EXHIBIT 10.2
AMENDMENT NO. 1 TO LICENSE AGREEMENT
------------------------------------
THIS AMENDMENT TO LICENSE AGREEMENT (this "Amendment"), effective as of the
first day of August, 2003, is by and between Sport Supply Group, Inc., a
Delaware corporation ("SSG") and Xxxx Corporation, a Texas corporation
("Xxxx").
WHEREAS, Xxxx Corporation, a New York corporation ("Xxxx NY") and BSN
Corp., a Delaware corporation ("BSN") entered into that certain Agreement
dated to be effective as of December 9, 1986 (the "License Agreement").
WHEREAS, effective as of September 30, 1998, BSN assigned all of its
rights, title and interest in and to the License Agreement to SSG pursuant
to Section 16(b) of the License Agreement.
WHEREAS, effective as of December 20, 2002, Xxxx acquired all of the
rights, title and interest in and to the License Agreement from Xxxx NY's
successor in interest.
WHEREAS, Xxxx and SSG desire to amend certain terms and provisions of
the License Agreement pursuant to the terms and provisions of this
Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to
the following:
1. Section 1 of the License Agreement is hereby amended by deleting its
first paragraph and replacing it with the following
1. Grant of License. Xxxx hereby grants to BSN, for a period commencing
on the date hereof and terminating on December 31, 1989 (the
"Initial Term") and thereafter for four (4) consecutive renewal
periods ("Extension Options"), an exclusive license in and to the
Trademark in the United States for use in connection with the
manufacture, sale and advertisement of the products listed on
Schedule A attached hereto (the "Products") and solely to the
following customers (the "Customers"), such rights licensed
hereunder being referred to as the "Trademark Rights":
2. Section 1 of the License Agreement is hereby amended by deleting
Section 1(d) in its entirety and replacing it with the following:
(d) Persons or entities receiving SSG's various catalogs, or
purchasing by or through SSG's various catalogs and/or websites.
3. Section 1 of the License Agreement is hereby amended by adding the
following subparagraphs after subparagraph 1(d):
(e) Xxxxxxxx.xxx and its affiliates;
(f) Xxxxxx.xxx and its affiliates pursuant to the terms and provisions
of that certain Xxxxxxxxx@Xxxxxx.xxx Participation Agreement by
and between Xxxxxx.xxx Payments, Inc. and SSG, the relevant
provisions of which have been provided to Xxxx;
(g) Premium and Incentive wholesale accounts;
(h) On a non-exclusive basis, consumers (including, without
limitation, individual consumers purchasing for their own account)
and On-Line Sellers (as defined below) located through E-Commerce
(as defined below). Xxxx acknowledges that the right and license
granted herein includes, but is not limited to, the right for On-
Line Sellers who have purchased or agreed to purchase Xxxx-branded
Products from SSG, to resell and distribute Xxxx-branded Products
to any person or entity through E-Commerce. "On-Line Sellers"
shall mean any and all entities that sell, offer to sell, resell
or offer to resell a Product through E-Commerce. "E-Commerce"
shall mean conducting business (including the advertisement, offer
for sale, sale and distribution of products) through a global,
international, national, local or other electronic network (such
as the Internet, private network or corporate intranet), or any
subpart thereof, which may be accessed or created now or in the
future, and any other current or future means or method of
advertisement, sale, order taking or distribution via an
electronic means. Since the right to sell through E-commerce
(whether on SSG's websites or through Online Sellers) contemplates
marketing and advertising Xxxx branded Products throughout the
entire world, Xxxx hereby grants to SSG the non-exclusive right
and license for (1) SSG, (2) customers of SSG who have or may
purchase Xxxx-branded Products from SSG, and (3) others authorized
by SSG, to display and otherwise promote, advertise, merchandise,
and offer for sale all Xxxx-branded Products throughout the world
to any person or entity of any type, including but not limited to
the general public.
(i) It is expressly understood that Xxxx and its designees, licensees,
successors and assigns may sell any products of the type listed as
Products to any customers not included within the Customers given
on an exclusive basis, and that SSG or its designees, licensees,
successors and assigns may not sell to Customers any products
other than the Products.
4. Section 2(a)(i) of the License Agreement is hereby amended by deleting
such Section and replacing it with the following:
(j) it owns the entire right, title and interest in and to the
Trademark free and clear of all liens, claims or encumbrances of
any kind;
5. Section 2(a)(iv) of the License Agreement is hereby amended by
deleting such Section and replacing it with the following:
(iv) the execution and delivery of this Agreement, and the performance
by Xxxx of its obligations hereunder, are not in violation of and
will not conflict with any agreement, law, order or other
restriction binding on Xxxx;
6. Section 3 of the License Agreement is hereby amended by deleting such
Section and replacing it with the following:
3. Term of Extension Options. Each of the Extension Options shall
have a term of (5) five years (each of such terms being hereinafter
referred to as an "Extension Term"), the term of the first Extension
Option to commence on January 1, 1990, and the terms of the second,
third and forth Extension Options to commence on January 1, 1995, 2000
and 2005, respectively.
7. Section 6(b) is deleted in its entirety and replaced with the
following:
(b) For each Contract Year during any Extension Term, the greater of:
(i) the average Earnout Price earned during the three (3) calendar years
immediately preceding the Extension Term in question, but in no event
greater than $300,000 or less than $100,000 (the "Minimum Exercise Price");
or (ii) the Earnout Price.
8. The first sentence of Section 9 (Ownership of the Trademark) of the
License Agreement is deleted and replaced with the following sentence (it
is understood that the remaining Section 9 after the first sentence remains
unchanged):
"SSG acknowledges Xxxx'x exclusive right, title and interest in and to
the Trademark, subject to SSG's rights under this Agreement."
9. Section 16(b) (Assignment and Binding Effect) of the License Agreement
is deleted in its entirety and replaced with the following:
(b) Assignment and Binding Effect. This Agreement may be assigned
by Xxxx provided assignee agrees to be bound by the terms and
conditions of this Agreement. It is the intention of the parties
that SSG or an authorized distributor of SSG shall sell and
distribute the Products. SSG may not assign, sub-license or
transfer this Agreement without the prior written approval of Xxxx
which shall not be unreasonably conditioned, delayed, or withheld,
except that SSG may assign all or a portion of its rights and
obligations under this Agreement to its affiliate, parent or
subsidiary without Xxxx'x consent. Subject to the foregoing
exception, any attempted assignment, sub-license or transfer by
SSG without such prior written consent shall constitute a material
default in the obligations of SSG hereunder. Any consent by Xxxx
to the assignment of this Agreement shall not relieve SSG from its
obligations and liabilities hereunder, unless Xxxx shall also
expressly in writing agree to such relief. All of the terms and
provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
10. The addresses in Section 16(d) (Notices) are hereby deleted in their
entirety and replaced with the following:
If to Xxxx:
-----------
Xxxx Corporation
0000 Xx Xxxxxx Xxxx
Xxxxx 000-X
Xxx Xxxxxxx, XX. 78249
Attn: CEO
If to SSG:
----------
Sport Supply Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX. 00000
Attn: General Counsel
11. Section 16(e) (Governing Law) is hereby deleted in its entirety and
replaced with the following:
THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCLUDING PRINCIPLES OF
CONFLICTS OF LAWS).
12. Schedule A of the License Agreement (Products) is amended to include
the following products:
15. Soccer equipment including but not limited to shin guards,
uniforms, socks, goal keeper gloves, indoor/outdoor foam balls,
soccer goals and nets, and other accessories.
16. Exercise equipment.
13. Except as modified herein, all other terms and conditions of the
License Agreement shall continue in full force and effect. Any
conflict between the provisions of this Amendment and the provisions of
the License Agreement will be resolved in favor of this Amendment.
IN WITNESS HEREOF, Xxxx and SSG have respectively signed this Amendment
to be effective as of the date first hereinabove set forth.
XXXX CORPORATION SPORT SUPPLY GROUP, INC.
By: _______________________ By: ________________________
Xxxx Xxxxx Xxxxxxxx Xxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer Title: Chief Operating Officer
Date: ____________________ Date: ____________________
