Exhibit 10.11
National Football League Properties, Inc.
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Area Code (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
Term Sheet - Licensing Agreement
Licensee: Antigua Sportswear, Inc. Date: February 27, 1996
Address: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ No.: 641-149-6320
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The following terms are made part of and are subject to all definitions, terms
and conditions set forth in License No. R02468.
MARKETING PROGRAM: NFL Pro Line
TERM: April 1, 1996-March 31, ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
LICENSED PRODUCTS: WOVEN SHIRTS, KNIT SHIRTS, SWEATERS,
WINDWEAR (ONE STYLE ONLY), WIND SHIRTS (ONE
STYLE ONLY)
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FISCAL YEAR LICENSED PRODUCT ROYALTY %
YEAR I PO6054/A400 PRO LINE SWEATERS 9.00
04/01/96-3/31/97 P10010/A100 PRO LINE KNIT SWEATERS 9.00
P06057/A104 PRO LINE WOVEN SHIRTS 9.00
P10012/A100 PRO LINE WINDWEAR 9.00
P10013/A100 PRO LINE WIND SHIRTS 9.00
YEAR II P06054/A400 PRO LINE SWEATERS 9.00
04/01/97-3/31/98 P10010/A100 PRO LINE KNIT SHIRTS 9.00
P06057/A104 PRO LINE WOVEN SHIRTS 9.00
P10012/A100 PRO LINE WINDWEAR 9.00
P10013/A100 PRO LINE WIND SHIRTS 9.00
YEAR III P06054/A400 PRO LINE SWEATERS 10.00
04/09/98-03/31/99 P10010/A100 PRO LINE KNIT SHIRTS 10.00
P06057/A104 PRO LINE WOVEN SHIRTS 10.00
P10012/A100 PRO LINE WINDWEAR 10.00
P10013/A100 PRO LINE WIND SHIRTS 10.00
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FISCAL YEAR MINIMUM GUARANTEE ADVANCE
YEAR I 04/01/96-03/31/97 $*** $***
YEAR II 04/01/97-03/31/98 $*** $***
YEAR III 04/01/98-03/31/99 $*** $***
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*** This confidential material has been omitted and filed separately
with the Commission.
i
AUTHORIZED BRANDS FOR
LICENSED PRODUCT(S): Antigua
LICENSED ▇▇▇▇(S) FOR Marketing Program logo, Club Marks, and the
LICENSED PRODUCT(S): following League Marks: "National Football
League," "NFL," "National Football
Conference," "American Football
Conference," "NFC," "AFC," and the NFL
Shield design.
DISTRIBUTION CHANNELS FOR Direct Retailers, Fan Shops, Footwear
LICENSED PRODUCT(S): Specialty Stores, Sporting Goods Stores,
Department Stores
RENEWAL REQUEST DATE: August 31, 1998
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PROMOTIONAL PRODUCT(S):
FISCAL YEAR LICENSED PRODUCTS NUMBER OF UNITS
YEAR I PRO LINE SWEATERS ***
PRO LINE KNIT SHIRTS ***
PRO LINE WOVEN SHIRTS ***
PRO LINE WINDWEAR ***
PRO LINE WIND SUITS ***
YEAR II PRO LINE SWEATERS ***
PRO LINE KNIT SHIRTS ***
PRO LINE WOVEN SHIRTS ***
PRO LINE WINDWEAR ***
PRO LINE WIND SUITS ***
YEAR III PRO LINE SWEATERS ***
PRO LINE KNIT SHIRTS ***
PRO LINE WOVEN SHIRTS ***
PRO LINE WINDWEAR ***
PRO LINE WIND SUITS ***
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ADVERTISEMENTS: N/A
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COOPERATIVE FUND: N/A
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SPONSORSHIPS: N/A
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BROADCAST EXPOSURE FEE: N/A
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ASSIGNED MEMBER CLUBS: N/A
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MEMBER CLUB MARKETING COMMITMENT: N/A
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*** This confidential material has been omitted and filed separately
with the Commission.
ii
ADDITIONAL TERMS:
1. Promotional Fee
(a) In addition to all other amounts payable by Licensee pursuant
to this License, Licensee shall pay to NFLP *** each Fiscal
Year during the term ("Promotional Fee") in two equal
installments due on or before August 1 and December 1,
respectively.
(b) If the number of head coaches who are members of the NFL
Coaches Club ("Members") falls below twenty-five (25) for any
Fiscal Year of the Term (for purposes of this provision the
annual membership count in the Coaches Club will be made June
1st for each Fiscal Year), the Promotional Fee shall be
reduced as follows:
(1) If less than twenty-five (25) coaches, but at least
fifteen (15) coaches, are Members of the Coaches Club
in any Fiscal Year or the Term, the Promotional Fee
for such Fiscal Year shall be reduced by an amount
equal to *** multiplied by the difference between
twenty-five (25) and the total number of Coaches Club
members during such Fiscal Year.
(2) If less than fifteen (15) coaches are Members of the
Coaches Club in any Fiscal Year of the Term, License
will not be required to pay the Promotional Fee for
such Fiscal Year and Licensee and NFLP shall
negotiate in good faith as to an appropriate
reduction, if any, to the Advance Royalty Payment and
Minimum Royalty Guarantee for such Fiscal Year;
provided, however, that if Licensee fails to pay the
Promotional Fee pursuant to this provision in any
Fiscal Year, Licensee shall not be entitled to any of
the rights and benefits set forth in Additional Term
Nos. 2, 3, 4 and 5 below during such Fiscal Year.
2. Member Appearances
During each Fiscal Year of the Term, License shall be entitled
to personal appearances by five (5) Coaches Club Members. The specific
Members, appearance date(s), times, duration and event are to be
mutually agreed upon by Licensee and NFLP. Notwithstanding the above,
Licensee acknowledges ad agrees that such appearances will not
necessarily occur during the NFL season.
3. Product Supply
(a) During each Fiscal Year of the Term, Licensee will supply ***,
valued at Licensee's normal domestic wholesale sales price,
worth of Licensed Products, at no charge, to each NFL head
coach.
(b) During each Fiscal Year of the Term, Licensee will supply to
NFLP, at no charge, *** Pro Bowl Shirts (style to be selected
by NFLP).
*** This confidential material has been omitted and filed separately
with the Commission.
iii
4. Designation Claims
Based on Licensee's supply of Licensed Products to all NFL head coaches
and NFLP and Licensee's financial support of the Coaches Club and the
NFL as set forth above, Licensee shall have the right, subject to all
terms and conditions of this License, to use the following Designation
Claims in its advertising and promotional materials:
(a) "Antigua Sportswear, Inc.: Official Sport Shirt of the NFL
Coaches Club";
(b) "Antigua Sportswear, Inc.: Official Sweater of the NFL Coaches
Club";
(c) "Antigua Sportswear, Inc.: Official Sport Shirt of the Pro
Bowl".
5. Use of Coaches Club Logo
Licensee shall have the right, subject to all terms and
conditions of this License, to utilize the NFL Coaches Club logo on
hangtags and in advertising and promotional materials for the Licensed
Products.
iv
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National Football League Properties, Inc.
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Area Code (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
Retail Licensing Agreement
Licensee: Antigua Sportswear, Inc. Date: February 27, 1996
Address: 931 ▇ ▇. ▇▇▇▇ ▇▇▇ No.: 641-149-6320
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Lic. No.: R02468
National Football League Properties, Inc. ("NFLP") has the exclusive right to
license for commercial purposes the trademarks of the National Football League
("NFL") and the thirty professional football teams that comprise the NFL
("Member Clubs"). Licensee, whose name and address are set forth above, desires
to use certain of these trademarks in accordance with the terms and conditions
of this agreement ("License"). In consideration of the mutual premises,
covenants and undertakings contained in this License, the parties to this
License agree as follows:
1. Definitions
As used in this License, the terms listed on the attached Term Sheet
and elsewhere in this License have the following meanings:
a. "Advance Royalty Payment": The amount to be credited to Royalty
payments due for the corresponding Fiscal Year payable to NFLP upon the
execution of this License for Fiscal Year I and on or before April 15
for each successive Fiscal Year.
b. "Broadcast Exposure Fee": The amount Licensee shall pay to NFLP for
on-field exposure rights for the Exposure Products.
c. "Advertisements": Advertising space in designated NFLP publications to
be purchased by Licensee in accordance with this License.
d. "Affiliate": Any person or entity in which Licensee or any owner,
majority shareholder, officer or director of Licensee has any direct or
indirect beneficial or ownership interest or is a joint venture
partner.
e. "Assigned Member Clubs": The Member Clubs for which Licensee shall have
on-field exposure rights for the Exposure Products in accordance with
the terms of Paragraph 19.
f. "Authorized Brands": The only brand names Licensee may use in
association with the Licensed Products.
g. "Club Marks": The full team names, nicknames, helmet designs, uniform
designs, logos, slogans, and other identifying symbols and indicia
adopted for commercial purposes by the Member Clubs.
h. "Cooperative Fund": The amount payable to NFLP during each Fiscal Year
for use by NFLP in connection with the designated Cooperative Program.
i. "Distribution Channels": The channels of trade in the Territory in
which Licensee may distribute for sale or sell each Licensed Product as
defined in Exhibit I attached to this License and/or the attached Term
Sheet.
j. "Exposure Products": The Licensed Products for which Licensee shall
have on-field exposure rights for the Assigned Member Clubs.
k. "Fiscal Year": The period beginning on April 1 of any year and ending
on March 31 of the following year except for Fiscal Year I, which will
begin on the date this License is fully-executed and will end on March
31 of the following year.
l. "League Marks": "National Football League", "NFL", "National Football
Conference", "American Football Conference", "NFC", "AFC",
R02468 February 27, 1996 Antigua Sportswear, Inc. 1
"Super Bowl", "Pro Bowl", the NFL Shield design, and other identifying
symbols and indicia adopted for commercial purposes by the NFL.
m. "Licensed Marks": The trademarks for which Licensee is granted certain
limited, non-exclusive rights under this License.
n. "Licensed Products": All products for which Licensee may use the
Licensed Marks in association with the Authorized Brands. This license
will refer to each distinct type of product as a "Licensed Product"
since more than one product may be licensed (e.g. T-shirts and jackets
would each be a Licensed Product).
o. "Marketing Program": The program established by NFLP in connection with
which Licensee may use the Licensed Marks as authorized under this
License. Licensee shall abide by all rules, guidelines and policies
established by NFLP for such Marketing Program, which are deemed part
of this License.
p. "Member Club Marketing Commitment": The amount Licensee shall pay to
NFLP in exchange for Member Club controlled advertising and promotional
inventory from each Assigned Member Club in such Member Club's local
marketing area.
q. "Minimum Royally Guarantee": The minimum amount of Royalty payments
payable to NFLP on or before the 15th day following the end of each
Fiscal Year.
r. "Net Sales": Gross sales of all Licensed Products sold or distributed
for sale at Licensee's invoiced selling price less sales derived from
returns received and credited only. Licensee shall not credit any
return at a rate greater than the original invoiced selling price for
such Licensed Products. There shall be no other deductions allowed
including, without limitation, deductions for manufacturing costs,
selling costs, distribution costs, advertising and promotional costs,
quantity discounts, freight, non-collected or uncollectable accounts,
commissions, taxes, cash discounts, close out sales, distress sales,
sales to employees, or any other costs. For purposes of this Agreement,
Net Sales and all other referenced sales occur when Licensee invoices
or ships any Licensed Product, whichever is earlier. If Net Sales are
made to an Affiliate, the dollar amount of gross sales will be the
greater of Licensee's regular price to unaffiliated accounts or the
Affiliate's gross sales price to an unaffiliated account.
s. "NFL Marks": All League Marks and Club Marks, collectively.
t. "Premiums": Any products, including the Licensed Products, bearing the
NFL Marks or other indicia of the NFL or its Member Clubs that Licensee
sells or gives away for the purposes of promoting, publicizing or
increasing the sale of its own products or services other than the
Licensed Products, or that Licensee sells or gives away to any other
party whom Licensee knows or should reasonably know intends to use such
products for the purposes of promoting, publicizing or increasing the
sale of any other party's products or services. Promotions include,
without limitation, combination sales, incentives for sales force, and
trade or consumer promotions.
u. "Promotional Products": The quantity of each Licensed Product that
Licensee shall provide to NFLP at no cost during each Fiscal Year for
use in connection with NFLP's Promotional Programs, as defined in
Paragraph 5 of this License.
v. "Renewal Request Date": The date by which NFLP must receive
notification from Licensee of Licensee's desire to renew the License.
w. "Royalty": The amount of Net Sales Licensee shall pay to NFLP for all
sales of the Licensed Products. Licensee shall calculate all
R02468 February 27, 1996 Antigua Sportswear, Inc. 2
Royalty payments according to Net Sales based on Licensee's normal
domestic wholesale warehouse price. NFLP reserves the right to increase
the rate of the Royalty during the Term, provided that it gives
Licensee at least six (6) months written notice before such increase
takes effect.
x. "Sponsorship": The designated events for which Licensee will
participate as a sponsor during each Fiscal Year of the Term subject to
the execution of an NFLP Sponsorship Agreement.
y. "Style": A distinct prototype of a Licensed Product that differs from
any other prototype of that same Licensed Product in any form or manner
with respect to design; material, pattern, size, shape, Licensed Marks,
or any other distinguishing characteristic involving the specifications
for the production of all or any portion of that Licensed Product (e.g.
T-shirts bearing the San Francisco 49ers logo and T-shirts bearing the
San Diego Chargers logo would each be a Style of Licensed Product).
z. "Term": The time period for which this License shall be effective.
aa. "Territory": The geographic area in which Licensee shall have the right
to sell the Licensed Products.
bb. "Unit": A single Licensed Product (e.g. one T-shirt and one jacket
would each be a Unit).
2. Grant of License
Subject to all of the terms and conditions of this License, NFLP grants
Licensee the non-exclusive right to use the Licensed Marks in
connection with the manufacture, distribution, sale, and advertising of
the Licensed Products under the Authorized Brand in the Distribution
Channels in the Territory in accordance with all policies, rules and
regulations of the Marketing Program and NFLP, which are deemed part of
this License. Licensee shall have no right to sell or distribute any
Premiums unless Licensee receives a separate Premium License from NFLP
and pays NFLP the applicable Royalty under such Premium License.
Licensee shall not use the Licensed Products as Premiums or permit the
use of the Licensed Products as Premiums by any party whom Licensee
knows or should reasonably know intends to use the Licensed Products as
Premiums.
3. Terms of Payment
a. Licensee shall pay NFLP the Royalty on all sales of the Licensed
Products. Regardless of whether any sales occur during any Fiscal Year,
Licensee shall also pay NFLP the applicable Advance Royalty Payment and
Minimum Royalty Guarantee for each Fiscal Year during the Term. Advance
Royalty Payments and any payments made to satisfy the Minimum Royalty
Guarantee are not refundable. Licensee may credit the Advance Royalty
Payment and Royalty payments made to NFLP during each Fiscal Year to
the Minimum Royalty Guarantee for the corresponding Fiscal Year only.
Licensee may not credit such amounts to the Advance Royalty Payment,
Minimum Royalty Guarantee or any other payment required under this
License for any other Fiscal Year. If NFLP terminates this License, for
the Fiscal Year in which termination occurs ("Termination Fiscal Year")
Licensee shall pay NFLP the Royalty on all sales of the Licensed
Products made during the Termination Fiscal Year or a pro rated portion
of the Minimum Royalty Guarantee owed in excess of the Advance Royalty
Payment ("Termination Guarantee"), whichever is greater. For purposes
of this paragraph the pro rated Minimum Royalty Guarantee will be
calculated as follows:
R02468 February 27, 1996 Antigua Sportswear, Inc. 3
Termination Guarantee x No. of Days Completed
in Termination Fiscal Year
1 365
b. On or before the 15th day of each month, Licensee shall make all
Royalty payments to NFLP due on sales of the Licensed Products during
the preceding calendar month. Simultaneously with the Royalty payment,
Licensee shall furnish full and accurate statements of the Net Sales of
each Licensed Product sold and distributed during such calendar month
on forms provided by NFLP. The statements will include the quantity and
description of each Licensed Product itemized by Member Club if
applicable, the gross sales price, itemized deductions from the gross
sales price, any returns made during the preceding month, and the
resulting Net Sales on which Licensee calculated the Royalty amount.
Licensee shall furnish such statements for each Licensed Product
regardless of whether it sold any such Licensed Product during the
preceding month. NFLP's receipt or acceptance of any statement or
Royalty payment or the cashing of a Royalty check will not preclude
NFLP from questioning the correctness of such statements or payments at
any time. Upon discovery of any verifiable inconsistency or mistake in
such statements or payments, Licensee shall immediately rectify such
inconsistency or mistake.
c. Licensee shall pay NFLP all other amounts listed on the Term Sheet
attached to this License in accordance with the dates provided in such
Term Sheet.
d. Licensee shall pay NFLP an additional charge of one and one-half
percent (1.5%) per month on any payment due under this License that
remains unpaid fifteen (15) days after such payment becomes due.
4. Quality Control
a. Prior to making any use of any Style of any Licensed Product, Licensee
shall submit to NFLP for its approval at Licensee's sole cost and
expense at the following applicable stages: (i) finished artwork or
final proofs; (ii) pre-production samples or strike-offs for such
proposed Style; and (iii) a sample Unit of the finished version of such
Style together with all packaging, cartons, containers, hangtags and
wrapping materials related to such Unit ("Related Materials"). For
Styles that differ solely with respect to the Licensed Marks, Licensee
may submit a sample Unit of one Style along with artwork of the Styles
bearing the other Licensed Marks for approval purposes unless NFLP
requests a sample Unit of each such Style. NFLP shall use its best
efforts to promptly evaluate all such submissions and provide Licensee,
if applicable, with quality standards and specifications for the
finished Units of each Style. Upon approval of the finished version of
a sample Unit of a Style, NFLP shall execute a Product Approval Form
that will contain any applicable quality standards and specifications.
License shall not manufacture, sell, distribute or advertise any Style
of a Licensed Product unless NFLP has executed a Product Approval Form
for such Style.
b. All Product Approval Forms are effective for one Fiscal Year only and
Licensee must resubmit to NFLP each Style of each Licensed Product
previously approved by NFLP for quality control approval within thirty
(30) days after the start of each successive Fiscal Year. From time to
time, NFLP may request additional sample Units of any Style of any
Licensed Product to confirm continued compliance with NFLP's quality
control guidelines and any applicable quality
R02468 February 27, 1996 Antigua Sportswear, Inc. 4
standards and specifications. NFLP shall have the right to withdraw its
approval of any Style of any Licensed Product if, in NFLP's sole
judgment, such sample Units cease to conform to such guidelines,
standards or specifications or otherwise deviate in quality from the
previously approved sample Units. Upon notice by NFLP to Licensee that
the Product Approval Form for a Style of a Licensed Product has been
withdrawn, Licensee shall immediately cease to manufacture, distribute,
sell or advertise any further Units of such Style until such time as a
new Product Approval Form has been executed and delivered by NFLP.
c. Licensee shall not make any modification to any Style for which NFLP
has issued a Product Approval Form or depart from any applicable
quality standards and specifications for any Style unless NFLP has
approved such modification for such Style and issues a new Product
Approval Form. Licensee acknowledges that the manufacture, use, sale,
distribution, or advertising of any Style that deviates from the Style
approved by NFLP will constitute a material breach of this License.
Upon such breach, NFLP may terminate this License immediately.
d. No distribution or sale of irregulars or seconds is permitted except
when Licensee receives prior written approval from NFLP.
5. Advertising and Promotional Materials
a. Licensee will not use the Licensed Marks or any reproduction of them,
including without limitation, Photographs or Computer Art, as defined
in Paragraph 1Oa, in any advertising, promotion, publicity or display
materials (collectively "Promotional Materials") without receiving
NFLP's prior written approval executed on a Promotional Approval Form
supplied to Licensee by NFLP. Licensee may use such approved
Promotional Materials only in conjunction with the Styles of Licensed
Products that NFLP has approved. Licensee shall submit to NFLP all
Promotional Materials at the following applicable stages appropriate to
the medium used: (i) conceptual stage, pre-production art or rough
cuts; (ii) layout, storyboard and script: (iii) finished materials: and
(iv) at any other time as reasonably requested by NFLP. NFLP shall use
best efforts to evaluate all such Promotional Materials' submissions
within ten (10) business days of their receipt by NFLP. NFLP shall
execute a Promotional Approval Form for all Promotional Materials that
it approves. Licensee shall notify its retailers and/or Third Party
Distributors that NFLP must approve all Promotional Materials involving
or using in any form or manner the Licensed Marks. Licensee shall use
best efforts to ensure that its retailers and/or Third Party
Distributors do not publish, display or otherwise distribute such
Promotional Materials without NFLP's prior written approval.
b. NFLP has the exclusive right, in its sole discretion, to approve or
disapprove any Promotional Materials' submissions. Licensee
acknowledges that NFLP may disapprove Promotional Materials that, in
NFLP's opinion, reflect unfavorably upon NFLP, the NFL or its Member
Clubs including, without limitation, materials involving gambling,
lotteries or other games inconsistent with the image of the NFL, the
Member Clubs, or the Licensed Products.
c. NFLP may withdraw its approval of any Promotional Materials if: (i) the
Promotional Materials have been altered without the prior written
approval of NFLP; (ii) the Style and/or the Licensed Product promoted
in the Promotional Materials ceases to be approved under this License;
or (iii) an event occurs that, in NFLP's opinion,
R02468 February 27, 1996 Antigua Sportswear, Inc. 5
causes NFLP's relationship with Licensee or any Licensed Product to
adversely reflect upon the professional or business reputation of the
NFL, its Member Clubs or NFLP.
d. Licensee represents that NFLP has the right to conduct promotions and
special events in its sole discretion and to print catalogs, sales
sheets and brochures involving representative merchandise from NFLP's
licensees ("Promotional Programs"). Licensee shall supply within ten
(10) business days of any request by NFLP, at no charge to NFLP, all or
any portion of the Promotional Products required by NFLP for use, in
NFLP's sole discretion, in such Promotional Programs.
e. Licensee shall pay NFLP the designated amounts for the Advertisements,
Sponsorship, and Cooperative Fund, if applicable, on or before the
corresponding dates listed on the Term Sheet attached to this License.
NFLP shall use such payments in a manner determined by NFLP in its sole
discretion.
f. During each Fiscal Year of the Term in which NFLP publishes the NFL
Merchandise Catalogue, Licensee shall purchase a full-page
advertisement in such catalogue at the rate established in NFLP's
then-existing rate card. Licensee shall make such payment within
fifteen (15) days from receiving an invoice from NFLP.
g. During each Fiscal Year of the Term, Licensee shall pay NFLP the Member
Club Marketing Commitment set forth in the Term Sheet attached to this
Licensee in accordance with the payment due dates listed on such sheet.
Licensee and each Assigned Member Club shall mutually agree to the
specific inventory that Licensee will receive in exchange for payment
of the Member Club Marketing Commitment.
6. Distribution Requirements
Licensee shall distribute for sale and sell each Licensed Product only
in the authorized Distribution Channels. Prior to distribution of any
Licensed Product, Licensee shall submit to NFLP a list of its retail
accounts for the Licensed Products for the purpose of determining which
accounts fall within the Distribution Channels. NFLP shall determine,
in its sole discretion, whether such retail accounts fall within the
Distribution Channels and shall provide Licensee with a list of the
approved retail accounts. Licensee shall manufacture, distribute, sell
and maintain inventory of sufficient quantities of each Style of each
Licensed Product to meet the reasonable market demand in the
Distribution Channels. Licensee shall not sell Licensed Products to any
third party that Licensee knows or should reasonably know intends to
sell the Licensed Products outside of the authorized Distribution
Channels. If Licensee sells or distributes for sale other merchandise
that does not bear the Licensed Marks but is of the same grade and
quality as the Licensed Products, Licensee shall not discriminate in
the granting of commissions and discounts to salespersons, dealers and
distributors for the sale of the Licensed Products. If the Licensed
Marks are Club Marks, Licensee acknowledges that it shall manufacture,
distribute and sell a commercially significant quantity of Units
bearing the trademarks of each Member Club individually in each Style.
Licensee shall have no right to distribute the Licensed Products via
computer on-line services unless expressly indicated on the Term Sheet.
7. Authorized Brands
Licensee shall only use the Authorized Brands, if applicable, in
connection with the manufacture, distribution, sale, and advertising
R02468 February 27, 1996 Antigua Sportswear, Inc. 6
of each Licensed Product. NFLP shall have the right, in its sole
discretion, to remove or change any of the Authorized Brands, if
applicable, during the Term. Licensee must receive the prior written
approval of NFLP to use any other trademarks on the Licensed Products.
8. NFLP's Purchase of Licensed Products
In addition to the Promotional Products provided at no cost by
Licensee, NFLP, the NFL and its Member Clubs shall have the right to
purchase any of the Licensed Products in any quantity at the minimum
wholesale price, excluding Royalty payments, that Licensee charges to
its best customer, provided that NFLP will not require Licensee to pay
a Royalty on such sales.
9. Third Party Relationships
a. Licensee shall not assign, sublicense, transfer or otherwise encumber
any of its rights under this License to any Affiliate or other third
party without NFLP's prior written consent. If Licensee assigns,
sublicenses, transfers or encumbers any portion of this License without
such consent, NFLP shall have the right to terminate this License
immediately. Among other things, NFLP will consider the License
assigned and subject to the requirements of this subparagraph if: (i)
the beneficial ownership or control of fifty percent (50%) or more of
Licensee's capital stock is transferred or otherwise conveyed: (ii)
Licensee becomes part of any merger or consolidation; or (iii) the sale
or transfer of all or substantially all of Licensee's assets occurs.
b. Licensee must receive NFLP's prior written consent to use a domestic or
foreign third party distributor of any Licensed Product ("Third Party
Distributor") or domestic or foreign third party manufacturer of any
Licensed Product or any portion of any Licensed Product, including
patches, labels and emblems made by any party that is not already a
licensee of NFLP ("Third Party Manufacturer"). NFLP shall have the
right to approve or disapprove any Third Party Distributor or Third
Party Manufacturer in its sole discretion. In the case of a Third Party
Manufacturer, NFLP's approval of such Third Party Manufacturer, if
granted, will be contingent on the execution of an agreement between
NFLP and the approved Third Party Manufacturer. Notwithstanding such
agreement, Licensee shall at all times remain primarily obligated to
NFLP under this License and shall take all necessary efforts to ensure
that such Third Party Manufacturer uses the Licensed Marks only to
manufacture the designated Licensed Product and for no other purpose
including, without limitation, promoting or selling the Licensed
Product. If such Third Party Manufacturer has made an unauthorized use
of the Licensed Marks, Licensee shall fully cooperate with NFLP to
ensure that such unauthorized use ceases promptly. Licensee shall be
primarily obligated to ensure that each Licensed Product produced by
such Third Party Manufacturer complies with the requirements of
Paragraph 4 of this License.
c. Licensee represents and warrants that it shall manufacture and cause
all Third Party Manufacturers to manufacture the Licensed Products in
accordance with all applicable laws, rules and regulations of the
United States Department of Labor and state Departments of Labor,
including, without limitation, the federal Fair Labor Standards Act.
Licensee shall ensure that it will not distribute or cause the
distribution of Licensed Products that Licensee knows or should
R02468 February 27, 1996 Antigua Sportswear, Inc. 7
reasonably know were manufactured in violation of any federal or state
labor law, rule or regulation. Upon a determination by the United
States Department of Labor or any state Department of Labor that the
Licensed Products have been manufactured in violation of any federal or
state labor law, rule or regulation, Licensee shall take all necessary
steps to correct such violation including, without limitation, paying
all applicable back wages found due to workers who manufactured the
Licensed Products or any portion of them.
d. Licensee shall not make any payments to any Member Club or to any
shareholder, officer, director, employee, agent or representative of
any Member Club, or to any employee, agent or representative of the NFL
or its affiliates in such person's individual capacity, in connection
with the use of any Licensed Marks under this License or otherwise as a
direct result of sales of any Licensed Product. Licensee shall disclose
to NFLP all existing agreements or agreements being negotiated by
Licensee or its agent between Licensee and any Member Club or any
shareholder, officer, director, employee, agent or representative of
any Member Club, or any employee, agent or representative of the NFL or
any of its affiliates in such person's individual capacity.
e. In the event that NFLP consents to any third party relationship under
this Paragraph 9 or otherwise under this License, Licensee acknowledges
that such approval will be contingent on the execution of an
appropriate form or agreement supplied by NFLP.
10. Computer Artwork and Photographs
a. Subject to the requirements of Paragraph 4, if Licensee wishes to use
computer artwork incorporating graphic depictions of the Licensed Marks
("Computer Art") or photographs owned and/or con- trolled by NFLP
("Photographs"), Licensee shall request such Computer Art or
Photographs in a Use Application provided to Licensee by NFLP. If NFLP,
in its sole discretion, approves such application, NFLP shall provide
Licensee with Computer Art or Photographs at a rate established by NFLP
in its sole discretion provided that, in the case of Photographs,
Licensee must first sign NFLP's standard Photo Use Agreement. Licensee
shall make any pay- ment for the Computer Art or Photographs within
thirty (30) days of receiving an invoice from NFLP. Licensee shall only
use the Com- puter Art or Photographs in accordance with the terms and
conditions of this License including, without limitation, Paragraph 11,
and, in the case of Photographs, the Photo Use Agreement. The terms of
the executed Photo Use Agreement will govern in the event of any con-
flict between the terms of this License and the terms of the Photo Use
Agreement.
b. Licensee shall not make copies of the Computer Art or Photographs
without the express written approval of NFLP and shall not use the
Computer Art or Photographs for any purpose other than the purpose set
forth in Licensee's Use Application. Licensee shall not provide the
Computer Art or Photographs to any other party including a manu-
facturer, unless NFLP approves such party in accordance with Para-
graph 9 of this License. Licensee shall take all steps necessary to
prevent the unauthorized copying or use of the Computer Art or
Photographs by third parties.
c. Upon the expiration or termination of this License, Licensee shall
immediately deliver to NFLP all Computer Art and Photographs provided
by NFLP and all copies and duplications of such Computer Art or
Photographs and all related materials.
R02468 February 27, 1996 Antigua Sportswear, Inc. 8
d. Licensee acknowledges that it has no right, title or interest in or to
any of the Photographs, including, without limitation, copyrights in
the Photographs. Licensee represents that it will not assert any rights
in or to the Photographs during the Term of thereafter.
11. Protection of Rights
a. Licensee acknowledges that, as between NFLP and Licensee, NFLP
exclusively owns the NFL Marks and all copyrights, trademarks and other
proprietary rights in and to them. Licensee further acknowledges that
NFLP shall own worldwide in perpetuity: (i) all artwork produced under
this License bearing the NFL Marks (Artwork") and all copyrights and
other proprietary rights in such Artwork; (ii) all secondary marks
and/or promotional concepts ("Secondary Marks") developed for use and
used in connection with any Licensed Product and all copyrights and
other proprietary rights in such Secondary Marks; (iii) all derivative
works based on any of the NFL Marks, Secondary Marks, Computer Art, or
Artwork ("Derivative Works") and all copyrights and other proprietary
rights in such Derivative Works; and (iv) all Computer Art and all
copyrights and other proprietary rights in such Computer Art as well as
duplicates and copies of it. Licensee's use of the Licensed Marks,
Computer Art, Artwork, Secondary Marks and Derivative Works is for
NFLP's benefit and Licensee will not acquire any rights in any of them
by such use. Licensee acknowledges that NFLP will have the right to
terminate this License if Licensee asserts any rights in or to any of
the NFL Marks, Computer Art. Artwork, Secondary Marks and Derivative
Works other than those granted under this License. Licensee shall not
attack the trademarks, copyrights or other proprietary rights of NFLP,
the NFL, or its Member Clubs during the Term or thereafter.
b. Any Artwork, Computer Art, Secondary Marks, Derivative Works or other
materials created by Licensee or its agents in connection with this
Agreement shall be performed as a "work made for hire" for NFLP.
Licensee irrevocably assigns and transfers to NFLP all right, title and
interest, including all copyrights and extensions and renewals thereof,
in and to the Artwork, the Secondary Marks, the Derivative Works, the
Computer Art, and all related proprietary rights (collectively the
"Proprietary Materials"). At the request of NFLP, Licensee shall
execute all documents confirming NFLP's rights in and to the NFL Marks
and Proprietary Materials including an assignment of copyright in form
and substance satisfactory to NFLP. Licensee shall cause each third
party who makes or con- tributes to the creation of the Proprietary
Materials to agree that all rights, including the copyrights, in his or
her work shall be owned by NFLP whether as a 'work made for hire' or by
assignment, as appropriate.
c. Licensee shall only display or use the Licensed Marks in the form and
manner that NFLP has specifically approved in writing. Licensee shall
cause to be irremovably and legibly printed or affixed in a clearly
visible location approved by NFLP on every Unit of each Licensed
Product, and all Related Materials, Proprietary Materials, and
Promotional Materials the following:
(i) Trademark Notices as directed and specified by NFLP, including
a legend indicating that the NFL Marks are trademarks of the
NFL or the Member Clubs, and are being used by Licensee under
License from NFLP;
(ii) Copyright Notices as directed and specified by NFLP;
R02468 February 27, 1996 Antigua Sportswear, Inc. 9
(iii) The Marketing Program symbol;
(iv) Hangtags, inserts, holograms, and other identifying material
required by NFLP;
(v) A permanent label displaying Licensee's name and the
Authorized Brand;
(vi) Licensee's name, trade name and address; and
(vii) All other notices required by NFLP to protect the interests of
NFLP, the NFL, and its Member Clubs.
d. Licensee will not use any Trademark or Copyright Notices on the
Licensed Products, Related Materials, Proprietary Materials, and
Promotional Materials that conflict with, negate or cause confusion
with any notices required under this Paragraph 11. Licensee represents
that, except for the Authorized Brands, if applicable, or as otherwise
authorized in writing by NFLP, it will not associate other licensed
properties, names, symbols, or designs with the Licensed Marks on any
of the Licensed Products, Related Materials, Promotional Materials, and
Proprietary Materials. Licensee will not use the Licensed Marks or NFL
Marks on any business sign, business card, invoice, sales sheet,
brochure, catalog, or other form, or as part of the name of Licensee's
business except as authorized by NFLP in writing prior to such usage.
e. NFLP shall have the right to secure trademark and/or copyright
registrations for the NFL Marks. Upon request by NFLP, in addition to
any other quantity of Licensed Products that Licensee must submit to
NFLP under this License, Licensee shall deliver to NFLP, free of cost,
twelve (12) Units of each Licensed Product with their Related Materials
for such registration purposes provided that Licensee shall not owe any
Royalty for such Units. Licensee shall provide NFLP with the date of
first use of each Licensed Product in interstate and intrastate
commerce. NFLP shall have the right to secure trademark and/or
copyright registrations in NFLP's name for any Proprietary Materials
created by Licensee or its agents for use in connection with any
Licensed Product. By execution of this License, Licensee appoints NFLP
as Licensee's attorney-in-fact coupled with an irrevocable interest to
execute, acknowledge, deliver and record all registrations and all
documents referred to in this Paragraph 11.
f. Licensee shall assist NFLP, at NFLP's expense, in the procurement,
protection, and maintenance of NFLP's rights in and to the NFL Marks
and the Proprietary Materials. NFLP may, in its sole discretion,
commence or prosecute and control the disposition of any claims or
suits relative to the imitation, infringement and/or unauthorized use
of the NFL Marks or the Proprietary Materials either in its own name,
or in the name of Licensee, or join Licensee as a party in the
prosecution of such claims or suits. Licensee shall cooperate fully
with and provide full assistance to NFLP in connection with any such
claims or suits. Licensee shall promptly notify NFLP in writing of any
infringement, imitations, or unauthorized use of the NFL Marks or
Proprietary Materials by others. NFLP shall, in its sole discretion,
determine whether to take action and the type of action, if any, to
take against such infringement. Licensee shall not institute any suit
or take any action on account of such infringe- ments, imitations or
unauthorized uses unless it receives NFLP's prior written consent. NFLP
will receive the full amount of any settlement made or damages awarded
in connection with any action taken against such infringement.
R02468 February 27, 1996 Antigua Sportswear, Inc. 10
12. Indemnification and Insurance
a. During the Term and thereafter, Licensee shall be solely responsible
for, defend, indemnify and hold harmless NFLP, the NFL, its Member
Clubs, and their respective affiliates, shareholders, officers,
directors, agents and employees for, from and against any claims,
demands, causes of action, damages, costs and expenses, including
reasonable attorneys' fees, judgments, and settlements arising out of
or in connection with: (i) Licensee's breach of any of its
representations, warranties, covenants or obligations contained in this
License; (ii) Licensee's use of the Licensed Marks except as provided
in subparagraph (c) below; (iii) Licensee's noncompliance with any
applicable federal, state, or local laws or regulations: or (iv) the
manufacture, distribution, sale, advertising or use of any Licensed
Product.
b. Licensee shall obtain and maintain at its own expense from a licensed
and admitted insurance carrier with a rating not less than A from Best,
a product liability insurance policy that will provide coverage of
three million dollars ($3,000,000) for personal injuries arising out of
each occurrence and one million dollars ($1,000,000) for property
damage arising out of each occurrence and an advertising liability
insurance policy that will provide coverage of three million dollars
($3,000,000) for each occurrence. Licensee shall ensure that such
policies: (i) will list the NFL, its Member Clubs, NFLP, and their
respective affiliates, shareholders, officers, directors, agents, and
employees as additional insureds; and (ii) will each provide that they
can not be canceled without at least thirty (30) days written notice to
NFLP. Simultaneously with the execution of this License, Licensee shall
submit to NFLP the fully paid policies or certificates of insurance.
Compliance with this subparagraph (b) will not relieve Licensee of its
other obligations under this Paragraph 12. The insurance coverage
required under this License is not cumulative and will not extend to
any other License or Agreement between Licensee and NFLP unless
otherwise authorized by NFLP in writing.
c. During the Term and thereafter, NFLP shall indemnify and hold harmless
Licensee, its officers, directors, agents and employees for, from and
against any claims, demands, causes of action, damages, and reasonable
attorneys' fees for trademark infringement arising out of the use of
the Licensed Marks as strictly authorized under this License, provided
that NFLP is given immediate notice of and shall have the option to
undertake and conduct the defense of any such claim, demand or cause of
action and further provided that Licensee shall cooperate in the
defense of such claim as reasonably required by NFLP.
13. Financial Information
a. Upon request by NFLP, Licensee shall furnish NFLP within sixty (60)
days of such request a detailed statement by an independent certified
public accountant showing the number and description of the Licensed
Products sold during the Term including an itemization of each Licensed
Product by number of Units sold, Member Club, if applicable, the gross
sales price, itemized deductions from the gross sales price, any
returns made, and the resulting Net Sales on which Licensee calculated
the Royalty amount.
b. Within ninety (90) days after the last day of Licensee's fiscal year,
Licensee shall provide NFLP with all pertinent information pertaining
to Licensee's financial condition involving ownership,
R02468 February 27, 1996 Antigua Sportswear, Inc. 11
credit, financial and other information about Licensee's business
including, without limitation, fiscal year-end financial statements and
operating statements certified by Licensee's chief financial officer as
accurate and complete and as constituting a fair presentation of
Licensee's financial condition. Licensee shall provide NFLP with full
and free access to inspect and copy all business records pertaining to
Licensee's financial condition.
c. On or before the 15th day of each month, Licensee shall provide NFLP
with Licensee's Fiscal Year projections for sales and income for its
overall business, including the Licensed Products. Upon request by
NFLP, Licensee shall provide NFLP with a list ranking its sales by
retailer and/or Third Party Distributors for its top twenty-five (25)
retail accounts or by retail accounts comprising seventy-five percent
(75%) of its Net Sales, whichever is greater, and itemizing for each
such retailer and/or Third Party Distributors a description and the
number of Units of each Licensed Product sold.
d. Licensee shall notify NFLP in writing of any adverse material change in
Licensee's financial condition that will likely affect its performance
under this License at the time such material change occurs.
14. Audits and Inspections
a. During the Term and for at least three (3) full Fiscal Years after the
expiration or termination of the License, Licensee shall keep, maintain
and preserve complete and accurate books of account and records
covering all transactions relating to this License, includ- ing,
without limitation, invoices, correspondence, inventory accounting,
banking and financial records ("Records"). Licensee shall designate a
symbol or number that will be used exclusively on Records relating to
the Licensed Products and with no other articles that Licensee
manufactures, distributes or sells. Licensee shall ensure that all
invoices for the sale of Licensed Products to its retailers and/or
Third Party Distributors will include the quantity and description of
each Licensed Product itemized by Marketing Program, Style and Member
Club, if applicable.
b. During the Term and for at least three (3) full Fiscal Years after the
expiration or termination of the License, NFLP and its duly authorized
representatives will have the right during reasonable business hours to
inspect and audit all Records and conduct a physical examination of
Licensee's premises including its warehouses and manufacturing
facilities and those of Third Party Distributors and Third Party
Manufacturers. NFLP shall provide Licensee with no less than five (5)
business days' written notice prior to such inspection, audit or
examination; provided however, if compelling circumstances exist, as
determined by NFLP in the exercise of its reasonable business judgment,
NFLP may conduct an immediate inspec- tion, audit or examination with
no prior notice to Licensee. Licen- see represents that it will fully
cooperate with the inspection, audit or examination and will not cause
or permit any interference with NFLP or its representatives during any
inspection, audit or examination. During an inspection, audit or
examination, NFLP shall have the right to make copies or extracts of
Licensee's Records.
c. Licensee shall pay NFLP for the cost of any audit that discloses a
payment deficiency of more than two percent (2%) between the amount due
to NFLP pursuant to the audit and the amount Licensee actually paid or
reported to NFLP. Licensee shall pay NFLP any deficiency amount
together with interest on the deficiency amount pursuant to the
provisions in Paragraph 3d of this License. Licensee shall pay such
amounts within ten (10) days of invoicing by NFLP.
R02468 February 27, 1996 Antigua Sportswear, Inc. 12
16. Termination
Without prejudice to any other rights it may have in law, equity or
otherwise, NFLP shall have the right to immediately terminate this
License upon written notice to Licensee at any time if:
a. Licensee fails to generate Net Sales during any Fiscal Year satisfying
the corresponding Minimum Royalty Guarantee;
b. Licensee fails to deliver to NFLP or to maintain in full force and
effect the insurance coverage referred to in Paragraph 12b of this
License;
c. Licensee fails to make available its premises, Records or other
business information to NFLP or its representatives or fails to provide
full and complete information as required in Paragraphs 13 and 14 of
this License;
d. Licensee manufactures, sells, distributes, advertises or uses any Style
of any Licensed Product, or any Promotional Materials, or Proprietary
Materials without the prior written approval of NFLP as required in
this License, or after such written approval has been withdrawn by NFLP
or has expired;
e. Licensee distributes or sells any Licensed Product outside the
Territory or sells any Licensed Product to a third party that Licensee
knows or should reasonably know intends to sell such Licensed Product
outside the Territory;
f. Licensee distributes any Licensed Product outside the corresponding
Distribution Channels, or sells any Licensed Product to any third party
that Licensee knows or should reasonably know intends to sell such
Licensed Product outside the corresponding Distribution Channels;
g. Licensee fails to obtain NFLP's written approval prior to assigning,
sublicensing, transferring, or otherwise encumbering the License or
prior to using a Third Party Manufacturer or Third Party Distributor,
or any approved Third Party Manufacturer or Third Party Distributor
engages in conduct that would entitle NFLP to terminate the License if
Licensee had engaged in such conduct;
h. Licensee fails to satisfy the distribution requirements in Paragraph 6
of this License or otherwise fails to make timely and complete delivery
of orders it has taken for any Licensed Product to seventy percent
(70%) or more of its retail accounts and/or Third Party Distributors
that collectively account for eighty percent (80%) of its Net Sales on
one or more occasion during any Fiscal Year;
i. Licensee makes a material misrepresentation or omission in its license
application form;
j. Licensee fails to make any payment or deliver any statement required
under this License and fails to correct such default within ten (10)
days of written notice of such default;
k. Licensee breaches any other agreement in effect between Licensee and
NFLP;
l. Licensee makes or agrees to make a payment to any Member Club or any
shareholder, officer, director, employee, agent, or representative of a
Member Club, or to any agent, representative or employee of the NFL or
its affiliates in such person's individual capacity, in connection with
the use of any Licensed Marks under this License or otherwise as a
direct result of the sales of any Licensed Product, or Licensee fails
to disclose to NFLP any existing agreement or agreement being
negotiated by Licensee or Licensee's agent between Licensee and a
Member Club or any shareholder, officer, director, employee, agent, or
representative of a Member Club, or any agent,
R02468 February 27, 1996 Antigua Sportswear, Inc. 13
representative or employee of the NFL or its affiliates in such
person's individual capacity;
m. Licensee disparages NFLP, the NFL, any of its Member Clubs, or any of
their respective shareholders, officers, directors and employees as
determined by NFLP in its sole discretion, or otherwise engages in
conduct that NFLP deems detrimental to the NFL or any of its Member
Clubs;
n. Licensee fails, in any way, to comply with the requirements of
Paragraph 19; or
o. Licensee fails to comply with any other material term or condition of
this License.
16. Goodwill and Reputation
Licensee recognizes the great value of the goodwill associated with the
NFL Marks and acknowledges that such goodwill belongs to the Member
Clubs and the NFL, and that such NFL Marks have secondary meaning in
the minds of the public. The nature of the business of NFLP, the NFL,
and its Member Clubs, requires public respect for and trust in the
reputation and integrity of the NFL and its Member Clubs. NFLP may, at
its sole option, terminate this License or withdraw some or all Product
Approval Forms or Promotional Approval Forms by written notice to
Licensee if any unanticipated factor, development or event causes
NFLP's continued association with any one or more Licensed Product or
Licensee to adversely reflect upon NFLP, the NFL or its Member as
determined by NFLP in its sole discretion. In the event of such
termination, Licensee shall pay to NFLP the Royalty on all sales of the
Licensed Products made during the Termination Fiscal Year or the
Termination Guarantee as defined in Paragraph 3a, whichever is greater,
and all other amounts due to NFLP. Upon receipt of such payment, NFLP
will reimburse Licensee for its salvage expenses or, in the case of
unsalvageable Licensed Products, Licensee's manufacturing costs if NFLP
does not permit Licensee to distribute the remaining inventory of
Licensed Products.
17. Renewal Request
NFLP must receive a written request from Licensee by no later than the
Renewal Request Date if Licensee desires to renew the License. If
Licensee has complied with all terms and conditions of this License
during the Term and NFLP desires, in its sole discretion, to negotiate
a renewal License, NFLP shall negotiate with Licensee for the terms and
conditions of a renewal License for a period of no more than sixty (60)
days following NFLP's receipt of Licensee's renewal request notice.
This License automatically expires at the end of the Term if NFLP does
not receive Licensee's written request by the Renewal Request Date,
Licensee has failed to comply with all terms and conditions of this
License, NFLP elects not to negotiate a renewal License, or the parties
are unable to reach an agreement within said sixty-day negotiation
period. Licensee acknowledges that NFLP has no express or implied
obligation to renew the License. NFLP will have no liability to
Licensee for any expenses incurred by Licensee in anticipation of any
renewal or extension of this License.
18. Effect of Expiration or Termination of the License
a. Sixty (60) days before the expiration of this License, Licensee will
furnish to NFLP a statement showing the number of Units and description
of such Units for each Style of each Licensed Product,
R02468 February 27, 1996 Antigua Sportswear, Inc. 14
Promotional Materials, and Proprietary Materials on hand or in process
in Licensee's inventory. If this License is terminated by NFLP,
Licensee shall furnish such statement within ten (1 0) days after
notice of termination is given by NFLP.
b. After expiration or termination of this License for whatever reason,
all rights granted under this Licensee will revert to NFLP and Licensee
shall refrain from further use of, simulation of or reference to any
and all of the NFL Marks except as provided in this paragraph. Except
for termination of this License by NFLP, Licensee will have ninety (90)
days to dispose of the Licensed Products ("Sell-Off Period") that are
on hand or in process at the time of such expiration, provided all
statements and payments then due to NFLP are first made and such
sell-off occurs at Licensee's regular selling price and within the
Distribution Channels. During the Sell-Off Period, Licensee shall
submit all payments and statements required under this License in
accordance with the terms and conditions of the License.
c. If Licensee has remaining inventory of the Licensed Products upon the
termination of this License or after the Sell-Off Period, if
applicable, NFLP may, at its option: (i) purchase such inventory at
Licensee's cost; (ii) require Licensee to deliver such inventory to
NFLP for destruction at Licensee's expense; or (iii) require Licensee
to destroy such inventory at Licensee's expense and furnish NFLP with
an affidavit signed by an officer of Licensee attesting to such
destruction. NFLP will have the right at any time before expiration or
termination of this License and during the Sell-Off Period to conduct a
physical inventory to, among other things, verify the quantity and
Style of the Licensed Products in Licensee's inventory. If Licensee
refuses to permit such physical examination of the inventory or fails
to provide NFLP with the statement required in subparagraph a above,
Licensee will forfeit its right to any Sell-Off Period.
d. Upon the termination of this License or immediately after the Sell-Off
Period, Licensee shall deliver to NFLP all Proprietary Materials and
all related materials, including software, created or used by Licensee
in connection with this License and shall, at NFLP's option, destroy or
sell to NFLP at Licensee's cost, any molds, plates and other items used
to reproduce the Licensed Marks.
19. On-Field Product Exposure
a. Licensee acknowledges that in furtherance of the NFL's policy of
control of game operations, NFLP shall approve any and all visible
items worn or used on-field, including the sidelines, during all
pre-season, regular season and post-season NFL games. Except as
otherwise authorized in writing by NFLP or as otherwise provided in
this License, Licensee shall not during the Term or thereafter agree,
contractually or otherwise, with any Member Club, NFL player, coach, or
other Member Club employee, for any individual to wear, use or promote
any commercially identified product on-field, including the sidelines,
during any NFL game.
b. Licensee acknowledges that in furtherance of the NFL's policy of
control of game operations, there are specific rules and regulations
regarding the size of a manufacturers logo or other commercial
identification that may appear on visible merchandise worn or used
on-field, including the sidelines, during any NFL game. Licensee agrees
that it will strictly adhere to the standards set forth in any and all
such rules and regulations with regard to any of the products that NFLP
may, in its sole discretion, authorize Licensee
R02468 February 27, 1996 Antigua Sportswear, Inc. 15
to have worn or used on-field, including the sidelines, by NFL players,
coaches, or any other Member Club employees during any NFL game.
c. Licensee represents that it has received a copy of and is familiar with
NFLP's NFL Pro Line Policy, which is deemed part of this License. Any
breach by Licensee of any terms and conditions set forth in the NFL Pro
Line Policy shall be considered a material breach of this License.
During each Fiscal Year of the Term, NFLP shall assign on-field and
sideline exposure rights for the Exposure Products to Licensee with the
Assigned Member Clubs listed on the Term Sheet. Licensee acknowledges
that NFLP may, in its sole dis- cretion, assign on a yearly basis
on-field and sideline exposure rights for the remaining Member Clubs to
any other NFL Pro Line licensees. Licensee further acknowledges that
NFLP may, in its sole discretion, reassign any of the Assigned Member
Clubs to another NFL Pro Line licensee at any time.
d. During each Fiscal Year of the Term, Licensee shall pay NFLP the
Broadcast Exposure Fee set forth in the Term Sheet attached to this
License in accordance with the payment due dates listed on such sheet.
NFLP shall use such payments in a manner determined by NFLP in its sole
discretion.
20. Players and Coaches
Licensee acknowledges that this License does not grant Licensee any
rights with respect to the name, likeness, signature, or other
attributes of any player, coach, or other employee of the NFL. Licensee
shall be responsible for securing whatever rights may be required for
the use of such names, likeness, signatures, or other attributes.
Licensee represents that it will not exercise the rights granted in
this License in any manner that will imply that Licensee has obtained
any such rights without separate written authorization from the
appropriate player, coach, or employee.
21. ▇▇▇ ▇▇▇▇▇
Licensee understands and acknowledges that this License does not grant
Licensee any rights with respect to film or videotape footage of NFL
game action and that Licensee must obtain such footage directly from
▇▇▇ ▇▇▇▇▇, Inc. ("▇▇▇ ▇▇▇▇▇") on terms and conditions to be mutually
agreed upon by Licensee and ▇▇▇ ▇▇▇▇▇. If Licensee desires to use such
footage in connection with this License, NFLP must approve the proposed
usage and subject matter of such footage in writing prior to its usage.
22. Information Transmission
If NFLP obtains the capacity to receive computer transmissions of any
or all information required from Licensee under this License during the
Term, Licensee shall begin to provide such information by such computer
transmission as soon as practicably possible.
23. Notices
The parties to this License shall send all notices and statements
required under this License to the respective addresses of the parties
set forth above unless notification of a change of address is given in
writing. Licensee shall direct all notices to NFLP to the Vice
President of the Retail Licensing Department with a copy to the General
Counsel of NFLP. All notices required under this License must be in
writing, must be sent by registered or certified mail, facsimile, or a
private overnight delivery service generally
R02468 February 27, 1996 Antigua Sportswear, Inc. 16
accepted in the industry that provides evidence of delivery, and shall
be deemed to have been given at the time they are sent.
24. Relationship of Parties
The parties to this License are not partners, joint venturers, or
agents and nothing in this License shall be construed to place them in
any such relationship. Neither party will have the power to obligate or
bind the other in any manner whatsoever. NFLP, the NFL, and its Member
Clubs in no way endorse, certify or guarantee the quality of the
Licensed Products.
25. Governing Law and Disputes
This License and any dispute arising under it shall be governed by and
construed in accordance with the laws of the State of New York without
regard to conflict of law principles. All disputes pertaining to this
License shall be decided by a state or federal court located in the
City of New York and Licensee consents to personal jurisdiction in such
courts.
26. Waiver
Neither party to this License can waive or modify any provision of this
License unless such waiver or modification is in a writing signed by
both parties. Licensee acknowledges that NFLP's prior forbearance of
any requirement of this License will not prevent NFLP from subsequently
requiring full and complete compliance with such requirement or from
exercising its rights under this License.
27. Confidentiality
The parties to this License acknowledge that the terms of this License
are confidential and each warrant that neither shall disclose such
terms to any third party other than the disclosing party's accountants,
agents or attorneys or as required by law, without the other party's
prior written consent.
28. Severability
If any paragraph or clause of this License is illegal or invalid or
void for any reason. the remaining paragraphs and clauses of the
License will remain in full force and effect.
29. Release
In consideration of the rights granted under this License, Licensee
releases NFLP, the NFL, its Member Clubs and each of their respective
affiliates, shareholders, officers, directors, agents and employees
from any claims, demands, losses, expenses or damages, whether known or
unknown, arising out of or in connection with or in any manner related
to the manufacture, distribution or sale of products bearing the
Licensed Marks.
30. Entire Agreement
This License constitutes the entire agreement and understanding between
the parties to this License with respect to the subject matter of this
License and cancels, terminates, and supersedes any prior or
contemporaneous agreement or understanding, whether oral or written, on
this subject between Licensee and the NFL, its affiliates or Member
Clubs, or NFLP. The headings in this License are for reference purposes
only and have no legal effect.
R02468 February 27. 1996 Antigua Sportswear, Inc. 17
31. Execution
Licensee will make an offer to enter into this License by having a duly
authorized officer or representative sign below and return the License
with a check payable to NFLP for the Advance Royalty Payment required
for Fiscal Year I. An acceptance of the offer will occur and a binding
agreement will exist only after an authorized officer or duly
authorized representative of NFLP signs this License and delivers a
fully-executed copy to Licensee. Licensee acknowledges that this
License will be deemed to have been executed in New York City.
Licensee: Antigua Sportswear, Inc.
By: DATE: 12-10-96
(Signature of officer, partner
or individual duly authorized to sign)
Title: CEO, Chairman
NATIONAL FOOTBALL LEAGUE PROPERTIES, INC.
By: ▇▇▇ ▇▇▇▇▇▇▇▇ DATE: 12/19/96
(Signature of officer, partner,
or individual duly authorized to sign)
Title: VP
R02468 February 27, 1996 Antigua Sportswear, Inc. 18
EXHIBIT I
DISTRIBUTION CHANNELS
The following definitions shall apply to this License:
1. Department Store: A retail store that operates several departments
carrying higher-priced brands of apparel and non-apparel. Examples
include, without limitation, Macy's, Dillards, Nordstrom, ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, ▇▇ Penney, Boscov's, Sears, May Co., Federated Group, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Bon Ton, Balks, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and Bloomingdales.
2. Direct Retailer: An organization that markets products directly to
consumers without using retail space through the mediums of television
or catalog.
3. Discount Store: A retail store that operates several departments
carrying lower-priced brands of apparel and nonapparel with limited
service. Examples include, without limitation, Wal-Mart, Kmart,
Bradlees, Roses, Hills, Caldor, Venture, Target, Shopko, and ▇▇▇▇.
4. Distributors: Defined as Third Party Distributors in Paragraph 9b of
the License.
5. Drug Store: A retail store that carries as its primary retail items
pharmaceuticals, health and beauty aids, and convenience items.
Examples include, without limitation, OSCO, Walgreen, and ▇▇▇▇▇▇.
6. Fan Shop: A retail store that carries as its primary retail item
licensed products of the NFL, National Basketball Association, National
Hockey League, Major League Baseball, and the National Collegiate
Athletic Association. Examples include, without limitation, Pro Image,
Team Spirit and Stadium Stuff.
7. Footwear Specialty Store: A retail store that carries as its primary
retail item athletic footwear and also carries, in limited quantities,
licensed apparel and headwear. Examples include, without limitation,
Foot Locker, FootAction, and Athletes Foot.
8. Grocery Store: A retail store that carries as its primary retail items
food and household products. Examples include, without limitation, A &
P, Shop Rite, Vons, Jewel, and Food Town.
9. Sporting Goods Store: A retail store that carries as its primary retail
items licensed apparel, athletic footwear and sporting goods equipment.
Examples include, without limitation, Champ's, Herman's, Koenig's, The
Sports Authority, Sportmart, Gart Brothers, and Modells.
R02468 February 27, 1996 Antigua Sportswear, Inc. 19