIONS
--------- ---------------------
TOMMY BAHAMA(R) Word Mark 1802812 (IC 25)
(TOMMY BAHAMA(R) LOGO) Word Mark 1802812 (IC 25)
(TOMMY BAHAMA(R) LOGO) Word Mark 1802812 (IC 25)
(TOMMY BAHAMA(R) LOGO) Word Mark 1802812 (IC 25)
(T B LOGO) Design Mark 2825018 (IC 25)
(TOMMY BAHAMA Word Mark 1802812 (IC 25)
PARADISE NATION Word Mark 2856732 (IC 25)
RELAX(TM) LOGO) Design Mark (Pending) 78355031 (IC 25)
Word Mark (Pending) 78354819 (IC 25)
Except as limited by the Asset Purchase Agreement signed by both parties
contemporaneous to this Agreement, if Licensee has more than three (3) Calendar
Year's remaining in Contract Term, then Licensee shall have a right to add any
other trademarks or slogans (each a "New Mark") which Licensor desires to use
with the Licensed Products in North America; if such New Mark is to be used
outside of North America, then Licensee has the right of first refusal to submit
a proposal to add the New Mark to the Licensed Products. Such proposal must be
submitted within twenty (20) days of notification by Licensor of such
opportunity, and must include a five-year business plan (or the number of years
left in the Contract Term if less than five) outlining projected sales figures,
pricing, and volumes by distribution channel. The decision of whether to add a
New Mark to this Agreement will be made in Licensor's sole discretion, however,
Licensor agrees not to unreasonably disapprove a sound proposal made by
Licensee, and Licensor agrees to give Licensee the reasonable right to "match" a
proposal made by another potential licensee for the New Mark, and if Licensee
matches the proposal, then Licensor shall grant Licensee the New Mark, pursuant
to the terms of the matched proposal
EXHIBIT B
AUTHORIZED LICENSED PRODUCTS
AND TERRITORY
UNDER THIS AGREEMENT
PRODUCTS:
Type A: Men's, women's and children's (toddler sizes 8.5 - 13 and youth sizes 1
- - 6) hosiery.
Type B: Men's, women's and children's belts, and certain small leather goods
approved by Licensor on a case-by-case basis. Currently approved small leather
goods: men's wallets, document cases, card cases.
Type C: Men's and boy's (toddler sizes 8.5 - 13 and youth sizes 1 - 6) footwear.
Type D: Women's and girl's (toddler sizes 8.5 - 13 and youth sizes 1 - 6)
footwear.
Specifically Excluded: Handbags, clutch purses, key cases, coin purses, cell
phone cases, satchels, purses, pocketbooks, tote bags, travel totes, carry-on
bags, shoulder bags, daypacks, duffel bags, backpacks, knapsacks, beach bags,
diaper bags, baby bags, cosmetic bags, and women's small leather goods and
coordinating accessories (such as women's wallets, document cases, card cases,
and lipstick holders), golf bags, golf accessories, pet carriers and
accessories, and luggage and luggage tags.
TERRITORY: United States of America including its territories and possessions;
Canada; Mexico Certain islands in the Caribbean to include: Bahamas, Bermuda,
the British Virgin Islands, St. Lucia, Anguilla and the Cayman Islands; and the
United Arab Emirates
If Licensee has more than three (3) Calendar Year's remaining in Contract Term,
then Licensee shall have a right of first refusal to submit a proposal to add
any other countries or regions (each a "New Territory") in which Licensor
intends to begin distributing Licensed Products. Such proposal must be submitted
within twenty (20) days of notification by Licensor of such opportunity, and
must include a five-year business plan (or the number of years left in the
Contract Term if less than five) outlining projected sales figures, pricing, and
volumes by distribution channel. The decision of whether to add a New Territory
to this Agreement will be made in Licensor's sole discretion, however, Licensor
agrees not to unreasonably disapprove a sound proposal made by Licensee, and
Licensor agrees to give Licensee the reasonable right to "match" a proposal made
by another potential licensee for the New Territory, and if Licensee matches the
proposal, then Licensor shall grant Licensee the New Territory, pursuant to the
terms of the matched proposal.
EXHIBIT C
CONTRACT TERM OF THIS AGREEMENT
The initial term of this Agreement shall begin on the Effective Date and end on
May 31, 2012, subject to extension by the Licensee, in its sole discretion in
accordance with the following. If Licensee is not in default of any of the terms
of this Agreement (other than failing to meet the Minimum Net Sales for Type A
and Type B Licensed Products) and Licensee has met or exceeded the Minimum Net
Sales of Type C Licensed Products for the preceding six (6) Contract Years and
it reasonably appears that Net Sales for Type C Licensed Products for the last
Calendar Year of the initial term will equal or exceed the Minimum Net Sales for
that Calendar Year, then Licensee shall have the option exercisable by written
notice not later than one hundred and eighty (180) days prior to the end of the
initial term to extend the term of this Agreement for Type A, Type B and Type C
Licensed Products for an additional three (3) Calendar Years, beginning on June
1, 2013, and ending on May 31, 2016. In addition, if Licensee has met or
exceeded the Minimum Net Sales of Type D Licensed Products for the preceding six
(6) Contract Years and it reasonably appears that Net Sales for Type D Licensed
Products for the last Calendar Year of the initial term will equal or exceed the
Minimum Net Sales for that Calendar Year or will exceed ****** (******) for the
cumulative Net Sales for Contract Years 6 and 7, then Licensee shall have the
option exercisable by written notice not later than one hundred and eighty (180)
days prior to the end of the initial term to extend the term of this Agreement
for Type D Licensed Products for an additional three (3) Calendar Years,
beginning on June 1, 2013, and ending on May 31, 2016. Notwithstanding anything
to the contrary in the foregoing, if Licensee is eligible to extend the term of
the Agreement for Type D Licensed Products as set forth above, then Licensee
shall also be deemed eligible to extend the term of the Agreement for Type A,
Type B and Type C Licensed Products.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
EXHIBIT D
SALES OF LICENSED PRODUCTS
TO TB STORES
General terms and conditions:
- TB Stores shall be allowed to purchase Licensed Products for the then
lowest applicable wholesale price without any trade or other
discounts.
- Licensee shall pay Earned Royalty on Sales to TB Stores.
- Sales to TB Stores shall be included in Minimum Net Sales for all
purposes.
- Licensee shall be obligated to accept returns of Licensed Products
from TB Stores (except for Special Make-Up Products), and shall absorb
all costs associated with such returns (except for Licensor's shipping
costs) so long as the returned product is saleable.
EXHIBIT E
With respect to each Contract Year during the Contract Term, Licensee must
generate the greater of (i) the Minimum Total Net Sales of Licensed Product as
set forth in the table below, or (ii) the previous Contract Year's Total Net
Sales.
Minimum Total Net Sales of
Contract Year Type A Products
------------- --------------------------
Year 1 $******
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
Minimum Total Net Sales of
Contract Year Type B* Products
------------- --------------------------
Year 1 $******
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
* Type B products shall include all small leather goods for purposes of
calculating Minimum Net Sales amounts
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
Minimum Total Net Sales of
Contract Year Type C Products
------------- --------------------------
Year 1 $******
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
Minimum Total Net Sales of
Contract Year Type D Products
------------- --------------------------
Year 1 $******
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
EXHIBIT F
GUARANTEED ROYALTY
UNDER THIS AGREEMENT
The Guaranteed Royalty amount for each Contract Year during the Contract Term is
as follows:
Guaranteed Royalty for
Contract Year Type A Products
------------- ----------------------
Year 1 N/A (waived)
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
Guaranteed Royalty for
Contract Year Type B Products
------------- ----------------------
Year 1 N/A (waived)
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
Guaranteed Royalty for
Contract Year Type C Products
------------- ----------------------
Year 1 N/A (waived)
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
Guaranteed Royalty for
Contract Year Type D Products
------------- ----------------------
Year 1 N/A (waived)
Year 2 $******
Year 3 $******
Year 4 $******
Year 5 $******
Year 6 $******
Year 7 $******
and (if available)
Year 8 $******
Year 9 $******
Year 10 $******
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
EXHIBIT G
EARNED ROYALTY
UNDER THIS AGREEMENT
Licensee shall pay to Licensor an Earned Royalty on Net Sales of all Licensed
Products sold by Licensee during each Contract Year equal to ****** percent
(******%) of Net Sales during the initial Contract Year and thereafter ******
percent (******%) of Net Sales.
During each Contract Year, Close-Outs shall equal no more than ****** percent
(******%) of the Net Sales of Licensed Products sold. If more than ******
percent (******%) of the Net Sales of Licensed Products are reasonably
anticipated to be generated by Close-Outs, Licensee must immediately notify
Licensor in writing (including an explanation), and Licensor may allow a greater
percentage of Close-Outs, in its sole discretion.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
EXHIBIT H
BRANDED MARKETING MATERIALS
Showrooms and Tradeshows - Main and secondary showroom: design and decor
- Tommy Bahama branded environment: decor,
displays and signage
- Lifestyle framed images, furniture and props
Event Planning & Launch - Sales meeting: branded presentation
- Media plan: trade
- Invitations and guest / press lists
- President's letter, buyer notification, save the
date mailers, packaging
- Set-up: Tommy Bahama environment, props
- Details: location, decor, food, cocktails,
goodie bags
- In-store seminars: scheduled to coincide with
the consumer launch
Point of Sale Materials - Available for retail trade launch
- Materials: wood signs, banners, tent card,
counter cards
- Environment guidelines: appropriate paint
colors, molding and wainscoting
- Fixture programs
- Prop packages: tropical plants, framed images
- Presentation format: fabric swatch book, fabric
headers
- Packaging: hangtags, fabric tags, branded swatch
cards
- Postcards for retail partners: pre and post
launch
Advertising & Marketing
Extras - Trade and consumer ads
- Photography
- Direct mailings
EXHIBIT I
APPROVED ADDITIONAL LICENSORS, BRANDS
AND LOGOS OF LICENSEE
ADDITIONAL LICENSORS:
A. VF CORPORATION
B. SEATTLE PACIFIC
BRANDS AND LOGOS:
A. VF
CHAMBERS BELT COMPANY
VF MASS BRANDS
Wrangler Hero Men's and Boy's Belts & Accessories Men's and Boys' Belts, personal accessories,
including wallets, key fobs, travel cases,
and gift sets
Timber Creek by Wrangler Men's Belts & Accessories Men's and Boys' Belts, personal accessories,
including wallets, key fobs, travel cases,
and gift sets
Wrangler Outdoor Gear Men's Belts & Accessories Men's and Boys' Belts, personal accessories,
including wallets, key fobs, travel cases,
and gift sets
Wrangler Jeans Company Men's and Boy's Belts & Accessories Men's and Boys' Belts, personal accessories,
including wallets, key fobs, travel cases,
and gift sets
Riders Ladies' Belts & Accessories Ladies' and Girls' belts, handbags, and personal
accessories
VF WESTERN BRANDS
Wrangler Western Men's, Boys', Ladies', and Girls' Belts
20X Western Men's, Ladies, and Girls' Belts
Rugged Wear Men's Belts
B. UNION BAY
CHAMBERS BELT COMPANY
SEATTLE PACIFIC INDUSTRIES, INC.
Unionbay Young Men's and Boy's Young Men's and Boys' Belts, namely
UB Belts & Accessories wallets, key chains, and cuffs
EXHIBIT J
APPROVED RETAILERS OF LICENSEE
NORMAL CHANNELS OF DISTRIBUTION:
DEPARTMENT STORES INCLUDING: NORDSTROM, NEIMAN MARCUS, SAK'S FIFTH AVENUE, VON
MAUR, FEDERATED DEPARTMENT STORES, BELK, AND DILLARD'S.
INDEPENDENT SPECIALTY SHOPS INCLUDING: HANIGS, MARIOS, RICHARD'S, LAURIE'S,
GARY'S, AT-EASE, AND BASS PRO SHOP.
CATALOGS INCLUDING: MARYLAND SQUARE, MASSEYS, WISSOTA, ORVIS, HERRINGTON, LOU
MAGNUM, TRAVEL SMITH, AND BULLOCK AND JONES.
DIRECT RESPONSE E-COMMERCE RETAILERS INCLUDING: NORDSTROM DIRECT, ZAPPOS.COM,
SHOEBUY.COM, SHOEDINI, SHOES.COM, AMAZON.COM, AND ONLINESHOES.COM.
RESORT RETAILERS INCLUDING: CARIBBEAN CRUISE LINES, EVOKE INTERNATIONAL,
PRINCESS CRUISE LINES, STARBOARD, RITZ-CARLTON, AND MARRIOTT.
GREEN GRASS ACCOUNTS INCLUDING: AMERICAN GOLF PROPERTIES, TROON GOLF PROPERTIES,
AND ALL PRIVATE CLUBS TO WHICH TOMMY BAHAMA PRODUCTS ARE CURRENTLY SOLD.
NORMAL CHANNELS OF DISTRIBUTION FOR CLOSE-OUTS*: NORDSTROM RACK, DSW, OFF
BROADWAY, MJM, MARMAXX, SIERRA TRADING POST, AND GREAT SOLUTIONS.
* Under no circumstances shall any in-season Licensed Products, that are not
damaged or irregular, be sold to off-price retailers.
SALES OF LICENSED PRODUCT TO THE FOLLOWING ARE NOT AUTHORIZED AND ARE
SPECIFICALLY EXCLUDED FROM THIS AGREEMENT:
Sam's Club
BJ Wholesale Club
Costco
Similar "club" stores
Sales to jobbers and wholesale distributors.
Sales on the Internet or on television other than through web sites requested by
Licensee using the Additional Approved Retailer Request Form and approved, in
writing, by Licensor.
ADDENDUM 1 TO EXHIBIT J
ADDITIONAL APPROVED RETAILER REQUEST FORM
REQUESTED BY: _______________________________ DATE: _____________________
COMPANY NAME: _______________________________
DOING BUSINESS AS: _______________________________
ADDRESS: _______________________________
_______________________________
TELEPHONE: _______________________________
FACSIMILE: _______________________________
PRINCIPAL / OWNER: _______________________________
NUMBER OF STORES: _______________________________
LOCATIONS: _______________________________
(or URL addresses for requests to sell product over the Internet)
WHOLESALE VOLUME: _______________________________
OTHER BRANDS CARRIED
(COMPARABLE TO TB): ___________________________________________________________
___________________________________________________________
OTHER TB PRODUCTS
CARRIED (W/ ACCT #): ___________________________________________________________
___________________________________________________________
CONSUMER PROFILE: ___________________________________________________________
___________________________________________________________
OTHER INFORMATION: ___________________________________________________________
___________________________________________________________
NOTE: PLEASE ATTACH PICTURES OF THE INSIDE AND OUTSIDE OF STORE.
APPROVED BY: _______________________________ DATE: _____________________
EXHIBIT K
MONTHLY STATEMENT
Statement of Sales and Royalties Prepared for Tommy Bahama Group, Inc.
Licensee: _______________ For Month Ending: _________________________
QUARTER 1 QUARTER 2 QUARTER 3 QUARTER 4 TOTAL
--------- --------- --------- --------- ------
GROSS SALES $_____ $_____ $_____ $_____ $_____
RETURNS $_____ $_____ $_____ $_____ $_____
TRADE DISCOUNTS $_____ $_____ $_____ $_____ $_____
TOTAL NET SALES $_____ $_____ $_____ $_____ $_____
REGULAR PRICE NET SALES $_____ $_____ $_____ $_____ $_____
REGULAR PRICE % of Regular Price Net Sales
ROYALTY RATE
= EARNED ROYALTY FOR
REGULAR PRICE $_____ $_____ $_____ $_____ $_____
CLOSE-OUT NET SALES $_____ $_____ $_____ $_____ $_____
CLOSE-OUT ROYALTY RATE % of Close-Out Net Sales
= EARNED ROYALTY FOR
CLOSE-OUTS $_____ $_____ $_____ $_____ $_____
CLOSE-OUT SALES % OF
TOTAL NET SALES _____%
ADDITIONAL ROYALTY ON
CLOSEOUT SALES (IF ANY) $_____
TOTAL EARNED ROYALTY $_____ $_____ $_____ $_____ $_____
I certify that the above information is complete and accurate.
Name:
- ------------------------------------- ------------------------------
Title: Date:
------------------------------ ------------------------------
EXHIBIT L
STATEMENT OF ESTIMATED
MONTHLY NET SALES
Statement Of Estimated Monthly Net Sales Prepared For: Tommy Bahama Group, Inc.
Licensee: Phoenix Footwear
Mark(s): Tommy Bahama(R) and Design Logos
Estimated Net Sales of Regular Price and Close Out Licensed Products for the
remainder of Contract Year ending May 31, 20__, broken out by month:
REGULAR PRICE CLOSE-OUT
MONTH LICENSED PRODUCTS LICENSED PRODUCTS
----- ----------------- -----------------
June
July
August
September
October
November
December
January
February
March
April
May
TOTAL
EXHIBIT M
ADVERTISING POLICY
(TOMMY BAHAMA(TM) LOGO)
ADVERTISING POLICY FOR TOMMY BAHAMA
2005
Thank you in advance for helping make Tommy Bahama one of the fastest growing,
most profitable, and cleanest brands in our industry today!
Our goal is to maintain that brand integrity, by always presenting Tommy Bahama
in an upscale, manner that sets us apart in the marketplace as the prestigious
island lifestyle brand. We ask that you follow these advertising and marketing
guidelines, so that a successful, strong and consistent brand message is
ensured.
IMAGE USAGE
Each season we will offer images that can be used for your advertising needs.
These visuals may be used for print, outdoor, brochures and PR materials;
however these visuals are not authorized for broadcast video use or use in
off-price selling. Please note the following parameters:
Tommy Bahama images cannot be used without the brand logo present.
We highly recommend using the approved Tommy Bahama ad template for all of your
advertising needs.
If you are not using the Tommy Bahama template, then the Tommy Bahama position,
image and logo must be the main focus of the ad, in order to maintain the
premiere status of the brand. The limitation on these images is valid for one
year from launch of the product/collection at retail.
PRICING POLICY IN AN ADVERTISEMENT
In accordance with our license agreement with Tommy Bahama Brand, the Tommy
Bahama name may not be used in clearance, discount or off-price advertising of
any kind, nor in connection with a sale. This has long been a policy of the
Tommy Bahama brand in all of its other product categories, and it is our intent
to maintain that perspective in the FILL IN CATEGORY category. For those
retailers who price products within the store with both the suggested and the
actual prices, that practice can be used within the store only.
All advertising of the Tommy Bahama brand can include a single price for the
products featured or shown. However, there can be no mention of a sale price,
sale percentage off, regular price/sale price, old price/new price in the ad
itself. This policy must be followed if the name Tommy Bahama and/or any photo,
sketch or other depictions of the brand or its products are present in the ad.
This applies to all communication media vehicles.
The following are examples of advertising practices that are not allowed by the
policy. Failure to adhere to this policy can and will result in the elimination
of the account as a Tommy Bahama approved retailer.
- Percentage discounts of any amount are not permitted in any ads; no
percent off reference is acceptable.
- Comparative price advertising such as regular price/new price is not
acceptable. Example: bed regular price: $3000, now $1800, is not
acceptable.
- Was/is pricing in advertising is not acceptable. Example: watch was
$595, now is $495.
- Tommy Bahama brand name, logos or any company identifiers cannot be in
an ad that features off price or discount advertising of other
lines/brands.
- No depiction of any Tommy Bahama products can be present in any ad
that contains any version of off price or discount advertising.
- Tommy Bahama images cannot be used without the brand name present, and
therefore cannot appear in any off price ads.
- In the case of a storewide sale, there can be no reference in the
advertising communication that the sale applies to Tommy Bahama, even
if the product is discounted within the store.
- In the case of floor sample clearance events, the Tommy Bahama product
can be included in the sale but not in the advertising and
communication that takes place outside the store.
In addition, we ask that you refrain from advertising and/or pricing Tommy
Bahama products with a 99 ending, as this implies that we are a price driven
brand or that the product is being cleared.
BRAND IDENTITY
It is essential that the identity of the Tommy Bahama brand is maintained and
communicated properly through marketing and advertising. It is very important to
distinguish between our corporate name (fill in your corporate name) and the
Tommy Bahama brand name. Only the brand name Tommy Bahama FILL IN CATEGORY NAME
should be used.
Correct Usage (Retailer & Tommy Bahama):
- Joe's Tropical Store presents Tommy Bahama Outdoor Furnishings
- Joe's Tropical Store presents Tommy Bahama Outdoor Furniture's
Indochine Collection
- Joe's Tropical Store presents the Indochine Collection by Tommy Bahama
Outdoor Furniture
Incorrect Usage (co-branding of manufacturer and Tommy Bahama):
- Joe's Tropical Store presents Tommy Bahama Outdoor Furniture by Brown
Jordan
- Joe's Tropical Store presents Brown Jordan's Tommy Bahama Outdoor
Furniture
LOGO USAGE
Corporate name recognition will only be acceptable through logo use. The Tommy
Bahama logo has been uniquely modified and should avoid being set as type.
It is critical to all Tommy Bahama retailers that this policy is strictly
followed. If you are unsure of your compliance with this policy, please call the
Director of Licensing for clarification of what you are considering before the
ads are placed and run.
THANK YOU.
EXHIBIT N
NOTICE TO THIRD PARTIES
NOTICE TO MANUFACTURERS, SUBCONTRACTORS, SUPPLIERS, DISTRIBUTORS,
TRANSPORTERS, AND OTHER THIRD PARTIES
Name:
________________________________________________________________________________
Address:
________________________________________________________________________________
This is to serve as notice to the above-named Third Party that TOMMY BAHAMA
GROUP, INC. ("TBG") has licensed ______________________ to use certain preferred
selections of fabric, material, styles, designs, patterns or color combinations
created by TBG ("Licensed Designs") in connection with the production of
_________________ to be sold by _______________________ under the TOMMY BAHAMA
name and trademarks ("Licensed Products").
TBG has granted __________________ the right to utilize the services of the
above-named Third Party on the condition that such Third Party will utilize
those Licensed Designs solely in connection with Licensed Products. It will NOT
make use of those Licensed Designs in the production, distribution or sale of
any other items of merchandise that may be produced, distributed or sold by the
above-named Third Party on its own behalf or on behalf of another. Any violation
by the Third Party of these restrictions shall be grounds for immediate
termination of the Third Party's services relating to Licensed Products, and may
be the basis for a legal infringement action by TBG against the Third Party.
ACCEPTED AND AGREED:
[NAME OF LICENSEE] [NAME OF THIRD PARTY]
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
EXHIBIT O
SUPPLIER AGREEMENT AND CERTIFICATION
MANUFACTURING AGREEMENT
THIS AGREEMENT is made as of the ________ day of ________, 200__, by and between
[LICENSEE], having an office at ________________________ (hereinafter referred
to as the "Company"), and _________________________ having an office at
________________________________ (hereinafter referred to as the
"Manufacturer").
WITNESSETH:
WHEREAS, Manufacturer is engaged in the manufacture of garments and/or other
items of merchandise:
WHEREAS, Company wishes to contract with Manufacturer for manufacture of certain
products from time to time ("Products"), which will bear the trademark TOMMY
BAHAMA, and any related logos, crests, emblems or symbols, and all combinations,
forms and derivatives thereof as are from time to time used by Company or any of
its affiliates, whether registered or unregistered (the "Trademarks"); and
WHEREAS, Company has been licensed by the Tommy Bahama Group, Inc. ("TBG"), the
owner of all rights, title and interests in and to the Trademarks, to use the
Trademarks.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereby agree as follows:
1. THE PRODUCTS.
Company and TBG have created certain designs and patterns from which
Manufacturer will create three-dimensional samples. Company shall advise
Manufacturer if the samples meet Company's quality requirements within fifteen
(15) days of receipt. Manufacturer shall make any modifications to the samples
as required by Company. Samples accepted by Company shall be designated as
prototypes for the purposes of this Agreement.
2. TERM.
(a) The term of this Agreement shall commence as of the date hereof and continue
through May 31, __________.
(b) In the event the Manufacturer shall have faithfully performed each and every
obligation of this Agreement during the Term referred to in Paragraph 2(a)
above, then this Agreement shall automatically renew from month to month
commencing immediately upon expiration of the term, unless either party has
given the other thirty (30) days written notice of its intention to terminate
the Agreement.
3. MANUFACTURE.
(a) Manufacturer shall only manufacture the specific number of Licensed Products
as requested by Company and at no time shall manufacture excess goods or
overruns. Manufacturer shall not sell any Licensed Products bearing the
Trademarks to any third parties without the express written consent of the
Company.
(b) Manufacturer shall manufacture the Licensed Products and packaging to
conform in quality and specifications to the prototypes as defined in Paragraph
1, above.
(c) All Licensed Products and packaging manufactured by Manufacturer shall be
delivered to locations specified by Company or directly to the Company,
whichever Company may direct.
4. COMPLIANCE WITH CODE; APPLICABLE LAWS.
(a) Attached hereto as ADDENDUM A is TBG's Supplier Code of Conduct (the "Code")
which applies to any entity manufacturing merchandise under any of the
trademarks owned by or licensed to TBG (Including the components therefore). As
a condition to manufacturing Licensed Products hereunder, the Manufacturer shall
comply with the terms of the Code and evidence such compliance by, (1) upon
execution of this Agreement, executing the Code in the form as attached or such
other form as provided by TBG, and returning such document to TBG, and (2)
publicly displaying the Code in the language of the applicable country, in a
form as provided by TBG from time to time, in a clearly visible location in
Manufacturer's facility at all times while this Agreement is in effect.
(b) In order to ensure compliance with the Code, Company has developed a program
of monitoring its manufacturers and such manufacturers' subcontractors
(hereinafter the "Supplier Monitoring Program"). As a condition to manufacturing
Licensed Product hereunder, Manufacturer hereby agrees that it shall cooperate
fully with the Supplier Monitoring Program, which cooperation includes but is
not limited to Company's inspections in accordance with Paragraph 5, below.
(c) For purposes of this Agreement a "Subcontractor" means an entity or an
individual that or whom Manufacturer either hires or pays to perform the
manufacturing tasks that Manufacturer could otherwise perform itself at its own
facility or through its own employees and staff. A "Supplier" means an entity or
individual that produces components bearing the Trademarks or fabric for the
Licensed Products and provides such components to the Manufacturer in order to
assemble the finished merchandise. Prior to utilizing any Subcontractor or
Supplier, Manufacturer shall provide written notice to Company of: (i) the name
and address of each such Subcontractor and Supplier; (ii) the nature and type of
work performed or product supplied to Manufacturer; and (iii) duration of the
Subcontractor or Supplier relationship.
(d) Within thirty (30) days from executing this Agreement for any existing
Subcontractor and Suppliers, and within thirty (30) days after establishing a
new arrangement with a Subcontractor or Supplier, Manufacturer shall obtain and
provide to Company the signature of an authorized representative from each of
its Subcontractors (if any) on a Manufacturing Agreement in the same form as
this Agreement. Manufacturer shall further obtain and provide to Company the
signature of an authorized representative from each of Manufacturer's Suppliers
on a
Certification in the same form as that which is attached hereto and hereafter
referred to as ADDENDUM B, and provided by Company from time to time, or such
other form as provided by Company. In the event Manufacturer has knowledge of,
has reason to believe, or should have reason to know that any Supplier or
Subcontractor used by Manufacturer is in breach of the Certification or
Manufacturing Agreement, as the case may be, Manufacturer shall immediately
notify Company and Manufacturer shall, at its sole expense, take immediate
action to require the breaching party to rectify such breach, including, where
Company deems it necessary, immediate termination of its relationship with such
Supplier or Subcontractor. If Manufacturer fails to take immediate action,
Company shall have the right to remain primarily liable and completely obligated
under all of the provisions of this Agreement in respect of such subcontracting
and supplier arrangement.
(e) Manufacturer certifies that it has in effect a program of monitoring its
Subcontractors and Suppliers which manufacture TBG brand merchandise which is
sufficient to ensure their compliance with the Code and all applicable state,
local and foreign laws and regulations pertaining to wages, overtime
compensation, benefits, hours, hiring and employment, workplace conditions and
safety, the environment, collective bargaining, freedom of association and that
their products and/or the components thereof are made without the use of child
(persons under the age of 15 or younger than the age for completing compulsory
education, if that age is younger than 15), prison, indentured, exploited
bonded, forced or slave labor.
(f) Manufacturer shall ensure that all merchandise manufactured hereunder shall
be manufactured in compliance with all federal, state and local laws which
pertain to the manufacture of clothing, apparel, and other merchandise including
the Flammable Fabrics Act, as amended, and regulations thereunder and
Manufacturing guarantees, that with regard to all products, fabrics or related
materials used in the manufacture of the Licensed Products, for which
flammability standards have been issued, amended or continued in effect under
the Flammable Fabrics Act, as amended, reasonable and representative tests, as
prescribed by the Consumer Product Safety Commission, have been performed which
show that the Licensed Products at the time of their shipment or delivery
conform to the above-referenced flammability standards as are applicable.
(g) Manufacturer shall manufacture or cause to manufacture all Licensed Products
(including components thereof) manufactured in the United States, in compliance
with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor
Standards Act, as amended, and all regulations and orders of the United States
Department of Labor under Section 14 thereof, and applicable state and local
laws pertaining to child labor, minimum wage and overtime compensation, and, if
the Licensed Products are manufactured outside the United States, in compliance
with all applicable laws, including but not limited to, wage, overtime
compensation, benefits, hours, hiring and employment, workplace conditions and
safety, environmental, collective bargaining, freedom of association laws of the
country of manufacture and without the use of child (persons under the age of 15
or younger than the age for completing compulsory education, if that age is
younger than 15), prison, indentured, exploited bonded, forced or slave labor.
(h) Manufacturer acknowledges that it has read and understands Company's policy
with regard to the manufacture of Licensed Products for Company. Manufacturer
further agrees that it shall, SIMULTANEOUS to executing this Agreement, execute
and abide by the Certification attached as
ADDENDUM B, and shall execute and abide by all Certifications provided by
Company from time to time. Failure by Manufacturer to execute and abide by such
Certification shall be grounds for immediate termination of this Agreement by
Company.
(i) Manufacturer shall not utilize or permit any Subcontractors or Suppliers to
utilize in the manufacture or treatment of any of the Licensed Products
(including the components thereof) manufactured hereunder any Azo dyes that can
be split into any of the following amines:
CAS#
--------
4-Aminobiphenlyl 92-67-1
Benzidine 92-87-5
4-Chloro-o-toluidine 95-69-2
2-Naphthylamin 91-59-8
o-Aminoazotoluol 97-5-3
2-amino-4-nitrotoluol 99-55-8
p-Chloroaniline 106-47-8
2,4-Diaminoanisole 615-05-4
4,4'-Diaminodiphenylmethane 101-77-9
3,3'-Dichlorbenzidin 91-94-1
Aminoanabenzane 17-7
3,3'-Dimethoxybenzidine 119-90-4
3,3'-Dimethylbenzadine 119-93-7
3,3'-Dimethyl- 838-88-0
4,4'diaminodiphenylmethane
Kresidin 120-71-8
4,4'Methaylen-bis
(2-chloranilin 101-14-4
4,4'Oxydianiline 101-80-4
4,4'Thiodianiline 139-65-1
o-Toluidine 95-53-4
2,4-Toluylenediamine 95-80-7
2,4,5-Trimethylanilin 137-
o-Anisidine
(j) Manufacturer's use or any of Manufacturer's Subcontractors or Suppliers use
of the following chemicals in connection with the manufacture or treatment of
any of the Licensed Products (including the components thereof) manufactured
hereunder, shall be in accordance with the following standards or such other
standards Company may designate from time to time:
(i) Formaldehyde: Must be less than 300 p.p.m. when tested in by
the Acetylacetone method in accordance with Japanese law
112.
(ii) Pentachlorophenol (Pesticides): Must be less than 5 p.p.m.
(iii) Nickel: In the event any metal parts of a garment or other
merchandise coming into contact with the skin, contain
nickel in excess of 0.5 micrograms per square
centimeter/week, Company must be so notified and special
warning labels need to be attached to the garment.
5. INSPECTION.
(a) With or without notice from Company or TBG, Manufacturer shall arrange for
and provide access to Company's and/or TBG's representative(s), including, but
not limited to, any independent entity designated by Company or TBG's legal
representative(s), to: (i) Manufacturer's manufacturing facility, residential
facilities (if any) and any manufacturing and/or residential facility operated
by and of Manufacturer's Subcontractors; (ii) Manufacturer's books, records and
documents necessary to evidence Manufacturer's compliance with the Code and all
applicable laws, rules and regulations, including, but not limited to, employee
wages, employee timecards, withholding rates and deductions, worker's contracts
and/or agreements, any company policies affecting employees, evidence of
employee age, shipping documents, cutting reports and other documentation
relating to the manufacture and shipment of the Licensed Products; and (iii)
Manufacturer's books, records and documents relating to the use of chemicals and
dyestuffs in the fabrics, trims, garments and other merchandise manufactured
hereunder. For purposes of this Paragraph, all such books, records and
Manufacturer shall maintain documents in a secure and readily accessible
location for a period of three (3) years from their creation.
(b) The access provided by Manufacturer as set forth in Paragraph 5(a), above,
shall include Company's and TBG's right to inspect, test, and take samples of
the Licensed Products, whether finished or semi-finished, at any time during the
manufacturing process to ensure that the manufacture of the Licensed Products is
in accordance with the terms and restrictions herein contained.
(c) Company shall have the right to reject any Licensed Products or packaging
not meeting the standards described in Paragraph 1, above. Manufacturer shall
not have the right to sell or otherwise distribute any rejected Licensed
Products or packaging. All such products shall be destroyed according to methods
and procedures provided by Company.
6. SHIPPING LEGEND.
All commercial invoices (bills of lading) which accompany all Licensed Products
must include the following language (either pre-printed or "stamped"):
"We hereby certify that the merchandise (including components thereof)
covered by this shipment was manufactured in compliance with the TBG
Supplier Code of Conduct and: (1) if the merchandise was manufactured in
the United States, it was manufactured in compliance with (a) section 6, 7,
and 12 of the Fair Labor Standards Act, as amended and all regulations and
orders of the United States Department of Labor under section 14 thereof,
and (b) state and local laws pertaining to child labor, minimum wage and
overtime compensation; or (2) if the merchandise was manufactured outside
the United States, it was manufactured in compliance with the wage and hour
laws of the country of manufacture and without the use of child (persons
under the age of 15 or younger than the age of completing compulsory
education, if that age is younger than 15), prison, indentured, exploited
bonded, forced or slave labor. We further certify that we have in effect a
program of monitoring our Subcontractors and Suppliers, which manufacture
TOMMY BAHAMA brand merchandise for compliance with the
foregoing. We also certify that the merchandise is in compliance with all
laws governing the designation of country of origin and, if applicable, is
being shipped under legally issued and valid export license or visa."
Any merchandise shipped that is not accompanied by a commercial invoice bearing
the required language will be subject to rejection and returned at
Manufacturer's expense and Manufacturer may be charged for any and all costs
that are incurred by Company due to the rejection, including, but not limited
to, damages sustained as a result of Company's liability to customers, any
resulting fines and penalties and attorneys' fees for said rejected goods. Such
rejected goods may not be sold or distributed by Manufacturer to any entity
other than Company.
7. USE OF TRADEMARKS.
(a) Except in connection with the manufacture of Licensed Products, Manufacturer
shall not use the Trademarks, in any manner whatsoever (including, without
limitation, for advertising, promotion and publicity purposes), without
obtaining the prior written approval of TBG, which may be withheld in TBG's sole
discretion. In any event, Manufacturer shall not at any time use, promote,
advertise, display or otherwise commercialize the Trademarks or any material
utilizing or reproducing the Trademarks in any manner. Manufacturer shall not
make any reference in its business materials, advertising or in any of its
business activities to the fact that Manufacturer is being contracted by Company
to manufacture merchandise under any Trademarks owned by or licensed to TBG
(b) The Trademarks will appear on all of the Licensed Products and all packaging
in the manner provided by Company.
(c) No other trademarks or notices shall appear on Licensed Products or
packaging without Company's and TBG's prior written consent in each instance.
(d) Manufacturer's use of the Trademarks shall inure to the benefit of TBG.
Manufacturer shall take any and all steps required by TBG and the law to perfect
TBG's rights therein.
8. PROPERTY OF OWNER.
(a) Manufacturer recognizes the great value of the goodwill associated with the
Trademarks and the identification of the Licensed Products with the Trademarks
and acknowledges that the Trademarks and all rights therein and goodwill
pertaining thereto belong exclusively to TBG. Manufacturer further recognized
and acknowledges that a breach by Manufacturer of any of its covenants,
agreements or other undertakings hereunder will cause TBG irreparable damage,
which cannot be adequately remedied in damages in an action at law, and may, in
addition thereto, constitute an infringement of TBG's rights in the Trademarks,
thereby entitling TBG to equitable remedies, costs and reasonable attorney's
fees.
(b) To the extent any rights in and to the Trademarks are deemed to accrue to
Manufacturer, Manufacturer hereby assigns any and all such rights, at such time
as they may be deemed to accrue, including the related goodwill, to TBG.
(c) Manufacturer shall (i) never challenge the validity of TBG's ownership in
and to the Trademarks or any application for registration thereof, or any
trademark registration thereof and (ii) never contest the fact that
Manufacturer's rights under this Agreement are solely those of a manufacturer
and terminate upon expiration of this Agreement. Manufacturer shall, at any
time, whether during or after the term of the Agreement, execute any documents
reasonably requested by TBG to confirm TBG's ownership rights. All rights in the
Trademarks other than those specifically granted herein are reserved by TBG for
its own use and benefit.
(d) Without limiting the generality of any other provision of this Agreement,
Manufacturer shall not (i) use the Trademarks, in whole or in part, as a
corporate or trade name or (ii) join any name or names with the Trademarks so as
to form a new trademark. Manufacturer agrees not to register, or attempt to
register, the Trademarks in its own name or any other name, anywhere in the
world.
(e) All provisions of this paragraph shall survive the expiration or termination
of this Agreement.
9. TRADEMARK PROTECTION.
(a) In the event that Manufacturer learns of any infringement or imitation of
the Trademarks or of any use by any person or entity of a trademark similar to
the Trademarks, it shall promptly notify Company and thereupon, Company shall so
notify TBG. TBG shall take such actions as it deems advisable for the protection
of its rights in and to the Trademark and, if requested to do so by TBG,
Manufacturer shall cooperate with TBG in all respects. In no event, however,
shall TBG be required to take any action if it deems it inadvisable to do so.
(b) TBG shall defend, at its cost and expense, and with counsel of its own
choice, any action or proceeding brought against Manufacturer for alleged
trademark infringement arising out of Manufacturer's use of the Trademarks in
accordance with the provisions of this Agreement.
(c) Manufacturer shall cooperate with TBG in the execution, filing and
prosecution of any trademark, copyright or design patent applications that TBG
may desire to file and for that purpose Manufacturer shall supply to TBG from
time to time such samples as may be reasonably required.
(d) All provisions of this paragraph shall survive the expiration or termination
of this Agreement.
10. TRANSSHIPMENT. Transshipment is an illegal practice of falsely documenting
the country of origin of the raw materials used to manufacture the Licensed
Products and the finished Licensed Products shipped to the United States in
order to evade quota restraints on the country of actual production and the
shipment of products under counterfeit export licenses or visas. Manufacturer
acknowledges that transshipment, in any form, violates U.S. federal law, that
Company and TBG will review all documents received from Manufacturer to assure
the veracity and the authenticity of the sources of Products and that, upon
indication of transshipment of the Products by Manufacturer, Company or TBG
reserves the right to immediately terminate this Agreement and pursue available
remedies against Manufacturer.
11. SECONDS, THIRDS OR EXCESS GOODS. Manufacturer shall not have the right to
sell any Licensed Products or packaging which are determined to be seconds,
thirds or are in excess
of the amount of the Licensed Products requested by Company. Company shall
purchase all seconds, thirds, or excess products, including trim, at a
reasonable fair market price. Company shall have the right to inspect any
seconds, thirds or excess Licensed Products to ensure that they comply with the
terms of this Agreement.
12. STOLEN GOODS OR DAMAGED GOODS. Manufacturer will provide Company with
immediate notice of any stolen Licensed Products or damaged Licensed Products
including Licensed Products that were then in production. With regard to damaged
Licensed Products, Manufacturer shall not have the right to sell any damaged
Licensed Products. With regard to stolen Licensed Products, Manufacturer shall
cooperate with Company with respect to any action regarding the stolen Licensed
Products.
13. DESIGN OWNERSHIP. All rights, including without limitation, copyright, trade
secret and design patent, to designs for the Licensed Products including,
without limitation, artwork, prints, patterns, package designs, labels,
advertising or promotional materials or any other designs using or used on or
affixed thereto, and to any package design, bearing the Trademarks shall, as
between the parties hereto be the property of TBG. All Licensed Products
manufactured from designs submitted by Manufacturer and approved by TBG shall
bear the Trademarks.
14. CONFIDENTIALITY. During the term of this Agreement and thereafter, each
party shall keep strictly secret and confidential any and all information
acquired from the other party hereto or its designee and shall take all
necessary precautions to prevent unauthorized disclosure of such information.
Manufacturer acknowledges that it will receive from Company prints, designs,
ideas, sketches, and other materials which Company and TBG intend to use on or
in connection with lines of merchandise which have not yet been put into the
channels of distribution. The parties recognize that these materials are
valuable property of TBG. Manufacturer acknowledges the need to preserve the
confidentiality and secrecy of these materials and agrees to take all necessary
steps to ensure that use by it or by its employees and/or agents will in all
respects preserve such confidentiality and secrecy. Manufacturer shall take all
reasonable precautions to protect the secrecy of the materials, samples, and
designs prior to their commercial distribution or the showing of samples for
sale, and shall not manufacture any merchandise employing or adapted from any of
said designs except for Company, TBG or its affiliates or designees.
15. FORCE MAJEURE.
(a) No failure or omission by either of the parties to perform any of its
obligations under this Agreement shall be deemed a breach of this Agreement if
such failure or omission is the result of acts of God, war, riot, accidents,
compliance with any action or restriction of any government or agency thereof,
strikes or labor disputes, inability to obtain suitable raw materials, fuel
power or transportation, or any other factor or circumstance beyond the control
of the party, which is not attributable to the negligence of such party.
(b) Any suspension of performance by reason of this paragraph shall be limited
to the period during which such cause of failure exists, but such suspension
shall not affect the running of the term of this Agreement. However, if the
suspension of performance by reason of this paragraph exceeds six months, either
party may give written notice of termination of this Agreement.
16. MANUFACTURER'S WARRANTIES AND REPRESENTATIONS.
Manufacturer warrants and represents that:
(a) It has and will have throughout the term of this Agreement, the full power,
authority and legal right to execute and deliver, and to perform fully and in
accordance with all of the terms of this Agreement.
(b) The entering of this Agreement by Manufacturer does not violate any
agreements, rights or obligations existing between Manufacturer and any other
person, entity, or corporation.
(c) It is not engaged in and will not engage in any activities which are in
violation of any applicable domestic foreign or international laws, rules or
regulations, including without limitation laws, rules or regulations governing
labor, the environment, the manufacture and sale of goods, U.S. Customs laws or
illegal transshipment. Company maintains a policy against engaging in any
illegal activities and will not buy or sell products provided throughout the use
of any unlawful or unethical practices.
(d) It accurately states the country of origin on all products, that it does not
and will not transship, and it will act to stop or prevent any known illegal
transshipment activity.
(e) It shall not utilize, nor permit any of its subcontractors or suppliers to
utilize in the manufacture or treatment of any of the Licensed Products
(including the components thereof) manufactured hereunder any AZO dyes that can
be split into any of the amines set forth in Paragraph 3(i), above.
(f) Its use or any of its subcontractors or suppliers use of the chemicals set
forth in Paragraph 3(i) above, in connection with the manufacture or treatment
of any of the Licensed Products (including the components thereof) manufactured
hereunder, shall be in accordance with the standards set forth in Paragraph 3(i)
or such other standards as Company may designate from time to time.
17. COMPANY'S WARRANTIES AND REPRESENTATIONS.
Company warrants and represents that:
(a) it has, and will have throughout the term of this Agreement, the right to
authorize use of the Trademarks to Manufacturer in accordance with the terms and
provisions of this Agreement; and
(b) the entering of this Agreement by Company does not violate any agreements,
rights or obligations existing between Company and any other person, entity, or
corporation.
18. INDEMNIFICATIONS.
(a) Company hereby indemnifies Manufacturer and shall hold it harmless from any
loss, liability, damage, cost or expense (including reasonable attorney's fees)
arising out of any claims or suits which may be brought against Manufacturer by
reason of the breach by Company of the warranties or representations as set
forth in Paragraph 17, above, provided that Manufacturer
gives prompt written notice, and full cooperation and assistance to Company
relative to any such claim or suit, and that Company shall have the option to
undertake and conduct the defense of any suit so brought. Manufacturer shall
cooperate fully in the respect with Company in the conduct and defense of said
suit and/or proceedings.
(b) Manufacturer indemnifies and agrees to hold Company harmless from any loss,
liability, damage, cost or expense (including reasonable attorney's fees),
arising out of (i) any breach of the terms herein contained; (ii) any claims or
suits by reason of any unauthorized use by Manufacturer in connection with the
Licensed Products or Trademarks covered by this Agreement; (iii) Manufacturer's
noncompliance with any applicable federal, state, or local law or with any other
applicable governmental units or agency's rules, regulations; and (iv) any
alleged defects and/or inherent dangers in Licensed Products or use thereof.
(c) If reasonably available in the country in which Manufacturer operates it
factory, Manufacturer agrees to obtain, at its own expense, product liability
insurance providing adequate protection for Company and Manufacturer against any
claims or suits in an amount no less than US$3,000,000. If applicable, within
thirty (30) days from the date thereof, Manufacturer undertakes to submit to
Company a fully paid policy or Certificate of Insurance naming Company as an
insured party and, requiring that the insurer shall not terminate or materially
modify such without written notice to Company of at least twenty (20) days.
19. TERMINATION.
(a) Company shall have the right to terminate this Agreement immediately upon
written notice to Manufacturer if Manufacturer breaches any of its obligations
under this Agreement or such other occurrences as outlined below, and such
breach remains uncured or cannot be cured by Manufacturer within ten (10) days
from receipt of notice;
(b) Company shall have the right to terminate this Agreement immediately upon
written notice to Manufacturer, if Manufacturer is found at any time to be in
breach of the representation made in Paragraph 16(e) or if any governmental
agency or other body or office or official vested with appropriate authority
deems the Licensed Products to be harmful or defective in any way, manner or
form, or are being sold distributed in contravention of applicable laws and
regulations or in a manner likely to cause harm;
(c) Company shall have the right to terminate this Agreement immediately upon
written notice to Manufacturer, if Manufacturer manufactures the Licensed
Products without the prior written approval of Company as provided herein;
(d) Company shall have the right to terminate this Agreement upon ten (10) days
written notice to Manufacturer, if Manufacturer is unable to pay its debts when
due, or makes any assignments for the benefit of creditors, or files any
petition under the bankruptcy or insolvency laws of any jurisdiction, country or
place, or has or suffers as a receiver or trustee to be appointed for its
business or property, or is adjudicated a bankrupted or an insolvent;
(e) Company shall have the right to terminate this Agreement upon ten (10) days
written notice to Manufacturer, if Manufacturer fails to make timely delivery of
the Licensed Products; or
(f) Notwithstanding the foregoing provisions, Company shall have the right to
terminate this Agreement, with or without cause, upon thirty (30) days notice to
Manufacturer, providing however, that, upon written approval by Company,
Manufacturer shall have the right to complete any work then in progress.
20. ACTS UPON EXPIRATION OR TERMINATION OF THIS AGREEMENT.
(a) Upon and after the expiration or termination of this Agreement, Manufacturer
agrees not to make reference in its advertising or its business materials to
having been formerly associated with Company or the Trademarks.
(b) Upon and after the expiration or termination of this Agreement, Manufacturer
will refrain from further use of the Trademarks or of anything confusingly
similar thereto, in connection with the manufacture of any products.
Additionally, Manufacturer shall immediately return all originals and copies of
all sketches, patterns, prototypes, samples or other materials relating to the
Licensed Products to Company.
(c) In the event of expiration or termination of this Agreement, as herein
provided, with the exception of the Licensed Products which Manufacturer may,
with Company's consent, ship to satisfy any unfilled, confirmed orders for the
current season it had received prior to said expiration or termination, Company
shall have the prior right and option to purchase any or all of the Licensed
Products and packaging materials, as then in Manufacturer's possession or
carried on its books of account. Upon such termination or expiration,
Manufacturer shall immediately cause physical inventories to be taken of (i)
Licensed Products on hand; (ii) Licensed Products in the process of manufacture;
and (iii) all packaging materials, which inventories shall be reduced to writing
and a copy thereof shall be delivered to Company not later than fifteen (15)
days from termination or expiration. Written notice of the taking of each
inventory shall be given to Company at least forty-eight (48) hours prior
thereto. Company shall have the right to be present at such physical inventory
or to take its own inventory, and to exercise all rights it has available with
respect to the examination of Manufacturer's books and records. If Manufacturer
does not allow Company to take such inventory, it shall have not right to sell
the remaining Licensed Products without Company's prior approval.
(d) Manufacturer recognizes that any sale of the Licensed Products upon
termination or expiration, would cause irreparable damage to the prestige of the
Company and to the Trademarks, and to the goodwill pertaining thereto.
(e) Upon expiration or termination of this Agreement, Manufacturer shall cease
the manufacture of Licensed Products. All the Licensed Products set forth on the
inventories referred to in subdivision (i) and (ii) of Paragraph 20(c) which are
not purchased by Company pursuant to such paragraph may be sold subject to
Company's prior right to approve the customers in writing and the terms and
conditions of each sale. Such sale shall otherwise be strictly in accordance
with the terms, covenants and conditions of this Agreement as though the
Agreement had not expired or terminated. In no event shall Manufacturer sell any
Licensed Products to any Third Party without the prior written approval of
Company.
21. NOTICES.
All notices which either party hereto is required or may desire to give shall be
given by addressing the same to the address hereinafter in this paragraph, or as
such other address as may be designated in writing by any party in a notice to
the other given in the manner prescribed in this paragraph. All such notices
shall be deemed to be sufficiently given five (5) days after the mailing by
registered or certified mail, or in the date of electronic facsimile for which
the sender obtains a confirmation of successful transmission. The addresses to
which any such notices, shall be given are the following:
TO COMPANY: __________________ TO MANUFACTURER: ________________
22. NO PARTNERSHIP.
This Agreement does not constitute and shall not be construed as a partnership
or joint venture between Company and Manufacturer. Neither party shall have any
right to obligate or bind the other party in any manner whatsoever, and nothing
herein contained shall give, or is intended to give, any rights of any kind to
any third persons.
23. NON-ASSIGNABILITY.
This Agreement shall bind and inure to the benefit of Company and its successors
and assigns. This Agreement is personal to Manufacturer, and Manufacturer shall
not transfer or sublicense its rights hereunder and neither this Agreement nor
any of the rights of Manufacturer hereunder shall be sold, transferred or
assigned by Manufacturer and no rights hereunder shall devolve by operation of
law or otherwise upon any receiver, liquidator, trustee or other party.
24. SEVERABILITY.
If any provision or any portion of this Agreement shall be construed to be
illegal, invalid, or unenforceable, such shall be deemed stricken and deleted
from this Agreement to the same extent and effect as if never incorporated
herein, but all other provisions of this Agreement and remaining portion of any
provision which is illegal, invalid or unenforceable in part shall continue in
full force and effect.
25. HEADINGS.
The headings of the Paragraphs of this Agreement are for convenience only and
shall in no way limit or affect the term or conditions of this Agreement.
26. COUNTERPARTS.
This Agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
27. CONSTRUCTION.
This Agreement shall be construed in accordance with the laws of the State of
New York of the United States of America with the same force and effect as if
fully executed and to be performed therein.
28. JURISDICTION.
The parties hereby consent to the exclusive jurisdiction of the United States
District Court for the Southern District of New York and of any of the courts of
the State of New York in any dispute arising under this Agreement and agree
further that service of process or notice in any such action, suit or proceeding
shall be effective if in writing and delivered in person or sent as provided in
Paragraph 21 hereof.
29. WAIVER, MODIFICATION, ETC.
No waiver, modification or cancellation of any term or condition of this
Agreement shall be effective unless executed in writing by the party charged
therewith. No written waiver shall excuse the performance of any acts other than
those specifically referred to herein. The fact that Company has not previously
insisted upon Manufacturer expressly complying with any provision of this
Agreement shall not be deemed to be a waiver of Company's future right to
require compliance in respect thereof and Manufacturer specifically acknowledges
and agrees that the prior forbearance in respect of any act, term or condition
shall not prevent Company from subsequently requiring full and complete
compliance thereafter.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date
first written above.
- ------------------------------------- ----------------------------------------
[LICENSEE NAME] [MANUFACTURER NAME]
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
ADDENDUM 1 TO
EXHIBIT O
TOMMY BAHAMA GROUP, INC.
CODE OF CONDUCT
These Standards apply to all of the Tommy Bahama Group, Inc. ("TBG") Business
Partners. TBG strongly encourages Business Partners to exceed these Standards
and promote best practices and compliance by Business Partners with the
Standards.
While TBG recognizes that there are different legal and cultural environments in
which Business Partners operate throughout the world, these Standards set forth
the basic minimum requirements Business Partners must meet in order to do
business with TBG. The Standards also provide the foundation for TBG ongoing
evaluation of compliance by Business Partners with the Standards.
Business Partners are defined as vendors, manufacturers, contractors,
subcontractors and other suppliers, sources and agents who provide TBG with
goods or services ordered pursuant to any purchase order, contract or agreement
issued directly by TBG or ordered on TBG behalf.
LAWS & REGULATIONS
All TBG Business Partners must operate in full compliance with all applicable
local and national laws, rules and regulations pertaining to all aspects of
factory operations in the jurisdiction of which they conduct business.
EMPLOYMENT PRACTICES
TBG will only do business with Business Partners whose workers are treated
fairly and who in all cases are present voluntarily, not put at risk of physical
harm, fairly compensated, and allowed the right of free association and not
exploited in any way. Business Partners shall ensure procedures are in place by
which workers, alleging violations of these Standards, may do so without fear of
negative repercussions.
In addition, TBG Business Partners must adhere to the following:
Wage and Benefits: TBG Business Partners must pay workers wages and legally
mandated benefits that comply with any applicable law. In addition to their
compensation for regular hours of work, workers shall be compensated for
overtime hours at such premium rates as are legally required, or in those
countries where such laws do not exist, at least equal to their regular hourly
wage rate.
Working Hours: TBG expects its Business Partners to operate based on prevailing
local work hours. Except in extraordinary circumstances, Business Partners shall
limit the number of hours that workers may work on a regularly scheduled basis
to the legal limit on regular and overtime hours established by local laws and
regulations in the jurisdiction in which they manufacture. subject to the
requirements of local law, a regularly scheduled workweek of no more than sixty
(60) hours and one day off in every seven (7) day period is encouraged. Partners
will comply with applicable laws that entitle workers to vacation time, leave
periods and
holidays. Business Partners must regularly provide reasonable rest periods and
one day off within a seven-day period. Any time worked over the norm for the
area should be compensated as prescribed by the local labor laws.
Child Labor: Use of child labor is strictly prohibited. Business Partners must
observe all legal requirements for the work of authorized minors, particularly
those relating to hours of work, wages, minimum education and working
conditions. TBG supports the development of legitimate, workplace apprenticeship
programs and Business Partners will be expected to comply with all laws and
regulations applicable to such apprenticeship programs.
"Child" is defined as a person who is younger than 15 (or 14 where the
law of that country permits) or younger than the age for completing compulsory
education in the country where such age is higher than 15. TBG will not utilize
Business Partners who use or permit the use of child labor in any of their
facilities.
Prison Labor / Forced Labor: Business Partners will not use or permit the use of
bonded labor, indentured labor, prison labor or forced Labor in the manufacture
or finishing of products ordered by TBG. Nor will TBG knowingly purchase
materials from a Business Partner utilizing bonded labor, indentured labor,
prison labor or forced Labor. "Forced labor" is defined as any work or service
which is extracted from any person under the threat of penalty for its
non-performance and for which the worker does not offer himself voluntarily.
Discrimination: While TBG recognizes and respects cultural differences,
employment (hiring, wages, benefits, advancement, termination, and retirement)
shall be based on the worker's ability and not on personal characteristics. TBG
believes that workers should be employed on the basis of their ability to do the
job, rather than on the basis of gender, age, disability, racial
characteristics, cultural or religious beliefs or similar factors. TBG will not
utilize Business Partners who discriminate against workers on the basis of
gender, age, disability, racial characteristics, cultural or religious beliefs
or similar factors.
Free Association: Workers must be free to join organizations of their own
choice. Business Partners shall recognize and respect the rights of workers to
freedom of association and collective bargaining. Workers shall not be subject
to intimidation or harassment in the peaceful exercise of their legal right to
join or to refrain from joining an organization.
Disciplinary Practices: All Business Partners must treat all workers with
respect and dignity. TBG will not utilize Business Partners who use, or permit
the use of corporal punishment, physical, sexual, psychological or verbal
harassment or other forms of mental or physical coercion, abuse or intimidation.
Business Partners shall not use, or permit the use of fines as a disciplinary
practice.
Women's Rights: All Business Partners will ensure that workers who are women
receive equal treatment in all aspects of employment. Pregnancy tests will not
be a condition of employment or continuation thereof and pregnancy testing, to
the extent it is provided, will be voluntary and at the option of the worker.
Workers will not be exposed to hazards that may endanger their reproductive
health and Business Partners will not force workers to use contraception.
Health & Safety: TBG will only utilize Business Partners who provide workers
with a clean, safe and healthful work environment designated to prevent
accidents and injuries arising out of or occurring while in the course of work
or as a result of the operation of a Business Partner's facility. All Business
Partners must comply with all applicable, legally mandated standards for
workplace health and safety. Where applicable, Business Partners who provide
residential facilities for their workers must provide safe and healthy
facilities that comply with legally mandated standards for health and safety.
ETHICAL STANDARDS
TBG will seek to identify and work with Business Partners who aspire as
individuals and in the conduct of their business to a set of ethical standards
which are compatible with TBG standards. Bribes, kickbacks or other similar
unlawful or improper payments are strictly prohibited to be given to any person
or entity to obtain or retain business.
ENVIRONMENTAL REQUIREMENTS
All Business Partners must comply with environmental rules, regulations and
standards applicable to their operations.
LEGAL REQUIREMENTS
TBG policy is to obey the laws of each country in which merchandise is
manufactured for TBG. Business Partners will comply with all applicable local
and national laws, rules, and regulations pertaining to all aspects of factory
operations. This includes compliance with these Standards and the terms and
conditions of purchase orders issued by TBG or on TBG's behalf and also requires
attention to U.S. country of origin regulations which govern quota
classification and the marking of products.
MONITORING / COMPLIANCE
TBG takes affirmative measures to monitor compliance with TBG Standards and
TBG's Purchase Order Terms and Conditions. Such measures may include
prescreening Business Partners, scheduled or random, announced and unannounced
on-site inspections of factories by TBG representatives, or certification by TBG
Business Partners that TBG Standards have been complied with.
TBG associates and representatives have been asked to be watchful for violations
of TBG Standards on visits to factories or manufacturing facilities and to
report questionable conduct to management for follow up and when appropriate,
for corrective action.
RECORD KEEPING
All Business Partners must maintain in the factories producing merchandise for
TBG all documentation necessary to demonstrate compliance with TBG Standards.
Business Partners must furnish TBG representatives reasonable access to
production facilities, employment records and workers for confidential
interviews in connection with monitoring factory or inspection visits. Business
Partners must promptly respond to reasonable inquires by TBG representatives
concerning the operations of factories with respect to TBG Standards.
SUBCONTRACTING
Business Partners shall not utilize subcontractors for the production of TBG's
merchandise, or components thereof, without TBG's prior written approval and
only after the subcontractor has
agreed to comply with TBG's Standards. Business Partners shall require each
TBG's approved subcontractor to abide by the Standards. Business Partners shall
be held accountable for a subcontractor's failure to abide by TBG's Standards.
CORRECTIVE ACTION
If a Business Partner is in violation of TBG's Standards, TBG will work with the
Business Partner to remediate the violation if at all possible. If this effort
is unsuccessful or not possible, TBG shall reevaluate its business relationship
with the Business Partner and shall take appropriate corrective action.
Corrective action may include cancellation of the affected order, prohibition of
subsequent use of a factory or termination of TBG business relationship with any
Business Partner found to be in violation of these Standards, or exercising any
other rights and remedies to which TBG may be entitled under Purchase Orders
issued by TBG or on behalf of TBG, at law or otherwise.
AGREED AND UNDERSTOOD:
VENDOR:
BY:
---------------------------------
NAME:
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TITLE:
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ADDENDUM 2 TO
EXHIBIT O
SUPPLIER CERTIFICATION
In consideration of the Tommy Bahama Group, Inc. ("TBG") placing orders for the
manufacture of TOMMY BAHAMA brand merchandise with us in the future, and in
compliance with TBG's Manufacturing Agreement with us (the "Agreement"), we
hereby certify that:
I. Any merchandise (including components thereof) we manufacture or cause to be
manufactured under the Agreement will be manufactured in compliance with: (1)
all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards
Act, as amended, and all regulations and orders of the United States Department
of Labor under Section 14 thereof, and applicable state and local laws
pertaining to child labor, minimum wage and overtime compensation, and, if the
merchandise is manufactured outside the United States, it will be manufactured
in compliance with the wage, overtime compensation, benefits, hours, hiring and
employment, workplace conditions and safety, environmental, collective
bargaining, freedom of association laws of the country of manufacture and
without the use of child (persons under the age of 15 or younger than the age
for completing compulsory education, if that age is younger than 15), prison,
indentured, exploited bonded, forced or slave labor; (2) we currently have in
effect and will maintain a program of monitoring all of our suppliers and
subcontractors, subcontract sewing shops and other designated contract
facilities producing TOMMY BAHAMA brand merchandise for compliance with (1)
above; (3) we will obtain the signature of an authorized representative of our
suppliers, subcontractors, subcontract sewing shops and other designated
contract facilities producing TOMMY BAHAMA brand merchandise on a current
supplier agreement, as provided by TBG; (4) within two (2) weeks of the
execution of this Certificate, we will provide to TBG the names and addresses of
all of our suppliers, subcontractors, subcontract sewing shops and other
designated contract facilities producing TOMMY BAHAMA brand merchandise under
the Agreement and all such merchandise shall be manufactured solely in factories
(whether operated by our suppliers, subcontractors, subcontract sewing shops or
designated contract facilities) that have been inspected and approved in writing
by our authorized employee or agent; and (5) all shipping documents which
accompany all TOMMY BAHAMA brand merchandise will include the following language
(either pre-printed or "stamped"):
"We hereby certify that the merchandise (including components thereof)
covered by this shipment was manufactured in compliance with (1) all
applicable requirements of Sections 6, 7, and 12 of the Fair Labor
Standards Act, as amended and all regulations and orders of the United
States Department of Labor under Section 14 thereof, and applicable state
and local laws pertaining to child labor, minimum wage and overtime
compensation, and (2) if manufactured outside the United States, was
manufactured in compliance with all applicable requirements of the wage,
overtime compensation, benefits, hours, hiring and employment, workplace
conditions and safety, environmental, collective bargaining, freedom of
association laws of the country of manufacture and
without the use of child (persons under the age of 15 or younger than the
age for completing compulsory education, if that age is younger than 15),
prison, indentured, bonded, forced or slave labor. We further certify that
we currently have in effect a program of monitoring our Suppliers and
Subcontractors and other designated contract facilities which manufacture
TOMMY BAHAMA brand merchandise to ensure their compliance with the Fair
Labor Standards Act and all state, local and foreign laws pertaining to
wages, overtime compensation, benefits, hours, hiring and employment,
workplace conditions and safety, environmental, collective bargaining,
freedom of association and that their products or the components thereof
are made without the use of child (persons under the age of 15 or younger
than the age for completing compulsory education, if that age is higher
than 15), prison, indentured, bonded, forced or slave labor. We also
certify that upon importation (if applicable) this shipment is in
compliance with all laws applicable to the designation of country of origin
and is being shipped under legally issued and valid export license or
visa."
II. Neither we, nor any of our subcontractors or suppliers, will in the
manufacture or treatment of any of the merchandise and Licensed Products
(including the components thereof) manufactured hereunder use any Azo dyes that
can be split into any of the following amines:
CAS #
--------
4-Aminobiphenlyl 92-67-1
Benzidine 92-87-5
4-Chloro-o-toluidine 95-69-2
2-Naphthylamin 91-59-8
o-Aminoazotoluol 97-56-3
2-amino-4-nitrotoluol 99-55-8
p-Chloroaniline 106-47-8
2,4-Diaminoanisole 615-05-4
4,4'-Diaminodiphenylmethane 101-77-9
3,3'-Dichlorbenzidin Aminoanabenzane 91-94-1
3,3'-Dimethoxybenzidine 119-90-4
3,3'Dimethylbenzadine 119-93-7
3,3'-Dimethyl- 838-88-0
4,4'diaminodiphenylmethane p-Kresidin 120-71-8
4,4'Methaylen-bis-(2-chloranilin) 101-14-4
4,4'Oxydianiline 101-80-4
4,4'Thiodianiline 139-65-1
o-Toluidine 95-53-4
2,4-Toluylenediamine 95-80-7
2,4,5-Trimethylaniline 137-17-7
o-Anisidine 137-17-7
and;
III. We, and our subcontractors or suppliers, will only use the following
chemicals in connection with the manufacture or treatment of any of the
merchandise and products (including the components thereof) manufactured
hereunder, in accordance with the following standards or any further standards
TBG designates from time to time:
(i) Formaldehyde: Must be less than 300
p.p.m. when tested in the Acetylacetone
method in accordance with Japanese law
112.
(ii) Pentachlorophenol (Pesticides): Must be
less than 5 p.p.m.
(iii) Nickel: In the event any metal parts of
a garment or other merchandise coming
into contact with the skin, contain
nickel in excess of 0.5 micrograms per
square centimeter/week, Company must be
so notified and special warning labels
need to be attached to the garment.
DATE: ________________
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[Company Name]
By:
------------------------------------
[Authorized Signature]
Print Name:
----------------------------