*Information has been omitted
pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange
Commission.
Exhibit 10.1
ENDORSEMENT
AGREEMENT
THIS AGREEMENT, made and entered
into as of this 18th day of October, 2005, is by and between
CUTTER & BUCK INC. of 701 North 34th Street,
Suite 400, Seattle, Washington 98103 (the
“Company”), and CLUB 59, INC. c/o IMG
Worldwide, Inc. of IMG Center, 1360 East 9th Street,
Suite 100, Cleveland, Ohio 44114-1782
(“Licensor”):
WITNESSETH
WHEREAS, Annika Sorenstam
(“Sorenstam”) is recognized as a highly skilled
professional golfer;
WHEREAS, Company and ESCH &
STAM, INC. entered into an Endorsement Agreement dated as of
July 15, 2003, which agreement will expire on
December 31, 2006 (the “2003 Agreement”);
and
WHEREAS, Company desires to continue
to obtain the exclusive rights to use the name, fame, image and
athletic renown of Sorenstam in connection with the advertisement
and promotion of certain of its products following the expiration
of the 2003 Agreement on December 31, 2006; and
WHEREAS, Sorenstam has licensed all
such rights to Licensor, along with the right to sublicense such
rights to third parties.
NOW, THEREFORE, the parties agree as
follows:
1. Definitions.
As used herein, the following terms shall be defined
as set forth below:
(a) “Contract
Period” shall mean that period of time commencing on
January 1, 2007 and concluding December 31, 2011, unless
terminated sooner as provided herein.
(b) “Contract
Territory” shall mean worldwide.
(c) “Contract
Year” shall mean the consecutive twelve (12)-month period
beginning on any January 1st during the Contract
Period.
(d) “Gross
Sales” shall mean total revenues, under generally accepted
accounting principles, from sales of the Licensed Products, but
does not include any revenue from sales, use or other transaction
taxes, duties, handling, graphics, embroidery or
shipping.
(e) “Net
Sales” shall mean Gross Sales less Product returns, trade
discounts, samples, allowances, value added services, markdowns,
customer chargebacks and liquidation sales (substantially
discounted and out of ordinary distribution channel) of Licensed
Products.
(f)
“Licensed Products” shall mean the “Tournament
Collection by Annika”, the “Annika Collection by
Cutter & Buck” line of Products, or other similarly
named Product lines using the Sorenstam Identification on the
Products’ affixed labels, hang-tags or logos.
(g)
“Products” shall mean women’s apparel, including
women’s shirts, pants, sweaters, jackets and
rainwear.
(h) “Sorenstam
Identification” means the right to use, subject to the
provisions hereof, Sorenstam’s name, fame, nickname,
initials, autograph, voice, video or film portrayals, facsimile
signature, photograph, likeness and image or facsimile image, and
any other means of endorsement by Sorenstam used in connection with
the advertisement and promotion of the Company and the Products
(including the Licensed Products).
2. Grant of
Rights. In consideration of the remuneration to be
paid to Licensor pursuant hereto, Licensor grants to Company and to
its authorized distributors and sublicensees the right and license
during
*Information has been omitted
pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange
Commission.
the Contract Period to use the
Sorenstam Identification solely in connection with the
advertisement, marketing and promotion of the Products within the
Contract Territory as set forth herein. Licensor agrees not to
grant the right to use the Sorenstam Identification to anyone other
than Company in connection with the advertisement and promotion of
Products. It is understood that Company, its authorized
distributors and sublicensees may not use the Sorenstam
Identification in connection with any items for sale or resale,
other than the Products as specified herein. The foregoing rights
to use the Sorenstam Identification is limited to television, radio
and print advertising, advertising published over the Internet
(provided such material is limited to advertising or Product
promotion only), public relations and marketing materials,
point-of-sale displays, free standing inserts, videos shown to
customers and consumers, catalogs for customers and consumers,
direct mail (including e-mail) and billboards. Company shall ensure
that all uses of Sorenstam Identification comply with applicable
law.
3. Prior
Approval. Company agrees that no use of the
Sorenstam Identification nor any item used in connection with the
Sorenstam Identification (including any Licensed Product) will be
made hereunder unless and until the same is approved by Licensor.
Licensor agrees that any material, advertising or otherwise,
submitted for approval as provided herein may be deemed by Company
to have been approved hereunder if the same is not disapproved in
writing within ten (10) business days after receipt thereof.
Licensor agrees that it will reasonably cooperate with Company and
that any material submitted hereunder will not be unreasonably
disapproved and, if it is disapproved, that Company will be advised
of the specific grounds therefor. If Company desires immediate
approval of advertising material hereunder, Company shall have the
right to directly contact Licensor’s authorized agent to
obtain such approval. Company agrees to protect indemnify and save
harmless Licensor, Sorenstam and their authorized agent, or any of
them, from and against my and all expenses, damages, claims, suits,
actions, judgments and costs whatsoever, arising out of, or in any
way connected with any advertising material furnished by, or an
behalf of Company, except with respect to any inaccurate
information furnished by them expressly for use in such
advertising.
4. Remuneration.
In consideration of the endorsement rights and granted
hereunder, Company shall pay to Licensor the annual fees (the
“Annual Fee”) in the Contract Years as
follows:
|
Contract Year
|
|
|
|
Annual Fee
|
|
|
2007
|
|
|
[*]
|
|
|
|
2008
|
|
|
[*]
|
|
|
|
2009
|
|
|
[*]
|
|
|
|
2010
|
|
|
[*]
|
|
|
|
2011
|
|
|
[*]
|
|
|
One-half of the Annual Fee will be
due on or before January 10 and July 10 of each Contract
Year.
2
*Information has been omitted
pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange
Commission.
5. Bonuses.
It is agreed that should Sorenstam achieve any of the
accomplishments set forth in the following schedule during the
Contract Period, then Company will provide Licensor the additional
remuneration set forth below for each such accomplishment due to
the increased value in the Sorenstam Identification.
|
Accomplishment
|
|
|
|
Bonus Amount
|
|
|
Major win (Dinah Shore, U.S. Open,
British Open, LPGA Championship)
|
|
|
[*]
|
|
|
|
LPGA Tour Win
|
|
|
[*]
|
|
|
|
PGA Tour Top 20
|
|
|
[*]
|
|
|
|
All Other Event Wins
|
|
|
[*]
|
|
|
Bonus payments under this
Section 5 will be due within forty-five (45) days following
the achievement of each of the accomplishments set forth above
pursuant to the terms set forth in Section 8 below.
6. Royalty on
Licensed Products.
(a) Calculation of
Royalty Fees . In addition to the payments provided
in Sections 4 and 5, Company will pay to Licensor in U.S. Dollars a
fee (“Royalty Fee”) of [*] of the Net Sales of Licensed
Products sold by Company directly or through its distributors or
sublicensees during the Contract Term.
(b) Payment of
Royalty Fee . Company will account for and pay the
Royalty Fee to Licensor within forty-five (45) days following
the end of each fiscal quarter during the Contract Period .
Amounts not paid when due will accrue interest from the date due
until paid at the rate of one and one-half percent (1.5%) per month
or the maximum interest permitted by applicable laws, whichever is
less.
(c) Royalty
Report . Company will deliver to Licensor, at the
time each Royalty Fee payment is due, an itemized statement
(“Royalty Report”) (i) indicating the total amount
of Net Sales of all Licensed Products shipped during the previous
fiscal quarter, and (ii) showing the number of Licensed
Products sold by category of Product. Company will furnish the
required Royalty Report to Licensor whether or not any Licensed
Products have been sold during the relevant fiscal quarter. The
receipt or acceptance by Licensor of any Royalty Report or of any
payments made under this Agreement will not preclude Licensor from
questioning the correctness thereof at any time. Licensor reserves
the right to audit the calculation of Net Sales provided in the
Royalty Report, and Company will cooperate with the Licensor in any
such audit request.
(d) Currency
. Whenever it becomes necessary under this
Section 6 to convert a monetary amount from a foreign currency
to U.S. Dollars (whether for reporting, statements, or other
purposes), such conversion will be made at the average of the
currency exchange rates during the applicable reporting period, as
derived using the “FX History” Currency Tool, Interbank
Rate, currently posted at www.oanda.com (“Conversion
Tool”). A conversion for the purpose of calculating a royalty
payment pursuant to this Section 6 will be weighted according
to the relative amount of net sales within each fiscal quarter. If
the Conversion Tool is discontinued or otherwise no longer
available, the parties will use such other index or computation
that replaces the Conversion Tool or otherwise will result in
substantially the same conversion rate as would be obtained by
using the Conversion Tool.
(e) Marketing
Commitment . Company agrees that it will continue
in good faith to produce and market Licensed Products in the same
manner that it is currently producing and marketing such items as
of
3
*Information has been omitted
pursuant to a request for confidential treatment and has been filed
separately with the Securities and Exchange
Commission.
September 1, 2005 unless
Company and Sorenstam believe it is not commercially reasonable to
continue to produce and market the Licenced Products.
7.
Services of Licensor. (a) If Company
desires to utilize the services of Sorenstam as a model in
connection with Company advertising to promote its Products or as a
part of a special promotional appearance for the Company, Licensor
agrees, at the request of Company to provide the services of
Sorenstam for two (2) days per Contract Year as mutually
agreed upon and at places reasonably convenient to her schedule.
Each day shall not exceed five (5) hours unless otherwise
agreed upon, Company agrees that it will reim