EXHIBIT 10.28
SETTLEMENT AGREEMENT
BY AND BETWEEN
SPEEDO INTERNATIONAL LIMITED
AND
AUTHENTIC FITNESS CORPORATION,
AUTHENTIC FITNESS PRODUCTS, INC.,
THE WARNACO GROUP, INC.
AND
WARNACO INC.
NOVEMBER 25, 2002
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into by and between SPEEDO
INTERNATIONAL LIMITED, a company duly organized under the laws of England and
Wales having a principal place of business and offices at The Pentland Centre,
Squires Lane, London NS 2QL, ("SIL") and AUTHENTIC FITNESS CORPORATION, a
Delaware corporation, and AUTHENTIC FITNESS PRODUCTS, INC., a Delaware
corporation, each having a principal place of business and offices at 6040
Bandini Boulevard, Los Angeles, California and 90 Park Avenue, New York, New
York 10016, U.S.A., and each an indirect subsidiary of The Warnaco Group, Inc.
(collectively, "AFC"), THE WARNACO GROUP, INC. and WARNACO INC., Delaware
corporations with principal places of business at 90 Park Avenue, New York, New
York 10016 ("collectively Warnaco").
RECITALS
A. SIL and AFC are parties to License Agreements dated May 10, 1990, as
amended and assigned, whereby, among other things, a predecessor in
interest of SIL with respect to the License Agreements granted a
predecessor in interest of AFC with respect to the License Agreements the
exclusive right in perpetuity to use the trademark SPEEDO and other
specified licensed marks in the specified licensed territories, as set
forth therein.
B. On September 14, 2000, SIL filed Civil Action No. 00-6931 in the United
States District Court for the Southern District of New York against AFC and
Warnaco (the "Civil Action"), claiming, among other things, that AFC had
breached the Speedo Licenses (as defined in Schedule 2 hereto).
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C. On June 11, 2001 (the "Petition Date"), The Warnaco Group, Inc. and certain
of its affiliates, including AFC (collectively, the "Debtors"), filed
voluntary petitions for relief under chapter 11 of title 11 of the United
States Code (the "Bankruptcy Code") with the United States Bankruptcy Court
for the Southern District of New York (the "Chapter 11 Proceedings"). As a
result of the Chapter 11 Proceedings, the Civil Action was stayed (the
"Automatic Stay").
D. On December 13, 2001, SIL filed a Motion for Relief From the Automatic Stay
in the United States Bankruptcy Court for the Southern District of New York
(the "Motion to Lift Stay").
E. By that certain "Memorandum of Decision and Order Denying Speedo
International Limited's Motion for Relief From the Automatic Stay" issued
by the Bankruptcy Court on June 11, 2002, the Bankruptcy Court denied the
Motion to Lift Stay. On October 1, 2002, the Debtors filed with the
Bankruptcy Court the Joint Plan of Reorganization of The Warnaco Group,
Inc. and Its Affiliated Debtors and Debtors in Possession Under Chapter 11
of the Bankruptcy Code (as such Plan may be amended or modified from time
to time, the "Plan") pursuant to which AFC seeks to assume the Speedo
Licenses.
F. In order to avoid the costs and risks of protracted litigation, and to
ensure that the rights of all parties to the Speedo Licenses are clear and
uninterrupted, and to facilitate the confirmation and consummation of the
Plan (including the assumption of the Speedo Licenses by AFC), and without
any admission of wrongdoing or liability by any party hereto, the parties
hereto have come to a
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mutual agreement to resolve and settle the disputes between them amicably,
and hereby memorialize and confirm the terms and conditions of such
resolution and settlement by entering into and executing simultaneously
herewith this Settlement Agreement, as well as the Amendment to Licenses
and the Web Site Agreement (together, the "Amendments").
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and described herein, the parties agree as follows:
1. AFC, Warnaco and SIL acknowledge that this Settlement Agreement
(including the Amendments) is subject to the approval of the Bankruptcy Court,
and, as promptly as practicable, AFC and Warnaco shall file a motion seeking
entry of an order by the Bankruptcy Court approving this Settlement Agreement,
including, without limitation, AFC's and Warnaco's assumption of the Speedo
Licenses and Amendments pursuant to Section 365 of the Bankruptcy Code (the
"Bankruptcy Court Approval Order"). The form and content of the motion and the
notice of the hearing thereon shall be subject to approval by both Licensee and
Licensor. SIL shall support the entry of the Bankruptcy Court Approval Order.
The parties hereto agree and acknowledge that the terms of the Settlement
Agreement fully and completely satisfy all requirements for the assumption of
the Speedo Licenses and Amendments by AFC and Warnaco contained in Section 365
of the Bankruptcy Code, including, without limitation, the requirement to cure
all outstanding defaults, if any, under the Speedo Licenses and the "adequate
assurance of future performance" requirement. Accordingly, this Settlement
Agreement and the Amendments shall become effective on the first business day
following the
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expiration of ten days after entry of the Bankruptcy Court Approval Order unless
the Bankruptcy Court Approval Order has been stayed by a court order in which
case it shall become effective (if ever) on the date on which such stay has been
lifted or otherwise terminated and the Bankruptcy Approval Order takes effect
(the "Effective Date"). Notwithstanding the fact that this Settlement Agreement
is made subject to entry of the Bankruptcy Court Approval Order, this Settlement
Agreement constitutes an agreement between the parties immediately upon the date
of its full execution by all parties hereto (the "Execution Date"). Accordingly,
during the period between the Execution Date and the Effective Date, the parties
agree that this Settlement Agreement shall constitute a binding agreement which
shall become effective on the Effective Date, and that they shall do nothing
contrary to the terms of this Settlement Agreement, provided that this
Settlement Agreement shall, unless the parties otherwise agree in writing, be
null and void if the Effective Date hereof does not occur on or before the
"effective date" of the Plan (as defined in Article I of the Plan), or if the
Bankruptcy Court refuses to approve this Settlement Agreement at the hearing
thereon.
2. Within three (3) days of the Effective Date, (a) AFC will pay, via wire
transfer, to SIL the total amount of U.S. Two Million Dollars (US$2,000,000)
(the "Payment") in full and total satisfaction of all of SIL's claims, including
those for monetary payment and damages against AFC and Warnaco under and in
connection with the Speedo Licenses through and including June 30, 2002 (the
"Release Date"), including, without limitation, all claims set forth in the
Civil Action, the Motion to Lift Stay or otherwise for payment of royalties and
other amounts identified and claimed to be due and owing under the Speedo
Licenses to and through the Release Date, provided that
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nothing in this Agreement relieves AFC of its obligation to account and pay
royalties owing for all periods after the Release Date through and after the
Effective Date in the normal course of business; (b) AFC will reimburse SIL, via
wire transfer, in the amount of U.S. Five Hundred Thousand Dollars (US$500,000)
in connection with SIL's reasonable attorney's fees incurred in connection with
the Civil Action and the Motion to Lift Stay; and (c) AFC will pay to SIL, via
wire transfer, in the amount of U.S. Fifty-Seven Thousand Eight Hundred
Sixty-Five Dollars and 56 cents (US$57,865.56) in relation to the double payment
of such amount to AFC and Authentic Fitness of Canada during December 1999 and
February 2000. If for any reason (including without limitation due to a stay of
the Bankruptcy Court Approval Order) all amounts set forth immediately above
(i.e., a total of US$2,557,865.56) are not paid to SIL on or before the first
business day following the expiration of ten days after entry of the Bankruptcy
Court Approval Order, then without limiting any other rights of SIL, interest on
such amounts, payable by AFC to SIL, shall accrue daily at the rate of three
percent (3%) above LIBOR.
3. AFC and Warnaco hereby assigns all rights in the SPEEDO.COM domain name
(including the domain name registration therefor) and all other domain names AFC
or any parent, subsidiary or affiliated entity owns that includes "SPEEDO"
hereto (the "SPEEDO Domain Names") including without limitation those domain
names identified on Schedule 1 annexed hereto throughout the world together with
the goodwill attached thereto, and AFC agrees to make, within ten (10) days of
the Effective Date, all filings necessary to ensure that title and beneficial
ownership to the domain name registrations for the SPEEDO Domain Names are
transferred to SIL. Notwithstanding anything to the contrary contained herein,
all Internet activity by AFC under the New Domain Name in
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connection with the Trade Marks, the Licensed Products or the Retail Stores (as
defined in the Speedo Licenses) shall be governed by the terms of the Web Site
Agreement executed simultaneously herewith and (as applicable) the Speedo
Licenses, provided that (a) AFC shall enjoy a transition period not to exceed
one hundred and eighty (180) days from the Effective Date (the "Transition
Period") within which AFC may continue to operate its current web site and email
systems under the SPEEDO.COM domain name and, on or before the end of the
Transition Period will rename its existing SPEEDO.COM web site to a web site
identified by a new domain name incorporating SPEEDO and a geographic qualifier,
as shall be agreed upon between the parties (the "New Domain Name"), pursuant to
the terms of the Web Site Agreement; (b) during the Transition Period, AFC will
retain the right to use the SPEEDO.COM name in, for example, retail stores,
product advertising, promotional materials, product catalogs, product displays,
product labels and hang tags, stationery, business cards, and other related
business materials (the "Materials"); (c) after the Transition Period, any
remaining Materials displaying the SPEEDO.COM domain name (unless any such
Materials are exempted by way of approval by SIL post the Transition Period
which shall not be unreasonably withheld or delayed for a further period of six
months) shall promptly be modified or conformed to use the New Domain Name (to
the satisfaction of SIL) or destroyed promptly by AFC (unless agreed otherwise
in writing by SIL) and shall not be used or distributed; and (d) AFC will
continue to operate a commercial Internet and E-Mail web site under the New
Domain Name, all in accordance with the terms and conditions specified in the
Web Site Agreement.
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4. The parties shall enter into simultaneously herewith an Amendment to the
Speedo Licenses, which provides, among other things, for an increase in the
percentage royalty to be paid on Net Sales of Licensed Products in excess of US
$125 million commencing in July 2003 by 1/2 of 1%.
5. Promptly following full performance of the obligations set forth in
paragraph two (2) above, and in any event, by no later than five (5) business
days following such performance, SIL will file all documents necessary to
withdraw and dismiss with prejudice the Civil Action and any pending motion to
lift the automatic stay on such action. SIL represents that it has filed no
other requests for relief, payment or claims filed in the Chapter 11
Proceedings, or otherwise relating to the disputes that are the subject matter
of this Settlement Agreement.
6. In consideration of, and except with respect to, the obligations,
rights, and agreements set forth in this Settlement Agreement, AFC, Warnaco, and
SIL each hereby release and discharge each other, and the other's parents,
subsidiaries, affiliates, partners, members, shareholders, officers, directors,
employees, agents, licensors, licensees, customers (both direct and remote),
successors, and assigns and all those in privity with any one or more of them
from all claims, actions, causes of action, suits, debts, dues, sums of money,
accounts, bonds, bills, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims, and
demands whatsoever, in law or in equity, which any such party ever had against
any of the others and now has, by reason of any matter, cause or thing
whatsoever, arising with respect to the Speedo Licenses that were or could have
been the subject of the Civil Action and the Motion to Lift Stay, from the
beginning of the world through and including the Effective
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Date, provided that nothing in this Settlement Agreement shall relieve the
parties from their respective obligations under the Speedo Licenses for all
periods after the Release Date. This Settlement Agreement does not constitute,
and may not be construed as, an admission of any kind with respect to the
matters in dispute, or of any wrongdoing or liability whatsoever. Neither
entering into, negotiating, nor performing the terms of this Settlement
Agreement shall be construed as, or deemed to be evidence of, any admission or
concession by any party hereto.
7. This Settlement Agreement (including the Amendments) constitutes the
entire agreement by and among the parties relating to the subject matter hereof,
and supersedes all prior negotiations, discussions, representations, or
agreements relating to the disputes resolved by this Settlement Agreement.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, the terms of the Speedo Licenses (as amended by the Amendments) shall
continue in full force and effect. This Settlement Agreement shall not be
amended, altered, supplemented, modified, superseded, or otherwise changed, and
no provision may be waived, unless in writing executed by the parties hereto and
expressly stating that it is an amendment, alteration, supplement, modification,
or waiver of specific provisions of this Settlement Agreement (including the
Amendments).
8. This Settlement Agreement shall be binding upon the parties, their
successors, assigns (including all assignees of the SPEEDO trademarks in the
Licensed Territories (as defined in the Speedo Licenses)), parents,
subsidiaries, affiliated companies, and all of their officers, agents, servants
and employees.
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9. This Settlement Agreement was drafted with full and equal participation
from the parties and their counsel, and no provision herein may be construed
against or in favor of any party because of the relevant bargaining positions,
strengths or sophistication thereof or which party drafted any such provision.
10. All notices, requests, consents demands, approvals and other
communications, including the service of process hereunder, shall be deemed to
have been duly given, made or served if in writing and delivered personally or
sent by overnight carrier that requires the addressee to acknowledge receipt
thereof to the respective parties to this Settlement Agreement as set forth
below or as later amended in writing:
a) If to SIL:
Pentland Group plc
The Pentland Centre
Squires Lane
London N3 2QL
ENGLAND
Attention: General Counsel
Fax No.: 011-44-208-343-4876
with a copy to:
Roger L. Zissu, Esq
Craig S. Mende, Esq.
Fross Zelnick Lehrman & Zissu, P.C.
866 United Nations Plaza
New York, NY 10024
Fax No.: (212) 813-5901
and:
b) If to AFC or Warnaco:
The Warnaco Group, Inc.
90 Park Avenue
10
New York, New York 10016
Attn: General Counsel
Fax No.: (212) 503-8536
with a copy to:
Karen Artz Ash, Esq.
Katten Muchin Zavis Rosenman
575 Madison Avenue
New York, New York 10022
Fax No.: (212) 940-8671
11. This Settlement Agreement may be executed in counterparts and
signatures hereon may be exchanged and transmitted by facsimile transmission,
which counterparts and signatures shall be deemed to be originals constituting a
single agreement and shall be deemed valid and binding.
12. There are no third party beneficiaries to this Settlement Agreement.
13. The meaning assigned to each term defined herein shall be equally
applicable to both the singular and the plural forms of such term. Where a word
or phrase is defined herein, each of its other grammatical forms shall have a
corresponding meaning.
14. All rights and remedies that either party may have hereunder or by
operation of law are cumulative and the pursuit of one right or remedy will not
be deemed an election to waive or renounce any other right or remedy.
15. This Settlement Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be fully performed within the State of New York. The Bankruptcy Court
shall retain jurisdiction with respect to any matters, claims, rights or
disputes arising from or related
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to the implementation of this Settlement Agreement and the Bankruptcy Court
Approval Order until the "effective date" of the Plan (as defined in Article I
of the Plan).
16. The parties agree to maintain as confidential the terms and conditions
of the Speedo Licenses (including the Amendment) and shall not disclose the
contents of the same, or information or records disclosing in any way the
content of their negotiations, to anyone unless such disclosure is (i) lawfully
required by any governmental agency; (ii) produced in response to a discovery
request in a civil litigation or from a governmental agency or official (iii)
otherwise required to be disclosed by law, including legally required financial
reporting, or to the extent required by any internationally recognized
securities exchange (including the NYSE and the NASDAQ); (iv) necessary in any
legal proceeding in order to enforce any provision of the Speedo Licenses; (v)
to counsel of record in the Civil Action; or (vi) required to obtain the
Bankruptcy Court Approval Order. If it shall become necessary to make a
disclosure under any of the circumstances identified in subsections (ii), (iv)
or (vi) above, the party proposing such disclosure shall advise the other party
in writing at least ten (10) days prior to such anticipated disclosure, and such
time would enable the other party to take any steps on its own behalf to address
or prevent such disclosure and the other party will cooperate with reasonable
requests relating thereto (e.g. seeking a protective order in connection with
any disclosure required and/or redacting royalty and other sensitive terms). The
terms and conditions of the Speedo Licenses and Amendments may not be disclosed,
under any circumstances, to any vendors, customers, competitors or the press.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have executed this Settlement
Agreement as of the date set forth herein:
SPEEDO INTERNATIONAL LIMITED
By: /s/ Andrew K. Rubin
----------------------------
Name: Andrew K. Rubin
Title: Director
Date: November 25, 2002
AUTHENTIC FITNESS CORPORATION
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: President
Date: November 25, 2002
AUTHENTIC FITNESS PRODUCTS, INC.
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: President
Date: November 25, 2002
WARNACO INC.
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: Vice President
Date: November 25, 2002
THE WARNACO GROUP INC.
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: Vice President
Date: November 25, 2002
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SCHEDULE 1
The SPEEDO Domain Names:
SPEEDO.COM
SPEEDOAMERICA.COM
SPEEDO-AMERICA.COM
SPEEDOAMERICA.NET
SPEEDO-AMERICA.NET
SPEEDOAMERICA.ORG
SPEEDO-AMERICA.ORG
SPEEDOCANADA.COM
SPEEDO-CANADA.COM
SPEEDOCANADA.NET
SPEEDO-CANADA.NET
SPEEDOCANADA.ORG
SPEEDOMEXICO.COM
SPEEDO-MEXICO.COM
SPEEDOMEXICO.NET
SPEEDO-MEXICO.NET
SPEEDOMEXICO.ORG
SPEEDO-MEXICO.ORG
GOSPEEDO.COM
SPEEDO-USA.COM
SPEEDOAUTHENTICFITNESS.COM
SPEEDOAUTHENTIC.COM
SPEEDO-AUTHENTIC.COM
SPEEDO.COM
GOSPEEDO.NET
GOSPEEDO.ORG
SPEEDOAUTHENTIC.NET
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The SPEEDO Domain Names:
SPEEDO-AUTHENTIC.NET
SPEEDOAUTHENTIC.ORG
SPEEDO-AUTHENTIC.ORG
SPEEDOUSA.NET
SPEEDO-USA.NET
SPEEDOUSA.ORG
SPEEDO-USA.ORG
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SCHEDULE 2
Speedo Licenses shall be defined as follows:
Two license agreements dated May 10, 1990 (the "1990 Licenses") entered into by
Speedo International BV, Speedo International Limited, Warnaco Inc., and Warnaco
International Inc., as assigned and amended, concerning use of the SPEEDO Trade
Mark and related marks in, respectively, (a) the United States and Canada, and
(b) Mexico and the Caribbean Islands, as such territories are defined therein;
and subsequent agreements relating to these 1990 Licenses including the May 8,
1992 name agreement effective as of April 29, 1992; the letter agreement dated
December 7, 1995; the Addendum dated December 15, 1995; and the Memorandum of
Understanding Regarding the Calculation of Royalties for Licensed Products Sold
By The Speedo Authentic Fitness Retail Stores dated December 15, 1995.
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EXHIBIT A
Amendment to the
Speedo Licences
See Exhibit 10.29
to this Form 10-K
EXHIBIT B
WEB SITE AGREEMENT
THIS WEB SITE AGREEMENT is made by and between SPEEDO INTERNATIONAL
LIMITED, a company duly organized under the laws of the England and Wales having
a principal place of business and offices at The Pentland Centre, Squires Lane,
London N3 2QL ("Licensor"), and AUTHENTIC FITNESS CORPORATION and AUTHENTIC
FITNESS PRODUCTS, INC. Delaware corporations, having their principal place of
business and offices at 6040 Bandini Boulevard, Los Angeles, California and 90
Park Avenue, New York, New York 10016, U.S.A., .each an indirect subsidiary of
The Warnaco Group, Inc. ("Licensee").
1. Definitions. Except as expressly noted below, all definitions herein shall be
the same as those used in those License Agreements between the parties dated May
10, 1990, as amended and assigned and the Amendments as defined in the
Settlement Agreement as entered into simultaneously herewith (collectively, the
"License Agreements").
1.1 The effective date of this Web Site Agreement ("the Effective Date") shall
be the "effective date" of the Settlement Agreement as defined therein and as
entered into simultaneously herewith.
2. Grant. Subject to the obligations and limitations detailed below, Licensor
hereby grants Licensee a license in connection with an internet web site
as follows:
(A) New Domain Name. To use a domain name(s) to be owned by Licensor that
incorporates SPEEDO (e.g., SPEEDOAMERICAS.COM) to be agreed upon by
the parties (the "New Domain Name").
(B) Goods/Services. To promote the sale of Licensed Products and to sell
Licensed Products solely in the Licensed Territories through a web
site accessible through that New Domain Name (the "Web Site").
(C) Territory. Licensee may offer, through the Web Site, only Licensed
Products for sale only within the Licensed Territories. While it is
not a violation of this provision for the Web Site to be accessible to
Internet users worldwide, Licensee may not accept, service or fulfill
orders for Licensed Products from outside the Licensed Territories.
Licensee shall post a statement visibly and prominently to this effect
on the Web Site, and shall take reasonable steps (technological and
otherwise) to prevent the acceptance, servicing or filling of orders
from outside the Licensed Territories or target the Web Site to or
collect data from users outside the Licensed Territories.
(D) Duration. The term of the grant herein shall be for as long as the
License Agreements remain valid and in effect. Upon any termination of
the License Agreements, Licensee shall immediately cease all operation
of the Web Site. If Licensee's rights to use the Trade Marks under the
License Agreements are terminated solely with respect to any one or
more countries within a Licensed Territory pursuant to the terms of
the License
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Agreements, Licensee shall cease accepting services or
fulfilling orders for Licensed Products in such countries.
Any web site operated by Licensee under the New Domain Name shall be subject to
the terms of this Web Site Agreement.
3. Registration and Maintenance. The New Domain Name shall be registered in
the name of Licensor, and Licensor shall maintain registration of the New
Domain Name, but the Web Site shall be developed and maintained by
Licensee, on Licensee's server, at Licensee's sole expense.
4. Use of the Trade Marks.
(A) The content and presentation as of 9:30 am GMT 5 November 2002 of
Licensee's current web site (which is located at www.speedo.com as of
such date), shall be deemed acceptable except as otherwise agreed in
this Web Site Agreement.
(B) Except as otherwise detailed herein, use of the New Domain Name,
including without limitation in stores, and on packaging, promotional
materials, and advertisements, shall be governed by the terms of the
License Agreements in the same manner as use of the Trade Marks under
the License Agreements.
(C) Except as otherwise detailed herein, the Web Site, including without
limitation use of the Trade Marks on the Web Site, shall be governed
by the License Agreements, including without limitation Clause 11 of
the License Agreements.
(D) Licensee shall only display and/or sell on the Web Site Licensed
Products bearing the Trade Marks.
(E) Licensee shall display the Trade Marks on the Web Site in a manner
that complies with all of Licensor's Brand Guidelines as amended from
time to time, including those regarding typeface and color.
(F) Licensee shall not obscure, obliterate, tamper with, add to or alter
any of the Trade Marks on the Web Site unless Licensor has given prior
written approval.
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5. Uniformity
(A) Home Page. The home page of the Web Site shall be substantially
similar as to content and presentation of the home page of the web
site that Licensor will maintain at the domain name SPEEDO.COM
("Licensor's Site") as is amended by Licensor from time to time.
(B) Web Site Consultation. In order to promote a uniform global brand
image and positioning, the Licensor may from time to time make
recommendations as to the content and overall presentation of the Web
Site (other than the home page) including as to:
(1) the description or promotion of core products (e.g., competition
swimwear such as "Fast Skin"); or
(2) the description of the history of the SPEEDO brand; or
(3) the positioning of discounted Licensed Products,
and on receipt of such recommendations, Licensee agrees to consult with Licensor
in good faith regarding such recommendations.
6. Third-Party Rights. Licensee shall ensure at its own expense that the Web
Site does not knowingly infringe or violate any rights of any third parties, and
shall obtain all consents, releases, assignments, licenses and other approvals
required in order to use the content (including as to the placing of links to
third-party web sites) on the Web Site.
7. Links. Licensee shall maintain a prominent "hot link" to the home page of
Licensor's Site on the home page of the Web Site. The precise form of the link
(e.g., the icon) shall be in accordance with Licensor's reasonable instructions,
as may be revised from time to time, and the precise positioning shall be
mutually agreed by the parties. Licensee shall request in writing and acquire
prior written approval from Licensor before placing any links to any third-party
web sites on the Web Site, such approval not to be unreasonably withheld.
8. Web Site Policy. Licensee shall consult in good faith with Licensor regarding
Licensor's Internet policy as it pertains to the Web Site, as such policy may be
amended from time to time.
9. Licensor's Link to Licensee. During the term of this Agreement Licensor shall
maintain on the home page of Licensor's Site (once it is online) a "hot link" to
the Web Site, in a form to be mutually agreed upon between Licensor and
Licensee.
10. Goodwill. Licensee acknowledges that Licensor holds the exclusive benefit of
all goodwill accrued, established or to be accrued or established in the New
Domain Name.
11. Local Law Compliance. Licensee shall ensure at its own expense that the Web
Site complies with all laws, ordinances, rules, regulations and other
requirements of the
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governments of each country in the Licensed Territories, including all such
laws, ordinances, rules, regulations and other requirements addressing
Internet web sites and data privacy. Licensee shall not use the Web
Site or the New Domain Name for any illegal purpose and shall ensure such uses
are consistent with the high quality, character and image of the Trade Marks.
12. Indemnity. Licensee shall indemnify Licensor against any liability, claims,
demands, proceedings, losses, costs or expenses (including all attorneys' fees
that Licensor may expend in defending against any such claims or actions) which
may be brought against or suffered or incurred by Licensor relating to or
arising out of, or arising out of the use of, the Web Site or the New Domain
Name excluding any claims caused by the negligence of the Licensor.
13. Limitation on Registrations. Without limitation to any other restrictions in
the License Agreements concerning use and registration of the Trade Marks,
Licensee shall not register or seek to register, or permit, or be involved in
any way in the registration of, or acquire any registrations for, any domain
name that includes or otherwise incorporates SPEEDO or any other of the Trade
Marks or any name that is deceptively similar to SPEEDO or any other of the
Trade Marks.
14. Further Assurances. Licensee shall, upon the reasonable request of Licensor,
execute, acknowledge and deliver all such further documents, deeds, assignments,
licenses, transfers or conveyances as may be required to give full effect to the
terms and conditions of this Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
entered into and performed fully therein, without reference to any choice of
law, and federal laws applicable to trade marks, copyrights and patents in each
country in the Territory, as applicable.
16. Successors and Assigns. This Agreement shall be binding, valid and
enforceable against, and the benefits thereof shall inure to, Licensor's and
Licensee's successors, assigns, parents, subsidiaries, affiliates, licensees,
and parties in privity with them.
17. Headings. The headings herein are solely for the convenience of the parties
and do not constitute a substantive part of this Web Site Agreement.
IN WITNESS WHEREOF, the parties have executed this Website Agreement as of
this ___ day of _________, 2002:
SPEEDO INTERNATIONAL LIMITED
By: /s/ Andrew K. Rubin
______________________________
Name: Andrew K. Rubin
Title: Director
Date: November 25, 2002
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AUTHENTIC FITNESS CORPORATION
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: President
Date: November 25, 2002
AUTHENTIC FITNESS PRODUCTS INC.
By: /s/ Stanley P. Silverstein
----------------------------
Name: Stanley P. Silverstein
Title: President
Date: November 25, 2002
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