Exhibit 10(x)
SECOND AMENDED AND RESTATED
INTERTAN ADVERTISING AGREEMENT
This Second 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.
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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 all POP materials, visual merchandising, and
model store information.
(b) Advance copies of flyers and annual catalogs.
Preferably, INTERTAN GROUP could receive these in both
finished as well as at any early proof stage, to assist
in planning.
(c) Monthly breakdown of percentage of sales by series,
increase or decrease in each series as a percentage of
last year's sales, and gross margin percentage this year
and last year by series.
(d) Forecast list of blockbuster and/or major promotional
products for next six months or whatever the appropriate
planning horizon may be.
(e) All training materials, preferably in hard copy and on
diskette or other magnetic media, to assist customizing
language or content as appropriate.
(f) Copies of all market and in-store research (e.g.
Envirosell).
(g) Data on a monthly basis on average sales per ticket and
average tickets per store.
(h) CDs or other media with all appropriate product
packaging information and formats, designs, etc.
(i) Copies of television commercials.
(j) Advance copies of and details regarding all programs
involving customer credit (i.e. Answers Plus program),
home connectivity, online strategy, and other service
initiatives (TSP RSU, etc.).
(k) Summary information regarding effectiveness of mailing
lists (number of flyers mailed per store, impact of
direct marketing efforts, etc.).
(l) Regular updates on thought processes leading to
strategic programs such as those intended to enhance
customer loyalty, customer service and those pertaining
to the reformatting of RadioShack stores.
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(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 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
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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
the Marks are currently being used by the 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
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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
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shall pay to RADIOSHACK in readily available funds US$125,000.00 per
year, payable each successive December 31.
b) Guaranty of Payment. InterTAN irrevocably and unconditionally
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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. 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
each successive December 31 (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
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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 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-
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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 May 1, 2001, through such date that
the ITC License Agreement expires or terminates.
11. EXPIRATION AND TERMINATION.
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a) Expiration. Unless the term is extended by written contract of
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the 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 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
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shall be determined to be invalid or prohibited by law, such
provision shall be
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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
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or remedy 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
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document signed by a duly authorized corporate officer of each
of the parties hereto.
d) Notices. All notices pursuant to this Agreement shall be in
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writing 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:
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,
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any or all of which shall constitute one and the same
document.
f) Further Assurances. TRS, RADIOSHACK and INTERTAN GROUP agree
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that they will at any time and from time to time, upon request
of the other,
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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
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agreements 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
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parties hereto and their respective permitted successors and
permitted assigns.
i) Headings. The article and section headings in this Agreement
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are for 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
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9 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
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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 May 1, 2001.
InterTAN, Inc.
By: /s/ Brian E. Levy
Title: President & CEO
InterTAN Canada Ltd.
By: /s/ Brian E. Levy
Title: Director and President
RadioShack Corporation
By: /s/ David S. Goldberg
Title: Vice President - Law
TRS Quality, Inc.
By: Joel H. Tiede
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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