Stock Purchase and Trademark Agreement - Cre-8-Net Ventures LLC, Footwear Acquisition Inc. and ITOCHU Corp.
STOCK PURCHASE AND TRADEMARK AGREEMENT
This Agreement (the "AGREEMENT") is entered into as of February 24, 2001
by and between Cre-8-Net Ventures L.L.C., a Delaware limited liability company
("CRE-8-NET"), Footwear Acquisition, Inc., a Delaware corporation ("NEWCO"),
and Itochu Corporation, a Japanese corporation ("ITOCHU").
RECITALS
WHEREAS, Converse, Inc. ("CONVERSE") is currently a debtor and debtor in
possession in bankruptcy under the United States Bankruptcy Code ("BANKRUPTCY")
and is seeking to sell its assets by auction in Bankruptcy pursuant to an order
issued by the United States Bankruptcy Court for the District of Delaware (the
"BANKRUPTCY COURT") on February 5, 2001.
WHEREAS, the parties hereto wish to form, with certain other parties, a
new corporation, Footwear Acquisition, Inc., for the purposes of Newco's
purchasing, directly or through a wholly-owned subsidiary, out of Bankruptcy
(the "CONVERSE PURCHASE") the Converse Assets (as defined below), including all
of Converse's footwear trademarks in Japan.
WHEREAS, in conjunction with the Converse Purchase, and in exchange for
the consideration described herein, Newco intends on the terms set forth in this
Agreement, among other things, to transfer to Itochu all right, title and
interest in and to Converse's Japanese Footwear Trademarks (as defined below),
to issue to Itochu shares of Newco's capital stock, to grant Itochu exclusive
distribution rights in Japan (subject to the limitations contained herein), and
to grant Itochu certain rights of first negotiation and first refusal with
respect to designated Asian distribution rights.
WHEREAS, in conjunction with the transactions contemplated hereby,
Cre-8-Net, Newco and Itochu are entering into the Cooperative Marketing
Agreement in the form attached hereto as Exhibit A (the "COOPERATIVE MARKETING
AGREEMENT").
NOW, THEREFORE, in consideration of the foregoing, the expenses incurred
and expected to be incurred by Newco in connection with the Converse Purchase
and the mutual promises set forth below, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement:
"Agreement" has the meaning set forth in the Preamble to this Agreement.
"Bank" has the meaning set forth in Section 2.5.
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"Bankruptcy" has the meaning set forth in the Recitals to the Agreement.
"Bankruptcy Court" has the meaning set forth in the Recitals to the
Agreement.
"Closing Date" has the meaning set forth in Section 2.6.
"Converse" has the meaning set forth in the Recitals to this Agreement.
"Converse Assets" shall mean Converse's trademarks, including all of
Converse's footwear trademarks in Japan, and related licenses, patents, trade
secrets, designs, footwear lasts, logos, license, distribution, manufacturing
and other legal agreements, data processing hardware and software, certain
employee contracts, certain leases, order backlog, customer lists and order
history, marketing materials, vendor lists with production and pricing data past
and pending, and detailed inventory data and other assets, including, without
limitation, inventory and equipment; provided, however, "Converse Assets" shall
not include any Converse assets which Newco and Cre-8-Net shall reasonably
determine not to acquire so long as (i) such exclusion shall not prevent or
impair Newco's ability to transfer the Japanese Footwear Trademarks to Itochu as
contemplated by this Agreement or the grant of the rights set forth in Section 5
and (ii) Newco shall have acquired substantially all material Converse
trademarks, related licenses and other intellectual property rights related to
Converse's current footwear and apparel businesses.
"Converse Purchase" has the meaning set forth in the Recitals to this
Agreement.
"Cooperative Marketing Agreement" has the meaning set forth in the
Recitals to this Agreement.
"Cre-8-Net" has the meaning set forth in the Preamble to this Agreement.
"Election Notice" has the meaning set forth in Section 8.1.
"Financial Statements" has the meaning set forth in Section 4.2.
"Investor Rights Agreement" has the meaning set forth in Section 4.2(b).
"Itochu" has the meaning set forth in the Preamble to this Agreement.
"Japanese Footwear Trademarks" has the meaning set forth in Section 3.1.
"License Notice" has the meaning set forth in Section 5.2.
"Liens" shall mean any limitations, restrictions or encumbrances of any
nature, including royalty obligations (to the extent consistent with Japanese
laws) other than restrictions on use rights arising from licensing arrangements
as licensor; provided, however, Liens shall not include any limitation,
restrictions or encumbrances agreed to by Itochu.
"Newco" has the meaning set forth in the Preamble to this Agreement.
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"Newco Change of Control" means (i) the acquisition of Newco by another
entity by means of any reorganization, merger or consolidation involving Newco;
or (ii) a sale of all or substantially all of the assets of Newco (including the
stock of any wholly owned subsidiary holding or acquiring the Converse Assets);
unless in each case, Newco's stockholders of record as constituted immediately
prior to such acquisition or sale will, immediately after such acquisition or
sale (by virtue of securities issued as consideration for Newco's acquisition or
sale or otherwise), hold more than fifty percent (50%) of the voting power of
the surviving or acquiring entity.
"Offered Shares" has the meaning set forth in Section 8.1.
"Offered Price" has the meaning set forth in Section 8.1.
"Other Trademarks" has the meaning set forth in Section 8.2.
"Proposed Transferee" has the meaning set forth in Section 8.1.
"Price" has the meaning set forth in Section 8.1.
"Purchase Price" has the meaning set forth in Section 2.4.
"Purchase Offer" has the meaning set forth in Section 8.1.
"Renewing License" has the meaning set forth in Section 5.1.
"Restricted Investors" means any of the following entities: Mitsubishi
Corporation, Mitsui & Co, Ltd., Sumitomo Corporation, Marubeni Corporation,
Nissho Iwai Corporation, Tomen Corporation, Kanematsu Corporation or Nichimen
Corporation or any corporate affiliate thereof.
"Qualified IPO" shall mean a firm commitment underwritten public offering
by Newco of shares of its common stock pursuant to a registration statement
under the Securities Act which offering shall have gross proceeds (prior to
underwriters' discounts and commissions) to Newco of at least $20,000,000.
"Securities Act" means the United States Securities Act of 1933 and the
rules and regulations promulgated thereunder.
"Shares" has the meaning set forth in Section 4.1.
"Stock Disposition Notice" has the meaning set forth in Section 8.1.
"Stock Right of First Refusal" has the meaning set forth in Section 8.1.
"Trademark Transfer Notice" has the meaning set forth in Section 8.2.
"Transfer" means any sale, transfer, pledge, exclusive license or other
encumbrance.
"Transfer Documents" has the meaning set forth in Section 3.1.
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2. CONSIDERATION; ESCROW ARRANGEMENTS
2.1 Converse Purchase. Cre-8-Net shall, and shall cause Newco to, in good
faith take commercially reasonable actions necessary or appropriate, if granted
the opportunity to by the Bankruptcy Court, to prepare, submit on a timely basis
and negotiate an offer to seek to effect the Converse Purchase and acquire the
Converse Assets so that, on and after the Closing Date, Newco may transfer the
Japanese Footwear Trademarks to Itochu and effect the other transactions with
Itochu as contemplated herein. Without limiting the generality of the foregoing,
Cre-8-Net shall, and shall cause Newco to, in good faith use commercially
reasonable efforts to procure capital investment and other financing from third
parties (on commercially reasonable terms) and in amounts, in addition to the
capital investment and financing provided by Itochu, as may be required to
effect the Converse Purchase on commercially reasonable terms. For avoidance of
doubt, subject to Section 2.7, neither Newco nor Cre-8-Net shall have any
liability to Itochu if in good faith they determine after using commercially
reasonable efforts not to proceed with the Converse Purchase.
2.2 Information; Approval Rights. Cre-8-Net shall keep Itochu reasonably
advised, and shall cause Newco to keep Itochu reasonably advised, from time to
time and as may be reasonably requested by Itochu, of the terms and conditions
of any offer by Newco or Cre-8-Net that may be made in relation to the Converse
Purchase and the status of any discussions or negotiations in relation thereto.
Without limiting the foregoing, Newco's bid submitted to the Bankruptcy Court
shall provide for, and require as a condition to closing, (i) Newco's
acquisition of substantially all the Converse Assets including the Japanese
Footwear Trademarks and (ii) the rights necessary for Newco to perform its
obligations under Section 5 of this Agreement. The foregoing provisions of
Newco's bid shall not be amended without Itochu's prior written consent.
2.3 Confidentiality; Public Disclosure. The terms and conditions of this
Agreement and any non-public information exchanged among Cre-8-Net, Newco and
Itochu hereunder constitute confidential information and shall not be disclosed
to any third party except as provided below. No party hereto may make any public
disclosure concerning this Agreement or the terms or conditions hereof without
the prior written approval of each of the other parties hereto, except to the
extent that such public disclosure is required by applicable laws. In such case,
the party that is required to make such public disclosure shall provide a copy
of its proposed public disclosure to the other parties in advance and shall
limit the scope of the public disclosure to include only such information as is
required, in the reasonable discretion of the party making the public
disclosure, to comply with its obligations under applicable laws. If Cre-8-Net
or Newco determine that any of the terms and conditions of this Agreement and
any non-public information exchanged among Cre-8-Net, Newco and Itochu hereunder
must be disclosed in relation to Newco's offer for the Converse Assets,
Cre-8-Net and Newco shall consult with Itochu in advance of such disclosure and
shall subject to applicable law limit such disclosure as may be reasonably
requested by Itochu. The foregoing shall not prohibit disclosure of the terms
and conditions of this Agreement to bona fide prospective Newco investors,
employees, investment bankers, lenders, accountants and attorneys where such
persons and entities are under appropriate contractual or professional
non-disclosure obligations.
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2.4 Itochu Cash Payment. In consideration of the transfer of rights to the
Japanese Footwear Trademarks to Itochu set forth in Section 3.1, the Newco share
issuance in Section 4, the rights of first negotiation and first refusal granted
to Itochu set forth in Section 5 below, and the other rights granted to it
hereunder, Itochu agrees to pay to Newco Yen 3,700,000,000 (the "PURCHASE
Price"), which shall be allocated Yen 200,000,000 to the Shares and Yen
3,500,000,000 to the Japanese Footwear Trademarks and other rights granted under
this Agreement.
2.5 Escrow/Other Arrangements. Itochu shall not later than March 4, 2001,
deposit an amount equal to the Purchase Price into an escrow account or shall
otherwise provide alternative credit arrangements or facilities that Newco may
draw upon, as may be reasonably acceptable to Newco and Itochu. Any escrow
account established pursuant to this Section 2.5 shall be in the name of a
mutually agreed third party escrow agent, shall be opened with a branch or
office of a United States bank agreed upon by Cre-8-Net and Itochu (the "BANK")
pursuant to Bank's customary escrow agreement, and all funds placed therein
shall be invested in money market funds or investment grade rated interest
bearing instruments.
2.6 Release of Funds; Closing. Cre-8-Net shall not, and shall cause Newco
not to, draw upon, use or otherwise commit such escrow account or alternative
credit arrangements or facilities unless and until all the conditions precedent
under Sections 7.1 and 7.3 have been satisfied in full or waived by Itochu.
Subject to the foregoing, the consummation of the transactions contemplated
under this Agreement shall take place concurrently with the closing of the
Converse Purchase (the "CLOSING DATE").
2.7 Return of Funds. Notwithstanding the foregoing, if Newco withdraws its
offer to effect the Converse Purchase or is otherwise unsuccessful in its
efforts to complete the Converse Purchase, Newco shall, and Cre-8-Net shall
cause Newco to, release and return immediately to Itochu the Purchase Price and
any alternative credit arrangements or facilities provided by Itochu as directed
by Itochu in writing, in the original currency provided by Itochu together with
interest then accrued thereon (converted if applicable into the original
currency) less a pro rata portion of the related escrow fees and expenses. In
any event, if for any reason the Converse Purchase has not been completed by May
15, 2001, unless Itochu otherwise agrees in writing, Newco shall, and Cre-8-Net
shall cause Newco to, release and return immediately to Itochu the Purchase
Price the escrow account and any alternative credit arrangements or facilities
provided by Itochu as directed by Itochu in writing, in the original currency
provided by Itochu together with interest then accrued thereon (converted if
applicable into the original currency) less a pro rata portion of the related
escrow fees and expenses.
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3. JAPANESE TRADEMARK AND DISTRIBUTION RIGHTS
3.1 Transfer of Japanese Footwear Trademarks; Other Transfer and
Confirmation. On the Closing Date, Newco shall transfer the Japanese Footwear
Trademarks and transfer and confirm the other rights granted herein and shall
execute and deliver to Itochu Japanese applications for trademark transfer forms
as may be properly prepared and requested by Itochu covering the Japanese
Footwear Trademarks and any other documents reasonably requested and identified
by Itochu to effect the transfer of the Japanese Footwear Trademarks to Itochu
(collectively, the "TRANSFER DOCUMENTS"). As used herein, the "JAPANESE FOOTWEAR
TRADEMARKS" means all of Converse's rights to trademarks in Japan, including
without limitation footwear trademarks, and all of Converse's licensed rights,
copyrights, design rights and other intellectual property rights related thereto
in Japan, including without limitation all contractual or other rights as
licensor in relation to footwear in Japan, which are currently owned by
Converse, excluding any rights in portions of the applicable trademarks or other
intellectual property rights that may be co-owned by any third party, and
subject to any exclusions approved by Itochu. Itochu acknowledges that
notwithstanding execution and delivery of the Transfer Documents on the Closing
Date, the completion and recordation of such transfer with the Japanese
trademark registration authority will occur after the Closing Date. Newco shall
transfer, through delivery of the Transfer Documents, the Japanese Footwear
Trademarks to Itochu free and clear of any Liens that may exist on the Closing
Date; provided, however, that (i) the transfer of contractual or other rights as
licensor shall be subject to obtaining any consents to such transfer as may be
required under the applicable agreement and (ii) the transfer of Converse's
rights to any co-owned trademark shall be subject to obtaining any consents to
such transfer as may be required from the co-owner. Itochu shall, at its own
expense and with the cooperation of Newco apply for the assignment of the
Japanese registrations for the Japanese Footwear Trademarks, and Itochu shall
otherwise bear all expenses in connection with completion and recordation of the
transfer thereof. Upon execution of the Transfer Documents, Itochu shall be free
to make all footwear related trademark applications with respect to the Japanese
Footwear Trademarks in Japan, and Newco shall cooperate with Itochu in expanding
the categories of registration of the Japanese Footwear Trademarks in Japan to
include other appropriate categories of registration.
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3.2 Transfer of Right, Title and Interest. Concurrently with the execution
of the Transfer Documents, Newco shall execute such other documents as Itochu
may properly prepare and reasonably request to effect the unconditional transfer
of any and all Japanese Footwear Trademarks, free and clear of all Liens that
may exist on the Closing Date, and to waive any other, right, title and interest
of Newco in and to the Japanese Footwear Trademarks; provided, however, that (i)
the transfer of contractual or other rights as licensor shall be subject to
obtaining any consents to such transfer as may be required under the applicable
agreement and (ii) the transfer of Converse's rights to any co-owned trademark
shall be subject to obtaining any consents to such transfer as may be required
from the co-owner. Newco shall endeavor to obtain from Converse in the transfer
by the Bankruptcy Court a license by Converse of all rights, titles and
interests of Converse that it may have in the Japanese Footwear Trademarks for
the benefit of Newco and its successors and assigns.
3.3 Distribution Rights. On the Closing Date, Newco shall execute and
deliver to Itochu such documents as may be properly prepared and reasonably
requested by Itochu to effect the grant to Itochu of the exclusive rights to
distribute Converse brand products in Japan, which grant shall be subject to any
pre-existing rights of third parties. Newco shall not take any action to extend
or renew any pre-existing rights of third parties as such rights expire or
terminate and shall exercise such rights as it may have to prevent any automatic
renewal of such pre-existing rights. The parties agree that sales hereunder
(including Section 3.1) shall be restricted to distribution in Japan only and
Itochu shall not knowingly sell to customers in Japan for purposes of export.
The foregoing does not restrict any rights specifically acquired pursuant to
Section 5.
3.4 Power of Attorney; No Adverse Action; Further Documents. Effective as
of the Closing Date, Newco grants to Itochu an irrevocable power of attorney,
with full power of substitution, with respect to the Japanese Footwear
Trademarks. Upon the Closing Date, Newco agrees to execute in favor of Itochu or
its designee a specific irrevocable power of attorney, with full power of
substitution, to record the assignment of the Japanese Footwear Trademarks from
Converse to Newco and from Newco to Itochu. Newco agrees that it shall not, nor
shall it take any action that could, Transfer any interest in the Japanese
Footwear Trademarks (including the creation of any Lien) to any party other than
Itochu on or after the Closing Date. Effective as of the Closing Date, Newco
agrees that it will grant to Itochu an exclusive, irrevocable, royalty-free
license to use the Japanese Footwear Trademarks during the period before Itochu
becomes record owner, and while Newco is the record owner, of the Japanese
Footwear Trademarks. Newco shall execute and deliver to Itochu such documents as
Itochu may properly prepare and reasonably request to effect the foregoing.
4. NEWCO SHARE ISSUANCE TO ITOCHU; ITOCHU SHAREHOLDER RIGHTS
4.1 Share Issuance. On the Closing Date, Newco shall issue to Itochu
shares of its common stock representing 5% of the then outstanding shares of
Newco capital stock (the "SHARES"). The Shares shall not be registered under the
Securities Act in reliance on the investment representations made by Itochu in
Section 6.2(c).
4.2 Additional Rights. For so long as (i) Itochu owns directly or
indirectly at least 25% of the Shares issued under this Agreement and (ii) a
Newco Change of Control or Qualified IPO has not occurred, Itochu shall be
entitled to the following rights:
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(a) Information Rights. Within 45 days after the end of each of
Newco's fiscal quarters (other than the fourth quarter), Newco shall provide
Itochu with financial statements prepared by Newco which contain an income
statement, balance sheet and statement of stockholders' equity (the "FINANCIAL
STATEMENTS"). Within 90 days after the end of each of Newco's fiscal years,
Newco shall deliver to Itochu an audited statement of cash flows for the fiscal
year and audited Financial Statements, prepared in accordance with U.S.
generally accepted accounting principles and prepared by an independent public
accounting firm of US national recognition. Newco shall also promptly provide to
Itochu any written information provided to Newco's board of directors and any
other information that Itochu shall reasonably request, as determined by Newco's
board of directors, provided, however, Newco shall not be obligated pursuant to
this Section 4.2(a) to provide access to any information which it reasonably
considers to be a trade secret or similar confidential information (including,
without limitation, information Newco considers to be subject to attorney/client
privilege).
Venture Capital Financing Rights. To the extent Newco or its stockholders
provide Perseus Capital (or any other entity providing equity financing to
consummate the Converse Purchase) information rights, registration rights,
pre-emptive rights, co-sale rights, and/or rights of first refusal with respect
to their Newco holdings, Itochu shall be provided such rights under the related
investor rights agreement(s) (the "INVESTOR RIGHTS AGREEMENT") except that good
faith, appropriate and customary venture capital distinctions and exceptions may
be made based on Itochu's status as a common stockholder and size of holdings.
With respect to the Shares, Newco hereby grants Itochu the right to participate
in any registered public offering by Newco (other than its Qualified Initial
Public Offering) on customary terms and conditions. If the foregoing is not
included in the Investor Rights Agreement, Newco and Itochu shall execute a
separate registration rights agreement for the benefit of Itochu. Newco's
obligation to deliver the Financial Statements and other information pursuant to
Section 4.2(a) shall terminate if and only to the extent Itochu is otherwise
entitled to the same information as contemplated by Section 4.2(a).
4.3 Lock-Up Agreement. If Newco proposes to conduct a Qualified IPO, upon
request of Newco's underwriters, Itochu agrees to execute for the benefit of the
underwriters, a lock-up agreement which prohibits the sale, transfer, offer to
sell, short sale, pledge, encumbrance or other disposition of the Shares for a
period not to exceed 180 days after the date of such public offering.
4.4 New Investors. After the date of this Agreement, to the extent that
Newco desires to issue shares of its capital stock to any new investor that is a
Restricted Investor, Cre-8-Net and Newco shall consult with Itochu regarding the
proposed terms and conditions of the issuance of Newco capital stock. Itochu
shall have the right to approve any such new investor.
4.5 Investor Rights Agreement. Once Itochu's rights and obligations under
Sections 4.2, 4.3 and 4.4 are incorporated into the Investor Rights Agreement,
that agreement shall govern and these provisions shall be terminated.
5. ITOCHU DISTRIBUTION NEGOTIATION AND MANUFACTURING RIGHTS
The provisions of this Section 5 shall be effective on and after the
Closing Date.
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5.1 Right of First Negotiation. When the current existing licenses for
sales of Converse apparel and footwear brands expire or terminate in The
People's Republic of China, Taiwan and Korea, Newco agrees to negotiate
exclusively with Itochu for a period of ninety (90) days for each country so
that Itochu shall have the right to distribute Converse apparel and footwear
brands in those countries on terms mutually agreeable to the parties. Newco's
foregoing obligation shall be deemed to have been satisfied if Newco shall,
prior to any such license expiration or termination, have notified Itochu of the
upcoming expiration or termination and negotiated exclusively with Itochu for a
period of ninety (90) days. If any such licenses contain provisions that allow
the licenses to renew automatically (a "RENEWING LICENSE") unless either party
thereto gives notice of termination or non-renewal to the other within a certain
time period, Newco shall be obligated to give Itochu written notice and an
opportunity to negotiate exclusively at least ninety (90) days prior to the last
day on which Newco must give such notice of termination or non-renewal.
5.2 Right of First Refusal. Following the expiration of the current
existing licenses for, and prior to entering into any new license for, sales of
any Converse apparel and footwear brands in The People's Republic of China,
Taiwan and Korea, Newco shall give written notice (the "LICENSE NOTICE") to
Itochu setting forth in reasonable details the bona fide material terms and all
other relevant material conditions of such proposed license. The foregoing
provisions of this Section 5.2 shall not apply to a Renewing License.
(a) Exercise of Right of First Refusal. Itochu shall have the right
and option (but not the obligation) to enter into the licensing arrangement
described in the License Notice. If Itochu does not wish to pursue the license
proposed in the License Notice, Itochu shall give written notice to Newco as
promptly as practicable. Unless Itochu gives written notice declining the
license proposed in the License Notice, Itochu shall have ninety (90) days
following receipt of the License Notice to consummate a license with Newco on
mutually agreed terms.
(b) Right to License. If Itochu and Newco do not agree to terms on
the license under this Section 5.2, Newco shall have the right to consummate the
licensing arrangement described in the License Notice; provided, that, the
ultimate terms of the license are not materially more favorable to the licensee
than those described in the License Notice and provided further that such
license is consummated within ninety (90) days after, as applicable, Itochu's
written notice declining the license proposed in the License Notice or the one
hundredth eighty-first (181st) day after Itochu's receipt of the License Notice.
If Newco is unable to consummate such license in accordance with the terms of
this Section 5.2(b), Itochu's right of first refusal shall again apply.
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5.3 Manufacturing of Brand. Newco agrees that Itochu may source and
manufacture Converse brand footwear anywhere in Asia so long as these
non-Japanese made products are sold only in Japan (or in any other countries for
which Itochu acquires distribution rights pursuant to Sections 5.1 or 5.2).
Newco shall ensure that, following the Closing Date, Itochu retains its current
manufacturing rights with respect to Converse brand non-footwear products
offered for sale in Japan, on the same terms and conditions as Itochu presently
maintains pursuant to its Agreement for Assignment and Sale of Trademarks dated
November 25, 1999 with Converse.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations of Cre-8-Net and Newco. Each of Cre-8-Net and Newco
represent and warrant, as of the date hereof and the Closing Date, as follows:
(a) Organization. Cre-8-Net is a limited liability company and
validly existing under the laws of the State of Delaware. Newco is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware. Each of Cre-8-Net and Newco has all requisite power and
authority to own, lease and operate its respective properties and to carry on
its respective business as it is now conducted and proposed to be conducted; and
each of Cre-8-Net and Newco has all requisite corporate, legal and other power
and authority to enter into and perform the terms and conditions of this
Agreement.
(b) Capitalization. All of the issued and outstanding shares of
capital stock of Newco have been duly authorized and validly issued and are
fully paid and nonassessable and have been offered, issued and sold by Newco in
compliance with all applicable U.S. federal and state securities laws. Schedule
6.1(b), to be attached hereto prior to the Converse Purchase, sets forth as of
the Converse Purchase closing the authorized capital stock of Newco, the number
of shares thereof issued and outstanding, and a list of the stockholders of
Newco indicating the shares of Newco held by each of them.
(c) Authorization and Compliance. The issuance, sale and delivery of
the Shares in accordance with this Agreement by Newco, the execution, delivery
and performance by Newco and Cre-8-Net of this Agreement and the execution,
delivery and performance by Newco of the Cooperative Marketing Agreement have
been or will be duly authorized by all necessary corporate action on the part of
Cre-8-Net and Newco, as applicable, and the Shares, when so issued, sold and
delivered against payment therefor in accordance with this Agreement, will be
duly and validly issued, fully paid and nonassessable. The execution, delivery
and performance of this Agreement by Cre-8-Net and Newco and the execution,
delivery and performance by Newco of the Cooperative Marketing Agreement and the
offer, sale and delivery of the Shares do not and will not conflict with,
violate or result in any default under or breach of any of the provisions of, as
applicable, (i) any law of the United States of America or its political
subdivisions, (ii) the constitutive documents of Cre-8-Net or Newco, (iii) any
decree, judgment or order, applicable to Cre-8-Net or Newco or (iv) any contract
or agreement by which Cre-8-Net or Newco is bound.
(d) Enforceability. This Agreement constitutes the legal, valid and
binding obligation of Cre-8-Net and Newco, enforceable in accordance with its
terms, subject, as to
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enforcement of remedies, to applicable bankruptcy, insolvency, moratorium,
reorganization and similar laws affecting creditors' rights generally and to
general equitable principles.
(e) Status of Newco. Newco is a newly formed for the express purpose
of acquiring the Converse Assets and has no assets or liabilities except those
solely related to or incurred in connection with the Converse Purchase.
6.2 Representations of Itochu.
Itochu hereby represents and warrants to Cre-8-Net and Newco, as of the
date hereof and the Closing Date, as follows:
(a) Organization. Itochu is a corporation duly organized and validly
existing under the laws of Japan and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as it is now
conducted and proposed to be conducted; and Itochu has all requisite corporate,
legal and other power and authority to enter into and perform the terms and
conditions of this Agreement.
(b) Authorization and Compliance. The execution, delivery and
performance of this Agreement by Itochu have been duly authorized by all
necessary corporate action on the part of Itochu. The execution, delivery and
performance of this Agreement and the Cooperative Marketing Agreement by Itochu
do not and will not conflict with, violate or result in any default under or
breach of any of the provisions of (i) any law of Japan or its political
subdivisions, (ii) the articles of incorporation and other organizational
documents of Itochu, (iii) any decree, judgment or order, applicable to Itochu
or (iv) any material contract or agreement by which Itochu is bound. Itochu has
satisfied itself that it has complied with all applicable laws in connection
with the execution, delivery and performance of this Agreement.
(c) Investment Representations.
(i) Purchase Entirely for Own Account. The Shares are being
acquired for investment for Itochu's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that
Itochu has no present intention of selling, granting any participation in, or
otherwise distributing the same. Itochu does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Shares.
(ii) Investment Experience. Itochu is an investor in securities
of companies in the development stage and acknowledges that it is able to fend
for itself, can bear the economic risk of its investment, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Shares.
(iii) Restricted Securities. Itochu understands that the Shares
are characterized as "restricted securities" under the U.S. federal securities
laws inasmuch as they are being acquired from Newco in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities
<PAGE>
Act, only in certain limited circumstances. Itochu understands that no public
market presently exists for the securities of Newco, and that there are no
assurances that any such market will be created.
(iv) Further Limitations on Disposition. Without in any way
limiting the above, Itochu further agrees not to make any disposition of all or
any portion of the Shares, unless and until the transferee has agreed in writing
for the benefit of Newco to be bound by this Section 6.2(c) and Section 4.3 of
this Agreement, and:
(1) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(2) Itochu shall have notified Newco of the proposed
disposition, and if reasonably requested by Newco, Itochu shall have furnished
Newco with an opinion of counsel, reasonably satisfactory to Newco, that such
disposition will not require registration of such shares under the Securities
Act.
(v) Legends. It is understood that the certificate(s) evidencing
the Shares shall bear the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE CORPORATION RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT OR UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT. COPIES OF THE AGREEMENTS COVERING THE PURCHASE OF
THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
<PAGE>
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RIGHT OF
FIRST REFUSAL, MARKET STAND-OFF AND OTHER PROVISIONS CONTAINED IN AN
AGREEMENT DATED AS OF FEBRUARY 24, 2001. A COPY OF SUCH AGREEMENT
MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.
7. CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Newco and Itochu. The obligations of each
of Newco and Itochu under this Agreement to cause the closing hereunder to take
place shall be subject to the satisfaction, at and as of the Closing Date, of
the conditions that:
(a) the execution and approval of the Converse Purchase shall have
occurred in accordance with applicable Bankruptcy Court approval and in
accordance with such other terms and conditions as may be agreeable to Newco, to
the extent consistent with the requirements of this Agreement and Newco shall
have obtained all of Converse's rights, title and interest in substantially all
of the Converse Assets, including without limitation, the Japanese Footwear
Trademarks;
(b) there shall not have been entered a preliminary or permanent
injunction, temporary restraining order or other judicial or administrative
order or decree in any jurisdiction, the effect of which prohibits the
completion of the Converse Purchase or the closing of this Agreement on the
Closing Date or prevents Newco from performing in all material respects its
obligations under this Agreement and there shall be no legal actions or
proceedings pending that will, if determined adversely, prohibit Newco from
performing in all material respects its obligations under this Agreement; and
(c) the Japanese Footwear Trademarks shall not be subject to any
Liens, including any attachment or provisional attachment (other than as a
result of Itochu's failure to obtain the consent contemplated in Section
7.2(b)); provided, however, that (i) the transfer of contractual or other rights
as licensor shall be subject to obtaining any consents to such transfer as may
be required under the applicable agreement and (ii) the transfer of Converse's
rights to any co-owned trademark shall be subject to obtaining any consents to
such transfer as may be required from the co-owner.
7.2 Additional Conditions to Obligations of Newco. Except to the extent
expressly waived in writing by Newco, the obligations of Newco under this
Agreement to cause the closing hereunder to take place shall also be subject to
the fulfillment at or prior to the Closing Date of each of the following
conditions:
(a) The representations and warranties of Itochu in Section 6.2
shall have been true and correct when made, and shall be true and correct at the
Closing Date as if made on and as of such date, and Itochu shall have performed
in all material respects its obligations required by this Agreement to be
performed on or prior to the Closing Date; and
<PAGE>
(b) Itochu shall have delivered to Newco a certificate executed by
an authorized Itochu representative certifying that, based upon his best
knowledge, the representations specified in Section 6.2 are true and correct as
of the Closing Date.
7.3 Additional Conditions to Obligations of Itochu. Except to the extent
expressly waived in writing by Itochu, the obligations of Itochu under this
Agreement to cause the closing to take place shall also be subject to the
fulfillment at or prior to the Closing Date of each of the following conditions:
(a) Itochu shall have received properly executed Transfer Documents
and all other documents required to be delivered at the Closing Date under
Sections 3.1 and 3.2 hereof with respect to the Japanese Footwear Trademarks;
(b) Any consents or approvals required for the transfers
contemplated under Sections 3.1, 3.2 or 3.3 hereof shall have been delivered to
Itochu by Newco; provided, that, the foregoing shall not apply to any required
consent of Moonstar or any Japanese governmental approval required to effect the
transfer of the Japanese Footwear Trademarks and provided, further, that (i) the
transfer of contractual or other rights as licensor shall be subject to
obtaining any consents to such transfer as may be required under the applicable
agreement and (ii) the transfer of Converse's rights to any co-owned trademark
shall be subject to obtaining any consents to such transfer as may be required
from the co-owner;
(c) Cre-8-Net and Newco shall have procured sufficient capital
investment, financing and other funds (including release of the Purchase Price)
necessary to permit Newco to acquire the Converse Assets;
(d) Newco shall have delivered such documents as Itochu may properly
prepare and reasonably request to confirm Itochu's manufacturing rights for
Converse non-footwear products in Japan in accordance with Section 5.3;
(e) The rights granted to Itochu under Sections 5.1 and 5.2 shall be
in full force and effect;
(f) The representations and warranties of Cre-8-Net and Newco in
Section 6.1 shall have been true and correct when made, and shall be true and
correct on the Closing Date as if made on and as of such date, and Newco shall
have delivered certificates representing the Shares and otherwise shall have
performed in all material respects its obligations required by this Agreement,
to be performed on or prior to the Closing Date; and
(g) Newco shall have delivered to Itochu a certificate executed by
Newco's chief executive officer certifying that, based upon his best knowledge,
the conditions specified in Section 7.1 have been fulfilled as of the Closing
Date.
8. OTHER AGREEMENTS
The provisions of this Section 8 shall be effective on and after the
Closing Date.
<PAGE>
8.1 Right of First Refusal on Itochu's Newco Stock.
(a) Right of First Refusal. For eighteen (18) months from the
Closing Date, Itochu shall not Transfer any shares of Newco capital stock owned
by it. Thereafter, before any shares of Newco capital stock owned by Itochu may
be sold or otherwise Transferred, Newco or its assigns shall have a right of
first refusal to purchase all such shares on the terms and conditions set forth
in this Section 8.1 (the "STOCK RIGHT OF FIRST REFUSAL").
(b) Notice of Proposed Transfer. Itochu shall deliver to Newco a
written notice (the "STOCK DISPOSITION NOTICE") describing the purchase offer
(the "PURCHASE OFFER") stating: (i) Itochu's bona fide intention to sell or
otherwise Transfer such shares (the "OFFERED SHARES"); (ii) the name of each
proposed purchaser or other transferee (the "PROPOSED TRANSFEREE"); (iii) the
number of Offered Shares to be transferred to each Proposed Transferee; and (iv)
the per share bona fide cash price or other consideration for which Itochu
proposes to transfer the Offered Shares (the "OFFERED PRICE"), and Itochu shall
offer the Offered Shares at the Offered Price to Newco or its assignee(s).
(c) Exercise of Right of First Refusal. The Stock Right of First
Refusal may be exercised in whole by delivery by Newco and/or its assignees of a
written notice ("ELECTION NOTICE") delivered to Itochu within ninety (90)
calendar days after receiving the Stock Disposition Notice. Newco and/or its
assignee(s) shall have the right and option (but not the obligation) to purchase
all the Offered Shares in their entirety at the Price (defined below).
(d) Purchase Price; Payment. The per share purchase price ("PRICE")
for the Offered Shares purchased by Newco or its assignees under this Section
8.1 shall be the Offered Price per share. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration shall be determined through the good faith negotiations by Newco
or its assignee and Itochu. Payment of the Price shall be made in cash (by
check) within thirty (30) days after receipt of the Election Notice or in the
manner and at the times set forth in the Election Notice.
(e) Right to Transfer. If the Offered Shares are not purchased by
Newco or its assignees, then Itochu may sell or otherwise transfer the Offered
Shares in their entirety to the Proposed Transferee at the Offered Price or at a
higher price, provided, that, such sale or other transfer is consummated within
ninety (90) days after the date of the Election Notice and, provided, further,
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee agrees in writing that
the provisions of Section 4.3 and Section 6.2(c) shall continue to apply to the
Offered Shares held by such Proposed Transferee. If the Offered Shares are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to Newco and Newco shall again be offered the Right of First Refusal
before any shares of Newco capital stock can be sold by Itochu.
(f) StopTransfer. Any attempt by Itochu to Transfer any shares of
Newco capital stock in violation of this Section 8.1 shall be void and Newco
shall be permitted not effect such a Transfer, not treat any alleged transferee
as the holder of such shares and stop transfer of such attempted Transfer.
<PAGE>
(g) Exclusions. Notwithstanding the foregoing, Itochu shall have the
right to Transfer all or part of its shares of Newco capital stock to one or
more majority owned subsidiaries of Itochu which agree in writing to be bound by
all of the provisions of this Agreement which otherwise constitute obligations
of Itochu with respect to the Shares.
(h) Termination of Stock Right of First Refusal. The provisions of
Section 8.1 shall terminate immediately prior to the closing of a Qualified IPO
or a Newco Change of Control.
8.2 Japanese Footwear Trademark Right of First Negotiation and First
Refusal.
(a) Right of First Negotiation. If Itochu proposes to Transfer the
Japanese Footwear Trademarks or the trademarks and related rights in any other
countries for which Itochu acquires distribution rights pursuant to Section 5.1
or 5.2 (collectively, the "OTHER TRADEMARKS"), Itochu shall negotiate
exclusively with Newco for a period of ninety (90) days prior to any such
Transfer. Itochu's foregoing obligation shall be deemed to have been satisfied
if Itochu, prior to any initiation of discussions with any third parties
regarding such Transfer, notified Newco of its desire to Transfer such
trademarks and related rights and shall have negotiated exclusively with Newco
for a period of ninety (90) days regarding such Transfer.
(b) Right of First Refusal; Notice. Itochu shall not Transfer the
Japanese Footwear Trademarks or the Other Trademarks or any interest therein
without first giving written notice of the proposed Transfer to Newco setting
forth in reasonable detail the proposed assignee, the marks and related rights
proposed to be Transferred, and the price and other terms and conditions of the
Transfer (the "TRADEMARK TRANSFER NOTICE").
(c) Exercise of Trademark Right of First Refusal. Newco or any of
its majority owned subsidiaries shall have the right and option (but not the
obligation) to purchase all of the marks and associated rights specified in the
Trademark Transfer Notice for a price equal to the price (and on the other terms
and conditions) specified in the Trademark Transfer Notice. If Newco or its
majority owned subsidiary does not wish to purchase all of the marks and
associated rights specified in the Trademark Transfer Notice, Newco shall give
written notice to Itochu as promptly as practicable. Unless Newco gives written
notice declining the purchase proposed in the Trademark Transfer Notice, Newco
or its majority owned subsidiary shall have ninety (90) days following receipt
of the Trademark Transfer Notice to consummate the purchase with Itochu on
mutually agreed terms.
(d) Right to Transfer. If Itochu and Newco or its majority owned
subsidiary do not agree to terms on the Transfer under this Section 8.2, Itochu
shall have the right to consummate the arrangement described in the Trademark
Transfer Notice; provided, that, the ultimate terms of the arrangement are not
materially more favorable to the transferee than those described in the
Trademark Transfer Notice and provided further that such transaction is
consummated within ninety (90) days after, as applicable, Newco's written notice
declining the Transfer proposed in the Trademark Transfer Notice or the one
hundredth eighty-first (181st) day after Newco's receipt of the Trademark
Transfer Notice. If Itochu is unable to consummate such Transfer in accordance
with the terms of this Section 8.2(d), Itochu's right of first refusal shall
again apply.
<PAGE>
(e) Exclusions. Notwithstanding the foregoing, Itochu shall have the
right to Transfer all or part of the Japanese Footwear Trademarks or the Other
Trademarks to one or more majority owned subsidiaries of Itochu which agree in
writing to be bound by all of the provisions of this Agreement to the extent
those provisions would be obligations of Itochu in relation to the specific
Transferred Japanese Footwear Trademarks or the Other Trademarks.
9. GENERAL PROVISIONS
9.1 Governing Law. This Agreement shall be governed in all respects by the
internal laws of the State of California without application of principles of
conflicts of law.
9.2 Survival. All representations, warranties, covenants and agreements
made herein shall survive any investigation made by any party and the closing of
the transactions contemplated hereby.
9.3 Successors and Assigns. Neither Itochu, Cre-8-Net nor Newco shall
assign or otherwise transfer any of their rights under this Agreement other than
to a successor to all or substantially all of the business of such party by way
of merger, consolidation or purchase of assets, except that Newco's rights
hereunder shall inure to the benefit of and shall be assignable to any majority
owned subsidiary of Newco and any institutional lender which has provided or
committed to provide acquisition, working capital or other financing to Newco.
Except as provided in the preceding sentence and other specific provisions
hereof, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
9.4 Entire Agreement; Amendment. This Agreement and its exhibits expressly
described herein constitute the full and entire understanding and agreement
among the parties with regard to the subjects hereof. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of each of the parties hereto.
9.5 Notices and Other Communications. Every notice or other communication
required or contemplated by this Agreement by either party shall be delivered
either by (i) personal delivery, (ii) postage prepaid return receipt requested
registered or certified mail (airmail if available), or the equivalent of
registered or certified mail under the laws of the country where mailed, (iii)
internationally recognized overnight courier, such as Federal Express or UPS, or
(iv) facsimile with a confirmation copy sent simultaneously by postage prepaid,
return receipt requested, registered or certified mail, in each case:
if addressed to Newco at: c/o Cre-8-Net (at the address noted below),
With a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Attention: Catherine Kirkman and Kurt Berney
<PAGE>
Telephone: 1 650 493-9300
Facsimile: 1 650 493-6811
if addressed to addressed to Cre-8-Net at:
Cre-8-Net Ventures
591 Redwood Highway
Suite 2180
Mill Valley, California 94941
Telephone: 1 415 309-0956
Facsimile: 1 415 383-7405
With a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
(as set forth above)
if addressed to Itochu at:
Itochu Corporation
1-3, Kyutaro-machi 4-chome,
Chuo-ku, Osaka 541-8577, Japan
Attention: Kenichi Kamiyoshi
Operating Officer of Import Textile
And Fashion Goods Division
Telephone: 81-6-6241-2987
Facsimile: 81-6-6244-0845
With a copy to:
Yoshihiro Fukushima,
Manager of Import Textile And
Fashion Goods Division,
Section No.6
Notice by registered or certified mail shall be effective on the date it
is officially recorded as delivered to the intended recipient by return receipt
or equivalent, and in the absence of such record of delivery, the effective date
shall be presumed to have been the fifth (5th) business day after it was
<PAGE>
deposited in the mail. All notices and other communications required or
contemplated by this Agreement delivered in person or sent by courier shall be
deemed to have been delivered to and received by the addressee and shall be
effective on the date of personal delivery; notices delivered by facsimile with
simultaneous confirmation copy by registered or certified mail shall be deemed
delivered to and received by the addressee and effective on the date sent.
Notice not given in writing shall be effective only if acknowledged in writing
by a duly authorized representative of the party to whom it was given.
9.6 Counsel Fees. Each party shall bear its own legal fees and other
expenses incident to this Agreement.
9.7 Finder's Fees.
(a) Newco and Cre-8-Net (i) represent and warrant that they have not
retained any finder or broker in connection with the transactions contemplated
by this Agreement and (ii) hereby agree to indemnify and to hold Itochu harmless
of and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which Newco or
Cre-8-Net or any of their employees or representatives, is responsible.
(b) Itochu (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold Newco and the other
shareholders harmless of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or asserted
liability) for which Itochu, or any of its employees or representatives, is
responsible.
<PAGE>
9.8 ARBITRATION. UNLESS OTHERWISE AGREED BY NEWCO, CRE-8-NET AND ITOCHU IN
WRITING, ALL DISPUTE, CONTROVERSIES, OR DIFFERENCES WHICH MAY ARISE BETWEEN THE
PARTIES OUT OF OR IN RELATION TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE
BREACH THEREOF, SHALL BE FINALLY SETTLED BY ARBITRATION IN ACCORDANCE WITH THE
RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE BY A PANEL OF
THREE ARBITRATORS, ONE OF WHOM SHALL BE SELECTED JOINTLY BY CRE-8-NET AND NEWCO,
ONE OF WHOM SHALL BE SELECTED BY ITOCHU, AND THE THIRD OF WHOM SHALL BE
APPOINTED IN ACCORDANCE WITH THE RULES OF ARBITRATION. THE ARBITRATION SHALL BE
CONDUCTED IN THE ENGLISH LANGUAGE AND THE PLACE OF ARBITRATION SHALL BE OSAKA,
JAPAN IF THE ARBITRATION PROCEEDING IS INITIATED BY NEWCO OR CRE-8-NET AND SHALL
BE IN SAN FRANCISCO, CALIFORNIA IF THE ARBITRATION PROCEEDING IS INITIATED BY
ITOCHU. THIS ARBITRATION PROVISION SHALL APPLY WHETHER THE DISPUTE, CONTROVERSY
OR DIFFERENCE ARISES UNDER CONTRACT, TORT, LAW, EQUITY OR OTHERWISE.
NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL BE ENTITLED WITHIN ANY COUNTRY
TO SEEK INJUNCTIVE RELIEF, DAMAGES, AND RELATED LEGAL OR EQUITABLE REMEDIES BY
JUDICIAL ACTION AGAINST THE OTHER PARTY OR ANY THIRD PARTY BASED ON ANY
INFRINGEMENT OR OTHER VIOLATION OF TRADEMARK OR OTHER INTELLECTUAL PROPERTY
RIGHTS RESPECTIVELY OWNED BY SUCH PARTY.
Having read and accepted this Agreement, the parties hereby sign and
deliver this Agreement as of the day and year first set forth in this Agreement.
CRE-8-NET VENTURES L.L.C.
By: /s/ William N. Simon
-----------------------------------
Name: William N. Simon
Title: Managing Partner
ITOCHU CORPORATION
By: /s/ Kenichi Kamiyoshi
-----------------------------------
Name: Kenichi Kamiyoshi
Title: Operating Officer
FOOTWEAR ACQUISITION, INC.
By: /s/ William N. Simon
----------------------------------
Name: William N. Simon
Title: Director