Exhibit 10(c)
SECOND AMENDMENT TO AMENDED AND RESTATED LICENSE AGREEMENT
(Australia and New Zealand)
This Second Amendment to Amended and Restated License Agreement is dated as of
November 9th, 2000, between RadioShack Corporation (formerly Tandy Corporation)
("RadioShack") and InterTAN Australia Ltd. ("ITA").
WHEREAS, RadioShack and ITA entered into that certain Amended and Restated
License Agreement on January 25, 1999 and a First Amendment thereto dated June
1, 2000 (collectively, the "Agreement");
WHEREAS, RadioShack has been requested by ITA to approve a specific form of
sublicense of RadioShack-owned intellectual property from ITA to a third party
corporation.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is agreed as follows:
1. A new provision, designated as paragraph 3A, shall be added to the
Agreement immediately following paragraph 3 thereof, and shall be as
follows:
"Attached hereto and made a part of this Agreement is a new Addendum A which
sets forth the terms and conditions relating specifically to the authorized
sublicense from ITA to smartbuy.com.ca pty ltd regarding certain intellectual
property rights owned by RadioShack through one or more affiliated entities."
2. Every reference in the Agreement to Tandy Corporation (or Tandy) shall be
deemed to be a reference to RadioShack Corporation (or RadioShack).
3. All other terms and conditions of the Agreement shall remain unchanged and
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to be
effective as of the day and year first above written.
RADIOSHACK CORPORATION
By: /s/ David Christopher
Title: Executive Vice President
INTERTAN AUSTRALIA LTD.
By: /s/ James Gingerich
Title: Director
Addendum A
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InterTAN Australia Ltd. Sublicense to smartbuy.com.au pty ltd
General Statement
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ITA has, as of the date hereof, entered into with smartbuy.com.au pty ltd
("Smartbuy") that certain Agreement (the "ITA/Smartbuy Agreement") in order to
develop and market an e-commerce superstore to be known as "Tandy.com.au."
The ITA/Smartbuy Agreement contemplates the grant of certain sublicense rights
from ITA to Smartbuy relating to the use of certain intellectual property rights
owned by RadioShack (through one or more of its affiliated entities) (the
"RadioShack Marks") and licensed from RadioShack to ITA under the Amended and
Restated License Agreement dated January 25, 1999 (as previously and hereby
amended) between such parties (the "Agreement"). RadioShack is willing to
authorize the contemplated sublicense from ITA to Smartbuy on the terms and
conditions as specified below, which shall each be in addition to any of the
terms and conditions of the Agreement. Any capitalized term used herein which is
not otherwise defined shall have the meaning as set forth in the Agreement.
Sublicense Terms and Conditions
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1. ITA is hereby authorized to grant to Smartbuy a sublicense to use the
RadioShack Marks as contemplated under the ITA/Smartbuy Agreement, the form
and content of which has been approved by RadioShack. ITA agrees to use its
best efforts to police Smartbuy's use of the RadioShack Marks consistent
with ITA's current obligations under the Agreement.
2. ITA shall have no rights of further sublicense to any party other than
Smartbuy. ITA shall have no right to assign its interest under the
ITA/Smartbuy Agreement, nor shall ITA permit Smartbuy to assign its rights
under the ITA/Smartbuy Agreement, unless and until the prior written
consent of RadioShack is obtained. RadioShack may withhold such consent, in
either event, with or without cause in its sole discretion.
3. As contemplated under the ITA/Smartbuy Agreement, any time ITA and Smartbuy
determine in the future to jointly make decisions regarding, among other
things, the use of product tagging or labeling, graphical depictions,
taglines, promotional materials, etc., which involve in any manner the use
of a RadioShack Mark, ITA shall seek the prior written approval of
RadioShack, unless it is clear to ITA under all of the relevant
circumstances, that such proposed usage of any RadioShack Mark is in full
accordance with RadioShack's then current Graphics Standards Manual and the
Agreement. In the event ITA is required to obtain RadioShack's prior
written approval, RadioShack will respond to ITA in a prompt manner, which
in any event will not exceed three (3) business days after RadioShack's
receipt of ITA's written request for such approval.
4. RadioShack shall have the right to audit such books and records of ITA from
time to time upon reasonable request and prior notice, relating to (i) the
performance of ITA under the ITA/Smartbuy Agreement with respect to ITA's
obligations thereunder to prevent the shipment by Smartbuy, or ITA, of any
consumer electronics products (whether private label or nationally branded)
from Australia into the United States, including the District of Columbia,
Puerto Rico and the U.S. Virgin Islands; (ii) the aggregate amount of
"Sales Revenue" generated under the ITA/Smartbuy Agreement and the gross
revenue recorded by ITA as a result of all transactions contemplated under
the ITA/Smartbuy Agreement; and (iii) the proper usage of the RadioShack
Marks in ITA's advertising and packaging. As used in this Addendum A, the
term "Sales Revenue" shall have the meaning as set forth in the
ITA/Smartbuy Agreement.
5. RadioShack may revoke ITA's right to sublicense the RadioShack Marks to
Smartbuy at any time, with immediate effect and without any liability
therefore in any manner whatsoever, upon the occurrence of the following:
(i) RadioShack's discovery that consumer electronic product has been or is
being shipped by ITA or Smartbuy into the territories identified in
4(i) above in violation of the terms of the ITA/Smartbuy Agreement;
(ii) RadioShack's discovery of any under-reporting by ITA of the aggregate
"Sales Revenue," or of ITA's gross revenue, generated under the
ITA/Smartbuy Agreement; or
(iii) ITA permits the persistence of an uncured breach, either by ITA or by
Smartbuy, under the ITA/Smartbuy Agreement which directly or
indirectly relates to or has an effect on any RadioShack Mark as
determined in RadioShack's sole discretion, acting reasonably.
6. Any breach by ITA of the terms and conditions of this Addendum A may, in
RadioShack's sole discretion, be deemed to constitute a breach of the
Agreement.
7. ITA agrees to further indemnify and hold harmless RadioShack and those
other entities or persons identified in Section 26 of the Agreement, to the
fullest extent provided in the indemnity provisions of Section 26 of the
Agreement, for any breach by Smartbuy of any provisions of the ITA/Smartbuy
Agreement.
8. To clarify the understanding and intentions of RadioShack and ITA, it is
agreed that the one percent (1.0%) royalty payment contemplated in Section
5 of the Agreement shall be calculated on the aggregate "Sales Revenue"
generated under the ITA/Smartbuy Agreement. In addition to any other
required documentation,
ITA shall provide RadioShack, at the time of any royalty payment, with
sufficient documentation regarding such aggregate "Sales Revenue" in order
for RadioShack to readily determine the correctness of the total ITA
royalty payment.
This Addendum A is dated as of November 9th, 2000.
RADIOSHACK CORPORATION INTERTAN AUSTRALIA LTD.
By: /s/ David Christopher By: /s/ James Gingerich
Title: Executive Vice President Title: Director