Product License Agreement [Hong Kong] - Playboy Enterprises Inc. and Chaifa Investment Ltd.
INDEX TO CHAIFA INVESTMENT, LIMITED PRODUCT LICENSE AGREEMENT
-------------------------------------------------------------
THE SCHEDULE
<TABLE>
<CAPTION>
PARAGRAPH PAGE NO.
--------- --------
<S> <C>
1. GRANT OF LICENSE
a. Grant l - 2
b. Term 2
c. Minimum Net Sales 2
d. License Year and License Quarter 2
e. Territory 3
2. COVENANTS OF LICENSEE
a. Use 3 - 4
b. Best Efforts 4
c. Royalties
(i) Guaranteed Royalties 4
(ii) Earned Royalties 4
(iii) Interest 5
d. Statements 5 - 6
e. Payments 6 - 7
f. Records and Audit 7
g. Expenses of Conducting Examinations 7 - 8
h. Product Quality 8
i. Submission of Samples of Products,
Wrapping Materials and Related
Materials 8 - 9
j. Preservation of Trademarks and Copyrights 9
k. Submission of Manufactured Samples,
Wrapping Materials and Related
Materials and Permission to Inspect 10 - 11
l. List of Sources and Customers 11
m. Inventory 11 - 12
n. Trademarks and Non-Competitive Brands 12
o. Indemnification by Licensee 13
p. Title and Protection 13 - 14
q. Advertising Expenditures 14
3. ADDITIONAL COVENANTS OF THE PARTIES
a. Reservation of Rights 15
b. Rights of Licensor 15
c. Rights of Licensee 16
4. TITLE AND PROTECTION
a. Indemnification by Licensor 16
b. Enforcement 16 - 17
</TABLE>
<PAGE>
INDEX TO CHAIFA INVESTMENT, LIMITED PRODUCT LICENSE AGREEMENT
-------------------------------------------------------------
(Continued)
<TABLE>
<CAPTION>
PARAGRAPH PAGE NO.
--------- --------
<S> <C>
5. RELATIONSHIP BETWEEN THE PARTIES
a. No Joint Venture 17
b. Assignment 17 - 18
6. SUBLICENSING
7. DEFAULTS AND RIGHTS OF TERMINATION
a. Defaults and Right to Cure 18
b. Bankruptcy or Assignment for Creditors,
Business Discontinuance 18
c. Loss of Trademark Rights 18
d. Impossible Performance 19
8. TERMINATION OR EXPIRATION
a. Effect of Termination or Expiration 19
b. Reserved Rights 19
c. Inventory 19 - 20
d. Continued Sales After Termination or
Expiration 20
e. Equitable Relief 20
f. Continuity of Sales 20 - 21
g. Guaranteed Royalties 21
9. NOTICES 21
10. INVALIDITY 21 - 22
11. CONSENTS AND APPROVALS 22
12. APPLICABLE LAW 22
13. BROKER 22
14. TITLES 22
15. ENTIRE AGREEMENT 22 - 23
</TABLE>
<PAGE>
THE SCHEDULE referred to in the Agreement dated as of September 26, 1989
S.1. THE LICENSOR: Playboy Enterprises, Inc.
919 North Michigan Avenue
Chicago, Illinois 60611
S.2. THE LICENSEE: Chaifa Investment, Limited
Unit 1, 17/F, Westlands Centre
20 Westlands Road, Quarry Bay
Hong Kong
S.3. THE LICENSED TRADEMARKS: PLAYBOY, PLAYMATE and
RABBIT HEAD DESIGN
S.4. THE TYPE OF LICENSE: Exclusive
S.5. THE USE OF THE TRADEMARKS: Design, manufacture, advertise, sell and
distribute
S.6. THE PRODUCTS: Men's and ladies' underwear, swimwear, socks, robes,
pajamas, outerwear, shirts, activewear, jeans, and
jeanswear, suits, belts, scarves, small leather goods,
hankies, ties, hats, caps, wristbands, headbands and
totebags (but specifically excluding footwear) ALL SPECIFIC
PRODUCTS PRODUCED UNDER THESE GENERAL PRODUCT CATEGORY
HEADINGS TO BE APPROVED OF BY LICENSOR FROM TIME TO TIME.
S.7. THE TERRITORY: Hong Kong
S.8. Initial Term
------------
THE COMMENCEMENT DATE: October 1, 1989
THE EXPIRATION DATE: September 30, 1994
Extended Term (if applicable):
-----------------------------
October 1, 1994 - September 30, 1999
<PAGE>
THE SCHEDULE (Continued)
S.9. THE GUARANTEED ROYALTY:
$100,000.00 (U.S.) per each License Year (including each License Year
of the Extended Term, if applicable).
S.10. THE EARNED ROYALTY:
Five percent (5%) of net sales (as defined in Paragraph 2.d.(ii) of
the agreement) of the Products.
S.ll. THE MINIMUM NET SALES:
Initial Term:
------------
1st License Year (10/1/89 - 9/30/90) - HK$20,000,000.00
2nd License Year (10/1/90 - 9/30/91) - HK$25,000,000.00
3rd License Year (10/1/91 - 9/30/92) - HK$30,000,000.00
4th License Year (10/1/92 - 9/30/93) - HK$40,000,000.00
5th License Year (10/1/93 - 9/30/94) - HK$50,000,000.00
Extended Term (if applicable):
-----------------------------
The Minimum Net Sales in each and every License Year of the Extended Term
(if applicable) shall be HK $50,000.00.
S.12. THE ADDRESS WHERE BOOKS KEPT: See S.2
PLAYBOY ENTERPRISES, INC.
(LICENSOR)
By /s/ W. Stokkan
---------------------
CHAIFA INVESTMENT, LIMITED
(LICENSEE)
For and on behalf of
CHAIFA INVESTMENT LIMITED
By /s/ John Chan Chun Tung
---------------------------------------
Authorized Signature
<PAGE>
LICENSE AGREEMENT
-----------------
This agreement is made as of the 26th day of September, 1989, between the
corporation described in Paragraph S.1. of the Schedule attached hereto and made
a part hereof (hereinafter called "Licensor") and the corporation described in
Paragraph S.2. of the Schedule (hereinafter called "Licensee").
WHEREAS, Licensor has certain rights to the trademark PLAYBOY and other
trademarks identified in Paragraph S.3. of the Schedule (hereinafter
collectively referred to as the "Trademarks");
WHEREAS, Licensee recognizes that the Trademarks have been used:
a. in an internationally distributed magazine (Playboy) published by
Licensor or its subsidiaries, affiliates or licensees;
b. in widespread advertising, publicity, broadcasting and telecasting
and allied fields by Licensor, its subsidiaries and affiliates;
c. in promotional and advertising material in diverse businesses by
Licensor, its subsidiaries and affiliates;
d. in the manufacture, advertisement, distribution and sale world-wide
of a broad range of consumer products including, but not limited to,
jewelry, clothing, footwear, leather goods, audio and visual recordings,
and personal health, home and automotive articles and accessories;
WHEREAS, the parties hereto desire that Licensor grant to Licensee a
license to use the Trademarks in the design, manufacture, advertising and sale
of "Products" (as hereinafter defined);
NOW, THEREFORE, in consideration of the mutual promises herein contained,
it is mutually aqreed as follows:
1. GRANT OF LICENSE.
----------------
a. Grant: Upon and subject to the terms and conditions hereinafter set
forth, Licensor hereby grants to Licensee, and Licensee hereby accepts the
right, license and privilege specified in Paragraph S.4. of the Schedule,
of using the Trademarks in connection with, and only with, the use,
specified in Paragraph S.5. of the Schedule, of specifically designated and
approved articles of merchandise specified in Paragraph S.6. of the
Schedule (such articles of merchandise bearing the Trademarks are
hereinafter collectively referred to as the "Products") in the territory
specified in Paragraph
<PAGE>
S.7. of the Schedule (hereinafter called the "Territory"). Such right, license
and privilege is hereinafter called the "License."
b. Term:
----
(i) The term of the License shall commence on the date specified in
Paragraph S.8. of the Schedule (hereinafter called "Commencement Date") and
shall expire on the date specified in Paragraph S.8. of the Schedule,
unless sooner terminated as provided under this agreement.
(ii) See ADDENDUM.
c. Minimum Net Sales: Anything in this agreement to the contrary
notwithstanding, if Licensee's "net sales", as hereinafter defined, in any
License Year shall be less than the Minimum Net Sales specified in Paragraph
S.ll. of the Schedule for such License Year, then Licensor shall have the right
at any time to either (i) declare this License to be a non-exclusive License
thereby giving Licensor the right to either itself design, manufacture,
advertise, distribute and sell the Products or grant non-exclusive licenses to
other parties to design, manufacture, advertise, distribute and sell the
Products; or (ii) terminate the License herein granted by notifying Licensee of
its election to terminate within thirty (30) days after Licensor's receipt of
the statement for such License Year for which Minimum Net Sales were not
attained. Such declaration of non-exclusivity as set forth in (i) above or
termination as set forth in (ii) above shall have no effect upon the amounts due
and payable to Licensor for periods prior to or after such declaration or prior
to termination.
d. License Year and License Quarter:
--------------------------------
(i) For all purposes under this agreement a "License Year" shall be
twelve (12) consecutive calendar months commencing on the Commencement Date
and ending twelve (12) months thereafter and each twelve (12) month period
thereafter, and if the termination of this License is effective other than
at the end of such twelve (12) month period, then the final less than
twelve (12) month period ending on the effective date of termination shall
be deemed to be a License Year.
(ii) For all purposes under this agreement, a "License Quarter" shall
be the first (lst) and each succeeding three (3) month period of each
License Year; and if the termination of this License is effective other
than at the end of a License Year, then the final less than three (3) month
period ending on the effective date of termination shall be deemed to be a
License Quarter.
-2-
<PAGE>
e. Territory: The License shall extend only to the Territory and the use by
Licensee of the Trademarks shall be confined to the Territory.
2. COVENANTS OF LICENSEE.
---------------------
a. Use:
---
(i) Subject to Licensor's prior approval as hereinafter required,
Licensee shall commence the manufacture, sale and distribution of each and
every one of the Products as soon as practicable after the Commencement
Date. If Licensee has not commenced the manufacture, sale and distribution
of an approved line of Products by June 30, 1990, Licensor may elect to
treat such an occurrence as an incurable default by Licensee under this
agreement.
(ii) Licensee shall not cause or authorize any use of the Trademarks
in any area of the world outside the Territory and shall not knowingly
manufacture, sell or otherwise deal with or distribute any of the Products
or any other goods, articles or services bearing any words or symbols
associated with or confusingly similar to the Trademarks or associated with
Licensor on behalf of, or to, any person, firm or corporation, that
Licensee believes or has reason to believe intend, or are likely, to deal
with the same in any area of the world outside the Territory. Licensee
shall, upon notice from Licensor, immediately and permanently cease
delivering Products to any person, firm or corporation named in such notice
as one that directly or indirectly deals with the Products outside the
Territory.
(iii) Nothing contained in this Paragraph 2.a. or this agreement shall
prevent Licensor from (a) using or granting others the right or license to
use the Trademarks on or in connection with the Products in any area of the
world other than the Territory or on or in connection with goods (other
than the Products) of all other types and descriptions in any area of the
world, including the Territory or (b) producing or having produced limited
quantities of the Products to be used by Licensor or its affiliates in the
Territory specifically for promotional and advertising purposes and not for
sale.
(iv) Licensee warrants and represents that it has, and will continue
to have throughout the entire term of this agreement, the legal right to
enter into this agreement and to assume the obligations hereunder and that
there are no, and Licensee shall not enter into during the term hereof,
contracts, agreements or
-3-
<PAGE>
understandings with anyone which would in any way restrict or prevent
Licensee from its performances and obligations under this agreement.
Licensee shall be responsible for obtaining, at its own expense, any and
all licenses, permits, approvals (including governmental or other agency
licenses, permits and approvals) necessary for Licensee to design,
manufacture, advertise, distribute and sell the Products, or to pay
royalties or taxes or to fulfill any other obligation or exercise any right
of Licensee under this License. In the event Licensee is unable, for any
reason, to obtain all of the necessary permits, licenses or approvals prior
to the Commencement Date, Licensor shall have the right to terminate this
agreement upon notice to Licensee without any period of grace and without
any obligation to Licensee whatsoever.
b. Best Efforts: Licensee shall, throughout the term of the License and
as permitted by this agreement, constantly use its best efforts in the
advertising, promoting, selling and distributing and any other dealing with or
disposal of the Products to protect the good name and goodwill associated with
the Trademarks and Licensor and to obtain the greatest number of sales of the
Products, such sales to be reported in measurements of both units and local
currency, throughout the entire Territory and the entire term of this agreement
and any extensions thereof. Except as provided in Paragraphs 2.a.(iii) and 2.q.
hereof, Licensee shall be responsible for and shall assume and pay for all costs
and expenses related to the design, manufacture, sale, promotion, advertising
and distribution of the Products.
c. Royalties:
(i) Guaranteed Royalties: Licensee shall pay to Licensor or its
nominee guaranteed minimum royalties (hereinafter called "Guaranteed
Royalty" or "Guaranteed Royalties") in the amount specified in Paragraph
S.9. of the Schedule; which shall be payable in four (4) equal installments
with each such installment due on or before the first (lst) day of each
License Quarter (i.e., October 1, January 1, April 1 and July 1) of each
such License Year.
(ii) Earned Royalties: In addition to Guaranteed Royalties, Licensee
shall pay to Licensor or its nominee percentage royalties (hereinafter
called "Earned Royalties") for each License Year in the amount equal to the
amount by which in each License Year the amount specified in Paragraph
S.10. of the Schedule exceeds the Guaranteed Royalty for such License Year.
Earned Royalties shall be payable in accordance with the terms and
conditions of Paragraph 2.d. and 2.e. below.
-4-
<PAGE>
(iii) Interest: All sums including but not limited to the Guaranteed
and Earned Royalties, that shall not be paid on the due date shall bear interest
at an amount equal to the highest percentage allowed by law over the prime rate
of interest as established by The First National Bank of Chicago in Chicago,
Illinois applicable to ninety (90) day commercial loans effective on the date
that such sum should have been paid from such due date until the date on which
such sum is paid in full.
d. Statements:
(i) Within forty-five (45) days after each License Quarter, Licensee
shall furnish to Licensor or its nominee a complete and accurate statement
certified to be true by the Chief Financial Officer or Company Secretary of
Licensee showing for the preceding License Quarter and the License Year through
such period the units, description and computations in local currency of "net
sales," as hereinafter defined, of all the Products distributed, sold or
otherwise disposed of by Licensee in each country in the Territory during the
preceding License Quarter, the computation of Earned Royalties as set forth in
Paragraph 2.c.(ii) hereof and the amount of Earned Royalties due and payable
thereon. When during any License Year such statement shows that the amount of
the Guaranteed Royalty for such License Year has been exceeded, Licensee shall
commence payment of Earned Royalties for such License Year by remittance,
accompanying such statement, of Earned Royalties payable through the period
covered by such statement. Any overpayments or underpayments of Earned Royalties
caused by errors in prior quarterly statements revealed by the statement for the
last License Quarter of any License Year shall be immediately adjusted by the
parties. Such statement shall also reflect the advertising expenditures made by
Licensee through such period pursuant to Paragraph 2.q. hereof (which will
include the details of all such advertising expenditures, supported by copies of
vouchers and copies of any print advertising).
(ii) As used in this agreement, the term "net sales" means the invoice
price charged by Licensee for the Products less (x) refunds, credits and
allowances actually made or allowed to customers for returned Products, (y)
customary trade discounts (including anticipations) afforded to and actually
taken by customers against payment for the Products and (z) value added tax
(only where applicable) assessed on sales. If Licensee sells Products to a
marketing organization or any individual or company in whole or in part
controlled by Licensee, the invoice price used to determine net
-5-
<PAGE>
sales hereunder shall be the invoice price at which the Products are resold by
such entity to an unrelated customer in an arm's length transaction.
(iii) In the event the percentage of returns of Products in any
License Year exceeds thirty percent (30%) of net sales for such License Year,
then Licensor may elect to treat such an occurrence as an incurable default by
Licensee under this agreement and Paragraph 7. hereof shall apply.
e. Payments.
(i) All payments Licensee is required to make by the terms of this
Agreement shall be made in United States Dollars through a bank specified by
Licensor. No deduction shall be made for income or other taxes without
Licensor's written permission, unless Licensee is compelled to do so by law; in
which case Licensee shall provide Licensor with evidence that such tax has been
paid in the proper amount. Licensee shall give due notice to Licensor of any
such proposed deductions. In the event payments in the manner provided in this
Paragraph 2.e. shall become impossible or illegal by reason of the action of
governmental authority, then, at Licensor's option, this Agreement may be
terminated; and whether or not Licensor exercises such option, while such
restrictions remain in effect, all payments due Licensor shall be made to an
account in the Territory, or elsewhere where permitted by law, to be designated
by Licensor.
(ii) In determining the proper rate of exchange to be applied to the
payments due hereunder, it is agreed that:
(a) Licensee shall calculate Earned Royalties on a calendar month
basis in local currency (with each such month considered to be a separate
accounting period for the purpose of computing Earned Royalties).
(b) Licensee shall compute a conversion of each such monthly
total into United States currency utilizing the rate of exchange in effect on
the last day of each relevant calendar month as determined by the Bankers
Trust Co. of New York City, New York (U.S.A.).
(c) The converted amounts (in U.S. currency) shall be added
together on a cumulative basis and when during any License Year such
computation shows
-6-
<PAGE>
that the amount of the Guaranteed Royalty for such License Year has
been exceeded, Licensee shall commence payment of Earned Royalties for
such License Year by remittance of such excess in U.S. currency to
Licensor; which remittance will accompany the statement required by
Paragraph 2.d. hereof. If there is no excess, no Earned Royalties will
be payable for such License Year by Licensee (but in no event shall
Licensor be responsible for returning to Licensee any portion of the
Guaranteed Royalties paid or payable).
f. Records and Audit: Licensee shall keep accurate books of account and
records (including but not limited to utilization of consecutively numbered
invoices) covering all transactions relating to this agreement or arising out of
the License (which records shall be maintained separately from Licensee's books
and records relating to other items manufactured or sold by Licensee) and shall
permit Licensor or any of its nominees, employees or agents to have full access
to and to inspect the same at all reasonable hours of the day to enable Licensor
and its nominees, employees or agents to conduct an examination of and to copy,
at Licensor's expense, all such books and records. Licensee shall maintain in
good order and condition all such books and records for a period of two (2)
years after the expiration or termination of the License or, in the event of a
dispute between the parties hereto, until that dispute is resolved, whichever
date is later, and such books and records shall be kept at the address stated in
Paragraph S.12 of the Schedule; except as such address may be changed from time
to time in accordance with Paragraph 9. hereof. Receipt or acceptance by
Licensor of any statement furnished pursuant hereto or any sums paid by Licensee
hereunder shall not preclude Licensor from questioning the correctness thereof
at any time, and if any inconsistencies or mistakes are discovered in such
statement or payment, they shall be immediately rectified and prompt adjustment
and corresponding payments shall be made to compensate therefor.
g. Expenses of Conductinq Examinations: If an examination referred to in
Paragraph 2.f. above discloses an overpayment or underpayment of Earned
Royalties, the appropriate amount shall be immediately paid or refunded to the
party entitled thereto. If such examination reveals that for the period covered
by such examination there is an error of five percent (5%) or more in the Earned
Royalty previously reported as being due from Licensee, all expenses involved in
the conducting of such examination shall be borne by Licensee. If such error is
less than five percent (5%), such expenses shall be borne by Licensor. In the
event an examination discloses an underpayment in excess of nine percent (9%)
for
-7-
<PAGE>
any License Year, then Licensor may elect to treat such an occurrence as an
incurable default by Licensee under this agreement.
h. Product Quality: Licensee hereby warrants and agrees that, the
Products manufactured, advertised, promoted, sold, distributed or otherwise
disposed of under this agreement shall bear faithfully produced Trademarks and
shall meet the high standards of quality, workmanship, material, design, size,
color and style established by Licensor in accordance with the terms and
conditions of Paragraphs 2.h., 2.i., 2.j. and 2.k. hereof; and Licensee will not
knowingly cause or authorize any Product not conforming to the conditions of
this Paragraph 2. to be available for sale within the Territory as doing so may
adversely affect Licensor's goodwill in the Trademarks. All Products made
available for sale in the Territory shall conform to and comply with, in all
respects, all governmental and jurisdictional laws, rules and regulations
governing the design, quality or safety of such Products. Licensee shall not
cause or authorize: the use of any substandard or offensive materials in or used
in connection with the Products; in its actions under or related to this
License, any violation of any governmental or jurisdictional law, rule or
regulation, including but not limited to regulations imposing advertising
standards or requiring trade or content description of Products; the use of the
Trademarks or any other word, device or symbol associated in any way with
Licensor, its subsidiaries and affiliates in connection with any product or
activity that is not the subject of this License.
i. Submission of Samples of Products, Wrappinq Materials and Related
Materials: Licensee acknowledges that all Products and other items bearing the
Trademarks must be approved in advance by Licensor. Licensee shall, at its own
expense submit to Licensor or its nominee at least two (2) signed and dated
samples, prototypes or equivalents acceptable to Licensor of each of the
cartons, containers, labels, wrappers, packages or other inner or outer
packaging materials, fixtures, displays, artwork, printing, advertising, sales,
marketing and promotional materials and other items bearing the Trademarks and
intended for use in connection with the Products (hereinafter called "Wrapping
Materials and Related Materials") and of each of the Products that Licensee
intends to manufacture, advertise, promote, sell, distribute or otherwise
dispose of in the Territory from time to time. Licensee agrees not to commence
or permit such manufacture, advertisement, promotion, sale, distribution of or
dealing in Products, Wrapping Materials or Related Materials until Licensee has
received: (i) the written approval of Licensor, or its nominee, for such Product
and such Wrapping Material and Related Material and (ii) a sample, prototype or
-8-
<PAGE>
equivalent acceptable to Licensor that has been signed and dated by Licensor as
a record of its approval of the same. If any sales by Licensee of Products,
Wrapping Materials or Related Materials do not conform in Licensor's sole
opinion to the previously approved samples, then Licensor shall have the right
to notify Licensee, in writing, specifying in what respect Licensor disapproves;
in such event, Licensee shall, immediately upon receipt of notification of
disapproval, suspend all advertising, manufacture, sale and distribution of the
disapproved Product, Wrapping Materials or Related Materials until Licensee has
made all necessary changes and corrections to the satisfaction of Licensor and
obtained Licensor's written reapproval of such Product, Wrapping Materials or
Related Materials. Sales by Licensee of Products, Wrapping Materials or Related
Materials that do not conform to the previously approved samples shall
constitute a material default under the terms of this License. Licensor shall
use its best efforts to signify its approval or reapproval (which shall not be
unreasonably withheld) or disapproval within fourteen (14) business days of
receipt by Licensor of any Product, Wrapping Material or Related Material. In
the event Licensee shall not have been advised of the approval or disapproval by
the beginning of the second (2nd) full business day preceding such deadline,
Licensee shall notify such person or persons as Licensor may designate from time
to time, by telegram, telex, cable or facsimile, and in the event Licensor's
designees shall not have notified Licensee of Licensor's disapproval within two
(2) business days after receipt of such telegram, telex, cable or facsimile,
Licensor's approval of such Product, Wrapping Material or Related Material shall
be conclusively presumed.
j. Preservation of Trademarks and Copyriqhts: Licensee shall:
(i) affix to any Product, Wrapping Material or Related Material
such trademark and copyright notices and notices of the sponsorship of
Licensor as Licensor may request from time to time or as required by law
during the term of the License;
(ii) manufacture, sell, distribute or otherwise deal with Wrapping
Materials or Related Materials solely in connection with the Products;
(iii) not cause or grant permission to any third parties to acquire
any copyright or other proprietary right in connection with any such word,
device, design or symbol used by Licensee in connection with any of the
Products, Wrapping Materials or Related Materials.
-9-
<PAGE>
k. Submission of Manufactured Samples, Wrapping Materials and Related
------------------------------------------------------------------
Materials and Permission to Inspect:
-----------------------------------
(i) Licensee shall, within seven (7) days of a specific demand from
Licensor, dispatch to Licensor at Licensee's expense, samples of any of the
Products, Wrapping Materials and Related Materials that Licensee is using,
manufacturing, selling or distributing or otherwise disposing of under the
terms of this agreement for inspection. Also, to ensure that all of the
Products, Wrapping Materials and Related Materials dealt with by Licensee
are constantly maintained in conformance with the previously approved
samples, Licensee shall take such action as may be required to ensure that
Licensor and its designated agents and representatives shall have the right
to enter upon and inspect, at all reasonable hours in the day, any office,
factory, warehouse or other facility where any of the Products or Wrapping
Materials and Related Materials are designed, manufactured, stored or
otherwise dealt with; and Licensor shall have the right to take, without
payment, such samples of any of the Products, Wrapping Materials and
Related Materials at any such place as Licensor reasonably requires for the
purposes of such inspection. If any such dispatched or taken Products,
Wrapping Materials and Related Materials fail to conform to the previously
approved samples, then Licensor shall have the right to notify Licensee in
writing, specifying in what respect Licensor disapproves; in such event,
Licensee shall, immediately upon receipt of notification of disapproval,
suspend all manufacture, sale and distribution and wherever possible call
back from Licensee's customers all of the disapproved Product, Wrapping
Material or Related Material until it has made all necessary changes and
corrections to the satisfaction of Licensor and obtained Licensor's written
reapproval of such Product, Wrapping Material or Related Material.
Products, Wrapping Materials or Related Materials that do not conform to
the approved samples, including seconds, shall not be sold, distributed or
otherwise released by Licensee unless all references to all Trademarks
shall have first been completely obliterated or removed or otherwise made
totally unidentifiable.
(ii) Licensee may, however, dispose of Products as "off-quality"
merchandise. Whenever such off-quality merchandise is sold as aforesaid, no
use of or reference to the Trademarks shall be made. Licensee shall notify
its customers to assure compliance by them with the requirements of this
Paragraph 2.k.(ii). Licensee shall be deemed to have met this obligation by
its removal of all labels, tags and marks which would identify the goods as
Products and by placing the following legend on all purchasers' invoices
for such goods:
-10-
<PAGE>
"Purchaser agrees that it will not use the Trademarks (here described,
e.g., PLAYBOY, PLAYMATE and RABBIT HEAD DESIGN) or any other phrase or
statement using the Trademarks (here described, e.g., PLAYBOY, PLAYMATE
and RABBIT HEAD DESIGN) on any advertising, publicity, labeling,
wrapping or packaging with respect to the merchandise listed hereon."
(iii) In the event the percentage of off-quality Products in any License
Year exceeds thirty percent (30%) of net sales for such License Year, then
Licensor may elect to treat such an occurrence as an incurable default by
Licensee under this agreement and Paragraph 7. hereof shall apply.
1. List of Sources and Customers: Licensee, on demand from Licensor,
shall provide Licensor with a list of the names and addresses of all
manufacturing sources, subcontractors, suppliers, dealers, wholesalers,
retailers and customers who have been engaged in the manufacture, sale,
distribution or other dealings with the Products, Wrapping Materials and Related
Materials during the term of the License (such list shall include customers to
whom Products, Wrapping Materials or Related Materials have been delivered after
the expiration or termination of this License); and such list shall, if so
requested by Licensor, contain the full specification of any designs, utility
models, patents or trademarks that may be involved, directly or indirectly, in
the manufacture, production or distribution of any of the Products, Wrapping
Materials or Related Materials; and Licensee shall obtain the consent of any
relevant third parties for such disclosure. Such list will be kept confidential
and will not be used by Licensor other than as provided in this Paragraph 2.1.
All copies of such list in Licensor's possession will be returned to Licensee or
destroyed by Licensor upon the termination or expiration of this agreement (in
which case Licensor shall provide Licensee with an appropriate certificate of
destruction). Licensor will not be obligated to maintain the confidentiality of
any information that: (i) is or becomes generally available to the public other
than as a result of a disclosure by Licensor; (ii) becomes available to Licensor
on a nonconfidential basis from a source other than Licensee; or (iii) is
disclosed as a result of an order of court.
m. Inventory: It is the intent of this agreement that, insofar as
practical, Licensee shall at all times be able to fulfill all orders for
Products promptly and yet not have an excessive inventory on hand at the time of
the termination or expiration of the License. Within forty-five
-11-
<PAGE>
(45) days after each License Year, Licensee will furnish Licensor with a
statement signed by the Chief Financial Officer or Company Secretary of
Licensee, setting forth in detail the quantities of finished goods and work in
progress inventories of the Products.
n. Trademarks and Non-Competitive Brands:
-------------------------------------
(i) Licensee shall not during or after the term of this agreement use
or cause or authorize to be used any words, device, design or symbol
confusingly similar to the Trademarks. Any permutations of the Trademarks
and any secondary marks adopted and used by Licensee on or in connection
with the Products and any words, device, design or symbol or any new
packaging or tradedress developed or created by Licensee for use on or in
connection with the Products shall be and become the property of Licensor
and shall be included as Trademarks subject to this agreement. Licensee
shall make no use of same except in regard to the Products and will assign
to Licensor the beneficial ownership of all rights that Licensee has
acquired or may acquire in such permutations, secondary marks, developments
and creations.
(ii) Licensee shall not during the term of this agreement manufacture,
distribute, advertise, promote, sell or deal with in any way in the
Territory, any product, design, symbol, tradedress, packaging, wrapping
materials or services using any brand or trademark that is in any manner
competitive with or confusingly similar to those borne by, or authorized in
connection with, the Products or associated in any way with the Products or
Licensor or Licensor's subsidiaries or affiliates, unless approved in
writing by Licensor.
o. Indemnification by Licensee: Licensee shall indemnify, defend and hold
Licensor, its subsidiaries and affiliates, their respective shareholders,
licensees, franchisees, and the agents, officers, directors and employees of all
the foregoing harmless from any costs, claims, suits, losses, damages and
expenses (including attorneys' fees) whatsoever arising out of or in connection
with the design, manufacture, advertisement, distribution or sale or any other
dealing with the Products, Wrapping Materials and Related Materials.
-12-
<PAGE>
p. Title and Protection:
--------------------
(i) Licensee hereby acknowledges the great value of the goodwill associated
with the Trademarks and the worldwide recognition of the same and that the
proprietary rights therein, and goodwill attached thereto, are solely owned and
belong to Licensor and that the Trademarks and other words, devices, designs and
symbols have a secondary meaning that is firmly associated in the mind of the
general public with Licensor, its subsidiaries and affiliates and their
respective publications, published material and other activities; and any
additional goodwill attached to the Trademarks, created through the use of such
Marks by Licensee shall inure to the benefit of Licensor alone. During and after
the term of the License, Licensee shall not:
(a) directly or indirectly seek for itself, or assist any third party
to use or acquire, any rights, proprietary or otherwise, in any patent,
trademark, copyright or such other intellectual or intangible property so
associated or connected, without the prior written authority of Licensor;
(b) in any way seek to avoid its obligations under this agreement
because of the assertion or allegation by any person(s) that the Trademarks
or any of them are invalid or by reason of any contest concerning the
rights of Licensor;
(c) file or prosecute trademark applications regarding Licensee's use
of the Trademarks unless asked to do so in writing by Licensor. Licensee
will cooperate with Licensor in connection with any such filings.
(ii) (a) Licensee shall use the Trademarks in each jurisdiction strictly in
accordance with the legal requirements in such jurisdiction. Licensee shall
cooperate fully with Licensor in preparing and causing to be recorded in
every jurisdiction where applicable Registered User agreements and all
other documents which may be necessary or desirable to evidence, protect
and implement the rights of Licensor pursuant to the agreement. Upon
expiration or termination of this agreement for any reason whatsoever,
Licensee shall execute and file documents, as required by Licensor,
terminating any and all Registered User agreements and other documents
regarding the Trademarks, or, at Licensor's option, shall, and hereby does,
authorize Licensor to terminate all Registered User
-13-
<PAGE>
agreements and other documents regarding the Trademarks on Licensee's
behalf.
(b) In the event any designs developed by Licensor for the Products
may be made the subject of patent, trademark or copyright protection,
Licensor shall have the right, at its own expense, to file applications
therefor, and shall be the exclusive owner of such rights. Licensee shall
cooperate with Licensor or its designees in obtaining and perfecting such
rights, including providing Licensor or its designees with copies of
documents, sketches, renderings or the like normally prepared by Licensee
in connection with the manufacture of the Products and executing such
documents as may reasonably be required. Nothing herein contained shall be
construed as a transfer of, or obligation to transfer, any patent rights
for products developed by Licensee.
q. Advertising Expenditures: In addition to all other amounts or payments,
and not to be credited against any Guaranteed or Earned Royalty payment
otherwise required under this agreement, Licensee agrees to spend within each
License Year for advertising and promotion (specifically trade and/or consumer
media such as newspapers, magazines, television and/or radio), not less than
three percent (3%) of Licensee's net sales for such License Year. A portion of
such advertising sums shall be paid to Licensor as follows:
(i) Concurrently with the remittance of the statements required under
Paragraph 2.d.(i) hereof, Licensee shall remit to Licensor for use in
Licensor's advertising and promotion pool an amount equal to one percent
(1%) of Licensee's net sales for the time period covered by such statement,
which amount shall be credited against Licensee's annual advertising
expenditures required herein.
(ii) If the report included with the statement required under
Paragraph 2.d.(i) hereof for the last License Quarter of each License Year
shows that the required amount has not been spent, the difference between
the amount actually spent and the amount to be spent must be remitted to
Licensor for use in Licensor's advertising and promotion pool within thirty
(30) days after such statement is due.
-14-
<PAGE>
3. ADDITIONAL COVENANTS OF THE PARTIES.
-----------------------------------
a. Reservation of Rights: All rights not expressly and specifically granted
herein to Licensee are reserved by Licensor.
b. Rights of Licensor: Without limiting the generality of Paragraph 3.a.
hereof, nothing herein contained shall be construed as prohibiting Licensor, its
subsidiaries and affiliates from:
(i) purchasing any of the Products from Licensee and offering any such
Products for sale and selling same to consumers at any nightclub,
restaurant, cabaret, resort, hotel or casino operated or franchised by
Licensor, its subsidiaries and affiliates or through Licensor's direct mail
fulfillment programs. Licensee shall have the option to fill all such
orders at such prices as given to other customers ordering the same
quantities of similar merchandise. Licensee shall have thirty (30) days
from the date it receives such orders within which to notify Licensor of
the exercise of Licensee's option. In the event Licensee does not exercise
such option or fails to notify Licensor of the exercise of such option
within the thirty (30) day time limit, anything in this Paragraph 3.b. or
elsewhere in this agreement to the contrary notwithstanding, Licensor, its
subsidiaries and affiliates shall be allowed to purchase such Products from
other manufacturing sources without liability to Licensee and sell such
Products as indicated in this Paragraph 3.b.
(ii) In the event of any such sale of Products by Licensee to
Licensor, Licensee shall ship or deliver such Products either directly to
Licensor or, as Licensor may direct, to any other business concern or
person. Such sales of Products by Licensee to Licensor shall be, at
Licensor's option, at such prices less the applicable Earned Royalty. If
Licensor elects to have such sales made less the applicable Earned Royalty,
Licensee will not have to pay additional royalties on such sales and will
not be required to include such sales in the statements required under
Paragraph 2.d.(i) hereof. Licensee may, however, include such sales in the
computation of net sales under Paragraph l.c. hereof. Licensee shall bill
Licensor in accordance with Licensee's normal billing procedure for any
such Products shipped or delivered.
-15-
<PAGE>
c. Rights of Licensee: Except as provided in Paragraphs 2.a.(iii) and
3.b.(i) hereof, Licensee enjoys the full exclusive License granted herein and
Licensor agrees not to import or authorize any third (3rd) party to import into
the Territory the Products from any place outside of the Territory.
4. TITLE AND PROTECTION.
---------------------
a. Indemnification by Licensor: Licensor represents and warrants that: it
is the owner of the Trademarks; the Trademarks are valid; and the Trademarks
are, to the best of its knowledge, free from any claim by third parties that
would interfere with the rights granted to Licensee under this agreement.
Licensor shall indemnify, defend and hold Licensee, its agents, officers,
directors and employees harmless against any claims or suits, provided prompt
notice of which is given Licensor by Licensee, arising solely and directly out
of the authorized use of the Trademarks on the Products by Licensee in the
Territory, but in no event shall such indemnification include consequential
damages. Licensor shall have the option to settle or to undertake and conduct
the defense of any such claim or suit; but Licensee shall, upon notice from
Licensor and pursuant to Licensor's instructions, handle, undertake and conduct
the defense of any such suit at Licensor's expense. If Licensor does not so
notify Licensee, Licensee may through counsel of its own choice and at its own
expense participate in any such litigation, but in such event Licensor shall
have sole and exclusive control over such defense and Licensor's decisions shall
govern and control. Licensee expressly covenants that no compromise or
settlement of any claim or suit, or any preliminary negotiations with respect to
any compromise or settlement, shall be made or entered into without the prior
written approval of Licensor.
b. Enforcement: Licensee shall promptly notify Licensor in writing of any
actual, suspected or apparent infringement or imitation of the Trademarks on
products similar or identical to the Products that may come to the attention of
Licensee. Licensor shall take that action in regard to such infringement or
imitation as Licensor, in its sole judgment, deems to be reasonable. Licensor
shall, in its sole and absolute discretion, decide whether to undertake or
conduct any suit or assert any claim with respect to such infringement or
imitation; but Licensee shall, upon notice from Licensor and pursuant to
Licensor's instructions, vigorously handle, undertake and conduct any such suit
or assert any such claim at Licensor's expense in the name of Licensor, or
Licensee or in both names as Licensor may direct. Licensee expressly covenants
that no compromise or settlement of any such suit or claim, or any preliminary
-16-
<PAGE>
negotiations with respect to any compromise or settlement, shall be made or
entered into without the prior written approval of Licensor. Licensee may share
in any damage recovery obtained by Licensor as a result of any such suit or
claim only if Licensee notified Licensor upon the initiation of such suit or
claim that Licensee desires to participate financially in such suit or claim and
only in an amount that shall bear the same ratio to the damage recovery as the
amount of Licensee's financial participation bears to the total costs and
expenses incurred by Licensor in obtaining such damage recovery. In no event
shall Licensor be responsible to Licensee for any consequential damages that may
result from such infringement or imitation.
5. RELATIONSHIP BETWEEN THE PARTIES.
---------------------------------
a. No Joint Venture: Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and Licensee shall
have no power to obligate or bind Licensor, its subsidiaries and affiliates in
any manner whatsoever.
b. Assignment:
-----------
(i) Licensor, in entering into this agreement, is relying entirely
upon the skills, reputation and personnel, including the officers,
directors and shareholders, of Licensee. This agreement and all rights and
duties hereunder are personal to Licensee and shall not, without the prior
consent of Licensor (which may be given or withheld in the sole discretion
of Licensor), be sold, transferred, leased, assigned, mortgaged or
otherwise encumbered by Licensee or by operation of law. Any attempt to
sell, transfer, lease, assign, mortgage or otherwise encumber this
agreement, or any of the rights and duties hereunder, or any change in the
principal officers, principal directors or shareholders of Licensee or an
entity having a financial interest in Licensee (other than non-controlling
shareholders of a corporation whose shares are freely traded on a
nationally recognized stock exchange), without the prior written consent of
Licensor shall constitute a material violation of and an incurable default
under this agreement. The consent of Licensor to any one assignment,
transfer, sublicense or subcontract shall not be deemed to be consent to
any subsequent assignment, transfer, sublicense or subcontract.
(ii) Licensor may assign this agreement to any of its subsidiaries or
affiliates or to any entity that succeeds to the interest of Licensor in
the Trademarks without the consent of Licensee and shall have the right
-17-
<PAGE>
to nominate any other person, company or corporation to receive
royalty income or to undertake the obligations of Licensor under the
terms of this agreement whether or not this agreement is so assigned.
6. SUBLICENSING. Licensee may not, without the prior written approval of
Licensor, whose approval may be withheld without providing any reasons and whose
discretion shall be final and absolute, enter into sublicense or subcontract
agreements, with respect to the manufacture, sale and distribution of the
Products in the Territory.
7. DEFAULTS AND RIGHTS OF TERMINATION.
a. Defaults and Riqht to Cure: If Licensee violates any of its
obligations or warranties under the terms of this agreement and fails to
remedy such violations within fifteen (15) days after receipt of notice
from Licensor of such violations, Licensor shall have the right and option,
but not the duty, to terminate this License upon ten (10) days' prior
written notice to Licensee. The termination of this License shall be
without prejudice to any rights that Licensor may otherwise have against
Licensee under this agreement or under law.
b. Bankruptcy or Assiqnment for Creditors, Business Discontinuance: If
Licensee files a petition in bankruptcy or is adjudicated a bankrupt, or if
a petition in bankruptcy is filed against Licensee, or if Licensee shall
become insolvent or shall make or agree to make an assignment for the
benefit of creditors or an arrangement pursuant to any bankruptcy law, or
if Licensee discontinues business, or if a receiver shall be appointed for
Licensee, the License shall automatically terminate forthwith without the
necessity of any notice whatsoever. If the License is so terminated,
Licensee or its receivers, representatives, trustees, agents,
administrators, successors or assigns shall have no right to sell, exploit
or in any way deal with any Products, Wrapping Materials or Related
Materials, except with and under the special written consent and
instructions of Licensor that they shall be obligated to follow.
c. Loss of Trademark Riqhts: If Licensee's right to use the Trademarks
is adjudged illegal or invalid, and such adjudication has become final and
non-appealable, or if a settlement agreement is entered into that prohibits
Licensee's right to use the Trademarks, this License shall automatically
terminate as of the date of such final and non-appealable adjudication or
the entry of such settlement agreement without the necessity of any notice
whatsoever. Licensee shall have no claim of any nature against Licensor for
the loss of the right to use the Trademarks.
-18-
<PAGE>
d. Impossible Performance: Licensee and Licensor shall be released from their
respective obligations under this agreement and the License shall terminate, if
governmental regulations or other causes arising out of a state of national
emergency or war, or any other similar cause beyond the control of the parties
hereto, shall render performance impossible. Either party shall so inform the
other in writing of any such cause and of its desire to be released, and
immediately thereafter the License shall terminate and all royalties on sales of
the Products theretofore made shall become immediately due and payable.
8. TERMINATION OR EXPIRATION.
-------------------------
a. Effect of Termination or Expiration: Upon and after the expiration or
termination of the License, all rights granted to Licensee under this agreement
shall forthwith revert to Licensor. Licensee will refrain from any further use
of the Trademarks or any further reference to anything, including but not
limited to words, devices, designs and symbols, similar to the Trademarks or in
any way associated with Licensor, its subsidiaries and affiliates, in connection
with the conduct of Licensee's business, except with the written consent of
Licensor and except as expressly provided in this Paragraph 8.
b. Reserved Riqhts: The expiration or termination of this License under any of
the terms of this License shall not relieve Licensor or Licensee, respectively,
of any obligations incurred prior or subsequent to such expiration or
termination; nor shall expiration or termination impair or prejudice any of the
rights of Licensor or Licensee, respectively, accruing prior or subsequent
thereto. Except as provided in Paragraph 8.g. hereof, upon termination, the
Guaranteed Royalty for the then current License Year shall be prorated based on
the ratio that the number of days in such License Year prior to termination
bears to three hundred sixty-five (365). Earned Royalties due for such License
Year shall be the excess of Earned Royalty over such prorated Guaranteed
Royalty. Any overpayment or underpayment of Guaranteed or Earned Royalties shall
be adjusted by the parties in accordance with Paragraph 2.d.(i) hereof.
c. Inventory: Within ninety (90) days prior to the expiration of the License,
or in the event of its termination, within ten (10) days after (i) receipt of
notice of termination or (ii) the happening of any event that terminates the
License where no such notice is required, Licensee shall furnish to Licensor a
complete and accurate statement showing the number and description of Products
in process and on hand. Licensor or its authorized agents shall have the right
to conduct a physical inspection and take
-19-
<PAGE>
inventory to ascertain or verify such inventory and statement, and any refusal
by Licensee to submit to such physical inventory by Licensor or its authorized
agents shall forfeit Licensee's right to complete any work in process and to
dispose of all such inventory; Licensor retaining all other legal and equitable
rights it may have in the circumstances, which rights are hereby reserved.
d. Continued Sales After Termination or Expiration: Upon the expiration of the
term of this License or if this License is terminated pursuant to any paragraph
of this agreement except paragraphs 2.i., 2.k.(iii) and 7.b. hereof, and except
as provided in Paragraph 8.c. above or expires, Licensee may for a period of
ninety (90) days after expiration of the term of this License or notice of
termination dispose of, through Licensee's existing, recognized network of
distributors, Products, the samples for which have previously been approved as
provided under this agreement and that are in process or on hand at the date of
expiration of the term of this License or the time such notice of termination is
received; but in such event Licensee shall pay royalties and furnish statements
with respect to said period in accordance with the terms of this agreement as
though the License were still in effect; except that if this License is
terminated for failure of Licensee to pay those royalties required under the
terms of this agreement, Licensor shall be entitled to receive and Licensee
shall pay to Licensor, in addition to Earned Royalties payable on such sale, all
amounts received by Licensee for the sale of such Products until all past due
amounts, including interest thereon, have been paid.
e. Equitable Relief: Subject to Paragraph 8.d. above, Licensee hereby
acknowledges that its failure to cease the manufacture, sale or distribution of
the Products, Wrapping Materials and Related Materials upon the termination or
expiration of this agreement, will result in damage to Licensor and to the
rights of any subsequent licensee for which there is no adequate remedy at law.
Accordingly, in the event of such failure, Licensor shall be entitled to
equitable relief by way of temporary and permanent injunction and such other
relief as any court of competent jurisdiction may deem just and proper. In this
regard Licensee hereby consents to the judgment of temporary and permanent
injunction in favor of Licensor in order to give effect to this Paragraph 8.e.
f. Continuity of Sales: In order to enable Licensor to maintain continuity of
sales of the Products upon expiration or termination of this agreement, Licensor
shall have the right, notwithstanding anything to the contrary contained in
Paragraph l.a. hereof, to authorize another person or firm
-20-
<PAGE>
to manufacture, to show, and to solicit and receive orders for, the
Products for a time three (3) months preceding the expiration of this
agreement, or from the time that notice is given of termination of this
agreement, whichever is sooner. Such person or firm shall not, however, be
authorized to ship to its customers any of the Products so manufactured and
shown until after this agreement has expired or has been terminated.
g. Guaranteed Royalties: Anything in this agreement to the contrary
notwithstanding, if Licensor terminates this agreement as a result of
default by Licensee, Licensee shall immediately pay to Licensor as
liquidated damages all outstanding Guaranteed Royalties required to be paid
during the "Full Term" (as hereinafter defined) of this agreement in
addition to any Earned Royalties that may be due through the effective date
of termination. As used in this Paragraph 8.g., "Full Term" shall mean
each and every License Year of the initial term and any renewal term that
may be in effect at the time of such termination as if this agreement had
not been terminated as contemplated under this Paragraph 8.g.
9. NOTICES. All notices, requests, consents, demands and other communications
required or permitted by the terms of this agreement shall be in writing and
shall be sent to Licensee at the address specified in Paragraph S.2. of the
Schedule and to Licensor at the address specified in Paragraph S.1. of the
Schedule marked, Attention: General Counsel. All reports required or permitted
by the terms of this agreement shall be sent marked, Attention: Licensing
Operations Director. All material requiring approval shall be sent to Licensor
at 919 North Michigan Avenue, Chicago, Illinois 60611 marked, Attention: Vice
President, International Licensing or to such different or additional parties
and addresses as A. William Stokkan or Licensor may hereafter designate from
time to time. All notices and other material shall be sent postage prepaid,
certified or registered mail, return receipt requested or by telex or facsimile,
provided answer-back confirmation is requested and received. Notices and other
material shall be deemed conclusively to have been served when actually received
or refused by the addressee or upon notification of non-deliverability by the
postal authorities, or upon receipt of answer-back confirmation in the case of
telex or facsimile as the case may be. Notice of any change of address or
addressee shall be made in accordance with the terms of this Paragraph 9.
10. INVALIDITY. If any provision or any application of any provision hereof is
adjudged illegal, unenforceable or invalid and such adjudication has become
final and non-appealable, such provision or application shall be deemed deleted
without affecting the remainder of this agreement unless such deletion shall
have a material adverse effect upon the rights or obligations of either party
hereto and notice of such effect is given as provided in the
-21-
<PAGE>
following sentence. Either party may notify the other within forty-five (45)
days after such adjudication has become final and non-appealable that in its
opinion such deletion would have a material adverse effect upon the notifying
party and that the License is terminated by reason thereof; but the existence of
such effect and the termination of the License shall be subject to contest by
the party receiving such notice if it notifies the other party, within forty-
five (45) days after service of the notice of termination upon it, of its desire
so to contest the matter and thereafter proceeds promptly with a proceeding so
to contest the matter. During such time as the matter is being contested, this
agreement shall remain in full force and effect.
11. CONSENTS AND APPROVALS. In this agreement where the consent or approval of
Licensor is required to any action of Licensee, such consent or approval shall
only be effective if granted in writing by Licensor. If Licensor fails or
declines to grant such consent or approval to Licensee, Licensor shall not be
liable to give any reason therefore nor for any events or circumstances that
arise as a result of such failure.
12. APPLICABLE LAW. This agreement shall be governed by the laws of the State
of Illinois (U.S.A.).
13. BROKER. Licensee and Licensor acknowledge that P&B Company, Inc. acted as
broker for this agreement. Licensee is under no obligation to pay any brokerage
fees or commissions in connection with this agreement.
14. TITLES. The titles to the sections, subsections or other headings in this
agreement are for reference purposes only and shall not define, limit or affect
the meaning or interpretation of this agreement.
15. ENTIRE AGREEMENT. This agreement represents the entire understanding of
the parties. None of the terms of this agreement can be waived or modified
except by an express agreement in writing signed by the parties. There are no
representations, promises, warranties, covenants or undertakings other than
those contained in this agreement. The failure of either party hereto to
enforce, or the delay by either party in enforcing, any of its rights under this
agreement shall not be deemed as constituting a waiver or a modification thereof
and either party may, within the time provided by applicable law, commence
appropriate proceedings to enforce any or all of such rights. No person, firm,
group or corporation other than Licensee, Licensor, its subsidiaries and
affiliates shall be deemed to have acquired any rights by reason of anything
contained in this agreement.
-22-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the day and year first above written.
PLAYBOY ENTERPRISES, INC.
(LICENSOR)
By /s/ W. Stokkan
_______________________________________
CHAIFA INVESTMENT, LIMITED
(LICENSEE)
By /s/ W. Stokkan
_______________________________________
For and on behalf of
CHAIFA INVESTMENT LIMITED
/s/ John Chan Chun Tung
.........................................
Authorized Signature
-23-
<PAGE>
ADDENDUM
ATTACHED TO AND MADE A PART OF
THE PRODUCT LICENSE AGREEMENT
BETWEEN
PLAYBOY ENTERPRISES, INC.
AND
CHAIFA INVESTMENT LIMITED
DATED AS OF
SEPTEMBER 26, 1989
1. b. (ii) If, but only if, Licensee's "net sales" (as hereinafter defined) in
the License Year that ends September 30, 1994 equals or exceeds Hong Kong
Fifty Million (HK$50,000,000.00), Licensee shall have the option of
renewing this agreement on the same terms and conditions, except as
hereinbelow provided, for an additional five (5) License Years (from
October 1, 1994 through September 30, 1999). Licensee must exercise its
option, if applicable, in writing, not less than ninety (90) days prior to
September 30, 1994. In the event Licensee exercises its option, the
"Guaranteed Royalties" (as hereinafter defined) for each License Year of
such additional term shall be One Hundred Thousand Dollars ($100,000.00
U.S.) and the Minimum Net Sales of each License Year of such additional
term shall be Hong Kong Fifty Million (HK$50,000,000.00). If Licensee fails
to exercise its option or exercises its option, but fails to meet the
minimum net sales requirements, the exercise of such option shall be null
and void and of no force and effect.