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EXHIBIT 10.82
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
BETWEEN
SMP CLOTHING [INTERNATIONAL] PTY LTD.,
RIDE, INC., AND SMP CLOTHING, INC.
DATED AS OF NOVEMBER 2, 1998
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INTELLECTUAL PROPERTY PURCHASE AGREEMENT
THIS INTELLECTUAL PROPERTY PURCHASE AGREEMENT (this "Agreement") is
made as of November 2, 1998 by and among SMP CLOTHING, INC., a Washington
corporation ("Seller"), RIDE,INC., a Washington corporation ("Ride"), and SMP
CLOTHING [INTERNATIONAL] PTY LTD, an Australian corporation, ("Purchaser").
RECITALS
A. Seller is a designer, manufacturer and marketer of surf, skate,
motocross, snowboard and casual fashion apparel and related accessories.
B. Purchaser is an intellectual property holder and marketer of
intellectual property rights.
C. Seller desires to sell and assign to Purchaser, and Purchaser desires
to purchase and assume from Seller, certain of the assets of Seller on the terms
and conditions provided herein.
D. Purchaser has agreed with Seller and certain third parties, for
valuable consideration, to pledge the Property, as that term is defined herein,
to Seller and Ride for the payment obligation of such third parties to Seller
and Ride arising under the promissory note of even date made by such third
parties for the benefit of Seller and Ride or their assignee.
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement:
"Asset Purchase Agreement" shall mean that certain Asset Purchase
Agreement of even date, by and between Seller, SMP [U.S.A.] Inc., Ride and SMP
Australia.
"Assignment Documents" shall have the meaning given it in Section 3.2.1
hereof.
"Business" shall mean the business as a going concern of Seller as
conducted through the Closing Date AND that portion of Purchaser's business
attributable to the Property subsequent to the Closing Date.
"Closing" shall mean consummation of the transactions contemplated in
Section 3 hereof.
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"Closing Date" shall mean the date on which Closing is to occur,
determined as provided in Section 3.1 hereof.
"Disclosure Memorandum" shall mean that certain memorandum disclosing
the information about Seller's business and other data as described herein and
provided to Purchaser by Seller prior to the Closing.
"Excluded Assets" shall mean all property, of whatever kind or
description, owned by Seller or used in connection with its business; all trade
secrets and other proprietary rights and information; structures; trade
fixtures; equipment; machinery; contract rights and general intangibles;
records, documents, inventory, finished goods, raw materials and good will; but
excluding the Property as that term is defined in this Section 1.
"Indemnitee" shall have the meaning given it in Section 11.1.3 hereof.
"Indemnitor" shall have the meaning given it in Section 11.1.3 hereof.
"License Agreement" shall have the meaning given it in Section 2.2
hereof.
"Maker" shall mean SMP [U.S.A.] Inc., a California Company and SMP
Australia.
"Notes" shall have the meaning given it in Section 4.1 hereof.
"Person" shall mean any natural person, corporation, partnership, joint
venture, association, organization, other entity or governmental or regulatory
authority.
"Property" shall mean all rights in and to the trademarks, service
marks, and logos identified on Schedule A to the Disclosure Memorandum,
including all domestic and foreign registrations and common law rights therein,
goodwill of the business symbolized by and associated with such trademarks,
contract rights under pending trademark license agreements, service marks and
logos, and any copyrights, patents and other intellectual properties, including
all domestic and foreign registrations and common law rights therein, if any,
owned by Seller and used in connection with its business; but excluding the
Excluded Assets.
"Purchase Price" shall have the meaning given it in Section 2.2 hereof.
"Purchaser" shall mean SMP Clothing [International] PTY Ltd., an
Australian corporation.
"Ride" shall mean Ride, Inc., a Washington corporation.
"Reconveyance Documents" shall have the meaning given it in Section
3.2.1 hereof.
"Seller" shall mean SMP Clothing, Inc., a Washington corporation.
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"SMP Australia" shall mean S.M.P. Clothing PTY Ltd., an Australian
corporation.
2. THE ACQUISITION.
2.1 PURCHASE OF PROPERTY. Subject to the terms and conditions of
this Agreement, Purchaser hereby agrees to purchase from Seller, and Seller
hereby agrees to sell and assign to Purchaser, on the Closing Date, the
Property.
2.2 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, in full consideration for the Assets, Purchaser shall pay to Seller
the sum identified on Schedule 2.2 to the Disclosure Memorandum (Six Hundred Two
Thousand Eight Hundred Eighty-Four and No/100 US Dollars [US$602,884]),
consisting of the aggregate values of the registrations costs and the net
present value of future minimum royalties due Seller from Purchaser as of July
1, 1998 under that certain Trademark License Agreement ("License Agreement"),
dated as of April 1, 1997, by and between Seller and SMP Australia (the
"Purchase Price").
2.3 METHOD OF PAYMENT. The Purchase Price shall be paid partly
in cash in the amount of Two Hundred Fifty Thousand and No/100 US Dollars
(US$250,000) on closing, payable by wire transfer in same day funds to an
account to be identified by Seller prior to the Closing and partly by the
execution and delivery of a Three Hundred Fifty-Two Thousand Eight Hundred
Eighty-Four and No/100 US Dollars (US$352,884) promissory note by Purchaser at
the Closing in the form of Exhibit 2.3 attached hereto.
3. CLOSING.
3.1 TIME AND PLACE OF CLOSING. The Closing shall occur at the
offices of Seller, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, at 3:00 p.m. local time no later than November 2, 1998, or such other
time and place as the parties may otherwise agree in writing but in no event
later than November 2, 1998 (the "Closing Date").
3.2 OBLIGATIONS TO BE PERFORMED AT CLOSING. At Closing:
3.2.1 TRADEMARK ASSIGNMENT. Subject to Section 4 hereof,
Seller shall deliver title to the Property pursuant to the terms of a Trademark
Assignment Agreement, in substantially the form attached as Exhibit 3.2.1
hereof, and such other or additional documents and other instruments as may be
required to formally assign and transfer Seller's title and interest in the
Property to Purchaser (together, the "Assignment Documents"). Subject to Section
4 hereof, Purchaser shall execute a trademark reconveyance and such other or
additional documents and other instruments as may be required to formally assign
and transfer Purchaser's title and interest in the Property to Seller (together,
the "Reconveyance Documents") in the event of default under Section 4.3 hereof.
The parties acknowledge that to the extent the Assignment Documents and
Reconveyance Documents are partial or incomplete as of the Closing Date, such
documentation shall be promptly prepared and signed by an officer of Seller
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and Purchaser, respectively, following Closing, and in no event later than
November 18, 1998. The cost of preparing and filing the Assignment Documents and
Reconveyance Documents shall be the sole obligation of Purchaser.
3.2.2 FURTHER ASSURANCES. Each of the parties shall
execute all other documents and take such other actions as are required by other
covenants contained in this Agreement or that are otherwise reasonably necessary
to carry out the terms of this Agreement and consummate the transactions
contemplated hereby.
4. PLEDGE; DEFAULT; REMEDIES.
4.1 PLEDGE. For and in security for the full payment and
performance of all sums due under the three (3) promissory notes ("Notes") of
even date made by Maker for the benefit of Seller or holder in the respective
principal sums of Three Hundred Fifty-Two Thousand Eight Hundred Eighty-Four and
No/100 US Dollars (US$352,884), One Million Four Hundred Eleven Thousand One
Hundred Twenty-Seven and No/100 US Dollars (US$1,411,127) and Sixty-seven
Thousand Four Hundred One and No/100 US Dollars (US$67,401), this Agreement and
the Asset Purchase Agreement, Purchaser hereby grants and conveys to Seller a
security interest in all of the Property. Purchaser and SMP Australia agree not
to sell, hypothecate, pledge, assign or encumber the Property in any manner to
any Person until such time as all sums due under the Notes, this Agreement and
the Asset Purchase Agreement are paid and satisfied in full. Seller and CIT
shall immediately release their liens against the Property upon full payment of
all sums due and owing under the Notes.
4.2 ESCROW. Until all sums due Seller under the Notes, this
Agreement and the Asset Purchase Agreement have been paid in full, the
Assignment Documents and the Reconveyance Documents shall be held in trust by
▇▇▇▇▇▇▇▇▇▇▇▇, O'Conor, ▇▇▇▇▇▇▇ and Kindness, PLLC ("Escrow") for the benefit of
both Seller and Purchaser and shall not be filed with or processed by applicable
governmental authorities until such time as all sums due under the Notes, this
Agreement and the Asset Purchase Agreement are paid and satisfied in full.
Contemporaneous with the full and final payment of all such sums, Seller shall
notify Escrow in writing to immediately release the Assignment Documents from
escrow and process them and return to Purchaser or destroy the Reconveyance
Documents, each in accordance with Purchaser's instructions. Purchaser and
Seller shall sign such agreements as Escrow may require to implement the purpose
and intent of this Section 4.2.
4.3 DEFAULT. Purchaser shall be in default of this Agreement in
the event any one of the following occurs:
4.3.1 Maker fails to pay when due any sum required to be
paid under the Notes and the Asset Purchase Agreement, or Purchaser fails to pay
when due any sum required to be paid under this Agreement, and such failure, in
each instance, remains uncured for a period of ten (10) days from the date
written notice of nonpayment by Maker is delivered to Purchaser;
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4.3.2 Maker or Purchaser files for protection from its
respective creditors under applicable bankruptcy laws, is adjudge bankrupt by a
court of competent jurisdiction, or makes a general assignment of its assets to
its respective creditors;
4.3.3 Purchaser breaches a material term of this
Agreement or Maker breaches a material term of the Asset Purchase Agreement and
such breach, in each instance, remains uncured for a period of ten (10) days
from the date written notice of breach is delivered to Purchaser or Maker, as
the case may be; or
4.3.4 Purchaser licenses all or any portion of the
Property in violation of Section 5 hereof..
4.4 REMEDIES. In the event of a default under Section 4.3
hereof, Seller may, upon ten (10) days notice to Maker, terminate this
Agreement, immediately foreclose on Seller's security interest in the Property
without judicial process, and direct Escrow to promptly file the Reconveyance
Documents and return to Seller or destroy, at Seller's option, the Assignment
Documents. In the event of such foreclosure, all right, ownership and interest
in an to the Property shall revert to Seller and Seller shall be entitled to
receive all royalties and other fees and payments that may then and thereafter
be due under any license agreements Purchaser has entered into with one or more
Persons in conformance with Section 5 hereof. In addition, royalty payments that
would then and thereafter be due Purchaser from SMP Australia under the License
Agreement shall be immediately due and payable according to the terms thereof.
Seller's foreclosure option, if exercised by Seller, shall be in lieu of all
other remedies for nonpayment of sums due under the Notes, this Agreement and
the Asset Purchase Agreement.
5. LICENSE RIGHTS. Provided Maker is not in default under Section 4.3
hereof, Purchaser may negotiate to license the Property, or any part thereof, to
such Persons as Purchaser, in its reasonable business judgment, deems capable of
exploiting the Property in a manner commensurate with the quality reputation and
goodwill currently associated with the Property. Purchaser shall submit each
proposed license agreement, if any, to Seller for approval, which approval shall
not be unreasonably withheld. Upon receipt of a proposed license agreement,
Seller shall have ten (10) business days to object to any provision thereof.
Failure by Seller to so object shall constitute its approval of same.
6. REPRESENTATIONS AND WARRANTIES OF SELLER AND RIDE. To induce
Purchaser to enter into and perform this Agreement, Seller and Ride each
represents and warrants to Purchaser as follows:
6.1 LEGAL STATUS OF SELLER. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington, and it has all requisite power and authority to lease and operate
its properties and assets and carry on the business as it is now conducted.
Seller is duly qualified to transact business as a corporation and is in good
standing in all jurisdictions in which the failure to be so qualified would
result in a material
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liability to Seller or have a material adverse effect upon the business of
Seller. Seller has full power and authority to execute, deliver and perform this
Agreement.
6.2 DUE AUTHORIZATION AND EXECUTION. This Agreement has been
duly authorized, executed and delivered by Seller and is a legal, valid and
binding obligation of Seller, enforceable in accordance with its terms, except
as enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally or (ii) general principles of equity (regardless of
whether such principles are considered in a proceeding in equity or at law).
6.3 TITLE TO THE PROPERTY. Seller has good and marketable title
to the Property, free and clear of any liens, mortgages, pledges, encumbrances,
security interests, restrictions, covenants, adverse claims and charges of any
kind other than those set forth on Schedule 6.3 to the Disclosure Memorandum.
6.4 PROPERTY DESCRIPTION. Schedule A to the Disclosure
Memorandum sets forth a true and complete list of all patents, patent
applications, trademark registrations, applications for trademark registration,
assignments, license agreements (whether written or oral) and other
registrations, applications, documents and other instruments evidencing
proprietary rights, domestic and foreign, evidencing any patent, copyright,
trademark, trade name, service ▇▇▇▇, trade dress or other intellectual property
rights that are necessary in the conduct of the Business. Except as set forth in
Schedule 6.4 to the Disclosure Memorandum, Seller possesses full right and
authority to use all know-how, proprietary information, copyrights, trademarks,
patent rights and other proprietary and intellectual properties necessary to the
conduct of the Business as presently conducted without infringing the rights of
others, all of which are transferred and assigned to Purchaser pursuant to this
Agreement, free and clear of all liens, claims, options, charges, encumbrances,
security interests or claims of ownership of any person or of any obligation to
pay royalties, license fees or other payments. To the best knowledge of Seller,
the operations of Seller as currently conducted do not infringe any copyright,
trademark, service ▇▇▇▇, trade name, patent rights or any other right of any
person, whether registered or unregistered, nor do they involve the
misappropriation of any trade secret of any Person. Except as described on
Schedule 6.4 to the Disclosure Memorandum, Seller has not received notice from
any Person alleging that such infringement or misappropriation has occurred or
is continuing.
6.5 [INTENTIONALLY OMITTED].
6.6 ARMS-LENGTH TRANSACTION. The consideration under this
Agreement has been negotiated in good faith, at arms-length and is supported by
valuable consideration, the evaluation and appropriateness thereof having been
dully considered and approved by Seller.
6.7 CLAIMS, PROCEEDINGS. To Seller's actual knowledge, there are
no claims, actions suits, investigations or proceedings, pending or threatened
against Seller before any court or governmental or non-governmental department,
commission, board, agency or
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instrumentality, or any other person which, if resolved adversely to Seller,
would preclude Seller from satisfying any material obligation under this
Agreement.
6.8 NO BREACH OR VIOLATION. To Seller's actual knowledge, the
execution and performance of this Agreement shall not cause a breach or
violation of any other agreement or covenant of Seller with any third party.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
enter into this Agreement, Purchaser and SMP Australia each represents and
warrants to Seller as follows:
7.1 LEGAL STATUS OF PURCHASER. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, has all requisite corporate power and authority to acquire the
Property and to carry on its business as it is now being conducted. Purchaser
has fall power and authority to execute, deliver and perform this Agreement.
7.2 DUE AUTHORIZATION AND EXECUTION. This agreement has been
duly authorized, executed and delivered by Purchaser and is a legal, valid and
binding obligation of Purchaser, enforceable in accordance with its terms,
except as enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles is relating
to or limiting creditors' rights generally or (ii) general principles of equity
(regardless of whether such principles are considered in a proceeding in equity
or at law).
7.3 LEGAL PROCEEDINGS. There are no claims, actions, suits,
arbitrations, proceedings or investigations pending or, to the best knowledge of
Purchaser after due inquiry, threatened against Purchaser before or by any court
or governmental or non-governmental department, commission, board, bureau,
agency, instrumentality, or any other Person which if resolved adverse to
Purchaser would preclude Purchaser from satisfying any material obligation under
this Agreement.
7.4 ARMS-LENGTH TRANSACTION. The consideration under this
Agreement has been negotiated in good faith, at arms-length and is supported by
valuable consideration, the evaluation and appropriateness thereof having been
dully considered and approved by Purchaser.
7.5 NO BREACH OR VIOLATION. To Purchaser's actual knowledge, the
execution and performance of this Agreement shall not cause a breach or
violation of any other agreement or covenant of Purchaser with any third party.
8. COVENANTS OF THE PARTIES.
8.1 COVENANTS OF SELLER. Seller covenants and agrees with
Purchaser to perform and observe the following:
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8.1.1 COOPERATION. Seller will fully cooperate with
Purchaser and with Purchaser's counsel and accountants in connection with any
steps required to be taken as part of Seller's obligations under this Agreement.
Seller will use its best efforts to cause all conditions to the parties'
obligations to effect the Closing under this Agreement to be satisfied as
promptly as reasonably possible and to obtain all consents and approvals
necessary for the due performance of this Agreement and for the satisfaction of
the conditions hereof.
8.1.2 DELIVERY OF PROPERTY. Subject to Section 4 hereof,
commencing on the Closing Date and continuing thereafter, Seller shall cause to
be delivered into the possession or control of Purchaser all of the Property,
which shall include, without limitation, the original copies of registrations
and the original copies of all records, files, documents, correspondence and
papers pertaining to the Property, provided Seller may retain such records and
copies for a limited time to comply with applicable governmental regulations, if
any.
8.1.3 USE OF NAMES. As of the Closing and subject to
Section 4 hereof, Seller will refrain from using "SMP", the SMP delta-Logo, and
any similar names or marks as a trade name, trademark or service ▇▇▇▇ in
connection with any business or activity, and within thirty (30) days of the
Closing Date, Seller will change its corporate name to a name the parties
mutually agree upon. Seller will work diligently with Purchaser from and after
the Closing Date to notify all relevant parties of the consummation of the
transactions contemplated by this Agreement and the Asset Purchase Agreement.
8.1.4 FURTHER ACTIONS. Subject to Section 4 hereof,
Seller shall, upon the reasonable request of Purchaser, do, execute, acknowledge
and deliver or shall cause to be done, executed, acknowledged and delivered all
such further acts, assignments, transfers, conveyances, assurances and other
instruments as may be reasonably required for the transferring, conveying,
assigning, delivering and reducing to the possession of Purchaser any and all of
the Property.
8.2 COVENANTS OF PURCHASER.
8.2.1 COOPERATION; BEST EFFORTS. Purchaser covenants and
agrees with Seller to fully cooperate with Seller and with its counsel in
connection with any steps required to be taken as part of Purchaser's
obligations under this Agreement. Purchaser will use its best efforts to cause
all conditions to the parties' obligations to effect the Closing under this
Agreement to be satisfied as promptly as possible and to obtain all consents and
approvals necessary for the due and punctual performance of this Agreement and
for the satisfaction of the conditions hereof.
8.2.2 CONDUCT OF BUSINESS. Purchaser shall conduct its
business and affairs in relation to the Business for the period preceding the
Closing Date in such manner as to minimize any adverse impact or impression the
transactions contemplated by this Agreement may foreseeably have on the
employees of Seller.
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9. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to perform and observe the covenants, agreements and conditions hereof
to be performed and observed by it at the Closing shall be subject to the
satisfaction of the following conditions, any one or more of which may be waived
by Purchaser. If any one of the following conditions precedent is not fully
satisfied or waived by Purchaser, by the applicable dates set forth below,
Purchaser may elect to terminate this Agreement:
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH
COVENANTS. The representations and warranties of Seller and Ride contained
herein shall have been true when made and shall be true on and as of the Closing
Date with the same force and effect as if again made on and as of such date, and
Seller shall have performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing Date.
9.2 SELLER'S CERTIFICATE. Purchaser shall have received a
certificate from Seller, dated the Closing Date, substantially in the form of
Exhibit 9.2 hereto, certifying that all of the conditions set forth in Section 9
to be fulfilled by Seller has been fulfilled and the representations and
warranties of Seller herein are true and correct on and as of the Closing Date
as if again made on and as of the Closing Date.
9.3 CONSENTS; GOVERNMENTAL FILINGS. There shall have been
obtained, in writing, all consents and approvals which the Schedules to this
Agreement indicate are required to be obtained prior to or on the Closing Date.
All expenses incurred in connection with the obtaining of such consents and
approvals shall be paid by Seller.
9.4 LEGAL PROCEEDINGS. No order of any court or administrative
agency shall be in effect which enjoins, restrains, conditions or prohibits
consummation of this Agreement, and no litigation, investigation or
administrative proceeding shall be pending or threatened which would enjoin,
restrain, condition or prevent consummation of the transactions contemplated by
this Agreement.
9.5 NO ADVERSE CHANGE. Between the date of this Agreement and
the Closing Date, there shall have been no material adverse change in the
business, prospects, assets or results of operation, or in the condition,
financial or otherwise, of Seller.
9.6 FINANCING. Purchaser shall have obtained financing in an
amount and upon such terms as Purchaser, in its sole reasonable business
judgment, deems sufficient to consummate and perform the transactions
contemplated by this Agreement.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller to perform and observe the covenants, agreements and conditions hereof to
be performed and observed by it at the Closing shall be subject to the
satisfaction of the following conditions, any one or more of which may be
expressly waived in writing by Seller. If any one of the following
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conditions precedent is not fully satisfied, or waived by Seller, by the
applicable dates set forth below, Seller may elect to terminate this Agreement:
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH
COVENANTS. The representations and warranties of Purchaser and SMP Australia
contained herein shall have been true when made and shall be true on and as of
the Closing Date with the same force and effect as if again made on and as of
such date. Purchaser shall have performed all obligations and agreements and
complied with all covenants and conditions contained in this Agreement to be
performed and complied with by it on or prior to the Closing Date.
10.2 PURCHASER'S CERTIFICATE. Seller shall have received a
certificate from Purchaser, dated as of the Closing Date, substantially in the
form of Exhibit 10.2 hereto certifying that all of the conditions set forth in
Section 10.1 to be fulfilled by Purchaser have been fulfilled and the
representations and warranties of Purchaser herein are true and correct on and
as of the Closing Date as if again made on and as of the Closing Date.
10.3 GOVERNMENTAL FILINGS. All filings and applications required
by applicable law to be made with or to any governmental entity in connection
with the transactions contemplated by this Agreement shall have been made and
all waiting periods specified by applicable law shall have expired or been
earlier terminated without there being any continuing objection to the
transactions contemplated hereby.
10.4 LEGAL PROCEEDINGS. No order of any court or administrative
agency shall be in effect which enjoins, restrains, conditions or prohibits
consummation of this Agreement, and no litigation, investigation or
administrative proceeding shall be pending or threatened which would enjoin,
restrain, condition or prevent consummation of this Agreement.
10.5 FINANCING. Purchaser shall have obtained financing in an
amount and upon such terms as Seller, in its sole reasonable business judgment,
deems sufficient to consummate and perform the transactions contemplated by this
Agreement.
11. INDEMNIFICATION AND SURVIVAL OF WARRANTIES.
11.1 INDEMNIFICATION.
11.1.1 BY SELLER AND RIDE. Seller and Ride agree to
indemnify Purchaser and to hold Purchaser harmless against and in respect of any
and all losses, damages, costs and expenses, including reasonable attorneys' and
accountants' fees incurred by Purchaser by (i) reason of a breach of any of the
representations, warranties, covenants or agreements made by Seller in this
Agreement, or in any other instrument or agreement related hereto or executed in
connection herewith, or in any written statement or certificate delivered to
Purchaser or any agent
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of Purchaser in connection with this Agreement or the transactions contemplated
hereby or (ii) operation of Article 6 of the Uniform Commercial Code as codified
in Washington. As used in this Section 11.1.1, the term "Purchaser" shall
include each officer, director and shareholder of Purchaser.
11.1.2 BY PURCHASER. Purchaser agrees to indemnify and
to hold Seller harmless against and in respect of any and all losses, damages,
costs and expenses, including reasonable attorneys' and accountants' fees,
incurred by Seller by reason of a breach of any of the representations,
warranties, covenants or agreements made by Purchaser in this Agreement, or in
any other instrument or agreement related hereto or certificate delivered to
Seller in connection with this Agreement or the transactions contemplated
hereby. As used in this Section 11.1.2, the term "Seller" shall include each
officer, director and shareholder of Seller.
11.1.3 NOTICE. The party entitled to indemnification
hereunder (the "Indemnitee") shall promptly notify in writing the party against
whom indemnification is sought hereunder (the "Indemnitor") of any matters which
may give rise to the right to indemnification hereunder.
11.1.4 CLAIMS. If the Indemnitee is threatened with any
claim or any claim is presented to, or any action or proceeding commenced
against, the Indemnitee which may give rise to the right of indemnification
hereunder, the Indemnitee will promptly give written notice thereof to the
Indemnitor. The Indemnitor, by delivery of written notice to the Indemnitee
within twenty (20) days of receipt of written notice for indemnity from the
Indemnitee, may elect to contest such claim, action or proceeding, in which
event such contest shall lie conducted in such manner as the Indemnitor deems
necessary or advisable; provided, however, that (a) such written notice shall be
accompanied by a written acknowledgment of the Indemnitor's liability for the
indemnified liabilities and any further loss, damage or expense that the
Indemnitee might suffer as a result of the election to contest such claim,
action or proceeding, (b) the counsel undertaking the defense of such claim,
action or proceeding shall be reasonably acceptable to the Indemnitee, and (c)
if the Indemnitee requests in writing that such claim, action or proceeding not
be contested, then it shall not be contested but shall also not be covered by
the indemnities provided herein. The Indemnitor shall not have the right to
settle an indemnifiable matter except with the consent of the Indemnitee which
shall not be unreasonably withheld, after delivering a written description of
the proposed settlement to, and receiving consent from, the Indemnitee and, if
the Indemnitor is able to achieve such settlement, the Indemnitor may satisfy
its obligations with respect to such indemnified liabilities by consummating
such settlement. If the Indemnitor does not elect to contest an indemnifiable
matter, the Indemnitee shall have the right to prosecute, defend, compromise,
settle or pay any claim, but the Indemnitee shall not be obligated to do so. The
Indemnitee and the Indemnitor shall cooperate with each other in connection with
any matter or claim for indemnification.
11.1.5 EFFECT OF FAILURE TO GIVE NOTICE. Failure to give
any notice shall not affect an Indemnitee's right to indemnity except to the
extent the Indemnitor has been prejudiced thereby.
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11.2 SURVIVAL. Notwithstanding any investigation made by Seller
or Purchaser, the representations and warranties of Seller and of Purchaser
contained in this Agreement and all statements contained in any certificate or
other instrument delivered by Seller or Purchaser pursuant to this Agreement or
in connection with the transactions contemplated hereby (which shall be deemed
to be representations and warranties of such party hereunder) shall survive the
Closing only until the first anniversary of the Closing Date.
11.3 MINIMUM. Notwithstanding any other provision in this
Section 11, an Indemnitee shall be entitled to indemnification for losses,
damages, costs and expenses only if and to the extent the aggregate
indemnifiable amount (but not as to each occasion) exceeds Ten Thousand Dollars
(U.S. $10,000).
11.5 NONEXCLUSIVE. The rights, powers and remedies of the
parties under this Agreement are cumulative and not exclusive of any other
right, power or remedy which such parties may have under any other agreement or
law. No single or partial assertion or exercise of any right, power or remedy of
a party hereunder shall preclude any other further assertion or exercise
thereof.
11.6 DISPUTE RESOLUTION. In the event of a dispute between the
parties in connection with this Agreement and any Exhibit or other instrument
required to give effect to the provisions hereof, such dispute shall be
submitted to mediation for resolution before an impartial mediator experienced
in commercial matters generally, and who is mutually agreeable to the parties.
The mediation shall be held in Seattle or San Diego pursuant to Washington or
California law, as the case may be, the decision thereof shall be binding and
enforceable in a court of competent jurisdiction, and the costs thereof shall be
awarded to the substantially prevailing party. Nothing contained within this
paragraph shall require Seller to commence mediation as provided for in this
paragraph in the event Seller avails itself of its foreclosure rights on
Seller's security interest in the Property in conformance with the provisions of
Paragraph 4.4 above.
12. TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date by the mutual written consent of Seller and Purchaser or by the
non-breaching party in the event of a breach of a representation, warranty or
covenant, and may be terminated at the election of either party if the Closing
has not occurred prior to October 30, 1998; provided, however, that the right to
terminate this Agreement under this clause shall not be available to the party
whose failure to fulfill any obligation under this Agreement has been the cause
or resulted in the failure of the Closing to occur on or before the date
specified in Section 3.1.
13. NOTICES. Any notice or demand desired or required to be given
hereunder shall be in writing and deemed given when personally delivered, or
deposited in the mail, postage prepaid, sent certified or registered, or
delivered to an overnight carrier or sent by facsimile and addressed as
respectively set forth below or to such other address as any party shall have
previously designated by such a notice. Any notice so delivered personally, by
U.S. or
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Australian Postal Service, by overnight carrier or by facsimile shall be deemed
to be received on the date of delivery to such carrier or on the date of
electronic confirmation of transmission if by facsimile. Notices shall be sent
as follows:
TO SELLER:
SMP Clothing, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(tel) ▇▇▇-▇▇▇-▇▇▇▇
(fax) ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Summit Law Group
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(tel) ▇▇▇-▇▇▇-▇▇▇▇
(fax) ▇▇▇-▇▇▇-▇▇▇▇
TO PURCHASER:
▇▇▇▇▇▇ ▇▇▇▇
SMP Clothing [International] PTY Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
(tel) ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(fax) ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
with a copies to:
▇▇▇▇▇▇ ▇▇▇▇ Warwick Colbron
SMP Clothing PTY Ltd. ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ 180 Ocean Street
1199 Kippax St. Edgecliff, N.S.W.
Surry Hills N.S.W. Australia 2027
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (tel) ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(tel) ▇▇ ▇ ▇▇▇▇ ▇▇▇▇ (fax)▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(fax) ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(tel) ▇▇▇-▇▇▇-▇▇▇▇; (fax) ▇▇▇-▇▇▇-▇▇▇▇
14. GENERAL.
14.1 AMENDMENT. The parties hereto may amend, modify or
supplement this Agreement at any time, but only in writing duly executed on
behalf of all parties hereto.
14.2 ENTIRE UNDERSTANDING. The terms set forth in this Agreement
supersede all previous discussions, understandings and agreements between them
with respect to the subject matter hereof, and are intended by the parties as a
final, complete and exclusive expression of the terms of their agreement and may
not be contradicted, explained or supplemented by evidence of any prior
agreement, any contemporaneous oral agreement or any additional terms; provided
Seller shall retain all audit and royalty adjustment rights with respect to SMP
Australia's sales for the period ending June 30, 1998 arising under the License
Agreement.
14.3 WAIVERS. Any terms, covenants, representations, warranties
or agreements of any party hereto may be waived at any time by an instrument in
writing executed by the party for whose benefit such terms exist. The failure of
any party at any time or times to require performance of any provisions hereof
shall in no manner affect its right at a later time to enforce the same. No
waiver by any party of any condition or of any breach of any terms, covenants,
representations, warranties or agreements contained in this Agreement shall be
effective unless in writing, and no waiver in any one or more instances shall be
deemed to be a further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or any breach of any other
terms, covenants, representations, warranties or agreements.
14.4 HEADINGS. The headings preceding the text of the Sections
of this Agreement are for convenience only and shall not be deemed parts
thereof.
14.5 [INTENTIONALLY OMITTED].
14.6 BULK SALES. Purchaser hereby waives compliance with the
Bulk Sales laws of the State of California and Seller agrees to indemnify and
hold harmless Purchaser from, and reimburse Purchaser for, any and all claims,
liabilities or obligations that Purchaser may suffer or incur by virtue of such
noncompliance, including reasonable attorneys fees and costs.
14.7 PARTIES IN INTEREST; ASSIGNMENT. All of the terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and permitted assigns of the
parties hereto, whether herein so expressed or not. Purchaser may without the
consent of Seller assign its rights hereunder to any corporation controlling,
controlled by or under common control with Purchaser or any general or limited
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partnership in which Purchaser is a general partner, but no such assignment
shall relieve Purchaser from liability for breach of any of its obligations
hereunder, including without limitation, its indemnity obligations set forth in
Section 11 hereof. Neither this Agreement nor any of the rights, interests or
obligations hereunder of any party hereto shall otherwise be assigned without
the prior written consent of the other parties.
14.8 PUBLICITY. Prior to the closing of this Agreement, neither
of the parties hereto shall make or issue, or cause to be made or issued, any
announcement or written statement concerning this Agreement or the transactions
contemplated hereby for dissemination to the general public without the prior
consent of the other party, unless Seller determines on the advice of securities
counsel that disclosure is required by applicable securities laws in which event
Purchaser will give Seller reasonable advance notice of such disclosure.
14.9 ATTORNEYS' FEES. In the event of any action to enforce any
provision of this Agreement, or on account of any default under or breach of
this Agreement, the prevailing party in such action shall be entitled to
recover, in addition to all other relief, from the other party all reasonable
attorneys' fees and costs incurred by the prevailing party in connection with
such action (including, but not limited to, any appeal thereof).
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first above written.
SELLER:
SMP CLOTHING, INC. RIDE, INC.
By:_______________________________ By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
PURCHASER:
SMP CLOTHING [INTERNATIONAL] PTY LTD
By:_______________________________
▇▇▇▇▇▇ ▇▇▇▇, President
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Exhibits
2.3 Promissory Note
3.2.1 Trademark Assignment
9.2 Form of Seller's Certificate
10.2 Form of Purchaser's Certificate
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EXHIBIT 2.3
PROMISSORY NOTE
US $352,884 November 9, ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
1. Promise to Pay. FOR VALUE RECEIVED, the undersigned (together,
"Maker"), promises to pay to the order of SMP Clothing, Inc., a Washington
corporation ("Holder") at ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or
at such other place as Holder may from time to time designate in writing, the
principal sum of US Three Hundred Fifty-Two Thousand Eight Hundred Eighty-Four
Dollars and No/100 US Dollars (US$352,884), together with interest on the unpaid
principal balance thereof, as provided below.
2. Interest. The outstanding principal balance of this Note shall bear
interest at the rate of two percent (2%) per month from the date hereof until
paid in full (the "Interest Rate"). Interest shall be computed on a daily basis
and shall be fully due and payable on the Maturity Date..
3. Payment. Maker shall pay the principal and interest and any fees
and costs required under this Note in installments each in denominations of not
less than Twenty Thousand and No/100 Dollars ($20,000.00) as follows:
3.1 Principal and Interest Payments. Principal and interest
shall be payable in so many installments as Maker may elect; provided
the entire obligation due Holder hereunder shall be due, payable and
satisfied by Maker on or before March 1, 1999 ("Maturity Date").
3.2 Method of Payment. Maker shall make all payments required
hereunder by wire transfer in same day funds to the following account
or such other account as Holder may designate to Maker in writing:
Bank of America, #▇▇▇▇▇▇▇▇▇, CIT Group/Credit, #1233055591, Reference:
SMP - RIDE.
3.3 Application of Payments. All payments shall be applied
first to any fees and costs due hereunder, then to the unpaid
principal balance and finally to accrued and unpaid interest.
4. Default. If Maker defaults under the terms of that certain
Intellectual Property Purchase Agreement of even date ("Assignment Agreement"),
between SMP Clothing [International] PTY Ltd., SMP Clothing, Inc. and Holder,
which among other things secures the indebtedness of Maker to Holder evidenced
hereby, upon ten (10) days written notice thereof to Maker, or any time
thereafter, at the option of Holder, without demand or further notice, the
outstanding balance of this Note, together with all interest accrued thereon and
all costs and expenses due under this Note shall become immediately due and
payable and shall bear interest at the Interest Rate, plus five percent (5%)
(the "Default Rate"), until paid in full, and all liens given to secure the
payment thereof, including without limitation, all liens provided by and created
under the Assignment Agreement, may be immediately foreclosed; provided such
foreclosure shall be deemed to satisfy in full the then outstanding obligations
evidenced hereby. Failure to exercise this option, or any other right Holder may
in such event be entitled to, shall not constitute a waiver of the right to
exercise such option or any other right in the event of any subsequent default.
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5. Attorneys' Fees and Costs. If this Note is placed in the hands of
an attorney for collection, Maker promises to pay Holder's reasonable attorneys'
fees and all costs actually incurred in the collection process. Such fees and
costs shall become part of the indebtedness evidenced by this Note, and shall
bear interest at the Default Rate.
6. Prepayment. Maker may prepay all or any portion of the sums due
under this Note without notice or penalty.
7. Security. This Note is secured by a security interest in the
Property, as that term is defined in the Intellectual Property Agreement.
8. Purpose. Maker represents and warrants to Holder that all sums
owing under this Note are solely intended for a business purpose, and not for
consumer or household purposes.
9. Liability. Maker shall be jointly and severally liable for all
obligations arising hereunder. Maker hereby waives demand, presentment for
payment, protest and notice of protest and of nonpayment and agrees that any
modification or extension of the terms of payment made by Holder, with or
without notice, at the request of Maker or otherwise, or any release of all or
any portion of the security from the lien of Holder's security interest therein,
shall not diminish or impair Maker's liability for the payment of all amounts
due hereunder.
10. Successors. All of the covenants, provisions and conditions herein
contained are made on behalf of and shall apply to and bind the respective
officers, directors, shareholders, employees, heirs, personal representatives,
estates, marital communities, trustees, agents, successors, and assigns of Maker
and Holder, however in no case shall personal liability attach to any said
person, firm or entity beyond that arising under applicable for profit
corporation statutory provisions.
S.M.P. Clothing PTY Ltd.
By:_______________________________
▇▇▇▇▇▇ ▇▇▇▇, President
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EXHIBIT 3.2.1
TRADEMARK ASSIGNMENT
WHEREAS, SMP Clothing, Inc., a Washington corporation ("SMP"), is the
owner of the entire right, title, and interest in those certain United States
trademarks and designs identified as follows (together, "Trademarks");
a)
b)
c) , and
WHEREAS, _______________, a California corporation ("Purchaser"), is
desirous of acquiring the entire right and title to and interest in the
Trademarks;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, SMP hereby assigns and transfers to Purchaser all of its
right, title, and interest in and to the Trademarks (and designs, if
applicable), said registrations, and any and all modifications and assignments
thereof, the Trademarks and the respective registrations on the Trademarks to be
held and enjoyed by Purchaser as entirely as the same would have been held and
enjoyed by SMP had this assignment and transfer not been made.
Executed this ______ day of _________________, 1998.
SMP CLOTHING, INC.
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
STATE OF ___________________________ )
) ss.
COUNTY OF __________________________ )
I certify that I know or have satisfactory evidence that ▇▇▇▇▇ ▇. ▇▇▇▇▇
is the Secretary of SMP Clothing, Inc., the corporation that executed the within
and foregoing instrument, and said person acknowledged that the said instrument
is the free and voluntary act and deed of said corporation, for the uses and
purposes set forth therein, and on oath stated that he is authorized to execute
said instrument.
Dated:______________________ ____________________________________
Signature
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EXHIBIT 9.2
SELLER'S CERTIFICATE
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇, does hereby certify that:
1. I am the duly elected and acting Secretary of SMP Clothing, Inc., a
party to that certain Intellectual Property Purchase Agreement ("Agreement"),
dated as of November 2, 1998, by and between Seller, Ride, and SMP Clothing
[International] PTY Ltd, as those terms are defined in the Agreement, and I am
authorized by SMP to execute and deliver this Certificate pursuant to Section
9.2 of the Agreement.
2. The representations and warranties of Seller and Ride contained in
the Agreement are true and correct of the date hereof as though such
representations and warranties are made on the date hereof.
3. Seller has performed and complied with all of the obligations,
agreements, covenants and conditions contained in the Agreement to be performed
or complied with by SMP on or prior to the date hereof.
DATED: __________________, 1998.
SMP CLOTHING, INC.
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
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EXHIBIT 10.2
PURCHASER'S CERTIFICATE
The undersigned, ▇▇▇▇▇▇ ▇▇▇▇, does hereby certify that:
1. I am the duly elected and acting President of S.M.P. Clothing
[International] PTY Ltd., a party to that certain Intellectual Property Purchase
Agreement ("Agreement"), dated as of November 2, 1998, by and between Seller,
Ride, and SMP Clothing [International] PTY Ltd., as those terms are defined in
the Agreement, and I am authorized by SMP to execute and deliver this
Certificate pursuant to Section 9.2 of the Agreement.
2. The representations and warranties of Purchaser contained in the
Agreement are true and correct of the date hereof as though such representations
and warranties are made on the date hereof.
3. Purchaser has performed and complied with all of the obligations,
agreements, covenants and conditions contained in the Agreement to be performed
or complied with by Purchaser on or prior to the date hereof.
DATED: __________________, 1998.
SMP CLOTHING [INTERNATIONAL] PTY LTD.
_____________________________________
▇▇▇▇▇▇ ▇▇▇▇, President
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