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EXHIBIT 10.35
EXCLUSIVE INDEPENDENT CONTRACTOR
REPRESENTATION AGREEMENT
THIS
AGREEMENT, made as of the 1ST day of January, 2003, between
Deckers
Outdoor Corporation a corporation organized
and existing under the laws of the
state of California, with offices at 495-A
S. Fairview Ave., Goleta, CA 93117
(hereinafter referred to as "LICENSOR") and
BHPC Marketing, Inc., a corporation
organized and existing under the laws of
the state of California, with offices
at 27129 Calle Arroyo, Suite 1821, San Juan
Capistrano, California, 92675,
United States of America (hereinafter
referred to as "CONTRACTOR").
WITNESSETH:
WHEREAS,
LICENSOR is the owner with the right to grant licenses of the
TEVA logo (the "Trademark");
WHEREAS,
LICENSOR desires to grant licenses for the use of the
Trademark;
WHEREAS,
LICENSOR wishes to appoint CONTRACTOR as its exclusive agent in
order to effectuate the licensing of the
Trademark worldwide (the "Territory");
WHEREAS,
CONTRACTOR has had extensive experience in merchandising a
variety of products and wishes to assist in
the development and exploitation of
the Trademark in association with high
quality reputable products.
NOW,
THEREFORE, in consideration of the premises and the mutual
promises
hereinafter set forth, the parties agree as
follows:
1. RIGHT TO REPRESENT
A.
LICENSOR
hereby grants to CONTRACTOR, for the term of this
Agreement, the exclusive right to represent LICENSOR in the
Territory in the securing and implementation of a plan to
utilize
third party licensees (the "Licensee(s)") to design,
manufacture,
import, distribute, advertise, promote, ship and sell various
products in the Territory which bear or otherwise incorporate
the
Trademark (the "Licensed Product(s)") for Products not produced
by
the LICENSOR.
B.
Nothing
contained in this Agreement shall be construed as an
assignment or grant to CONTRACTOR of any right, title or interest
in
or to the Trademark, it being understood that all rights relating
to
the Trademark are expressly reserved by LICENSOR.
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2. TERM
A.
This
Agreement shall commence upon the date hereof and shall
terminate and expire on December 31, 2004, unless terminated
sooner
pursuant to the provisions of this Agreement.
B.
If no
renewal term is entered into, in writing, by said expiration
date, then this Agreement will be considered terminated.
3. DUTIES OF
CONTRACTOR
A.
CONTRACTOR
shall use its best efforts during the 1st Contract Year
of January 1, 2003 through December 31, 2003 to find and submit
to
LICENSOR for its approval six (6) qualified potential Licensees
with
signed "Deal
Memos" in the following categories: men's wear, women's
wear, hosiery, eyewear, watches and luggage/soft bags. If
CONTRACTOR
does not produce six (6) qualified Licensees as described
above,
then CONTRACTOR agrees to represent LICENSOR on a non-exclusive
basis.
B.
Subject to
the conditions herein specified, the CONTRACTOR shall use
its best efforts during the term of this Agreement to find and
conclude business arrangements with the Licensees which are
deemed
advantageous by LICENSOR. CONTRACTOR shall exercise the rights
granted hereunder as an independent contractor and shall maintain
an
office and active organization at its sole expense to carry out
CONTRACTOR's duties and obligations hereunder.
C.
CONTRACTOR
shall submit each proposed Licensee to LICENSOR for
LICENSOR's prior express written approval. CONTRACTOR shall
also
submit to LICENSOR such information regarding the financial
condition of the proposed Licensee as shall be reasonably
requested
by LICENSOR, including, but not limited to, annual reports of
the
proposed Licensee, as well as catalogs or products manufactured
and
sold by the proposed Licensee. LICENSOR may withhold its approval
of
any proposed Licensee, or License Agreement, or any other
arrangement in its absolute and sole discretion, for any reason.
If
LICENSOR shall approve of a proposed Licensee and License
Agreement,
the form of such License Agreement shall be subject to any
changes
LICENSOR may require. LICENSOR shall be a party to all such
License
Agreements. Each such License Agreement shall require a signature
on
behalf of LICENSOR. No License Agreement shall be binding upon
LICENSOR, or be of any legal effect whatsoever, until it has
been
executed on behalf
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of LICENSOR by a duly elected and authorized officer of
LICENSOR.
With respect thereto, CONTRACTOR shall advise each proposed
Licensee
that it may not commence the use of the Trademark until the
proposed
Licensee has received a fully executed copy of the License
Agreement
between LICENSOR and the proposed Licensee.
D.
It is
understood and agreed by LICENSOR that CONTRACTOR may render
other and similar services on behalf of other clients or with
respect to its own trademarks and nothing contained in this
Agreement shall preclude CONTRACTOR from rendering such
services.
E.
In
furtherance of CONTRACTOR's duties and obligations as herein
specified, CONTRACTOR agrees to and will:
i. Seek
out potential Licensees for the Trademark qualified in
terms of financing, manufacturing, and marketing quality
Licensed Products in the product and geographic areas for
which a license will be granted. This includes an in-depth
review of the proposed Licensee's position in the industry
involved.
ii. Negotiate on
behalf of LICENSOR the business terms and
conditions of a License Agreement ("License Agreement") which
is subject to the LICENSOR'S approval in its sole and absolute
discretion.
iii. Monitor and
oversee the licensing program with the Licensees
to insure that the Licensee's royalties, minimums, sales
reports and other required documentation are being promptly
submitted.
iv. Review each
of the Licensee's Licensed Products,
advertisements and promotional materials relating to the
Licensed Products to insure that the quality control
provisions and Trademark usage provisions of the respective
License Agreement are being observed; and to insure that the
Licensee's promotional, advertising and sales programs are
being carried out in compliance with the respective License
Agreement.
v. If
necessary, with the express prior written authorization of
LICENSOR, conduct a personal visit to the Licensee's
manufacturing facilities to insure that the provisions of the
License Agreement are being observed; and to submit to
LICENSOR a written report after each of said visits.
vi. Conduct a
comprehensive review of the product categories and
markets to determine the appropriate mix of Licensed Products
and a targeted approach for market entry.
vii. Develop proposed
standard license agreement forms and other
forms for the efficient administration of the licensing
program.
F.
CONTRACTOR
shall not use the Trademark, in any manner, directly or
indirectly, or
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in whole or in part, except to the manner and to the extent
consistent and necessary to complete the goals and objectives
of
this Agreement. For any other use, CONTRACTOR shall obtain
LICENSOR's specific consent in writing. Upon termination of
this
Agreement, CONTRACTOR shall discontinue all use of the Trademark
and
shall return to LICENSOR all facsimiles of any products
manufactured
or distributed under any such Trademark.
G.
CONTRACTOR
shall provide LICENSOR with a monthly report listing
existing and potential license agreements, and all contacts and
discussions relating to potential new license agreements.
4. COMPENSATION TO
CONTRACTOR
A.
In full
consideration of services rendered to this Agreement,
CONTRACTOR shall be entitled to a commission equal to
twenty-five
percent (25%) of royalties received by LICENSOR pursuant to the
License Agreements negotiated on behalf of LICENSOR by
CONTRACTOR.
LICENSOR shall not be liable to CONTRACTOR for any commission
or
other compensation on royalties earned by LICENSOR but not
received
from licensee, or any future royalties under a license agree
