Exhibit 10(b)
THIRD AMENDED AND RESTATED
INTERTAN ADVERTISING AGREEMENT
This Third Amended and Restated InterTAN Advertising Agreement
("Agreement") is by and among InterTAN, Inc. ("InterTAN"), InterTAN Canada
Ltd. ("ITC") (InterTAN and ITC being collectively referred to herein as
"INTERTAN GROUP"), TRS Quality, Inc. ("TRS") and RadioShack Corporation
("RADIOSHACK").
WHEREAS, INTERTAN GROUP has requested RADIOSHACK or TRS to authorize the
limited use of certain Materials (as hereinafter defined) and Marks (as
hereinafter defined) developed by or for RADIOSHACK during the term of this
Agreement, and
WHEREAS, INTERTAN GROUP hereby acknowledges TRS's ownership of the
trademarks and service marks (as the case may be) and all variations
thereof: "Radio Shack Gift Express", "The Repair Shop at Radio Shack",
"You've Got Questions! We've Got Answers!" "Radio Shack Unlimited", "Radio
Shack Express" and "RadioShack Select" (hereinafter called "Marks"); and
WHEREAS, INTERTAN GROUP also hereby acknowledges RADIOSHACK's ownership of
certain advertising and marketing concepts, strategies and materials
related to the positioning of RADIOSHACK as a service provider under the
Marks; and
WHEREAS, TRS and ITC have entered into a Second Amended and Restated
License Agreement ("ITC License Agreement") for ITC to use (as provided
therein) various marks described therein in Canada.
NOW, THEREFORE, the parties hereto agree as follows:
1. LICENSE.
a) License of Materials.
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(i) Subject to all payments required hereunder being timely made by
INTERTAN GROUP and to INTERTAN GROUP's compliance with all the
terms of this Agreement, RADIOSHACK agrees to provide InterTAN
with the following information related to operation of RadioShack
stores and outlets in the U.S. (which are collectively referred
to in this Agreement as "Materials") during the term of this
Agreement:
(a) Copies of flyers and annual catalogs. To assist in planning,
flyers are to be provided as soon as reasonably possible
after they have been finalized and sent to print. With
respect to the
annual catalog, during the catalog development process
cycle, completed pages are to be provided on an approximate
bi-weekly basis as such pages are completed.
(b) CDs or other media with all appropriate product packaging
information (including applicable owner's manuals), and
formats, designs, etc.
(ii) TRS grants a non-assignable, non-exclusive license to INTERTAN
GROUP to use the Materials in Canada in the limited manner
specified in this Agreement.
(iii) INTERTAN GROUP shall have no right to sublicense or disclose any
of the Materials to any third party other than contract managers,
dealers and franchisees duly granted a sublicense by INTERTAN
GROUP in accordance with the terms and conditions of the ITC
License Agreement. INTERTAN GROUP agrees to use the Materials
provided only as a source for concepts and ideas and will not use
the actual Materials provided in any other way.
(iv) INTERTAN GROUP will use only photography, talent, props and
backdrops which it currently owns, or which it purchases or
licenses for its own use, in any advertisements produced by the
INTERTAN GROUP arising from the Materials.
(v) Except as expressly provided in this Agreement, INTERTAN GROUP
agrees to keep all information specified above confidential and
not to provide this information to any third party until five
days after an item has been published or broadcast to the general
public anywhere in the United States. INTERTAN agrees to return
to RADIOSHACK or destroy all copies and originals of confidential
information within 30 days after expiration or other termination
of this Agreement.
b) License of Marks; New Marks.
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(i) Subject to the terms and conditions of this Agreement and to the
provisions of the ITC License Agreement, TRS grants a
non-assignable, non-exclusive license to INTERTAN GROUP to use
the Marks as service marks in Canada.
(ii) The Marks in Exhibit A attached hereto are hereby acknowledged to
be permitted under the ITC License Agreement and shall be
governed
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by the terms and conditions thereof for all purposes, including
but not limited to the quality control and enforcement provisions
thereof, except as otherwise set forth in this Agreement.
(iii) Where required by applicable law, INTERTAN GROUP agrees, at its
expense, to register with the appropriate governmental entity as,
or to cause the appropriate governmental entity to appoint it as,
a registered user of the Marks or any related new marks
subsequently developed (as hereinafter described) after the
effective date hereof.
(iv) The parties recognize that TRS, RADIOSHACK or INTERTAN GROUP may
develop new marks in the future arising out of or based upon the
Materials. Any such new mark developed by or for INTERTAN GROUP
shall belong to, and be owned by, RADIOSHACK or TRS exclusively.
Before INTERTAN GROUP uses any new marks arising out of or based
on the Materials, INTERTAN GROUP shall request TRS's or
RADIOSHACK's approval of same in writing and such approval shall
not be unreasonably withheld or delayed. If TRS or RADIOSHACK
approves the use of a new mark by INTERTAN GROUP, such new mark
shall be listed on an exhibit to this Agreement, and listed on an
exhibit to the ITC License Agreement, and shall be governed by
the terms and conditions of the ITC License Agreement, except as
otherwise set forth in this Agreement.
(v) This Agreement shall prevail over the ITC License Agreement with
regard to the matters set out in this paragraph 1.b), with regard
to the duty of the INTERTAN GROUP to provide TRS or RADIOSHACK
advance notice of use of Marks as provided in paragraph 2 hereof
and with regard to consideration to be paid therefor as set out
in paragraph 3. If this Agreement expires by its terms, INTERTAN
GROUP shall continue to have rights to use the Marks developed
prior to such expiration or termination subject to the terms of
this paragraph 1.b) and the ITC License Agreement until such time
as the ITC License Agreement terminates, provided that neither
InterTAN nor ITC are then in default hereunder and that no event
or combination of events will have occurred which, if known or
with the passage of time, would constitute an event of default
hereunder, and such event is noncurable or has become noncurable
due to passage of time.
2. NOTICE OF USE.
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RADIOSHACK and TRS acknowledge that InterTAN has disclosed that certain of
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the Marks are currently being used by ITC. From and after the date hereof,
in the event INTERTAN GROUP decides to use any of the Marks, or any related
new marks subsequently added to this Agreement, in any form in Canada,
INTERTAN GROUP agrees to notify RADIOSHACK and TRS in writing at least 30
days in advance of INTERTAN GROUP's first advertisement or announcement so
that RADIOSHACK or TRS can apply for registration of its marks and protect
its rights in Canada, or request INTERTAN GROUP to do so, in accordance
with the terms of the ITC License Agreement. In any case, such registration
shall be at INTERTAN GROUP's expense, and INTERTAN GROUP shall reimburse
RADIOSHACK or TRS for all expenses incurred by RADIOSHACK or TRS in that
regard, if any.
3. CONSIDERATION BY INTERTAN GROUP. As consideration for this Agreement,
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InterTAN agrees as follows:
a) Annual Payments. During the term of this Agreement, InterTAN or ITC
shall pay to RADIOSHACK, in advance for each successive year,
US$45,000.00 per year for each of the years 2001, 2002, and 2003 and
US$55,000 per year for each of the years 2004, 2005 and 2006 and such
mutually agreed amount (not to be less than US$55,000/year) for each
of the remaining years of this Agreement, in readily available funds,
payable on the first business day of each successive January (the "Due
Date"). Notwithstanding the foregoing, the required payment for year
2001 shall be US$15,000 (pro rated 9-1-01 through 12-31-01) and shall
be promptly paid to RADIOSHACK after execution of this Agreement by
INTERTAN GROUP.
b) Guaranty of Payment. InterTAN irrevocably and unconditionally
guarantees to RADIOSHACK the timely payment of all amounts due
hereunder, as well as the observance and performance of all of the
obligations, terms, conditions and covenants of ITC pursuant to this
Agreement. This guarantee is a continuing guarantee and shall be
binding upon InterTAN, its successors and assigns, and shall inure to
the benefit of, and be enforceable by RADIOSHACK and its successors,
transferees and assigns.
4. ADDITIONAL CONSIDERATION.
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In the event INTERTAN GROUP's use of the Marks or Materials requires or
results in a payment for such use to third parties (including, but not
limited to, payments under applicable union codes or applicable production,
talent or other contracts by RADIOSHACK relating to the production of
commercials or advertisements), INTERTAN GROUP, as additional consideration
for this Agreement, shall pay the same and bear all expense with respect
thereto. RADIOSHACK may separately invoice InterTAN or ITC for such amounts
when and as incurred by RADIOSHACK.
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Otherwise, InterTAN or ITC will pay such amounts directly to such third
parties.
5. PAYMENT TERMS.
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All invoices by RADIOSHACK to InterTAN or ITC shall be due and payable on
the Due Date and shall be considered past due and in default of payment
after that time. Payments shall be made to: RadioShack, Attention: Vice
President and Controller, 100 Throckmorton Street, Suite 1600, Fort Worth,
Texas 76102; or to such other address as RADIOSHACK may designate in
writing. Any amount not paid on the Due Date shall accrue interest on a per
annum basis at the prime rate published in the Money Rates section of the
Wall Street Journal on the date of first publication of the Wall Street
Journal following the Due Date, plus four (4) percentage points per annum,
until paid in full.
6. INDEMNITY.
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INTERTAN GROUP agrees to indemnify, defend and hold harmless TRS and
RADIOSHACK and its or their respective divisions, subsidiaries, affiliates,
shareholders, directors, officers and agents of and from any and all claims
by third parties that any advertisement, or representation by INTERTAN
GROUP is false, misleading, deceptive or infringes on any rights the third
party may have; or resulting from INTERTAN GROUP's breach of this Agreement
(including, but not limited to, any failure to pay third parties).
7. DEFAULT BY INTERTAN.
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a) Noncurable Events. The following are events of default for which no
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time to cure is provided:
(i) nonpayment or late payment of any amounts due hereunder; and
(ii) failure to keep information confidential as required by this
Agreement.
b) Curable Events. In the event InterTAN or ITC defaults under any other
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provision of this Agreement the INTERTAN GROUP shall cure the default
within 30 days from the date of written notice sent by RADIOSHACK.
8. DEFAULT BY RADIOSHACK.
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In the event RADIOSHACK fails to provide Materials to INTERTAN GROUP as set
out in this Agreement, RADIOSHACK shall cure the default within 30 days
from the
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date of written notice sent by InterTAN, provided that INTERTAN GROUP is
then in compliance with all material terms and conditions hereof.
9. REMEDIES.
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In the event of a noncurable event of default, or if a curable event of
default is not cured within 30 days, the non-defaulting party shall be
entitled to proceed with its legal remedies under this Agreement (including
but not limited to, suit for damages, injunction, for specific performance,
or other special relief). The non-defaulting party also shall have the
right to terminate this Agreement by written notice to the defaulting
party, such termination to be effective immediately on receipt or such
other date as the non-defaulting party may designate. Should this Agreement
be terminated due to an uncured or noncurable event of default by INTERTAN
GROUP, such event of default shall be a deemed breach of the ITC License
Agreement and the Second Amended and Restated Merchandise Agreement
(between, among others, RADIOSHACK and INTERTAN GROUP) and shall be cause
for immediate termination of all other agreements between the parties. If
it becomes necessary for either party to place this Agreement in the hands
of an attorney for enforcement, the prevailing party shall be entitled to
recover, in addition to its damages and all sums due and payable to it
hereunder, its reasonable attorney fees and court costs, including
prejudgment and postjudgment interest thereon at the highest rate allowed
by law.
10. TERM.
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The term of this Agreement is from September 15, 2001, through such date
that the ITC License Agreement expires or terminates; provided, however,
either party may terminate this Agreement without cause by giving written
notice to the other party prior to September 30 of any year and the
effective date of such termination shall be December 31 of the year in
which such notice is given (the "Termination Date"), provided further that
the parties hereby agree that the earliest Termination Date that may be
given in such manner shall be December 31, 2003.
11. EXPIRATION AND TERMINATION.
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a) Expiration. Unless the term is extended by written contract of the
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parties, and unless earlier terminated as hereinabove provided, this
Agreement shall automatically expire and terminate at the expiration
of the term provided in paragraph 10.
b) Automatic Termination. This Agreement also shall automatically
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terminate in
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the event of any default under the Second Amended and Restated
Merchandise Agreement or the ITC License Agreement between the parties
if such default results in the termination of the agreement under
which default occurred.
12. ASSIGNABILITY.
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This Agreement is not assignable by INTERTAN GROUP. TRS or RADIOSHACK, in
its or their sole discretion, may assign this Agreement at any time to any
person affiliated with RADIOSHACK.
13. MISCELLANEOUS.
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a) Severability. In the event that any provision of this Agreement shall
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be determined to be invalid or prohibited by law, such provision shall
be ineffective to the extent of such invalidity or prohibition without
invalidating the remainder of this Agreement.
b) Waiver. No failure or delay in exercising any right, power or remedy
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under any provision of this Agreement shall operate as a waiver of or
otherwise shall prejudice any of the rights, powers or remedies of TRS
or RADIOSHACK. No right, power or remedy herein conferred upon TRS or
RADIOSHACK is intended to be exclusive of any other right, power or
remedy, and each and every such right, power or remedy shall be
cumulative of every other right, power or remedy given hereunder or
now or hereafter existing at law or in equity or by statute or
otherwise.
c) Amendment. This Agreement may be amended only by a written document
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signed by a duly authorized corporate officer of each of the parties
hereto.
d) Notices. All notices pursuant to this Agreement shall be in writing
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and shall be deemed given when personally delivered, or when received
(or on the third day after mailing if delivery is refused by the
addressee) if mailed by certified or registered mail, return receipt
requested, postage prepaid and properly addressed, or when sent by
legible facsimile transmission (with transmission verification), and
properly addressed as set out below, or to such other address as is
designated in writing by a party as the address for notice under this
Agreement:
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If to InterTAN InterTAN, Inc.
or INTERTAN GROUP: 3300 Highway #7
Suite 904
Concord, Ontario L4K 4M3
Attention: General Counsel
Fax No. (905) 760-9722
If to TRS or RADIOSHACK: RadioShack Corporation
100 Throckmorton Street, Suite 1700
Fort Worth, Texas 76102
Attention: Vice President - Law
Fax No. (817) 415-6593
e) Counterparts. This Agreement may be executed in counterparts, any or
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all of which shall constitute one and the same document.
f) Further Assurances. TRS, RADIOSHACK and INTERTAN GROUP agree that they
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will at any time and from time to time, upon request of the other,
execute, acknowledge and deliver all such further instruments and
documents and to do, or cause to be done, all such further acts as may
be required to carry out the intents and purposes of this Agreement.
g) Merger of Prior Negotiations. All prior negotiations and agreements
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between the parties hereto with the respect to the subject matter of
this Agreement are merged herein and all such prior negotiations and
agreements are superseded hereby.
h) Binding effect. This Agreement shall be binding on the parties hereto
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and their respective permitted successors and permitted assigns.
i) Headings. The article and section headings in this Agreement are for
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convenience and reference only, and shall not be utilized in any way
to explain, modify, amplify or add to the interpretation, construction
or meaning of this Agreement.
j) Provisions Surviving Termination. Paragraphs 1.b), 2, 4, 6 and 9
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survive expiration or termination of this Agreement. In any event,
termination shall not extinguish or affect any monetary obligation
owing by either party under this Agreement which arose prior to
termination hereof.
14. GOVERNING LAW AND SUBMISSION TO JURISDICTION.
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THIS AGREEMENT AND ALL AMENDMENTS HERETO, AND ANY AND ALL CLAIMS, DEMANDS
OR ACTIONS OR IN ANY WAY RELATING HERETO OR INVOLVING ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT OR TORT, AT
LAW, IN EQUITY OR STATUTORILY, SHALL BE GOVERNED, CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CHOICE OF LAWS OF SUCH STATE. EACH PARTY HERETO
IRREVOCABLY SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
COURTS OF THE UNITED STATES, NORTHERN DISTRICT OF TEXAS, FORT WORTH
DIVISION, AND TO THE COURTS OF THE STATE OF TEXAS LOCATED IN TARRANT
COUNTY, TEXAS, AS TO ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING
TO THIS AGREEMENT, AS IT MAY BE AMENDED FROM TIME TO TIME, AND AGREES AND
CONSENTS THAT SERVICE OF PROCESS MAY BE HAD UPON IT IN ANY SUCH DISPUTES.
INTERTAN AND ITC EACH WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS ON IT.
INTERTAN AND ITC ALSO CONSENT TO SERVICE OF PROCESS BY REGISTERED MAIL
DIRECTED TO INTERTAN, INC.'S PRINCIPAL OFFICE IN CONCORD, ONTARIO, CANADA
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED TEN (10) DAYS AFTER THE
SAME SHALL HAVE BEEN POSTED.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates shown beneath their respective signatures hereto, to be effective as
of September 15, 2001.
InterTAN, Inc.
By: /s/ Brian E. Levy
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Title: President & CEO
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InterTAN Canada Ltd.
By: /s/ Brian E. Levy
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Title: President & CEO
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RadioShack Corporation
By: /s/ David S. Goldberg
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Title: Vice President - Law
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TRS Quality, Inc.
By: /s/ Joel H. Tiede
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Title: President
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Exhibit A
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Canada
Radio Shack Unlimited(R)*
Radio Shack Gift Express(R)*
The Repair Shop at Radio Shack(R)*
You've Got Questions! We've Got Answers!(R)
Radio Shack Express(R)*
RadioShack Select (common law)
* Including the unregistered, one-word "RadioShack" variation.
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